Singapore Law Blog

The recent expulsion of Yaw Shin Leong from the Workers’ Party and the consequent vacation of his seat in Parliament under Article 46(2)(b) of our Constitution have raised a debate over by-elections in Singapore, particularly regarding the Prime Minister’s discretion on whether and when to call a by-election when a Parliament seat is vacant. On one side there are arguments such as NMP Eugene Tan’s, which suggests that by-elections should be called within in reasonable time. The opposing argument is that Singapore has chosen a model of party and not individual representation, under which the ruling party determines the electoral agenda. MP Hri Kumar Nair SC has made this argument.

First, the legal technicalities. The PM’s discretion arises from Article 49(1) of the Constitution provides that vacancies “shall” be filled in accordance with the “law relating to Parliamentary elections”. This is the Parliamentary Elections Act, section 24(1) of which states that “for the purposes of the election of Members to supply vacancies caused by death, resignation or otherwise, the President shall issue writs under the public seal, addressed to the Returning Officer.” The President acts by default on the advice of the Prime Minister in areas where he has no express constitutional discretion. This being one of those areas, the Prime Minister has the sole final say on the issuance of writs for by-elections.

Professor Kevin Tan has argued that this is not an absolute discretion in that the Prime Minister must call for a by-election in case of a vacancy, because of the mandatory language of Article 49(1) (“shall be filled”) and of section 24(1) (“the President shall issue writs”). This, of course, does not remove the problem that no time limit is given. The PM can call a by-election at any time or, for that matter, not call one at all and wait till the next General Election, since Article 49(1) only requires that the seat be filled by an “election”, which can be a General Election.

NMP Eugene Tan in the article cited above also argues that a by-election should be called within a reasonable time or that reasons should at least be given if one is not called. One way of advancing this argument is through section 52 of the Interpretation Act which states that if no time is prescribed within which anything shall be done (as is the case in section 24(1) of the Parliamentary Elections Act), “that thing shall be done with all convenient speed and as often as the prescribed occasion arises.”

More importantly, however, are NMP Tan’s arguments that leaving a constituency of 25000 voters without an MP in Parliament for an extended time - about 4.5 years in this case for Hougang, if no by-election is called - would undermine an inclusive and representative democracy.

MP Hri Kumar Nair countered that Singapore chose a party-based model of representative democracy, evidenced by Article 46(2)(b), which was introduced to avoid the type of party-switching that happened in the Legislative Assembly in 1961, where 13 PAP defectors almost stole the party’s hard-won majority. In this model, individual MPs cannot change Parliament’s composition or even the Government. This purpose would be defeated if they could still do so by forcing by-elections at any time. This is in contrast with Malaysia, where defections and by-elections often draw national attention.

There are a few questions that the PM’s discretion raises, however.

1) What if the seat is vacated by an independent MP? There will be no party to take care of the constituency as the Workers’ Party is currently doing for Hougang, and no party to represent the constituency’s interests in Parliament.

2) What if the seat is vacated by a sole opposition MP such as Mr Low Thia Khiang from 2006-2011? The constituency would have no proxy representation in Parliament as Hougang residents sort of have now in the other WP MPs. Surely it also cannot be right for voters to be covered by unelected party officials.

3) What if the seat is vacated by a minority MP in a GRC? The GRC system was implemented to ensure minority representation in Parliament. It would be a mockery of the system if minority representation is suddenly unimportant when a seat is vacated.

4) What if the vacant seat(s) affect the Government’s mandate? Consider this hypothetical scenario: the PAP has 44 seats in Parliament, the WP has 43. The PAP forms the Government. Two PAP MPs defect from the PAP and have to resign their seats. Now the WP forms the Government, because they have 43 seats to the PAP’s 42. The PAP is confident of winning the two seats back in the by-election and reclaiming power. But the WP Prime Minister, knowing full well his party cannot win, exercises his discretion and refuses to call a by-election and clings on to power for years. A constitutional crisis will likely ensue.

We can see that the PM’s discretion to call a by-election has the potential, however unlikely, to plunge the nation into a constitutional and political crisis. In the current, relatively stable political climate, some discretion prevents individual MPs from using resignations and defections as political tools. However, I propose a long maximum period for which a seat can be left vacant, say, one year, within which a by-election or general election must be held and the seat filled. This would ensure, without forgoing political stability, that all citizens are represented in Parliament, which is the minimum substance of a representative democracy.

There has been some discussion of late regarding the lack of diversity among students at the NUS Faculty of Law. The new dean is leading a review of admission procedures that aims to broaden the range of backgrounds of future law students. While still in its early stages, the review has sparked off a debate in the Straits Times Forum between two general camps: the strict results-based meritocracy camp (see here) and the opposing diversity camp which argues that results are influenced by wealth and do not reflect true merit (see here, here, here, here and here). I count myself part of the latter school of thought. In this post I will explore the possible reasons for the law school student profile and look at possible ways forward.

There can be little doubt that NUS law students mostly studied at the same JCs, and as Mr Subhas Anandan has observed, that we mostly come from similar socio-economic backgrounds. After almost four years at the school, a few clear observations can be made. I hope no one finds them offensive; I think these observations are abundantly obvious, and I do not make any value judgment about these facts. First, law students generally have wealthier backgrounds than average Singaporeans. This can easily be assumed based on the type of housing most of my peers (and I) live in. Secondly, mother tongue fluency and mastery is doubtful among a fairly large number. This is worrying when we consider the important role of representation lawyers play. There are further observations about the over- and under-representation of certain races and religions, but I will play safe and avoid them here.

This profile is a direct result of the fact that the Singapore legal system operates almost entirely in English - statutes, cases, hearings, pleadings, affidavits are all only in English, along with the vast majority of contracts and commercial work. This, in turn, is due partly to Singapore’s colonial legacy and partly to Singapore’s political choice to use English as the language of government, administration and education.

There is therefore a gap that arises between Singapore law and the social context in which it operates: while Singapore society is a diverse multilingual and multicultural fabric, the law is a monolingual monolith that stretches and bends to accommodate the variety of traditions and customs (e.g., the Administration of Muslim Law Act, MPs can debate in any of the four official languages) but is not sufficiently plural to acknowledge the richness of our society.

This is reflected in the NUS law student profile: students who want to and can study law are naturally drawn, due to parental encouragement, admissions requirements and personal preferences, from a particular English-speaking milieu. These families tend to be wealthier than mother tongue-speaking families, whether due to inherited wealth from the colonial era when English-speaking locals worked for the colonial administration and dominated business or due to the economic gap created by the shutting down of vernacular schools and the merger/closure of Nantah, denying a generation of Chinese-educated students a university education in their own language.

So this is how things are now. And as they stand, I do not see any long term structural solution. The best people to negotiate an English legal system are people who are familiar and expert with the English language. These people will continue to hail from the same backgrounds. For now, I think the review of admission criteria is a good step to accelerate the diversification of law students and the legal profession. Some will argue that the proposed changes will undermine meritocracy. First, true meritocracy is an impossible dream: John who is shuttled to and from school and tuition and enrichment and gets homework help from his doctor/lawyer parents has a far better chance at A Levels or any “meritocratic” examination, through no merit of his own, than Jane who wakes up at 5 to drag her tired self to school and has no tuition and has to help with domestic chores and her brother’s homework. Nonetheless, I agree that any changes should simply change the type of recognized “merit” to benefit underrepresented student segments, without completely ignoring merit. I do not believe students should be blatantly favoured or disfavoured simply because they come from particular schools. Instead, I suggest emphasizing worthy academic criteria that are currently ignored.

One such criterium could be mother tongue proficiency. The job of a lawyer is essentially representative and communicative and it is important that lawyers are able to relate to and communicate with those they represent. In this regard I am particularly concerned about the poor mother tongue abilities of most law students, including myself. I would suggest that mother tongue results play a greater role in the admissions process, perhaps as a bonus trump card. Another way of diversifying the student profile without overt discrimination is to prioritise students of science and mathematics, who are under-represented in law school. This is partly because top science students tend towards medicine and science courses, and partly because of the heavy emphasis on GP/KI for law school admission, essay subjects at which science students are less trained.

With increased English literacy and proficiency, I think the narrow law student profile will gradually diversify. No doubt the academic requirements will mean that wealthier students who stay in wealthy areas with good schools and have parents who can afford the time and money to nurture their children academically will still have an edge. But once the language barriers erode and more and more Singaporean families converse in English at home and Singapore becomes a properly English-speaking country, we should see a broader range of students from different backgrounds who want to study law and meet the language requirements.

One ideal structural solution would be a genuinely multilingual legal system, if Singapore is truly sincere about multilingualism. In such a system (Canada, Ireland and the European Union are examples), laws would be promulgated in all official languages, having either equal authority or with one language having final authority, as is the case in Ireland. Court submissions and hearings can be made and conducted in any official language and all official documents are available with translations, at least upon request. The costs of such a system would of course be considerable, and it is probably too late and pointless for Singapore to embark on such a project now that most of the population is fairly comfortable with English. For now, the review is worth applauding.