Third-year LLB undergraduate
School of Law, SMU
THE RECOMMENDATIONS of the Constitutional Commission on the Elected Presidency have generated much national debate even before they are tabled before Parliament. While the spotlight has largely been on the recommendations relating to securing minority representation in the nation’s highest office, perhaps we should also pay heed to the wise men and women behind the decisions of the Elected President – the Council of Presidential Advisors (“CPA”).
In January 2016, the Commission was instructed to consider, amongst other issues, whether the existing framework was adequate in enabling the CPA to effectively counsel the President on the exercise of his limited powers over our financial reserves and public service appointments. In particular, the Prime Minister sought to determine if “greater weight” should be conferred on the CPA’s support for the President’s decisions.
Of note in the Commission’s report is its recommendation to calibrate the threshold for Parliament to override the President’s veto – arguably, if adopted, this would unduly accord the CPA the weight to punch above its division.
Counterbalancing the President
The Elected Presidency scheme was conceived to hold the Government accountable through the power to veto decisions pertaining to the expenditure of past reserves and the appointment of key public servants. However, the President’s powers of veto are not absolute, and are subject to the concurrence of the CPA. The CPA is an independent body of six experts appointed by the President, the Prime Minister, the Chief Justice and the Chairman of the Public Service Commission. Should the President’s veto run contrary to CPA’s recommendation, the veto may be overruled by a two-thirds majority in Parliament.
As it stands, the CPA wields a substantial amount of influence, sufficient to render the President’s decision ineffective. While this accords with the intent of counterbalancing the President’s powers, the Constitutional Commission’s recommendation would further undercut the President’s already limited exercise of veto powers.
The Commission recommends that the “terms on which Parliament may override a Presidential veto should differ depending on the degree of support lent by the CPA to his decision” (emphasis added). They envisage three situations:
- Situation A: An absolute majority of the CPA agrees with the President’s decision (for example, at least four out of six members). The President’s decision is taken to be conclusive, and no parliamentary override is permitted. This is no different from the practice today.
- Situation B: The members of the CPA are evenly split in their decision, but the Chairman exercises his casting vote in favour of the President’s decision. The decision is thus supported by a simple majority of the CPA, and Parliament cannot override it. The Commission has recommended that Parliament should be able to do so with a “super majority” – presumably two-thirds majority support in Parliament.
- Situation C: The majority of the CPA does not support the President’s proposal to exercise his veto (for example, two or fewer members support it). Currently, this warrants that Parliament may override the President’s decision with a two-thirds majority. The Commission, however, has recommended that Parliament can do so with a simple majority.
|Absolute majority support from CPA
|Simple majority support from CPA
|No majority support from CPA
|Current Arrangement||No parliamentary override||No parliamentary override||Parliament may override with two-thirds majority|
|Commission’s Recommendation||No parliamentary override||Parliament may override with two-thirds majority||Parliament may override with simple majority|
Unjustified reliance on an independent body
As noted by the Commission, the CPA’s role is only relevant when the President disagrees with the Government, effectively serving as a check against the President’s ability to, in turn, check the Government’s decisions. The difficulty, however, lies in correlating the checks of two unassociated bodies (namely, the CPA and the Parliament) to counter the President’s exercise of powers. The Committee’s recommendation for Situations B and C above amount to a severe weakening of the President’s ability to disagree with the Government.
In Situation B, a parliamentary override should not be an option, as a simple majority of the CPA still stands in support of the President. Decision-making within our democratic system of governance is largely decided by garnering a simple majority of support. Our Parliament passes most bills by a simple majority; our first-past-the-post electoral system crowns the candidate with the highest percentage of votes as the winner. The CPA should be no different.
Even if one contends that the CPA has an even number of members (thus allowing for a situation of an even split of votes), this is an intentional design, and a tie-breaking mechanism is in place in the form of the CPA Chairman’s casting vote. This reason does not justify the differentiated treatment between the CPA’s decision and our usual means of political decision-making.
There is even less justification in Situation C to allow for a parliamentary override with the support of merely a simple majority of Parliament. As noted by the Commission itself, the CPA is an independent body, and should continue to be such. As an unelected body, it does not represent the views of the Parliament and the President. The Parliament should be made to debate just as rigorously in Situation C as in Situation B in order to obtain a two-thirds majority support to override the President’s veto. An independent body, which is incapable of representing the views of the electorate, should not be relied on to discount the support required to override the Elected President.
A simple majority to override the President’s veto is also an illogical threshold. Considering that the Parliament minimally requires a simple majority to pass a bill, a bill that has been vetoed by the President has already garnered at least a simple majority support in Parliament. There is effectively no hurdle for the Parliament to overcome should Situation C arise – a rational Parliament would easily garner the same simple majority to overcome the President’s veto.
Finally, it is of note that the CPA remains a small body. To vary the consequential support for a parliamentary override based on the differing decision of perhaps only one CPA member (which determines whether we face Situation B or C) may result in more fractious discussions within the CPA, and between the CPA and the President. Indeed, one should question if the Commission’s recommendations accord an unelected CPA member a disproportionate amount of influence.
Who wields “real power”?
The Minister for Law and Home Affairs, Mr K Shanmugam, has asked if Singaporeans want a President to have the “real power” to say no the Government on issues pertaining to the President’s mandate. Should the recommendation of the Commission to accord “greater weight” to the CPA be incorporated into our Constitution, it begs the question whether the democratically elected President truly wields “real power”, or does so solely at the concurrence and unwavering support of his appointed advisors.
The writer is a third-year LLB undergraduate from the School of Law, SMU. Apart from being a coffee addict, he is also the Professional and Academic Development Director of the SMU Law Society. He is grateful for the kind assistance of Assistant Professor Jack Lee. Responsibility for all mistakes remains with the writer.
1 Lee Hsien Loong, “PM Lee Hsien Loong at the Debate on President’s Address on 27 January 2016“, Prime Minister’s Office website (27 January 2016; archived here).
2 Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint), Articles 21, 22(1) and 148A.
3 Constitution, Articles 22(2), 22A(1A) and 148D(1).
4 Having a non-elected body of experts serve as a check on an elected individual is a problem in its own right, but will not be canvassed further here. See Thio Li-ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012), pages 409–411.
5 Report of the Constitutional Commission 2016 (Chairman: Chief Justice Sundaresh Menon) (archived here), paragraph 6.40.
6 Report of the Constitutional Commission 2016, paragraph 6.41.
7 Constitution, Article 37J(2B). In the event of an equality of votes, the Chairman shall have a casting vote in addition to his original vote.
8 Report of the Constitutional Commission 2016, paragraph 6.42.
9 Constitution, Article 57(1).
10 “Parliamentary Elections“, Elections Department website (28 April 2016; archived here).
11 See generally the Report of the Constitutional Commission 2016, paragraphs 6.25–6.26 and 6.37.
12 Liyana Othman & Olivia Siong, “Singaporeans Need to Ask if ‘Real Power’ Should be Given to President: Shanmugam“, Channel NewsAsia (9 September 2016; archived here).
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