“No by-election will be held to fill any vacancy unless all three members of that GRC have vacated their seats in Parliament,” then DPM Goh Chok Tong said when he introduced the GRC system in 1987.
“This is to ensure that no Member who has been elected under a GRC will be forced to vacate his seat through the departure of his team-mates for whatever reason”.
Parliament pushed through the stipulation in Section 24(2A) of the Parliamentary Elections Act (PEA) that year.
This is what the Attorney-General's Chambers (AGC) will rely on in its case in today's High Court hearing (starting at 2:30 pm) against an application taken by SDP Assistant Treasurer Dr Wong Souk Yee who is also a resident in the constituency.
Dr Wong's action seeks a court order to require PM Lee to call for a by-election in the Marsiling-Yew Tee GRC with the resignation of Ms Halimah Yacob from her seat.
The AG argues, however, that the PEA states that the PM is not mandated to call for a by-election if a seat is vacated in a GRC.
But as explained previously here, Article 49(1) of the Singapore Constitution clearly spells out 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...” (emphasis added)
The Constitution does not specify that a vacant seat must be in an SMC as opposed to a vacant seat of a GRC before a by-election has to be called.
It is settled law that the Singapore Constitution reigns supreme. That is, if an Act contradicts the Constitution, the latter takes precedence.
To make the point even more explicit, Article 49(2)(b) of the Constitution says that “ The Legislature may by law provide for — (a) the vacating of a seat of a non-constituency Member...(b) the filing of vacancies of the seats of non-constituency Members...” (emphasis added)
Note the difference: the vacancy for an elected MP “shall” be filled by an election. But for a non-elected member (such as an NCMP), the government “may” (ie, not required to) fill the vacated seat.
This distinction makes it clear that the filling of a vacant seat of an elected MP by an election is non-discretionary.
Dr Wong's application submits that the statements by DPM Goh do not address Article 49(1).
“Therefore, the comments made by DPM Goh in relation to the calling of a by-election in a GRC only when all seats fall vacant cannot be regarded as setting out the meaning of Art 49(1) of the Singapore Constitution when no such amendment to the Art 49(1) of the Singapore Constitution was introduced,” Dr Wong's submissions read.
It continues, “If the Government had intended the remaining MPs of a GRC to maintain their seats in Parliament in the event that one MP vacates his/her seat, the Government should have amended Art 49 of the Singapore Constitution to expressly provide for this situation.”
The AG's counter to this point is that Article 49(1) was established at a time when there were no GRCs and is, therefore, not applicable to the present system. In other words, it is understood that the Article must be brought up to date.
To this point, Dr Wong's counsel, Peter Low and Choo LLC, argues out that the Courts “should not engage in constitutional interpretation in a manner that is tantamount to amending the Constitution.” The Judiciary does not have the power to redraft the Constitution.
Should the Courts adopt the AG's position, it would be altering and qualifying the plain meaning of Article 49(1) through “constitutional interpretation”.
DPM Goh's parliamentary statements are clearly in contradiction to the plain reading of Article 49(1). They must, therefore, be disregarded and a by-election in the MYT GRC called.
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