Fourth-year LLB student
Faculty of Law, National University of Singapore
IN A RECENT opinion piece published in The Straits Times, 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
By 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.
Backdrop to Dr Tan’s legal challenge
In February 2016, a Constitutional Commission (“the Commission”) was convened to review the Elected Presidency. The Commission published its 154-page report (“Report”) in September 2016, and the government broadly accepted its recommendations.
Most of the accepted changes were tweaks to the existing eligibility criteria: increasing the minimum qualifying value companies controlled for private sector candidates, and tightening the eligible roles in said companies. However, one requirement was entirely new, which is the concept of the hiatus-triggered Reserved Election. Under this new rule, if 5 consecutive Presidential terms (including consecutive terms by the same person) do not feature a President from either one of the three major racial groups, namely, the (a) Chinese, (b) Malay, or (c) Indian and other communities, then the next election will be reserved for candidates of that racial group. The stated reason is to safeguard minority representation in the Presidency. PM Lee observed in his speech in Parliament on 27 January 2016 that it was “important that minorities have a chance to be elected president, and that this happens regularly”. Previously, with an appointed Presidency, the Presidency was customarily rotated among the races. Minority representation, the Commission observed, was necessary given the crucial symbolic role that the President plays as head of state. The 2017 Presidential Elections have since been designated for candidates from the Malay race.
Dr Tan is not eligible under the new criteria both due to his now-insufficient private sector qualifying criteria, as well as on grounds of his race, leading some (including Dr Tan) to speculate that these changes were made to prevent a repeat of the 2011 Presidential Election. Dr Tan narrowly lost in the 2011 Presidential Election by a razor-thin margin of 0.35% to Mr Tony Tan, the candidate with the backing of the ruling People’s Action Party (“PAP”). No candidate secured a simple majority. These charges have been vigorously rebutted by Law and Home Affairs Minister K Shanmugam, as well as Minister in the Prime Minister’s Office Chan Chun Sing.
Who was the first EP?
The main thrust of Dr Tan’s challenge is this: that the Schedule used to trigger the Reserved Election, which designates President Wee Kim Wee as the first Elected President (“EP”), is inconsistent with the Constitution and therefore void. Under the new Art 19B of the Constitution, a Reserved Election is triggered when 5 consecutive Presidential terms elapse without a person from a particular race having occupied the office. The count, as spelled out in the Schedule in s 22 of the Presidential Elections (Amendment) Act 2017 (“PE(A)A”), begins with President Wee as the first EP. Dr Tan argues that the Schedule in s 22 of the PE(A)A is unlawful and invalid because it starts the count for a Reserved Election from President Wee, who was elected by Parliament and not by popular vote of the citizens. While this is the case, the reason given by the government for starting the count at President Wee is because, while President Ong was the first to be elected by popular vote in 1993, the first President to exercise the powers of the EP was President Wee when the office was created by constitutional amendment in 1992.
In his judgment, Quentin Loh J held that the “President” in Art 19(B)1 can refer to Presidents elected by Parliament (before 1993), as well as those elected by Singapore Citizens (1993 and beyond). Taking a textualist interpretation, he noted that the plain language did not distinguish between either election method. Had Parliament intended to exclude from the count Presidents elected by Parliament, it could easily have done so. Indeed, noted Loh J, acting Presidents are thus excluded.
Furthermore, Loh J adopted a purposive interpretation, citing Article 2(9) of the Constitution and Dorsey James Michael v World Sport Group Pte Ltd. He found that, abstractly, Parliament’s purpose in legislating the amendments was to “ensure that our present system, where the President is popularly elected, produces Presidents from minority racial communities from time to time”, and that it is Parliament’s prerogative to legislate when to start the count for the Reserved Election. Ultimately, Parliament’s intention was to have a multi-racial Presidency, and given that it has been nearly a half century since our last Malay President, the legislative amendments intended to start the count at President Wee’s second term were consonant with this.
Dissonance between public consciousness and legal technicality
While the wording of the PE(A)A and Constitution allow for President Wee to be considered an EP, the difficulty lies in convincing most lay observers of this somewhat technical argument. Most would assume an EP has to have been elected by popular, not Parliamentary vote.
This is especially since the idea that the public has always seen President Ong Teng Cheong as the first EP. This was an uncontroversial ‘fact’, echoed even by then-PM Goh Chok Tong in Parliament when in 1999, he said, “I would like to place on record before this House President Ong Teng Cheong’s significant contributions as Singapore’s first Elected President.” Earlier, in his 1993 tribute to outgoing President Wee, PM Goh had also said, “[President Wee] was the Government’s first choice to be Singapore’s first Elected President (…) He declined the Government’s invitation.” In fact, the Commission itself seems to regard President Ong as the first EP: in explaining the rationale for ensuring minority representation in the Presidency, the Report, at paragraph 5.5, states, “Mr Lee Kuan Yew went on to observe that after having had two Presidents in a row from the Chinese community (namely, Mr Wee Kim Wee and the first elected President, Mr Ong Teng Cheong), it was vital that the next President of Singapore be a member of a minority race.”
This is probably why while the law could be read to allow President Wee to be regarded as the first EP, the dissonance with public consciousness has energized criticism of revisionism and politicization of the Reserved Elections scheme.
 Now incorporated into the Singapore Constitution in Articles 19(4)(a)(ii), 19(4)(b)(ii), 19(5)(a)(ii), 19(5)(b)(ii), 19(5)(c)(ii), read with 19(7).
 See Singapore Constitution, Article 19B.
 Singapore Constitution, Article 19B(4)(a).
 Singapore Parliamentary Debates, Official Report (27 January 2016) vol 94 (Lee Hsien Loong, Prime Minister).
 See Report, at p 82.
 Parliament 13, Session 1, Vol 94, Sitting 32, 06-02-2017, Second Reading Bills, Presidential Elections (Amendment) Bill.
 Tan Cheng Bock v Attorney-General  SGHC 160 (“Judgment”), at .
 Judgment, at -.
  3 SLR 354 at .
 Judgment, at (b), -, and .
 Parliament 9, Session 1, Vol 70, Sitting 18, 17-08-1999, Ministerial Statement, at Col 2042.
 Parliament 8, Session 1, Vol 61, Sitting 6, 31-08-1993, Tribute to President Wee Kim Wee.
 See Report, at p 82.
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.
What should not be overlooked are the changes proposed and made to the mechanics for electing the President. Continue reading
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
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.
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.
Dr. Jaclyn L. Neo
National University of Singapore
Faculty of Law
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.