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.