Media Summary

Vellama d/o Marie Muthu v Attorney-General

[2012] SGHC 155

The legal issues

1 There are two legal issues in this application: see [12].

(a) “The Procedural Issue”

(i) Does the court have the power to grant standalone
declarations in an application commenced under
Order 53 of the Rules of Court for a Mandatory
Order which included the declarations?

(b) “The Substantive Issue”

(i) Does the expression “shall be filled by election” in
Article 49(1) of the Constitution mean that the
Prime Minister must advise the President to issue
a writ of election to fill the vacancy of an elected
Member of Parliament?
(ii) If so, when must the writ of election be issued?

The Procedural Issue

2 The court does not have the power to grant standalone

declarations independent of the prerogative order for applications
commenced under Order 53. However, since the law on the procedure
was unclear and the applicant had expressly reserved her right at the
outset to apply for declarations under Order 15 rule 16 of the Rules of
Court, the court heard and determined the Substantive Issue: see [35]
and [37].

The Substantive Issue

3 The court does not take Constitutional expressions out of

context or determine their meaning in isolation. The Constitution,
which is the supreme law of the nation, is not to be approached or read
loosely or superficially. As a matter of law, any interpretation of the
Constitution must begin with its text. If the text of the provision is
unclear, extrinsic sources such as the Constitution’s history and
framer’s intentions may be referred to: see [53].
4 The meaning of the phrase “shall be filled by election” in Article
49(1) takes its meaning first within the context of Article 49 itself, and
then within the wider context of Part VI of the Constitution which
provides for the Legislature, and finally, within the context of the
entire Constitution: see [54].

5 Compared to Article 66 of the Constitution, which uses the

expression “shall be a general election”, Article 49(1) does not state that
the vacancy “shall be filled by an election”. Instead, it merely states
that the vacancy “shall be filled by election”: see [58].

Article 49(1) Article 66

Filling of vacancies
49.—(1) 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 in the manner provided
by or under any law relating to
Parliamentary elections for the
time being in force.
General elections
66. There shall be a general
election at such time, within 3
months after every dissolution of
Parliament, as the President shall,
by Proclamation in the Gazette,
appoint.

6 The word “shall” ordinarily means that whatever it is referring

to is mandatory. However, what is being mandated by the word
“shall” in Article 49(1) is not immediately clear, because “election” can
mean either:
(a) an event, in the sense, “to hold an election”; or
(b) a process, in the sense, “by the process of election”.

7 If “shall” is referring to an “election” in the first sense, then it

means that the holding of an election is mandatory; whereas if “shall”
is referring to an “election” in the second sense, then it means that the
vacancy can only be filled by election and not by any other process,
such as by appointment: see [59] and [60].

8 Looking at Article 49(1) alone, a literal reading of “election” is

capable of more than one meaning: see [61]. From the internal structure
of Part VI of the Constitution, it is clear that the Constitution prescribes
different rules and mechanisms depending on whether the Member of

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Parliament is an elected Member, a non-constituency Member or a
nominated Member: see [78].

9 Article 49(2) provides for the process of filling vacated seats of

non-constituency Members; whereas section 4 of the Fourth Schedule
to the Constitution provides for the process of filling vacated seats of
nominated Members. It must therefore logically follow that the word
“election” in Article 49(1) is used in the second sense. It provides for
the process of filling vacated seats of elected Members, and not the
event of election: see [79] and [80].

10 A survey of the history of Singapore’s past Constitutions

confirms this. The origin of the language of Article 49(1) can be found
in section 51(2) of the Singapore Colony Order in Council, 1955 (“the
1955 Order”) : see [96].

11 In 1955, it was necessary to distinguish between the processes of

filling (i) vacant seats of Nominated Members, and (ii) vacant seats of
Elected Members of the Legislative Assembly. Section 51 of the 1955
Order should be contrasted with Article 49(1) of the Constitution:

The Singapore Colony The current Constitution

Order in Council, 1955
Filling of vacancies
51.—(1) Whenever the seat of a
Nominated Member of the
Assembly becomes vacant, the
vacancy shall be filled by
appointment by the Governor in
accordance with the provisions of
this Order.
(2) Whenever the seat of an
Elected Member of the Assembly
becomes vacant, the vacancy shall
be filled by election in
accordance with the provisions of
this Order.
(1985 Rev Ed, 1999 Reprint)
Filling of vacancies
[No equivalent provision]
49.—(1) 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 in the manner provided
by or under any law relating to
Parliamentary elections for the
time being in force.

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12 Such a distinction was obscured in 1958 when Singapore had a
fully elected Legislative Assembly consisting only of Elected Members
and no Nominated Members. The equivalent of section 51(1) of the
1955 Order was dropped in the 1958 Order. Section 51(2) of the 1955
Order was re-enacted with the expression “shall be filled by election”
intact as section 44 of the 1958 Order: see [98] to [100].

Filling of vacancies
44. Whenever it appears to the Speaker that the seat of a
Member has become vacant, he shall, by writing under his
hand, report such vacancy to the Yang di-Pertuan Negara,
and the vacancy shall be filled by election in the manner
provided by or under any law for the time being in force in
Singapore.

13 Section 44 of the 1958 Order remained up to the time when

Singapore signed the Agreement Relating To Malaysia (“the Malaysia
Agreement”) in London on 9 July 1963. The Malaysia Agreement
contained the proposed Constitution for the State of Singapore. Article
33 of the proposed Constitution mirrored the language of section 51(2)
of the 1955 Order: see [103] and [104].

Filling of vacancies
33. Whenever the seat of a Member has become vacant for
any reason other than a dissolution, the vacancy shall be
filled by election in the manner provided by or under any
law for the time being in force in the State.

14 However, when Singapore joined Malaysia on 16 September

1963, additional words (underlined) were inserted into Article 33 of the
Constitution for the State of Singapore: see [106].

Filling of vacancies
33. Whenever the seat of a Member has become vacant for
any reason other than a dissolution, the vacancy shall
within three months from the date on which it was
established that there is a vacancy be filled by election in
the manner provided by or under any law for the time being
in force in the State.

15 The reason for this insertion was explained by then Prime

Minister Mr Lee Kuan Yew in Parliament on 22 December 1965: see
[108].

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 Members in this House will know that there was no such
injunction of holding a by-election within three months in
our previous Constitution. We resisted this particular
condition being imposed upon the State Constitution at the
time we entered Malaysia, but our representations were not
accepted because Malaysia insisted on uniformity of our
laws with the other States in the Federation and with the
Federal Constitution itself. Since we are no longer a part of
the Federal whole, for reasons which we find valid and
valuable as a result of our own experience of elections and
of government in Singapore, we have decided that this
limitation should no longer apply.

16 After the speech, Act 8 of 1965 was passed on the same day to
delete the words “within three months from the date on which it was
established that there is a vacancy” from Article 33, thereby restoring
the wording of Article 33 to its original state as in the proposed
Constitution in the Malaysia Agreement, which mirrored section 51(2)
of the 1955 Order: see [109].

Filling of vacancies
33. Whenever the seat of a Member has become vacant for
any reason other than a dissolution, the vacancy shall be
filled by election in the manner provided by or under any
law for the time being in force in Singapore.

17 Over the years, Article 33 was renumbered to Article 49(1) of the

present Constitution, but the use of the expression “shall be filled by
election” has not changed: see [111] and [112]. Therefore, “election” in
Article 49(1) must bear the same meaning as section 51(2) of the 1955
Order, i.e. “election” refers the process of filling a seat by election and
not the event of holding an election.

18 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.
Under the Constitution, to call or not to call an election to fill an elected
Member vacancy is a decision to be made by the Prime Minister.
Should the Prime Minister decide to call an election to fill an elected
Member vacancy, he has a discretion as to when to call it: see [115].

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19 The Court echoed the observations of Chan Sek Keong CJ held
in Yong Vui Kong v Attorney-General [2011] 2 SLR 1189, on the interplay
of the separation of powers between the executive, legislature and the
judiciary under our Constitution: “under Art[icle] 93 of the Singapore
Constitution, the Supreme Court has jurisdiction to adjudicate on every
legal dispute on a subject matter in respect of which Parliament has
conferred jurisdiction on it, including any constitutional dispute
between the State and an individual”: see [117].

20 The exercise of the Prime Minister’s discretion was not beyond

the reach of the supervisory jurisdiction of the courts if it is exercised
beyond its legal limits (ie, ultra vires the enabling law) or if it is
exercised mala fide (ie for an extraneous purpose). All legal power has
limits and is subject to judicial review to enforce those limits: see [117].

Judgment

21 Summons No 2639 of 2012 is dismissed: see [120].

22 Parties will be heard on costs on a late date: see [121].