Constitutional law professor Kevin YL Tan delves into history to show how once-honoured principles for delineating constituency boundaries have been compromised since the 1990s. To ensure that executive discretion does not exceed legal bounds, Singapore should revisit the all-party boundaries committee’s recommendation ahead of the 1959 general election: Singapore should create an independent and permanent electoral boundaries committee that reports to the legislature. This is an excerpt from Tan’s chapter in the volume he co-edited with Terence Lee, Voting in a Time of Change (Ethos Books, 2021).

When the Electoral Boundaries Review Committee (EBRC) released its report on 13 March 2020, voters were told that there would be a Parliament of 93 seats comprising representatives to be elected from 14 Single Member Constituencies (SMCs) and 17 Group Representation Constituencies (GRCs). This was up from 89 seats. At first glance, increasing the size of Parliament by four seems unremarkable, given that Singapore’s voting population grew by almost 200,000 from 2015 to 2020. 

A closer look at the details of the EBRC’s report, however, shows that three SMCs — Sengkang West, Punggol East and Fengshan — were eliminated, while four new SMCs were created in Kebun Baru, Marymount, Punggol West and Yio Chu Kang. The constituencies that were eliminated were the ones that the ruling PAP had won but fared the poorest in GE2015. The composition of two former four-member GRCs — West Coast and East Coast — was increased to five members each. In 2015, the PAP had a majority of 60.63% in East Coast GRC, the lowest majority in all the GRCs it won. There was also widespread speculation that former PAP MP Tan Cheng Bock — now Secretary-General of the newly formed Progress Singapore Party (PSP) — was most likely to contest in West Coast, his old stomping ground.

Unlimited discretion?

This article considers the nature and limits of the Prime Minister’s administrative discretion in convening the EBRC, the application of this discretion through the years, and the legal issues and consequences arising from the exercise of that discretion. The Prime Minister’s discretion to determine how electoral boundaries are drawn stems from Section 8 of the Parliamentary Elections Act (PEA), which reads:

8.—(1) The Minister may, from time to time, by notification in the Gazette specify the names and boundaries of the electoral divisions of Singapore for purposes of elections under this Ordinance.

(2) The number of electoral divisions of Singapore shall be the total number of the electoral divisions specified in the notification made under subsection (1).

Section 8A of the PEA further provides for the specifying of two types of constituencies — GRCs and SMCs — with the requirement that there “shall at all times be at least 8 electoral divisions which are not group representation constituencies”.

But beyond these general edicts, there is absolutely no guideline on how the Minister’s power under Sections 8 and 8A will be exercised. Does this mean that the Prime Minister may do as he or she chooses? Is there anything to stop the Prime Minister from abolishing constituencies that habitually vote for the opposition?

The notion of an unfettered discretion is anathema to the concept of the rule of law, which requires that all persons, including the state are under the law, and that the law applies equally to everyone. As the Court of Appeal so eloquently put it in Chng Suan Tze v Minister for Home Affairs & Ors (1988), “In our view, the notion of a subjective or unfettered discretion iscontrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.”

In the event of a legal challenge, the Court will ensure that the executive authorities — in this case, the Prime Minister exercising his discretion under the PEA — do not exceed their jurisdiction and act outside the law. The Court will consider if the Minister has exceeded his jurisdiction in making a decision that is tainted by the 3 ‘I’s:

• Illegality: Illegality occurs when a decision-maker fails to act within his or her legally defined jurisdiction. 

• Irrationality: Under Lord Diplock’s formulation, an irrational decision is one which is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. 

• Procedural Impropriety: The duty of an administrative authority to act fairly is particularly important when the exercise of that authority adversely affects the rights of individuals. If the Minister’s exercise of discretion in drawing or redrawing electoral boundaries violates an individual’s vested rights, procedural fairness requires that the individual who has been adversely affected by the Minister’s decision should have the right to be heard, i.e., the right to present his or her case, and to have the hearing before an impartial tribunal.

Historical perspective

Beyond the specific limitations on the number of SMCs and GRCs as well as GRC sizes, the PEA provides little guidance on the manner in which the discretion is to be exercised. What did the drafters have in mind? Section 8 of the PEA had its origins in Section 8 of the Legislative Assembly Elections Ordinance 1954. That year, the Rendel Constitutional Commission considered the question of elections and delineation of electoral districts and recommended that electoral divisions be delimited in accordance with certain stated principles.

The basic principles tell us the following. First, it was clear to the Rendel Commission that insofar as was possible, voting should take place in a genuinely democratic manner where the ‘value’ of each vote would be, insofar as practicable, equal to that of another. Second, given the way in which the Singapore population was settled throughout the island in 1954, it was imperative to ensure that there was proper representation for both urban and rural areas. Third, in delineating electoral boundaries, “[d]ue regard should be paid to such factors as geography, communications and density of population”. 

While the authorities in charge of elections were assiduous in conforming to the principles established by the Rendel Commission in the early years, more recent decisions of the EBRC are not similarly guided by these clear and robust principles of delineation.

Pre-Independence

On 27 March 1954, a working party was appointed to submit proposals for the setting of electoral boundaries. Following the submission of a provisional report and a final report the Governor appointed the Boundaries Delimitation Committee to “make definitive recommendations”. The Committee closely followed the principles for delimitation detailed in the Rendel Commission Report even though the “figures for the distribution of electors on the island” were not available. 

In 1958, an all-party Boundaries Delimitation Committee was established to prepare electoral divisions for the 1959 General Election. Even though the 1958 Committee was given a very wide remit, it adopted a set of principles that were fully consonant with those recommended by the Rendel Commission. The Committee then went into great detail, justifying the delineation of each electoral division on the principles it had adopted. Noticeably uncomfortable with its ad hoc nature, the Committee proposed that immediately after the election, an Act be passed to provide for a “permanent machinery for the delimitation of boundaries”. After the 1959 general election, no steps were taken to consider or operationalise the 1958 Committee’s recommendations. Instead, a new ad hoc committee would be appointed every three to four years.

1960s to 1970s

The electoral boundaries delineation committee established in 1967 in preparation for the 1968 General Election was charged with reviewing the boundaries but “without eliminating any of the existing constituencies” and to “recommend such changes or adjustments” necessary to ensure “more equal representation”. 

The reason for retaining the original 51 electoral divisions was that they had “acquired significance as distinct and separate entities and have established themselves with the formation of the Citizens’ Consultative Committees”. As such, changes and adjustments would only be made to those electoral divisions that were viewed as “abnormally large”.

A point of considerable importance is that the Committee decided that to even out the sizes of the constituencies and their voters, and to make the value of each vote more or less equal, it would adopt a 20% deviation from the mean as a standard of computation. This formula, originally proposed by the Stewart Committee of 1963, continued to guide the Committees of 1971 and 1976.

The principles formulated by the 1958 Committee — i.e., to make boundaries clear both on the map and on the ground; and to be mindful of the local community’s identity of interests — appear to have been abandoned, with only the equality principle being operative. 

1980s

While the terms of reference for the Committees of 1980 and 1984 continued to adopt the same ‘ensure more equal representation’ template, the Committee of 1980 decided to increase the deviation from mean from 20% to 30%. By increasing the deviation allowable, the number of electors throughout the constituencies becomes less, and not more, equal. The 1984 Committee came closest to explaining the adoption of the 30% deviation when it stated that it was “not practical or desirable to limit the size of every electoral division to 21,000 as that would entail massive redrawing of boundaries”. Had the Committee decided this as a matter of convenience? What about the instruction to ensure more equal representation?

Since 1991

By the time Goh Chok Tong took over as Prime Minister, the Committee — now renamed the Electoral Boundaries Review Committee — was no longer charged with reviewing the electoral boundaries in a manner that would ensure more equal representation throughout the constituencies. The terms of reference for the 1991 Committee were simply to “recommend the required number of Group Representation Constituencies and Single Member Constituencies in accordance with the provisions of the Parliamentary Elections Act (Chapter 218), by, wherever possible, the amalgamation of two or more constituencies”.

There was no mention of the equality principle. The Prime Minister — as minister in charge of elections — exercised his discretion in an absolute manner by instructing the EBRC to simply draw lines without any guidance or principle. This became the template for all subsequent terms of reference to subsequent Committees. 

Of course, the instruction to create a minimum number of SMCs is constitutionally mandated and would have constrained the EBRC in any case. The PAP government pushed to increase the size of GRCs from three to four in 1991 and then from four to a maximum of six in 1996 on the ground that larger GRCs would allow the government to devolve more power to the Town Councils and Community Development Councils (CDCs) and give voters a “bigger stake in the result of their choice, because team MPs will manage more matters, including some duties of the Government” now carried out by the Ministries of Community Development and Education and the hospitals.

The Government was so convinced by the logic of this scheme that it had earlier amended the PEA to provide that up to three-quarters of all MPs should come from GRCs. What happened to the much vaunted objective of equality? Why has the Prime Minister been instructing the EBRC to reduce the size of GRCs over the past three elections? In his speech during the debate on the President’s address in January 2016, Prime Minister Lee Hsien Loong pointed to the need to strike a balance between large and small GRCs as bigger GRCs benefit from “having an anchor Minister take care of their affairs” and “better economies of scale” in running programmes and the Town Council, while smaller GRCs “create a closer connection” between MPs and their residents. He added that smaller GRCs and more SMCs had been created between 2011 and 2015, and “the results have been good”. He would thus instruct the EBRC to “reduce the average size of GRCs further, and to create more SMCs” for 2020.

Are these reasons related to achieving more even representation, or enhancing Singaporeans’ rights to vote? Or was this an admission that the Government made a mistake by creating too many large GRCs?

Legal issues

In the absence of clear guidelines on how ministerial discretion is to be exercised under Section 8 of the PEA, we need to start with basic principles. The objective of Section 8 is to provide for the proper delineation of electoral divisions in Singapore so that fair and free elections might be held. As voting is the constitutional right of every citizen, the drawing of electoral boundaries must necessarily promote this right in as fair a manner as possible. Set out below are ways in which this objective may not have been met.

Malapportionment

One of the biggest difficulties with electoral boundary delineation is the dividing up of electoral divisions into roughly the same size, with each having roughly the same voting population.

Between 1958 and 1980, successive Committees adopted a 20% deviation from the mean because it was felt that such a deviation was necessary to even out the distribution of voters in urban areas with those living in the sparsely populated rural areas. Ironically, the 1980 Committee — and all subsequent Committees — adopted a 30% deviation even though Singapore’s population distribution was becoming much more evenly distributed due to the building of HDB new towns all over the island. 

There is no standard acceptable deviation from the mean. In countries like Armenia, Germany and the Czech Republic, a maximum deviation of 15% is allowed, while Canada requires the boundaries of any constituency that hits the threshold of a 25% deviation to be redrawn.

I would argue that if a deviation formula allows for one constituency to have double the ‘voting power’ of another, malapportionment is clear. From a purely mathematical point of view, a 30% deviation runs us very close to such malapportionment. At 30% deviation, the ratio of the smallest to the largest constituency would be 1:1.86. A further 5% deviation would change that ratio to 1:2.08. In other words, it takes more than twice the number of voters in some constituencies to send a representative into Parliament than others.

Over the years, the deployment of the 30% deviation has led to significant inequities in voting power. Voters in Potong Pasir SMC are the most ‘powerful’ in Singapore since it takes far fewer of them to elect a representative into Parliament than the other constituencies. In 2015, it took twice as many voters in Bukit Panjang to send an MP to Parliament compared with voters in Potong Pasir. In all the elections in this century, the EBRC failed to adhere to its own 30% deviation (insofar as the minimum number is concerned), except for GE2020.

Effects of malapportionment: How the 30% standard deviation guideline challenges the principle of equality

If not all voters are treated alike, this may violate Article 12 of the Constitution which guarantees to all persons, “equal protection of the law”. Furthermore, the exercise of discretion with regard to constituency sizes and demographics bears no relation to the object of Section 8 of the PEA, which is to provide for free and fair elections on the basis of voter equality. This may therefore lead to a potential legal challenge on grounds of administrative illegality or irrationality.

Irrationality and Illegality

As pointed out above, the underlying rationale that drove the change in the number of GRCs and SMCs — or the post-2011 reduction in the size of GRCs — remains unclear. If these changes cannot be justified, they can be struck down as being irrational. Worse still, if it can be shown that the Prime Minister’s decision was actuated by some extraneous or collateral political purpose, the decision may well be struck down for bad faith or mala fides.

A number of interesting observations may be made with respect to the boundary drawing exercise. One is the disappearance of wards that the PAP had performed poorly in, especially SMCs. The most obvious change came about after the 1991 general election, the first helmed by Goh Chok Tong as Prime Minister. That election, which had been called early because it was thought that the ground was sweet, turned out poorly for Goh’s team, which managed to score only 61% of the popular vote. The PAP lost four SMCs — Bukit Gombak, Hougang, Nee Soon and Potong Pasir — and scored less than 60% in six other SMCs. 

In the general election that followed, the EBRC recommended reducing the total number of SMCs from 21 to nine. These were then absorbed into the constitutionally enlarged GRCs. They were: Bukit Batok (where the PAP had a majority of 51.82%); Braddell Heights (52.27%); Nee Soon South (52.76%); Changi (53%); and Yuhua (56.16%).

In 2011, the PAP won all the SMCs except for Hougang. Its next worst performing SMC was Joo Chiat, where it scored a majority of just 51.02%. Joo Chiat SMC was subsequently eliminated and absorbed into the neighbouring constituencies in the next general election in 2015. As noted above, the constituencies in which the PAP won but fared the poorest in the general election of 2015 were also eliminated by the EBRC report of 2020.

In the Prime Minister’s terms of reference to the 1997 EBRC, the Committee was instructed to carve out what had hitherto been MacPherson constituency from Marine Parade GRC. MacPherson constituency was created in 1968 and was absorbed into Marine Parade in 1991. The reason for this highly unusual move was the widely-publicised exchange of letters between

the PAP’s Matthias Yao and the Singapore Democratic Party’s Chee Soon Juan, which culminated in Chee challenging Yao to stand one-on-one against him in the next general election. If the purpose for reinstating MacPherson as an SMC in 1997 was purely to allow Yao to respond to Chee’s challenge, the PM’s discretion should, in this instance, be regarded as having beeing exercised for an improper purpose and hence illegal. 

Carving out the SMC does nothing for the PEA’s legislative object, which is to ensure fairer elections and equality of the vote. Interestingly, MacPherson was once again carved out of Marine Parade GRC in 2015 as a separate SMC following speculation that Tin Pei Ling was elected in 2011 on the coattails of Senior Minister Goh Chok Tong, and that it was necessary to prove otherwise.

A permanent and independent mechanism

The PEA was enacted in the dying days of colonial government in Singapore. It was fully intended that a proper, permanent mechanism for the drawing of electoral boundaries be established and instituted. Despite the fact that the pioneering 1954 and 1958 Committees worked hard to establish logical principles to guide the exercise of executive discretion, nothing was done by the Committees that followed to further this. It may well be that by leaving the rules vague, the incumbent government holds an advantage over its opposition. 

Even so, the exercise of power is necessarily constrained by law, and good law requires that clear and fair rules be established and enforced. To confer on any authority an absolute discretion is to place that authority above the law. Good rules work both ways. A strong and robust rule of law requires that regardless of who is in power, the law applies equally and fairly to all. While the PAP may not have seriously contemplated their losing power yet, it must surely also be in its interest to have a proper mechanism with clear rules in place.

Until such time, and so long as these issues remain uncertain, the likelihood of an administrative challenge is ever-present. It is high time that Singapore has an independent and permanent electoral boundaries committee that reports to Parliament.