Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU
ON POLLING DAY (Thursday, 6 May 2010) of the general elections in the UK, election officials at some polling stations struggled to cope with a higher-than-usual turnout. There were long queues snaking up to the doors, in some cases with people braving rain. Unfortunately, would-be voters who had joined the queue before the polls closed at 10:00 pm were turned away at that time. In some cases, voters who were already inside the polling station but who had yet to cast their ballots were asked to leave. This led to angry scenes, with some voters even staging sit-ins and refusing to leave polling stations, and claiming that they had been denied their right to vote. (See Gordon Rayner & Martin Beckford, “General Election 2010: Chaos at the polls as thousands denied the right to vote: Results in constituencies all over the country could be challenged today after thousands of people were denied the right to vote“, The Daily Telegraph (7 May 2010).)
Singapore is due for a Presidential election next year, and a general election for Parliament must be held by 2012. Could such a situation happen in Singapore? If so, what does the law say on the matter?
One of the problems faced in the UK was that many voters only came to polling stations after work, causing a crush in the hours leading up to the close of polls at 10:00 pm. This is less likely to happen in Singapore, as Polling Day here is a public holiday (Parliamentary Elections Act, s 35; Presidential Elections Act, s 17).
The law states that polling stations open at 8:00 am and close at 8:00 pm. These times cannot be changed by the Returning Officer unless prior notice has been given in the Government Gazette (which is impossible on Polling Day itself), or if direct recording electronic (DRE) voting machines are used and these malfunction (Parliamentary Elections Act, s 39(3); Presidential Elections Act, s 22(4)). Thus, if you have been standing in a queue outside a polling station but have not been able to get into station by 8:00 pm, no election official has any authority to extend the time for voting.
What happens if you have managed to make your way inside the polling station before 8:00 pm? Well, it depends on whether you have been handed a ballot paper or not. The law states: “No ballot paper shall be delivered to a voter after the hour fixed for the closing of the poll”. However, notwithstanding this, “if at the hour fixed for the closing of the poll there is in the polling station any voter to whom a ballot paper has been delivered, the voter shall be allowed to record his vote” (Parliamentary Elections Act, s 47; the Presidential Elections Act, s 30, is similarly worded). Therefore, if you are already in the polling station and have a ballot paper in hand when the clock strikes eight, you can vote. Otherwise, you can be ushered out of the polling station into the dark empty handed.
Right to vote in Singapore?
That is what the statutes currently say. An interesting question is whether these provisions are consistent with the right to vote that the Government says may be implied from the terms of the Constitution. It is conceivable that one’s right to vote might be infringed if he or she arrived at a polling station and joined a queue, but was unable to vote before the polls closed due to inefficiencies in the way balloting was conducted – for example, if there weren’t enough election officers in the station to deal with voters, or if the distribution of ballot papers was delayed because there was only one copy of the electoral register on the premises to confirm voters’ identities. These were problems that arose during the British elections.
Assuming that such incidents do amount to a breach of the right to vote, this does not necessarily mean that the election in question is invalid. An election judge may only declare the election of a candidate to void if there is misconduct or other circumstances which prevented or may have prevented the majority of electors from electing the candidate or group of candidates whom they preferred, or if a failure to conduct an election according to principles laid down in the law affected the result of the election (Parliamentary Elections Act, ss 90(a) and (b); Presidential Elections Act, ss 71(a) and (b)).
In any case, it remains to be seen whether the courts will infer the existence of a right to vote in the Constitution. The Judiciary and the Executive are independent branches of government, so just because the Executive has expressed a view as to the meaning of the Constitution does not mean that the courts will necessarily adopt it. In the past, Singapore courts have shown reluctance to infer rights into the constitutional text, stating that it is for Parliament to spell them out clearly in the text. For instance, in Rajeevan Edakalavan v Public Prosecutor  1 SLR(R) 10, the appellant argued that he had a right to be informed by the police of his right to counsel, which is guaranteed by Art 9(3) of the Constitution. Disagreeing, the High Court held:
Any proposition to broaden the scope of the rights accorded to the accused should be addressed in the political and legislative arena. The Judiciary, whose duty is to ensure that the intention of Parliament as reflected in the Constitution and other legislation is adhered to, is an inappropriate forum. The Members of Parliament are freely elected by the people of Singapore. They represent the interests of the constituency who entrust them to act fairly, justly and reasonably. The right lies in the people to determine if any law passed [by] Parliament goes against the principles of justice or otherwise. This right, the people exercise through the ballot box. The Judiciary is in no position to determine if a particular piece of legislation is fair or reasonable as what is fair or reasonable is very subjective. If anybody has the right to decide, it is the people of Singapore. The sensitive issues surrounding the scope of fundamental liberties should be raised through our representatives in Parliament who are the ones chosen by us to address our concerns. (Rajeevan at .)
However, this gives rise to a Catch-22 situation as the Government has said it is unnecessary to amend the Constitution to specifically state that Singapore citizens have the right to vote or to explain what the right to vote entails: see, for instance, Chong Wan Yieng (Press Secretary to the Minister for Law), “An accepted right: How the right to vote should be exercised already set out in legislation”, Today (3 March 2009) at 20. What is the status of the right to vote in Singapore if the courts are unwilling to infer its existence from the constitutional text, taking the view that it is Parliament’s job to amend the Constitution if it wishes the courts to enforce the right, and Parliament finds it unnecessary to do so?
A final thought: the single vote of an elector living in a Group Representation Constituency (GRC) has the power to send a cluster of MPs into Parliament, while only one MP is potentially given a seat by the vote of an elector in a Single Member Constituency (SMC). Although the Constitution expressly provides in Art 39A(3) that the GRC scheme cannot be challenged on the basis that it violates equality before the law and equal protection of the law, might it offend a citizen’s right to vote? Assuming, of course, that citizens have such a legally enforceable constitutional right, which is presently by no means certain.