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:
I am of the view that where it is viewed contemporaneously in the context of the other
provisions of the Act … r 4 of the Election Petition Rules 1954 confirms not only the intention of
the legislature to expedite the early determination of election petition but also to prevent any
injustice on the defending candidates, whose election is being challenged, against unspecific and
unforeseen allegations from irresponsible challengers. [emphasis added]
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:
If security required by this rule to be provided is not given by the plaintiff, no further proceedings
shall be had on the application under section 90, and the defendant may apply by summons to
the Judge for an order directing the dismissal of the application under section 90 and for the
payment of the defendant’s costs. [emphasis added]
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents