ST and TODAY ignore Court's questioning of Hri Kumar's "updating construction" argument

Singapore Democrats

Singapore's highest court questioned Deputy Attorney-General Hri Kumar's arguments that the Court should apply “updating construction ” or “rectifying construction” to the Constitution to bring it in line with amendments to the Parliamentary Elections Act (PEA) over the GRC system.

SDP assistant treasurer Dr Wong Souk Yee appealed High Court Judge Chua Lee Ming's decision when he rejected her application to declare the government's refusal to call a by-election in the Marsiling-Yew Tee (MYT) GRC unconstitutional.

At the heart of matter is the contention that Article 49(1) of the Constitution states that every parliamentary seat that is vacated "shall be filled by election".

The PAP, however, insists that a by-election need not be called in a GRC unless all members resign their posts.

The Court of Appeal grappled with this conundrum in yesterday's hearing. Ms Halimah Yacob had resigned from her seat in the GRC to become President. 

The five-judge panel heard arguments from Mr Peter Low acting for Dr Wong and Mr Hri Kumar for the Government.

Chief Justice Suresh Menon and Justice Andrew Phang expressed reservations with Mr Hri Kumar's argument and grappled with the issue of using updating and rectifying construction to the Constitution.

The Appellant contends that it is not the Court's role to update or rectify the Constitution to suit the PEA. Only Parliament can amend the Constitution with a two-thirds majority vote. Article 49(1) was not amended to require all seats in a GRC to be vacated before a by-election is called.

Under Article 4, the Constitution reigns supreme and legislation (such as the introduction of the GRC system in the PEA) that is in conflict with it is void.

The Straits Times' and TODAY's reports did not mention this crucial portion of the hearing.

Earlier during the session, the panel of judges asked Mr Low if the remaining MPs in the MYT GRC should resign to allow a by-election to take place.

The problem is not for the Appellant to resolve. The problem is wholly a creation of the PAP-led parliament. The onus, therefore, is on the government to find a resolution that is in accordance with the Constitution.

Justice Phang also asked if calling for the remaining MPs to resign was in the spirit of a parliamentary democracy.

But if a seat is vacated and not replaced via a by-election as required, then the process makes a mockery of the Constitution. In such an instance, how is parliamentary democracy served?

Justice Phang also asked Mr Low if the constituency would be unrepresented if one member of the GRC team is missing. Another judge, Justice Steven Chong, answered the question saying that the constituents would be under-represented and not unrepresented.

The Constitution stipulates that there must be 89 elected members in the House. If the Court deems that constituents are still represented in Parliament if one seat is vacant, then what if three seats are vacated or five or ten? Where does the Court draw the line regarding adequate representation?

Consider the following analogy: In a football match, if one player is injured and cannot continue, another player is brought on as his replacement. Consider further: If the substitution is not allowed, the team will have to carry on with 10 players.

In such a scenario, the team cannot be said to be unrepresented in the match – 10 players are still on the pitch. But playing with even one player short (unless he is sent off) goes against the very spirit of fairness.

Likewise, why should residents of the MYT GRC be playing in Parliament with one player short, so to speak?

This is the reason why Article 49(1) declares that every seat vacated “shall be filled by election” – there were no 'ifs', 'ands' or 'buts' in the section.

To add insult, Ms Halimah Yacob was the sole minority MP in MYT. The GRC system was introduced specifically to augment the election of minority MPs. Article 39A stipulates that.

Back then, PAP reasoned that a minority MP can better represent the ethnic group in the constituency.

Now when it suits its purpose, the government argues that it doesn't matter if the minority MP resigns her seat because, according to Mr Hri Kumar, the system was “designed to ensure minority representation at the point of elections.” How does this make sense?

The Court will deliver its verdict at a later date.

Thursday, 17 January 2019 SDP Print

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