In his judgement rendered today, High Court Judge Chua Lee Ming said that a by-election cannot be held unless the remaining MPs in the GRC vacate their seats.
During the hearing on 22 January 2018, Justice Chua asked repeatedly of counsel Mr Peter Low where Article 49(1) of the Singapore Constitution says that the remaining MPs in a GRC must resign to trigger a by-election if one of the seats is vacated.
The Article, of course, makes no mention of this point. That’s because it was written way before the introduction of the GRC system in 1987.
But Article 49(1) lays the foundation – as is the function of the Constitution – for the democratic construction and functioning of society and its politics.
It makes no bones about where the argument lies when a seat of an elected MP is vacated, that is, “the vacancy shall be filled by election”. Not “may” or “if” but “shall”. In other words, the government is bound by this Article to call for a by-election.
In making the case for the GRC system in 1987, the PAP argued that it is unfair to the remaining MPs if they are forced to step down when a member in the team resigns.
This should not be the Courts’ concern. What is of concern is that Parliament must ensure that the laws it passes are consistent with the Constitution – in this case, the spirit of parliamentary elections of replacing an elected representative with another elected representative as spelt out in Article 49(1) must be respected.
Mr Low maintained that the Article cannot be stretched by the Courts to ask what should happen to the other MPs in a GRC should a seat in the constituency be vacated. Article 49(1) is contravened if the government is allowed to avoid calling for a by-election when an MP vacates his/her seat.
It also sets a dangerous precedent: It is entirely conceivable for the prime minister to sack MPs in a GRC save for one and not replace those whom he has dismissed.
In the extreme, he can still convene Parliament and run the country with 29 MPs (16 GRC MPs plus 13 SMC MPs) instead of the full 89. This makes a complete mockery of the Westminster parliamentary model on which our system is based.
There is another question. The GRC was specifically enacted to require a minority MP in the team. Ms Halimah Yacob was that MP in the Marsiling-Yew Tee GRC. Her departure left a conspicuous absence of minority representation in the constituency.
Yet, Deputy AG Hri Kumar argued that the GRC scheme was “designed to ensure minority representation at the point of elections”. Does he mean that minority representation after elections need not be ensured? This makes absolutely no sense.
In questioning what happens to the remaining MPs at the Marsiling-Yew Tee GRC, Justice Chua failed to ask the more important one: What happens to the gaping hole in the GRC – and by extension in Parliament – left by Ms Halimah when she vacated her seat?
The SDP will consider appealing the decision.