Constitutional interpretation Parliamentary elections

Textualism vs. Purposive Interpretation: Must an NCMP Seat Be Filled?

Dr Jaclyn L Neo
Assistant Professor
Faculty of Law, National University of Singapore

In a recent blogpost, Dr. Jack Lee argued that if an opposition candidate declines to take up an NCMP seat, the PAP-dominated government may not be obliged to offer that seat to the next eligible opposition candidate. This has thrown up a very interesting debate as to the legal obligations of Parliament to fill the NCMP seats. Besides Dr Jack Lee, Professor Thio Li-ann has also been reported as taking the position that there is no legal obligation on Parliament to offer the seat to the next eligible candidate. In contrast, Professor Kevin Tan argues that article 39 of the Constitution, read with section 52 of the Parliamentary Elections Act obliges Parliament to offer the seat. He is quoted as saying that “The seat cannot be left vacant. A combined reading of both provisions makes it clear that Parliament must have nine members who do not form the government.”

Parliament (Source: Singapore Parliament)
Parliament (Source: Singapore Parliament)

There are clearly good legal and policy arguments for and against imposing a legal obligation on Parliament to offer the seat to the next eligible opposition candidate where it had been previously declined. The disagreement stems from differing approaches to statutory and constitutional interpretation.

The statutory provision governing this scenario is section 53 of the Parliamentary Elections Act, which states:

“(1)  Subject to subsection (3), if any non-constituency Member declared to be elected under section 52 fails to take and subscribe before Parliament the Oath of Allegiance under Article 61 of the Constitution 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. (Emphasis added).

The emphasized portions above appears to be where some of the interpretive uncertainty has arisen. Three interpretations are possible:

  1. Parliament may declare the seat vacant and may fill it with the next succeeding candidate. The word may applies specifically to each part of the provision.
  2. Parliament may declare the seat vacant (although it does not have to), but, if it does declare the seat vacant, it must fill it with the next succeeding candidate.
  3. Parliament must declare the seat vacant and it must fill it with the next succeeding candidate.

The first interpretation gives Parliament absolute discretion whether to declare the seat vacant as well as whether to fill it with another candidate. The second interpretation varies this by arguing that if Parliament declares the vacancy, then it must fill that vacancy. It cannot be left empty. [To clarify: Both these interpretations give Parliament the discretion not to fill the seat. Under interpretation #1, Parliament may choose to declare the seat vacant and leave it as that. Under interpretation #2, if Parliament does not want to fill the seat, it may simply choose not to declare it vacant. The end result is the same.]

The third interpretation ignores the word ‘may’ in section 53 but can be justified on a purposive interpretation. An argument can be made that the word “shall” appears in article 39 of the Constitution, and could be read to require Parliament to consist of up to 9 NCMPs (minus elected opposition members) as this is necessary “to ensure the representation in Parliament of a minimum number of Members from a political party or parties not forming the Government”.

True, this may be criticized as stretching the meaning of article 39, in light of the fact that the more specific provision governing this scenario (section 53) uses permissive, rather than mandatory, language. Nonetheless, it is the interpretation that best advances the purpose and intent of the NCMP scheme to introduce some viewpoint plurality into Parliament. As the Minister of Law, K Shanmugam, emphasized during the second reading of the Parliamentary Elections (Amendment) Bill revising the maximum number of NCMPs from six to nine, the NCMP scheme serves two objectives:

“Singapore needs a Government with a clear, strong majority, that can provide good governance in the long-term interests of Singaporeans; and, .. at the same time, there is a legitimate desire amongst Singaporeans to have more diverse views, including Opposition views, articulated in Parliament.”

A Workers Party Rally. The Workers Party candidates are the top losers in GE2015. (Source: New York Times)

Furthermore, it was explained that increasing the number of NCMPs to a maximum of nine is necessary to ensure “a wide variety of views” and that this strengthens Singapore’s political system in the longer term since “[a] group of nine parliamentarians from the Opposition can form a very credible caucus, a base from which they can expand their influence.” It is significant that there was some emphasis placed on there being a total of at least nine opposition parliamentarians.

Thus, if one were to take a textualist approach to section 53, it is highly arguable that Parliament can choose whether to offer a rejected NCMP seat to the next eligible candidate (i.e. interpretation #1 or #2 above). Nonetheless, if one were to adopt a purposive interpretation to section 53, and furthermore contextualise it within the broader constitutional framework, then it is likely that Parliament should be obliged to fill the rejected seat by offering it to the next eligible candidate.

Jaclyn is an Assistant Professor at the NUS Law Faculty where she teaches and researches on constitutional and administrative law and theory.

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