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 ) 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?
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.
(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  SGCA 39
Special mention of thank you to Gabriel Tan of Durham University for assisting on the research.