SINGAPORE — The Court of Appeal yesterday ruled that the Prime Minister does not have “unfettered discretion” in whether to call a by-election when an elected Member of Parliament (MP) vacates his seat, reversing a High Court decision last year.

The court, which comprised Judges of Appeal Chao Hick Tin, Andrew Phang and V K Rajah, added that the Prime Minister “must do so within a reasonable time” and is “entitled to take into account all relevant circumstances”. Only in “clear cases” could the courts intervene, said Justice Chao, who delivered the court’s 57-page decision.

He said the Constitution “places a duty upon the Prime Minister to call a by-election (unless he intends to dissolve Parliament in the near future) to fill casual vacancies of elected MPs. Of course, in the present context, this will only apply to an SMC (Single-Member Constituency) as there is a special provision where a vacancy arises in a GRC (Group Representation Constituency)”.

Added Justice Chao: “A Member (of Parliament) represents and is the voice of his constituents. If a vacancy is left unfilled for an unnecessarily prolonged period, that would raise a serious risk of disenfranchising the residents of that constituency. There is thus a need to balance the rights of voters in a parliamentary system of government and the discretion vested in the Prime Minister to decide when to call for by-elections to fill a vacancy.”

The legal wrangle over by-elections began shortly after then-Hougang MP Yaw Shin Leong was expelled by the Workers’ Party in February last year over what it termed “indiscretions in his private life”, vacating his parliamentary seat.

Weeks later, on March 2, Madam Vellama Marie Muthu, a cleaner residing in the ward, filed an application to get the courts to declare that the Prime Minister does not have “unfettered discretion” in deciding whether and when to call a by-election.

In August, the judge who heard the case, Justice Philip Pillai, ruled that there “is no requirement in the Constitution to call elections to fill elected Member vacancies”.

“There being no such requirement, there arises no prescribed time within which such elections must be called,” he wrote, and dismissed the case.

Mdm Vellama then appealed against the decision.

The Court of Appeal yesterday dismissed Mdm Vellama’s appeal, ruling that she did not have standing to seek “declaratory relief” from the courts as she incurred no “special damage” as a result of Mr Yao vacating his seat.

Justice Chao said that her application last year was “clearly premature”, and that Prime Minister Lee Hsien Loong had “yet to make his stand on the matter”.

“At the time, there was simply no basis to make any complaint against the Prime Minister as the application pre-empted any executive decision on the matter,” he said.

He added that the hearing on Mdm Vellama’s application on April 3 last year “should not have been granted” because Mr Lee had already declared by then that a by-election would be held, rendering her claim as one with no “factual basis”.

The Court of Appeal noted that Mr Lee had told Parliament on March 9 last year that he intended to call a by-election in Hougang, though he had not yet decided on the timing. The by-election was held several weeks later on May 26, and Mdm Vellama’s case was heard on July 16.

The Hougang resident had also sought a court order requiring the Mr Lee to advise the President to issue a Writ of Election for Hougang SMC “within three months from the date of the vacancy” or other reasonable period the court deemed fit.

The Court of Appeal yesterday called the timing for the holding of an election to fill a vacancy “a polycentric matter”, which would involve considerations which “go well beyond mere practicality”, and the Prime Minister could take into account matters relating to policy, including the physical well-being of the country.

Justice Chao said it is “impossible to lay down the specific considerations or factors” which would have a bearing on the question of whether the Prime Minister has acted reasonably in the exercise of his discretion.

“However, while we accept that the Prime Minister should be accorded a measure of latitude in deciding when to call for election to fill a vacancy, it does not follow from this flexibility that he would, therefore, be entitled to defer the calling of an election to fill a vacancy indefinitely, or to simply declare that he would not be advising the President to issue a Writ of Election (unless he intends to advise the President to dissolve Parliament in the near future),” said the court.

Mr M Ravi, Mdm Vellama’s lawyer, welcomed the Court of Appeal’s decision, saying that it affirmed that “Singaporeans do have a right to representation in Parliament”.

The Attorney-General’s Chambers said in a statement that it is studying the judgment “carefully” and will advise Mr Lee, in due course, on the judgment.