Attorney-General’s Striking Out Application
1. First, the case continues to have constitutional significance because the Prime Minister’s statement that he could decide “whether and when” to call by-elections, and the three instances in which by-elections were never held despite the vacation of parliamentary seats other than by dissolution, makes it extremely important that the courts determine the precise boundaries of the Prime Minister’s power under Article 49(1) of the Constitution. This has both legal and practical significance as this ensures that Article 49(1) will never be infringed again in future.
2. Second, declarations on the boundaries of the Prime Minister’s power under Article 49(1) can be made under Order 53 of the Rules of Court, even after by-elections have been held.
3. Third, the Attorney-General abuses process by taking out these striking out applications. It had every opportunity to resist Vellama’s case at the hearing of the appeal on 16 May 2012, but it chose instead to withdraw its appeal and hence affirm Justice Pillai’s grant of leave. By taking out this application, the Attorney-General seeks to take a second bite of the cherry and engages in a collateral attack on Justice Pillai’s decision.
The Summons to Cross-examine the Prime Minister
4. The summons filed for cross-examination of the Prime Minister and discovery of the advice tendered to the Prime Minister is important because the Prime Minister has made the following remarks raising anxiety about his understanding of his power under Article 49(1) of the Constitution: -
a. that he has the power to decide “whether” to call by-elections in the event of vacation other than by dissolution;
b. that there is no legal limit on his power to decide “when” to call by-elections;
c. that in considering the timing of by-elections, he may take into account “the welfare of Hougang residents”, “issues on the national agenda” and “the international backdrop which affects our prosperity and security”. This is despite the fact that, when the by-elections were eventually called, the Government frequently reiterated that the elections were “local” elections and “national” issues should not be canvassed.
Read the submissions from M Ravi and the AGC below, under “attachments”.
Sequence of events leading to the court case:
14 February 2012: Hougang seat vacated following the dismissal of Yaw Shin Leong by the Workers’ Party.
24 February 2012: MP Hri Kumar wrote in the Today newspaper that there was “no requirement” for a by-election to be called immediately for Hougang SMC. The MP’s note was met with disagreements from Professors Thio Li-Ann, Adjunct Professor Kevin Tan, Assistant Professor Jack Lee and Nominated MP Eugene Tan. They argued that the by-elections were mandatory, not optional and the Prime Minister’s discretion as to the timing of by-elections is fettered.
29 February 2012: MP Hri Kumar says “Article 49 of the Constitution does not say that an election shall be ‘called to fill a vacant seat’,” thereby suggesting that such a vacancy could be filled by a general election.
1 March 2012: The Straits Times reported that the Prime Minister announced that he would decide “whether and when to hold a by-election in Hougang.”
2 March 2012: The Plaintiff (Vellama) files originating summons to seek the Court’s judgement on the matter.
9 March 2012: PM Lee Hsien Loong made further comments in Parliament on his plans regarding by-elections in general, and the Hougang by-election, in particular. He said he “intend[s] to call a by-election” though he has yet to decide on the timing of the by-election; he also said he would take into account “relevant considerations”, including “the well being of Hougang residents”, “issues on the national agenda”, and “the international backdrop which affects our prosperity and security.”
3 April 2012: Justice Philip Pillai granted leave to the Plaintiff to apply for specified Mandatory Order.
4 April 2012: The Attorney General Chambers (AGC) filed a Notice of Appeal against Justice Pillai’s decision, without seeking the leave of Justice Pillai to do so, as required by Court rules.
9 May 2012: President Tony Tan issued the Writ for by-election in Hougang.
11 May 2012: Plaintiff’s letter to AGC saying that she “has decided that as the factual objective of her litigation has now been achieved timeously, she is prepared to withdraw her application.”
16 May 2012: Nomination Day.
16 May 2012: The AGC withdrew its appeal.
26 May 2012: Polling Day for the Hougang by-election.
29 May 2012: The Plaintiff filed a formal application for a mandatory order and declarations.
31 May 2012: The AGC filed an application for the Court to strike-out the Plaintiff’s applications for a mandatory order and declarations.
1 June 2012: The Plaintiff filed a summons for a hearing on the Plaintiff’s application on the legal advice tendered to the Prime Minister (on his legal position on calling by-elections), and to cross-examine the Prime Minister.
5 July 2012: High Court to hear the case.