Chee Siok Chin v Attorney-General

Andrew Phang Boon Leong JA:

[1] The plaintiff had applied (pursuant to the Parliamentary Elections Act (Cap 218, 2001 Rev Ed) (“the Act”), specifically, s 90 thereof) for the following orders on 24 May 2006 (by way of Originating Summons No 1017 of 2006, naming the Attorney-General as the defendant):

(a) that the results of the General Elections 2006 be declared null and void;

(b) that the ban on podcasting during the period of the General Elections 2006 be declared unconstitutional; and

(c) such other relief and/or remedies as the court deems fit.

[2] The plaintiff was, in fact, a member of the team from the Singapore Democratic Party which unsuccessfully contested the Group Representation Constituency of Sembawang during the General Elections held on 6 May 2006, although it is not altogether clear in what capacity she made her application pursuant to the Act (cf generally s 93 of the Act). In any event, this is not an issue in the present proceedings.

[3] In the present proceedings, the defendant applied, pursuant to r 13(4) of the Parliamentary Elections (Application for Avoidance of Election) Rules (which are located at the Fourth Schedule to the Act and are hereafter referred to as the “PER”), for the following orders:

[4] The basis for the application in the present proceedings (which was filed on 31 May 2006) is that the plaintiff had failed to comply with r 13 of the PER – in particular, r 13(1). The rule itself reads as follows:

[6] I now proceed to deal with the various issues raised by the parties.

[7] Counsel for the plaintiff, Mr M Ravi, argued strenuously that these proceedings ought not to be heard in chambers, but, rather, in open court. The main plank of his argument was that it was in the public interest that such proceedings be heard in open court. He also sought to argue for a more general rule to this effect. I have no hesitation in rejecting this last-mentioned argument. There can be no universal or all-encompassing rule to this effect. The facts and context of each set of proceedings will differ from case to case and the procedure in this regard cannot therefore be writ in stone. Indeed, the presumption in proceedings such as those in the present case is for a hearing in chambers unless special reasons can be shown.

[8] Nevertheless, in view of the close linkage between this particular application and the plaintiff’s substantive application (the latter of which is in fact scheduled to be heard in open court), I ruled that there was a sufficient public interest element to justify holding the hearing of these proceedings in open court. But this, as I have mentioned, sets no precedent for the future. Nor, as I have mentioned, is it wise to even attempt to set such a precedent.

[9] The present application was, as I have already mentioned, premised on an alleged contravention of r 13. However, when the defendant submitted its skeletal submissions, it referred to a whole host of other alleged incurable non-compliances with the PER in so far as the present proceedings were concerned. In summary, these included the following arguments:

(a) that the plaintiff, in citing the Attorney-General as the defendant, had in fact named the wrong defendant (and citing the Malaysian High Court decisions of Ramely bin Mansor v Suruhanjaya Pilihanraya Malaysia [2000] 2 MLJ 500 and Dr Lee Chong Meng v Abdul Rahman bin Hj Abdullah, Returning Officer [2000] 6 MLJ 98);

(b) that there had been a failure on the part of the plaintiff to state (in her affidavit supporting her application under s 90 of the Act) her right to apply within s 93 of the Act – a requirement set out under r 5(1)(a) of the PER;

(c) that there had been a failure on the part of the plaintiff to state (in her affidavit supporting her application under s 90 of the Act) the holding and result of the election – a requirement set out under r 5(1)(b) of the PER;

(d) that there had been a failure on the part of the plaintiff to state (in her affidavit) the grounds upon which she was relying to sustain the relief sought (which grounds are set in ss 90(a) to 90(e) of the Act) – a requirement set out under r 5(1)(b) (and citing the Malaysian High Court decision of Norbert Choong Kai Chong v Mohamed Idris bin Haji Ibrahim [1980] 1 MLJ 316 (“the Norbert Choong case”));

(e) that there had been a failure on the part of the plaintiff to state (in her affidavit) the relief sought – a requirement apparently raised by virtue of r 5(4) of the PER.

[10] It is immediately apparent that the arguments set out above – in particular the first – are substantive arguments in their own right (this is accentuated by the fact that the relevant case law was also invoked, as noted above). The problem, as I perceived it, was that it would have been unfair to have allowed the defendant to rely upon them in the present proceedings without more. Let me elaborate.

[12] I did point out, however, that yet another alternative approach which avoided the pitfall just mentioned would be for the defendant to take out a separate application focusing on the other arguments from non-compliance. Both the present as well as the new application could then be heard together.

[13] I also pause to note that Mr Ravi was not averse to having the other grounds being heard by this court as well, provided that he was given a short adjournment.

[14] In the event, Mr Chan decided on a third option – which was to proceed with the present application pursuant to r 13(4), leaving argument with regard to the other grounds for another occasion, if necessary. However, he did point out that it was incumbent on him to raise these other grounds in the present proceedings, if for no other reason than to emphasise that the defendant was not, in any way, waiving its rights to raising these grounds in a separate application in the future.

[15] I turn now, briefly, to the second reason why it would have been unfair to have allowed the defendant to rely on the other arguments without more. As the present application was made pursuant to r 13(4), it was not surprising that both the plaintiff as well as Mr Ravi expressed surprise on viewing the arguments in the defendant’s skeletal submissions. In the circumstances, they were obviously unprepared to meet these other arguments. One natural solution would have been to have granted them additional time for preparation, provided the potential procedural difficulties could be ironed out. As it turned out (see the preceding paragraph), this course of action is now unnecessary. Suffice it to state that after some discussion, we were back where the original application in fact indicated we should be – focusing on the sole issue centring on the effect of the plaintiff’s non-compliance with r 13.

[16] I turn now to the respective arguments for the parties in so far as this particular issue is concerned, commencing with the arguments by counsel for the defendant.

[17] Mr Chan presented a number of arguments on behalf of the defendant, who was of course the applicant in the present proceedings. These arguments fell, in my view, within two broad categories, which I shall adopt for ease of analysis. The first may be classified as “Precedent” – in other words, the case law that (in Mr Chan’s view) supported the defendant’s application.

[18] The second broad category may, in my view, be classified under the rubric of “General principle”. The arguments within this category, whilst constituting substantive arguments in their own right, can also be considered simultaneously as constituting the underlying rationale or spirit behind the case for the defendant itself. In this regard, I hasten to point out that many of the arguments in this particular category overlap with and indeed constitute the underlying rationale or spirit behind many of the decisions considered in the first category. So there ought to be no rigid dichotomy as such. The categories I adopt are, as I have mentioned, primarily for the purposes of convenience as well as efficiency of analysis more than anything else.

[19] Mr Chan pointed out, at a very preliminary stage of his arguments, that as the plaintiff’s application was, inter alia, for a declaration to declare the results of an election as being null and void, it could only have been brought under s 90 of the Act. In the circumstances, therefore, if the defendant’s present application was successful, and r 13 was found to be a mandatory requirement for a s 90 application, the plaintiff’s application in Originating Summons No 1017 of 2006 would fail in its entirety. Mr Ravi did not, correctly in my view, disagree with this interpretation.

[20] More importantly, Mr Chan also pointed out that the role of an Election Judge was rather more limited than that of a judge exercising his jurisdiction to adjudicate civil disputes. He referred, in particular, to the Malaysian High Court decision of Dr Shafie bin Abu Bakar v Pegawai Pengurus Pilihan Raya N 26 Bangi (No 2) [2005] 2 MLJ 149 (“the Dr Shafie case”), where VT Singham J observed thus (at [23]):

[21] Indeed, this is only one of the latest cases which emphasises the points embodied in the above-mentioned quotation, and whose genesis goes back much further (see, for example, per Raja Azlan Shah J (as His Excellency then was) in Tengku Korish v Mohamed bin Jusoh [1970] 1 MLJ 6).

[22] In the Indian Supreme Court decision of Jyoti Basu v Debi Ghosal AIR 1982 SC 983, Chinnappa Reddy J observed (in a similar vein) thus (at [8]):

[23] The general approach that ought to be adopted in election proceedings as embodied in the above quotations is, indeed, firmly etched in the legal landscape, and I will bear it in mind for the purpose of the present proceedings.

[24] Not surprisingly, perhaps, Mr Chan’s focus in this particular regard was on the relevant Malaysian decisions – not least because virtually every relevant decision from this jurisdiction supported (either to a greater or lesser extent) his case. He was, in fact, at pains to point out from the outset of arguments that the relevant Malaysian elections laws not only had the same paternity as, but were also almost identical to, the relevant Singapore election laws. In the circumstances, so he argued, Malaysian decisions were persuasive and ought to be followed.

[25] The central precedent relied upon by Mr Chan was the Malaysian High Court decision of Chong Thain Vun v Watson [1968] 1 MLJ 65(“the Chong Thain Vun case”), where Lee Hun Hoe J (as he then was) held, in no uncertain terms, that a failure to comply with the Malaysian equivalent of our r 13 would result in the dismissal of an application to declare an election void as this rule was a mandatory one. In that case, motions had been taken out by the respondents to set aside three election petitions. One common ground relied upon by the respondents vis-à-vis all three petitions was that the notice of the filing of the petitions had not been served on them within the timeframe stipulated by the equivalent of r 16 of our PER. Another common ground relied upon by the respondents vis-à-vis two of the petitions was that the petitioner in each case had failed to comply with the equivalent of r 13 of our PER. This is of course the holding which Mr Chan was primarily concerned with. In so far as the former ground was concerned, Lee J, following the Malaysian Privy Council decision of Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261; [1967] 2 AC 31 (“the Devan Nair case”), held that the equivalent of our r 16 was mandatory – a proposition that was, not surprisingly, in these circumstances and in the face of the authority of the Board, conceded by counsel for the petitioners, Dato’ David Marshall. Notwithstanding counsel for the petitioners’ argument that his clients had done all that was reasonably possible to comply with the rule, the learned judge held (at 71) that “[s]trict compliance with the rules is necessary as [the rule] is mandatory” and that therefore the respondents were entitled to succeed on the motion on this ground. Two observations may be appropriate at this juncture.

[26] The first is that the Devan Nair case has been applied in many decisions since, notably, in the Singapore High Court decision of Re Telok Blangah Election [1980–1981] SLR 509. Indeed, the holding in the Devan Nair case with regard to the legal status of the specific rule in question (r 16 of our PER) has stood the test of time and cannot now be seriously controverted.

[27] Secondly, the specific holding just referred to is not only consistent with the language and spirit of the particular rule itself but also illustrates the important point that if a rule in the PER is held to be mandatory, then there is no real room for manoeuvre or flexibility, even if the sympathy of all concerned is with the party who had failed to comply with the rule itself. This is an important general point of principle, to which I shall therefore have occasion to return later in this judgment.

[28] Returning to the Chong Thain Vun case, in so far as the latter ground was concerned (centring on the non-compliance with the equivalent of r 13 of our PER), Lee J held that, having regard to his holding with regard to the first ground, “it would be unnecessary to go into the question of insufficiency of security” (at 73). Nevertheless, the learned judge proceeded immediately to observe thus (ibid):

[29] I hasten to add that it was fortunate (particularly in the context of the subject matter of the present proceedings and for courts in future cases generally) that the learned judge did in fact delve into this particular issue in greater detail. He observed thus (ibid):

[31] In the Chong Thain Vun case, Lee J also observed (at 74) that the equivalent of our r 13(4):

[32] The learned judge then proceeded to deal with an important point that also arises in the present proceedings – the position of the plaintiff or applicant under s 90 in the context of his or her position as a layperson. In this regard, Lee J set out the following very helpful observations (ibid), as follows:

[34] In so far as the Charlee Soh case is concerned, the following observations by Clement Skinner J are particularly apposite and merit quotation in full (and which ought, in the main, to be read together with the observations of Lee J in the Chong Thain Vun case quoted at [32] above):

[35] Mr Chan also relied on certain other Malaysian decisions, albeit for more general (and, as it turned out, no less important) points which centred on the public interest as embodied in the policy background to our present electoral laws. One such decision – and the focus of Mr Chan’s argument in this particular regard – has already been referred to above. This was the Devan Nair case. In particular, Mr Chan relied on the following observations by Lord Upjohn, delivering the judgment of the Board, as follows ([25] supra at 264–265):

[36] Whilst Mr Chan’s emphasis was on the relevant Malaysian decisions, he also cited a number of English decisions. In this regard, whilst citing two decisions, Mr Chan focused, in the main, on the first. This is perhaps not surprising in view of the fact that the second, the English Divisional Court decision of Absalom v Gillett [1995] 1 WLR 128, was in fact reaffirmed in the first, that of the English Court of Appeal in Ahmed v Kennedy [2003] 1 WLR 1820. I note, in passing, however, that Absalom v Gillett dealt, inter alia, with the effects of non-compliance with s 136(3) of the Representation of the People Act 1983 (c 2) (UK) (“the UK Act”), which provided as follows:

In the event, the court held that the above requirement was mandatory and not merely directory and that non-compliance with it therefore rendered the petition incompetent. Laws J, who delivered the judgment of the court, observed (at 138) that “a petition is not competent for the purpose of obtaining relief whose effect would be to unseat an elected candidate unless the candidate in question has been made a respondent”. Whilst this court is not presently concerned with whether the plaintiff breached a mandatory provision by failing to join the successful electoral candidates as defendants, Laws J’s comments (albeit made in a specific context) underscore the more general point I have emphasised above (at [30]) and will return to below (at [75]), to the effect that an application under s 90 to declare an election void does impact, in the final analysis, on a successful election candidate’s rights, which should therefore also be given effect to as far as is possible.

[37] In Ahmed v Kennedy, there had also been a failure to comply with s 136(3) of the UK Act (reproduced above at [36]), read with r 6 of the Election Petition Rules 1960 (SI 1960/543) (UK) (“1960 Rules”), which reads as follows:

[38] The court held that the provisions concerned were mandatory. It should be noted, however, that the UK Act contains a rule for which there is no apparent equivalent in the Singapore context. This is r 19(1) of the 1960 Rules, which reads as follows:

[39] However, what is significant in the context of the present proceedings is that, notwithstanding the clear provisions of r 19(1) as reproduced above, the court in Ahmed v Kennedy nevertheless endorsed decisions such as the Devan Nair case, despite acknowledging (at [36]) that there was no equivalent of r 19(1) in those decisions.

[40] Mr Chan also canvassed several arguments which were premised on general principle – many of which were (as I have already mentioned) in fact related to (and even arose out of) the cases he relied on, and which have been referred to in the preceding part of this judgment.

[41] Firstly, he pointed to the fact that every challenge mounted by every plaintiff must comply with all the timelines laid down in the PER strictly (including that contained in r 13) in order for there to be the requisite certainty. This argument, in fact, overlaps completely with the reasoning of the courts in several cases which have been referred to in the preceding part of this judgment. In other words, there is the need for the speedy determination of any controversy concerning election results.

[42] Secondly, and in a related vein, he argued that if the timelines laid down in the PER were not mandatory and extensions of time were (as a consequence) possible, it would not be possible to draw the line and undesirable uncertainty would result once more.

[43] Thirdly (and, once again, in a related vein), Mr Chan argued that, in any event, the Rules of Court (Cap 322, R 5, 2006 Rev Ed) were not applicable. In response to a possible argument that r 3 of the PER could in fact introduce the Rules of Court (and, hence, the further possible argument to the effect that the time under r 13 could be extended), he responded by relying upon O 1 r 2(4) of the Rules of Court, which excluded the application of the Rules of Court in the context of the Act and the PER. On the other hand, and in order to explain r 3 of the PER, Mr Chan argued that this particular rule (ie, r 3) referred to the entire Rules of Court which, in turn, stated (specifically, in O 1 r 2(4)) that the Rules of Court were not applicable, except in the limited circumstances stated therein (at the right-most column in O 1 r 2(4) of the Rules of Court themselves: see below at [45]). Indeed, the precise relationship between O 1 r 2(4) of the Rules of Court on the one hand and r 3 of the PER on the other is, in my view, far from clear. In the circumstances, I shall have occasion to return to this relationship once again – if nothing else, because (as we shall see below) Mr Ravi (not surprisingly) argued the precise opposite. In particular, he (Mr Ravi) argued that r 3 of the PER indeed introduces the provisions of the Rules of Court and that, therefore, the time under r 13 can, and ought to be extended by recourse to O 3 r 4 of the Rules of Court (see [56] below).

[44] It would be appropriate at this juncture to set out the relevant provisions. First, r 3 of the PER reads as follows:

[45] Order 1 r 2(4) of the Rules of Court reads as follows:

[46] Although one particular rule was not in fact canvassed by counsel for either party, it is, in my view, of at least some relevance. It is in fact O 1 r 2(5) of the Rules of Court and of course follows directly on from O 1 r 2(4), which has been set out in the preceding paragraph. Order 1 r 2(5) itself reads as follows:

My analysis of this particular (third) issue is set out in detail below (at [99]–[109]).

[47] Fourthly, Mr Chan, whilst acknowledging that in a “normal” election petition, the interest of the defendant was clearly important in order to confirm his or her election in the face of an application by the plaintiff, emphasised that the overriding interest was that of the nation or country itself. By a “normal” election petition, he meant one that was brought against the successful candidate in a particular constituency. According to Mr Chan, the plaintiff’s present application under s 90 of the Act was not “normal” in so far as: (a) it sought to impugn the entire General Election; and (b) it was brought against the Attorney-General and not the successful candidates in question. As regards Mr Chan’s arguments concerning the overriding national interest in proceedings under s 90 of the Act, there is, once again, an overlap with the argument from precedent inasmuch as Mr Chan relied heavily on the observations of Lord Upjohn in the Privy Council decision in the Devan Nair case (reproduced above at [35]) – especially with respect to the need for a speedy resolution of the controversy concerned. Whilst Mr Chan’s emphasis on the public interest is both valid and persuasive, he does not, in my view, pay sufficient attention to the interests of the defendant in a “normal” election petition, ie, the successful candidate, having regard to the specific language and context of the Act and the PER in general and of r 13 in particular. I shall elaborate upon this later (at [75]).

[48] I turn, now to the arguments made by Mr Ravi on behalf of the plaintiff.

[49] As with the defendant’s arguments, the plaintiff’s arguments could also be classified under the two broad headings referred to above. This is not surprising in view of the fact that the parties needed to join issue and, in particular, in view of the fact that the plaintiff had also to respond to the arguments made by the defendant.

[50] Contrary to the approach adopted by Mr Chan, Mr Ravi argued that this court was not bound by the Malaysian decisions. This approach was probably due to the fact, as I have already mentioned, that the weight of Malaysian authority supported the defendant. Nevertheless, Mr Ravi did draw my attention to one Malaysian High Court decision which supported the plaintiff. This is the decision of Sulaiman v Choong Yoon Chong [1957] MLJ 170 (“the Sulaiman case”). In that case, the plaintiff deposited security within the time specified but made the deposit with the wrong officer. The defendant argued that the rules on security had not been complied with and therefore applied for the election petition to be dismissed. According to Smith J (at 171):

[51] Mr Ravi also referred to wider arguments, albeit still in the Malaysian context. In particular, he argued that Malaysia possessed alternative avenues by which persons aggrieved in the context of elections could have recourse to. I did not verify the various avenues referred to by Mr Ravi. I am prepared to assume that he is correct and hence take his case in this particular regard at its highest. It followed, so his argument continued, that the Malaysian courts could afford to adopt a stricter approach towards contravention of the equivalent of our PER because aggrieved persons had the alternative avenues just referred to. Although I have refrained thus far from expressing my views on the arguments tendered before me as I will be dealing with them holistically below, I make an exception in the present instance as it seems to me that counsel’s argument is, with the greatest respect, neutral at best and misconceived at worst.

[52] In the first instance, the focus must always be on the statutory language concerned (here, that to be found in r 13). Surrounding material is useful only in so far as it assists in throwing light on the provision in its specific context. To this end, the wider arguments and considerations raised by Mr Ravi lie beyond the specific context I have just referred to and are therefore irrelevant to the interpretation of the language and intention of r 13 itself. More to the point, the integrity of the legal process ought not to be compromised in such an important context as this.

[53] Secondly, the wider arguments and considerations raised by Mr Ravi might actually entail a conclusion contrary to what he has advocated. If, for example, alternative avenues in fact exist (in the Malaysian context) to vindicate the rights of an aggrieved person in the context of elections, why should the courts not adopt a less strict approach? While by no means conclusive, this is an at least plausible argument that militates directly against the argument proffered on behalf of the plaintiff by Mr Ravi.

[54] Mr Ravi raised several arguments from general principle. This is not surprising in view of the fact – already noted – that the case law was not really in the plaintiff’s favour.

[55] He argued, firstly, that speedy determination was not an issue as the plaintiff’s application had already been scheduled to be heard on 27 June 2006.

[56] Secondly, he argued – contrary to the approach taken by Mr Chan, and noted above – that the Rules of Court with respect to the power of the court to extend time (in particular, O 3 r 4 thereof) applied in favour of the plaintiff. As I have already alluded to above, this particular issue raises significant questions of interpretation which I will deal with below (at [99]–[109]).

[58] In reply, Mr Chan responded specifically to some of the arguments raised by Mr Ravi.

[59] He first argued, referring to the judgment of Lee J in the Chong Thain Vun case ([25] supra), that the decision in the Sulaiman case (which Mr Ravi had relied upon at [50] above) had been all but overruled. I will deal with this particular argument in more detail below (at [94]–[96]).

[60] Secondly, he argued that the extra-legal considerations raised by Mr Ravi (see [51] above) were legally irrelevant.

[61] Thirdly, and referring to the argument by Mr Ravi (at [57] above) to the effect that the plaintiff had taken reasonable steps to furnish the requisite security under r 13, Mr Chan argued that this was “only one-half of a clap”, but that one needed “two hands to clap”. He argued that Mr Ravi had omitted to refer to what I would (in the spirit of the current expression) refer to as the other side of the coin or equation. In particular, he (Mr Ravi) had not referred to the fact that this “other side” entailed considering whether or not the election officials and/or this court had the legal power in the first instance to accept or endorse the attempted (late) payment by the plaintiff.

[62] Fourthly, Mr Chan argued that nowhere else do we find words similar to those found in r 13(4).

[63] Finally, Mr Chan emphasised that the relevant election laws are neutral in nature.

[64] I turn now to an analysis and evaluation of the various arguments made by both Mr Chan and Mr Ravi on behalf of their respective clients, and which I have set out briefly above.

[65] As I have already mentioned, it would be eminently appropriate to utilise the two broad headings I have adopted above in analysing as well as evaluating the respective parties’ arguments before arriving at my decision.

[66] It is clear that the relevant case law supports the conclusion that r 13 of the PER is mandatory and that, therefore, a failure to comply with it will result in the plaintiff’s application being dismissed if the defendant chooses to apply to this effect pursuant to r 13(4). Indeed, a failure to comply with r 13 is precisely what happened in the present proceedings.

[67] As already noted above, the leading decision was handed down decades ago in the Chong Thain Vun case ([25] supra). What is of added significance is that that particular decision has more than stood the test of time – right up to the present (see, in particular, the Charlee Soh case ([33] supra)). The rule relating to the furnishing of security in these decisions was, it should be further noted, identical to our r 13. However, it is essential, in my view, not to adopt an excessively legalistic approach and simply rest my decision on a “peg-hanging basis”. What I mean is this: that while it is extremely common for lawyers to seek and find “comfort” in a precedent (preferably “on all fours” with the case at hand), such an approach that utilises an existing precedent without more as a “peg” to hang one’s decision on, whilst helpful, ought not to be carried to extremes. Such an approach is undoubtedly an integral part of the common law process. But that ought not to be the be all and end all of the matter for, surely, the reasoning and logic of the precedent concerned must matter as well. Indeed, in the worst-case scenario, an existing precedent could in fact embody erroneous principles of law. It is therefore imperative to also examine the reasoning and rationale of the relevant precedents as well as to decide (whenever possible) the case on first principles. This is accordingly what I propose to do vis-à-vis r 13.

[68] I commence with the finding that the reasoning in the Chong Thain Vun case as well as in the Charlee Soh case is logical and persuasive (see generally [25]–[34] above). However, I wish to go further. The logical and fair starting point is to examine the very language of r 13 itself, bearing in mind the very important caveat pointed out by Mr Chan above (at [20]–[22]) that I ought to confine myself, as far as is possible, to the language and four corners of the Act and the accompanying PER themselves.

[69] Rule 13 has in fact been reproduced in full at [4] above. Of particular importance is para (1) thereof as it is that specific provision which not only sets out the general duty of the plaintiff (or someone on behalf of the plaintiff) to give security but also lays down the timelines concerned. Rule 13(1) reads as follows:

The words italicised above are of particular importance. Let me elaborate.

[70] One will notice right from the outset at least two important (and related) points with respect to the timeframe set out under r 13(1).

[71] The first is that, on a general level, the timeframe is very specific. In other words, it is not phrased in general terms. More importantly, there is no exception incorporated into r 13(1) itself, for example, the provision for an extension of time if the timelines therein are not met. Indeed, the reference in r 13(1) is to two timelines, not just a single timeline. This is a point that has, to the best of my knowledge, not been canvassed in any of the case law. However, it is, as I shall point out in a moment, a significant point that arises on a plain reading of the provision itself – which is, in fact, my second point, to which I now turn.

[72] Secondly, and as I have just mentioned, there are in fact two specific timelines prescribed within r 13(1) itself. The first is that security shall be payable “at the time of the filing of the application”. Presumably, this is the most efficient scenario envisaged. It also presupposes that the plaintiff, having taken the time and trouble to file an application under s 90 of the Act, has also taken the time and trouble to acquaint himself or herself with all the relevant procedure – including the provision of security as required under r 13. I pause here to note that such an application is indeed a very specific and specialised one. It is specific because it relates to a very special procedure impugning a result in an event that does not take place every other day, to put it mildly. It is also specific because it is not only an attempt by the plaintiff to vindicate his or her rights but is also an attempt (simultaneously) to impugn and presumably take away the rights of another party (here, of the successful candidate who would normally be the defendant to such an application). I shall elaborate more on this point below as well as in the conclusion to this judgment because it goes to the very root of the concept of rights itself – viewed not merely in the abstract but in a very real and practical context. It will suffice for the present to reiterate the fact that, given, inter alia, the very specific and specialised nature of the context and its concomitant proceedings, there is a clear underlying assumption that the plaintiff would indeed be prepared, simultaneously with his or her filing of an application under s 90 of the Act, to furnish the requisite security pursuant to r 13.

[73] However, and this is where the Legislature has in fact built in a very limited exception which takes the form of a second (and alternative) timeline, if the plaintiff does not in fact furnish the requisite security pursuant to r 13 at the time of the filing of the application, then there is a further grace period of three days to do so. This is embodied in no uncertain terms by the words “or within 3 days afterwards” [emphasis added] in r 13(1) itself. This further grace period presumably permits the plaintiff some extra time to garner the necessary funds. However, given the special nature of the proceedings and the need (as we have seen above in the relevant case law) for a speedy determination of the proceedings, it is an extremely limited (and, I might add, extremely specific) period of three days – no more, and no less. It is nevertheless an additional period that has been expressly stipulated in r 13(1) itself.

[74] It is clear, in my view, that the Legislature, having stipulated two extremely specific timeframes in equally clear language, intended that these timeframes be adhered to strictly. In other words, the general requirement under r 13 in general and the specific timeframes stipulated in r 13(1) in particular are mandatory. There was no intention to provide for any further flexibility, nor is any indicated within the express language of r 13(1) itself.

[75] I turn, now, to a related point, which I have in fact already alluded to above. Once again, this point does not appear to have been canvassed in the relevant case law although it seems to me to be one that arises clearly not only on the face of the language of the various provisions of the Act itself but also from the spirit underlying those various provisions. And that is the need to be conscious, not only of the plaintiff’s rights, but also of the rights or interests of the defendant which are impugned by an application under s 90 of the Act. As has already been noted, the present proceedings do not constitute a “normal” election petition (see [47] above). I do not wish to state more here since this leads naturally on to issues that are not before me in the present proceedings, viz, whether or not the plaintiff had filed an application against the wrong defendant in the present proceedings and whether or not (as a closely related point) the thrust and spirit of the Act (read in both logical as well as historical contexts) envisaged applications under s 90 being brought only in relation to the results of specific constituencies, and not the entire General Election in toto. Be that as it may, it cannot, in point of fact, be denied that the present application is not “normal” inasmuch as the defendants to s 90 applications are usually the successful candidates whose seats are being impugned. However, even assuming that the plaintiff was entitled to file her application in the present proceedings against the Attorney-General, it was nevertheless undeniable that the rights of all the elected Members of Parliament in the 2006 General Election (as de facto defendants) were necessarily involved as a result of the plaintiff’s application. This actually underscores the point I have just made with respect to viewing the relevant Act and rules from the perspective of the rights of the defendant (whether de facto or de jure)as well. In other words, the strict timelines (inter alia, in r 13(1)) represented, in my view, the Legislature’s attempt to balance the plaintiff’s and the defendant’s rights which were, ex hypothesi, in irreconcilable conflict with each other. Whilst the Legislature afforded the plaintiff the right to impugn election proceedings which, if successful, would take away the defendant’s rights (including the rights of “de facto defendants” in proceedings such as the present), because of precisely the nature of the proceedings as I have just put it, the Legislature imposed strict timelines to ensure that the plaintiff’s application was mounted seriously and in good faith. Indeed, in the specific context of r 13 itself, we have seen (at [30] above) that the purposes for requiring the furnishing of security are not only consistent with but also buttress the point made in the preceding sentence. It is undoubtedly the case that the public interest ought to be safeguarded as well. I do not wish to detract, in any way, from this particular (and extremely important) purpose and rationale – not least because it has been embodied in authorities as august as that of the Judicial Committee of the Privy Council (in the Devan Nair case at [35] above). However, I do need to emphasise that there is an additional reason which is by no means insignificant and which also contributes to the reason and rationale for the strict timelines embodied within, inter alia, r 13(1): This is to ensure that the defendant candidate’s rights are not disregarded as the plaintiff asserts his or her rights under the Act and the PER in the process. In this regard, the following observations by Singham J in the Dr Shafie case ([20] supra at [31]) might also be usefully noted:

[76] Returning once again to the language of r 13(1) (and another point), one cannot help but notice that the requirement for the furnishing of security on behalf of the plaintiff is couched in ostensibly mandatory language. I refer, in particular, to the phrase “shall be given” [emphasis added]. However, in doing so, I must not be taken to be adopting a pedantic approach, much less a dogmatic one, to the effect that whenever words such as “shall” are used, the provision concerned must necessarily be mandatory. Everything depends on the specific language of, as well as the context surrounding, the provision itself. However, other things being equal, such words do suggest that the provision concerned is mandatory. I have, in fact, already canvassed not only the other parts of r 13(1) itself but also the surrounding context as well as the aims of the Act and the PER themselves, and shall therefore not repeat my analysis above. In the circumstances, it is clear to me that the word “shall” in r 13(1) means that this provision is itself mandatory.

[77] I turn now to the language of r 13(4) which is, of course, the provision under which the present proceedings have been brought by the defendant; it reads as follows:

[78] Mr Ravi argued, on behalf of the plaintiff, that the words “no further proceedings shall be had” in r 13(4) are not imperative in nature. Mr Chan, on behalf of the defendant, argued (not surprisingly) otherwise. If one simply reads these words alone without more, it could possibly be argued that (from a strictly literal perspective) it is inconclusive as to whether or not a non-compliance with r 13 (as was the case here) would necessarily result in a dismissal of the plaintiff’s application. Here, again, however, I must emphasise the need to read the language of a provision not only in relation to the rest of the language in that (as well as related) provision but also in the context of the general intention of the Legislature in so far as that can be ascertained. Bearing these general and fundamental guidelines in mind, let us turn now to a more detailed analysis of r 13(4) itself.

[79] I have already referred to Mr Ravi’s argument in the preceding paragraph. With respect, however, what Mr Ravi failed to refer to were the remaining words in r 13(4) itself. In particular, whilst the words relied upon by Mr Ravi (“no further proceedings shall be had”) occur in what I consider the first limb of r 13(4), one must also have regard to the second limb in that provision, and consider both limbs in context.

[81] I pause, at this juncture, to note that while a distinction was drawn in the not too distant past between mandatory and directory provisions, the modern approach has been to focus on the relevant legislative intention instead. In the words of V K Rajah J in the Singapore High Court decision of Re Rasmachayana Sulistyo; ex parte The Hongkong and Shanghai Banking Corp Ltd [2005] 1 SLR 483 at [24]:

[82] Indeed, this is precisely the approach that I have adopted in the present proceedings, and which, incidentally, was also the approach adopted by Lee J in the Chong Thain Vun case ([25] supra at 73). It might, nevertheless, be helpful to observe that words such as “mandatory” and “directory” are still helpful inasmuch as they assist in focusing on the nature of the provision concerned and (more importantly) on the consequences of non-compliance with it. However, such words do not, in and of themselves, aid substantively in the process of ascertaining whether or not the provision concerned is indeed “mandatory” or “directory”. In this regard, there is no substitute for a close analysis of the language of the provision itself set in its legislative context.

[83] The approach just suggested also finds some support in the English Court of Appeal decision of Ahmed v Kennedy ([36] supra), which was referred to earlier in this judgment. In that case, Simon Brown LJ, cited (at [29]) Lord Woolf MR (as he then was) in Regina v Secretary of State for the Home Department, Ex parte Jeyeanthan [2000] 1 WLR 354 at 362, where he described the then Master of the Rolls as observing that “[the] dichotomy [between “directory” and “mandatory” provisions] is ‘only at most a first step’ and that further questions then arise to help the court decide whether in any given case non-compliance ought properly to be held fatal so as to oust the court’s jurisdiction in the matter”. The learned lord justice then reiterated (ibid) the same approach which was endorsed in the preceding paragraph, as follows:

[84] Turning now to a separate point, the historical context is, in my view, also instructive. The (present) Act has its source as far back as 1947: see the Singapore Legislative Council Elections Ordinance 1947 (No 24 of 1947) (“the 1947 Ordinance”). In particular, r 13 of the PER (found, it will be recalled, in the Fourth Schedule of the Act) corresponds to r 12 in the Third Schedule of the 1947 Ordinance. I pause to note that there were no changes effected to this rule when the 1947 Ordinance was replaced a few years later by the Singapore Legislative Assembly Elections Ordinance 1954 (No 26 of 1954) (“the 1954 Ordinance”).

[85] Rule 13(2) of the PER reads as follows:

[86] Rule 12(2) of the Third Schedule of the 1947 Ordinance (and, subsequently, of the 1954 Ordinance) read as follows:

[88] I note, also, that the other Malaysian decisions cited by Mr Chan also buttress my more specific finding with regard to r 13. Let me elaborate.

[89] These other decisions related not so much to r 13 but, rather, to the Malaysian equivalent of r 16 of our PER (see, for example, the Devan Nair case). We have already noted that it has been clearly established in the case law (including the case just cited) that this particular rule is mandatory in nature.

[90] My analysis thus far demonstrates – unequivocally, in my view – that decisions such as the Chong Thain Vun case do not contain mere assertions without more but are more than amply justified by an analysis of the language as well as the context and rationale of r 13. At this juncture, we note, once again, the overlap between this broad category (entitled “Precedent”) and the next (entitled “General principle”).

[91] I also agree with Mr Chan that the conclusion I have arrived at in the preceding paragraph is further buttressed, on a more general level, by the broader considerations set out by Lord Upjohn in the Devan Nair case (at [35] above) – in particular, the first, which centres on the need for a speedy determination of the controversy. Mr Ravi sought to meet this particular point by an argument that was more in the sphere of general principle (see [55] above). To recapitulate, Mr Ravi argued that there would, in any event, be a speedy determination of the plaintiff’s application inasmuch as the plaintiff’s application had already been fixed for hearing on 27 June 2006. With respect, however, I find this particular argument (whilst seemingly attractive at first blush) to be flawed for the following reasons.

[92] Firstly, if not for the present summons taken out by the defendant under r 13(4), the plaintiff would have continued with her application without complying with r 13 of the PER. This issue might have then been raised as a preliminary jurisdictional point at the hearing on 27 June 2006 itself. This might then have resulted in an adjournment of the substantive hearing. I do not want to speculate but it would have been very surprising if a delay had not resulted along the lines I have just stated.

[93] Secondly, and more importantly, I find Mr Ravi’s argument rather disingenuous. There was no guarantee that the substantive hearing would be fixed as early as it has. The fact that we now know that the hearing has been fixed early does not necessarily mean that it would have been the case in the first instance. Hindsight, as the saying goes, is 20/20 vision. In any event, and even more importantly, the entire point of the matter is that the strict timelines contained in the PER (including that embodied in r 13) were to ensure that no further time whatsoever beyond what was stipulated in the rules themselves was wasted. In other words, a speedy determination of the controversy is not a “wait-and-see” situation, such as the plaintiff would have us believe. It is a direct process, if you like, without the slightest delay contemplated. Besides, if one were to accept Mr Ravi’s argument, there is virtually no hearing that would not satisfy the rationale centring on a speedy hearing. This would be especially so if one adopted a “wait-and-see” approach such as that advocated by Mr Ravi, where one would actually utilise ex post facto rationalisation after ascertaining what the date of the substantive hearing would be in order to argue that there has been no delay. Even more pertinently, as Mr Chan (very persuasively, in my view) put it, if time could be extended, where would one draw the line? What if further excuses were given by the plaintiff? This is precisely why a speedy determination in the manner stated by the Privy Council in the Devan Nair case ([25] supra) centred on a strict adherence to the timelines which will, ex hypothesi, result in the certainty that is crucial in the context of elections.

[94] I turn now to the precedents proffered on behalf of the plaintiff. In contrast, and as I have already noted earlier in this judgment, Mr Ravi could muster but one solitary precedent which was in the plaintiff’s favour. This is of course the decision of the Malaysian High Court in the Sulaiman case ([50] supra). This decision was in fact considered by Lee J in the Chong Thain Vun case ([25] supra), and this is what the learned judge had to say about the case (at 74):

[95] As alluded to above, Mr Chan argued that Lee J had effectively overruled the Sulaiman case, although the learned judge had sought to distinguish this decision on the two grounds set out in the above quotation. Indeed, Lee J also referred to the subsequent Privy Council decision in the Devan Nair case, thus buttressing Mr Chan’s point that Lee J was not really sympathetic to the decision in the Sulaiman case.

[96] Following from my analysis of the language and context of r 13 above (in particular, of paras (1) and (4) thereof), I do not, with respect, think that the Sulaiman case ought to be followed. Quite apart from Mr Chan’s point that it stands alone in the entire jurisprudence of elections law in Malaysia, I would myself have arrived at the opposite conclusion from my own analysis of r 13 without more, which analysis I have set out in some detail above. Whilst I acknowledge that the Sulaiman case dealt (as Lee J alluded to in the Chong Thain Vun case (see [94] above)) with a different issue, a central thrust adopted by Smith J in the Sulaiman case (and which was an integral part of his overall decision) was that the equivalent of r 13 of the PER was directory rather than mandatory (see at [50] above). To that extent, and for the reasons I have already set out above, the Sulaiman case is wrong and ought not to be followed.

[97] I turn now to the various arguments from general principle tendered by both parties. I should add, however, that most of these arguments (in particular, those relating to the public interest in the speedy resolution of the controversy concerned) have already been considered in this part of the judgment relating to an analysis of the relevant case law. Indeed, only two substantive arguments from general principle remain.

[99] I consider, first, the issue as to whether or not the Rules of Court apply in the context of proceedings such as these. There is, to the best of my knowledge, no specific decision covering this point in the Singapore context. This issue has therefore to be decided from first or general principles.

[100] In my view, the issue can be resolved without even having recourse to either Mr Chan’s or Mr Ravi’s arguments. This is because I have found that r 13 is a mandatory provision. If so, then it must, ex hypothesi, be complied with strictly. In other words, there can be no room for extension of time so that even if it were open to this court to consider the application the Rules of Court in general and the provision therein for extension of time in particular, it would make no difference to the present proceedings since it is clear, as I have elaborated upon above, that r 13 is clearly mandatory and must be complied with strictly. This interpretation is further supported by the opening words of r 3 of the PER itself (reproduced above at [44]), which state that the application of the Rules of Court, with the necessary modifications, to the practice and procedure in any proceedings under the Act is “[s]ubject to the provisions of these Rules [viz, the PER] and of the Act [viz, the Parliamentary Elections Act]” [emphasis added]. It should also be noted that the underlying philosophy and as concomitant general approach adopted in the Rules of Court are quite different, as the underlying presumption appears to be that the provisions contained therein are generally directory rather than mandatory (reference may be made, in this regard, to O 2 r 1 of the Rules of Court).

[101] However, as I have already pointed out above, the precise relationship between O 1 r 2(4) of the Rules of Court and r 3 of the PER is none too clear. It is not necessary for me to attempt to clarify this relationship (assuming that this is possible in the first instance), having regard to my holding in the preceding paragraph. I will content myself with a few tentative comments, leaving it to a later court to expound on the issue in more detail when faced with it directly.

[102] It seems to me that r 3 of the PER is intended to be a “gap-filling” provision. By this I mean that the PER constitute the foundational set of rules which govern proceedings under the Act, although relevant provisions of the Rules of Court might apply, with the necessary modifications, where a certain procedural issue or step is not covered by any of the specific rules within the PER themselves. That this is the case is buttressed by the language of O 1 r 2(4) of the Rules of Court (reproduced at [45] above). Indeed, a plain reading of O 1 r 2(4) clearly envisages that the Rules of Court will have little, or no, role to play in the context of the Act itself. Pausing for the moment, the view to the effect that r 3 of the PER is intended to be “gap-filling” only is perfectly consistent with my holding to the effect that r 13 is a mandatory provision which must be complied with strictly.

[103] That r 3 of the PER plays a “gap-filling” role appears to be further supported by the relevant legislative history.

[104] It is apposite to commence by setting out s 100 of the Act, as follows:

[105] Section 100 was in fact present in the Act right at the outset – as s 86 of the (original) 1947 Ordinance, which read as follows:

[106] It can be seen that s 100 of the Act is, in all but one substantive respect, the same as s 86 of the 1947 Ordinance, as represented principally by the italicised words at [104] above. These italicised words serve, in my view, to underscore the view expressed below (at [108]) to the effect that s 100 was originally introduced in order to pave the way for the promulgation of a new and comprehensive set of elections rules.

[107] Although the 1947 Ordinance (and, hence, the (present) Act) can be traced, in the main, to the then Ceylon (Parliamentary Elections) Order in Council 1946 (see, for example, the Objects and Reasons to the Bill for the 1947 Ordinance in the Supplement to the Government Gazette (S 176/1947) and the Report of the Legislative Council Elections Drafting Committee (Singapore, April, 1947) (“the Report”) at pp IV–V as well as Annexure B, pp ii–iv), s 86 (and, hence, the present s 100) was completely new (see the comparative table in the Report at Annexure A, p 89).

[108] It would appear that the present s 100 of our Act was originally introduced as a completely new provision altogether in order to pave the way for the promulgation of a comprehensive set of elections rules which would have taken the place of the rules in the then Third (and presently, Fourth) Schedule. However, this was not to be. The reasons are unclear. But one thing is clear: What is now r 3 of the PER was introduced in 1982 via the Parliamentary Elections Petition (Amendment) Rules 1982 (S 313/1982). Once again, however, the reasons for the introduction of r 3 are unclear. However, having regard to the legislative history behind s 100 of the Act, it might well have been the case that the rules in the Fourth Schedule of the Act were thought to be adequate and, hence, this resulted in the absence of a new set of elections rules. Nevertheless, the language and tenor of r 3 suggest that this provision was introduced in order to “fill in the gaps” in situations where the situation concerned was not otherwise provided for by the rules in the Fourth Schedule of the Act themselves.

[109] The approach I have suggested is also consistent with Mr Chan’s argument which has been set out briefly above (at [43]) – but only in the end result (cf, for example, the absence of discussion of O 1 r 2(5) of the Rules of Court (reproduced at [46] above)). However, if my respective interpretations of r 3 (as a “gap-filling” provision) and r 13 (as a mandatory provision) are correct, there is no need to have recourse to Mr Chan’s argument. And, in the light of my reading of, inter alia, these rules, Mr Ravi’s argument (at [56] above) cannot succeed.

[112] Secondly, it was the plaintiff who had brought the substantive application in the first instance. In the words of Lee J in the Chong Thain Vun case (quoted at [32] above), “[p]eremptory language is used by the rules and it behoves a petitioner to study the rules carefully so that every provision is complied with”; and as the learned judge proceeded to observe (at 74):

[113] Reference may also be made to the equally pertinent observations of Skinner J made in a similar vein in the Charlee Soh case ([33] supra, and as quoted at some length at [34] above).

[114] I should add that even on a general level, I find that the plaintiff’s arguments in this particular regard have, with respect, no merit. It would be more appropriate to state them in the conclusion to this judgment, which I do (see [115]–[118] below). I will point out that one ought not to be misled by superficially attractive arguments of sympathy without also examining closely the entire context, which also includes the rights of other interested parties, amongst other considerations.

[115] It is the duty of every court to sift the legal wheat from any (and all) irrelevant chaff. The “irrelevant chaff” in this particular instance comprised bare appeals by the plaintiff for sympathy without reference to either the relevant law or the fact that what she requested in her application involved serious legal issues and consequences. The plaintiff sought to paint the picture of one who was a mere layperson – ignorant and helpless. With respect, this was a wholly one-sided version of events which cleverly omitted to give – as common fairness required – a full as well as accurate picture that placed all the circumstances in their proper context. The fact of the matter was that this was a serious application which was submitted to the Registry of the Supreme Court in proper legal form by the plaintiff. She had initiated the main proceedings and was obviously clear about what she intended to achieve from a legal point of view (and see [1] above). To reiterate, the key issue in these proceedings was whether r 13 was a mandatory one. It clearly was for the reasons I have set out above. It was not a mere “optional extra”. The plaintiff clearly failed to comply with r 13. To accommodate the plaintiff in the present proceedings out of what would in any event be a misguided and arbitrary exercise of sympathetic feelings is to ignore, blatantly, a clear and mandatory legal rule, for which (as I have pointed out above) there is an equally clear (and no less significant) rationale. Indeed, it is precisely this clear rationale that furnishes the legal rule with its underlying spirit of justice and fairness. In the circumstances, to accede to the plaintiff’s request in the present proceedings would, in effect, be to commit two related errors simultaneously, ie, blatantly ignoring a mandatory rule out of a misguided sense of sympathy.

[116] I should add that adherence to the law is the essence of the rule of law, which centres on objectivity as opposed to arbitrary subjective feelings (in this particular instance, of misguided sympathy). And respect for the law is not merely a practical necessity; it is an ideal without which arbitrariness will rear its ugly head. Merely dressing such arbitrariness up in various labels without more is to be eschewed, for labels without substance constitute not only empty rhetoric but also exceedingly dangerous things indeed – and all the more so when they have a superficial attractiveness, and nothing more. The exercise, as well as the ideal, of freedom are legitimate and real only when they are effected in accordance with the legal rules concerned. And it bears emphasising once again that the legal rule that is the focus of the present proceedings is undergirded by a clear rationale that constitutes its underlying spirit of justice and fairness. This meets – indeed roundly refutes – the charge of technicality as well as legalism or positivism which was a major plank in the plaintiff’s case in the present proceedings.

[118] Lest it be thought that such an approach is excessively harsh, even when taking into account the underlying spirit of justice and fairness referred to above, I would only state that the Act and the PER are themselves neutral in nature inasmuch as they could be relied upon by any party so long as that party could bring himself or herself within the ambit and spirit of the rule(s) concerned. Indeed, in so far as a breach of r 13 was concerned, had the shoe been on the other foot, so to speak, the option would have lain with the present plaintiff to have made precisely the same application taken out by the present defendant in the present proceedings. In other words, if the present plaintiff had been the defendant instead, and a similar situation had arisen, it would have clearly been open to her to apply under r 13(4) for the application against her to be dismissed. When posed with this hypothetical situation, Mr Ravi really had no answer, save for a half-hearted response to the effect that he would not have advocated such an application. But, surely, this is beside the point. As is obvious from r 13(4) itself as well as the case law (see generally, and respectively, [77]–[80] and [31]–[34] above), the option is of course with the defendant. But that does not – and cannot – detract (in any way) from the fact that a breach of r 13 entitles the defendant concerned to take out an application to dismiss the plaintiff’s application.