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photo: thesmartlocal.com

High court dismisses application for by-election to be held in Yew Tee-Marsiling GRC

The legal challenge to compel a by-election in Marsiling-Yew Tee GRC to be held, following the vacating of its minority race Member of Parliament, has been dismissed by the High Court on Monday (9 April).

Singapore Democratic Party (SDP) assistant treasurer Wong Souk Yee had earlier made the application to the High Court after Madam Halimah Yacob resigned as an MP from the constituency to run in the presidential election. SDP had pulled out of the legal challenge last November when the Attorney-General argued it had no standing in the issue. Dr Wong, who is a resident of the GRC, remained as sole plaintiff.

Justice Chua Lee Ming stated in his ruling that there is no legal provision for the sitting MPs in a GRC to be compelled to vacate their seats in Parliament, when only one spot has been left empty in their GRC, as well as disagreeing with Dr Wong's representing lawyer, Mr Peter Low's claim that there was inconsistency between the Constitution and the Parliamentary Elections Act.

Mr Low then argued that if a by-election is not called, the Parliamentary Elections Act should be interpreted such that all MPs of the GRC have to leave their spots when one or more seats are left empty or when no remaining MP is a minority candidate, citing Article 49(1) of the Constitution, which states that when "the seat of a Member has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election".

Deputy Attorney-General Mr Hri Kumar Nair counter-argued against Mr Low's above argument by saying that the GRC scheme was designed to ensure minority representation at the point of elections.

The judge, who heard the application on 22 January, rejected Mr Low's interpretation of Article 49(1), saying that an immediate hurdle that Dr Wong faces under this interpretation is the fact that a by-election for the whole GRC team cannot be held unless the remaining MPs leave their seats and that the Constitution does spell out - in Article 46(2) - the circumstances under which a seat becomes vacant, and none of them applies to the remaining MPs in Marsiling-Yew Tee GRC.

The circumstances include an MP losing or giving up his Singapore citizenship or an MP leaving the political party which he had stood for in the election.

The judge concluded that there is no legal basis to require the rest of the MPs to vacate their seats in Marsiling-Yew Tee GRC and that the alleged inconsistency between the Constitution and the Parliamentary Elections Act does not stand.

He stated in his judgement grounds that the applicant's argument is simply that because Article 49 (1) has triggered a by-election in the present case, the remaining MPs must vacate their seats by resigning because otherwise a by-election cannot be held.

"In my view, this is a circuitous argument," he noted.

Justice Chua then said that he also disagreed with Mr Low's argument that a by-election must be held as voters have lost their right to be represented by an elected MP of their choice, saying that the GRC team should represent the GRC in Parliament and voters continue to be represented by the team, albeit comprising one MP less.

The ruling preserves the legal status quo, which requires by-elections when single seats are vacated, but not when one MP in a GRC leaves the seat. In a GRC, by-elections are required only when all MPs vacate their seats.

The court also ordered Dr Wong to pay the state costs of $10,764.35.

SDP chairman Paul Tambyah told reporters after the ruling that the party is very disappointed with the ruling and will study the judgment and consult with Dr Wong and her lawyer Peter Low on whether to appeal against it.

The case is the first legal challenge which has been mounted to determine whether a by-election is mandatory when a seat has been vacated in a GRC.

SDP had called the People's Action Party's (PAP) not to call a by-election unconstitutional.

When Madam Halimah left the GRC to run for president, MP Zaqy Mohamad from neighbouring Chua Chu Kang GRC was appointed to take on the additional role of grassroots adviser to the ward she had been serving in.

The three remaining MPs in Marsiling-Yew Tee GRC are National Development Minister Lawrence Wong, Mr Ong Teng Koon and Mr Alex Yam.

In the last general election in 2015, the PAP-held GRC was contested by SDP. PAP got 68.7 per cent of votes, against SDP's 31.3 per cent.