The New Constitutional Amendment Bill: Changes to the Role and Functions of the Council of Presidential Advisors

Dr. Jaclyn L. Neo
Assistant Professor
National University of Singapore
Faculty of Law

I.         Introduction

Singapore’s elected Presidency is a sui generis institution. It is a modification of the convention in the parliamentary system where the Head of State plays a ceremonial role and is not elected. The modification however does not go far enough to transform the political system to a presidential one whereby the Head of State is also the Head of Government. When the Singapore Constitution was amended in 1991 to institute elections as the mode of selecting the President, thus jettisoning the previous mode of selection, the President was bestowed with certain custodial powers such that he can veto budgets and transactions that draw down on past governmental reserves as well as veto key public service appointment. Indeed, it was the granting of these additional discretionary powers that served to justify changing the office into an elected one. The thinking was that this would imbue the President with a mandate to exercise his discretionary powers, especially when he disagrees with the government of the day to draw down on past reserves or on key public service appointments.

The changes to the presidency served to institute a unique system in which the President checks and balances governmental power on matters concerning the governmental reserves and public service appointments. In order to support the President in discharging his functions, a Council of Presidential Advisors (“CPA”) was established. Designed as an independent body to counsel and advise the President on the exercise of his powers, CPA members are not elected but are nominated by the President, the Prime Minister, the Chief Justice, and the Chairman of the Public Service Commission. While the CPA’s central role is to advise, this should not obscure its importance as legal consequences could arise depending on whether they recommend that the President exercise his veto powers. Under certain provisions in the constitution, where the President vetoes a drawdown of reserves contrary to the recommendation of the CPA, this triggers a mechanism whereby Parliament can override the veto by a two thirds majority vote. The CPA thus plays a critical role within this system of checks and balances involving the President and the government. However, the complexity in which this system works and the independent expert nature of the CPA has meant that the CPA is not a very well understood institution within the constitutional framework. This is unfortunate especially since proposed changes to the constitution strengthens and expands the CPA’s role within the system. The CPA will become more important and needs to be better studied and understood.

The changes to the CPA come after a Constitutional Commission was asked to “review the framework governing the exercise of the President’s custodial powers, particularly the role and composition of the Council of Presidential Advisers.” It is to do so taking into account the custodial powers of the President over Singapore’s financial reserves and the integrity of its public service, and to “ensure that decisions in these areas are made with the support of careful consideration given by a group of persons with substantial suitable experience in the public and private sectors.” The Constitutional Commission made its recommendations in September 2016. The government responded in a White Paper to the recommendations shortly after and introduced a Constitutional Amendment Bill in October 2016. The amendments expand the size of the CPA, strengthens its role within the system of checks and balance, expands its functions, and imposes clearer rules concerning its workings. As the Parliament starts to debate the Constitutional Amendment Bill this week, this post aims to give an overview of the changes that affect the role and functions of the CPA and make some observations as to some of the implications of these changes.

II.         Proposed Changes to the CPA

A.  Composition

At the moment, the CPA is composed of 6 members nominated by various persons. 2 by the President, 2 by the Prime Minister, 1 by the Chief Justice and another by the Chairman of the Public Service Commission. Under the proposed changes, the CPA will be expanded to 8 members. The President and the PM get an additional nomination each.  What remains unchanged is that, like in the current scheme, the President nominates one member to be the Chair of the CPA. This is important because the chair holds the deciding vote in the event of a tie. This expansion is seen to be necessary to cope with the increasing complexity of the issues that the CPA is expected to address in advising the President.

B.  Framework of Advice and Parliamentary Override

As indicated above, the CPA’s recommendation can change the outcome of a presidential veto. Under the current framework, in some cases, the President has an obligation to consult the CPA and if he withholds assent contrary to the CPA’s recommendations, this could trigger a Parliamentary override. An important provision that applies this scheme is Article 148A, read with Article 148D, which deals with the Supply Bill. Before the President decides whether to withhold assent to a Supply Bill for drawing down on past reserves, the President is obliged to consult the CPA. If the CPA recommends assent, but the President disagrees, this triggers a parliamentary override mechanism. Parliament can take a vote on the matter and override the President’s veto by a two thirds majority.

In other situations, under the existing scheme, the President is obliged to consult the CPA but even if he withholds assent contrary to their recommendation, this does not trigger a parliamentary override. There are also other provisions whereby the President is not obliged, even though he may, consult the CPA and any consultation would not lead to a parliamentary override.

Now, the Constitutional Commission acknowledged that this is a rather complicated scheme, and perhaps unnecessarily so. The Constitutional Commission thus proposed that this framework be streamlined and this has been accepted by the government. Under the proposed changes outlined in the White Paper, there is now a general obligation to consult the CPA on all fiscal matters touching on Singapore’s reserves, and on all public service appointments and removals. Where the President withholds assent contrary to the CPA’s recommendations, this would trigger the parliamentary override. There are additional requirements where the Supply Bill is concerned before Parliament can take a vote overriding the President’s veto. The President’s grounds must be published in the Gazette and the CPA’s recommendation must be presented by the Speaker to Parliament. Notably, the Constitutional Commission’s recommendation that different threshold levels be triggered for different voting majority was not accepted by the Government.

There are still some exceptions which clearly relate to powers that do not address fiscal matters or public service appointments. They deal with the President’s discretionary powers with respect to CPIB investigations, MRHA restraining orders, preventive detention and other traditional matters such as the dissolution of Parliament. Notably, in these other matters, except the traditional ones, the President would have the expert advice from the respective bodies such as the CPIB, etc.

Now, this new framework clearly strengthens the position of the CPA. By imposing a general duty to consult, the framework places the CPA squarely within the system of checks and balances involving the President. The CPA now has to be consulted on all matters relating to the President’s fiscal powers and public service appointments.

C.  Additional Role in Entrenchment / Amendment Provisions

Under the new proposal, the CPA’s competence will also be enlarged. It will not only be involved in advising the President with regards to how he exercises his discretionary powers relating to fiscal matters and public service appointments, but the CPA is now included into the entrenchment framework under the proposed changes. This means that when Parliament seeks to amend the constitution on matters relating to the Presidency, the CPA will now have a role to play.

So, the suspended amendment provisions of article 5(2A) and 5A will be removed and replaced with article 5A and 5B. Now under the new scheme, in order for Parliament to introduce a bill to amend the provisions in the constitution that establish the Presidency or relate to the office of the President and his discretionary powers, it needs the President to concur. Or it needs to win a national referendum by more than 50% of the vote. Alternatively, and this is where the CPA comes in, if the President disagrees and there is no referendum, Parliament can still introduce the Bill if the CPA has recommended concurrence. The only procedural requirement is that the President’s grounds must first be published in the Gazette and the Speaker must present the CPA’s recommendations in Parliament. This contrasts with the requirement for a national referendum, which is that both the President’s grounds and the CPA’s recommendations must be published in the Gazette.

Article 5A covers bills amending provisions establishing the Presidency. It applies to the article itself; article 5B which deals with the procedures for amending other provisions relating to office of President and certain discretionary powers of the President; article 5C dealing with additional procedure for amendments that circumvent or curtail certain discretionary powers of President; article 17(1) which establishes the office of the president as the Head of State; new article 17(2) which sets out that the function of the President is as Head of State as well as to safeguard the reserves of Singapore and the integrity of the Public Services of Singapore, new article 17A which states that he “shall be elected by the citizens of Singapore in accordance with any law made by the Legislature” and which provides for elections*; and article 20 providing for a 6 year term in office. The other provisions covered by article 5A concern the temporary disability of the President (article 22O), his immunity from suit (article 22K), vacating the President’s office or removing the President (article 22L), and the designation of persons to exercise his functions when the office is vacant (article 22N). The proportion of votes that Parliament needs to garner in order to pass a bill under article 5A is not less than 2/3 of the total members of Parliament (except nominated members).

Article 5B deals with bills amending provisions relating to office and discretionary powers of President, and follows the same framework as article 5A except that there is an additional way in which Parliament can pass an amendment under this article, which is by way of a vote of not less than three quarters. the votes required to pass a bill under this article is not less than three quarters. Provisions covered under this article address when the elections are to be held for the office include those specifically providing for the President’s powers to withhold assent to draw downs and appointments* (article 17(3)), the President’s access to information (article 22F), the President’s powers to withhold assent to ordinary legislation that circumvents or curtails his discretionary powers (article 22H), that concern the Civil List and his personal staff (article 22J), determinations of the validity of elections by an Election Judge (article 22M) and the jurisdiction of judges to determine questions as to the validity of a Presidential Election (article 93A).

D.  Clarifying Procedural Requirements and Reporting Regime

Now, clearly, the CPA has enhanced responsibilities and role under the proposed changes. Correspondingly, the Bill also makes provisions to clarify certain formal aspects of how the CPA functions. First, the new rules impose some formal requirements as to how the CPA’s proceedings are to be conducted. Under the current scheme, the CPA has absolute discretion as to how to conduct its proceedings. Now the changes specifically impose a quorum of 5. The new provisions affirm that decision making is to be by majority of those present and voting. This is important to ensure that the CPA conducts its proceedings in a procedurally rigorous manner, thus improving its credibility.

Secondly, the changes also impose certain formal requirements as to the content of the recommendation. The new rules require that the CPA’s recommendation must state its grounds. The CPA must also state whether the recommendation was unanimous and if not the number of votes for and against the recommendation. This provides greater transparency to the CPA’s deliberations.

Lastly, the new rules seek to clarify and expand the situations when the CPA’s recommendations could be made public. Previously, the CPA would only send a copy of its advice to the Prime Minister and Parliament (through the Speaker) in relation to the Supply Bill, Supplementary Bill, or Final Supply Bill, or in relation to appointments of public officers, members of statutory boards, and directors of government companies (article 22, 22A, and 22C respectively). This is provided under article 37K which will be repealed in favor of a new reporting regime under the new rules. The explanatory note to the Constitutional Amendment Bill suggests that the intention is to expand the situations where the CPA’s recommendations would be reported such that the CPA’s recommendations must be sent to the Speaker who must present it to Parliament in all situations where Parliament seeks to overrule the President’s veto. The note states:

“Notice of an overruling resolution must be given by a Minister, and the resolution can only be moved after the President’s grounds are published in the Gazette and the Council’s recommendation is sent to the Speaker, who must present the recommendation to Parliament. (In the case of a Supply Bill, Supplementary Bill or Final Supply Bill, this would have already been done under the new Article 37IE(s)(b).)”

This suggests that as a general requirement, Parliament can overrule the President’s veto in all circumstances only after the CPA’s recommendations have been presented to Parliament.

A new article 37IE appears to impose a general requirement for the President to certify the grounds of his decision and send the CPA’s recommendations to the Prime Minister. It also specifically addresses the situation where the President vetoes a Supply Bill, which will then require the President to publish his grounds in the Gazette and send the recommendation of the CPA to the Speaker who must present it in Parliament. What distinguishes article 37IE from 37IG is that the publication and presentation requirement applies for Supply Bills even if there is no parliamentary motion to override the President’s veto whereas the publication and presentation requirement applies in all other scenarios only when there is a resolution to overrule.

In addition, the new article 37IE requires the President to certify his grounds to the Prime Minister where the President refuses to give assent or disapproves a proposed governmental transaction that draws down on past reserves. The President is also required to send the CPA’s recommendations to the Prime Minister. Similarly, where President had exercised his veto in relation to the budgets of or proposed transaction by a Fifth Schedule entity, the President must also send his certified grounds and the CPA’s recommendations to the chairman of that entity. Entities that fall within the Fifth Schedule are statutory boards like the CPF, HDB, JTC and MAS, as well as government companies like GIC and Temasek.

Establishing clearer procedural rules and requiring that the CPA’s recommendations and its grounds be presented to Parliament are important measures to enhance its accountability to the President, to Parliament, and to the Government. For instance, requiring a quorum of five means that the CPA can only deliberate and make decisions with a significant majority of its members present. Considering the fact that there is a general requirement for the President to consult the CPA, and that its disagreement with the President could result in a parliamentary override, it is right that the CPA should be required to have most of its members present for its meetings. The presentation of the CPA’s recommendations to Parliament also ensures that it becomes part of the public records. I would argue that the rules could be further enhanced by a convention to expect the President and the CPA to have their grounds be published in the media by way of a press release whenever Parliament seeks to introduce a motion overruling the President’s veto.

E.  Qualification and Considerations in Appointment

In addition, there are new rules about the qualifying criteria for the CPA. Previously, a person qualifies to be appointed to the CPA if he is a citizen, is not less than 35 years of age, is resident of Singapore, and not liable to disqualifications (i.e. not of unsound mind, insolvent or undischarged bankrupt, or have a criminal record of a fine not less than $2000 or term not less than a year). Now, in addition to these, the nominating party must consider whether the person is “of integrity, good character and reputation” and “has expertise and experience relevant to the matters on which the Council is required, or may be asked, to advise and make recommendations to the President.” These are not hard rules. They are meant to guide the appointing party but leaves room for judgment discretion.

III.         Concluding Observations

The proposed changes tweak the CPA in three ways. First, they increase the CPA’s responsibilities. Secondly, they clarify and improve some aspects of its functions so as to further ensure accountability. Lastly, they enhance its qualifying criteria.

I have three observations about these proposed changes.

First, the changes solidify the CPA as part of the scheme of checks and balances involving the Presidency. Not only is the new framework requiring a general obligation to consult neater, it also reflects the CPA’s important advisory role and the expertise that it could lend to the President. As such, the introduction of substantive guidelines for nominating parties to take into account is helpful in introducing greater transparency as to the desirable qualifications of the CPA members. Furthermore, the general obligation to consult makes the President’s decision making process more deliberative since the President will always have to consult the CPA and receive its recommendations before coming to a decision.

Secondly, the inclusion of the CPA within the entrenchment framework may raise some eyebrows. This is because, the CPA does not have a democratic mandate, unlike the President and Parliament. As such, its inclusion in the entrenchment framework needs to be justified on different grounds. Furthermore, asking the CPA to make recommendations as to whether a particular constitutional amendment should be introduced in Parliament could risk politicizing the CPA as it may be pulled into disputes between the President and the government as to the appropriate nature and scope of the President’s powers. This may affect the CPA’s position as an independent expert body.

My last observation relates to what then Prime Minister Goh Chok Tong said during the 1990 debates on the introduction of the elected presidency. During those debates, Prime Minister Goh accepted that the government was “in a sense creating a de facto Senate”. As he explains: “A Senate can comprise members who are elected by the people, that means, an all-elected Senate. Or you can have an all-appointed Senate, that means, all members to be appointed by the President or by the Prime Minister, but they are appointed into the Senate. Or you can have a mixture of appointees and elected senators. What are we creating over here with our proposal? We are proposing that there will be six appointed senators who form the Council that will advise the President. And we are proposing that there will be one elected senator, and that is the President. In essence, there is no difference between our proposal and the suggestion that there should be an Upper House to supervise or to comment on Bills debated in this House.” It would be an interesting to conceptualize the CPA (with the President) as a kind of a Senate. If so, there may need to be further consideration as to how the existing scheme could be changed to establish a more direct link between the CPA and Parliament as well as between the CPA and the People.

(This is an expanded version of a talk I gave at the Institute of Policy Studies (IPS) Forum on the Reforms to the Elected Presidency System on Friday, 21 October 2016 at the Raffles City Convention Centre.)

*Corrections marked above made on Monday, November 7, at 7PM.

You may reproduce this article unchanged on your website provided that you add the statement “© 2016 Jaclyn L. Neo. First published at Singaporepubliclaw.com, and used with permission.”, and a trackback or link to this page.

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