Disgraceful Debating

I would like to share something from my early life that has disgusted me to this day. It was 1993 or 1994. I was in primary school. (Primary 5 or Primary 6; Henry Park Primary School, one of those... "good schools" as we were excessively told.) There was an interclass debate, and in one of the early match-ups, an EM1 class was pit against an EM3 class.

(In case that particular streaming system has now been replaced, let me elaborate. After Primary 4, students would be streamed into EM1 thru EM3. The EM1s were the "smart" ones; the EM2s the "regular" ones; and the EM3's the "slow" ones.)

The EM3 class was to support the motion that "School Uniforms are Good to Have", while the EM1 class opposed. The EM3 class, in halting English, made coherent arguments of the merits of school uniforms. (Granted, those were the obvious arguments, but they were done coherently.) On the other hand, their opponents, in well-formed complete sentences, made arguments like "The definition of uniform means 'the same in all cases', surely it is not a good idea for all pupils, both girls and boys, to wear the same attire in the same size." They won. It was a sad day for good sense.

(Note: Children have a decent sense of justice based on common sense and fairness. When it was clear that the sophistry would be a consistent feature of the EM1 class's debate speeches, many students in the hall boo-ed. My class included. The boo-ing were a protest against deception wrapped in well-formed English. I have concluded that the form teacher of that EM1 class was derelict in her duty to educate that class.)

Sometimes, when I hear PAP MPs debate or argue, I am taken back to that day. The recent discussion about a possibly by-election in Hougang provides me with a perfect example of this.

One of the NCMP's Assistant Professor Eugene Tan of SMU authored a commentary for the Feb 20 issue of Today (see below for a copy) where he opined that:

1. The Prime Minister has the prerogative on the timing of a by-election, but it does not extend to being able to delay a by-election indefinitely.
2. If the Government decides to delay or not to hold a by-election in Hougang, it should state its reasons.
3. There are still more than 4½ years to the life of the current Parliament. Hougang voters should not be deprived of having their elected representative in the House.
4. That "the cardinal principle of representation is crucial": A stand-in MP is not the same as an MP for whom the majority had voted.

PAP MP Hri Kumar Nair (Bishan-Toa Payoh GRC) responded in the Feb 24 issue of Today (see below for a copy) that:

1. Our parliamentary democracy is based on the principle that elections are fundamentally about voters choosing between different political parties to lead the country, rather than between individual candidates standing in a constituency.
2. When a seat falls vacant, there is no requirement to call an immediate by-election, unless the vacancy affects the Government's mandate.
3. This serves to hold political parties accountable to voters for the performance of their candidates.
4. If an MP does not or cannot last the term as an MP, the onus is on their party to take care of residents in that constituency.
5. To call for an automatic by-election now that the Hougang seat is vacant is to confuse the Singapore and UK model, where MPs remain MPs even if they leave or are expelled from their parties (refer to the full letter for details).

Now, we should first know that Hri Kumar is a Senior Counsel (SC). The SC rank recognizes the most senior lawyers in Singapore and was intended to be the equivalent of the rank "Queen's Counsel". There are only about 40 SCs in Singapore as compared to the population of 3500 to 4000 lawyers. They are thus expected to have a excellent knowledge of the law and be men and women of integrity. Given that Hri Kumar is serving as a MP, the requirement for integrity might be further emphasized.

Thus, it is reasonable to expect, nay, require that:

1. Hri Kumar Nair read and comprehended Article 49 of the Constitution of the Republic of Singapore (Filling of Vacancies) (see below for a copy) or was already familiar with it prior to submitting his letter for publication. (Professionalism)
2. Hri Kumar Nair would not wilfully fail to highlight any provisions in that article of the Constitution that conflict with his/his party's interest. (Integrity)

As the Constitution states in Article 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.

(Emphasis mine.) Legally, the word "shall" indicates that a particular condition must be met. This is standard in contracts and documents such as requirements specifications for tenders. (In many ways, the Constitution may be regarded as a requirements document.) The Constitution is clear that a by-election must be conducted should the seat of a MP be vacated. Hri Kumar should know it and not hide it.

He probably knew, and he did not highlight the fact. If he wasn't aware of the content of the constitution relevant to the vacation of seats in parliament and wrote to the media on it, it is an act of utmost un-professionalism and deserves stern professional rebuke. This however is highly improbable since he is a SC and also a MP. If he knew and hid the fact, then he would have betrayed the trust of the public and, in my opinion, would not be fit to be a Member of Parliament. This may be harsh, but even in his words, parties should perform "rigorous selection to ensure that men and women of integrity are fielded". I believe that MPs should be men and women of integrity. Hri Kumar has publicly shown that either he lacks this crucial quality, or he is incompetent as a lawyer.

I understand that Hri Kumar's phrasing was somewhat ambiguous. He wrote that "there is no requirement to call an immediate by-election". However, his intent seems clear to me. But to be fair, I will willingly retract my conclusions on his integrity should he clarify that a by-election must take place in Hougang due to the vacation of that seat. (In this event, it would leave us with the less severe conclusion that he lacks professionalism, which is based on his ambiguous phrasing on a matter of low complexity where he could and should have expressed himself clearly.)

This exchange brought back memories of how well packaged sophistry won out over common sense based on simple realities. This, unlike an inter-class debate in primary school, is a serious matter. It is important for our nation that what is, today, written in the Constitution of the Republic of Singapore prevails over partisan interests.

Sophistry is not wisdom. It is a misrepresentation of reality. Let us not be deceived.

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Annex A: Article 49 of the Constitution of the Republic of Singapore (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.

(2) The Legislature may by law provide for —

(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;

(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.

Annex B: The value of a by-election (Eugene K B Tan, 20 Feb 2012, TODAYonline)

If Parliament eventually determines that the Hougang seat has been vacated with the expulsion of Mr Yaw Shin Leong from the Workers' Party (WP), the spotlight will shift to Prime Minister Lee Hsien Loong.

Under the Parliamentary Elections Act, the President issues an election writ stipulating when a by-election is to be held. But it is the Prime Minister who so advises the President.

When asked last Wednesday, PM Lee said he would consider carefully "whether and when to hold a by-election in Hougang". This appears to suggest that a by-election need not be held in Hougang.

There is no obligation under the Constitution to hold a by-election within a specific time-frame. In 2008, PM Lee told Parliament that the timing of one "is the prerogative of the PM. He has full discretion and he is not obliged to call a by-election within any fixed timeline".

While the Prime Minister has the prerogative on the timing, I would argue that this does not extend to his having an unfettered discretion to delay the calling of a by-election indefinitely. In most instances, it has to be called within a reasonable time, or certainly without an inordinate delay. In short, the "default" position should be that a by-election should be automatic, although there is no hard and fast rule on the timing.

GOVT SHOULD STATE REASONS

There may be three reasons why a by-election may not be called. This could be when an MP switches political party, or when Parliament's term is coming to a close within the next 12 to 18 months, or if there is a national crisis. None of them is pertinent at this point in time.

By-elections have been called in the past even though the General Election had taken place recently. For instance, by-elections in 1967, 1968, 1977, 1981 and 1992 were called between six and 16 months prior to or after a General Election in 1968, 1976, 1980 and 1991.

Delaying the calling of a by-election to the point of not calling it would, in my view, not be in accord with the duty of due process. It would, arguably, constitute an exercise of discretion for which a legal challenge can be mounted. The fact that the Constitution is silent on when a by-election should be called does not mean one need not be called.

In any case, if the Government decides to delay or not to hold a by-election in Hougang, the Government should state its reasons.

In November 1987, the Government explained why a by-election was not conducted in both Anson and Geylang West: It was contemplating introducing a Bill to form town councils in which some boundaries might be re-delineated, including the vacated seats of Anson and Geylang West. (Eventually, the GE was held on Sept 3, 1988.)

STAND-IN MP NOT THE SAME

There are still more than 4½ years to the life of the current Parliament. Hougang voters should not be deprived of having their elected representative in the House. Although the WP's five MPs in the adjacent Aljunied GRC can cover Hougang, that is not ideal. Let Hougang residents decide how they would like to hold the WP to account in light of the recent events.

PM Lee hinted at one consideration which he will take into account: "There are many other issues on the national agenda right now." Granted.

But will a by-election involving only about 25,000 voters be a massive distraction nationally?

Of course, some Hougang voters and Singaporeans generally may choose to view the by-election not just as a localised matter but a referendum on the PAP Government's performance since May 2011. This should not stand in the way of holding a by-election.

More importantly, the cardinal principle of representation is crucial: A stand-in MP is not the same as an MP for whom the majority had voted. Not calling a by-election would undermine the importance of representation in our maturing parliamentary democracy.

Our electoral system must endeavour to be inclusive and representative in tandem with the growing democratic aspirations. Doing so can only increase Singaporeans' civic participation and ownership of governmental processes.

SHOULD WP FIELD NCMP?

Assuming a by-election is called, should the WP field in Hougang one of its two NCMPs?

It appears that an NCMP need not vacate his seat to contest in a by-election. Article 46(2A) of the Constitution provides that an NCMP shall vacate his seat "if he is subsequently elected as a Member of Parliament for any constituency". However, the law is not so clear on whether a vacated NCMP seat has to be filled.

Given the legal uncertainty, it may work better for the WP to field a candidate who is not in Parliament. Moreover, this would enable the WP, should it prove victorious in Hougang, to maintain its full complement of eight representatives in Parliament.

Eugene K B Tan is assistant professor of law at the Singapore Management University School of Law, and a Nominated Member of Parliament.

Annex C: No automatic by-election in our model of parliamentary democracy (Hri Kumar Nair, 24 Feb 2012, TODAYonline)

Assistant Professor Eugene Tan's commentary "The value of a by-election" (Feb 20) argued that the Prime Minister does not have an unfettered discretion in deciding when to call a by-election and that the "default" position should be that a by-election should be automatic.

Those two claims ignore the law and the reason behind the law.

There is a reason the Singapore Constitution does not prescribe any time limit to call a by-election.

Our parliamentary democracy is based on the principle that elections are fundamentally about voters choosing between different political parties to lead the country, rather than between individual candidates standing in a constituency.

In general elections, the issue is which party should form the government.

Hence, under our system, if any Member of Parliament (MP) resigns or is expelled from his party, he loses his seat because voters had elected him as a representative of his party.

Therefore, when a seat falls vacant, there is no requirement to call an immediate by-election, unless the vacancy affects the Government's mandate.

Nor should an MP's resignation or expulsion force the Government to put aside more important national issues to focus on a by-election.

This model enables the Government to focus on governing Singapore well and improving the lives of Singaporeans. It has resulted in stability and progress for Singapore for half a century.

It has another salutary effect: It holds political parties accountable to voters for the performance of their candidates. Parties must endeavour to field candidates who can last the term as MP.

This calls for rigorous selection to ensure that men and women of integrity are fielded and, when elected, will do their utmost to fulfil their MP responsibilities for their entire term.

If they do not or cannot, the onus is on their party to take care of residents in that constituency. The Workers' Party (WP) knows this. That is why their MPs have taken over Mr Yaw Shin Leong's duties in Hougang.

In contrast, some other parliamentary democracies operate on a different philosophy: The individual MP has more power than the party.

There, MPs can change parties within the parliamentary term and keep their seats, even cause governments to fall as a consequence, without the voters having any say in the matter.

Because the MP is the fundamental element of their system, by-elections must be held promptly when seats fall vacant. The United Kingdom is such an example.

The WP could force Mr Yaw to vacate his Hougang seat by expelling him from the party, only because it is operating under the Singapore model.

The WP could not have done this under the UK model, as Mr Yaw would have remained MP for Hougang even after his expulsion, and there would have been no by-election.

To call for an automatic by-election now that the Hougang seat is vacant, as Asst Prof Tan did, is to confuse the Singapore and UK models.

The writer is a Senior Counsel and an MP for Bishan-Toa Payoh GRC.