Good faith calls for early by-election

With the sacking of Yaw Shin Leong from the Workers’ Party, announced 15 February 2012, the parliamentary seat of Hougang is now vacant. Prime Minister Lee Hsien-Loong, however, said he “will consider the matter carefully,” when asked the timing of the by-election. Offering a totally disingenuous excuse for a possible delay, he added that “there are many other issues on the national agenda right now”. (Channel NewsAsia, 15 Feb 2012, No fixed time within which by-election must be called: PM Lee, by Joanne Chan)

There are always going to be plenty of issues on the national agenda. Short of war or a huge natural disaster with tens of thousands losing their homes in Hougang, they should offer no excuse against an expeditious holding of a by-election.

It is true that the prime minister holds the discretion when to call a by-election. This stems from Section 24 (1) of the Parliamentary Elections Act, which says:

24(1)  For the purposes of every general election of Members of Parliament, and for the purposes of the election of Members to supply vacancies caused by death, resignation or otherwise, the President shall issue writs under the public seal, addressed to the Returning Officer.

Under our constitution, the president cannot act (i.e. issue a writ of election, in this case) unless he has been so advised by the prime minister, and that is why the matter is in the PM’s hands. However, the word “shall” in the above-cited section indicates not just necessity, but a degree of promptness that gives substance  to the obligatory nature of the requirement.

Consider this by way of illustration: If someone is ordered by a tribunal to pay compensation to another person — “You shall pay Mr Khoo a sum of $10,000 as compensation for medical costs incurred as a result of the assault” — one would expect that the payment should not be delayed over many years. Such delay would seriously degrade the meaning of the order and be akin to contempt. Likewise, if the prime minister continues to drag his feet, he can justifiably be accused of acting ultra-vires the constitution.

Another angle with which to approach this question is that of good faith. Public servants — which a prime minister is — necessarily have discretion over a great many things in the exercise of their functions. However, a whole body of law has grown up that applies to how those decisions are made. It even has a name: Administrative Law. In a nutshell, it requires public decisions to be made in good faith through proper process, taking into account all known valid considerations and arriving at a decision rationally. It guards against arbitrary, capricious and self-serving decisions.

For example, it would be wrong for the defence minister to order all military vehicles to be painted sunflower yellow, on no other basis than his superstitious belief that yellow is his lucky colour. He has the power to order vehicles to be painted a certain colour, but he cannot arrive at a decision that way.

Another example: It would be wrong for a senior town planning official to withhold a building permit when all other conditions have been met, simply because his mother-in-law is upset that the new building would block the view from her kitchen window.

Applying this basis, one can argue that measured against the constitutionally-mandated requirement to hold a by-election, the prime minister cannot delay advising the president to issue a writ of election without a compelling reason that meets the tests of Administrative Law. Frankly, I do not see any such compelling reason on the horizon.

Like many Singaporeans, our gut feel is that Lee is considering dragging his feet until his party stands the best chance of success in the by-election. This is wrong and would be an abuse of the discretion vested in him. It would be partisan and self-serving, not much different from the public official who wants to please his mother-in-law.

Backing up Administrative Law is a process called Judicial Review, under which courts can intervene and inquire into how a decision is made. It can even inquire into excessive delays into making decisions, since to delay is a decision. I will be interested to see if any party will apply for judicial review should Lee sit on his hands for more than a few months. Needless to say, to take this route, plaintiffs must first have confidence in the impartiality of our courts.

Which is another mountain to climb.

27 Responses to “Good faith calls for early by-election”


  1. 1 Voter 17 February 2012 at 22:33

    Dont you get it? The Lees hate elections. For appearances only, they do it for sake of or for veneer of legitimacy. They are hard core believers of heavenly mandate for Mandarins. When hsien loong says there are national issues, he really means it. He likes to get into the big stuff and not be distracted by a mere piece of theatre called elections especially since the oppo, according to him, doesnt add value to parliament. “spore too small to have two parties”. He’s one big spoilt brat who wants to cruise as PM.

    So keep up the pressure because unlike our PM, sporeans love democracy.

    Conversely, he’s power hungry enough to want a clean sweep in parliament and since he took back PP, he probably is now drooling over Hougang. So he’ll bide his time.

    dont let him get away with his high handedness

  2. 2 Serendib 17 February 2012 at 23:10

    Look at the electoral map you have shown. Should the elections dept draw constituency boundaries in such a way as to improve the incumbent govt’s chances of re-election? NO. But we all know that’s not the case. It is partisan and self-serving. But it goes on without impunity. Same thing with the politicization of the publicly-funded PA.

  3. 3 Ziggy 18 February 2012 at 00:20

    Hougang results for last 5 elections:

    1991 (21,476 votes)

    WP : 10,621 (52.82 %)

    PAP : 9,487 (47.18%)

    ————————————-

    1997 (24,423 votes)

    WP : 13,458 (58.02 %)

    PAP : 9,736 (41.98%)

    ————————————-

    2001 (23,320 votes)

    WP : 12,070 (54.98%)

    PAP : 9,882 (45.02%)

    ————————————-

    2006 (23,759 votes)

    WP : 13,989 (62.74%)

    PAP : 8,308 (37.26%)

    ————————————-

    2011 (24,560 votes)

    WP : 14,850 (64.80%)

    PAP : 8,065 (35.20%)

    Source: http://www.elections.gov.sg/elections_past_parliamentary.html

    The PAP has never ever managed to get more than 10,00 votes(in fact their vote share has been eroded pretty significantly since 1991). If the WP were to face voter backlash, I would guess we would see at worst a result similar to 2001.

    Pinky does not stand a chance in hell to win back Hougang(and he knows it which is why he’s been throwing pathetically feeble cheap shots at WP).

  4. 4 LT 18 February 2012 at 00:36

    Alex, you are a star! Please continue your good work!

    I am a Big fan.

  5. 5 yuen 18 February 2012 at 02:01

    > at worst a result similar to 2001.

    that assumes only WP and PAP take part; if Tan Jee say stands as an independent and NSP fields Nicole Seah, they might lose their deposit but could cut into WP’s vote enough to let PAP eke out a win, especially if PAP manage to persuade George Yeo to stand; I know little about any of these people’s intentions, but YB might like to write another article analyzing the likelihood of these possibilities actually occurring; I would only put up the follow suggestions

    In the presidential election TJS received 25% nation wide; his Hougang vote was probably slightly higher because of the larger portion of anti-PAP voters there; he would therefore enjoy some name recognition there, and probably would win a portion of his previous support

    NSP has been nosing around now and then in Hougang, and Nicole Seah is an effective campaigner; however, NSP’s main objective is to warn WP against trying to muscle into past NSP territories like Marine Parade and Whampoe in the next election; whether it has to achieve this by actually causing 3-corner fights or merely talking about it is unknown

    George Yeo has embarked on a business career, but retains his membership on PAP CEC, thus keeping open his option of returning to politics; Desmond Choo stood in Hougang only once and it might be in his interest to stand aside and join some GRC team instead; the impact of Choo Wei Khiang’s legal case on Desmond Choo is unknown

  6. 6 y.h cheong 18 February 2012 at 02:53

    It is clear to me that you are not a lawyer versed in constitution law.With due respect to those constitutiion law experts who say that the PM has the unfettered discretion whether or not to hold a by-election I am of the view that they are mistaken. Article 49 of the Constitution provides that a vacancy shall be filled. Courts have held that when an act or thing is required by law or contract to be done it shall be done as soon as reasonably practical. This rule of interpretation is embodied in section52 of the Interpretation Act .Whether the President needs to seek the advice of the Cabinet is immaterial though I am of the view that he need not for reasons that I need not elaborate at this juncture. Therefore the President can only withhold issuing the Writ of Election for such time as is required to update the Electoral Register and othe matters necessary to be done to get the by-election going.

  7. 7 Chris 18 February 2012 at 03:04

    It is interesting that the PAP Prime Minister is tasked with moving the writ for a by-election in Singapore. Here in the United Kingdom the party to which the former-MP belonged to moves the writ. I don’t know what happens if an independent or whipless MP resigns or dies, but I suspect that the Speaker then moves the writ him/herself.

    It might be worthwhile to propose a change in the law there, not that it would pass but it’s always a good talking point.

  8. 8 Rabbit 18 February 2012 at 04:25

    If LHL said he has no national agenda on hand, than I am worried whether he is worth his $2.2m leadership.

    Hougang is not outside Singapore and should apply equal and fair jurisdiction regardless of their party affiliation. Main stream media has lost its credibility for adopting less than equilibrium report on Yaw’s affair compared to those red-handed top civil servants caught on corruption cases. HDB/PA has lost its objective known to many for being partisan to the ruling party. The last integrity left in Singapore now lies with the courts and such integrity will be eroded if it remains silent over PM’s deliberate delay to call for a by-election. If that happened, Singaporeans have lost its last straw of defense on equal rights, insulted people intelligence across the board. Thereafter the only existence left is motivated by the chance to bring PAP to task, every 5 years, for moral reason among others.

    Whether PAP can win back Hougang like China trying to take back Taiwan is beside the point. As long as hougang remains vacant, PAP wound will never heal when people began to lose faith and question LHL unjust leadership. If being arrogant has cost more than enough votes to shame LHL for an open apology, PAP have better learned from their unflattering episode. Thus, my advice to LHL is to clear his road block by calling for by-election earlier than later so that he can move on smoothly until the next election is called. However, if he chooses to see an anti-pap rehearsal at his preferential later timing, than I must say he is pushing the angry avalanche too far.

  9. 9 Anon 18 February 2012 at 07:40

    Its not just dragging his feet for the “right” time. Its also to teach Hougang residents a lesson — you voted for a lemon, see .. no MP for you, I want you to stew in your consequences. Its also a message intended for all Singaporeans.

    From a WP’s strategic standpoint, I hope LHL drags his feet. Over time, this will then snowball from being just a WP screw-up, to a PAP problem for having played politics. I also note that WP’s team (Sylvia etc) has stepped in to fill any vacuum. This will give WP time to mend fences with the ground at Hougang. I say, let this problem morph from being a WP screw-up to a PAP over-reach.

  10. 10 Tan wa lau 18 February 2012 at 08:02

    To me it is just not very heatlhy to run Singapore like family business with dad controlling GLC and wife tenasek

  11. 11 YNWA 18 February 2012 at 11:10

    Hi Alex, I would suggest you to remove the last 2 sentences in the article, before it becomes a big issue for you-know-who.

    • 12 yawningbread 18 February 2012 at 15:17

      Why? I’m just saying that there is a widespread perception that judicial impartiality is an issue in Singapore, and that overcoming it is a mountain to climb. Surely that there is such a perception is a fact. None other the Chief Justice himself devoted a long speech trying to explain himself and the courts against such accusations. The very fact that he felt it necessary to explain is acknowledgement that the perception exists. Thus I am saying no more than what the Chief Justice is in effect admitting.

      See Straits Times, 16 Feb 2012: Judges do justice, not politics: Chief Justice Chan Sek Keong, by Selena Lum

      QUOTE:
      Chief Justice Chan Sek Keong on Wednesday responded to critics who charge that judges here make decisions that tend to favour the Government.

      [snip]

      He cited numerous cases, including the contempt of court cases of American academic Christopher Lingle and British author Alan Shadrake, and addressed the criticism of court rulings regarding the judicial review of the Internal Security Act (ISA).

      CJ Chan said it was indeed the function of academics to criticise if a judge had decided a case wrongly as a result of ignorance of the law, or had applied the wrong law, or made wrong findings of fact.

      But it is an entirely different thing to accuse the courts of having the political view of the Government, and allowing these views to colour their decisions in cases involving the Government, he said.

      ENDQUOTE

      • 13 Chanel 20 February 2012 at 10:07

        The climate of fear instilled in us by PAP is so strong that S’poreans self-censor.

        Doubts over the impartiality of our courts may not just a perception issue. MIW (please excuse my self-censorship!) has won every single defamation suit in S’pore, except for a temporary setback many years ago. For whatever reason, that person is no longer a judge.

  12. 14 Go Chuan 18 February 2012 at 11:12

    This is the WP problem, not the PM problem.

    • 15 notpleased 18 February 2012 at 18:35

      It is myopic to make such comment. Right from the start, it was YSL problem, not WP problem. WP delayed the sentence so as to give him time to explain but he failed to do it. I am proud of WP to get rid of one bad apple to save the basket of apples. Finally, moral values superseded GDP.

      However, on the other hand, we have had enough boo-boos from “a few good men” and those boo-boos affected us, citizens of Singapore yet nothing was done, no sentences passed.

      Now, delaying the BE will become the PM problem.

      Well done, AA. I was a little disappointed when there was no posting after the letter. Now, I see HOPE!

  13. 16 Carey 18 February 2012 at 13:01

    Here’s a little known case.
    After GE06, SDP’s Chee Siok Chin filed a complaint to the courts to declare the Gad null and void as it had allegedly violated the constitution by way of gerrymandering, handouts etc.
    Needless to say, the courts dismissed it.
    Stop the dreaming. We are a sham democracy.

  14. 17 Thor 18 February 2012 at 15:17

    It is encouraging to see yawning bread bounce back from the intimidation of a legal letter. We shall not be cowed. It will take time, but democracy will come.

    • 18 Anonymous 18 February 2012 at 16:02

      Sammyboy forum seems to be Singapore’s version of wikileaks on politics. I am quite amazed that the perpertrator of the rumour is standing by his allegations and challenging the law minister to come clean despite the threat of a defamation lawsuit.

  15. 19 Dr Tan Tai Wei 18 February 2012 at 19:12

    Sylvia Lim stepped into Yaw’s shoes? Then this implies that Hougang elected WP. Otherwise, what is her mandate to represent it? Then, no need for national by-election, nay, wrong to have one, as WP still exists. Just a vote by Hougang for another WP candidate is called for. However, if it’s assumed that constituents elected individual persons to be MPs, and not the parties they belong to, then Hougang has no representative in Parliament now. Sylvia has no business to be there, and PM must asap call the by-election.
    Seeme that election rules need to change in order to accomodate these complications?

  16. 20 dolphin81 19 February 2012 at 11:20

    The PAP is not too bothered about HG for the time being. It is more interested in TP GRC (when will LKY die?)

    It wants to avoid HG by-election not becos of the expected loss but becos it wants to avoid a by-election precedent in TP GRC.

    LHL can of course insist no TP GRC by-election but it can be politically unwise.

    Ironically, LHL is only likely to call for HG by-election if it can hold TP GRC by-election at the same time.

    LKY expected demise can help to swing the vote in PAP’s favour.

    • 21 yawningbread 19 February 2012 at 12:09

      There are different rules for single-member constituencies such as Hougang and group representation constituencies such as Tanjong Pagar. Section 24(2A) of the Parliamentary Elections Act says that “In respect of any group representation constituency, no writ [of election] shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament. So the question of a by-election in Hougang setting a precedent for Tanjong Pagar or other GRCs does not arise.

      However, I wonder if Section 24(2A) itself might be unconstitutional. An earlier comment pointed to Section 49(1) of the Constitution, which says: “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.” This constitutional provision merely says Parliament is free to prescribe the MANNER of by-elections; it doesn’t say Parliament can remove the need for a by-election in GRCs.

  17. 22 y.h cheong 19 February 2012 at 19:35

    Yawning bread, you are finally getting the point. The substantive provision is Article 49 not section 24 of the Parliamentary Elections Act. Article 49 makes it plain that the filling of vacancies is to be done in accordance with the procedure provided by law,namely the Parliamentary Elections Act. You raise the possibility that section 24 may be unconsittutional in that it is inconsistent with the mandatory provision of Article 49. In my view this is correct. A great opportunity to test this argument in the Courts was missed due to the untimely death of Mr. J.B. Jeyaretnam wh represented a constituent of the late Dr. Balaji who took out proceedings in the High Court. The action was not proceede with as the Plaintiff could not get anyone to take over from The late Mr. Jeyaretnam.For your information Mr. Jeyaratnam had sought my opinion 3 days before he died.

  18. 23 John Tan 20 February 2012 at 21:04

    Actually I think by many things on the national agenda, LHL is merely referring to the budget and the ensuing parliamentary debates on the committee of supply which is a very major thing for the government. It’s a valid reason not to hold a by-election immediately but he should have just spelled it out clearly and propose a timeline. Instead, he gave the impression that he’s playing politics and this does not bode well for the PAP’s image.

  19. 24 Hougang Resident 21 February 2012 at 12:04

    I am sure the PM will call for a election as soon as possible. This is a matter of grave concern, not because the WP has let down the people of Hougang but for actually empowering them to select the leader of their choice when their present choice was found lacking by the party leadership. To sacrifice a opposition seat and that it held on for more than 20 years speaks greatly of the transparency and integrity of the WP . The ruling party has selectively called for by-election as pointed out by Mr Low in his rebuttal and has also selectively withheld by-election, so its credibility with the people I beleive is very low. Most people in Hougang are saying that they still support the WP and thus not calling for one would be seen as running scared by the elite leaders or hiding behind the law. However my greatest fear is that like the Presidential election wannabe leaders from friendly opposition parties or individuals will give PAP the edge to capture Hougang.

  20. 25 Robox 22 February 2012 at 09:45

    One of the reasons for my own interest in any impending by-election in Hougang is to test a certain theory that had been swirling around in the dominant opposition circles that GRCs are unnecessary on the basis that the PAP’s justification for GRCs – that minority race representation must be guaranteed – is a moot point. Singaporeans, according to this theory, are so pure, virginal and virtuous that they do not vote along racial lines, and minority race candidates can always be assured that they will be elected purely on the basis of merit. (Kenneth Jeyaratnam: please take note.)

    Even the WP subscribes to this view.

    But, ironically, it is even the WP that believes in this theory that the same electorate has thus far been so untainted by those foreign ills like racism, that has only ever fielded a Teochew-speaking candidate in Hougang. Surely, for such an electorate – according to opposition theory – if race does not matter, then neither would the language that the candidate can speak. I’m quite certain that an MP’s services, even in Hougang, is not mostly delivered in Teochew.

    In the spirit of the above, I am polling readers here for who they would prefer as a candidate in a by-election in Hougang. (I take that readers here and elsewhere don’t believe that Hougang belongs to the WP,)

    Should it be the SDP’s Vincent Wijeysingha, James Gomez, or another SDP candidate at GE2011 like Sadasivam Veriyah?

    Oh, but the SDP has already stated that it will not contest this by-election.

    Scratch that.

    Then, what about Kenneth Jeyaratnam who believes in the purity of thought that he claims exists in the Singapore population? The RP, after all, has not made a decision on contesting this by-election.

    Or better still, what about the NSP’s Jeisilan Sivalingam – the blackest, and the least Christian (ie. the least “white”) of the blacks, not too different from the SDP’s Sadasivam Veriyah except for his party’s decision?

    But for those who believe that only the WP can win back Hougang, why not L. Somasundaram, the WP’s token Indian candidate fielded in Moulmein-Kallang GRC?

    I, personally, vote for either L. Somasundaram or Jeisilan Sivalingam because I know they, among all the candidates I mentioned above, will defintely lose in a one-to-one contest against an ethnic Chinese candidate from the PAP, perhaps even a Teochew-speaking one.

    I vote for an end to hypocrisy.

    • 26 Poker Player 22 February 2012 at 11:16

      Myself I tested another theory. Skin color matters no more that hair curliness if you don’t tell children about the difference.

      I did just that to my daughter. When she was old enough to watch movies, she happened to watch one with me: “Men of Honor”. She couldn’t tell why the protagonist was persecuted and why. When I told her, she was flabbergasted, the experiment ended and she found out something about the world.

      My point is – blame parents.

  21. 27 The Pariah 22 February 2012 at 12:16

    1. THE CONSTITUTION: Full of yawning chasms but none so blind as those who have eyes that do not see. NMPs Thio Li-Ann and Loo Choon Yong tried to close this by-election hole in Parliament in Aug 2008 but failed. So our dear PM is invoking his unfettered “discretion”. And what is our dear President saying to our equally dear PM over his weekly tea sessions?

    2. JUDICIAL REVIEW: The Chief Justice has the right of judicial review at any time. But in our 47 years of nationhood, it has never been invoked even once. Why would it be invoked now? Just as mainstream media’s publication licence is renewable annually, so too is any Supreme Court Judge’s re-appointment after age 65. CJ is going to be 75 years old and, happily, he still rocks – but not likely the boat!


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