No obligation to call for by-election when single vacancy arise in GRC: Apex court

No obligation to call for by-election when single vacancy arise in GRC: Apex court

A five-judge Court of Appeal had ruled, on Wednesday (10 April), that there was no obligation on the part of the Prime Minister to call for a by-election when a single vacancy arises in a Group Representation Constitutency (GRC).

This ruling was made in the context of a judicial review application by Dr Wong Souk Yee, assistant treasurer of the Singapore Democratic Party (SDP) and a resident of Marsiling-Yew Tee GRC, to compel the Prime Minister to call for a by-election in accordance with Article 49(1) of the Singapore Constitution, when Madam Halimah Yacob (as she then was) resigned from her Member of Parliament (MP) seat in MYT GRC to stand for presidential election.

However, the apex court – with Chief Justice Sundaresh Menon in the lead and as the author of the written judgment – held that Dr Wong did not need to pay costs to the Attorney-General (AG) for both the judicial review application and the appeal, as it disagreed with the High Court’s decision on some aspects.

Other members of the court included Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong.

In April last year, Justice Chua Lee Ming dismissed Dr Wong’s application and ordered her to pay costs to the Attorney-General, as he found that Dr Wong’s proposed interpretation of Article 49(1), which require the remaining MPs in a GRC to resign in the event of a vacancy, was unworkable and without legal basis.

During the hearing of the appeal in January, Dr Wong, represented by Mr Peter Low, continued to argue that the wording of Article 49(1) meant that a by-election for all the seats in a GRC must be called whenever a vacancy arose. On the other hand, the AG, represented by Deputy Attorney-General Hri Kumar Nair, had proposed two interpretations for Article 49(1).

The first interpretation would be that a by-election should be called only if all the seats in a GRC had been vacated, while the second interpretation would be that Article 49(1) is not applicable to GRCs but only applicable to a Single-Member Constitutency (SMC).

The Court of Appeal found that Article 49(1) was ambiguous as to its application to GRCs given its wording. Turning to the GRC scheme, the court found that Parliament’s intention in enacting the GRC was clear; it was never envisaged that a by-election had to be called for a GRC when a single vacancy arose.

In disagreement with the High Court, the Court of Appeal refused to apply a rectifying or updating construction to Article 49(1) to give effect to the AG’s first interpretation, as there was insufficient certainty with regards to how Parliament would have amended Article 49(1) to accomodate the GRC scheme.

The court did not, however, make a ruling as to whether an updating or rectifying construction could be applied to constitutional provisions in general.

With regards to the remaining two interpretations, Dr Wong’s interpretation was rejected as it was plainly against the purposive approach to interpreting the Constitution and Parliament’s intention. While the AG’s second interpretation was not ideal, the court noted that its role “was not to fashion the ideal formulation of the words”, but was instead “constrained to work with the text…and to pick from the range of permissible interpretations…that would best accord with the underlying purpose”.

The court also rejected Dr Wong’s argument that a by-election is also necessary when a minority Member of Parliament (MP) left a vacancy in a GRC, or by virtue of the implied right vested in residents to be represented in Parliament.

However, the court held that Dr Wong had raised an arguable case and that the High Court erred in not granting her leave for judicial review. The court also held that in a case where a serious question of constitutional law was raised, they might depart from the usual rule that costs follow the event (i.e. the losing party had to pay costs to the winning party).

Given that the High Court had erred against Dr Wong’s favour in certain aspects, and that the AG’s primary case based on the updating and/or rectifying construction had been rejected, Dr Wong did not have to pay costs to the AG for both the judicial review application and the appeal.

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