Mandates, Majorities and the Legitimacy of the Elected President (Part II of II)

320px-counting_centre_sign2c_hong_wen_school2c_singapore_-_20110828

Hong Wen School in Kallang was used as a counting centre during the 2011 presidential election. (By Jack Lee [CC-BY-SA-3.0] via the Wikimedia Commons.)

Kevin YL Tan
Adjunct Professor of Law
National University of Singapore

Selecting the Elected President

In Part I of this post, I examined how the constitutional amendments to the eligibility criteria further limit voters’ choices. In this Part, I will examine how the lack of elections where there is no contest weakens the President’s claim of a mandate.

A major sticking point concerning the process of electing the President has been section 15 of the Presidential Elections Act which stipulates that if, on nomination day, ‘only one candidate stands nominated’ that candidate shall be declared ‘to be elected to the office of President.’ This happened twice, in 1999 and again in 2005 when the late SR Nathan stood as the sole candidate in both elections.

The situation changed completely in 2011 when four candidates stood contested the elections. Former Deputy Prime Minister Tony Tan Keng Yam emerged triumphant, but only just. He garnered 35.2% of the popular vote, beating his closest opponent, Tan Cheng Bock by a mere 7,382 votes (or 0.35% of the votes cast).

The ‘election’ of 1999 and 2005 and that of 2011 bring into sharp relief the fact that none of the winning candidates had an absolute majority of the votes cast. In the case of President Nathan, who faced no opponent, it is difficult to ascertain what proportion of the public actually supported him or gave him their mandate to function as President. The case of President Tony Tan is more problematic. Notwithstanding his victory in this four-man race, his share of 35.2% was just slightly more than a third of all votes cast. Viewed conversely, a large segment of the population – close to 65% of all electors – were actually in favour of the candidates. It would thus be difficult to claim the moral high ground to say that such a majority gave him a true mandate from the people to speak and act for them as President.

Such was the system as of 2011. This matter of majorities and a change of electoral process was canvassed before the Constitutional Commission. I proposed that in the event of an election involving more than two candidates, a second-round run-off election should be held to give the final winner a clear majoritarian mandate. This system is not new, having been used in countries such as Austria, Brazil, Finland and India. The object of this two-round run-off system is to have the second round of voting limited to the top two first-round candidates. Thus, in the case of Singapore’s 2011 election, a run-off would have pitched Tony Tan and Tan Cheng Bock against each other. Whoever won that election would have an absolute majority.


The Commission was quite adamant in rejecting this suggestion, arguing that it was ‘wrong to assume that a candidate’s legitimacy’ was ‘contingent upon him obtaining the support of an absolute majority of the eligible electorate, or even securing an absolute majority of the votes cast.’ It was the Commission’s view that a winner’s legitimacy came from ‘the fact that he has assumed office through a process which is free, open and fair, and which binds all citizens’ and the first-past-the-post (simple plurality) system of voting confers as much legitimacy on the candidate as any other system. As such, any insistence ‘upon an absolute majority or a majority greater than that enjoyed by the Government in Parliamentary elections is, in the Commission’s respectful view, simply not warranted.’

The Commission offered two other reasons for rejecting this proposal: first that run-off elections would likely be ‘unnecessarily complex and cumbersome’; and second, that such elections ‘may worsen the difficulties that candidates from racial minority groups might already face when running for Presidential office’ especially in the case where a Chinese candidate is contesting against a candidate from a minority ethnic group as ‘racial considerations may be brought into sharper relief and may have a much more palpable impact on the outcome of the election.’ While such a system would certainly involve more time and administrative energy, elections are only held once in 6 years and the added ‘inconvenience’ is easily offset by a better system. The last objection cuts both ways. There is nothing to stop candidates in a first-past-the-post system to resort to ethnic arguments to win votes; and racial considerations will be brought to in as sharp a relief in the case where there are two candidates.

Conclusion

With the passage of the Constitution of the Republic of Singapore (Amendment) Act 2016, Parliament lost a wonderful opportunity for rationalizing the elected presidency scheme. It could have given the people a real choice and made that choice really count through the ballot box. Instead, it opted to narrow the field and hang onto the first-past-the-post system that cannot vest a candidate with an absolute majority in a contest involving more than two candidates, and giving him or her the true mandate to check on the elected government.


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.

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