Roses

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Showing posts with label Vellama. Show all posts
Showing posts with label Vellama. Show all posts

Sunday, January 20, 2013

VACANT SEATS, VANISHED WARDS & THE MYSTERY OF THE MISSING BY-ELECTIONS


Since gaining independence in 1965, Singapore has held a total of 11 Parliamentary By-Elections (BEs).  The Punggol East BE would be the 12th. 

The first nine of the 11 BEs took place during the 16-year period from independence in 1965 to 1981.  After 1981, there was only one BE in 1992 and no BEs for the next 20 years, until 2012 when the Hougang BE was held. 

BE 1981 – A Watershed 

JBJ won the 1981 Anson By-Election
In 1981, Member of Parliament (MP) for Anson, C. V. Devan Nair became President and vacated the seat.  BE 1981 turned out to be a watershed.  The PAP's candidate lost to opposition candidate, J. B. Jeyaretnam in a three-cornered fight.  Jeyaretnam become the first opposition MP, ending the PAP's then 15-year monopoly.

After that, there were no BEs for 20 years even though there were several occasions when seats were vacated by death, resignation or disqualification.

Seats Left Vacant

In December 1983, MP for Havelock, Hon Sui Sen, passed away in office. No BE was held in the ward.  His seat was left vacant for the next 12 months till December 1984 when General Elections (GE) were held.  In GE 1984, the Havelock seat was erased from the electoral map.

In November 1986, Jeyaretnam’s seat in Anson was vacated after he was disqualified from holding a seat in Parliament. The following month in December 1986, the Geylang West seat became vacant after its MP, Teh Cheang Wan committed suicide.  No BE was held for either of those two vacated seats till the next GE, held in September 1988.  In GE 1988, the wards of Anson and Geylang West were erased from the electoral map.

For nearly two years, Singaporeans residing in Anson and Geylang West had no MP of their own while Parliament was short of two elected MPs.  Before those two seats become vacant, Parliament had 79 elected MPs.  Did 77 elected MPs do the job as well as 79?  Yet, for GE 1988, the number of elected MPs was increased from 79 to 81. 

Inception of GRCs

In 1988, Group Representation Constituencies (GRCs) were introduced.  Under the newly enacted laws applicable to GRCs, it provided that the government would be obligated to hold a BE only if ALL the MPs in a GRC vacated their seats. [1] There would be no obligation to hold a BE if one GRC seat was vacated.   The effect of this is that all GRC seats are virtually guaranteed to remain in place and GRC territory would not be up for grabs despite any vacancy, until the next GE.        

Since GRCs were introduced, more and more areas became GRCs and the number of Single Member Constituencies (SMCs) drastically shrank over successive GEs.  For GE 1988, there were 42 SMCs.  For GE 1991, the number of SMCs shrank to 21.  For GE 1997, GE 2001 and GE 2006, the number of SMCs were 9.  For GE 2011 it was slightly increased to 12.    

BE 1992 in Marine Parade GRC

The 10th BE was held in Marine Parade GRC in December 1992.  This BE was called by Prime Minister Goh Chok Tong who wanted to bring new blood into the PAP’s ranks and also secure a stronger mandate after PAP lost an unprecedented four seats at GE 1991. 

On this occasion, the entire group of PAP MPs at Marine Parade GRC resigned, paving the way for a BE.  This was the first and only time in Singapore's political history that a BE for a GRC was held.  PAP won back Marine Parade GRC in a four-cornered contest.

2 GRC seats vacant till GE 1997

On 5 August 1993, MP for Eunos GRC, Dr Tay Eng Soon passed away.  Also in August 1993, MP for Toa Payoh GRC, Ong Teng Cheong resigned from PAP to run as Singapore's first elected President.  Those being GRC seats, the PAP government was not obligated by the law to hold any BE and did not do so. Those two GRC seats remained vacant for the next 3 years and 5 months until GE 1997.  In GE 1997, Eunos GRC and Toa Payoh GRC, which stood for almost a decade since 1988, disappeared from the electoral map. 

For GE 1991, the number of elected seats was 81.  When those two GRC seats were vacated in 1993 by Dr Tay Eng Soon’s passing and Ong Teng Cheong’s resignation, Parliament carried on with less than its full cohort of elected MPs till it was dissolved by GE 1997.

So if 79 MPs could do the job as well as 81, did we need 81 MPs? Yet, the total number of elected seats was increased to 83 in GE 1997.
 
GRC seat vacant till GE 2001

In December 1999, MP for Jalan Besar GRC, Choo Wee Khiang resigned from his MP position and PAP membership before pleading guilty to cheating charges in court. With Choo's resignation, then Acting Prime Minister Lee Hsien Loong said the other Jalan Besar GRC MPs would continue to serve the constituents. The GRC seat was left vacant for the next 1 year 10 months till the next GE held in October 2001.

2 GRC seats vacant till GE 2011

In July 2008, MP for Jurong GRC, Dr Ong Chit Chung passed away.  His seat was left vacant for 2 years 10 months till the next GE held in May 2011.  On 27 September 2010, MP for Ang Mo Kio GRC, Dr S. Balaji passed away.  His seat was left vacant for 7 months till GE 2011.  As those seats were not filled, the total number of elected MPs in Parliament dropped from 84 to 82. It seemed 82 MPs could do the job as well as 84.  However for GE 2011, the number of elected seats increased to 87.  

BE 2012 in Hougang 

On 15 February 2012, Workers’ Party MP for Hougang, Yaw Shing Leong was expelled from his political party, which left his seat vacant.  The next day, the Prime Minister told the press that there was no fixed time within which he must call for a by-election. [2]  Concerned about the prospect of having no MP indefinitely, Hougang constituent Mdm Vellama d/o Marie Muthu applied to Court on 2 March 2012 to challenge the government’s position that the timing of the BE at the Prime Minister’s discretion.  On 9 May 2012, the Prime Minister called for a BE in Hougang, the first in 20 years.  In a one-on-one straight fight with the PAP, the Workers’ Party won back their Hougang seat.

Prime Minister’s Discretion

For GRCs, statute provides that the government has no obligation to call for a BE if a GRC seat is vacated.  Even so, academics have weighed in to say that “a strong moral and political case - on the principle of representative democracy - can be made for holding a BE in a GRC when one member has vacated his seat.”[3]  What if it was the minority MP who vacated his GRC seat?  What if the GRC loses not one but two of its MPs? So it may not be all that certain the government does not have to call for a BE if a GRC seat is vacated.
  
As for SMCs, the PAP government has made clear their position that “The timing of the by-election is at the discretion of the Prime Minister. The Prime Minister is not obliged to call a by-election within any fixed time frame.” [4]  Mdm Vellama’s challenge is currently being heard by the Court of Appeal[5]

On all those occasions when the Prime Minister exercised his discretion and decided not to hold any BE to fill the vacant seat, did the Prime Minister exercise his discretion in the interest of the electorate, or otherwise?  What about the constituents’ democratic right to be represented in parliament by one whom they have elected?  

In her article, "Snap polls a sign of change in PAP's approach?" published in the Straits Times on 10 January 2013, opinion editor Ms Chua Mui Hoong said that PAP has a "track record of not holding by-elections, unless it was for its own planned succession". 

If Ms Chua Mui Hoong is right, then all those times when the PAP government decided not to hold any BE to fill vacant seats, those decisions were self-serving.

By Jeannette Chong-Aruldoss

Reference: http://www.singapore-elections.com/



[1] Section 24(2A), Parliamentary Elections Act, Cap. 218
[2] http://www.channelnewsasia.com/stories/singaporelocalnews/view/1183211/1/.html
[3] “By-Election” The Straits Times, 1 August 2008 see link at http://newshub.nus.edu.sg/news/0808/PDF/BY-st-1Aug-p32.pdf
[4] Prime Minister Lee Hsien Loong's reply in Parliament on calling a by-election in Hougang SMC (9 March 2012)  see link at http://www.pmo.gov.sg/content/pmosite/mediacentre/speechesninterviews/primeminister/2012/March/transcript_of_primeministerleehsienloongsoralanswerinparliamento.html
[5] Vellama d/o Marie Muthu v Attorney General (Civil Appeal No. 97 of 2012)

Saturday, April 28, 2012

Exploring the Extent of Executive Discretion


Part-time cleaner, Mdm Vellama d/o Marie Muthu is a Singapore citizen and resident voter of Hougang Single Member Constituency (SMC). 

On 15 February 2012, her Member of Parliament (MP) was expelled from his political party, which left his parliamentary seat vacant.  The next day, the Prime Minister said that there was no fixed time within which he must call for a by-election. He added that "there are many other issues on the national agenda right now".[1]

Unhappy at the prospect of being indefinitely without the service of an MP representing her vote, Mdm Vellama applied to the High Court on 2 March 2012 for remedy.

Asking to see the Judge

Mdm Vellama’s High Court application is for a declaration that the Prime Minister does not have unrestrained discretion when deciding whether or not a by-election should be called in Hougang SMC, and a mandatory order requiring the Prime Minister to advise the President to call a by-election within three months or some other reasonable time determined by the court.

According to Rules of Court, Mdm Vellama would first need to obtain the Court’s “leave” (i.e. permission) before her application can be heard by the Judge and decided on the merits.  The purpose of this initial “leave” stage is to serve as a filter:

“… to be a means of filtering out groundless or hopeless cases at an early stage, and its aim is to prevent a wasteful use of judicial time and to protect public bodies from harassment (whether intentional or otherwise) that might arise from a need to delay implementing decisions, where the legality of such decisions is being challenged.”[2]

As the Attorney-General explained:

“Leave must first be obtained in judicial review proceedings so that cases which are misconceived or unarguable can be weeded out.”[3] 

Hopeless cases which do not deserve to be heard, should be stopped on its tracks at the door.

On 2 April 2012, a High Court Judge decided that Mdm Vellama’s application passed the initial filtering test.  Mdm Vallama was given leave for a substantive hearing and a Hearing Date of 16 April 2012 was given to her.

Appeal against Judge’s decision to hear

On 4 April 2012, in a surprising move (at least to me it was), the Attorney-General filed an Appeal against the High Court Judge’s decision to grant leave to hear Mdm Vellama’s application.  This effectively translates to Attorney-General saying that Mdm Vallama’s application does not deserve to be heard and that the decision by the High Court Judge to hear her out, was wrong.  The Attorney-General’s Appeal will be heard on 16 May 2012.

From anecdotal accounts, it seems that many Hougang constituents and Singaporeans (including me) share Mdm Vellama’s unhappiness with the Government’s position that it is not held to any particular time frame for announcing the Hougang by-election, or for that matter, any by-election when a parliamentary seat of an SMC becomes vacant.

History of By-Elections

Mdm Vellama’s anxieties are not without basis.  There had been instances in the past, where parliamentary seats were vacated by the respective MPs due to death or disqualification, but where no by-elections were held:

(a)  In December 1983, the MP for Havelock constituency, Hon Sui Sen, passed away in office. His seat was thus vacated. No by-elections were held in the ward until the General Election in 1984, when the Havelock seat was erased from the electoral map.

(b)  In November 1986, the late JB Jeyaretnam’s seat in Anson was vacated after he was disqualified from holding a seat in Parliament. No by-elections were held and the seat remained vacant until the 1988 General Election, when the Anson seat was erased from the electoral map.

(c)  In December 1986, the Geylang West seat became vacant after its MP Teh Cheang Wan committed suicide. No by-elections were held until the 1988 General Election when the Geylang West seat was erased from the electoral map.

Academics have weighed in[4] and Singaporeans are keen to know the Court’s opinion on the limits of Executive discretion in respect of SMC by-elections.

Why Appeal?

Given the public interest in Mdm Vellama’s application, it is perplexing that the Attorney-General has decided to vigorously challenge the High Court’s decision to hear Mdm Vellama's application.  If the Attorney-General’s Appeal succeeds, Mdm Vellama’s case would be thrown out; which means that she, Hougang constituents and Singaporeans will be denied of the Court’s opinion on the question whether the Prime Minister’s discretion is or is not limited to a definite time-frame for calling by-elections.

If Mdm Vellama’s application is indeed "legally flawed" as the Attorney-General has argued, then it is doomed; and the Court will eventually dismiss it after it has been heard.  So what's the harm in letting Mdm Vellama have her day in Court and to let justice be seen to be done?

Legal Costs?

In Court proceedings, when a party “wins”, the winning party can ask the Court to order the losing party to pay costs.  If the Attorney-General’s Appeal succeeds, would the Attorney-General ask the Court to order Mdm Vellama to pay costs?  I hope not.

Every Singapore citizen in all other constituencies has his own elected MP to serve him.  Mdm Vellama has turned to the Court for help because she fears she would not be having what every Singaporean in all other constituencies has.  It would be disappointing enough if the Attorney-General "wins" their Appeal, for that would mean that her application is thrown out.  To be made to pay the Attorney-General's legal costs for asking the Court for help, would be a disastrous result.      

Role of Attorney-General

We know that the Attorney-General is the Government’s legal adviser[5].  If the Attorney-General serves the Executive, then do the interests of the Executive coincide, or conflict, with the interests of the public (i.e. citizens) in respect of the legal questions posed by Mdm Vellama’s application? 

What if the Executive one day decides to abolish SMCs altogether?  Or if supposing Executive thinks it is better to hold elections once in 10 years in the interest of political stability and to avoid the expense and distraction of holding general elections once every 4 or 5 years? 

If (hypothetically) the Executive wants to amend the Constitution in a manner which serves the political interests of the ruling party at the expense of civil liberties, and if the ruling party has the requisite two-thirds majority in Parliament to pass such amending legislation, who will defend the citizens’ rights from being encroached upon?

What will be the role of the Attorney-General in such a hypothetical scenario?  As the Government’s legal adviser, the Attorney-General would presumably defend the Government’s position with all its best efforts.

Screen-shot from http://www.singapore-elections.com/parl-1997-ge/cheng-san-grc.html 
Workers’ Party’s Complaint in GE 1997

In the aftermath of the 1997 General Elections, the Workers' Party complained to the police that PAP leaders (Prime Minister Mr Goh Chok Tong, Deputy Prime Minister Dr Tony Tan and Deputy Prime Minister Brigadier-General (NS) Lee Hsien Loong) had been inside a Cheng San GRC polling station on Polling Day, when none of them were candidates for Cheng San GRC[6].

The Workers' Party cited two sections of the Parliamentary Elections Act:

Section 82(1)(d):
"No person shall wait outside any polling station on polling day, except for the purpose of gaining entry to the polling station to cast his vote". 

Section 82(1)(e):
"No person shall loiter in any street or public place within a radius of 200 metres of any polling station on polling day."

However, the Attorney-General stated that the PAP leaders had not broken the law.  

Pointing to the use of the word “outside” in Section 82(1)(d), the Attorney-General explained[7]:

“Plainly, persons found waiting inside the polling stations do not come within the ambit of this section. …. Only those who wait outside the polling station commit an offence under this section unless they are waiting to enter the polling station to cast their votes.”

As for Section 82(1)(e), the Attorney-General pointed to the use of the word “within” and explained[8]:

“The relevant question is whether any person who is inside a polling station can be said to be "within a radius of 200 metres of any polling station". …Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station.”

If at that time, Singapore had an independent election body overseeing the election procedures, I think the Workers’ Party would probably have lodged their complaint to such a body instead of lodging their complaint to the police as they did.  I wonder how such an independent election body would have dealt with the Workers’ Party’s complaint.

In the English case of Adler v George [1964] 2 QB 7, the UK Official Secrets Act 1920 stated that it was an offence to obstruct a member of the armed forces “in the vicinity” of a prohibited place. The defendant was in the station at the time of the obstruction.  He argued that if he was on the station he could not be in the vicinity of the station. The court held that it would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it.  The defendant’s conviction of the offence was upheld.
List of legislation amending the Constitution

Amending the Constitution

As we know, the provisions of the Constitution may be amended by the votes of two-thirds of the total number of elected MPs, which works out to 58 out of the current 87 parliamentary seats.  This has been done numerous times in the past. Since 1965 to date, there have been 37 acts of parliament to amend the Singapore Constitution.

More importantly, Singapore’s electoral system has been amended at least four times since 1984, each of these amendments coming into effect shortly before general elections, as the following table illustrates:[9]

Constitutional Amendment
Effective Date
Nomination Day
Lead Time
Introduction of Non-Constituency Member of Parliament scheme
10 Aug 1984
13 Dec 1984
4 months
Introduction of Group Representation Constituency scheme
31 May 1988
3 Sep 1988
3 months
Introduction of Nominated Member of Parliament scheme
10 Sep 1990
21 Aug 1991
11 months
Change in Group Representation Constituency scheme
2 Jan 1991
21 Aug 1991
7 months
Act 41 of 1996
12 Nov 1996
23 Dec 1996
< 2 months

I imagine the short lead time between the effective date of the electoral changes and the date of elections would have made it difficult for opposition parties to react and to prepare themselves for elections.     

Notably, Singapore has never had an independent body overseeing election procedures and the drawing of constituency boundaries.  Our Election Department has always been under the Prime Minister's office.  Criticism by opposition parties of an unlevel political playing field cannot be independently evaluated. 

Balancing the Powers

Unless there are sufficient opposition MPs in Parliament (at least 29) to deny the ruling party their two-thirds majority, citizens have only two defenders left to protect their civil rights: the Judiciary and Civil Society. 

The effectiveness of the Judiciary in checking the Executive will be curtailed whenever the scope of judicial review of executive decisions are being reduced or eliminated (e.g. section 8B(2) of the Internal Security Act). 

The effectiveness of Civil Society in speaking out for the protection of fundamental liberties will be curtailed so long as freedom of speech is circumscribed by legislation mandating the requirement to obtain a licence to speak publicly, assembly or gather in public (Public Order Act), restricting the formation of societies (Societies Act), vigilant, vigorous enforcement of defamation laws by political appointment holders[10], and so forth.

We have heard the old adage: Absolute power corrupts absolutely.  All power must have limits.  The exercise of Executive powers, as with any other kind of powers, cannot be unfettered. 

Democracy is a flawed system, no doubt; but this imperfect system respects the collective voting might of ordinary citizens and makes everyone equal.  Whether rich, influential, poor or obscure – each citizen has one vote.   

In functioning democracies, Executive powers are checked and balanced by: 

  • Clearly defined constitutional guarantees of fundamental liberties
  • presence of sufficient numbers of opposition MPs in Parliament
  • an independent Judiciary with effective, sufficient powers of judicial review over Executive decisions
  • a Civil Society which is not overly hindered by laws restricting freedom of speech and public assembly
  • an independent elections commission to oversee election procedures

As of now, are all these safeguards securely in place in our socio-political landscape?

By Jeannette Chong-Aruldoss


[2] Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133 at [23]
[3] http://www.agc.gov.sg/documents/AGCPressRelease5April2012.pdf Attorney General v Vellama D/O Marie Muthu Civil Appeal No. 35 of 2012
[9] Page 67, An Introduction to Singapore’s Constitution (2005) Kevin YL Tan
[10] http://maruah.org/2012/03/05/maruahs-comments-on-the-practice-of-threatening-defamation-lawsuits/#more-1372

Note: This article was published by The Online Citizen on 28 Apr 2012:
http://theonlinecitizen.com/2012/04/exploring-the-extent-of-executive-discretion/

With Teo Soh Lung (15 Jan 2012, Hong Lim Park)
With M. Ravi (27 Apr 2012, Breakthrough Cafe)