FEB 20 — If Parliament eventually determines that the Hougang seat has been vacated with the expulsion of Mr Yaw Shin Leong from the Workers’ Party (WP), the spotlight will shift to Prime Minister Lee Hsien Loong.
Under the Parliamentary Elections Act, the President issues an election writ stipulating when a by-election is to be held. But it is the Prime Minister who so advises the President.
When asked last Wednesday, PM Lee said he would consider carefully “whether and when to hold a by-election in Hougang”. This appears to suggest that a by-election need not be held in Hougang.
There is no obligation under the Constitution to hold a by-election within a specific time-frame. In 2008, PM Lee told Parliament that the timing of one “is the prerogative of the PM. He has full discretion and he is not obliged to call a by-election within any fixed timeline”.
While the Prime Minister has the prerogative on the timing, I would argue that this does not extend to his having an unfettered discretion to delay the calling of a by-election indefinitely. In most instances, it has to be called within a reasonable time, or certainly without an inordinate delay. In short, the “default” position should be that a by-election should be automatic, although there is no hard and fast rule on the timing.
Government should state reasons
There may be three reasons why a by-election may not be called. This could be when an MP switches political party, or when Parliament’s term is coming to a close within the next 12 to 18 months, or if there is a national crisis. None of them is pertinent at this point in time.
By-elections have been called in the past even though the General Election had taken place recently. For instance, by-elections in 1967, 1968, 1977, 1981 and 1992 were called between six and 16 months prior to or after a General Election in 1968, 1976, 1980 and 1991.
Delaying the calling of a by-election to the point of not calling it would, in my view, not be in accord with the duty of due process. It would, arguably, constitute an exercise of discretion for which a legal challenge can be mounted. The fact that the Constitution is silent on when a by-election should be called does not mean one need not be called.
In any case, if the Government decides to delay or not to hold a by-election in Hougang, the Government should state its reasons.
In November 1987, the Government explained why a by-election was not conducted in both Anson and Geylang West: It was contemplating introducing a Bill to form town councils in which some boundaries might be re-delineated, including the vacated seats of Anson and Geylang West. (Eventually, the GE was held on Sept 3, 1988.)
Stand-in MP not the same
There are still more than 4½ years to the life of the current Parliament. Hougang voters should not be deprived of having their elected representative in the House. Although the WP’s five MPs in the Adjacent Aljunied GRC can cover Hougang, that is not ideal. Let Hougang residents decide how they would like to hold the WP to account in light of the recent events.
PM Lee hinted at one consideration which he will take into account: “There are many other issues on the national agenda right now.” Granted.
But will a by-election involving only about 25,000 voters be a massive distraction nationally?
Of course, some Hougang voters and Singaporeans generally may choose to view the by-election not just as a localised matter but a referendum on the PAP Government’s performance since May 2011. This should not stand in the way of holding a by-election.
More importantly, the cardinal principle of representation is crucial: A stand-in MP is not the same as an MP for whom the majority had voted. Not calling a by-election would undermine the importance of representation in our maturing parliamentary democracy.
Our electoral system must endeavour to be inclusive and representative in tandem with the growing democratic aspirations. Doing so can only increase Singaporeans’ civic participation and ownership of governmental processes.
Should WP field NCMP?
Assuming a by-election is called, should the WP field in Hougang one of its two NCMPs?
It appears that an NCMP need not vacate his seat to contest in a by-election. Article 46(2A) of the Constitution provides that an NCMP shall vacate his seat “if he is subsequently elected as a Member of Parliament for any constituency”. However, the law is not so clear on whether a vacated NCMP seat has to be filled.
Given the legal uncertainty, it may work better for the WP to field a candidate who is not in Parliament. Moreover, this would enable the WP, should it prove victorious in Hougang, to maintain its full complement of eight representatives in Parliament. — Today
* Eugene K B Tan is assistant professor of law at the Singapore Management University School of Law, and a Nominated Member of Parliament.
* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.