Does the Prime Minister have the option whether to call a by-election, and does he also have the discretion to decide when to call one? These two questions were put before Justice Philip Pillai at the High Court on Friday, 30 March.







The hearing, which lasted three hours, was held in chambers.







Vellama Marie Muthu, a resident of Hougang Single-Member Constituency (SMC), had filed an application with the courts on 2 March seeking a hearing to be heard in the courts.







She is also asking the court to declare “that the Prime Minister does not have unfettered discretion” in deciding the two matters, and for the court to declare that the Prime Minister must announce a by-election in Hougang “within three months or within such reasonable time” as the court deems fit.







The Hougang parliamentary seat was vacated by then-Workers’ Party Member of Parliament, Yaw Shin Leong, on 14 February, after he was dismissed by the party.



On Friday, senior counsel David Chong, acting for the attorney-general, asked the court to dismiss the application.











He argued that the Prime Minister had already announced in Parliament on 9 March that he “intend[s] to call a by-election in Hougang”, and that the court has no jurisdiction in compelling the Prime Minister to call one within any specific time frames.







Chong also argued that “a court’s power to intervene in an act of the Executive is premised… on there being a controversy requiring such intervention.” He said that “[there] is no such controversy in the present case.”







He added that as “the Prime Minister has not refused to exercise his discretion, there is no executive decision that could legitimately be the subject of a judicial review.”



M Ravi, acting for Vellama, submitted to the courts that under the law, by-elections are mandatory, and not optional, as the Prime Minister had implied in his earlier remarks. In a Straits Times report in March, Prime Minister Lee Hsien Loong was reported to have said that he would consider carefully “whether and when to hold a by-election in Hougang.”











“This application was triggered by a genuine concern that the Prime Minister took the view that he was entitled to decide whether to hold a by-election,” M Ravi said, referring to PM Lee’s remarks. He added that under the law, the Prime Minister “does not have a discretion as to whether to hold by-elections.”







Although PM Lee had later clarified in Parliament that he “intend[s] to call a by-election in Hougang”, M Ravi said this is not the same as saying, “I am under a legal obligation to call a by-election.” The PM could, M Ravi said, cancel plans for a by-election in Hougang if the PM chose to.







“When the PM makes statements to the press suggesting that he decides whether to hold the election,” M Ravi told the court, “it causes great alarm among the populace, for that is not, it is respectfully submitted, what the law requires.” He explained that Article 49(1) of the Constitution says: “The vacancy shall be filled” – and that, within a reasonable time.



He thus submitted that the courts have



jurisdiction to compel the PM to state that he must hold a by-election – that this is not optional – and that he must do so within a reasonable time.



Citing a pronouncement by the House of Lords in an earlier case in the United Kingdom, M Ravi said the UK court made it clear that a hearing before the court is permissible if it were shown, among other things, that “the Minister … misinterpreted the law and proceeded on an erroneous view of the law.”











“The Prime Minister, by holding out to Singaporeans that he had the power to decide ‘whether and when’ to call an election has clearly proceeded on an erroneous view of the law,” M Ravi said.







He told the court that the Prime Minister “could not frustrate the intent of the law by using his discretion… to effectively defer a by-election until the next General Election.”

Story continues