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.
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.
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”) 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.
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”. 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.”
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.