Vellama d/o Marie Muthu v. Attorney-General

Vellama d/o Marie Muthu v. Attorney-General was a 2013 decision of the Court of Appeal of Singapore which held that Article 49(1) of the Constitution requires the Prime Minister to call a by-election when a casual vacancy arises in a Single Member Constituency ("SMC"), though the election need only be called within a reasonable time.

The holding was an obiter dictum, that is, not required for the decision in the case and therefore not a binding precedent, though it may be persuasive in future cases. This was because the Court dismissed the appeal on the ground that the appellant, Madam Vellama, lacked standing. She had originally applied for judicial review in 2012 to ask the High Court to order the Prime Minister to call a by-election in Hougang Single Member Constituency following the expulsion of her Member of Parliament (MP) by his political party, the Workers' Party of Singapore. However, by the time the matter came on appeal, the 2012 by-election had been called and held. Therefore, she was arguably no longer directly affected by the lack of an MP in her constituency. Her only remaining interest was in having the Prime Minister correctly interpret Article 49(1) of the Constitution. This was a public right that she shared equally with all other citizens. Since she was unable to prove "special damage" – she was neither affected to a greater extent nor in a different manner from other citizens – she did not have standing to proceed with the appeal.

Although the Court of Appeal rejected Vellama's appeal on the preliminary ground of a lack of standing, it went on to consider the substantive issues raised. Disagreeing with the High Court's judgment, the Court of Appeal interpreted Article 49(1) of the Constitution as providing that the Prime Minister does not have unfettered discretion in deciding whether or not to call a by-election when a casual vacancy in an SMC arises. Noting the absence in Article 49(1) of a specific time frame within which a parliamentary vacancy must be filled, the Court held that the Prime Minister must do so with "all convenient speed" in line with the common law concept of reasonable time. However, given the polycentric nature of the decision, the Court felt it was undesirable to lay down specific considerations or factors which would determine whether the Prime Minister had or had not called a by-election in reasonable time.

Facts

During a parliamentary debate on 27 August 2008, the Prime Minister of Singapore, Lee Hsien Loong, asserted that since Singapore's system of elections focuses on political parties rather than on individual candidates, in the event of a parliamentary seat falling vacant in the middle of a term, the Prime Minister retains "full discretion as to when and whether to call a by-election as the vacancy does not affect the mandate of the government"..

Yaw Shin Leong, a member of the Workers' Party of Singapore, was elected as a Member of Parliament (MP) for Hougang Single Member Constituency (SMC) at the 2011 general election. He was expelled from the party on 14 February 2012 for refusing to explain to the party leadership certain allegations of marital infidelity that had come to light.; ; . As a result, pursuant to Article 46(2)(b) of the Constitution of the Republic of Singapore,. he lost his parliamentary seat which became vacant, leaving the residents of Hougang SMC unrepresented. 4 S.L.R. [Singapore Law Reports] 698 at 704–705, para. 7, High Court (Singapore). The abbreviation d/o means "daughter of". This spurred the applicant, Madam Vellama d/o (daughter of) Marie Muthu, a voter resident in Hougang SMC, to commence judicial review proceedings in the High Court on 2 March 2012 to compel the Government to call a by-election. She sought a declaration as to the proper construction of Article 49(1) of the Constitution and a mandatory order requiring the Prime Minister to advise the President to issue a writ of election for Hougang SMC within three months from the date of the vacancy, or such other reasonable period as the Court deemed fit.Vellama (H.C.), p. 705, para. 8.

A week after Vellama's application, Prime Minister Lee Hsien Loong announced in Parliament that he intended to call a by-election in Hougang SMC but had yet to decide on its timing. On 2 April 2012, the High Court granted Vellama leave to apply for judicial review. ("Vellama (leave)"). On 9 May 2012, the President, acting on the advice of the Prime Minister, issued a writ of election for a by-election in Hougang SMC.. The by-election was held on 26 May 2012, and Png Eng Huat of the Workers' Party was returned to the seat for the constituency..

Vellama subsequently abandoned her application for the mandatory order but proceeded with her application for the declaration in the High Court.Vellama (H.C.), p. 706, para. 14. On 1 August 2012, the High Court dismissed her application. Dissatisfied, she appealed to the Court of Appeal which dismissed her appeal on 5 July 2013. However, in an obiter dictum, the Court of Appeal agreed with her interpretation of Article 49(1) of the Constitution rather than the Prime Minister's interpretation. ("Vellama (C.A.)").

Decisions of the High Court

Preliminary issue Before a person can apply to the High Court for a prerogative order such as a mandatory order, he or she must be granted leave to do so by the Court., O. 53, r. 1. The requirement for leave is a preliminary step that helps to sieve out "groundless or hopeless cases at an early stage" and "prevent a wasteful use of judicial time and to protect public bodies from harassment".Public Service Commission v. Lai Swee Lin Linda 1 S.L.R.(R.) 133 at 142, para. 23, Court of Appeal (Singapore); see also Chan Hiang Leng Colin v. Minister for Information and the Arts 2 S.L.R.(R.) 627 at 635–636, para. 21, H.C. (Singapore) ("the applicant must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application"). Leave will be granted if the Court is satisfied of the following:Vellama (leave), p. 1036, para. 10.

The matter complained of is susceptible to judicial review. The applicant has sufficient interest or standing in the matter.See also Chan Hiang Leng Colin v. Minister for Information and the Arts 2 S.L.R.(R.) 627 at 631, para. 8, H.C. (Singapore). The evidence shows a prima facie case of reasonable suspicion that the Government has acted unlawfully.

However, as prerogative orders are discretionary remedies, the Court retains discretion to refuse leave if the circumstances warrant it.

Justice Philip Pillai found that on the facts the first two limbs of the test were obviously satisfied as it was undisputed that "the matter relates to the performance of powers and duties which involve a public element" and that "the applicant has sufficient interest in the matter".Vellama (leave), p. 1036, para. 11. As for the third requirement, the judge held that it posed a very low threshold for leave. Consequently, based on the material before the court, it had been satisfied. He therefore granted leave for the merits of the case to be heard.Vellama (leave), p. 1039, para. 29.

Substantive issue: interpretation of Article 49(1) In the subsequent High Court hearing where the substantive issues were heard, Justice Pillai held that Article 49(1) of the Constitution does not mandate that the Prime Minister call a by-election to fill a casual vacancy arising in an SMC.Vellama (H.C.), p. 207, para. 115. The Article states:

The judge was persuaded that the expression shall be filled by election in the Article referred to a process and not an event.Vellama (H.C.), p. 207, para. 114. He approached the interpretation of the Article on three modes of analysis – textual, contextual and historical. The High Court's textual analysis considered Article 66 of the Constitution which provides for general elections to be held three months after the dissolution of Parliament. Article 66 states that "[t]here shall be a general election", whereas Article 49(1) merely states that a vacancy "shall be filled by election". In Justice Pillai's view, the absence of the word an before the word election in Article 49(1) suggested that the Article was merely stating the process by which a parliamentary vacancy should be filled and not an event that must be held, unlike Article 66.Vellama (H.C.), p. 182, para. 58.

The judge's contextual approach afforded more weight to his reasoning that Article 49(1) provides for the process for the filling of vacant seats for elected MPs. In his opinion, the placement of Article 49 in Part VI of the Constitution is significant,Vellama (H.C.), p. 183, para. 61. as that Part "prescribes different rules for different types of Members, and [similarly] different processes for filling each type of Member vacancies".Vellama (H.C.), p. 191, para. 79.

Justice Pillai's historical consideration of Article 49 centred on section 51 of the Singapore Colony Order in Council 1955,Singapore Colony Order in Council 1955 (Statutory Instrument (S.I.) 1955 No. 187, UK), made on 1 February 1955 and in force on 8 February 1955. which he noted was the original source of Article 49(1).Vellama (H.C.), p. 198, para. 96. Section 51(1) of the 1955 Order in Council specified that a vacated seat of a Nominated Member of the Legislative Assembly "shall be filled by appointment by the Governor". Section 51(2) stipulated that the vacated seat of an Elected Member of the Assembly "shall be filled by election". In the judge's opinion, there was no ambiguity in the meaning of the expression shall be filled by election in section 51(2) because section 51 was clearly referring to the process of filling a seat and not an event. The judge opined that subsequent constitutional provisions originating from section 51(2) of the 1955 Order in Council that contained the same expression must have the same meaning unless the text was intentionally changed. Accordingly, the High Court dismissed Madam Vellama's application.Vellama (H.C.), p. 199, para. 97.

Decision of the Court of Appeal

Preliminary issue: standing Vellama appealed the High Court's decision to the Court of Appeal. Before the High Court, Vellama's standing to bring the suit was not disputed. However, during the Court of Appeal hearing, the Attorney-General contended that she no longer possessed standing as the by-election in Hougang SMC had been held. Accordingly, the Court had to consider whether standing should be regarded as having crystallized at the point the proceedings were initiated, or treated as an ongoing issue to be determined at every stage of the proceedings.Vellama (C.A.), p. 8, paras. 11–12.

Whether standing is open to review The judgment of the Court of Appeal was delivered by Judge of Appeal Chao Hick Tin. The Court cited the decision of the House of Lords in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Limited (1981),. in which the judges unanimously decided that the lower court's decision on standing was open to review on appeal. This conclusion was justified as the court at the leave stage might not have the full evidence to make a conclusive determination of the applicant's standing.National Federation, p. 645.