Judicial Rectification of the Constitution: Can Singapore Courts Be 'Mini-Legislatures'?

Abstract

In Wong Souk Yee v Attorney-General, the High Court of Singapore — on its own accord — rectified the country’s Constitution such that a by-election is not required if the only ethnic minority in a multi-racial Group Representation Constituency (GRC) vacates her seat mid-term. This decision makes a mockery of the multi-racial parliamentary representation entrenched in art 39A of the Singapore Constitution, as it allows for elected minority Members of Parliament (MPs) in the GRCs to be expelled from their GRCs by their respective political parties after the election, with no legal repercussion. Furthermore, we argue that exogenous causes that would compel existing MPs to vacate their seats are provided for in art 46(1) of the Singapore Constitution, which, read with arts 39A and 49(1), require every MP in a GRC to vacate his seat when the only ethnic minority MP in that GRC departs. Moreover, the High Court has ignored the Singapore Court of Appeal’s instruction that the Constitution’s express text prevails over extraneous materials unless the ordinary meaning of the express text is manifestly absurd or unreasonable. Finally, the judicial updating/rectification of the Constitution flagrantly flouts its Court of Appeal’s warning against courts becoming “mini-legislatures”.