Priscilla Chia, a lawyer at Peter Low & Choo LLC, argues that it is time to reconsider whether the GRC system is meeting its stated aim of achieving minority representation. This is an excerpt from Voting in a Time of Change, edited by Kevin YL Tan and Terence Lee (Ethos Books, 2021).
One issue that remained in the minds of voters after GE2020 was: What would happen to Sengkang GRC should the Attorney-General’s Chambers (AGC) decide to charge the minority MP-elect for Sengkang GRC, Raeesah Khan? During the election campaign, police reports were filed against Khan in respect of two comments she had made online. Shortly after, the AGC advised that her actions had disclosed “the offence of promoting enmity between different groups on the grounds of religion or race”. Raeesah was subsequently let off with a “stern warning” and no charges were proffered.
Had she been charged and convicted, she would have had to vacate her seat. In Wong Souk Yee v Attorney General, the Court of Appeal held that there was no constitutional requirement to call for a by-election unless every single seat in a GRC had been vacated. Such non-filling of casual vacancies in a GRC creates the risk of under-representation in Parliament. Beyond highlighting existing problems in the GRC scheme and the non-calling of a by-election unless all seats in a GRC have been vacated, I will argue that GE2020 provides signs that the GRC scheme may no longer be relevant in light of the changing needs and aspirations of Singaporeans.
The 1988 Parliamentary debate
The GRC scheme was introduced on 11 January, 1988 by way of an amendment to the Constitution and Parliamentary Elections Act (PEA). Goh Chok Tong, then the Deputy Prime Minister, told Parliament that the objective was to ensure a multiracial Parliament, while also serving the larger purpose of making it necessary for all political parties to adopt a multiracial approach in their competition for seats in Parliament.
Amendments to the PEA provided that a writ of election would only be issued if all members of a GRC vacated their seats in Parliament. DPM Goh explained that this was to ensure that MPs who had been elected to Parliament under a GRC would not be forced to vacate their seat due to the departure of his or her team members. During the parliamentary debates that ensued, Singapore Democratic Party (SDP) Secretary-General Chiam See Tong raised concerns over the burden that would have to be borne by remaining members in the GRC, especially in the event that only one member was left in the GRC. PAP backbencher S Vasoo, while supportive of the introduction of the GRC scheme, expressed concerns that if a by-election was not called should a minority member vacate his or her seat, the underlying principle of the bill to ensure minority representation in Parliament would be negated.
In his response to Vasoo, Goh stated that the GRC scheme was meant to ensure a multiracial Parliament and not a multiracial team in every single constituency. Furthermore, the Government did not want to provide for a compulsory by-election to replace a member who had vacated office as it introduced the possibility that a single member could hold the other two to ransom: in such case, the minority member can potentially resign and trigger the resignation of the remaining members. In Goh’s words, if one resigned, “so be it”, and if two resigned, “the other one […] should remain” so as to avoid the possibility of a member using his or her position on the GRC to extract concessions from other MPs.
Interestingly, however, the Constitution (Amendment) Bill, 1988 did not contain an amendment to Article 49(1) of the Constitution, which provided for the filling of a vacancy of a Member, even though the amendments to the PEA made it clear that no writ for election would be issued for a GRC unless all seats in the GRC fall vacant. It reads:
Filling of vacancies
49.—(1) Whenever the seat of a Member, not being a nonconstituency 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.
Both bills were subsequently referred to a Select Committee for further consideration and deliberation. The Select Committee recommended, among other things, that the GRC concept as proposed be “accepted to ensure the multi-racial character of Parliament”. On 18 May 1988, Parliament passed both bills unanimously.
The Government has continued to maintain its position that no by-election needs to be called unless all seats in a GRC have been vacated. In 2010, following the death of Ong Chit Chung, MP for Jurong GRC in 2008, Nominated Member of Parliament (NMP) Thio Li-ann moved a motion in Parliament calling for amendments to the PEA (the ‘PEA Amendment Motion’), such that a writ of election shall be issued in the event that a seat of a minority member in a GRC is vacated and when half or more of its members in a GRC vacate their seats. Unsurprisingly, the motion did not pass, although four other NMPs voted in favour of the motion.
Whether the GRC scheme serves to function as a guarantee of minority representation in Parliament remains debatable given that the fielding of a multiracial slate of candidates by political parties is the basic expectation of voters. The desirability of the GRC scheme must also be considered with reference to the costs of what is being sacrificed: the constraining of a voter’s choice where a voter is forced to vote in a team comprising members which the individual may not necessarily accept; the risk of under-representation in Parliament should one or more member in the GRC vacate during the Parliamentary term; and the sustainability of a political future in which the GRC scheme structurally favours the incumbent. The GRC scheme and the non-filling of casual vacancies in a GRC are clearly not without problems, as the following discussion of Wong Souk Yee will show.
Wong Souk Yee’s challenge
On 7 August 2017, Mdm Halimah Yacob resigned from her seat as MP for Marsiling–Yew Tee (MYT) GRC, a four-member GRC, to contest the fifth Presidential Election. Halimah was subsequently sworn in as Singapore’s eighth President on 14 September 2017. On 8 August 2017, just one day after her resignation as MP for MYT GRC, the People’s Association appointed MP for Chua Chu Kang GRC, Zaqy Mohammad, to serve as a grassroots advisor to MYT GRC in Halimah’s place.
Wong Souk Yee, a prolific playwright and a former political detainee, was a resident of MYT GRC under Halimah. She had, in 2015, contested elections in MYT GRC under the banner of the Singapore Democratic Party. On 13 September 2017, Wong initiated a court application for, among other things, an order for a by-election to be held for MYT GRC. Without a by-election being called, MYT GRC residents would not be fully represented in Parliament for a number of years, most probably till the next general election which was due in 2021.
Wong’s application came after the landmark Court of Appeal decision in Vellama d/o Marie Muthu v Attorney-General in 2012. Vellama, a Hougang resident, took out a court application for an order requiring Prime Minister Lee Hsien Loong to issue a writ of election for Hougang Single Member Constituency (SMC) within three months from the date the seat fell vacant as well as a declaration that this was required.
The court application took place against the backdrop of the expulsion of the then MP for Hougang SMC, Mr Yaw Shin Leong, by the Workers’ Party. As a result of his expulsion, the seat in Hougang SMC became vacant. By the time of the hearing of Mdm Vellama’s application, the Prime Minister had already announced that a by-election would be called for Hougang, making the case moot. Nonetheless, as the case concerned serious constitutional issues, the Court of Appeal proceeded to hold that Article 49 of the Constitution requires a vacant seat to be filled by election “within a reasonable time” and that the Prime Minister had no discretion as to whether or not a by-election was in fact necessary. The Court found that on the plain reading of Article 49(1), the Constitution clearly places a duty upon the Prime Minister to call a by-election to fill casual vacancies of elected members which may arise from time to time.
However, the Court in Wong Souk Yee held that such a duty only applies in the context of an SMC, as Section 24(2A) of the PEA provides that where a member in a GRC ceases to be a Member for whatever reason, no writ shall be issued to fill the vacancy unless all members in that GRC have vacated their seats. Section 24(2A) reads as follows:
Writ of election
(2A) In respect of any group representation constituency, no writ shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.
Wong’s case sought to clarify the apparent conflict between Article 49(1) — which in its plain reading suggests that as long as a single member vacates his or her seat, a by-election must be called — and Section 24(2A) of the PEA, which states the contrary. As a matter of hierarchy, the Constitution, being the supreme law of the land, should take precedence over an Act of Parliament such as the PEA.
Wong’s argument was that Article 49(1) applies to the filling of vacancies in a GRC because: (a) Article 49(1) does not distinguish between the ‘seat’ of a Member in a GRC from that of an SMC; and (b) there are no other constitutional provisions providing for the filling of vacancies in a GRC. While the legislative intention behind Section 24(2A) when introduced in 1988 was to only have a by-election if all seats in a GRC are vacated, Parliament failed to reflect such an intention by not amending Article 49(1). As such, it was not for the Courts to interpret Article 49(1) in a manner that would give effect to section 24(2A) of the PEA — an ordinary statute — as such an interpretation is equivalent of rewriting Article 49(1); something the Court had no constitutional power to do.
Wong also argued that Article 39A of the Constitution requires each GRC to include at least one ethnic minority member to be in Parliament until its dissolution. The express words “to ensure representation in Parliament of Members from the Malay, Indian and other minority communities” connotes a continuous obligation to ensure minority representation not merely at the date of the election but until the dissolution of Parliament. When a minority seat in Parliament is vacated, minority representation in Parliament is diminished. If this is constitutionally permitted, it follows that no by-election is required to be called in a situation where all minority members in Parliament vacate their seats before Parliament is dissolved, and the purpose of the GRC scheme will be completely frustrated.
The AG’s case
In response, the Attorney-General (AG) argued that Wong’s reading of Article 49(1) would force the remaining duly elected members in the GRC to vacate their seats. On the face of it, Article 49(1) only provides for an election for the vacant seat and does not contain an obligation to call an election for all the seats in a GRC. Further, Article 49(1) is intended to deal with the filling of vacancies and not intended as a vacancy-creating provision. In any case, Wong’s interpretation contradicts Article 39A of the Constitution, which is a clear indication that Parliament’s intention in enacting the GRC scheme was to ensure minority representation at the point of election, rather than requiring a GRC to comprise a racial minority member until the dissolution of Parliament. Thus, the Court should give effect to Parliament’s express intention by applying a rectifying or updating construction to Article 49(1), being the provision that the vacancy shall only be filled by a byelection when all the seats in the GRC have been vacated.
Alternatively, the Court can apply the interpretation that the ‘Seat of a Member’ in Article 49(1) does not apply to the filling of vacant seats in a GRC. This would mean that the government has no constitutional obligation to fill vacant seats in a GRC even when all the seats are vacated.
The Court’s ruling
The Court began its analysis by observing that Article 49(1) was ambiguous in relation to whether and how it applied to GRCs. This is because the article had first been enacted in 1965 when the GRC scheme did not exist and its wording remained largely unchanged since then.
There were three possible interpretations of Article 49(1):
- The vacancy as and when it arises shall be filled by a byelection for all the seats in the GRC (‘Interpretation 1’, also the interpretation argued by Wong);
- The vacancy shall only be filled by a by-election if and when all the seats in the GRC have been vacated (‘Interpretation 2’, as argued by the AG); or
- The ‘seat of a Member’ refers only to the seat of a Member of an SMC and Article 49(1) does not apply to a GRC at all (‘Interpretation 3’, also argued by the AG).
The Parliamentary debates in respect of the PEA and the Constitutional (Amendment) Bill made it clear that Parliament did not intend for the government to be obliged to call a by-election in the event of a single vacancy in a GRC but only when all members in the GRC have vacated their seats.
Given the lack of clarity on how Parliament intended to achieve this desired outcome, Interpretation 2 was rejected. This left the Court with Interpretations 1 and 3. The Court preferred Interpretation 3. The Court observed that during the debates in Parliament in respect of the introduction of the GRC scheme, Parliament had specifically considered the risk of minority representation being diminished when a minority member seat is vacated. However, Parliament decided that this risk was an acceptable trade-off for preventing a member of a GRC from otherwise being able to hold the other members of that GRC to ransom. To accept Wong’s argument that Article 39A of the Constitution requires a by-election to be called when a minority seat vacates would be a reversal of a policy choice expressly made by Parliament and result in the Court overstepping its constitutional role. There was thus no requirement under Articles 49(1) and 39A of the Constitution for a by-election to be called in MYT GRC.
Implications of the case
While the vacancy in the MYT GRC has since been remedied by the calling of GE2020, the issue of vacancies in a GRC continues to pose a practical issue of concern for residents in a GRC. The Court of Appeal’s decision does not resolve this conundrum and poses further constitutional dilemmas. Article 49(1) expressly states that when the “seat of a Member, not being a non-constituency member” is vacated, it “shall be filled by election”. The interpretation that Article 49(1) is inapplicable to the filling of GRC vacancies when GRCs are made up of individual seats appears inconsistent with the general wording in Article 49(1), especially since it does not exempt GRCs from its applicability. Respectfully, what the Court did limited the scope of Article 49(1) in a way that its express wording does not. Of course, it does not mean that the Constitution should be interpreted in a strict textual or pedantic manner as absurd outcomes can result from such interpretations. However, the Court’s interpretation effectively cures Parliament’s legislative oversight in failing to amend the Constitution to reflect the Government’s position that no by-election be called unless all seats in a GRC have been vacated.
We should bear in mind that the GRC scheme was introduced to guarantee minority representation in Parliament. If the fundamental purpose of the GRC scheme is to guarantee minority representation in Parliament, it makes no sense to guarantee minority representation only at the point of election but not throughout the term of Parliament, and with no corresponding mechanism to guarantee minority representation throughout.
Moreover, the practice of having other members of the GRC cover the duties of their former colleagues is to compromise residents’ interests and representation in Parliament. Under-representation in Parliament comes in the form of having one less voice in Parliament and fewer parliamentary questions filed since each Member can only file five parliamentary questions per Parliamentary session. On the ground, residents also have one less Town Councillor to manage the municipal affairs of the constituency. In this regard, the Electoral Boundaries Review Committee, in drawing up the electoral divisions noted that the average ratio or parliamentarian to elector was about 1: 29,200, and that it was “mindful that (…) GRCs with fewer MPs should not have more electors than GRCs with more MPs”. The consequence of permitting casual vacancies in a GRC is to disproportionately increase the elector-to-MP ratio.
That voters should be represented by a full slate of elected MPs in a GRC is a right and not a privilege. The non-calling of a by-election unless all seats in a GRC are vacant subjugates residents’ interests to the roll of the dice and fails to adequately protect their interests and right of representation. A principled approach that prioritises the needs of residents in a GRC demands that a by-election be called to fill any casual vacancies within a GRC.
The times they are a’changing
GE2020 made it clear that a new political equilibrium has been set in motion and, more significantly, that entrenched political levellers such as the GRC scheme may be increasingly outdated and may not be responsive to the needs and aspirations of younger generations. The GRC scheme was a product of a particular set of socio-political circumstances which may have suited the needs of a particular generation. However, some signs from GE2020 reinforce the fact that the scheme may be losing its relevance.
One, the GRC Scheme may not adequately tackle the intent for minority representation given that there is no corresponding mechanism to guarantee minority representation until the next election. Two, the electorate, especially the younger voters demand fairness and want a level playing field for all political parties. The GRC scheme privileges the incumbent and may be perceived as tilting the playing field in its favour. Moreover, even when the opposition was able to gain two GRCs in the past decade, GE2020 provides further evidence of how difficult it remains for the opposition to win a GRC, where even a 28 percentage point swing against the PAP in West Coast GRC could not dislodge a PAP team led by two ministers. Finally, the outrage over a potential candidate, Ivan Lim is an example of how it is increasingly clear that voters do not want to give candidates a complimentary entry pass. Voters want each candidate to prove their worth at the ballot box, and justifiably so. The GRC scheme, however, forces voters to vote for candidates they may find undesirable in order that other candidates in the same team (whom they like) get voted into Parliament.
Another dilemma thrown up by the GRC system is that when the incumbent fields individual or multiple political officeholders in a GRC, having to vote that entire GRC team in or lose office-holders — even a presumed future Prime Minister (as in East Coast GRC in GE2020) — acts as a further constraint on voter choice.
In unprecedented times and amidst shifting political winds, it becomes even more urgent and necessary that our political system and, in particular, the design of the GRC scheme evolve with the changing needs of a generation or risk losing political legitimacy.