Vellama v AG: Constitutionality of Vacant Seat & Prime Minister's Discretion
In Vellama d/o Marie Muthu v Attorney-General, the Court of Appeal of Singapore heard an appeal regarding the Prime Minister's discretion to call a by-election for a vacant seat in the Hougang Single Member Constituency. The appellant sought a declaration on the proper construction of Article 49 of the Constitution and a mandatory order for the Prime Minister to advise the President to issue a writ of election. The court dismissed the appeal, holding that while the Prime Minister has a duty to call a by-election within a reasonable time, the appellant lacked standing to pursue the matter after the by-election was held.
1. Case Overview
1.1 Court
Court of Appeal1.2 Outcome
Appeal Dismissed
1.3 Case Type
Constitutional
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The Court of Appeal addressed the Prime Minister's discretion in calling by-elections and the constitutionality of vacant parliamentary seats, dismissing the appeal.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Respondent | Government Agency | Appeal Dismissed | Won | Chong Gek Sian David of Attorney-General’s Chambers Low Siew Ling of Attorney-General’s Chambers Lim Sai Nei of Attorney-General’s Chambers |
| Vellama d/o Marie Muthu | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chao Hick Tin | Justice of the Court of Appeal | Yes |
| Andrew Phang Boon Leong | Justice of the Court of Appeal | No |
| V K Rajah | Justice of the Court of Appeal | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Chong Gek Sian David | Attorney-General’s Chambers |
| Low Siew Ling | Attorney-General’s Chambers |
| Lim Sai Nei | Attorney-General’s Chambers |
| Ravi s/o Madasamy | LF Violet Netto |
4. Facts
- The Appellant instituted Originating Summons No 196 of 2012 following the vacancy of the Hougang SMC.
- The Appellant sought a declaration as to the proper construction of Art 49 of the Constitution.
- The Appellant sought a mandatory order requiring the Prime Minister to advise the President to issue a writ of election.
- The High Court ruled that the Prime Minister has full discretion to determine if and when to call a by-election.
- The seat for Hougang SMC became vacant on 14 February 2012 due to the expulsion of Mr Yaw Shin Leong.
- The Prime Minister stated on 9 March 2012 that he intended to call a by-election in Hougang.
- The President issued a writ of election for Hougang SMC on 9 May 2012.
- The by-election was held on 26 May 2012, and the Workers’ Party candidate was returned to the seat.
5. Formal Citations
- Vellama d/o Marie Muthu v Attorney-General, Civil Appeal No 97 of 2012, [2013] SGCA 39
6. Timeline
| Date | Event |
|---|---|
| General Election 2011 | |
| Seat for Hougang SMC became vacant | |
| Originating Summons No 196 of 2012 filed | |
| Prime Minister's statement on by-election | |
| Leave granted to apply for mandatory order | |
| Attorney-General filed Notice of Appeal | |
| Writ of Election issued for Hougang SMC | |
| Attorney-General withdrew appeal | |
| By-election held | |
| Appellant filed Summons No 2639 of 2012 | |
| Interlocutory applications dismissed | |
| Oral arguments heard | |
| Judgment delivered | |
| Decision Date |
7. Legal Issues
- Locus Standi
- Outcome: The court held that the appellant lacked standing to pursue the matter after the by-election was held.
- Category: Procedural
- Sub-Issues:
- Real interest in bringing the action
- Real controversy between the parties
- Declaration relating to a right personal to the applicant
- Related Cases:
- [2006] 1 SLR(R) 112
- [2012] 4 SLR 476
- Prime Minister's Discretion to Call By-Election
- Outcome: The court held that Article 49 does not give the Prime Minister an unfettered discretion in calling an election to fill a casual vacancy of an elected Member. He must do so within a reasonable time.
- Category: Substantive
- Sub-Issues:
- Interpretation of Article 49 of the Constitution
- Duty to call by-election within a reasonable time
- Consideration of relevant factors
- Proper Construction of O 53 of the Rules of Court
- Outcome: The court held that the proper construction of O 53 should be such that an applicant who wishes to obtain a prerogative order and a declaration under this Order must, first, obtain leave to make an application for a prerogative order (O 53 r 1(1)(b)).
- Category: Procedural
- Sub-Issues:
- Whether the court has the power to grant standalone declarations in an application made under O 53
- Whether declaratory relief may be granted except as an addition to a prerogative order
- Constitutionality of Vacant Parliamentary Seat
- Outcome: The court held that Art 55 expressly provides that any vacancy among the Members will not disqualify Parliament from transacting its business.
- Category: Substantive
- Sub-Issues:
- Whether Parliament is properly constituted where the number of elected MPs is less than that required to be returned at a general election
- Interpretation of Art 39(1)(a) of the Constitution
8. Remedies Sought
- Declaration as to the proper construction of Art 49 of the Constitution
- Mandatory order requiring the Prime Minister to advise the President to issue a writ of election
9. Cause of Actions
- Judicial Review
- Declaration
- Mandamus
10. Practice Areas
- Judicial Review
- Constitutional Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Vellama d/o Marie Muthu v Attorney-General | High Court | Yes | [2012] 2 SLR 1033 | Singapore | Decision from which this appeal arose. |
| Vellama d/o Marie Muthu v Attorney-General | High Court | Yes | [2012] 4 SLR 698 | Singapore | Cited for the Appellant abandoning her application for the mandatory order. |
| Gibson v Union of Shop, Distributive and Allied Workers | High Court | Yes | [1968] 1 WLR 1187 | England and Wales | Cited for the proposition that subsequent events will not affect an applicant’s right for his case to be tried. |
| Commissioners of Inland Revenue v National Federation of Self-employed and Small Businesses Limited | House of Lords | Yes | [1982] AC 617 | England and Wales | Cited for the position that the issue of standing may be re-opened at the substantive hearing of the application for judicial review. |
| R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co | Queen's Bench | Yes | [1990] 1 QB 504 | England and Wales | Applied the proposition of law espoused in National Federation. |
| R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, ex parte Else (1982) Ltd | Queen's Bench | Yes | [1993] QB 534 | England and Wales | Applied the proposition of law espoused in National Federation. |
| Karaha Bodas Co LLC v Pertamina Energy Trading Ltd | Court of Appeal | Yes | [2006] 1 SLR(R) 112 | Singapore | Leading local authority on the requirement of standing to seek declaratory relief. |
| Tan Eng Hong v Attorney-General | Court of Appeal | Yes | [2012] 4 SLR 476 | Singapore | Affirmed the principles expounded in Karaha Bodas. |
| R v Secretary of State for the Home Department, ex parte Salem | House of Lords | Yes | [1999] AC 450 | England and Wales | Cited for the dictum that appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so. |
| Government of Malaysia v Lim Kit Siang | Supreme Court | Yes | [1988] 2 MLJ 12 | Malaysia | Cited in Tan Eng Hong for the ruling that to possess locus standi, an applicant must show that he had a private right which had been infringed. |
| Stockport District Waterworks Co v Manchester Corporation | Court of Chancery | Yes | (1862) 9 Jur.N.S. 266 | England and Wales | Cited for the principle that an applicant who is suing in respect of his right as a member of the public would have to join the Attorney-General in a relator action, unless he could establish that he had personally suffered special damage. |
| Boyce v Paddington Borough Council | High Court | Yes | [1901] 1 Ch 109 | England and Wales | Cited for guidance as to how to differentiate between a public and private right. |
| London Passenger Transport Board v Moscrop | House of Lords | Yes | [1942] 1AC 332 | England and Wales | Accepted the statement in Boyce as the applicable test for standing to seek declaratory relief against a public body. |
| Gouriet v Union of Post Office Workers | House of Lords | Yes | [1978] AC 435 | England and Wales | Accepted the statement in Boyce as the applicable test for standing to seek declaratory relief against a public body. |
| Eng Foong Ho and others v Attorney-General | Court of Appeal | Yes | [2009] 2 SLR(R) 542 | Singapore | Cited for applications under O 53 r 1 of the Rules of Court in the context of private rights. |
| Yong Vui Kong v Attorney-General | Court of Appeal | Yes | [2011] 2 SLR 1189 | Singapore | The Judge speculated that the 2011 amendments to the Rules of Court were precipitated by this decision. |
| Yip Kok Seng v Traditional Chinese Medicine Practitioners Board | High Court | Yes | [2010] 4 SLR 990 | Singapore | Highlighted concerns regarding O 53. |
| Australia Conservation Foundation Inc v Commonwealth | High Court of Australia | Yes | (1980) 146 CLR 493 | Australia | The ‘special damage’ criterion has been modified to a requirement of ‘special interest’. |
| Chng Suan Tze v Minister for Home Affairs and others and other appeals | Court of Appeal | Yes | [1988] 2 SLR(R) 525 | Singapore | Cited for the proposition that all discretionary power is subject to legal limits. |
| R v Secretary of State for the Home Department, Ex parte Fire Brigades Union | House of Lords | Yes | [1995] 2 AC 513 | England and Wales | Illustrates how a discretionary power vested in a Minister of the government should be exercised. |
| Tai Choi Yu v Government of Malaysia and Others | Supreme Court | Yes | [1994] 1 MLJ 677 | Malaysia | Defined the expression “convenient speed” in an equivalent Malaysian statutory provision. |
| Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis | Federal Court | Yes | [1975] 2 MLJ 198 | Malaysia | Agreed with an even earlier authority, Public Prosecutor v Mah Chain Lim and Others [1975] 1 MLJ 95 at 96, where it was held that “convenient speed” would depend “on the circumstances of each particular case” and that it was not desirable “to lay down the speed convenient to all cases”. |
| Public Prosecutor v Mah Chain Lim and Others | Unknown | Yes | [1975] 1 MLJ 95 | Malaysia | Held that “convenient speed” would depend “on the circumstances of each particular case” and that it was not desirable “to lay down the speed convenient to all cases”. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court O 53 r 1 |
| Rules of Court O 53 r 7 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Constitution of the Republic of Singapore | Singapore |
| Rules of Court (Cap 322, R5, 2006 Rev Ed) | Singapore |
| Parliamentary Elections Act (Cap 218, 2011 Rev Ed) | Singapore |
| Interpretation Act (Cap 1, 2002 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- By-election
- Casual vacancy
- Locus standi
- Mandatory order
- Declaratory relief
- Prime Minister's discretion
- Hougang SMC
- Article 49
- Constitution
- Elected Member
- Writ of election
- Special damage
- Reasonable time
- Convenient speed
15.2 Keywords
- By-election
- Prime Minister
- Constitution
- Singapore
- Judicial Review
- Article 49
- Locus Standi
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Constitutional Law | 90 |
| Election Law | 70 |
| Administrative Law | 60 |
| Parliamentary Law | 50 |
| Civil Procedure | 30 |
16. Subjects
- Constitutional Law
- Administrative Law
- Elections
- Judicial Review