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A by-election is an election held to fill vacant parliamentary seats between general elections.

The Constitution of Singapore provides specific instances whereby a seat of a Member of Parliament (MP) is vacated in the middle of their term of office. These instances are laid out in Article 46. A seat is commonly vacated upon the resignation or death of a MP. A vacancy may also arise if a MP

• ceases to be a citizen of Singapore; or
• ceases to be a member of the political party which he represented in the election; or
• is absent from Parliament more than a specific period of time; or
• is disqualified according to Article 45 ; or
• is expelled from Parliament

If any of these instances arise, a by-election may be called to fill the vacancy.

History

The laws governing by-elections in Singapore were inherited by way of its Constitution when it was part of the Federation of Malaysia, in an attempt to ‘harmonize’ its laws. This clause stipulated that a by-election had to be called within three months of the parliamentary seat being vacated. Notably, there was no such clause in Singapore’s Constitution before the merger of the two countries. Subsequently, following Singapore’s independence in 1965, Parliament re-amended the Constitution to restore the previous position in the regulation of by-elections. It has been said that this re-amendment was driven by reasons which Parliament then found ‘valid and valuable as a result of Singapore’s own experience of elections and government.’

Kenneth: please help me check which column this the above came from. Its in the 2008 debates.

Today, the law governing by-elections in Singapore is silent as to the time frame for calling by-elections, and leaves to the President’s discretion the choice of when and whether to hold a by-election.

A historically significant event cited by Prime Minister Lee Hsien Loong was the instability of the Legislative Assembly during the time of David Marshall and Lim Yew Hock. In 1961, several Assemblymen crossed over from the PAP to form their own opposition party (Barisan Sosialis), and the death of a PAP member soon after destroyed the parliamentary majority previously held by PAP. In the words of Lee, Parliamentary matters became a “spectator blood sport”, and it was a “hair-rising period, because every time the Barisan Sosialis moved a motion of no-confidence, there was great excitement”. The obligation to hold a by-election within 3 months allowed MPs to be bought and intimidated to switch sides. By-elections could “determine the fortunes of a political party, for good or ill”, and this was thought to be an undesirable state of affairs (true??).

The law governing by-elections at that time was thought to be undesirable because it allowed for instability and inefficiency in the government, and “distract[ed] the country from other more pressing concerns.” In contrast, the legal structure today allows efficient execution of an elected government’s policies, because political parties, as opposed to individual candidates exist as the fundamental element in the government of Singapore. This philosophy has been expressed to be the philosophy embraced by the government. Accordingly, the focus is on the party delivering its promises and a vacancy in Parliament need not be filled before the next general election.

Election Procedure in Singapore

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Current Framework of By-elections in Singapore

Article 49(1) of the Constitution of Singapore states that any vacancy in Parliament caused by reasons other than dissolution of Parliament shall be filled by election in the manner provided by the law relating to governing parliamentary elections.

The Parliamentary Elections Act (PEA) is the law governing by-elections. According to Section 24 of the Parliamentary Elections Act, the President, acting under the advice of the Prime Minister, shall issue writs of election addressed to the Returning Officer .

Under this framework, there is no constitutional or statutory requirement to call for by-elections within a specified time period when a parliamentary seat of any elected MP is vacated. Hence, following Section 52 of the Interpretation Act, since no time is prescribed within which this must be done, the President, acting on the advice of the Prime Minister, will call for a by-election when he deems it expedient to do so.

In fact, strictly speaking, there is no requirement for the President to call for a by-election at all. Under the Constitution, the decision whether or not to call a by-election is a decision to be made by the Prime Minister, and the PEA only provides the mechanism relevant if the Prime Minister decides in his discretion to call one.

Elected Members of Parliament

In Singapore, elected Members of Parliament (MPs) belong to either a Single Member Constituency (SMC) or a Group Representation Constituency (GRC). SMCs consist of a single MP while GRCs comprise of 3-6 MPs.

A writ of election may be issued to fill a vacant SMC seat pursuant to Article 49(1) of the Constitution. In the case of GRCs however, no writ of election can be issued unless all members in a GRC have vacated their seats in Parliament.

NCMPs and NMPs

Article 49(1) of the Constitution provides that “whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election…” By plain reading, Article 49(1) precluded the holding of by-elections to replace vacated Non-constituency Members of Parliament (NCMP) and Nominated Members of Parliament (NMP) seats, because these two seats are considered a non-constituency member seat. This position is confirmed in the case of Vellama. (This part had been rephrased – lyd)

Pursuant to Article 49(2)(b) of the Constitution, it is open to the legislature to provide for the filling of seats vacated by NCMPs. However, there is a dearth of written law concerning NCMP replacement. It may be implied by plain reading of Section 52 of the PEA that NCMPs may only be appointed following General Elections . The court had also made it clear in the case of Vellama that NCMPs “can only be declared elected under the Parliamentary Elections Act”.

With regard to NMPs, Section 4 of the Fourth Schedule to the Constitution provides that “the Special Select Committee may, if it thinks fit, nominate a person for the President to appoint as a nominated Member to fill the vacancy” . A nominated member can only be appointed and not elected, also clarified in the case of Vellama .

In the event of a by-election, NCMPs may run for election as an MP without relinquishing their seats, having to do so only if elected as an MP. NMPs, in contrast, are required to vacate their seats in order to run as a candidate. It therefore appears that an NCMP who unsuccessfully contests a by-election may resume his or her Parliamentary seat. However, because no obligation to fill vacated NCMP seats exists (ADD?: as of now), an opposition party who successfully fields an NCMP in a by-election is not entitled to have their previous NCMP seat filled by a new individual.

Academic discussion/Legal issues raised

PM’s discretion to call a by-election

Questions regarding the PM's discretion were raised in 2012, where the Hougang SMC seat was vacated following Yaw Shin Leong's expulsion from the party..... On _____, Hougang resident Vellama raised _____.

One of the issues raised in the case of Vellama was whether the expression “shall be filled by election” in Article 49(1) of the Constitution means that it is mandatory for the Prime Minister to advise the President to issue a writ of election to fill the vacancy of an elected MP. A related issue would also be the period of time where a writ of election must be issued. (DELETE?)

The High Court held that although “shall” in Article 49(1) of the Constitution denoted that “election” was mandatory, the phrase “shall be filled by election” referred to the process whereby vacated seats of elected MPs are to be filled and not an event of an election. (per se?) This is as opposed to NCMPs being declared elected or the appointment of NMPs. (Seems to break the flow of the paragraph, but I think it’s important to show the difference! HOW?) Therefore, so long as seats belonging to elected MPs are filled by the election process, it is not mandatory to hold a by-election upon a vacancy of a seat. No issue of time limits arises, and the Prime Minister has discretion when to call a by-election, if at all.

Representative democracy issues

It has been argued that not having to call for by-elections violates the constitutional principle of representative democracy. Arguments in this regard can be subdivided into two groups: those pertaining to SMCs and those pertaining to GRCs.

Single Member Constituencies

NMP Thio Li-Ann, in a Parliamentary Debate dated 27 August 2008, expressed concerns that residents in an SMC would be left without representation in Parliament if their MP vacated his/her seat in Parliament for whatever reason.

In response to Thio, Prime Minister Lee stated that Singapore’s system of elections emphasises a choice of political parties rather than individual candidates. Election candidates represent different political parties, and the party that ends up with the highest number of candidates elected into Parliament forms the government according to a “first-past-the-post” model. In such a system, the governing party receives its mandate indirectly through the choice of its fielded candidates as Members of Parliament, and a vacant seat “does not affect the mandate of the Government” because the emphasis is on a “ruling Party delivering on its programmes and promises” instead. In his view, the PM should retain “full discretion as to when and whether to call a by-election as the vacancy does not affect the mandate of the government”. (Thio, Treatise, pg 358, 06.187)

Group Representation Constituencies

With regard to GRCs, Dr Yvonne Lee from the National University of Singapore's Faculty of Law argued that the loss of one member in a GRC could mean a loss of mandate from the people by itself, because a GRC team is voted in “as a complete team”. In her view, a by-election allows “political legitimacy of the GRC” to be maintained.

A similar concern was expressed by then-NCMP Joshua Benjamin Jeyaretnam, who raised concerns in a 1999 Parliamentary Debate that the loss of one member in a GRC would result in voters receiving only a fraction of the representation they had constitutional right to. In his words,

“Under the Constitution as introduced by the ruling party itself, Jalan Besar GRC voters are entitled to four MPs in Parliament. That is their constitutional right. But now … [t]hey have only three MPs in Parliament …. Is that not a diminution of their constitutional right? … Why should the voters of Jalan Besar be told: "Be content with the three-quarter tank in Parliament. You cannot have a full tank. We will give you a three-quarter tank."” (quote Mr Jeyaretnam’s speech, pg 5 of 1999 debates)

In support of Jeyaretnam, opposition member Chiam See Tong also argued that appointing a failed candidate to fill the seat of a resigned MP would “not [be] the choice of the voters”, but “the choice of the PAP (Peoples’ Action Party)”. In other words, MPs whose seats were decided by means other than a by-election cannot be said to be representative choices of the people.

In response to these concerns, PAP MP Mr. Wong Kan Seng raised two points. Firstly, he argued that Singaporeans vote “with the knowledge that should a vacancy arise [before the next General Elections], such a vacancy need not be filled”, since this has always been provided in the law. Second, on the issue of the party-chosen candidate, he agreed (tio bo??) that no replacement could be "appointed by the Government to represent the people”. However, a replacement would still be useful for “training” purposes, and getting “ground experience on how to work with people, how to understand the issues and concerns, how to deal… and help with their problems” .

In the 2008 Parliamentary Debate on this matter, PM Lee proposed the engaging of neighbouring Members of Parliament to take charge of vacated constituencies' affairs as a means of filling representative gaps. However, this method has been criticized by Thio for its implicit assumption that parties will always have more than one elected MP in parliament. In Thio's view, a "lacuna in the law" exists if candidates were allowed to take seats in parliament without popular mandate, their membership to the same party notwithstanding. (Thio, Treatise, pg 358, 06.188).

MANPOWER CONSTRAINTS

In light of s 24(2A) of the PEA, by-elections in a GRC cannot be called unless _____. In other words, “other members in that team must take up the slack caused where a GRC has less than a full complement of MPs to serve the various electoral districts”. (Thio, Treatise, pg 356, 06.180)

Aside from issues of representative democracy, losing Members in a GRC risks a fall in efficiency and effectiveness because of stretched human resources (Thio, treatise, pg 356, 06.181). In Thio’s view, it would be “inconsistent not to require by-elections within a set period where a vacancy depletes team strength”, especially since GRC seats are allocated based on size of electoral wards. (Thio, Treatise, Pg 356, 06.181)

This point was also raised in a 2009 Parliamentary debate, by _____. In addressing the issue, Member of Parliament (MP) Halimah Yacob had this to say:

“There were some suggestions that perhaps because there are so many residents and only four MPs, some of their interests and welfare will be overlooked. … In fact, I think all the four MPs are more than able to take care of their needs … as far as the Jurong GRC is concerned, the level of service to them is completely not affected and, at the end of the day, I must say that should be the core of parliamentary democracy.” (Singapore Parliamentary debates, official report (27 August 2008), vol 84 at col 3328, Halimah Yacob, MP)

Following Yacob’s reply, PM Lee also emphasized the need to “address [problems] progressively, keeping in mind the longer term directions”, as opposed to seeking to “cover all [contingencies] pre-emptively with provisions in [the] Constitution and law”.

It was also raised in the same parliamentary debate that a by-election triggered by the vacation of a minority seat in a GRC would "undermine and weaken the GRC concept". MP Halimah Yacob suggested that this would essentially give minority candidates "considerable power" and to "hold the entire team to ransom".

COSTS

For some Singaporeans, holding by-elections without any pressing or pragmatic need “would be a waste of public funds and allow political mercenaries to appear from the cold”. (Straits Times, By-election: Pragmatism or Principle? http://www2.smu.edu.sg/news_room/smu_in_the_news/2008/sources/ST_20080801_1.pdf) (Cite costs of by-election in PEA)

Minority representation

A distinguishing factor of Singapore’s GRCs from traditional Westminster MMC models is the minority representation inherent in the system. In an effort to prevent majoritarian oppression, the Singapore Constitution was amended in 1988 to guarantee representation of racial minorities in parliament. However, no obligation exists to hold a by-election, even if a minority seat is vacated halfway through the term.

In her treatise on the subject, Thio suggested that the purpose behind GRCs may be defeated if a minority seat is lost without an obligation for replacement through by-elections. However, during a parliamentary debate on the matter, the government stated that they deemed it "unnecessary" to have a rule mandating a by-election simply because the minority Member had vacated his seat. In addition, as there are no specific quotas as to the number of minority candidates in Parliament as a whole, current minority representation levels (CURRENT OR MINIMUM?) can still be maintained as promised by then Deputy Minister Tony Tan even if this meant (“even if this meant” or “by”?) "fielding more than two minority candidates per GRC ward". Hence, the preference in Singapore is for issues of minority representation in Parliament (phrasing?) to be resolved by ministerial discretion rather than in accordance with a strict body of rules. (It may be just me, but I don’t see the link between what was mentioned before, and this sentence. Yeah maybe it’s the phrasing, idk.) In support of the discretionary approach, Member of Parliament Halimah Yacob also argued that “minority communities continue to have their interests well taken care of” as long as there were other minority MPs in the House.

Rule of law and by-elections (this kind of includes Political Theatre alr, actually??)

In proposing that by-elections be called within a specific time frame, NMP Thio was of the view that the calling of by-elections should be governed by a “rules-based regime”. She argued that a clear rule regulating discretion as opposed to leaving absolute discretion to political leaders would serve to uphold the rule of law as well as level the electoral playing field (DELETE?); absolute discretion may result in arbitrary abuse without oversight.

Once again, PM Lee’s response to this issue was centred around the philosophy that MPs are elected on a party platform. He explained that Singapore’s elections were so designed “to maximise the chances of a stable, effective government in between general elections”. With this system, the political party which forms parliamentary majority is given a five-year term mandate to govern and produce results. This mandate continues until the next general election is called, when the incumbent team will render account to the electorate. The effect of this is such that “if a seat falls vacant mid-term, then the Prime Minister has full discretion as to when he wants to call the election” because the vacancy “does not affect the mandate of the Government, nor its ability to deliver on its programmes or promises”. (Repeated above at Representative Democracy. How? Seems to flow well here.) As such, MPs cannot force by-elections at random mid-term, distracting the country from other more pressing concerns.