It boils down to one word: Election. So the judge has ruled that when a parliamentary seats falls vacant, whoever fills it must go through the “process of an election”. Distinct from the process of an appointment or a nomination. So long as an election is held, it’s okay. WHEN the election should be held, never say. Until I suppose a general election needs to be called, because the Constitution DOES say when a GE has to be called and by when. In other words, the PM DOES have the unfettered discretion on when to call a BE. Sigh.
The judge says he looked at past constitutions etc to come up with his conclusions. There was something that Today reported that was interesting: Apparently in 1965, the words “within three months from the date on which it was established that there is a vacancy” were deleted from the Constitution. I didn’t know that. Happened when we were part of Malaysia? To keep a Malaysian out? The communists? Or after Aug 9? I wonder….
AFTERNOTE: Someone helpfully showed me the judgement itself
However, when Singapore joined Malaysia on 16 September 1963, additional words were inserted into Article 33 of the Constitution for the State of Singapore.
Filling of vacancies
33. Whenever the seat of a Member has become vacant for any reason other than a dissolution, the vacancy shall within three months from the date on which it was established that there is a vacancy be filled by election in the manner provided by or under any law for the time being in force in the State.
The reason for this insertion was explained by then Prime Minister Mr Lee Kuan Yew in Parliament on 22 December 1965:
Members in this House will know that there was no such injunction of holding a by-election within three months in our previous Constitution. We resisted this particular condition being imposed upon the State Constitution at the time we entered Malaysia, but our representations were not accepted because Malaysia insisted on uniformity of our laws with the other States in the Federation and with the Federal Constitution itself. Since we are no longer a part of the Federal whole, for reasons which we find valid and valuable as a result of our own experience of elections and of government in Singapore, we have decided that this limitation should no longer apply.
On the same day after this speech, Parliament passed the Constitution (Amendment) Act, 1965 (Act 8 of 1965) (“the 1965 Act”) on 22 December 1965 to delete the words “within three months from the date on which it was established that there is a vacancy” with retrospective effect from 9 August.
Interesting. T’was the Malaysians who wanted it in. But still dunno what are the valid and valuable reasons for doing so.
In any case, maybe I am wrong to use the word “unfettered”. Legal types note that the PM would still have to reckon with political checks (enough of an outcry and he might think he’d better hold one?) And that the Hougang BE example might well be the start of a “constitutional convention” of “great moral weight”. I suppose its like legal precedents that judges look at when sentencing…But when is something going to become a convention? In my life-time I hope. Or is the Hougang BE an anomaly? Judging by “past” constitutional convention, the Hougang BE is an abberation. Other seats have fallen vacant and only filled at GE, then Hougang pops up. And it’s a seat vacated by a member of the Opposition party. There are NOT many such seats to start a convention…
I am pretty hawkish about this issue because I think something as critical as having a people’s representative shouldn’t be left to ANYONE’s discretion (my apologies to the PM). It should be written into the law, constitution, somewhere. ANYWHERE.
It’s like why we have GRCs – so that the electorate will put enough minority candidates into Parliament. It’s like we have an elected President – so he will check against a G which wants to squander our reserves. These mechanisms are safeguards against a ditzy electorate and a ditzy G. That’s why they are written into the law. What’s to prevent a PM from letting several seats go vacant (imagine Yaw Shin Leong affair multiplied) until the next GE, because (I am going to say it…gulp!) the party in power doesn’t think it can win those seats? He might well within his rights but what about my right to be represented by a person of my choice? Why a “political check”? Why not a constitutional/legal check?
Also, who is left to run the vacated ward? Sure, there will be SOMEONE, who belongs to the same party as his predecessor. So there will be a de facto appointee or nominee (who didn’t come through the process of an election). How does this square with the spirit of the Constitution?
Sigh. Sigh. Sigh.