Marcus Teo is a Teaching Assistant at the Faculty of Law, National University of Singapore, where he teaches constitutional & administrative law and the Singapore legal system. His research interests include constitutional & administrative law and private international law. Marcus is also an Advocate and Solicitor of the Supreme Court of Singapore. Marcus is grateful to Kevin Y.L. Tan for his advice and comments.
The right to vote in free and fair elections is central to democratic government. The COVID-19 pandemic, however, poses significant challenges for states holding parliamentary elections: governments are torn between holding elections within acceptable time-frames and ensuring that the spread of COVID-19 is not further exacerbated by the physical proximity that election activities will undoubtedly require. Jurisdictions such as Australia and the United Kingdom have delayed elections indefinitely or for extended periods; others such as South Korea and Hong Kong have proceeded or will proceed with elections on schedule, but with special arrangements meant to ensure voter safety.
On 23 June 2020, Singapore joined the latter camp, dissolving Parliament to make way for Singapore’s 14th general elections on 10 July 2020 (‘GE2020’). The Government maintains that doing so is necessary to comply with the Constitution’s stipulated time-frame for elections, and to re-affirm the public’s trust in the Government so as to enable to take the necessary measures to safeguard public health against COVID-19.
At the same time, special arrangements have been put in place, altering the electoral process to reduce the health risks associated with holding general elections during a pandemic. The most striking changes involve the right to vote. Under the Parliamentary Elections (COVID-19 Special Arrangements) Act, which came into force on 26 May 2020, voters subject to stay orders (commonly known as stay home notices) for reasons involving COVID-19 may leave their place of accommodation to vote, but must do so at special polling stations. Voters subject to COVID-19 quarantine orders, however, cannot leave their place of quarantine without committing an offence under the Infectious Diseases Act, and the Elections Department has confirmed that no alternative arrangements will be made for them to vote.
Citizens located overseas will also face unique challenges in exercising their right to vote. Typically, voters may cast their vote in special polling stations set up in Singaporean embassies overseas. This year, just like in 2015, ten polling stations in ten different countries will be set up. Yet, given the travel restrictions in place across many national borders, overseas voters located close to, but outside, those ten states may be unable to travel to cast their votes there, or may face lengthy quarantines upon their arrival and upon their return. Even voters within those ten states are likely to face similar obstacles in casting their votes, since travel restrictions remain within many national borders as well. The Government, for its part, has maintained that overseas voters may travel to Singapore to vote, but this would also subject voters to lengthy confinement periods.
The COVID-19 special arrangements will also change another essential aspect of elections: political campaigning. Physical modes of campaigning are heavily regulated. The latest iteration of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020, issued on 19 June 2020, bars most social gatherings unless a distance of one metre is kept between groups of five people, which essentially rules out physical political rallies. Candidates may still engage in house-visits and public walkabouts within those limits, but the Elections Department has issued advisories recommending that ‘interactions with members of the public’ remain ‘transient (i.e. of short duration)’. While no COVID-19-related regulations have been imposed on non-physical modes of campaigning, these remain subject to other regulations put in place for other reasons such as the restriction of foreign interference, which take on additional significance in light of the restrictions on physical campaigning. For instance, online rallies and political advertising are subject to the conditions listed in the Parliamentary Elections (Election Advertising) Regulations, which were amended on 8 June 2020 include stricter conditions and reporting requirements for paid advertisements. In theory, these changes to the campaigning process should operate in a non-partisan and even-handed manner; but in practice, they may place political parties with greater access to resources, manpower and channels of communication in a better position than their competitors.
What, if anything, does the Constitution have to say about these arrangements? Nothing much, it might seem – the Constitution itself does not actually contain any express right to vote in free and fair elections. Interestingly, however, in 2001 the Government opined in Parliament that a ‘right to vote’ does exist in law. Building on this, in Vellama d/o Marie Muthu v Attorney-General, the Court of Appeal recognised that a citizen’s ability to be represented in Parliament is inherent in the Westminster system of Government established by the Constitution. Subsequently, the Court suggested in Yong Vui Kong v Attorney-General that the ‘right to vote’ might be a ‘part of the basic structure of the Constitution’, although no firm views on this point were expressed.
In Daniel De Costa v Attorney-General, the Court of Appeal again addressed the right to vote – here, in relation to the COVID-19 special arrangements mentioned above – touching on several fundamental aspects of Singapore’s system of government in the process. The Court confirmed that the ‘right to vote’ is ‘found in the Constitution’, but recognised that since the COVID-19 special arrangements ‘facilitate the conduct of elections … while also protecting the interests of the community from the risk of illness’, they do not threaten that right. The Court thus appears to have reaffirmed its conclusion in Vellama, that a right to vote exists, but also that it may be given effect to subject to ‘matters relating to policy, including the physical well-being of the country’.
The Court also confirmed – twice – that ‘it is correct to say as a matter of principle that elections should be free and fair’. Yet, it also noted that ‘the precise content of what constitutes a free and fair election is contestable’, and that in any case none of the concerns raised before it, involving the issuance of health advisories to voters, and certain conditions faced by overseas voters, established an ‘arguable case’ that GE2020 would not be free and fair.
After Daniel De Costa, the constitutionality of the special arrangements for GE2020 has formally been put beyond doubt. Yet, questions still abound as to what the relevant constitutional standards are, and why they have been met. On the right to vote, for example, at what point does the legitimate balancing of that right against public health concerns turn into illegitimate violation? And what other public interests may be balanced against that right? More broadly, is the Court’s enunciated ‘principle’ that ‘elections should be free and fair’ a mere description of our political system, or a statement of constitutional principle? And if it is the latter, is this constitutional principle fully expressed in the Constitution’s existing provisions on parliamentary elections, or does it create a separate substantive standard which any electoral arrangement must meet?
The Court in Daniel De Costa found it unnecessary to address these questions in detail, because little needed to be said to dismiss the specific arguments presented to it. Yet, while one may well agree that the Government’s COVID-19 special arrangements are beyond reproach, without answers to the above questions it will be difficult to ground that point of view in law. Singapore is, and has always been, a democracy, but clearer guidance on what that means under the Constitution is surely desirable, for future elections if not for this one.
 See Ian Cheng, ‘Unconstitutional to delay General Election and have president form caretaker government: Teo Chee Hean’, Channel NewsAsia, 25 March 2020 (accessed 1 July 2020).
 See Caryn Yeo, ‘PM Lee calls General Election 2020, says it will ‘clear the decks’ for a fresh mandate’, Channel NewsAsia, 23 June 2020 (accessed 1 July 2020).
 No. 21 of 2020.
 Ibid s 4.
 Cap 137, 2003 Rev Ed. Section 3(3) of the Special Arrangements Act (ibid) clarifies that, in criminal proceedings brought for the breach of COVID-19 quarantine orders, it is no defence that the accused committed the breach ‘for the purpose of voting at an election’.
 See Janice Lim, ‘GE2020: No voting for Covid-19 patients and those on quarantine, special voting hour for those on SHN’, Today, 1 July 2020 (accessed 1 July 2020).
 See Parliamentary Elections (Overseas Voting) Regulations 2006 (S 234/2006).
 See Tee Zhuo, ‘Singapore GE2020: Overseas voters can vote in 10 cities, provisions for returning Singaporeans to vote’, The Straits Times, 29 June 2020 (accessed 1 July 2020); May Chen, ‘GE2015: Singaporeans overseas to vote at 10 polling stations, Dubai the latest addition’, The Straits Times, 3 September 2015 (accessed 1 July 2020).
 See ‘Check on travel restrictions before you fly overseas during this COVID-19 period’, Gov.sg, online: https://www.gov.sg/article/check-on-travel-restrictions-before-you-fly-overseas-during-this-covid-19-period (accessed 1 July 2020).
 Tee, note 9 above.
 COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (S 254/2020) r 6-7.
 Elections Department Singapore, ‘Advisory to Political Parties and Candidates on Safe Physical Campaigning During General Election 2020’, 26 June 2020 (accessed 1 July 2020).
 Parliamentary Elections (Election Advertising) Regulations (Cap 218, Rg 3) r 6.
 Singapore Parliamentary Debates Official Report, 16 May 2001, vol 73, col 1726 (Wong Kan Seng, Minister for Home Affairs).
 Vellama d/o Marie Muthu v Attorney-General  4 SLR 1, -.
 Yong Vui Kong v Public Prosecutor  2 SLR 1129, .
 Daniel De Costa v Attorney-General  SGCA 60.
 Ibid, .
 Ibid,  and [13(a)], emphasis removed.
 Vellama, note 16 above, .
 Daniel De Costa, note 18 above, , .
 Ibid, .