Constitutional interpretation Presidential elections Separation of powers Singapore

Past Imperfect, Future Tense: The Elected Presidency and the Constitutional Development of an ‘Ever Evolving Hybrid’

The past was imperfect, but could be corrected and refined in the light of experience; the future is tense, as the institution of the Elected President has yet, after a quarter century, to reach its final iteration, and remains, restlessly, an ‘ever evolving hybrid.’
Danish philosopher Søren Kierkegaard, drawn by his cousin Niels Christian Kierkegaard (via the Wikimedia Commons)

Thio Li-ann
Professor and Provost’s Chair
Faculty of Law, National University of Singapore

SØREN KIERKEGAARD once said: “Life can only be understood backwards; but it must be lived forwards.” This sentiment reflects the evolution of the elected presidency (EP) as a facet of the development of the Singapore Constitution, not by judicial interpretation, but executive determination, within the context of a dominant party state. The development of the Constitution of Singapore in this manner is facilitated by the reality that constitutional amendment is a political and practical possibility.

The elected presidency was and is a unique constitutional experiment whose authors were determined to see it succeed, yet uncertain of how it would operate in practice. Its introduction was thought crucial to good governance, to check an untrammeled government, through pre-emptively instituting presidential ‘veto’ powers in relation to a limited range of primarily fiscal government decisions, providing a ‘second key’ to the national kitty. This was reflected in the strong entrenchment provisions that accompanied the institution, signifying its importance before it was tested. However flexibility was retained by not bringing into operation this special entrenchment regime. Instead, the institution could be modified following the general Article 5(2) procedure, which requires the support of a 2/3 parliamentary majority. The need to preserve the ability to refine the system reflects its experimental quality. Alarm has regularly been expressed where understandings contrary to the institutional design of its authors have been expressed (for example, by presidential candidates campaigning during elections), such as the opinion that the EP could operate as a second centre of political power, or that the EP could act in a proactive manner or in a publicly adversarial fashion vis-à-vis the government.

Changes to the elected presidency have been regularly made since its inception in 1991, prior to the wave of changes made in the aftermath of the 2016 Constitutional Commission. While ‘soft’ constitutional law has been utilized to articulate non-binding norms which generate expectations of certain forms of conduct by the relevant constitutional actors, such as the 1999 White Paper which exhorts a ‘harmonious working relationship’ between the EP and Cabinet, legally binding amendments have also been used to ‘develop’ this ‘living’ institution.

Three primary factors may be discerned, motivating these amendments:

  1. Parliamentary practice and operational experience with the EP’s fiscal powers. This involved making changes that sought to reduce the EP’s powers in relation to defence spending and by incorporating a parliamentary override of the presidential veto, removing a presidential role in relation to specific ‘transfers’ and introducing complex ideas like ‘long term real rate of return’ as a way of calculating how much the government could spend, and how much must be saved and locked into the reserves pool.
  2. The experience of the 2011 Presidential Elections which saw a four-man race, contentious politics, and the election of a President without an overall national majority. The lack of constitutional literacy was evident in the promises made by certain candidates which exceeded the constitutional parameters of the presidential role. Some considered that the pre-qualification criteria for candidates was applied too laxly, adding to the chorus of criticism that these criteria were technocratic and elitist or ‘pegged too high’ which has dogged the institution since its salad days. Certainly, there were various expressions of disquiet about the electoral system at various times, either directed at the deficit or surfeit of candidates, or the need to ensure an unopposed candidate passed some kind of legitimacy test.
  3. Third, what may be called philosophical praxis, which entails the act of realizing ideas. There has been a swing of the pendulum, where the focus was first on the EP as a check on Cabinet, and then the EP as the ceremonial head of state, a unifying figure above the rancor and pettiness which politics easily descends into. Added to this was a digging into the Singapore constitutional ‘civil religion’, a chief facet of which is multi-racialism as a matter of justice and existential necessity. The idea that all racial groups in Singapore should be reflected in the office of the presidency has been in ascendancy and a key concern and term of reference in relation to the 2016 Constitutional Commission. This return to intangibles and symbols represents the human need for the transcendent, for continuity, myth, magic, which binds community and engenders a sense of identity and solidarity. It recalls the British system of government, of Parliament and a constitutional monarchy which was once an absolute monarchy. Here, Bagehot’s characterization of the ‘dignified’ and ‘efficient’ aspects of the English Constitution assumes centre-stage. The Monarch was the ‘dignified’ element, the fount of justice and head of state while the Prime Minister was headed the ‘efficient’ government – while the Prime Minister is accountable to Parliament, the Monarch was accountable to God. Within a secular constitutional order like Singapore, this element of ‘transcendence’, of a nation continuing and above democratic majoritarian politics is located in a chief tenet of its civil religion, multi-racialism, which now shapes both the institutions of Parliament (through the Group Representation Constituency scheme) as it has since 1988, and that of the Presidency, from 2016. This has seen the constitutionalisation of unwritten aspects of the Presidency.

This provokes a need for an examination of these ideas and developments in relation to the EP, the intention to codify ‘political essentials’ and principles, coupled with the pragmatic impulse to continuously improve the system to realise both the need for good government and good governors, inasmuch as law can contribute to this state of affairs. The past was imperfect, but could be corrected and refined in the light of experience; the future is tense, as the institution has yet, after a quarter century, to reach its final iteration, and remains, restlessly, an ‘ever evolving hybrid.’

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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