The Hougang by-election judgement

In Political governance on 15/08/2012 at 5:49 am

(Update on 17 September 2015 In 2013 The Court of Appeal said on Friday that Singapore’s constitution does not give the prime minister unfettered discretion in calling for an election to fill a vacated seat of an elected Member of Parliament.

The court’s three-judge panel said this in a 57-page document in which, at the same time, it dismissed the appeal of Hougang resident Vellama Marie Muthu against a High Court ruling last year that the prime minister does have the discretion.–within-a-reasonable-time–074517450.html

Actually since technically the decision is “by the way”  because the CA dismissed the appeal, and can be ignored. But it would be a brave lower court judge who decides to ignore the CA.)

Remember the Hougang by-election case? The bloggers have moved on, disappointed with the judgement*.

As I’ve juz heard that the petitioner, a part-time cleaner who resides in Hougang will not appeal the judgement that the PM is not obliged to call a by-election because the constitution does not require a by-election to be called if there is a vacancy, I tot this would be a gd opportunity to post on the judgement: raising points not raised by other bloggers.

First, let me commend the judge for not dismissing the case on technicalities, and on his diligence: 53 pages!

His judgement that the PM is not obliged to call a by-election because the constitution does not require a by-election to be called if there is a vacancy — surprised the legal academics and one Siow Kum Hong who the media had been regularly quoting on the case, and netizens.  But should the academics and Siow have been surprised?

In this , I had asked: I wonder why no-one had petitioned the court to get the government to call a by-election until this year? Surely there were lawyers* at that time who are as smart and brave as Ravi** ? As Chiam was an MP on two of the above instances, perhaps someone should ask him why he never bothered to bring a case? Does he agree that the PM has an unfettered discretion on whether to call a by-election or not to fill a vacancy?

*There was JBJ who although, not very smart, was brave. And there was Francis Seow, a former Solictor-General, a good litigator with the brain of an intellectual, and the heart of a lion. He is still alive though not in practice. He is a Harvard Fellow, wanted by the S’pore government on some tax charge. He was detained under the ISA for a short while in the late 1980s.

It could explain why the WP (its MP lawyers were called “cow dung” by the petitioner’s lawyer, Ravi, for not lending WP’s weight to his client’s case) did not raise the issue in parly or in the courts. The three MP lawyers may have advised that a court petition to compel the PM to call a by-election would not succeed.

One grumble that I hear the academics quietly muttering against the judgement is that it was a formalistic interpretation of the constitution, not taking into account the intention of the constitution. (Siow has said on Facebook that it is formalistic.)

Well, have they ever tot that the drafters of the constitution were men of their time? At that time, the dominant view among the English and other British judges was that the executive could be trusted because ministers were “our kind of chaps”, and that because the executive had the mandate of the voters (which could be lost if the voters were angry with it), it could and should have largely unfettered discretion: the courts should only intervene when it was clear on the face of it that something was wrong. It should never question the motives of the executive unless there was blindly obvious evidence that shumething was wrong.

Witness, the slew of cases that allowed detention without trial on the say so of the minister, and the refusal of the courts to question the executive’s motives even in the UK. Times have changed.

Our constitution had to be amended because the Court of Appeal here ruled that it could judicially review the reasons behind an ISA detention, over-ruling a long-established local ruling. I once heard the senior state counsel in that case explain that the judges were influenced by changes in judicial thinking in other Commonwealth countries. My take is that our judges wanted to be part of the “in” crowd of judges. They wanted to continue being invited to the lunches and dinners of the ang moh judges.

Penultimately, going by the media reports, it seems the judge never asked the lawyers to argue the point on which he decided the case. When I was studying law in London, we had the benefit of hearing eminent judges talk on their decision-making process. One thing they insisted on: they would only decide on the points argued before them. If they had any original ideas, they would put it before opposing counsel and ask them to argue the point. Seems this was not done here. Reminds me of a defamation case brought against JBJ by some ministers. The judge found against JBJ on a point neither side had raised, nor had the judge asked the lawyers to argue the point. Never ever heard of that principle invoked ever again. Can’t even remember what it was.

Finally, by deciding the issue on the grounds he did, it is unlikely that the petitioner would have to pay the AG’s cost which would have been substantial, especially as AG used a Senior Counsel in private practice. Guess who pays? We the tax payer. SIGH.


*Their restraint in commenting on the case could be due to their fear of being “forced” to retract their comments by the Attorney-General, like one Alex Au was “forced” to do as regards on the decision in the Wally Woffle’s case. He subsequently “repented” of his act of removing the offending post (bit like Peter denying that he knew Jesus and then feeling upset with himself). Actually, as a trained lawyer, I agreed with AG. Wonder if AG repented of being nice to Alex Au?

Seriously, perhaps the NSP, with a lawyer as its VP, could conduct a seminar for bloggers on how to criticise judges’ decisions without running foul of the AG.

  1. “how to criticise judges’ decisions without running foul of the AG.”

    Are you serious? Perhaps Singapore can offer such seminars to the world to showcase its “justice” system. No less, the idea came out of a trained lawyer!

  2. CI

    The big problem would be that if the petitioner pays, the political fallout would be high as people would than say big bad govt bullying little people.
    Despite the fact that the petitioner loss the case.

    Your analysis is spot on.

  3. “All Hail the Emperor’s new clothes! Hail! Hail!”

    We are all in for the money, the peace, and the harmony.

    ” But the emperor is not wearing anything…!! ”

    No one will say that!… we are, by default, peace loving, ‘leave me alone people’!

    Let someone else test the perimeters and our tolerance for bullying is indescribable, to the extent of volunteering to be prostituted.

    “All Hail the Emperor’s new clothe!! Hail! Hail!”

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