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A by-election is an election held to fill vacant parliamentary seats between general elections.

The Constitution of Singapore provides specific instances whereby a seat of a Member of Parliament ("MP") is vacated in the middle of their term of office. These instances are laid out in Article 46.[1] A seat is commonly vacated upon the resignation or death of a MP. A vacancy may also arise if an MP:

  • ceases to be a citizen of Singapore; or
  • ceases to be a member of the political party which he represented in the election; or
  • is absent from Parliament more than a specific period of time; or
  • is disqualified according to Article 45;[2] or
  • is expelled from Parliament

If any of these instances arise, a by-election may be called to fill the vacancy.

The Constitution of Singapore embraces a system of representative democracy where Singapore citizens elect a Government who governs on their behalf.[3] General and by-elections are held to elect democratic representatives, who will then form the government.

By-elections have been held 9 times since the independence of Singapore, the latest by-election being held in early 2012. The question of whether by-elections to fill vacated Parliamentary seats had to be called within specified times was resolved in the case of Vellama d/o Marie Muthu v Attorney-General,[4] which arose from the most recent by-election held in the Single Member Constituency ("SMC") of Hougang. (Singaporean by-election, 2012)


History

Laws governing by-elections were first included in Singapore's Constitution after Singapore's merger with the Federation of Malaysia. Specifically, a clause similar to Article 54 of the Malaysian Constitution was incorporated, stipulating that a by-election had to be called within 60 days of a parliamentary seat being vacated.[5] No such Article had been present in Singapore's Constitution before the merger.

This clause was removed after Singapore's independence in 1965, restoring Singapore's pre-merger position. In a 2008 Parliamentary debate, Prime Minister ("PM") Lee Hsien Loong explained that the amendment was motivated by the instability of the legislative assembly in Singapore's early history.[6] Several assemblymen had crossed over from the PAP to form their own opposition (the Barisan Socialis) in 1961, leaving PAP with a hairline majority of one member in the legislative assembly. The situation was made worse by the obligation to hold a by-election within 3 months, because the death of a PAP member would not only destroy its parliamentary majority but also risk motions of no-confidence that could "cause the demise of a sitting government".[7] By-elections could “determine the fortunes of a political party, for good or ill”,[8] and this was considered undesirable because it “distracted the country from other more pressing concerns”, tending instead towards instability and inefficiency.[9]

The laws governing by-elections in Singapore today do not stipulate a time limit within which a vacant parliamentary seat must be filled. The PM has the discretion to decide when a by-election should be called, if at all.[10] This legal structure has been described to facilitate efficient execution of an elected government’s policies, because political parties rather than individual candidates exist as fundamental elements of the government. The focus is on the party delivering its promises, and because a vacancy in Parliament does not affect its ruling mandate, it need not be filled before the next general election.[11]

Election Procedure

Sequence Election Procedure
1
  • President, acting on cabinet's advice, issues a writ of election to the Returning Officer. Writ specifies date and places of nomination of candidates.[12][13]
  • Date of nomination must not be earlier than five days or later than one month from the date of the writ.[14]
2
  • For GRCs: Application for minority certificate by minority candidates
  • Application must take place two clear days before Nomination Day.[15]
  • Certificates will be issued not later than the day before Nomination Day.[16]
3
  • Submission of report stating all political donations received by candidates. Registrar then issues a political donation certificate.
  • Submission of report must take place two clear days before Nomination Day.[17][18][19]
  • Certificates must be issued not later than eve of Nomination Day.[20]
4 Nomination Day
5 Polling Day

Constitutional and statutory provisions governing by-elections

By-elections in Singapore are governed by the Parliamentary Elections Act ("PEA") and the Singapore Constitution.

Article 49(1) of the Constitution of Singapore states that any vacancy in Parliament caused by reasons other than dissolution of Parliament shall be filled by election in the manner provided by the law relating to parliamentary elections.[21]

The by-election process begins when the President, acting on the PM's advice, issues a writ of election addressed to the Returning Officer in accordance with section 24 of the PEA.[22] (See "Election Procedure" above)

Currently, there is no constitutional or statutory requirement to call for by-elections within a specified time period when a parliamentary seat is vacated.[23] Thus, following Section 52 of the Interpretation Act, since no time is prescribed within which this must be done, the President, acting on the PM’s advice, will call for a by-election when he deems it expedient to do so.[24] This is because under the Singapore Constitution, the decision whether or not to call a by-election is one that is made by the PM, and the PEA only provides the relevant procedure, should the PM decide, in his discretion, to call one.[25]

Elected Members of Parliament

In Singapore, elected MPs belong to either a SMC or a Group Representation Constituency ("GRC"). SMCs consist of a single MP[26] while GRCs consist of three to six MPs.[27][28]

A writ of election may be issued to fill a vacant SMC seat pursuant to Article 49(1) of the Constitution.[29] In the case of GRCs, however, no writ of election can be issued unless all members in a GRC have vacated their seats in Parliament.[30]

Unelected Members of Parliament

NCMPs are political candidates who failed to win a parliamentary seat during the general elections, but are later declared to be elected into Parliament, subject to the attainment of at least 15% of the valid votes in the respective wards that they had contested in,[31] as well as other restrictions.[32]

NMPs are non-partisan and apolitical Members of Parliament nominated by a Special Select Committee to provide non-partisan expertise on parliamentary issues and debates.[33] NMPs share the same limited voting power as NCMPs.[34] It is noted that an amendment to the Constitution in 2010 has since made this scheme a permanent feature of Parliament.[35]

Non-constituency Members of Parliament ("NCMPs")

Article 49(1) of the Constitution provides that “whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election…”.[36] On plain reading, Article 49(1) seems to preclude the holding of by-elections to replace NCMPs who have vacated their seats. This position was confirmed by the High Court in the case of Vellama d/o Marie Muthu v Attorney-General.[37]

Article 49(2)(b) of the Constitution leaves it open to the Legislature to provide for the filling of seats vacated by NCMPs,[38] but there is a dearth of written law aside from this regarding NCMP replacement. Section 52 of the PEA[39] could, however, prove instructive, as it seems to imply that NCMPs may only be appointed following General Elections.[40] Furthermore, the court had made it clear in Vellama d/o Marie Muthu v Attorney-General that NCMPs can only be declared elected under the Parliamentary Elections Act.[41]

Nominated Members of Parliament ("NMPs")

With regard to NMP vacancies, Section 4 of the Fourth Schedule to the Constitution provides that Special Select Committees may nominate persons for the President to appoint as a replacement.[42] This was pointed out by the court in Vellama d/o Marie Muthu v Attorney-General, which clarified that Article 49(1) of the Constitution similarly precludes the holding of by-elections to replace vacated NMP seats, since these seats are filled by appointment and not elections.[43]

NCMPs and NMPs contesting vacant parliamentary seats during by-elections

In the event a by-election is called, NCMPs may run for election as MPs without relinquishing their parliamentary seats. This is only necessary if they are successfully elected as MPs.[44] This is unlike NMPs, who have to vacate their seats in order to run as candidates in a by-election.[45] It thus appears that NCMPs who unsuccessfully contest in by-elections may resume their Parliamentary seats.[46] However, because no obligation to fill vacated NCMP seats exists, an opposition party who successfully fields an NCMP in a by-election is not entitled to have their previous NCMP seat filled by a new individual.[47]

Legal Issues Arising

The Prime Minister's Discretion

An issue of relative controversy is the extent to which the PM has discretion to call for by-elections when Parliamentary seats are vacated. Prior to the decision in Vellama d/o Marie Muthu v Attorney-General, it was also unclear whether there was a time frame within which a by-election had to be called. The PM’s discretion was scrutinised most recently in the events leading to Singapore’s 2012 by-elections, that occurred after an SMC seat was vacated following Hougang MP Yaw Shin Leong (“Yaw”)'s expulsion from the Worker’s Party.

Yaw had been elected as the Member of Parliament for Hougang SMC in the 2011 General Elections, but was expelled from his party on the 15 February 2012. On 28 February 2012, the Speaker of Parliament announced in Parliament that Yaw’s seat had become vacant pursuant to Article 46(2)(b) of the Constitution by reason of his expulsion from the Worker’s Party.[48]

On 2 March 2012, Hougang resident Vellama d/o Marie Muthu filed Originating Summons No 196 of 2012 under Order 53 of the Rules of Court, seeking leave to apply for declarations as to the PM’s discretion to announce by-elections in Hougang SMC.[49] Furthermore, she sought a Mandatory Order enjoining the PM to advise the President in issuing a Writ of Election for by-elections in Hougang SMC, pursuant to Article 49(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)[50] and section 24(1) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed).[51]

In an elaborate 54-page judgment, the High Court dismissed Vellama’s declaration applications, and found that although “shall” in Article 49(1) of the Constitution denoted mandatory “election”, the phrase “shall be filled by election” referred only to the process through which vacated seats of elected MPs should be filled, and not to the election event, itself.[52] Therefore, as long as elected Members' seats were filled by the election process (as opposed to declaration or appointment processes), it was not mandatory to hold a by-election when a seat was vacated in Parliament. Consequently, no issues of time limits arise and the PM has discretion when to call a by-election, if at all.[53]

Violations of Representative Democracy

It has been argued that not having to call for by-elections violates the constitutional principle of representative democracy. Arguments in this regard can be subdivided into two groups: those pertaining to SMCs and those pertaining to GRCs.

Single Member Constituencies

NMP Thio Li-ann, in a 2008 Parliamentary Debate, expressed concerns that residents in an SMC would be left without representation in Parliament if their MP vacated his/her seat in Parliament, for whatever reason.[54]

In response, PM Lee pointed out that Singapore’s system of elections focuses on political parties rather than on individual candidates. Election candidates represent their respective political parties, and the party that attains the highest number of candidates elected into Parliament forms the government. In such a system, the governing party receives its mandate indirectly through its candidates that have been voted into Parliament. The PM thus retains “full discretion as to when and whether to call a by-election as the vacancy does not affect the mandate of the government”.[55][56]

Group Representation Constituencies

Loss of mandate

Dr Yvonne Lee from the National University of Singapore's Faculty of Law argues that the loss of one member in a GRC could mean a loss of mandate from the people by itself, because a GRC team is voted in “as a complete team”. In her view, a by-election would allow the “political legitimacy of the GRC” to be maintained.[57]

Reduced representation

A similar concern was expressed by then-NCMP Joshua Benjamin Jeyaretnam, who raised concerns in a 1999 Parliamentary Debate that the loss of one member in a GRC would result in voters receiving only a fraction of the representation they had a constitutional right to. In his words,

“Under the Constitution as introduced by the ruling party itself, Jalan Besar GRC voters are entitled to four MPs in Parliament. That is their constitutional right. But now … [t]hey have only three MPs in Parliament …. Is that not a diminution of their constitutional right? … Why should the voters of Jalan Besar be told: "Be content with the three-quarter tank in Parliament. You cannot have a full tank. We will give you a three-quarter tank.”[58]

In support of Jeyaretnam, Opposition MP Chiam See Tong also argued that appointing a failed candidate to replace a resigned MP would not be the choice of the voters but that of the ruling party. In other words, MPs whose seats were decided by means other than a by-election could not be said to be representative choices of the people.[59]

Government response

In responding to these concerns, Peoples’ Action Party MP Wong Kan Seng raised two points. Firstly, he argued that Singaporeans vote “with the knowledge that should a vacancy arise (before the next General Elections) such a vacancy need not be filled”, since this was always provided for in the law. He added that the constitutional rights of the voters were not diminished and the electoral mandate not thwarted, as there would still be existing MPs in the GRC to carry on and take up their roles.[60]

Secondly, on the issue of the party-chosen “replacement”, Wong recognized that that the Government could not appoint a replacement to represent the voters. However, the so-called replacement sent in would be there only for “training” purposes, to get ground experience on how to work with the electorate, understand their concerns and how to help deal with these issues.[61]

In the 2008 Parliamentary Debates, where the issue of by-elections resurfaced, PM Lee’s response to this issue centred around the philosophy that MPs are elected on a party platform. He explained that Singapore’s elections were designed “to maximise the chances of a stable, effective government in between general elections”.[62] As previously mentioned above in the sub-section titled "Single Member Constituencies", the political party that forms the parliamentary majority is given the mandate to govern and produce results. This mandate continues until the next general election is called. The decision to call for by-elections is thus entirely up to the PM as any vacancy would not affect the Government’s five-year mandate. As a result, MPs would also not be able to force by-elections at random mid-term that could distract the country from other "more pressing concerns".[63]

In addition, Lee in the same Debate cited the past practice of neighbouring Members of Parliament taking charge of vacated constituencies' affairs as a means of filling representative gaps in both SMCs and GRCs.[64] However, Thio has commented that these examples are based on the implicit assumption that parties will always have more than one elected MP in parliament. In Thio's view, a "lacuna in the law" exists where a political party has only one elected member. Should that member vacate his or her seat, it appears that an unelected candidate would have to take the seat in Parliament without popular mandate, in the event that by-elections are not called.[65]

Manpower constraints

Another issue involves practical fears of manpower constraints. In light of s 24(2A) of the PEA, by-elections cannot be called in a GRC unless all the Members for that constituency have vacated their seats in Parliament.[66] This means that other members in a GRC team “must pick up the slack” caused by a member who vacates his/her seat mid-term, and continue serving electoral districts with less than their full complement of MPs.[67]

Concerns have been raised that such an approach reduces the efficiency and effectiveness of a GRC, because its resources are unfairly stretched. Thio has argued it “inconsistent not to require by-elections within a set period where a vacancy depletes team strength”, since GRC seats were allocated based on size of electoral wards in the first place. Furthermore, the size of GRC teams were increased from three to four in 1991 and to six in 1997,[68] which in her view leads to a logical implication that a full GRC team is needed to serve larger electoral wards.[69]

In response to these fears, MP Halimah Yacob, in a 2008 Parliamentary debate, said:

“There were some suggestions that perhaps because there are so many residents and only four MPs, some of their interests and welfare will be overlooked. … In fact, I think all the four MPs are more than able to take care of their needs … as far as the Jurong GRC is concerned, the level of service to them is completely not affected and, at the end of the day, I must say that should be the core of parliamentary democracy.”[70]

Thus in summary, in Yacob's view, the loss of one member does not lead to a significant decrease in efficiency and effectiveness, and a fear of manpower constraints should not by itself be sufficient to trigger a by-election.

Costs of a by-election

In support of the current legal framework, some Singaporeans have expressed concerns that holding by-elections without pressing or pragmatic need would “be a waste of public funds and allow political mercenaries to appear from the cold”.[71] According to section 69(1) and the Third Schedule of the PEA, each candidate at an election can spend up to $3.50 on each elector on the register, or $3.50 for each elector divided by the number of candidates in the group standing for election in a GRC.[72][73]

Minority representation

A key objective of the GRC system is representation of racial minorities in Parliament.[74] Under the current legal framework, however, there is no obligation to hold a by-election when minority seats are vacated halfway through the term of office.

Such a situation has yet to arise in Singapore, but Thio Li-Ann has expressed concerns that leaving minority seats vacated until General Elections risks defeating the original purpose of GRCs.[75]

In spite of this, the Singapore Parliament has found it unnecessary to have rules mandating a by-election when minority Members vacate their seats.[76] In the 2008 Parliamentary Debate, PM Lee stated that the number of minority MPs was well above the minimum, and it was unlikely that the number of minority MPs would fall below the minimum requirement in the near future.[77] On a separate occasion, then-DPM Tony Tan also promised that the PAP was prepared to field "more than two minority candidates per GRC ward", if this was necessary to maintain levels of minority representation.[78] Because no specific quotas exist as to the number of minority candidates required in Parliament, however, the promise to ensure that Parliament has a multi-racial character has been criticised to be based upon a "vague standard".[79]

It appears that the Singapore government inclines towards a discretionary, rather than rules-based approach when it comes to by-election decisions.[80] In support of this, MP Halimah Yacob has argued that the interests of minority communities are protected so long as other minority MPs are present.[81] In Yacob's view, allowing by-elections to be triggered by minority members vacating their GRC seats will undermine the concept on which GRC was premised. Furthermore, the GRC system was also designed to prevent situations of an MP holding his GRC to ransom. If by-elections had to follow vacation of every minority seat, minority MPs would possess significant power in determining the fate of the GRC.[82]

Rule of law and by-elections

With the lack of clear rules governing the calling of by-elections, there have been calls for more rules to cover the various situations in which a by-election could arise. It has been said that this would uphold the rule of law by ensuring that laws are open, clear and stable.

In proposing that by-elections be called within a specific time frame, Thio was of the view that the calling of by-elections should be governed by a rules-based regime. She argued that a clear rule regulating discretion as opposed to leaving absolute discretion to political leaders would serve to uphold the rule of law. Absolute discretion may result in arbitrary abuse without oversight.

Thio further argued that the rule of law is important to ensure a sound economic environment. Precise rules are desirable to promote certainty. These reasons support the motion that there should be time limits to govern the calling of by-elections when a vacancy arises.[83]

PM Lee responded that too many theoretical contingencies had been raised, which Thio and MP Siew Kum Hong were both asking the government to address.[84] Lee argued that the Constitution and laws cannot cover all theoretical contingencies. Instead, the more practical step that the government should employ is to address problems as they emerge, bearing in mind the long-term direction in which Singapore's political system should evolve.[85]

See Also

Notes

  1. ^ Constitution of the Republic of Singapore (1999 Reprint), Art. 46.
  2. ^ Singapore Constitution, Art. 45.
  3. ^ Lee Hsien Loong (Finance Minister), "Government of Singapore Investment Corporation (Disclosure of Annual Accounts)", Singapore Parliamentary Debates, Official Report (16 May 2001), vol. 73, col. 1672-1673ff.
  4. ^ Vellama d/o Marie Muthu v Attorney-General [2012] SGHC 155, H.C. Singapore
  5. ^ {{Malaysian legislation|title=Federal Constitution|rep=2006}}, Art. 54.
  6. ^ Lee Hsien Loong (Prime Minister), "Parliamentary Elections", Singapore Parliamentary Debates, Official Report (27 August 2008), vol. 84, col. 3328ff.
  7. ^ Li-ann Thio (2012), "The Legislature and the Electoral System", in Li-ann Thio (ed.), A Treatise on Singapore Constitutional Law, Academy Publishing, p. 357, ISBN 978-981-07-1516-8.
  8. ^ Thio Li-Ann (Nominated Member of Parliament), "Parliamentary Elections", Singapore Parliamentary Debates, Official Report (27 August 2008), vol. 84, col. 3328ff.
  9. ^ Thio, Parliamentary Elections (27 August 2008), col. 3328.
  10. ^ Vellama d/o Marie Muthu v Attorney-General, para. 115.
  11. ^ Lee, "Parliamentary Elections" (27 August 2012), col. 3328.
  12. ^ Parliamentary Elections Act (Cap. 218, 2011 Rev. Ed.) ("PEA"), s. 24(1).
  13. ^ PEA, s. 24(2).
  14. ^ PEA, s. 25.
  15. ^ PEA, s. 27(a)(5).
  16. ^ PEA, s. 27(a)(7).
  17. ^ Political Donations Act (Cap. 236, 2001 Rev. Ed.) ("PDA"), s. 18(1)(a)).
  18. ^ PDA, s. 18(2).
  19. ^ PDA, s. 18(6).
  20. ^ PDA, s. 18(4).
  21. ^ Singapore Constitution, Art. 49(1).
  22. ^ PEA, s. 24.
  23. ^ Thio, Parliamentary Elections (27 August 2008), col. 3328.
  24. ^ Interpretation Act (Cap. 1, 2002 Rev. Ed.), s. 52.
  25. ^ Vellama d/o Marie Muthu, paras. 115.
  26. ^ PEA, s. 22(1).
  27. ^ Singapore Constitution, Art. 39A(1)(a).
  28. ^ PEA, s. 8A(1)(a).
  29. ^ Singapore Constitution, Art. 49(1).
  30. ^ PEA, s. 24(2A).
  31. ^ PEA, s. 52(3A).
  32. ^ PEA, s. 52.
  33. ^ Thio, "The Legislature and the Electoral System", p.309.
  34. ^ Thio, "The Legislature and the Electoral System", p.308."
  35. ^ Singapore Constitution, Fourth Schedule s. 1(2).
  36. ^ Singapore Constitution, Art. 49(1).
  37. ^ Vellama d/o Marie Muthu, paras. 80.
  38. ^ Singapore Constitution, Art. 49(2)(b).
  39. ^ PEA, s. 52.
  40. ^ Jack Tsen-Ta Lee (2012), "A Legal Backgrounder on By-elections", Singapore Management University School of Law Opinion Series No JL/2012: 3.
  41. ^ Vellama d/o Marie Muthu, paras. 80.
  42. ^ Singapore Constitution, Fourth Schedule s. 4(2).
  43. ^ Vellama d/o Marie Muthu, paras. 76.
  44. ^ Singapore Constitution, Art. 46(2A).
  45. ^ Singapore Constitution, Art. 46(2B).
  46. ^ Lee, p.3.
  47. ^ Lee, p.3.
  48. ^ Vellama d/o Marie Muthu, paras. 7.
  49. ^ Vellama d/o Marie Muthu, paras. 8.
  50. ^ Singapore Constitution, Art. 49(1).
  51. ^ PEA, s. 24(1).
  52. ^ Vellama d/o Marie Muthu, paras. 80.
  53. ^ Vellama d/o Marie Muthu, paras. 115.
  54. ^ Thio, "Parliamentary Elections" (27 August 2008), col. 3328.
  55. ^ Thio, "The Legislature and the Electoral System", p. 358.
  56. ^ Lee, "Parliamentary Elections" (27 August 2008), col. 3328.
  57. ^ Clarissa Oon (1 August 2008), "By-election: Pragmatism or Principle?", The Straits Times.
  58. ^ JB Jeyaretnam (Non-constituency Member of Parliament), "Vacancy in Parliament", Singapore Parliamentary Debates, Official Report (6 July 1999), vol. 70, col. 1757ff.
  59. ^ Chiam See Tong (Member of Parliament), "Vacancy in Parliament", Singapore Parliamentary Debates, Official Report (6 July 1999), vol. 70, col. 1767ff.
  60. ^ Wong Kan Seng (Leader of the House), "Vacancy in Parliament", Singapore Parliamentary Debates, Official Report (6 July 1999), vol. 70, col. 1783ff.
  61. ^ Wong, "Vacancy in Parliament" (6 July 1999), col. 1783.
  62. ^ Lee, Parliamentary Elections (27 August 2008), col. 3328.
  63. ^ Lee, Parliamentary Elections (27 August 2008), col. 3328.
  64. ^ Lee, Parliamentary Elections (27 August 2008), col. 3328.
  65. ^ Thio, "The Legislature and the Electoral System", p. 358.
  66. ^ PEA, s. 24(2A).
  67. ^ Thio, "The Legislature and the Electoral System", p. 356.
  68. ^ Thio, "The Legislature and the Electoral System", p. 331.
  69. ^ Thio, "The Legislature and the Electoral System", p. 356.
  70. ^ Halimah Yacob (Member of Parliament), "Parliamentary Elections", Singapore Parliamentary Debates, Official Report (27 August 2008), vol. 83, col. 3328ff.
  71. ^ Oon, "By-election: Pragmatism or Principle?"
  72. ^ PEA, s. 69(1).
  73. ^ PEA, Third Schedule.
  74. ^ Thio, "The Legislature and the Electoral System", p. 358.
  75. ^ Thio, "The Legislature and the Electoral System", p. 358.
  76. ^ Hri Kumar Nair (Member of Parliament), "Parliamentary Elections", Singapore Parliamentary Debates, Official Report (27 August 2008), vol. 84, col. 3328ff.
  77. ^ Lee, "Parliamentary Elections" (27 August 2008), col. 3328.
  78. ^ Thio, "The Legislature and the Electoral System", p. 359.
  79. ^ Thio, "The Legislature and the Electoral System", p. 358.
  80. ^ Thio, "The Legislature and the Electoral System", p. 357.
  81. ^ Yacob, "Parliamentary Elections" (27 August 2008), col. 3328.
  82. ^ Yacob, "Parliamentary Elections" (27 August 2008), col. 3328.
  83. ^ Thio, "Parliamentary Elections" (27 August 2008), col. 3328.
  84. ^ Lee, "Parliamentary Elections" (27 August 2008), col. 3328.
  85. ^ Lee, "Parliamentary Elections" (27 August 2008), col. 3328.

References

External Links

Elections in Singapore

Singapore Legislation



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