Wong Souk Yee v Attorney-General

• Jurisdiction: Singapore
• Judge: Chua Lee Ming J
• Judgment Date: 09 April 2018
• Neutral Citation: [2018] SGHC 80
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1034 of 2017
• Year: 2018
• Published date: 17 April 2019
• Hearing Date: 22 January 2018
• Plaintiff Counsel: Peter Low, Priscilla Chia, Elaine Low, and Ng Bing Hong (Messrs Peter Low & Choo LLC)
• Defendant Counsel: Hri Kumar Nair SC, Hui Choon Kuen, and Sivakumar Ramasamy (Attorney-General's Chambers)
• Citation: [2018] SGHC 80

Chua Lee Ming J: Introduction

Pursuant to the 2015 General Elections, Mr Lawrence Wong, Mr Alex Yam, Mr Ong Teng Koon and Madam Halimah Yacob (as she then was) were elected as Members of Parliament (“MPs” or “Members”) of the Marsiling-Yew Tee group representation constituency (“the MYT GRC”).

On 7 August 2017, Madam Halimah Yacob (“Madam Halimah”) resigned her seat in Parliament to stand as a candidate in the 2017 Presidential Election. On 14 September 2017, Madam Halimah was sworn in as the 8th President of Singapore. The MYT GRC has been represented by the remaining three MPs since Madam Halimah vacated her seat.

In this Originating Summons, Madam Wong Souk Yee (“the Applicant”) seeks mandatory orders that the remaining MPs in the MYT GRC vacate their seats in Parliament; and the Prime Minister advises the President to issue a writ of election for the MYT GRC.

Alternatively, the Applicant seeks declaratory orders to the effect that for s 24(2A) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed) (“PEA”) to be consistent with Article 49(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”) so as to allow the vacancies in the MYT GRC to be filled, s 24(2A) of the PEA must be interpreted as requiring all the MPs of a GRC to vacate their seats when one or more MPs of the GRC vacate their seats; or in the alternative, when the only MP in the GRC who belongs to a minority community vacates his or her seat; and in the alternative that s 24(2A) of the PEA is void by virtue of Article 4 of the Constitution as it is inconsistent with Article 49(1).

Article 49(1) of the Constitution reads as follows:

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.

Section 24(2A) of the PEA reads as follows:

24.—(2A) In respect of any group representation constituency, no writ shall be issued … for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.

In my judgment, this application fails for the reasons set out below.

The GRC scheme

In 1988, the Constitution was amended to introduce the GRC scheme to ensure the representation in Parliament of Members from the Malay, Indian and other minority communities. The GRC scheme was implemented principally through the insertion of Article 39A to the Constitution and simultaneous amendments to the PEA. Under the scheme, the President may declare any constituency as a GRC and designate that constituency as one in which any election is to be held on the basis of a group of between three to six candidates. In addition, the President is to designate every GRC as either (a) a constituency where at least one of the candidates in every group must be a person belonging to the Malay community or (b) a constituency where at least one of the candidates in every group must be a person belonging to the Indian or other minority communities.

When Article 49(1) of the Constitution was enacted, there was no GRC scheme. When the seat in a single Member constituency (“SMC”) is vacated mid-term, ie, during a government’s term of office, a by-election has to be held to fill the vacancy: Article 49(1) of the Constitution. The application of Article 49(1) in the case of an SMC is relatively straightforward; see, also, Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (“Vellama”). The question in the present case is whether a by-election must similarly be held when one of the seats in a GRC is vacated mid-term.

Leave required under O 53 r 1 of the Rules of Court

As a preliminary matter, under O 53 r 1 (1) of the Rules of Court (Cap 332, 2014 Rev Ed) (“Rules”), leave of the High Court is required for an application for a mandatory order. Leave will not be granted unless (a) the matter complained of is susceptible to judicial review; (b) the applicant has sufficient interest or standing in the matter; and (c) the applicant shows an arguable case or prima facie case: Singapore Civil Procedure 2017 Vol 2 (Foo Chee Hock gen ed) at para 53/1/6.

I agree with the Applicant that the first requirement is clearly satisfied in this case. With respect to the second requirement, the Respondent accepts that the Applicant has sufficient interest as she is a voter in the MYT GRC and also a resident of Madam Halimah’s former ward. As for the third requirement of an arguable or prima facie case, I agreed with both parties to deal with this together with their submissions on the principal application since the submissions are the same. For reasons set out below, in my view, leave should not be given in this case.

The Applicant’s case for the mandatory orders

The Applicant seeks mandatory orders that the remaining MPs in the MYT GRC vacate their seats and that the Prime Minister advises the President to issue a writ of election. In her written submissions, the Applicant relied on three grounds: Article 49(1) of the Constitution requires the calling of a by-election in a GRC when the seat of an Elected MP has become vacant for any reason other than the dissolution of Parliament; Article 39A(2) of the Constitution requires that a GRC be represented by an MP belonging to a minority community, until the dissolution of Parliament; and a by-election should be called because voters have a right to be represented by an Elected MP of their choice until the dissolution of Parliament under the Singapore Constitution.

The first ground: Article 49(1)

This first ground raises the question as to how Article 49(1) of the Constitution should be interpreted.

The Applicant’s case may be summarised as follows: The plain reading of Article 49(1) of the Constitution mandates a by-election to be called when one seat in a GRC falls vacant for any reason other than a dissolution of Parliament. To enable the by-election for the MYT GRC to be held, the remaining MPs in the GRC must vacate their seats.

At the outset, it is important to note that it is implicit in the Applicant’s case that a by-election in a GRC would be for the whole group as designated by the President in respect of that GRC (“the GRC Team”). In the case of the MYT GRC, this would comprise four candidates, at least one of whom must be from the Malay community. On this point, the Applicant is on common ground with the Respondent. This position must be correct. Under the law, it cannot be a by-election to fill just the one seat that has been vacated.

First, as the Respondent submits, Article 49(1) provides that 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”. All elections (including by-elections) in any GRC shall be held on a basis of such number of candidates as designated for that constituency by the President: ss 27A(1) and (2) of the PEA. There is no law providing for the election of a single seat in a GRC.

Second, the members of a GRC Team are required to be either members of the same political party or independent candidates standing as a group: Article 39A(2)(c) of the Constitution read with s 27A(3) of the PEA. The remaining MPs in the MYT GRC belong to the same political party. A by-election for just the single vacated seat in the present case would not be possible under the law unless it is limited to candidates belonging to the same political party as the remaining MPs in the MYT GRC. Obviously, such a limitation cannot be justified.

The Respondent submits that Article 49(1) of the Constitution should be interpreted to require a by-election for a GRC only when all the Members of the GRC have vacated their seats. The Respondent’s alternative submission is that Article 49(1) does not apply to GRCs at all.

Principles of statutory interpretation

The principles are not in dispute. Both the Applicant and the Respondent have referred me to the Court of Appeal’s decision in Tan Cheng Bock v Attorney General [2017] 2 SLR 850 (“Tan Cheng Bock”). It is common ground that the purposive approach applies to the Constitution which should be interpreted in a way that gives effect to the intent and will of Parliament; and the purposive interpretation of a legislative provision involves three steps: first, the court should ascertain possible interpretations of the provision, having regard to the text of the provision as well as the context of the provision within the written law as a whole. This is done by determining the ordinary meaning of the words, and could be aided by rules and canons of statutory construction; second, the court should ascertain the legislative purpose of the statute. Legislative purpose should ordinarily be gleaned from the text itself. Extraneous material may be considered in the situations set out under s 9A(2) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”); and third, the court should compare the possible interpretations of the text against the purpose of the statute. An interpretation which furthered the purpose of the written text was to be preferred to one which did not.

Possible interpretations of Article 49(1)

As stated at [19] above, the first step is to ascertain the possible interpretations of Article 49(1). It would be useful to set out Article 49(1) again:

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 parties have submitted three different interpretations of Article 49(1) with respect to its application to GRCs: ...