A thought experiment. Imagine a situation where one MP from each constituency resigns, is removed or dies….
As you know, our IMF loan case appeal will be heard on Tuesday at 2.30pm in the Court of Appeal at the Supreme Court (See here for details) I hope to see you all there but if you are unable to make it let me explain what we stand to lose.
Originally this was about a $5 billion loan pledge to the IMF. I maintained that this breached our Constitution. I still maintain that.
The President pretended that it had nothing to do with him. The MOF tried to shift the responsibility on to MAS and claim it was nothing to do with them. The President and the Government contorted themselves, hid behind semantics and arcane Latin phrases and did everything they could to evade responsibility for making this loan commitment without due process. However once it got to court it was the AG defending the government and not a private lawyer hired to defend MAS. And once in court the AG brought up something truly astounding.
As every effort so far to pull the wool over our eyes had failed and as they had been embarrassed by my discovery that the President’s office had already missed one breach of Article 144, they tried to get out of arguing the case by putting forward the argument that I had no standing. In other words, that there was no case to answer because I had no right to bring one. If I were an individual and this were a private matter that would be my loss. But I was representing every Singaporean and when the judge ruled that I had no standing he ruled that every citizen had no standing, in matters that affect us all. As blogger Andy Wong said on sgwatchdog.com (http://www.sgwatchdog.com/Appeal.html), this case is not about the IMF any more. That has become a side issue.
In fact, the High Court decided that I lacked standing because it said I could not show that I had suffered special damage and had a genuine private interest. This is what has become known as the locus standi issue. Yesterday someone pointed out to me a fascinating article in the Singapore Law Gazette by Tham Lijing (Locus Standi in Judicial Review: Two Roads Diverge in a Singapore Wood).
As the author points out this decision contradicts an earlier decision to allow standing to Madam Vellama in the case of Vellama d/o Marie Muthu v Attorney General. (It is noted that the AG did not even try to contest standing here ). For those who have not read his article, I paraphrase his argument below.
Madam Vellama’s case involves Article 49(1) of the Constitution that states:
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.
However, as Tham says, the problem is that this also involves a public rather than private right. It is difficult to see how Madam Vellama has suffered special damage by virtue of being deprived of representation in Parliament. One might say that her situation is special by virtue of her being a constituent of Hougang. But this answer cannot resolve the inherent contradiction between Vellama and Jeyaretnam.
Tham gives us the hypothetical example where one MP from every constituency resigns or is removed. In this scenario, Madam Vellama would not be “personally affected” vis-à-vis other Singaporeans. The rights of residents of all constituencies would have been equally affected. Therefore, a strict application of the “personal interest” criterion would deprive Madam Vellama of standing in this imaginary situation. This exposes the contradiction between the two decisions since how can it be that enforceability of the right to representation in Parliament depends on an irrelevant factor such as the number of by-elections involved.
This piece of judicial logic suggests, as Tham goes on to say, that had MAS offered the IMF loan out of funds that were supposed to be spent on upgrading projects in Hougang, that a Hougang resident should have been able to bring an action as she would be “personally affected” compared to Singaporeans in other constituencies. So that Hougang resident would have had standing but not me (Never mind that I do have a personal interest as a taxpayer, CPF holder and presumably a stakeholder in Temasek and GIC in preventing the government from giving away our reserves). Yet we would both be seeking essentially the same thing, viz. to enforce Article 144 of the Constitution.
To illustrate this consider a situation where a future Prime Minister gets the President to dissolve Parliament and then decides not to call elections within three months as required under Article 66 of the Constitution. Instead he decides to rule by decree indefinitely citing reasons of national security for example. This would affect all Singaporeans equally and thus no one would be able to bring an action to force the PM to hold an election and to enforce our Constitutional rights.
Recently, in relation to the Locus standi arguments,Tan Wah Piow reminded us all of Thomas Jefferson’s famous quote (see here):
“The two enemies of the people are criminals and government,
so let us tie the second down with the chains of the Constitution
so the second will not become the legalized version of the first.”
For those of you who have not heard of him, Tan Wah Piow is a famous Singapore dissident and author of “Smokescreens and Mirrors: Tracing the Marxist Conspiracy”. He was a former student and union activist who was forced to flee and seek asylum in Britain in the 1970s. Ironically he also was a good friend of our current Finance Minister when the latter studied in the UK in the 1980s.
To return to Jefferson, he is saying is that the only way to prevent a rogue government is through the Constitution or in more general terms, the rule of law. The PAP is fond of talking of rogue governments which has become synonymous in their vocabulary with another party being elected democratically. The real danger however is not one of a rogue government (Opposition) being elected but of a future government going rogue. As Noam Chomsky always says the test of democracy is not how you vote your leaders in but how you vote them out. If we lack the ability to enforce the Constitution through the courts then we do not have a Constitution and if we do not have a Constitution then we do not have a democracy.
Extending Tham’s example earlier, consider a situation where at the end of its five-year term a future Government decides to ignore the President’s attempts to dissolve Parliament and call elections within three months as required under Article 66 of the Constitution. Instead it decides to extend its term and rule by decree indefinitely citing reasons of national security or the national interest.
Many of you if not most will probably think this could never happen in Singapore. However at the time when the Hougang seat fell vacant the PM said that “there are many other issues on the national agenda right now” and noted that Singapore just had a General Election less than a year ago (see here) as a justification for not holding a by-election indefinitely. In this case no one disputed Madam Vellama’s standing to bring an action calling for a by-election and asking for a declaration that the PM did not have unfettered discretion.
If a future PM was to decide to extend his government’s term unilaterally and impose a State of Emergency on spurious grounds (rather like what happened to India under Indira Gandhi in the 1970s) this would affect all Singaporeans equally. Thus given the precedent established by Justice Tan’s decision in the IMF case, no one would be able to bring an action to force the PM to hold an election.
It is thus vital in the interests of upholding our Constitution and the rule of law that this decision be overturned on Tuesday.
I welcome your comments.