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Court of Appeal reserves judgment in appeal for by-election in Marsiling-Yew Tee GRC

The Court of Appeal has reserved judgment in an appeal by Dr Wong Souk Yee, assistant treasurer of the Singapore Democratic Party (SDP), against Justice Chua Lee Ming’s dismissal of her judicial review application in a bid to have a by-election held in the Marsiling-Yew Tee Group Representation Constituency (MYT GRC), on Wednesday (16 January).

The matter began when Madam Halimah Yacob (as the President then was), who was then the Member of Parliament (MP) for the Marsiling ward in MYT GRC, resigned from her seat to run for the Presidency in the 2017 presidential elections.

Mr Zaqy Mohamad, Member of Parliament for the Chua Chu Kang GRC, was appointed as grassroots adviser for the Marsiling ward as a result, though Madam Halimah’s former seat remained vacant till today.

Dr Wong, who was also a resident in the Marsiling ward of MYT GRC, subsequently filed the judicial review application in the High Court, mainly to compel all the remaining MPs in MYT GRC to resign from their seats and then for the Prime Minister of Singapore to call for a by-election in that GRC.

Justice Chua dismissed the application in April last year, where he held that nothing in the Singapore Constitution provides a legal basis to compel all remaining MPs in the MYT GRC to vacate their seats.

He also held that an “updating construction” and/or a “rectifying construction” could be applied to Art 49(1) of the Constitution, which provides that a vacant constituency seat shall be filled by an election.

Such constructions would reflect the changes that had taken place since the law was enacted and/or to rectify any errors that occurred in the process of enacting new laws, which would give effect to Parliament’s intention, Justice Chua said.

Dissatisfied with the High Court’s decision, Dr Wong – represented by Peter Low & Choo LLC – duly filed an appeal, which came before a five-judge panel led by Chief Justice Sundaresh Menon, and which included Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong.

Mr Peter Low, presenting the arguments of Dr Wong’s legal team, took the position that on a plain reading of Art 49(1), it should be interpreted as including a basis for compelling all remaining MPs in a GRC to resign whenever any seat of an MP in that GRC becomes vacant, such that a by-election shall be held.

This, he submits, would be consistent with the right to minority representation in Parliament flowing from Article 39A of the Constitution, as well as an inherent right to vote for a full representation team of MPs of the voters’ choice.

CJ Menon noted that there were no GRCs in existence when Art 49(1) was first enacted, and that given the fundamental changes made to the modes of election in 1988 that introduced the GRC system, one should go beyond the plain reading in determining the interpretation of Art 49(1).

Justice Phang also shared the same sentiments, in pointing out that the original purpose of Art 49(1), in the context of Single Member Constituencies (SMCs), was to ensure that the voters from an SMC were not left unrepresented whenever the seat of that SMC becomes vacant.

Deputy Attorney-General Hri Kumar Nair, responding on behalf of the Attorney-General, took the same position as in the court below, one of which was that Art 49(1) does not apply to GRCs.

He also sought to argue, in support of Justice Chua’s ruling, that an updating construction and/or a rectifying construction could be applied to Art 49(1), given that there is no difference in the applicability of the rules of purposive interpretation between an ordinary statute and the Constitution.

However, CJ Menon expressed his reluctancy to rely on either rules of construction in interpreting Art 49(1), as that would go against the express wording of the provision, and given that the Constitution was the supreme law of the land. There also seemed to be a lack of certainty as to Parliament’s intention, when it introduced the GRC system in 1988 but did not amend the wording of Art 49(1), so as to justify a rectifying construction; as the Chief Justice put it.

Justice Phang also drew an analogy of constitutional interpretation with that of commercial contractual interpretation, pointing out that the courts do not rewrite express contractual terms in such a manner, in the case of the latter.

While Dr Wong was not present at the appeal hearing, several prominent persons were present in the public gallery, including lawyer Choo Zheng Xi (who was not part of Dr Wong’s legal team), Senior Counsel Francis Ng from the Attorney-General’s Chambers, as well as SDP chairman Paul Tambyah and vice-chairman John Tan.