Category: Branches of government

The Limits of Prosecutorial Discretion

Attorney-General's Chambers, Singapore

The Attorney-General’s Chambers, Singapore. (By Sgconlaw, CC BY-SA 3.0, via the Wikimedia Commons.)

Marcus Teo
Fourth-year LLB student
Faculty of Law, National University of Singapore

IN A RECENT opinion piece published in The Straits Times,[1] Professor Walter Woon examined the role and functions of the Attorney-General (“AG”) and argued that the AG’s independence should be strengthened, among other ways, by separating the AG’s current function as a legal advisor to the government from his prosecutorial function. With respect to the latter, Professor Woon reminds us that decisions to prosecute or not involve a “judgment call”, and that “[t]here are many reasons why a decision may be taken not to prosecute.” However, such decisions have serious consequences for accused persons, victims of crimes, and the public. Continue reading

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Tan Cheng Bock’s Constitutional Challenge: Who is the First Elected President?

Dr Tan Cheng Bock at the nomination centre during the 2011 presidential election, 17 August 2011

Dr Tan Cheng Bock at the nomination centre during the 2011 presidential election on 17 August 2011. (By Tdxiang (Tan Ding Xiang) [CC BY-SA 3.0], via the Wikimedia Commons.)

Samuel Ling
LLB (National University of Singapore) (2017)
Guest student contributor

In May, Dr Tan Cheng Bock filed an application to determine, among other things, how the hiatus-triggered reserved election would be administered. His application was dismissed by the High Court on 7 July 2017. As Dr Tan’s appeal heads to the Court of Appeal this Monday (31 July), this post discusses his primary challenge to constitutional reforms. Continue reading

From Eligibility to Election: The Mechanics of the Presidential Poll

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The reverse of a poll card issued for the presidential election in 2011. (By Jack Lee [public domain or CC BY-SA 3.0], via the Wikimedia Commons.)

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,[1] and a white paper issued by the Government in response to the report on 15 September.[2]

Most of the debate on the constitutional amendment bill[3] 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,[4] and the introduction of elections from time to time reserved for members of particular minority communities.[5]

What should not be overlooked are the changes proposed and made to the mechanics for electing the President. Continue reading

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

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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. Continue reading

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

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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.

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

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A poster of Tony Tan Keng Yam, who was eventually elected as President at 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

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.

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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.
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