Kevin YL Tan
Adjunct Professor of Law
National University of Singapore
An Elected President to Check an Elected Government
The Elected Presidency was created as a knee-jerk reaction to the People’s Action Party’s (PAP’s) worst nightmare: that in a ‘freak election’, ‘irrational’ voters might cause a seismic shift in voting patterns to bring into office an irresponsible and profligate government. The Westminster parliamentary system of government, with its fusion of executive and legislative powers, would provide no check on such a government if it had a parliamentary majority. It was thus necessary to create a countervailing force to put the brakes on the excesses of such a government.
Back in 1984, Prime Minister Lee Kuan Yew’s solution was to transform the office of the President into an elected one. The logic behind the need to elect the President has been enunciated and emphasized many times: If you want someone to check on an elected government, you need to cloak him or her with the requisite moral authority to do so and this can only come from being elected.
Why Elections Matter
Elections are the bedrock of democratic representation and participation. Those elected are presumed to have the mandate of those who elected them, and thus a corresponding legitimacy to undertake whatever their office requires of them. The bigger the majority, the greater the legitimacy and the more secure the mandate. At the same time, elections are desirable because they throw up the ‘best’ candidates available for the job or mission. However, when we look at how Singapore’s ‘Elected’ President gains office, these precepts quickly fall by the wayside.
Prior to 1991, all presidents were nominated and ‘elected’ by Parliament. There was no real electoral contest in this closed system. Parliament’s ‘electing’ of the President was really a reaffirmation of the Government’s choice; nothing more. The constitutional provisions that followed transformed the office into an elected one, albeit with serious limitations. The idea was that elections gave holders of the office a majoritarian mandate upon which sat its moral authority to control an elected government. The logic of this idea surely lay in (a) giving the electorate a real choice in terms of the candidates; and (b) ensuring that the chosen candidate had indeed been put through the rigours of elections and emerged with an undisputed majority.
However, provisions in the Constitution and the Presidential Election Act subvert this logic in two ways. First, by severely limiting voters’ choice in stipulating the type of candidate who can stand for election based on a mixed criterion of executive experience and financial savvy; and second, by allowing sole candidates to be declared ‘elected’. In the first of this two-part post, I will examine how recent amendments to the Constitution have narrowed the field further by tightening the criteria for ‘private sector’ candidates and the institution of a race-based rotation system of elections.
‘Electing’ the Selected President?
Much has been written about the stringent qualification requirements for presidential candidates. Broadly speaking, the qualification criteria under Article 19(2)(g) of the Constitution may be divided into those for candidates coming from the ‘public sector’ and those from the ‘private sector’. In the recent Constitutional Commission hearings, much time was spent on discussing if the criteria needed updating.
Interestingly, the Constitutional Commission noted that only about 70 public-sector candidates automatically qualified under Article 19(2)(g) but expressed grave concern that the $100 million threshold established in 1991 for private companies was now insufficient given the change in economic circumstances. It noted that in 1991, there were only 158 companies with $100 million in paid up capital whereas in 2016, the 158th largest company in Singapore had a paid-up capital of $1.6 billion. This represented a 16-fold increase in the capitalization of Singapore’s largest companies and this criterion had to be updated to reflect this change of circumstances.
Quite a number of representors discussed raising the bar for private-sector candidates by: (a) substituted ‘paid up capital’ with ‘shareholder equity’ since the latter better reflected the company’s financial well-being than the former; and (b) raising the bar by requiring candidates to have run companies with at least $500 million in shareholder equity. This recommendation was accepted by Parliament.
While there is good sense in pegging a company’s worth to its shareholder equity rather than its paid-up capital, the raising of the $100 million benchmark is questionable. Is a person who can profitably run a $100 million company qualitatively different from one who can run profitably run a $500 million company? If there is no clear and apparent difference, then the new qualification does little more than to reduce the pool of private-sector candidates.
During the Commission hearings, there was much less discussion on whether the public-sector requirements also needed updating. I had pointed out that a candidate whose only experience and skill sets were gained through spending three years as either the Chief Justice, Attorney-General, Speaker of Parliament or Chairman of the Public Service Commission (PSC) could not possibly be equated with the private-sector candidate. The Commission dismissed this argument by stating that ‘although the private- and public-sector routes to qualification are both targeted at identifying persons with the relevant skill sets, no single office is ever likely to endow the holder of that office with all the attributes necessary for him to discharge all the Presidential functions’ and as such, ‘it may not be correct to compare the two routes as if they are precisely alike.’
Even so, the Commission recommended the removal of the Auditor-General and Accountant-General from Article 19(2)(g) on the ground that ‘the scope of these two offices and the extent of the responsibilities borne by their holders do not … justify automatic qualification’ since they are ‘not necessarily held by civil servants with the rank of Permanent Secretary’ and their role in the ‘delivery of public goods and services’ was ancillary and limited. It seems strange that the Commission did not feel the same way about the offices of Chief Justice, Attorney-General, Speaker or Chairman, PSC had correspondingly limited roles in the delivery of public goods and services. Parliament rejected the Commission’s recommendation and retained the offices of Auditor-General and Accountant-General in Article 19(2)(g). The table below shows the Article 19(2)(g) requirements as they currently stand:
|Public Sector Candidates||Private Sector Candidates|
|To have served at least 3 years as:
Speaker of Parliament
Chairman of the Public Service Commission
Chairman or Chief Executive Officer of
Central Provident Fund, Housing & Development Board; Jurong Town Corporation; Monetary Authority of Singapore; GIC Private Limited; MND Holdings (Private) Limited; and Temasek Holdings (Private) Limited.
|Chairman or Chief Executive Officer of a company incorporated or registered in Singapore with a shareholder equity of S$500 million during the candidate’s most recent 3-year period of service.|
|A person who has served for a period of 3 years or more in an office in a private sector organization and who has, in the opinion of the Presidential Elections Committee, the ‘experience and ability that is comparable to the experience and ability of a person who has served as the chief executive of a typical company with S$500 in shareholders’ equity.|
Beyond the initial qualification requirements under Article 19(2)(g), all presidential candidates must satisfy the Presidential Elections Committee (PEC) that they are persons ‘of integrity, good character and reputation.’ Initially, the unelected PEC comprised the Chairman of the PSC, the Chairman of the Accounting and Corporate Regulatory Authority (ACRA) and a member of the Presidential Council for Minority Rights nominated by the Chairman of the Council. With the latest amendments, membership of the PEC has doubled with the addition of: a member or former member of the Council of Presidential Advisors; a person qualified to be a Judge of the Supreme Court appointed by the Chief Justice; and a person from the private sector, who in the opinion of the Prime Minister, has private sector expertise and experience that is relevant to the functions of the PEC, and is appointed by the Prime Minister.
This enhanced PEC is now required under the new Article 19(4)(a) to determine if a private sector candidate is ‘comparable to the experience and ability of a person who has served as a chief executive’ of a company with $500 million in shareholder equity. At the same time, a private-sector candidate must satisfy the PEC that ‘having regard to any other factors’ the PEC ‘sees fit to consider’, he or she ‘has the experience and ability to effectively carry out the functions and duties of the office of President.’
The already stringent and restrictive requirements for presidential candidates has been further tightened with the latest constitutional amendments. This has led to the limiting of choices available to the voting public. A combination of stringent constitutional requirements and the PEC’s screening effectively pre-selects candidates for the office of President. This restriction is even greater with the enactment of a new Article 19B which provides for ‘reserved elections’ for members of different ethnic groups if ‘no person belonging to that community has held the office of President for any of the 5 most recent terms of office of the President.’ This new clause operates retrospectively to the time of Singapore’s independence in 1965, and as such, the 2017 presidential election has been reserved for Malay candidates. As such, the amendments further limit voters’ choice, which further problematize the claim that elections endow the President with a mandate.
In Part II of this post, I will further discuss how the electoral mandate for the President is weakened by the lack of a requirement that there should be elections even where there are no contests.
The issues discussed here will be further examined in a full length book chapter in a forthcoming volume, Jaclyn L Neo & Swati S Jhaveri (eds), Constitutional Change in Singapore: Reforming the Elected Presidency, (Routledge, 2018, forthcoming). This volume is being put together with the funding and organizational support of the Centre for Asian Legal Studies at the National University of Singapore’s Faculty of Law.