Hri Kumar Nair is right – there’s a hole in our Constitution

Former PAP MP, now Deputy Attorney-General Hri Kumar Nair was right to say, at the court hearing on whether Madam Halimah Yacob’s vacated MP seat should trigger a by-election, that there is no part in the Constitution that says that the rest of the MPs in the affected GRC should resign as well.

In fact according to him there is no part of the Constitution that says that they shouldn’t resign. And according to his interpretation of the Constitution, there is also no clear indication that there ought to be a by-election, even should ALL the MPs in a GRC resign or vacate their seats. There are, in Mr Nair’s reading of the law, no provisions at all.

Sure, Mr Goh Chok Tong triggered a by-election in his Marine Parade GRC in 1992 to get a vote of confidence for his fresh Prime Ministerial post. All his MPs resigned then, but apparently, the Constitution is unclear on whether that by-election was mandatory. It was a moot point, of course, since the President and the PAP, still in power, had the right to call for a by-election, whether it was mandatory or not.

Since then, GRC seats have been vacated by the resignation of Choo Wee Khiang for cheating (Jalan Besar GRC, 1999), the deaths of Dr Ong Chit Chung (Jurong GRC, 2008) and Mr Lee Kuan Yew (Tanjong Pagar GRC, 2015), and of course the resignation of Halimah Yacob to run for the presidency (Marsiling-Yew Tee GRC, 2017). In most of these cases questions were asked about whether a by-election should be held, and the G was correct (to the same extent that Mr Nair is correct)  to point out that the Constitution did not demand that other MPs in the GRC resign.

This claim, assuming Mr Nair is right, falls short – the constitution does not even require a by-election if all the members of a GRC vacate their seats.

Mr Nair said the Government’s interpretation of Article 49 (1) is that a by-election is only required when all GRC MPs have vacated their seats (although the article does not actually say this), but then went on to say that Article 49 (1) does not apply to GRCs, because it was enacted during a time when there were only Single Member Constituencies (SMCs).

This is quite a double standard for Mr Nair to say that 49 (1) has an interpretation for GRCs while at the same time being unapplicable to GRCs. It sounds as if he is completely confused.

If we, however, would be so charitable to concede Mr Nair’s point about Article 49 (1), then there has been a massive loophole in our Constitution since 1988, and of course the silent accusation that the PAP government of the time did a damn shoddy job of the Constitution Amendment Act. And that subsequent governments also neglected to shore up this weakness.

Mr Nair was also derided for saying that the “GRC scheme was designed to ensure minority representation at the point of elections” because some took it to mean that minorities merely had to ‘cross the line’ before their race became irrelevant.

It was no defence either to hark back to Goh Chok Tong’s 1988 speech (at the second reading of the Constitution Amendment Act to introduce GRCs) where he said that “GRCs are meant to ensure a multi-racial Parliament, not a multi-racial team in the constituency”, since there was no provision either to determine at what point Parliament would be considered to have enough minorities. If that (to ensure a multi-racial Parliament) was the purpose of the constitutional amendment, then I would say that the legislation is a shoddy piece of work that does not serve this purpose effectively, since it doesn’t even tell us what would constitute adequate minority representation in Parliament, since minority candidates can resign and not be replaced. If in theory every single minority MP can vacate his seat and still trigger no by-election, then the Constitution, and the GRC system in it, does not effectively safeguard a multi-racial Parliament.

So, if Mr Nair is right, then our Constitution is a bloody shambles, and needs fixing immediately, and some people really need to answer for the mess they made in 1988, and the tardiness in cleaning it up.

And if Mr Nair is wrong, then it is time for a by-election.


Featured image via TMG.