By Bryan Lim
I refer to TOC’s article, “By-election in Tanjong Pagar – A legal analysis“.
There is indeed a legal loophole that allows a by-election in Tanjong Pagar GRC to take place. In fact, it makes the by-election mandatory.
Article 49. —(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force.
Article 49 is the supreme law because it’s part of the Constitution and Article 4 makes this clear:
This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
Article 49 makes it very clear that elected seats must have by-elections. It does not care if it’s a SMC or GRC. It just says the vacancy must be filled by any parliamentary elections for the time being. Thus, Article 49 does not condone a parliamentary elections law that advocates not filling the vacancy for the time being.
Parliamentary Elections Act Section 24(2A) states that:
In respect of any group representation constituency, no writ shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.
Therefore, the only logical resolution that satisfies the terms of both Article 49 and PEA S24(2A) is that a by-election needs to be called for the GRC to fill the vacancy, and this by-election is exceptional for it does not require a writ to be issued.
Conclusion: As per Article 49 and PEA S24(2A), a by-election in Tanjong Pagar GRC is mandatory since the current parliament has not been dissolved. No writ is required for this by-election so it won’t be issued. It does not matter if a GE may be called later this year or next year because Article 49 is only talking about the time being (the period before the GE).