The SDP is of the view that High Court Judge Chua Lee Ming is mistaken in his decision to dismiss Dr Wong Souk Yee's application for a by-election in the Marsiling-Yew Tee GRC on two counts.
The first is that the Constitution stipulates 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 in the manner provided by or under any law relating to Parliamentary elections for the time being in force.” (emphasis added)
Article 49(1) can't get any plainer: Whenever the seat of a Member – not all Members – has become vacant, that vacancy shall – not may be – filled by election – not appointment.
The Deputy AG and former PAP MP Hri Kumar argued that the PAP had amended the Parliamentary Elections Act (PEA) when it introduced the GRC system. In it, parliament decided that no by-election need be called unless all of the MPs in the GRC resigned.
But how do you reconcile the contradiction between the Constitution and PEA? By applying, Mr Hri Kumar insisted, something called “rectifying construction” or “updating construction”.
In layman's terms, the Court needed to assume that Article 49(1) is automatically updated or rectified when the PAP introduced the GRC concept.
If you find that such an interpretation strains credulity, that's because it does. The AGC had even admitted that its interpretation “may be strained” but is, nevertheless, “justified because it gives effect to Parliament's express intent.”
Justice Chua chose to agree with this interpretation. “In my view,” he wrote, “an updating construction should be applied such that references to 'the seat of a Member' in Article 49(1) are interpreted to mean 'the seats of all the Members' in the case of a GRC.”
Such a view is problematic. If Parliament wanted to overcome the “seat of a Member” stipulation in the Constitution, it should have amended Article 49(1) which would require a 2/3 majority vote in the house. It didn't.
Parliament cannot simply amend legislation in the PEA and then insist that the new legislation updates or rectifies the Constitution.
Article 4 of the Constitution specifically prohibits such action: “The Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
Clearly, the part in the PEA that says that all MPs in a GRC must resign before a by-election can be called is inconsistent with the Constitution's Article 49(1) and, as such, must be void.
To interpret that the PEA should update or rectify the Constitution is like saying that the tail should wag the dog.
Then there is the issue of minority representation. The GRC system specifies that each team must have a minority candidate. In the present case, not only did an MP resign, that MP was also the sole minority MP in the MYT GRC.
But Mr Hri Kumar stood logic on its head when he contended that the GRC system was “designed to ensure minority representation at the point of elections”, adding that “GRCs are meant to ensure a multi-racial Parliament, not a multi-racial team in the constituency.”
Then why have GRCs at all? If all we are interested in is a multi-racial Parliament and not multi-racial GRC team, then we should abolish the GRC system and revert to the original system of only SMCs but, as a possible alternative, reserve a portion of the constituencies for minority candidates.
But the judge also agreed with the Deputy AG. In his judgement, Mr Chua wrote: “Whether the vacated seat was held by an MP belonging to a minority community or not, a by-election for the whole GRC Team cannot be held unless the remaining MPs can be compelled to vacate their seats.”
Again, if that's the case, what's the point of having the GRC system?
For these – and other – reasons, the SDP disagrees with the Court's verdict. Dr Wong Souk Yee is considering appealing the decision.
Read the judgment here.
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