AG erred in filing appeal on Hougang by-election case: Ravi
<!-- yog-5u --><ROOT></ROOT>The Attorney General (AG) does not have an automatic right of appeal to the Court in the Hougang by-election case, lawyer M Ravi told Justice Andrew Phang at the Court of Appeal (CA) on Thursday.
Thursday’s hearing was convened to hear the AG’s appeal against High Court Judge Philip Pillai’s decision last Tuesday to grant leave for the application of Hougang resident Vellama Marie Muthu, whom Ravi is representing, to be heard.
Vellama is asking the High Court to declare that the Prime Minister does not have unfettered discretion in calling a by-election, and to order the Prime Minister to hold a by-election within three months or within any such period which the Court deems fit.
Pillai’s decision meant that there is an arguable case against the State, and that the courts recognise the need to hear the merits of the application.
The justice had ordered two days to be set aside to hear Vellama’s application and that the case be held in open court.
Thursday’s hearing, like the one held before Justice Pillai, was held in chambers.
At the outset of the hearing, Ravi raised an objection to the AG’s appeal. He submitted that the AG had erred in making his appeal to the CA. The proper procedure, Ravi said, was for the AG to seek leave from Justice Pillai to appeal to the CA.
This is because, Ravi explained, Order 53 Rule 8 of the Rules of Court says that any orders under the judicial review application in chambers, in this case the leave application by Vellama heard by Justice Pillai, is an interlocutory order.
“Hence the proper procedure to appeal an interlocutory order is to seek the leave of the judge who granted leave,” M Ravi said. “This is read together with Section 34 (2) of the 5th schedule of the Supreme Court Judicature Act which specifies the kind of interlocutory orders that do not require leave and the leave application in judicial review is not one of them.”
In other words, the AG had erred procedurally by not having sought Justice Pillai’s approval first for leave to appeal to the CA, Ravi said.
“Hence I submitted that AG must seek leave from Justice Pillai and neither the Court of Appeal nor Justice Andrew Phang have jurisdiction in the matter,” M Ravi explained, “until AG applies for leave before Justice Pillai and Justice Pillai grants leave to AG to appeal to the Court of Appeal.”
It is understood that Senior Counsel David Chong, acting for the AG, objected to Ravi’s argument, and said that Justice Pillai’s order granting leave in the judicial review application is not an interlocutory order, and thus the AG is not required to seek Justice Pillai’s order for leave.
Justice Phang then told Ravi to take out a separate application with the Court to argue his case on the matter.
M Ravi says he will consider filing an application for the Court to set aside the AG’s appeal.
Justice Phang also ordered the AG to file his case for appeal by 26 April and for Vellama to file her response by 10 May. Hearing will be fixed in the Court of Appeal in the week commencing 14th May. The judge did not give an exact date for the hearing.
At the heart of Vellama’s application are the questions of whether the Prime Minister has the option to call a by-election, and when he should call one, in situations where a parliamentary seat is made vacant for various reasons.
Vellama is raising the matter with the Court after Prime Minister Lee Hsien Loong had said that he would give careful consideration to “whether and when” he would call a by-election in Hougang constituency. The parliamentary seat in the ward was vacated after the opposition Workers’ Party sacked its Member of Parliament for the area, Yaw Shin Leong, on 14 February.
The Prime Minister later clarified in Parliament that he “intend to call a by-election in Hougang.”
However, Ravi told the court last Tuesday that this is different from what is required under the law – that holding a by-election is mandatory, not optional, for the Prime Minister.
The Prime Minister “could not frustrate the intent of the law by using his discretion… to effectively defer a by-election until the next General Election,” Ravi said.
Ravi told the court that the point that the Prime Minister has the discretion to decide on when to call a by-election is not being disputed. What he is asserting is that such discretion is not absolute – that it is subject to reasonable time limits.
Ravi also cited 3 instances in the 1980s where vacated parliamentary seats were not filled, as required by law, through by-elections and he called these “an egregious breach of the Constitution.”
Whether Vellama’s case will eventually be heard will now depend on how the CA decides on the AG’s appeal against Justice Pillai’s ruling last Tuesday.
All eyes, therefore, will now be on the CA’s decision on the AG’s appeal hearing in May.
<!-- yog-5u --><ROOT></ROOT>The Attorney General (AG) does not have an automatic right of appeal to the Court in the Hougang by-election case, lawyer M Ravi told Justice Andrew Phang at the Court of Appeal (CA) on Thursday.
Thursday’s hearing was convened to hear the AG’s appeal against High Court Judge Philip Pillai’s decision last Tuesday to grant leave for the application of Hougang resident Vellama Marie Muthu, whom Ravi is representing, to be heard.
Vellama is asking the High Court to declare that the Prime Minister does not have unfettered discretion in calling a by-election, and to order the Prime Minister to hold a by-election within three months or within any such period which the Court deems fit.
Pillai’s decision meant that there is an arguable case against the State, and that the courts recognise the need to hear the merits of the application.
The justice had ordered two days to be set aside to hear Vellama’s application and that the case be held in open court.
Thursday’s hearing, like the one held before Justice Pillai, was held in chambers.
At the outset of the hearing, Ravi raised an objection to the AG’s appeal. He submitted that the AG had erred in making his appeal to the CA. The proper procedure, Ravi said, was for the AG to seek leave from Justice Pillai to appeal to the CA.
This is because, Ravi explained, Order 53 Rule 8 of the Rules of Court says that any orders under the judicial review application in chambers, in this case the leave application by Vellama heard by Justice Pillai, is an interlocutory order.
“Hence the proper procedure to appeal an interlocutory order is to seek the leave of the judge who granted leave,” M Ravi said. “This is read together with Section 34 (2) of the 5th schedule of the Supreme Court Judicature Act which specifies the kind of interlocutory orders that do not require leave and the leave application in judicial review is not one of them.”
In other words, the AG had erred procedurally by not having sought Justice Pillai’s approval first for leave to appeal to the CA, Ravi said.
“Hence I submitted that AG must seek leave from Justice Pillai and neither the Court of Appeal nor Justice Andrew Phang have jurisdiction in the matter,” M Ravi explained, “until AG applies for leave before Justice Pillai and Justice Pillai grants leave to AG to appeal to the Court of Appeal.”
It is understood that Senior Counsel David Chong, acting for the AG, objected to Ravi’s argument, and said that Justice Pillai’s order granting leave in the judicial review application is not an interlocutory order, and thus the AG is not required to seek Justice Pillai’s order for leave.
Justice Phang then told Ravi to take out a separate application with the Court to argue his case on the matter.
M Ravi says he will consider filing an application for the Court to set aside the AG’s appeal.
Justice Phang also ordered the AG to file his case for appeal by 26 April and for Vellama to file her response by 10 May. Hearing will be fixed in the Court of Appeal in the week commencing 14th May. The judge did not give an exact date for the hearing.
At the heart of Vellama’s application are the questions of whether the Prime Minister has the option to call a by-election, and when he should call one, in situations where a parliamentary seat is made vacant for various reasons.
Vellama is raising the matter with the Court after Prime Minister Lee Hsien Loong had said that he would give careful consideration to “whether and when” he would call a by-election in Hougang constituency. The parliamentary seat in the ward was vacated after the opposition Workers’ Party sacked its Member of Parliament for the area, Yaw Shin Leong, on 14 February.
The Prime Minister later clarified in Parliament that he “intend
However, Ravi told the court last Tuesday that this is different from what is required under the law – that holding a by-election is mandatory, not optional, for the Prime Minister.
The Prime Minister “could not frustrate the intent of the law by using his discretion… to effectively defer a by-election until the next General Election,” Ravi said.
Ravi told the court that the point that the Prime Minister has the discretion to decide on when to call a by-election is not being disputed. What he is asserting is that such discretion is not absolute – that it is subject to reasonable time limits.
Ravi also cited 3 instances in the 1980s where vacated parliamentary seats were not filled, as required by law, through by-elections and he called these “an egregious breach of the Constitution.”
Whether Vellama’s case will eventually be heard will now depend on how the CA decides on the AG’s appeal against Justice Pillai’s ruling last Tuesday.
All eyes, therefore, will now be on the CA’s decision on the AG’s appeal hearing in May.
