Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU
ON 9 NOVEMBER 2016, Parliament enacted the most significant constitutional amendment in the 21st century thus far, making wide-ranging changes to the Elected Presidency scheme. These amendments were preceded by a detailed examination of aspects of the scheme by a Constitutional Commission chaired by Chief Justice Sundaresh Menon which rendered its report on 17 August, and a white paper issued by the Government in response to the report on 15 September.
Most of the debate on the constitutional amendment bill that took place in Parliament on 8 and 9 November concerned major alterations that were proposed. These were the increase in the qualifying financial value of a company from $100 million to $500 million for a prospective candidate seeking a certificate of eligibility under what the Commission termed the private-sector qualifying office route, and the introduction of elections from time to time reserved for members of particular minority communities.
- The addition of three more members to the Presidential Elections Committee (“PEC”), which is responsible for certifying that candidates meet the constitutional criteria for running for the office of President.
- The recommendation that the PEC should be entitled to seek further information from a prospective candidate about his or her application for a certificate of eligibility.
- The recommendation that the PEC may revoke a certificate of eligibility if it is found to contain material false or misleading declarations, even if the candidate has been elected as President.
- The recommendation that declarations made as part of a certificate of eligibility application by a successful applicant should be publicly disclosed, but that declarations by an unsuccessful applicant should be disclosed only to that applicant.
The Government has said that it “broadly accepts” the recommendations set out in the above paragraphs. However, as the recommendations mentioned in paragraphs 2, 3 and 4 above will be effected through amendments to the Presidential Elections Act (“PEA”) rather than constitutional amendments, and no bill has yet been published or passed, details as to how they will be implemented are currently lacking.
The Constitutional Commission’s proposals provide the PEC with the power to obtain information from prospective candidates, but do not appear to have addressed the issue of the Committee’s duty to consider matters brought to its attention by candidates. This may happen, for example, if a prospective candidate’s qualifications or suitability for office have been questioned in the media, and the candidate wishes to clarify his or her side of the story with the PEC. Thus, when amendments to the PEA are contemplated, thought should be given to introducing provisions ensuring that the PEC has before it the best information available to determine whether a person is qualified to seek the highest office in the land.
Where the PEC’s accountability is concerned, the Commission did not think that decisions of the body should be challengeable before a court, except where the PEC had decided to invalidate a certificate of eligibility. The Commission took the view that decisions on the merits were political in nature and so unsuitable for judicial determination, while having one member of the PEC possessing the qualifications of a Supreme Court judge would do away with the need for review on the basis of legality. However, is this a sufficient alternative, particularly when the Committee meets in closed sessions and is not required to provide detailed grounds for its decisions?
In fact, only decisions of the PEC relating to whether an applicant is of integrity, good character and reputation, and satisfies the public or private sector service requirements, are non-reviewable. Thus, if there is a dispute over whether the PEC has committed errors concerning the other qualifications – for example, whether an applicant is disqualified for having exercised citizenship rights in a foreign country – there is no prohibition against judicial review being taken. It seems odd that the court may review some of the decisions taken by the PEC but not others.
It might also be questioned whether the PEC’s decisions that are currently declared unreviewable are in fact “political” in nature, rendering judicial review a breach of the separation of powers principle. This principle, of course, embodies the idea that the decisions of each of the three branches of government – the executive, legislature and judiciary – should be subject to checks and balances by the other branches. Hence, it could be argued there is nothing untoward about the court ensuring that the PEC’s decisions have been made in accordance with the law.
Finally, the Constitutional Commission made suggestions relating to the conduct of election campaigns. It felt, for example, that campaigning rules should aim “to restrict or exclude acts that might inflame emotions, cause divisiveness or encourage invective”, and expressed doubts about whether election rallies were “either necessary or helpful in this context”. It also proposed that it should be illegal for candidates to make promises or take positions incompatible with powers and responsibilities of the President as set out in the Constitution. In response, the Government said it would “study this carefully, and in due course decide what changes are necessary to the rules governing campaign methods and preventing misinformation”.
On the other hand, the Commission did not see the need for members of political parties to be barred from endorsing candidates, on the ground that political parties are “are likely to have strong and potentially relevant views on the merits or demerits of Presidential candidates” which voters may wish to consider. Yet, the office of the President is supposed to be non-partisan. To ensure this, the Constitution prohibits candidates from being political party members on nomination day and if successfully elected. In the latter scenario, a candidate who is a Member of Parliament must vacate his or her parliamentary seat. It may therefore be incongruous for non-partisan candidates to receive partisan endorsements. Moreover, might remarks about candidates made by politicians, whether in the government or in opposition, unduly sway voters?
During the 2015 general election, the rule prohibiting the sharing of information and opinions about candidates through the Internet on cooling-off day resulted in police reports being made against some candidates and their supporters. This rule also applies to presidential elections. As I have pointed out before, the rules on online election-time engagement seem to create unnecessary pitfalls, and I suspect they are widely ignored. It is worth considering whether the rules are worth keeping.
Ultimately, it is submitted that the procedures for electing the President should treat prospective and actual candidates even-handedly, and promote public confidence in the integrity of the process.
1 Report of the Constitutional Commission 2016 (Chairman: Chief Justice Sundaresh Menon) (17 August 2016; archived here).
2 White Paper on the Review of Specific Aspects of the Elected Presidency (Cmd 7 of 2016; 15 September 2016; archived here).
3 Constitution of the Republic of Singapore (Amendment) Bill 2016 (No B28 of 2016).
4 Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint) (“Constitution”), Arts 19(4)–(10), as amended by the Constitution of the Republic of Singapore (Amendment) Act 2016 (“2016 CAA”).
5 Constitution, Art 19B, as inserted by the 2016 CAA.
6 Constitution, Art 18, as amended by the 2016 CAA.
7 Constitutional Commission Report at paragraph 4.85.
8 Constitutional Commission Report at paragraph 4.86.
9 Constitutional Commission Report at paragraphs 4.87 and 4.97.
10 White Paper at paragraph 60.
11 Presidential Elections Act (Chapter 240A, 2011 Revised Edition) (“PEA”).
12 A point previously raised by Li-ann Thio, “Singapore: (S)electing the President – Diluting Democracy?” (2007) 5 International Journal of Constitutional Law 526 at 538–539.
13 Constitutional Commission Report at paragraph 4.96.
14 Constitutional Commission Report at paragraph 7.13.
15 Constitutional Commission Report at paragraph 7.18.
16 White Paper at paragraph 148.
17 Thio, “(S)electing the President” at page 538.
18 Constitutional Commission Report at paragraph 7.18.
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.