Wong Souk Yee v Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 10 April 2019
• Neutral Citation: [2019] SGCA 25
• Plaintiff Counsel: Peter Low, Elaine Low, Priscilla Chia and Ng Bin Hong (Peter Low & Choo LLC)
• Docket Number: Civil Appeal No 73 of 2018
• Date: 10 April 2019
• Hearing Date: 16 January 2019
• Subject Matter: Judicial review,Whether public interest considerations justify departure from usual costs orders,Interpretation,Administrative Law,Costs,Elections,Constitutional Law,Constitution,Vacation of seat,Threshold for leave for judicial review,Parliament,Civil Procedure
• Published date: 17 April 2019
• Defendant Counsel: Hri Kumar Nair SC, Hui Choon Kuen, Sivakumar Ramasamy and Andre Chong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2019] SGCA 25
• Year: 2019

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

On 7 August 2017, Mdm Halimah Yacob (“Mdm Halimah”) resigned her seat as a Member of Parliament (“Member”) for Marsiling-Yew Tee Group Representation Constituency (“MYT GRC”) to stand for the presidential election which was to be held the following month (“the 2017 Presidential Election”). No by-election was called in the aftermath of her resignation. In Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (“Vellama”), we held at [82] that the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) imposes a duty upon the Prime Minister to call a by-election to fill casual vacancies of elected Members that might arise from time to time. That decision was made in the specific context of a Single Member Constituency (“SMC”), and we concluded there that the duty in question is premised on the proper interpretation of Art 49 of the Constitution. The central question in this appeal is whether a similar duty arises in the context of a vacancy in a Group Representation Constituency (“GRC”).

Background Article 49(1) and the introduction of the GRC scheme

Article 49(1) of the Constitution reads:

Filling of vacancies

49.—(1) 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.

The proper interpretation of Art 49(1) in the present case is to be approached in the context of the introduction of the GRC scheme. As such, we begin by briefly setting out the broad historical developments pertaining to Art 49(1) and the introduction of the GRC scheme. This will provide the necessary background to the discussion that follows.

The drafting history of Art 49(1) was extensively discussed in Vellama at [58]–[72]. For present purposes, it is sufficient to note that Art 49(1) has remained substantively unchanged since its original enactment as Art 33 in 1965, save that: (a) it was renumbered from Art 33 to Art 49; and (b) some other amendments were made as a result of the introduction of non-constituency Members (see Vellama at [60]). At the time of Art 49’s original enactment as Art 33, all electoral divisions in Singapore were SMCs, which, as the name implies, are constituencies represented by a single Member.

Twenty-three years after the original enactment of Art 49, the GRC scheme was brought into effect in 1988 by means of simultaneous amendments to both the Constitution and the Parliamentary Elections Act (Cap 218, 1985 Rev Ed). These were effected through the Constitution of the Republic of Singapore (Amendment) Act 1988 (Act 9 of 1988) (“the 1988 Constitution Amendment Act”) and the Parliamentary Elections (Amendment) Act 1988 (Act 10 of 1988) (“the 1988 PE Amendment Act”) respectively. The key amendment introduced by the 1988 Constitution Amendment Act was the insertion into the Constitution of Art 39A, which provides for the designation of constituencies as GRCs. Article 49, which, until then, had only ever applied to SMCs, was not, however, amended. The GRC scheme was introduced to ensure multi-racial representation in Parliament by requiring some constituencies (namely, GRCs) to be contested on a group basis, with each group of candidates having at least one candidate belonging to either the Malay, Indian or other minority community: see Art 39A(2)(a) of the Constitution.

The vacating of the seat in MYT GRC

The appellant (“the Appellant”) is a resident of MYT GRC and a member of the Singapore Democratic Party (“SDP”). In the general election held in September 2015 (“the 2015 General Election”), she contested MYT GRC under the SDP’s banner along with three other individuals. A team from the People’s Action Party (“PAP”) consisting of Mdm Halimah, Mr Ong Teng Koon, Mr Lawrence Wong and Mr Alex Yam also contested the GRC. Mdm Halimah was the only minority community candidate of that team. The PAP team won the election for MYT GRC.

On 6 February 2017, Mr Pritam Singh, an elected Member for Aljunied GRC, asked in Parliament whether a by-election would be called in a GRC in the event that a minority community Member (“minority Member”) of that GRC were to step down in order to contest a presidential election. Mr Chan Chun Sing, then Minister in the Prime Minister’s Office, replied that there would be no need to call a by-election if a single minority Member of a GRC were to resign.

As we have already noted, on 7 August 2017, Mdm Halimah resigned her seat as a Member for MYT GRC to stand for the 2017 Presidential Election. No by-election was called, and MYT GRC continues to be represented by the remaining Members of the PAP team which won that constituency in the 2015 General Election.

The proceedings below

On 13 September 2017, the SDP and the Appellant filed Originating Summons No 1034 of 2017 (“OS 1034”) in the High Court seeking leave to apply for the following reliefs: a mandatory order that the three remaining Members of MYT GRC vacate their seats, and that thereafter, a by-election be held “with all convenient speed” for MYT GRC; a declaratory order that s 24(2A) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed) (“the PEA”) must be interpreted as requiring all the remaining Members of a GRC to vacate their seats when a Member of the GRC vacates his or her seat, or, in the alternative, where the only minority Member of the GRC vacates his or her seat; and in the alternative, a declaratory order that s 24(2A) of the PEA is void for inconsistency with Art 49(1) of the Constitution.

Initially, the Attorney-General (“the Respondent”) indicated an intention to challenge the SDP’s standing to make the application, but not that of the Appellant since she was a resident of MYT GRC. Since the Appellant’s case remained the same regardless of the SDP’s involvement as a party to the application, in the interest of saving time and costs, an amendment to OS 1034 was filed on 5 December 2017 removing the SDP as a party to the application. The rest of OS 1034 remained unchanged. As a result, there is no dispute before us as to the Appellant’s standing to bring the application.

At the hearing before the High Court judge (“the Judge”) on 22 January 2018, the parties agreed to have the leave application and the substantive application for relief heard together. This was because the leave application turned on whether the Appellant could show an arguable or prima facie case for granting the orders sought in OS 1034, and this involved a question of constitutional interpretation that would traverse the same issues as the substantive application, albeit with a different standard of persuasion being applicable.

In the proceedings below, the main thrust of the Appellant’s case was that the law required that the remaining Members of MYT GRC vacate their seats and that a by-election then be held in MYT GRC. The Appellant made three main arguments in support of her position: first, Art 49(1) of the Constitution mandates that a by-election must be called when any seat in a GRC falls vacant for any reason other than a dissolution of Parliament; second, Art 39A(2) of the Constitution requires that there must be a minority Member for a GRC until the dissolution of Parliament; and third, voters have the right to be represented by an elected Member of their choice until the dissolution of Parliament pursuant to an “implied right to representation” contained in the Constitution.

The Respondent, on the other hand, submitted that s 24(2A) of the PEA specifically prohibited a by-election from being called when any seat in a GRC became vacant unless all the other seats in that GRC had also been vacated. Hence, the Respondent submitted, the issue should correctly be framed in terms of whether s 24(2A) of the PEA was unconstitutional in the light of Art 49(1) of the Constitution. The Respondent argued that on a proper interpretation of Art 49(1), it did not conflict with s 24(2A). The Respondent highlighted that Parliament, in debating the constitutional and legislative amendments that brought the GRC scheme into force, had expressly considered the issue of what would occur in the event that a Member vacated a GRC seat, and had arrived at the conclusion that was expressed in s 24(2A). In the Respondent’s submission, Art 49(1) ought to be given an updating or rectifying construction to take into account the later introduction of GRCs; alternatively, Art 49(1) should be construed as being applicable only to SMCs and not to GRCs.

The Judge’s decision

In Wong Souk Yee v Attorney-General [2018] SGHC 80 (“Wong Souk Yee HC”), the Judge held as follows: It was implicit in the Appellant’s case that a by-election could not be held to fill just one seat in a GRC, and that any by-election in a GRC would have to be for the whole team of Members representing that GRC (at [15]). The Appellant’s interpretation of Art 49(1) was unworkable because it required the remaining Members of MYT GRC to resign when there was no legal basis for compelling their resignation (at [25]–[26]). An updating or rectifying construction should be applied to Art 49(1) to reflect the changes introduced by Art 39A. This was consistent with the clear intent and will of Parliament (at [36], [38] and [41]). In relation to the Appellant’s argument on Art 39A(2), the Appellant had clarified in oral submissions that her case was that a by-election must be held if any seat in a GRC (whether or not held by a minority Member) was vacated. It was therefore no longer necessary to consider her separate submission on Art 39A in relation to the special interest in ensuring minority representation. In any event, there was no basis in law to compel the remaining Members...