Updated: When an NCMP Seat is Turned Down

Sign in front of Parliament House, Singapore

Who will be the NCMPs in the 13th Parliament of Singapore? (By Smuconlaw [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via the Wikimedia Commons.)

Read the 17 September 2015 update

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

AS THE DUST SETTLES after the 2015 general election (and I don’t just mean the haze), thoughts now turn to the filling of the Non-constituency Member of Parliament (NCMP) seats in Parliament.

The issue remains relevant as the possibility that the Opposition would capture at least nine parliamentary seats, raised by Jaclyn Neo in a recent post, did not happen. Citizens returned the People’s Action Party (PAP) to power with an increased vote share of 69.9% based on the votes cast in Singapore.

I won’t repeat Jaclyn’s detailed explanation of how the NCMP scheme works, except to say that the number of NCMPs declared by the returning officer after a general election is nine less the number of opposition Members of Parliament (MPs) elected. Since the Workers’ Party (WP) succeeded in retaining the constituencies of Hougang Single Member Constituency (SMC; one parliamentary seat) and Aljunied Group Representation Constituency (GRC; five seats), three NCMPs can be declared elected.

Opposition candidates have priority to take up NCMP seats according to their vote shares, and the following rules:[1]

  • A candidate must poll 15% or more of the votes in a constituency.
  • No more than two candidates from the same GRC, and no more than one candidate from a particular SMC, can be deemed elected as an NCMP.

Based on the election results, the ‘best losers’, all from the WP, were Lee Li Lian (who obtained 48.24% of the votes in Punggol East SMC), Dennis Tan (42.48%; Fengshan SMC), and the team that contested in East Coast GRC – Gerald Giam, Daniel Goh, Mohamed Fairoz Shariff and Leon Perera (39.27%). Ms Lee has said she will reject the NCMP seat.[2]

In this scenario, it would be natural to think that the candidates declared to be NCMPs will be Mr Tan and two members of the East Coast GRC WP team, to be decided among themselves within seven days of being notified by the returning officer (assuming, of course, that none of them also decides not to accept the NCMP seats).[3]

However, according to the law, that is not what happens. It is the returning officer’s duty to declare as elected as NCMPs the best performing unsuccessful opposition candidates. They would include Ms Lee.

She would then have to decline to take the MP’s oath of allegiance at either the first or second parliamentary sitting after the general election. This would then entitle Parliament – if it sees fit – to declare her seat vacant and allocate it to the next eligible opposition candidate according to the priority described above.[4] The crucial point is that the PAP-dominated Parliament has a choice whether or not to do so.

I think it is unlikely the PAP would choose not to fill the vacant seat, as this would be going against its rationale for introducing the NCMP scheme – to ensure a certain number of alternative voices in Parliament. Nonetheless, the WP and Ms Lee have to carefully ponder if Ms Lee should give up the NCMP seat allocated to her, because there is no assurance that the party will be allowed to nominate an alternative NCMP in her place.

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 on 17 September 2015

This issue was picked up by Channel NewsAsia on 13 September, and the blog post quoted in the Lianhe Zaobao on 14 September, in The Straits Times on 15 September, and in the Berita Harian on 16 September 2015.[5] Yesterday, Jaclyn Neo posted a comment pointing out that section 53 of the Parliamentary Elections Act can potentially be interpreted in three ways. The first two ways give Parliament a discretion whether or not to declare the NCMP seat vacant, and differ as to the consequence if Parliament decides to do so. The first way suggests that Parliament can leave the seat vacant, while the second insists that Parliament must go on to declare elected as an NCMP the opposition MP who is next in line. The third way of interpreting section 53 is that the provision requires Parliament to fill the vacant NCMP seat.

After this commentary was posted, the Elections Department issued a statement saying it had been advised by the Attorney-General that Parliament has a choice whether or not to vacate the NCMP seat, and if it does so it is not obliged to fill it – essentially agreeing with Jaclyn’s first interpretation of section 53.[6]

The wording of section 53 itself is unclear, so I had a look at the parliamentary speech given by S Jayakumar, the Minister for Labour and Second Minister for Law and Home Affairs, on 25 July 1984 during the Second Reading of the bill introducing the NCMP scheme, to see if it sheds any light on the issue. Speaking on Prime Minister Lee Kuan Yew’s behalf, he said:[7]

Provision is made, however, for the situation where any of the three persons [later increased to nine] returned as non-constituency Members fails to take his seat. […]

If such a Member fails to take the Oath of Allegiance at the first or second Sitting of Parliament after the General Election, Parliament will have the discretion, by resolution, to declare his seat vacant and to declare that it be filled by the next succeeding candidate in order of priority depending on percentage of votes polled. […]

I should stress that Parliament has a discretion whether it wishes to declare the seat vacant and thus have the seat filled by the next succeeding candidate. It is not under an obligation to do so. This is because Parliament may have good reasons not to so act. For instance, it may conclude that the non-constituency Member has justifiable excuse for not taking the Oath during the first or second Sitting. In such a case, Parliament might refrain from adopting any resolution and permit the non-constituency Member to take the Oath at a future Sitting. [Emphasis added.]

Unfortunately, the speech is not terribly helpful as Jayakumar expressed himself in terms very similar to what section 53(1) states. Although his statement “Parliament has a discretion whether it wishes to declare the seat vacant and thus have the seat filled by the next succeeding candidate” might suggest that any vacant NCMP seat must be filled, he also said that “Parliament will have the discretion, by resolution, to declare his seat vacant and to declare that it be filled”. The latter statement is consistent with either the first or second way section 53 can be interpreted. It does rule out, though, the third way. I think this is in line with how section 53(1) is worded, since the phrase “Parliament may… declare” points to the legislature having a choice. To know if the Attorney-General’s view is correct, we will have to wait for a definitive ruling from the Supreme Court.

The parliamentary speech also indicates that an NCMP’s failure to take the Oath of Allegiance at the first or second sitting of Parliament after a general election does not mean he or she is barred from taking up the seat at a later stage. Jayakumar appeared to suggest that Parliament can decide whether to permit the NCMP to take the Oath. However, there does not seem to be anything in the law authorizing Parliament to make this decision. Thus, it may well be that if Lee Li Lian changes her mind and wishes to take the Oath in a year’s time, Parliament might be bound to allow her to do so.


Notes
1    Parliamentary Elections Act (Cap 218, 2011 Rev Ed) (‘PEA’), section 52.
2    Jonathan Wong, “WP candidates head list for three available NCMP seats“, The Straits Times (General Election Special) (12 September 2015), page 16 (archived here). All the percentages are based on votes cast in Singapore as at the time of writing the overseas votes had not yet been counted.
3    PEA, section 52(3B)(a).
4    PEA, section 53.
5    “Vacated NCMP seat may not be automatically filled“, Channel NewsAsia (13 September 2015); 叶伟强, 李蕙心, 邓玮婷 & 黄小芳, “宪法专家:李丽连若拒绝受委 工人党未必可自行填补非选区议员人选 [Constitutional Law Experts: If Lee Li Lian Rejects Position, the Workers’ Party might not have their Own Choice on the Non-constituency Member of Parliament Candidate]”, Lianhe Zaobao (14 September 2015; archived here), page 4; Walter Sim & Chong Zi Liang, “WP to Decide Soon on whether to Take Up NCMP Seats“, The Straits Times (reproduced on AsiaOne) (15 September 2015; archived here), page A4; Nur Adilah Mahbob, “Pengamat Kecewa Komen Li Lian Tolak Pos NCMP [Analysts Disappointed with Li Lian’s Comment Rejecting NCMP Post]”, Berita Harian (16 September 2015; archived here), page 4.
6    “WP’s Dennis Tan, Leon Perera to be Non-Constituency MPs; Lee Li Lian declines role: WP Offers Member Daniel Goh as Replacement“, Today (16 September 2015; archived here).
7    S Jayakumar (Minister for Labour and Second Minister for Law and Home Affairs), speech during the Second Reading of the Parliamentary Elections (Amendment) Bill, Singapore Parliamentary Debates, Official Report (25 July 1984), volume 44, column 1837.


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3 comments

  1. Pingback: Daily SG: 14 Sep 2015 | The Singapore Daily
  2. Pingback: Must an NCMP Seat Be Filled? | Singapore Public Law
  3. Pingback: jialat. Li Lee Lian don't feel like taking up NCMP seat - Page 27 - www.hardwarezone.com.sg

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