Vellama d/o Marie Muthu v AG

• Jurisdiction: Singapore
• Judgment Date: 01 August 2012
• Date: 01 August 2012
• Docket Number: Originating Summons No 196 of 2012 (Summons No 2639 of 2012)
• Court: High Court (Singapore)

Vellama d/o Marie Muthu

Plaintiff

and

Attorney-General

Defendant

[2012] SGHC 155

Philip Pillai J

Originating Summons No 196 of 2012 (Summons No 2639 of 2012)

High Court

Administrative Law—Remedies—Declaration—Applicant seeking independent declaratory relief in proceedings commenced under O 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed)—Whether declaratory relief available—Order 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Constitutional Law—Constitution—Interpretation—Seat of elected Member of Parliament becoming vacant—Whether Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) mandated calling of election to fill vacancy—Article 49 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—Interpretation—Seat of elected Member of Parliament becoming vacant—Whether each successive Constitution instrument leading to its current form confirmed interpretation of Art 49 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Article 49 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Constitution—Interpretation—Seat of elected Member of Parliament becoming vacant—Whether ‘election’ in Art 49 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) referred to event of election or process of election—Article 49 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Courts and Jurisdiction—Jurisdiction—Judicial review—Subsequent events rendering mandatory order unnecessary—Whether subsequent events had bearing on declarations sought

On 15 February 2012, the Workers' Party expelled Mr Yaw Shin Leong, the Member of Parliament for Hougang Single Member Constituency (‘SMC’). On 28 February 2012, the Speaker of Parliament announced in Parliament that Mr Yaw Shin Leong's seat in Parliament had become vacant pursuant to Art 46 (2) (b) of the Constitution, by reason of his expulsion from the Workers' Party. On 2 March 2012, the applicant, Mdm Vellama d/o Marie Muthu, filed Originating Summons No 196 of 2012 under O 53 of the Rules of Court seeking the following relief:

1. (a) Declarations (‘the Declarations’):

   1. (i) ‘That the Prime Minister does not have unfettered discretion in deciding whether to announce by-elections in Hougang SMC’; and

   2. (ii) ‘That the Prime Minister does not have unfettered discretion to decide when to announce by-elections in Hougang SMC and must do so within three months or within such reasonable time as this Honourable Court deems fit’; and

2. (b) A mandatory order enjoining the Prime Minister to ‘advise the President to issue a Writ of Election mandating by-elections in Hougang SMC pursuant to Art 49 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and s 24 (1) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed)’ and to ‘tender such advice within three months or within such reasonable time as the Honourable Court deems fit’ (‘the Mandatory Order’).

On 3 April 2012, leave was granted to proceed with the application for the Mandatory Order. The Attorney-General's counsel appealed against the granting of leave but subsequently withdrew the appeal. On 29 May 2012, the applicant filed Summons No 2639 of 2012 seeking the same relief that leave was granted for in Originating Summons No 196 of 2012.

In the meantime, the President, upon the advice of the Prime Minister, issued the writ of election for Hougang SMC on 9 May 2012. An election was held in Hougang SMC on 26 May 2012.

Held, dismissing the application:

(1) Under O 53 of the Rules of Court, although leave was not required to include an application for a declaration in the principal application, the court had no power to grant standalone declarations under O 53 if the principal application failed. However, an applicant was at liberty to apply for separate standalone declarations under O 15 r 16 concurrently with an application under O 53. He may apply to consolidate the separate proceedings under O 4 r 1 if he obtained leave to make the application under O 53: at [32], [35] and [36].

(2) Although the applicant had failed on the procedural issue, she had reserved her right to apply for declarations under O 15 r 16 at the outset. The substantive issue remained to be heard and determined in the light of s 3 (h) of the Civil Law Act. Order 28 r 8 of the Rules of Court could be invoked to preserve the applicant's originally reserved right to apply for declarations under O 15 r 16 without the procedural constraints of O 53: at [37] to [39].

(3) The Constitution set out the foundational structure and arrangements of Singapore's public governance. As an independent nation of almost 50 years, the Constitution reflected the conditions, realities, experience and history of Singapore. It contained fundamental elements from our British colonial history, our self-government, our brief Malaysian experience, and refinements introduced since independence in 1965. Whilst refinements had been introduced to address new imperatives, the basic framework of our inherited colonial constitution had not changed: at [48].

(4) The court did not take Constitutional expressions out of context or determine their meaning in isolation. Any interpretation of the Constitution had to begin with its text. If the text of the provision was unclear or ambiguous, extrinsic sources might be referred to in order to aid the interpretation process. The phrase ‘shall be filled by election’ in Art 49 (1) took its meaning first within the context of Art 49 itself, and then within the wider context of Pt VI of the Constitution which provided for the Legislature, and finally, within the context of the entire Constitution: at [53] and [54].

(5) Article 66 mandated that there ‘shall be a general election’ within three months of the dissolution of Parliament. In sharp contrast, Art 49 (1) did not state that the vacancy ‘shall be filled by an election’. Instead, it merely stated that the vacancy ‘shall be filled by election’. The word ‘shall’ ordinarily meant that whatever it was referring to was mandatory. However, what was being mandated by the word ‘shall’ in Art 49 (1) was not immediately clear, because ‘election’ could mean either (a)an event, in the sense, ‘to hold an election’; or (b)a process, in the sense, ‘by the process of election’. As a literal reading of ‘election’ was capable of more than one meaning, it became necessary to proceed further to determine the meaning of the expression ‘shall be filled by election’ in Art 49 (1) in the wider context of Pt VI of the Constitution, which provided for matters relating to the Legislature: at [58] to [61].

(6) From the internal structure of Pt VI of the Constitution, it was clear that the rules relating to the (a)method of filling a seat upon dissolution; (b)tenure of office; (c)events triggering vacation of seats other than by dissolution; and (d)filling of vacancies occurring other than by general election were different depending on whether the Member was an elected Member, a non-constituency Member or a nominated Member. Since the Constitution provided different processes for the filling of non-constituency and nominated Member vacancies, the phrase ‘shall be filled by election’ in Art 49 (1) referred accordingly to the process of filling elected Member vacancies and not the event of an election: at [78] to [80].

(7) By tracing the origin of the expression ‘shall be filled by election’ in Art 49 (1) and examining each and every successive constitutional instrument leading to its current form, it was beyond doubt that ‘election’ referred to a process and not an event: at [81] to [83].

(8) The Singapore Colony Order in Council 1946 empowered the Governor to nominate Temporary Members to fill vacancies in the Legislative Council. In 1954, the Constitutional Commission recommended that the Legislative Council should be replaced by a primarily elected Legislative Assembly. This recommendation was accepted and the Singapore Colony Order in Council 1955 (‘the 1955 Order’) changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or an Elected Member, ss 51 (1) and 51 (2) of the 1955 Order set out how each respective vacancy was to be filled: at [84], [89], [92] and [95].

(9) Section 51 (2) was the original source of Art 49 (1) of the Constitution. The expression ‘shall be filled by election’ was common to both s 51 (2) of the 1955 Order and Art 49 (1) of the Constitution. Yet, it was clear that the expression ‘shall be filled by election’ in s 51 (2) of the 1955 Order referred to a process and not an event because s 51 (1) used the contrasting expression ‘shall be filled by appointment by the Governor’: at [96] and [97].

(10) The meaning of expression ‘shall be filled by election’ later became obscure because the distinction between the processes of appointment and election in the 1955 Order was lost in subsequent Orders in Council and later, the Constitution. Singapore had a fully elected Legislative Assembly with no Nominated Members in 1958. Accordingly, s 51 (1) of the 1955 Order that provided for filling of vacancies of Nominated Members was dropped in the Singapore (Constitution) Order in Council 1958 (‘the 1958 Order’). However, the expression ‘shall be filled by election’ in s 51 (2) of the 1955 Order remained unchanged in s 44 of the 1958 Order. Without the contrasting provisions of ss 51 (1) and 51 (2) of the 1955 Order, the meaning of the expression ‘shall be filled by election’ in s 44 of the 1958 Order only became less obvious, but it had not changed: at [98] to [101].

(11) On 9 July 1963, Singapore signed the Agreement Relating to Malaysia containing a provision, s 33 of Annex D, which mirrored the language...