Court of Appeal hearing on constitutional challenge set for 10am on Nomination Day after dismissed by High Court

The High Court on Monday (June 29) dismissed a constitutional challenge brought by Singapore citizen Daniel De Costa against holding the general election under present circumstances.

Justice Chua Lee Ming, who heard the case in chambers, said there is no basis for the Prohibitory Order that Mr Ravi was seeking to stop the Returning Officer from holding an election now.

The role of the Returning Officer — a public officer appointed by the Prime Minister to oversee the election — is a “matter of duty, not discretion” under Section 24(3) of the Parliamentary Elections Act (PEA), said the judge, adding that such a duty is non-justiciable.

Lawyer M Ravi of Carson Law Chambers, who represents Mr De Costa in the case, submitted on Monday that the key provisions under the Parliamentary Elections (COVID-19 Special Arrangements) Act will disadvantage citizens on quarantine orders or stay-home notices at home, as they will not be able to cite their right to vote as a defence against their orders or notices.

The Returning Officer, he added, as well as the director of medical services have powers to prohibit a citizen from casting their vote if they demonstrate acute respiratory symptoms or a fever, or if they have been exposed to the risk of being infected with the virus.

He also argued that alternative parties in Singapore “are grossly disadvantaged” this election, as “there is late guidance as to organising rallies and campaigns, which directly affects the votes that can be garnered by the Opposition.”

“The fundamental right to vote and/or free and fair elections of citizens is unduly derogated,” he continued.

Noting that 66 countries have opted to postpone their elections due to the ongoing COVID-19 pandemic, Mr Ravi said that only 36 countries have decided to carry on with their elections despite the circumstances — 21 of which were either national elections or referendums. 

22 countries out of the 66 that postponed their elections did so for either national elections or referendums, he added.

Deputy Attorney-General Hri Kumar Nair, however, argued on behalf of the Attorney-General that South Korea, Australia, France, Germany, Japan and Israel “have held elections safely” during the pandemic, which proves that the same can be done in Singapore.

He also stressed that now the 13th Parliament has been dissolved, the next general election must, by law, be held within the stipulated time frame — three months after the dissolution of Parliament, as stated in Article 66 of the Constitution.

This means that the next general election must be held by 22 September this year, he argued, adding that delaying the election to 2021 “would flagrantly violate this constitutional deadline”.

Mr Nair added that Members of Parliament (MPs) cease to be MPs and citizens are not represented as a result, which makes it “imperative for the electoral process to be set in motion, so that citizens can elect their representatives afresh, and representative government can resume”.

Touching on Mr Ravi’s arguments on how holding an election under present circumstances would go against the constitutional rights of citizens to have free and fair elections, Mr Nair said that Mr De Costa’s factual case on alleged unfairness in the coming election “is essentially a partisan, political rant, based on outdated information, misconceptions, speculation and outright falsehoods”.

The plaintiff, he added, did not succeed in “ground the putative right to free and fair elections in any provision of the Constitution”.

Mr Nair argued that there is “no real controversy for the court to resolve” in Mr De Costa’s case, as the issues raised in the latter’s affidavit “are all about campaigning and timing issues for opposition parties in relation to the General Election”.

Mr De Costa, he added, also did not challenge President Halimah Yacob’s dissolution of Parliament and her issuance of the Writ of Election. Mr Ravi’s client is also not challenging the constitutionality of any provision of the PEA, said Mr Nair.

Mr Nair further argued that there is no evidence present that COVID-19 will subside between now and next January.

Citing the Ministry of Health’s Dr Vernon Lee Jian Ming’s affidavit, Mr Nair noted that “the scientific consensus is that the pandemic would still be around by then” — a consensus shared by MOH.

Dr Lee also predicted that there is “a risk of resurgence of community infection cases and clusters later on” in Phase Two following the circuit breaker period, “especially when Singapore decides to open up its borders”.

Mr Ravi, in his clarification on the immediate point, however, argued that the figure of 4.6 cases a day cited by Dr Lee “is derived from conditions under normal daily life and it cannot be representative of Polling Day as there would possibly be every adult Singaporean out in public to vote”.

“4.6 cases a day is regardless, a significant number because each and every one of the voters are humans with names and they cannot be merely reduced to a statistic. Citizens cannot be subject to physical suffering for political expediency,” he stressed.

Mr Ravi also argued that the court must not “unquestioningly accept unchallenged medical evidence”, and added that the opinion endorsed by Dr Lee “has been challenged by medical experts and epidemiologists elsewhere”.

While noting Mr Nair’s point that the Elections Department has released “a set of safe management measures for voting” in collaboration with MOH, Mr Ravi argued that despite such measures, “the risk of transmission of COVID-19 cannot be completely reduced as it is known that the virus can adhere onto surfaces for a few hours”.

Voters are also required to remove their masks for identification. Given how the virus is transmitted through water droplets from the nose and mouth, Mr Ravi argued that polling agents and voters “would still be unduly exposed to such risks”.

Justice Chua ordered Mr Costa to pay S$8,000 in costs to the Attorney-General.

A Court of Appeal hearing was set for 10am today, an hour before Nomination Day proceedings commence.

Should Mr De Costa’s appeal fail, he may be subject to costs of up to approximately S$28,000.

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