Friday, May 11, 2012
Hougang by-election case may be withdrawn from the Court
It appears that Mdm Vellama Marie Muthu is seeking to withdraw her case if the AG were to drop the appeal. A proposal has been forwarded to the Attorney General's office by Mdm Vellama's lawyer that upon withdrawal of her application and the AG's appeal, a consent order be drafted and recorded in Court.
Firstly, I believe that the application for the mandatory order has become unsustainable by virtue of the PM's decision to call for the by-election. If at all there is a live issue for the Court to determine, it is in relation to the declaratory orders sought by Mdm Vellama.
Mdm Vellama's application involved the following:
(a) Declaratory orders:
(i) That the Prime Minister does not have unfettered discretion in deciding whether to announce by-elections in Hougang SMC; and
(ii) That the Prime Minister does not have unfettered discretion to decide when to announce by-elections in Hougang SMC and must do so within three months or within such reasonable time as this Honourable Court deems fit; and
(b) A Mandatory Order
- enjoining the Prime Minister to advise the President to issue a Writ of Election mandating by-elections in Hougang SMC pursuant to Article 49(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and Section 24(1) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed) and to tender such advice within three months or within such reasonable time as the Honourable Court deems fit.
As the PM has already advised the President to issue the Writ of Election, (b) above is rendered nugatory.
The question of whether the PM has unfettered discretion in deciding whether to announce by-election or in deciding when to announce such by-elections still remains an important Constitutional issue that is undefined and speculative given the gap in our Constitutional and statutory provisions on by-elections. This being the case, I do not think that the declaratory orders are less significant now that the PM has called for the by-election. (Of course, the wording of the declaratory order should be amended in the application to remove the reference to Hougang SMC. There is a generic question as to whether the PM has unfettered discretion in relation to whether and when to announce by-elections in any single member constituency.)
What would happen if the matter proceeds? The application for leave is in the first place being made on account of the mandatory order sought and by virtue of Order 53 of the Rules of Court. The declaratory orders are also being sought under Order 53 and they ride on the mandatory order. If the Court of Appeal rules that leave to appeal would not be granted on the mndatory order, then the application would fail and Mdm Vellama's Counsel has the option of filing a fresh application for the declaratory orders under Order 15 Rule 16 of the Rules of Court. This application, being solely for declaratory orders, would not require the leave of court.
This could be one way to proceed. However, I understand that the letter sent by Mdm Vellama's lawyer alludes to the fact that the Constitutional clarification must await some future date when such matter may arise. That is as good an indication as one may get on whether a fresh application would be made for the declaratory orders. It is plain that Mdm Vellama would not be pursuing any clarification via a fresh set of proceedings.
Since Mdm Vellama has proposed withdrawal, I would expect that the AG (and presumably the PM) would decide to take up the offer and drop the appeal. That would be the politically prudent step to take to avoid any possible fallout.
In any event, I think that Mdm Vellama deserves the respect of every citizen in Singapore. There are some people commenting online about her wasting time in making the Court application in the first place. This is what I have to say: Even if she has been put up to it by some others with a political interest in this situation, it takes a lot of guts to stick one's neck out like this. For that alone she deserves respect. She is a Singaporean that has shown that she meant every word of the pledge that we unashamedly take... "to build a democratic society based on justice and equality". In fact, those people that choose to take our national pledge and still deride the efforts of Mdm Vellama are hypocrites of the highest order. The rest of us, proud citizens, salute her!
In a way, this is our own little Bersih... A cleaner takes the PM to court to clean up our electoral law.