Voting rights in Singapore

Judicial view

In Taw Cheng Kong v. Public Prosecutor (1998),^[18] the High Court expressed the obiter view that the right to vote does not have constitutional status but is a privilege:^[19]

Constitutional rights are enjoyed because they are constitutional in nature. They are enjoyed as fundamental liberties – not stick-and-carrot privileges. To the extent that the Constitution is supreme, those rights are inalienable. Other privileges such as subsidies or the right to vote are enjoyed because the Legislature chooses to confer them – they are expressions of policy and political will. [Emphasis added.]

Government's view

The juridical status of the right to vote was subsequently debated in Parliament on 16 May 2001 upon an adjournment motion introduced by Non-constituency Member of Parliament Joshua Benjamin Jeyaretnam. Jeyaretnam argued that since "the marking of a ballot paper is an expression of the voter", the right to vote is protected by the freedom of expression clause set out in Article 14 of the Constitution of Singapore.^[20] Responding, the Minister for Home Affairs, Wong Kan Seng, stated:^[21]

While the Constitution does not contain an expressed declaration of the right to vote, I have been advised by the Attorney General ... that the right to vote at parliamentary and presidential elections is implied within the structure of our Constitution. We have a parliamentary form of government. The Constitution provides for regular general elections to make up Parliament and establishes representative democracy in Singapore. So the right to vote is fundamental to a representative democracy, which we are, and that is why we have the Parliamentary Elections Act to give effect to this right.

The heading of section 38 of the Parliamentary Elections Act ("PEA")^[22] is "Registers of electors to be conclusive evidence of right to vote". Subsection (1) provides that the current register of electors is conclusive evidence for determining whether a person is entitled to vote at an election, and subsection (2) states that a person's "right and duty of voting" is not prejudiced if there is an appeal pending as to whether his or her name is properly on the register.

The status of the right to vote was again considered in Parliament in 2009. During debates on the Ministry of Law's annual budget on 12 February, Nominated Member of Parliament Thio Li-ann asked if the right to vote is "a constitutional right and part of the fundamental law of the land, or merely a statutory right, regulated by ordinary law?"^[23] Replying to Thio the following day, Minister for Law K. Shanmugam referred to the 2001 debate on the matter and confirmed that, having conferred with the Attorney-General, in the Government's view the right to vote is an implied constitutional right arising from various provisions of the Constitution, including Articles 65 and 66.^[24] Article 65 sets out the requirements for the prorogation and dissolution of Parliament. Articles 65(2) to 65(3A) explain when the Prime Minister may dissolve Parliament, while Article 65(4) specifically provides that Parliament has a fixed term: "Parliament, unless sooner dissolved, shall continue for 5 years from the date of its first sitting and shall then stand dissolved." Article 66 states: "There shall be a general election at such time, within 3 months after every dissolution of Parliament, as the President shall, by Proclamation in the Gazette, appoint." The Minister also said:^[24]

The power of our citizens to vote cannot be a privilege, because that would imply that there is some institution superior to the body of citizens which is in a position to grant such a privilege to the citizens. But in a free country, there is no institution that can be in such a position to grant such a privilege to the citizens. In a Representative Democracy like Singapore, voting is therefore a right, not a privilege.

As regards the High Court's view in Taw Cheng Kong, the Minister noted that it could not be treated as a precedent since "[t]he legal nature of the citizens' right to vote was not an issue in that case and was not specifically argued".^[24] Thio Li-ann has commented that the Minister's clarification "dealt the quietus est to the High Court's odd pronouncement in Taw Cheng Kong v. Public Prosecutor".^[25]

1966 Constitutional Commission

On 18 January 1966, shortly after Singapore's independence, the President appointed a Constitutional Commission led by Chief Justice Wee Chong Jin to consider how the rights of racial, linguistic, and religious minorities in the nascent nation should be protected.^[26] In its report on 27 August 1966,^[27] the Commission recommended entrenching the right to vote as a "fundamental right" in the form of "the right to elect a government of their choice as expressed in general elections held at reasonable periodic intervals by secret vote".^[28] The chief justification for this proposal was the relatively infant or immature culture of democracy in a newly independent nation that was "barely one year old".^[29] The report noted that citizens had only exercised the right to vote twice in general elections, in 1959 and 1963 respectively. Hence:^[28]

The people of Singapore have thus had little experience of general elections nor can it be safely assumed that they have grown up to cherish as an inalienable right, the right to be governed by a government of their own choice, expressed in periodic and general elections by universal and equal suffrage and held by secret vote ... [W]e do not consider it safe to assume that a significant proportion of the people of Singapore will be able to realise, until it is too late to prevent it, that any inroads have been made into the democratic system of general elections by a future government intent on undermining first and ultimately destroying the practice of democracy in Singapore.

However, Parliament decided not to entrench the right to vote, instead relegating voting rights to statutory regulation under the Parliamentary Elections Act.^[29]

2009 parliamentary debate

During the 2009 parliamentary debate on the right to vote's status, Thio Li-ann proposed that, to avoid doubt, the right should be specifically set out in the Constitution. She argued that entrenching the right to vote through an Article in the Constitution would provide the opportunity to protect the details of the right. Currently, voting is regulated by the PEA.^[22] As it is an ordinary statute, it can be altered with a simple parliamentary majority by future governments seeking to amend or restrict voting rights. Thio said that expressing the right to vote clearly in the Constitution would allow aspects of that right such as voter secrecy and the universality and equality of votes to be protected from unjust manipulation.^[23]

However, the Minister for Law said the Government was of the opinion that as the right to vote is an implied right in the Constitution, it was unnecessary for the Constitution to be amended to expressly mention the right. Articles 65 and 66 of the Constitution would be entrenched once Article 5(2A) is brought into force.^[24] That Article, which has remained in abeyance since it was introduced in 1991, provides that a bill that seeks to amend, among other things, Article 65 or 66, must be supported at a national referendum by not less than two-thirds of the votes cast, unless the President consents to the amendment. Shanmugam went on to state that the concerns of the 1966 Constitutional Commission were now moot, as Singapore had since experienced ten general elections with a 95% voter turnout each time. Therefore, it could be assumed that the idea and experience of voting were deeply ingrained in Singaporean voters. Furthermore, some countries choose to draft their constitutions in great detail while others, like Singapore, set out a basic philosophy.^[30] He noted that countries such as North Korea and Myanmar were among those that had set out the right to vote within their constitutions. Shanmugam concluded that what was fundamental to protecting the right to vote was a Government committed to the rule of law.^[24]

Following the parliamentary debate, in a 2009 article Thio elaborated that entrenching the right to vote in the Constitution would make it significantly more difficult for any corrupt government that came into power to curtail it, as a super-majority of at least two-thirds of all elected Members of Parliament would be needed before a constitutional amendment could be made.^[31] Otherwise, with control over a simple majority of Parliament,^[32] a ruling party, if it chose to, could direct amendments to the PEA or create new legislation to provide some citizens with, say, double the number of votes and protect this from constitutional challenge using a notwithstanding clause (that is, a provision stated to have legal effect despite the existence of other inconsistent laws). By not protecting such an important right, the freedom of Singapore's electoral system could be progressively curtailed.^[33] A similar point has been made by Singapore Management University constitutional law professor Jack Lee who noted that since Article 66 does not define the term general election:^[34]

... there does not appear to be anything in the Constitution to prevent a future government from, say, requiring all candidates to have their "suitability" for political office determined by a government-appointed committee meeting in private, the decision of which would be final. There could still be a "general election" of sorts, but clearly a greatly-impoverished version.

Thio also argued that without a constitutionally expressed right to vote, the judiciary is handicapped in interpreting this implied right, given its conservative approach to reading the Constitution and the fact that it is unlikely to appeal to normative ideas such as representative democracy.^[33]

Originalist interpretation

The courts may choose to establish an imputed intention or traditional understanding of the existence of a right to vote, derived from the drafting style associated with the drafters of Westminster constitutions rather than the drafted text as it is. Thio has said that the framers of the Constitution worked with certain assumptions which they did not make explicit. In Hinds v. The Queen (1975),^[39] the Privy Council said that:^[40]

... a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.

The court in Hinds held that, as "a rule of construction applicable to constitutional instruments" adopting the Westminster system, the "absence of express words" did not prevent the judicial powers of the new state being exclusively exercised by the judicature".^[40] Similarly, the right to vote was necessarily implied into the Constitution through its genesis as an adaptation of the Westminster system of democracy.^[41]

Interpretation based on text and structure

Thio has also argued that the courts may find that an implied right to vote can be derived from the existing structure of the Constitution and a purposive reading of Articles 65 and 66. According to this reading, a constitutional right to vote must be logically or practically necessary for preserving the integrity of that structure, as constitutionally established. In Articles 25 and 26 of the Constitution, the appointment of the Prime Minister requires that he commands "the confidence of the majority of the Members of Parliament". As the Constitution places emphasis on the need for democratic legitimacy as well as general elections, it may be reasonable to infer that the structure of the Constitution provides for a right to vote as a fundamental instrument of democratic legitimacy.^[42]

Overseas voting

Prior to May 2001, voters who were overseas on polling day could not vote. Operational concerns such as insufficient Singapore missions around the world, the possibility that the last known addresses of Singapore citizens overseas might not be current, and the difficulty of keeping track of citizens who were abroad, were cited for this restriction.^[52] Some commentators took the view that such logistical issues should not deprive Singaporeans of their "sacred right to vote".^[53]

Overseas voting was eventually introduced for both parliamentary and presidential elections with effect from 15 May 2001.^[54] Speaking during the Second Reading of the bill that led to the change in the law, the Minister for Home Affairs, Wong Kan Seng, said that the Government recognized that increasing numbers of Singaporeans studied and worked abroad due to economic globalization. Thus, it had decided to introduce overseas voting on a small scale at the next general elections.^[55] At that time, the law generally required overseas voters to have resided in Singapore for an aggregate of two years during the five-year period before the prescribed date. However, Singaporeans whom the Government had posted abroad were exempted from this requirement and so were their families.^[56] The Minister explained that this requirement for residence in Singapore was a "necessary pre-condition to constituency representation and to prevent plural voting".^[57] J.B. Jeyaretnam criticized this restriction as discriminating against overseas voters.^[58][59]

However, following the terrorist attacks that occurred in the United States on 11 September 2001 and American military action in Afghanistan on 7 October, the Government decided to temporarily suspend overseas voting at the 2001 general election as having large numbers of Singaporeans congregating at known locations at known times could put them at risk of further terrorist attacks.^[60] Therefore, overseas voting first took place at the 2006 general election. The number of Singapore citizens who registered to vote overseas was 1,017, and of these, 553 resided in the 16 constituencies that were contested in the election. Eventually, 335 electors voted at eight polling stations around the world.^[61]

With effect from 3 March 2009, the residence requirement for overseas voters was reduced to an aggregate of 30 days during the three years immediately before the prescribed date, and the special dispensation of the requirement applying to citizens working or studying abroad at the Government's direction and their families was removed.^[62] The change was described in Parliament as a measure to "allow more overseas Singaporeans to vote. All an overseas Singaporean needs to do is to come home for 10 days a year to visit his family and friends."^[63]

Limitations on voting

A person is disqualified from voting in the following situations, which include engaging in acts incompatible with being a Singapore citizen, being of unsound mind, or being in prison for committing a criminal offence:

Voting by prisoners

See also: Felony disenfranchisement

Another potentially controversial provision is section 6(1)(b) of the Parliamentary Elections Act, which denies suffrage to convicted criminals serving jail sentences.

The issue of the constitutionality of this restriction has not yet arisen in any Singapore court, but during a Parliamentary debate in May 2001, Non-constituency Member of Parliament J.B. Jeyaretnam challenged the provision as unconstitutional.^[59]

The Singapore position may be compared with the situation in other jurisdictions. In Malaysia, the right to vote is entrenched in Article 119 of the Federal Constitution, but suffrage is similarly denied to those serving prison terms.^[76] In Yazid bin Sufaat v. Suruhanjaya Pilihanraya Malaysia (2009),^[77] it was held that while detainees under the Internal Security Act 1960^[78] – who have not been convicted of any crime – still enjoy the right to vote in national elections, that right may only be exercised only in the constituencies they are registered in, and does not extend to allowing them to vote while incarcerated elsewhere.^[79]

A survey of European countries reported in Hirst v. United Kingdom (No. 2) (2005),^[80] a judgment of the European Court of Human Rights, found that 18 states allowed prisoners to vote without restriction (Albania, Azerbaijan, Croatia, the Czech Republic, Denmark, Finland, Germany, Iceland, Lithuania, Macedonia, Moldova, Montenegro, the Netherlands, Portugal, Slovenia, Sweden, Switzerland and Ukraine), while in 13 states all prisoners were not allowed to vote (Armenia, Belgium, Bulgaria, Cyprus, Estonia, Georgia, Hungary, Ireland, Russia, Serbia, Slovakia, Turkey and the United Kingdom). In another 13 states, the right to vote could be restricted in some way (Austria, Bosnia and Herzegovina, France, Greece, Italy, Luxembourg, Malta, Norway, Poland, Romania, Spain, Latvia and Liechtenstein).^[81] In Hirst, the UK Government's denial of the vote to prisoners was ruled contrary to Protocol 1, Article 3, of the European Convention on Human Rights, which protects the right to regular, free and fair elections. The European Court said that the UK had to justify any deviation from universal suffrage, but the UK Government has so far desisted from applying the judgment after the House of Commons voted on 10 February 2012 to maintain the country's blanket ban on voting by prisoners.^[82]

In Canada, the Supreme Court held in Sauvé v. Canada (Chief Electoral Officer) (2002),^[83] that a statutory provision prohibiting prisoners serving a sentence of two years or more from voting unjustifiably infringed the fundamental right to vote guaranteed by section 3 of the Canadian Charter of Rights and Freedoms.^[84] The Court noted that the Government could not demonstrate how denying prisoners the vote helped the stated aims of the relevant statute; a democracy built on inclusiveness, democracy and citizen participation cannot be party to a law that disenfranchises a considerable part of the population. There was also no credible theory why prisoners should be denied the right to vote as a form of punishment, as it is arbitrary and not related to the offender's criminal act nor does it deter crime or rehabilitate criminals.^[85]

The foregoing cases may be contrasted with the position in the United States. The Supreme Court of the United States held in Richardson v. Ramirez (1974)^[86] that a California statute permanently removing the right to vote from any person convicted of an "infamous crime" unless the right to vote was restored by court order or executive pardon did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court noted that there was explicit constitutional approval for laws disenfranchising felons since section 2 of the Amendment reduced a state's representation in Congress if the state has denied the right to vote for any reason "except for participation in rebellion, or other crime". Thus, it was unnecessary for the statute in question to be narrowly tailored to serve compelling state interests to be consistent with equal protection.^[87]