Shock Resignation of Speaker Michael Palmer – Another By-election in the Offing?

Parliament House photographed in August 2010

Parliament House, Singapore, photographed in August 2010. (Photograph by Smuconlaw [CC-BY-SA-3.0], via the Wikimedia Commons.)

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

THE SHOCK RESIGNATION of Michael Palmer as Speaker of Parliament, Member of Parliament for Punggol East Single Member Constituency (SMC), and member of the ruling People’s Action Party (PAP) due to a personal indiscretion has once again raised the intriguing possibility that a by-election may be called.

Things would have been different if Punggol East had been a Group Representation Constituency (GRC). No by-election may be called in a GRC unless all the MPs representing that constituency vacate their seats.[1]

As we now know well from the resignation of Yaw Shin Leong of the Workers’ Party, which led to a by-election in May 2012, the Constitution provides that an MP’s parliamentary seat is vacated when he or she has been expelled from the political party for which he or she stood in an election. In addition, vacation of seats also occurs when MPs cease to be members of, or resign from, their political parties; or resign their seats.[2]

Article 49(1) of the Constitution deals with the filling of vacant seats:

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.

The High Court ruled in Vellama d/o Marie Muthu v Attorney-General that this provision does not place an obligation on the Government to hold a by-election. Rather, the Prime Minister has a discretion whether or not to call a by-election, and if he does decide to call one, exactly when it will be held. PM Lee Hsien Loong reiterated this point in a statement on Palmer’s resignation: “The Constitution does not require me to call a by-election within any fixed timeframe. I will carefully consider whether to call a by-election in Punggol East and, if so, when. I assure Singaporeans that I will make my decision based on what is best for the constituents of Punggol East and the country.” If a by-election is called, it is unlikely to take place before next year’s budget is passed. The Vellama judgment has been appealed to the Court of Appeal, and will most likely be heard next year.

I received a message posing an interesting question: assuming a by-election is called and an opposition candidate is successful, what happens to the existing Non-constituency Members of Parliament (NCMPs)? The Parliamentary Elections Act (“PEA”)[3] provides that the number of NCMPs appointed after a general election is nine less the number of opposition candidates elected to Parliament, provided certain conditions are met. We currently have a full complement of three NCMPs as there are six opposition MPs in Parliament. If the PAP loses Punggol East SMC to an opposition party, increasing the number of opposition MPs to seven, does it mean that either Lina Loh, Gerald Giam or Yee Jenn Jong must give up his or her seat to maintain the total number of opposition MPs and NCMPs at nine?

The answer is no. Neither the Constitution nor the PEA requires this. NCMPs vacate their seats under the same circumstances as elected MPs, and the only situation mentioned by the Constitution which does not apply to elected MPs is when an NCMP is subsequently elected as an MP for any constituency.[4]

Speaker’s duties

As for who will carry out the Speaker’s role on an interim basis, Article 43 of the Constitution states:

The functions conferred by this Constitution upon the Speaker shall, if there is no person holding the office of Speaker…, be performed by a Deputy Speaker… .

There are presently two Deputy Speakers, Charles Chong and Seah Kian Peng. It has been announced that Chong will serve as Acting Speaker until a new Speaker is appointed. That will be the first item on the agenda when Parliament next sits, as Article 40(1) states that “whenever the office of Speaker is vacant otherwise than by reason of a dissolution of Parliament, [Parliament] shall not transact any business other than the election of a person to fill that office”.

The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the School of Law, Singapore Management University.


Update – 16 December 2012

I mentioned in my post that “the only situation mentioned by the Constitution which does not apply to elected MPs is when an NCMP is subsequently elected as an MP for any constituency”. Strictly speaking, this is correct. However, Article 49(2)(a) of the Constitution says “The Legislature may by law provide for the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46”. As I wrote in response to a comment below, section 53 of the Parliamentary Elections Act states that if an NCMP who has been declared to be elected “fails to take and subscribe before Parliament the Oath of Allegiance… at the first or second sitting of Parliament during its first session after the general election, Parliament may by resolution declare that his seat has become vacant and that it be filled by the next succeeding candidate at the general election in the order of priority as determined in accordance with section 52(2) from among those candidates who are eligible to be elected as non-constituency Members and have not been so elected”.

I remarked that this is a rather strange provision, and wondered why Parliament thought that there might be people declared elected as NCMPs after a general election who suddenly change their minds and refuse to take the Oath of Allegiance.

As for the appointment of a Speaker of Parliament, it is interesting to note that he or she does not actually have to be an MP, so long as the person is “qualified for election as a Member of Parliament”.[5] Sir George Oehlers who was Speaker of Singapore’s Legislative Assembly from 1955 to 1963, and Punch Coomaraswamy who was Speaker of Parliament from 1966 to 1970, were not MPs, while A.P. Rajah (Speaker from 1964 to 1966) had been unsuccessful in retaining his seat at the 1963 general election. However, it seems unlikely that someone who is not an MP will be appointed. Deputy Prime Minister Teo Chee Hean said on 12 December: “That is provided for in the law, but we have not had that for many years.”[6]


Notes
1    Parliamentary Elections Act (Cap 218, 2011 Rev Ed), section 24(2A).
2    Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint), Articles 46(2)(b) and (c).
3    See note 1.
4    Constitution, Article 46(2A).
5    Constitution, Article 40(2).
6    Leonard Lim & Chia Yan Min, “Several names suggested for Speaker role: Retired ministers, office-holders and lawyer-MPs among contenders”, The Straits Times (14 December 2012) at page A3.


You may reproduce this article unchanged on your website provided that you add the statement “© 2012 Jack Tsen-Ta Lee. First published at Singaporepubliclaw.com, and used with permission.”, and a trackback or link to this page.

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9 comments

  1. Pingback: Daily SG: 13 Dec 2012 | The Singapore Daily
  2. Damien

    If I understand it correctly, the Prime Minister has full discretion whether and when to call a by-election when an MP’s seat is vacated. Does this mean that the PM can effectively put-off calling a by-election until the next dissolution of parliament? And if that is indeed the implication, does this then mean that the PM has unlimited discretion over the matter, in contradiction of the Chng Suan Tze principle that unlimited executive power is contrary to the rule of law, especially since the residents are, in this case, deprived of a Parliamentary representative.

    • jacklee

      Yes, that would appear to be the case. The Vellama case is being appealed to the Court of Appeal, so it will be interesting to see if our highest court approves the High Court’s ruling on the matter.

      The Court of Appeal’s statement in Chng Suan Tze v Minister for Home Affairs was a general one. In subsequent cases, the Court has stated that the degree to which the courts can exercise judicial review depends on the subject matter. Thus, where actions and decisions by people holding high constitutional office are concerned, the scope for judicial review is quite narrow. For instance, the power of clemency (Yong Vui Kong v AG) and prosecutorial discretion (Ramalingam s/o Ravinthran v AG) may only be challenged on the basis of bad faith or unconstitutionality.

      As for the Government’s views on the meaning of representative democracy in Singapore and its implications for the filling of parliamentary vacancies, see http://en.wikipedia.org/wiki/Representative_democracy_in_Singapore (an article written under the SMU Constitutional and Administrative Law Wikipedia Project).

  3. KA

    Mr Yaw Shin Leong did not resign, but was expelled (paragraph 3). Could Prof Lee provide his views on Article 49(2)(a) where it says “The Legislature may by law provide for the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;” please ?

    • jacklee

      As far as I am aware, the only situation that the Legislature has provided for is stated in section 53 of the Parliamentary Elections Act. This states that if an NCMP who has been declared to be elected “fails to take and subscribe before Parliament the Oath of Allegiance… at the first or second sitting of Parliament during its first session after the general election, Parliament may by resolution declare that his seat has become vacant and that it be filled by the next succeeding candidate at the general election in the order of priority as determined in accordance with section 52(2) from among those candidates who are eligible to be elected as non-constituency Members and have not been so elected”.

      This is a rather strange provision. I wonder why Parliament thought that there might be people declared elected as NCMPs after a general election who suddenly change their minds and refuse to take the Oath of Allegiance.

      • KA

        > I wonder why Parliament thought that there might be people declared elected as NCMPs after a general election who suddenly change their minds and refuse to take the Oath of Allegiance.
        It can happen maybe because the central executive committee of the political party who is offered with the NCMP seat decided to take up, but the individual had a different mind.
        Prof Lee, do you think it is possible if the ruling party make a specific legislation this time, to make one of the current 3 NCMP vacate his/her seat, given that there is a possibility that there will be more than 9 opposition MPs if an opposition candidate win the Punggol East seat ?

      • jacklee

        Yes, I guess that’s possible, though you’d think that the opposition party and its candidate would make up their minds once and for all whether to accept or decline the NCMP seat.

        Regarding your question, anything’s possible but it seems unlikely to me that Parliament will amend the law just to maintain the number of opposition MPs and NCMPs at nine. The scenario mentioned in my post of Punggol East falling to the opposition in a by-election is likely to happen rarely, so Parliament may not think it necessary to make changes to the law just to deal with it.

    • jacklee

      I have come across some of these postings on TRE before, but have not read them in detail. The author has clearly been very diligently studying the 1963 State Constitution of Singapore and the present Constitution. Looking at the web page that you mentioned, though, I’m afraid his views seem to be based on a misconception that all constitutional amendments are only legal if they are approved at a national referendum. This is not a requirement for amending most of the provisions in the Constitution. Article 5(1) merely states: “Subject to this Article and Article 8, the provisions of this Constitution may be amended by a law enacted by the Legislature.” Article 5(2) goes on to specify that a constitutional amendment bill is only valid if it is supported by at least two-thirds of all the elected MPs during its Second and Third Readings in Parliament.

      We have only ever had one referendum in Singapore – in 1962. The people of Singapore were asked to choose the terms of the country’s merger with Malaysia: see http://en.wikipedia.org/wiki/Singaporean_national_referendum,_1962. Correct me if I’m wrong, but I don’t believe the people voted to approve the terms of the 1963 State Constitution of Singapore. Therefore, I don’t think it is correct to claim that the 1963 State Constitution is somehow special because it was approved by the people.

      At present, the only situation in which a national referendum is required is if the Government wishes to “surrender or transfer, either wholly or in part, … the sovereignty of the Republic of Singapore as an independent nation, whether by way of merger or incorporation with any other sovereign state or with any Federation, Confederation, country or territory or in any other manner whatsoever” or to relinquish control over the Singapore Police Force or the Singapore Armed Forces: see Articles 6 and 8. Article 5(2A) also envisages a referendum in some situations, but as this provision is not legally in force yet I won’t discuss it here.

      Moreover, according to the general understanding of most scholars of the Singapore Constitution, it is not possible for a new constitutional amendment to be regarded as inconsistent with the existing text of the Constitution. If this was the case, then the Constitution could never be amended, since any proposed change to the existing constitutional text is necessarily inconsistent with it. However, it is clear that Article 5 permits Parliament to pass laws amending the Constitution. This apparent paradox is resolved by applying the doctrine that Parliament exercises two different types of lawmaking power. When it is passing ordinary laws, it is said to exercise “legislative power”. Article 4 provides that laws passed using legislative power that are inconsistent with the Constitution are void to the extent of the inconsistency. However, when Parliament is passing constitutional amendments, it is exercising “constituent power” (in other words, the power to create or change the Constitution). Constitutional amendment bills enacted using Parliament’s constituent power cannot be challenged on the ground that they are inconsistent with the unamended constitutional text.

      One other argument that has been tried before is that the Constitution has certain basic features or a basic structure that cannot be changed, even by Parliament. Therefore, if Parliament introduces a constitutional amendment bill that is inconsistent with some aspect of the Constitution’s basic structure, the bill is invalid. However, this argument was attempted in the case of Teo Soh Lung v Minister for Home Affairs in 1989 and rejected by the High Court. Thus, the basic features or basic structure doctrine does not apply in Singapore. When the Teo Soh Lung case was appealed, the Court of Appeal said it was not necessary for it to decide whether the doctrine applies in Singapore or not as it could deal with the case on other grounds. Therefore, our highest court has not yet expressed a concluded view on the matter. Until it does so, the High Court ruling represents the law in Singapore.

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