Court of Appeal: Ass Loon doesn’t have unfettered discretion in calling a by-election

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An honorable member of the Coffee Shop Has Just Posted the Following:

Court of Appeal: PM doesn’t have unfettered discretion in calling a
by-election


July 6th, 2013 | Author: Editorial





Mdm Vellama and her lawyer M Ravi


Thanks to Mdm Vellama’s persistence in pursuing the Hougang by-election case,
her final appeal to the Court of Appeal has resulted in the overturning of the
High Court’s earlier decision to dismiss her application.

In March last year, Mdm Vellama filed a High Court application through her
lawyer, M Ravi, asking the Court to declare that the Prime Minister does not
have unfettered discretion in deciding whether and when to call a by-election
after a seat becomes vacant.

The High Court dismissed her application on 1 August 2012. Then, the High
Court judge said that there was no requirement in the Constitution to call
elections to fill elected member vacancies. There being no such requirement,
there arises no prescribed time within which such elections must be called.
Should the Prime Minister decide to call an election to fill an elected member
vacancy, he has the discretion when to call it, he added.

Undaunted by the negative judgement, she filed an appeal on 16 August through
her lawyer.

After almost a year, the Court of Appeal finally released its judgement today
(5 Jul), overturning the High Court’s decision made on 1 August last year.

The Court of Appeal, presided by Justice Chao Hick Tin, Justice Andrew Phang
and Justice V K Rajah, said:


“Art 49 does not give the Prime Minister an unfettered discretion in the
calling of an election to fill a casual vacancy of an elected MP. He must do so
within a reasonable time and in that regard, the Prime Minister is entitled to
take into account all relevant circumstances and only in clear cases can there
be judicial intervention.”
In other words, with no special circumstances and in a clearcut situation,
the PM must call for an election when an SMC seat is vacated. Failure to do so
will attract reluctant judicial intervention.

The Court of Appeal added:


“Even if at a particular point in time he (the PM) feels that it would not be
appropriate to call for an election to fill a vacancy, he must still review the
circumstances from time to time and call for election to fill the vacancy if and
when the circumstances have changed.”

“If a vacancy is left unfilled for an unnecessarily prolonged period that
would give rise to a serious risk of disenfranchising the residents of that
constituency.”

“There is thus a need to balance the rights of the voters in a Parliamentary
system of government and the discretion vested in the Prime Minister to decide
when to call for by-elections to fill a vacancy. It is also a basic proposition
of the rule of law that all discretionary power is subject to legal
limits.”
Even though in 1965, a clause in the Constitution requiring an election to be
called within three months was removed. Nevertheless, the Court of Appeal
said:


“The absence of the time-limit clause cannot lead to the conclusion that the
Prime Minister is completely free to do as he pleases, even to the extent of
delaying indefinitely the calling of a by-election or even declaring that he
will not fill the casual vacancy.”
The Court of Appeal was largely with Mdm Vellama on her interpretation of
Article 49. In its written judgement, the Court of Appeal said that the key lay
in the word “shall” rather than the word “election”. “Shall” indicates that the
act is mandatory, repeating an argument put up by Mr Ravi earlier in court.

Commenting on the latest judgement, Mr Ravi said:


This may be the first time the Singapore Courts have acted to interpret the
Constitution in a way that has circumscribed the Prime Minister’s executive
authority. It is a great day for democracy in Singapore. A year ago, who would
have imagined that one Hougang citizen could take on such a challenge, in the
interest of all citizens, and that it would result in the highest court
affirming that Singaporeans do have a right to representation in
Parliament.
Were it not for the doggedness of Mdm Vellama and her lawyer, M Ravi, it
would not have been possible to settle this 50-year dispute on the right to
by-elections in Singapore.

.

Editor’s note: Anyone who wishes to
make a donation to Mdm Vellama can deposit cash
directly into her POSB account 405098440
(Vellama d/o Marie Muthu).


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