© Elliot Aruldoss (16 November 2012)

UK Houses of Parliament Singapore Parliament House

IS THE PROCESS OF DRAWING ELECTORAL BOUNDARIES IN

SINGAPORE, FAIR AND TRANSPARENT?

by Elliot Aruldoss Introduction This essay is a commentary on the sufficiency of oversight in Singapore specifically attached to the process of ‘boundary delimitation’ by evaluating the effectiveness of electoral law and electoral bodies in ensuring that such a process is free and fair. The process of drawing electoral boundaries in Singapore will be compared with that of the United Kingdom (UK) since both nations have adopted ‘Westminster’ models. Boundary Delimitation and Gerrymandering Boundary delimitation is a process by which electoral constituencies are defined. In both Singapore and the UK, each constituency has parliamentary elections whereby constituent residents would be entitled to vote for a candidate of their choice. Yet, under the guise of legitimate boundary delimitation, it may become possible to redraw constituency boundaries so as to manipulate vote percentages in line with the political interests of an incumbent government. This discriminatory redefining of boundaries is known as ‘gerrymandering’, which undermines the free and fair electoral process. Hence, oversight attached to the boundary delimiting process is crucial. Singapore In Singapore, the Prime Minister (PM) maintains ‘full discretion’1 in delineating constituency boundaries2. He may then appoint an ‘Electoral Boundary Review Committee’ (EBRC) tasked with reviewing constituency boundaries3. The review is

1 Singapore Parliamentary Sitting date 4 March 2010, vol 86, cols 3031-3032 <http://www.scribd.com/doc/113095696/2010-03-04-SporeParl-Electoral-Boundaries-Review-Committee-Report> 2 Parliamentary Elections Act 2011 of Singapore, s 8(1) 3 See Note 1 supra.

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distilled into a report and subsequently submitted to Cabinet for approval4. However, the question remains if sufficient oversight exists so as to prevent arbitrary decision-making by the executive in the boundary delimiting process. Insufficient Oversight Electoral Boundary Review Committee (EBRC) The EBRC is chaired by the Cabinet Secretary5 who reports to the PM, notwithstanding that the PM’s appointment of the EBRC to establish constituencies would already be indicative of its compromised independence. Furthermore, the EBRC’s report needs only to be submitted to and accepted6 by the Government, and thereafter, boundaries can be established. Therefore, arguably, since the EBRC is under the purview of the PM, the submission of its report to the Government may be mere formality and any intended boundary manipulation would fail to be checked by having the EBRC in place. Hence, the EBRC may not satisfy the requirement of political autonomy as an oversight-body. Additionally, the EBRC’s report has in the past been criticized7 for giving insufficient justification for its proposed boundary revisions, thus leaving questions open as to its accountability. Elections Department Not much can be said of Singapore’s Elections Department with regard to boundary delimitation, as that task falls to the EBRC. However, it has the responsibility of managing8 the conduct of Parliamentary elections. Nevertheless, it is also under the purview of the PM’s Office9, allowing executive-control over electoral processes, compromising its political neutrality. Legal Oversight Although the law establishes the delimitation of boundaries10, no specific rules govern the process, leaving it vulnerable to discretion. Yet, even if an improper exercise of discretion has occurred in the delimitation process, ‘Judicial Review’ does little to alleviate the situation. The absence of legal rules allows any criteria to be justified, allowing exercises of discretion by the executive satisfying ‘Wednesbury unreasonableness’11, to go unchallenged.

4 Hwee, Electoral Politics in Singapore’, (2002) ‘Electoral Politics in Southeast And East Asia’ <http://library.fes.de/pdf-files/iez/01361007.pdf> accessed 30 October 2010 5 See Note 1 supra. 6 S Ramesh, ‘GE: Electoral Boundaries Review Committee report accepted’, Channel NewsAsia (Singapore 24 February 2011) 7 See Note 1 supra: “…Sir, reading the report raises more questions than it answers” ; and <http://wp.sg/2011/02/workers%E2%80%99-party%E2%80%99s-response-to-the-electoral-boundaries-review-committee-report/> 8 Singapore Elections Department <http://www.eld.gov.sg/about.html> 9 Ibid 10 Parliamentary Elections Act 2011 of Singapore, s 8(1) 11 Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223

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Also, even if judicial review were possible, the time span between the publication of the electoral boundaries by Government Gazette and issue of the ‘Writ of Elections’12, which signals the commencement of the elections, may be so short, as it has been in the past (see Table 1), that legally challenging the justification of delimitation would be pointless; the elections would end before the legal process is underway.

Table 1

General Elections

Date of EBRC Report

Date of Publication

Nomination Day

Time Span between Publication Date and Nomination Day

2001 16-Oct-11 17-Oct-11 25-Oct-11 8 days 2006 16-Feb-06 3-Mar-06 27-Apr-06 55 days (7 weeks) 2011 21-Feb-11 24-Feb-11 27-Apr-11 62 days (8 weeks) Source: http://www.singapore-elections.com/

Lastly, the doctrine of ‘Parliamentary Sovereignty’ prevents the Singapore Judiciary from commenting on electoral legislation, excluding them from the electoral process. United Kingdom Similarly, the UK is divided into electoral districts called constituencies. UK law establishes four ‘Boundary Commissions’13 to delineate constituency boundaries for parliamentary elections. It will be argued that boundary delimitation in the UK is legitimised by sufficient oversight. Oversight Boundary Commissions Boundary Commissions are non-government departments enjoying independent status. Each Commission is overseen by a High Court Judge14, whose impartial supervisory role guards against political will. There are other members appointed by the government in assisting the judge in her undertakings. However, these members are approved by opposition parties15 to ensure political neutrality. Moreover, transparency in the redistricting process is apparent when boundary commissions publish an initial proposal of the boundaries of each constituency to the public16 for consultation. Also, the law establishes and regulates these public hearings17, which are led by independent lawyers (Queen’s Councils)18, rationalising boundary commissions as transparent bodies. Furthermore, transcripts of public hearings

12 Parliamentary Elections Act 2011 of Singapore, s 24(3) 13 UK Parliamentary Constituencies Act 1986, s 2(1) 14 UK Parliamentary Constituencies Act 1986, Sch 1, para 3 15 Loveland, ‘Constitutional Law, Administrative Law and Human Rights’ (5th edn, OUP 2009) 214 16 Boundary Commission for England (2011) <http://consultation.boundarycommissionforengland.independent.gov.uk/wp-content/uploads/2011/08/406678_Guide-to-the-2013-Review_acc.pdf> 17 UK Parliamentary Voting System and Constituencies Act 2011, Sch 11 18 UK Parliamentary Voting System and Constituencies HC Bill (2010-10) [117]

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regarding the initial proposal19 are published for public scrutiny. Consequently, boundary commissions assume the status of an accountable oversight body in the delimiting process. Nevertheless, even after public consultation, when the report is submitted to the Secretary of State20 who subsequently presents it to parliament21, parliament may either approve or reject the report’s proposed recommendations but may not amend them22. This consolidates the independent agency of boundary commissions in establishing constituency boundaries, since its report remains unaffected by political will. Electoral Commission The law establishes an independent Electoral Commission, comprising five to nine ‘Electoral Commissioners’ who are appointed by the Queen23. Also, opposition in parliament approves four of such Commissioners. This underscores efforts taken to insulate the Commission from partiality. Moreover, a supervisory function of the Commission becomes apparent when it reviews the redistribution of seats at parliamentary elections and submits reports to the Secretary of State24. It also publishes an electoral report for public scrutiny. Most significantly, if changes to electoral law were proposed, Parliament would have to consult the Commission before change is implemented25. Supervisory Function of Law The law also provides a supervisory function, regulating the boundary delimiting process by establishing rules26 boundary commissions must consider. Rule 1 specifically limits the total number of constituencies. Rule 2 restricts a constituency electorate size. Rule 4 specifically limits a constituency area. Other factorial rules are mentioned in Rule 5. Such rules insulate the process from gerrymandering. However, the law may not afford adequate oversight. Except for Rule 1 which, due to its specificity, leaves no room for discretion, it may be argued that boundary commissions are not absolutely ‘bound’ by these rules. Rule 2 is qualified by Rule 4(2), which states that a constituency may not have to comply with Rule 2(1) if its boundary commission is satisfied that it is “not reasonably possible”. Discretionary departure from rules becomes more apparent in Rule 5 where a boundary commission “may take into account, and to such extent they think fit” of the stated provisions. Therefore, it may be argued that these rules are not enforceable as duties against boundary commissions but merely give guidance27 in the delimiting process. Potential remains for an improper

19 UK Parliamentary Voting System and Constituencies Act 2011, s 12(1) 20 UK Parliamentary Constituencies Act 1986, s 3(1) 21 Ibid, s 3(5) 22 Boundary Commission for England (2011) <http://consultation.boundarycommissionforengland.independent.gov.uk/wp-content/uploads/2011/08/406678_Guide-to-the-2013-Review_acc.pdf> 23 Political Parties, Elections and Referendums Act 2000, s 1(4) 24 Ibid, s 6(1)(c) 25 Ibid, s 7(1) 26 UK Parliamentary Voting Systems and Constituencies Act 2011, s 11 27 Loveland, ‘Constitutional Law, Administrative Law and Human Rights’ (5th edn, OUP 2009) 215

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exercise of discretionary power manifest in the slightest degree of boundary manipulation. Also, even if boundary commissions were bound by these rules, there may not be enough scope to absolutely prevent gerrymandering. Judicial Review Yet, the option of judicial review exists as a guard against such improper exercises of discretion. Judicial review28 against decisions made by boundary commissions may be on grounds of procedural impropriety, where rules have not been followed in the delimiting process. The supervisory role of the courts is seen in R v Commissioner for England ex parte Foot29 where it was held that courts had jurisdiction in determining if boundary commissions had acted in an unreasonable manner. However, the appeal was unsuccessful and it was held that boundary commissions were not bound by rules amounting to guidelines. Nevertheless, the option of judicial review grants oversight and arguably, Courts do have a supervisory presence in the delimitation process. Conclusion In Singapore, a lack of independent electoral bodies and clear electoral laws are primary factors undermining the notion of a fair boundary delimiting process. Conversely, in the UK, a sufficient degree of oversight exists, satisfied in a number of independent bodies imbued with supervisory functions. Note about the author: Elliot Aruldoss is a second-year law student at the School of Oriental and African Studies, University of London. This essay is based on a course assignment he undertook.

28 Rossiter, Johnston and Pattie, “The Boundary Commissions: Redrawing the UK’s map of Parliamentary constituencies” (MUP 1999) 29 [1983] 1 All ER 1099