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2 comments

• Comment Link Saturday, 25 February 2012 04:18 posted by Yeoh Lian Chuan

  Parliament debated this topic at some length in 2008.
  
  A link to the full text of the debate is here - https://skydrive.live.com/#cid=4AEA6D2EB9306C48&id=4AEA6D2EB9306C48!172
  
  Having read it, it still seems to me clear that the Government has a duty to call a by-election under the Constitution.
  
  Indeed, PM Lee Hsien Loong himself acknowledged in Parliament in 2008 when the question of by-elections was debated at length in response to NMP Prof Thio Li-Ann's motion to impose a 3 month time line for calling by-elections in SMCs (and I quote):
  
  "Let me first state the legal position, which is not in doubt and not in dispute. Under the Constitution, the Government shall call a by-election when a seat falls vacant."
  
  However, PM did also say and I think rightly :
  
  "... the elections are to choose democratic representatives of the people to form a government. There are two limbs to that – to elect the democratic representatives and then to form a government.
  
  There are two different philosophies of elections, depending on where you put the weight on these two limbs."
  
  Therefore I, agreed with Hri that an "immediate" by-election is not mandated by law and furthermore, I respectfully agree that one of the reasons that PM has discretion as to timing is so that "MPs cannot force by-elections at random mid-term, distracting the country from other more pressing concerns".
  
  Those are all good reasons for giving PM discretion as to timing.
  
  However, recognizing all of the above, what I still cannot accept as constitutional is the idea that PM has completely unfettered discretion "whether" to call a by-election, i.e. that there is no automatic by-election in our model of parliamentary democracy.
  
  Even granting all of the arguments in favour of giving PM a discretion as to timing and not having the timing fixed in law - which I agree with - the extreme version of the 'unfettered discretion' thesis seems to me to ignore two points of law which I would respectfully argue are still fundamental to bear in mind:
  
  a. firstly, the fact that Article 49 of the Constitution does impose a DUTY on the Government to call a by-election (see above);
  
  b. secondly, the fact that although no fixed timing is prescribed and indeed was specifically deleted vide the Constitution of Singapore (Amendment) Act in 1965, the law still retains a general requirement to act with all convenient speed (whatever that might mean).
  
  Next, an interesting factoid.
  
  At the end of the debate in 2008, Prof Thio called for a division on her motion.
  
  The result was that 5 "non-pols" (i.e. NMPs) voted in favour of the motion.
  
  All the "pols" (i.e. elected MPs) voted against.
  
  I would take what I would call a middle ground, i.e. I would have rejected Prof Thio's proposal but I think that legally PM must generally call a by-election if a general election is not coming up shortly.
  
  As for what is shortly, Prof Thio proposed in her motion that no by-election is required if an election is due 6 months after the vacancy.
  
  Hri criticized this figure as "arbitrary", and I agree. However, wherever the exact boundary may be, not calling a by-election where there are 4 1/2 years of the scheduled Parliamentary term to go, I think would not be tenable constitutionally for PM to say wait until the next elections in the absence of "very exceptional" reasons.
  
  In response, Hri might say that I a "presumes that every Parliament will complete its full term.". In Parliament, he argued that "... that again ignores the reality. Elections can be called at any time, and the Prime Minister is not compelled to wait for the full term of Parliament to expire, and often it does not." I say that may be theoretically true, but in reality its a weak argument esp since the Government these days has tended to prefer to serve a full time (and the Government would in any case argue that elections cannot be called lightly). So I am amply justified in thinking on the basis that the Parliamentary term should be seen as 5 years.
• Comment Link Friday, 24 February 2012 12:52 posted by Tracy

  Hri wrote: "Nor should an MP's resignation or expulsion force the Government to put aside more important national issues to focus on a by-election."
  
  Why should a by-election force the government to put aside more important national issues to focus on a by-election? Unless of course PAP intends to win at ALL costs to the extent of devoting all its energies to "fixing" WP.
  
  By not calling for a by-election within a reasonable time limit, the PM is in effect disregarding the voice of the Hougang residents.
  
  Contrast the stance with WP - it sacked the MP member when the latter refused to provide an account to the residents.
  
  No matter how PAP tries to paint it, it is painfully obvious that it is hoping for a sweeter ground before calling for a by - if ever the "sweeter ground" would materialize.