Why 2 of the Judges Who Ruled on the Marsiling-Yew Tee By-election Case Should Not Have Done So

M Ravi

This article suggests that 2 of the Judges who ruled on the Marsiling-Yew Tee by-election case should not have done so after acting as Attorney General at separate times during the Hougang Single Member Constituency (“SMC”) by-election case in 2012 (“Hougang case”).

On Wednesday 10th April 2019, a 5-member quorum in the Court of Appeal dismissed Dr Wong Souk Yee’s appeal to mandate that the remaining three MPs in Marsiling-Yew Tee Group Representation Constituency (“MYT GRC”) vacate their seats for a by-election to be held. This case was filed because no by-election was called by the Prime Minister after the then Speaker of Parliament, Mdm Halimah Yacob resigned in August 2017 to run in the presidential election.

The Court of Appeal ruled that the proper interpretation of Art 49(1) of the Constitution is that the words “seat of a Member” only refers to the seat of a SMC and that there was thus no requirement pursuant to Art 49(1) to call for a by-election in MYT GRC. Amongst the 5-member Coram were Chief Justice Sundaresh Menon and Judge of Appeal Steven Chong, who were both Attorney Generals at separate times during the Hougang by-election proceedings. In my opinion, both of these Judges ought not to have ruled on the MYT GRC by-election case in light of their involvement in the Hougang case. Why? I suggest a few points below:

1.        The issues in the 2 cases directly overlapped and created a potential conflict of interest

The key issue in the Hougang case was whether the Prime Minister was required to call for a by-election to fill casual vacancies of elected Members in SMCs.

In those proceedings, it was the position of the then Attorney General, Sundaresh Menon acting on behalf of the Government, that the Prime Minister has full discretion to determine if he wishes to call a by-election to fill the vacancy. This is reflected in the transcript of Prime Minister Lee Hsien Loong’s reply in Parliament on calling for a by-election in Hougang SMC.

The Court of Appeal in that case overruled the High Court’s decision which ruled that the Prime Minister had a discretion in the calling of an election in such cases, ruling that the Prime Minister does not have unfettered discretion and must call for an election within a reasonable time. In view of this, there is a potential conflict of interest in having the current Chief Justice making a ruling when in 2012, he had clearly advised the Prime Minister in his capacity as Attorney General on a rejected interpretation of Art 49 of the Constitution.

2.        The Court of Appeal ruled that an issue of costs in the Hougang case- where the Attorney General’s arguments had been rejected, had been decided wrongly

In my opinion, a more significant area for potential conflict of interest was the ruling on the point of the Protected Cost Orders in cases in which public interest could be relied on to justify departing from usual cost orders made in litigation.

In the Hougang case, the High Court rejected arguments advanced on behalf of the then Attorney General Steven Chong that costs be ordered against the Applicant in line with the general principle that “costs to follow the event”. This was an outcome ruled in favour of the argument raised that costs should not ordered (1) against applicants in cases which raise public law issues of public interest.

During this stage of the proceedings on Costs in the High Court, Chief Justice Sundaresh Menon had already left his role of Attorney General, to be replaced by Judge of Appeal Steven Chong.

In the MYT GRC by-election case, the Court of Appeal ruled (at paragraph [91]) that the High Court decision in the Hougang case on the issue of costs was wrong and ought not to be followed. Even though Chief Justice Sundaresh Menon had already left the office of Attorney General and assumed his role in the Court of Appeal by the time of the hearing on Costs in the High Court, there is at least a potential conflict of interest considering he had been involved in the earlier stages of the proceedings. In the case of Judge of Appeal Steven Chong, the potential for conflict of interest is even stronger considering he was Attorney General at the time of the Costs hearing.

3.        The appointment of ex Attorney Generals as senior Judges creates potential conflict of interests

Singapore has a tradition of appointing former Attorney Generals as senior Judges. The current and preceding (Chan Sek Keong) Chief Justices have both been Attorney Generals prior to their appointments to the Bench, while Judge of Appeal Steven Chong, and Chao Hick Tin, a former Judge of Appeal, were similarly Attorney Generals before as well.

There is a double-edged sword here. No doubt this ensures that our senior Judiciary is comprised of some of the sharpest legal minds. At the same time however, it creates instances of potential conflicts of interests due to the wide range of work that both the Attorney General’s Chambers and Supreme Court is exposed to. This is an area that the authorities might consider looking into in a future review. Ought there be a system of automatic recusal of judges in any matters where they have declared a past interest or involvement?

Conclusion

As explained, there are a few areas where potential conflicts of interests may have arisen due to the involvement of the two mentioned Judges in the MYT GRC by-election case. This could perhaps have been avoided had Singapore broken out of its tradition to appoint former Attorney Generals as senior Judges. As it stands, it is open to Counsel to apply to the Court of Appeal to set aside the Judgment on account of a potential breach of natural justice in view of the issue of potential conflicts of interests raised above.

Till then, the bed has been made and we can only lie in it.

Footnote:

(1) I was involved as counsel to the applicant in the Hougang case referred to in the article - Vellama d/o Marie Muthu v. Attorney-General [2013] SGCA 39

Special mention of thank you to Gabriel Tan of Durham University for assisting on the research.

 

M Ravi

 

 

 

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15 Responses to “Why 2 of the Judges Who Ruled on the Marsiling-Yew Tee By-election Case Should Not Have Done So”

  • Can we expect impartial judgme:

    Can we expect impartial judgments in cases where the PAP or its leaders are involved?

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  • fate and ricebowl of judges:

    What happened to the fate of the judge who ruled in favor of JBJ?

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  • HarderTruths:

    If Indian can become Malay then why not AG become a Judge? Today’s general is tomorrow’s TH CEO. This is all musical chairs anyway. Does not mean anything – just actors on a stage controlled by the puppet-master.

    GD Star Rating
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  • LIONS:

    SO,like that say,if,JUST IF,PAP still majority and something happens to OPPO GRC,will PEE M call for BY-ELECTION then?

    this POINT must be kept in mind.
    we want REAL JUDGEMENT,NOT FAKE JUDGEMENT IN OUR COURTS.

    ARE OUR JUDGES REAL OR *FAKE*???

    WE NEED TO KNOW.

    GD Star Rating
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  • MarBowling:

    It’s the One Hand that covers the Hole Sky in SinKapore who DICTATES and CONTROLS everything, period. He is macham like the Emperor w/o clothes in Ancient Imperial China. When he wanted a Maid to be his Express, WHO dared to OBJECT? When he wanted to build a CLOWN JEWEL, WHO dared to OBJECT? When he wanted to build a “Sun Yat Sun” Garden on his Grandfather passed-down FamiLEE house, WHO dared to OBJECT! No ONE on planet Earth can OBJECT. ONLY Heaven and the Barn Owl CAN OBJECT!

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  • That is SG justice:

    Can we expect impartial judgme:
    Can we expect impartial judgments in cases where the PAP or its leaders are involved?

    “The relevant question is whether any person who is inside a polling station can be said to be “within a radius of 200 metres of any polling station”. … Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station.”

    Being inside is not being within a radius of 200m. That was because those who were inside were PAP big shots.

    If it had been Dr. Chee, he would have been charged and found guilty if he was 201m away.

    That is SG justice.

    GD Star Rating
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  • peasants vs the PAP:

    peasants are always the loser.
    remember that they use their own specialised dictionary!

    GD Star Rating
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  • NotMyProblem:

    HarderTruths:
    If Indian can become Malay then why not AG become a Judge? Today’s general is tomorrow’s TH CEO. This is all musical chairs anyway. Does not mean anything – just actors on a stage controlled by the puppet-master.

    Are we not worry, if the PAP still in power?

    Don’t we want to kick the PAP out to give the power back to the people?

    GD Star Rating
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  • rukidding:

    So sad,…this Cuntry is going to the shits !!!

    FULL of “crooked” and “dis-honest” people indeed !

    Only two things can happen down the road….

    a) become like North Korea or b) become like Syria

    GD Star Rating
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  • UniQ:

    HarderTruths:
    If Indian can become Malay then why not AG become a Judge? Today’s general is tomorrow’s TH CEO. This is all musical chairs anyway. Does not mean anything – just actors on a stage controlled by the puppet-master.

    Plus, their entire life has been leeching from Tax Payer Blood $$. Not a single once of their life has been able to bring any good to the people that feed them ! Now the latest trend is the ENTIRE FAMILY will be FED by Tax Payers Blood $$ ?!?!

    How F*%@ can Singaporeans be ?? when some we have problem to even feed themselves ?? and I was taught MORAL is the Pillar after obtaining higher education ??!!

    GD Star Rating
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  • patriot of TUMASIK:

    Aiyah Ravi when you have sparrows instead of EAGLES what do you EXPECT??? they only flit in the courts unlike an Eagle who will Soar to the Skies anytime and anywhere leh!!!

    GD Star Rating
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  • vote for justice for all:

    havent we lived long enough ( for many of us) to predict such outcomes.
    never expect any more unless we VTO and then we can have REAL JUSTICE, FOR ALL.

    GD Star Rating
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  • Game over:

    We can continue to write all these stories, the outcome will change?

    If 200M is not within 200M, you already know whats coming. Oppositions and critics are better to fight in international courts to improve their chances.

    GD Star Rating
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  • Samuel S:

    Well the current court case between WP town councils has already concluded even before verdict handling down. Everyone know WP will be guilty.

    GD Star Rating
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  • Complianced impartiality:

    Yes there is democracy, responded LKY to foreign media men on self gratification acts, it is modified. Perhaps the foreign media men heard n reported wrong. Mortified n not modified. if mediamen asked again this time, the reply from gorilla trained negative investorial minister could respond zyes but it is cabinated.

    Come Sept Vote death or Judgement . It is SIN final or resstoration herald. Up to old n new but now same boat as old citizens to decide. Smother or be smothered!

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