In 1997, the Workers' Party had complained to the police that Mr Goh Chok Tong, Dr Tony Tan and Brigadier-General (NS) Lee Hsien Loong had been inside a Cheng San GRC polling station on Polling Day. The Public Prosecutor subsequently advised the police that the PAP leaders had not broken the law. The logic applied here, as detailed in the missive quoted hereunder from the honourable Attorney General, effectively says that "while it is illegal to be within 200 metres of a polling station unless you are voting, IT IS NOT ILLEGAL IF YOU ARE INSIDE." No explanation is given how anyone can be inside the polling station without being within 200 metres of the polling station in the first place.
Following is the text of the letter from Singapore's Attorney General to Law Minister S. Jayakumar on the presence of unauthorised persons inside polling stations. The opinions in this letter were put forward in Parliament in reply to Opposition MP J.B. Jeyaratnam's queries on July 30:
21 July 1997
Prof S Jayakumar
Minister for Law
PRESENCE OF UNAUTHORISED PERSONS INSIDE POLLING STATIONS
On 14 July l997, THE Workers' Party issued a press release expressing "amazement" that the public prosecutor had advised police that no offence was disclosed in the reports made by it leaders against the prime minister, the two deputy prime ministers and Dr S Vasoo that they had been present inside polling stations when they were not candidates for the relevant constituencies. The Workers' Party queried why such conduct was not an offence under paragraph (d) or (e) of section 82(1) of the Parliamentary Elections Act.
2. On 15 July 1997, the Singapore Democratic Party also called on the attorney general to explain his "truly befuddling" decision and to state clearly if it was an offence for unauthorised persons to enter polling stations.
3. You have asked me for my formal opinion on the question raised in these two statements. My opinion is set out below.
4. The question is whether it is an offence under the Parliamentary Elections Act for an unauthorised person to enter and be present in a polling station.
5. For this purpose, the authorised persons are the candidates, the polling agent or agents of each candidate, the Returning Officer, and persons authorised in writing by the returning officer, the police officers on duty and other persons officially employed at the polling station; see section 39 (4) of the Act (quoted below)
Activities Outside Polling Stations
6. The relevant sections of the Parliamentary Elections Act to be considered are sections 82 (1)(d) and 82 (1)(e). These provisions were enacted m 1959 pursuant to the Report of the Commission of Inquiry into Corrupt, Illegal or Undesirable Practices at Elections, Cmd 7 of 1968 (hereinafter called "the Elias Report)"
7. Section 82 (1)(d) provides that - "No person shall wait outside any polling station on polling day, except for the purpose of gaining entry to the polling station to cast his vote".
8. Plainly, persons found waiting inside the polling stations do not come within the ambit of this section. Similarly, those who enter or have entered the polling station cannot be said to be waiting outside it. Only those who wait outside the polling station commit an offence under this section unless they are waiting to enter the polling station to cast their votes.
9. Section 82 (1)(e) provides that -
"No person shall loiter in any street or public place within a radius of 200 metres of any polling station on polling day."
10. The relevant question is whether any person who is inside a polling station can be said to be "within a radius of 200 metres of any polling station". The answer to this question will also answer any question on loitering inside a polling station.
11. Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station. A polling station must have adequate space for the voting to be carried out. Any space has a perimeter. The words "within a radius of 200 metres" ' therefore mean "200 metres from the perimeter of" any polling station.
12. The above interpretation is fortified by the context of the provision. The polling station, as a place, is distinguished from a street or public place. It is not a street or a public place. Hence, being inside a polling station cannot amount to being in a street or in a public place. By parity of reasoning, loitering in a street or public place cannot possibly include loitering in the polling station itself and vice versa.
13. There is no ambiguity in section 82 (1)(e). If the legislature had intended to make it an offence for unauthorised persons to wait or loiter inside a polling station, it could have easily provided for it. It did not. The mischief that section 82 (1)(e) is intended to address is found in paragraph 99 of the Elias Report. It reads:
"In order to prevent voters being made subject to my form of undue influence or harassment at the approaches to polling stations, we recommend that it should be made an offence for any person to establish any desk or table near the entrance to any polling station, or to wait outside any polling station on polling day except for the purpose of gaining entry into the polling station to cast his vote; and that it should be an offence for any person to loiter in any street or public place within a radius of 200 yards of any polling station on polling day ."
14 . Paragraph 99 of the Elias Report appears under the heading "Activity OUTSIDE POLLING STATIONS". The Commission of Inquiry was addressing the possibility of voters being subject to undue influence and harassment as they approach the polling stations. There is therefore no doubt whatever that this provision was never intended to cover any activity inside the polling station as there would be officials and election agents in attendance.
15. The legislative history makes the provision so clear that it is not even necessary to consider the application of an established principle of interpretation that any ambiguity in a penal provision should, whenever possible, be resolved favour of the accused.
Activities Inside Polling Stations
16. Activities inside polling stations were made subject to a different regime under the Act. Section 39(4) provides that -
"the presiding officer shall keep order in his station and shall regulate the number of voters to be admitted a time, and shall exclude all other persons except the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station."
17. Under section 39(7), any person who misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer may be removed from the polling station by a police officer acting under the orders of the presiding officer. If an unauthorised person refuses to leave the polling station when told to do so by the public officer, he commits an offence under section 186 of the Penal Code for obstructing a public servant in the discharge of his duty.
18. There is a consistency in the rationales of the regulatory schemes governing activities inside and those outside polling stations on election day. Waiting outside a polling station is made an offence because it gives rise to opportunities to influence or intimidate voters: see paragraph 99 of the Elias Report. Hence, the Act has provided a safety zone which stretches outwards for 200 metres from the polling station. In contrast, the possibility of a person inside a polling station influencing or intimidating voters in the presence of the presiding officer and his officials, the polling agents etc was considered so remote that it was discounted by the Act.
19. I therefore confirm my opinion that the Parliamentary Elections Act does not provide for any offence of unauthorised entry into or presence within a polling station. Accordingly, those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act.
20. You are at liberty to publish this opinion.
Chan Sek Keong