Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU
IT HAS BEEN ANNOUNCED that nomination day for the by-election in Hougang Single Member Constituency will be on 16 May 2012, and if there is a contested election, polling day will be on 26 May. This ten-day period is the shortest permitted by the Parliamentary Elections Act (‘PEA’), and means a nine-day campaigning period (no campaigning may take place on ‘cooling-off day’, the eve of polling day).
The Workers’ Party has confirmed it will be seeking to hold on to this constituency that it won in the 2011 general election. Since the National Solidarity Party, Singapore Democratic Party and Singapore People’s Party have said they do not intend to take part, attention turns to the identity of the candidate that the WP will field against the People’s Action Party‘s candidate.
The WP could pick a new candidate, or one of its existing Non-constituency Members of Parliament (NCMPs). It might even field one of its elected MPs from Aljunied Group Representation Constituency (GRC).
I mentioned in a previous post that Article 46(2A) of the Constitution seems to allow NCMPs to contest by-elections without relinquishing their seats. Thus, it appears that an NCMP who unsuccessfully contests a by-election may resume his or her Parliamentary seat. The WP currently has two NCMPs in Parliament: Gerald Giam and Yee Jenn Jong.
Low Thia Khiang as a candidate?
There has been some buzz about whether WP Secretary-General Low Thia Khiang might himself stand as a candidate. Low was MP for Hougang for nearly 20 years between 1991 and 2011 until he was elected to Parliament for Aljunied GRC in the recent general election, so he is a familiar face to Hougang voters.
Curiously, the law does not seem entirely clear as to whether Low would need to resign his Parliamentary seat in order to be a candidate in the by-election. Section 27(1) of the PEA states that “[a]ny person eligible for election as a Member of Parliament in accordance with the provisions of the Constitution may be nominated as a candidate for election”, and Articles 44(2) and 45 of the Constitution, which set out the qualifications and disqualifications for being an MP, do not expressly state that a person is not qualified to stand for election if he or she is already an MP.
Article 47, entitled “Provision against double membership”, is significant. It reads: “A person shall not be at the same time a Member of Parliament for more than one constituency.” One possible interpretation of the Article is that sitting MPs must resign in order to stand in a by-election, since failing to do so might result in them holding double membership of the House.
However, the clause does not expressly require a resignation, because until that MP is successfully elected in the by-election, he or she remains an MP of only one constituency. Thus, an alternative interpretation of Article 47 is that MPs only have to resign from one of the constituencies to which they have been elected at the point when they are elected to a second constituency.
This raises the intriguing possibility that if one of the Aljunied GRC MPs – such as Low – stood in the by-election without resigning his or her Parliamentary seat and was unsuccessful on polling day, he or she might be able to continue representing Aljunied afterwards.
Filling of vacancies in GRCs
If an Aljunied MP does stand for election in Hougang successfully, does the resulting vacancy in Aljunied need to be filled? The answer is apparently “no”, because section 24(2A) of the PEA provides that a writ of election is only to be issued to fill a vacancy arising in a GRC if all the MPs for that constituency have vacated their Parliamentary seats. The constitutionality of this provision was challenged in an application filed in 2008 by J B Jeyaretnam on behalf of an elector dissatisfied with the fact that no by-election was held in Jurong GRC following the death of Dr Ong Chit Chung. However, the court did not get an opportunity to express its view on the matter as the application was withdrawn following Jeyaretnam’s own death.
The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the School of Law, Singapore Management University.
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