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.[1] However, one requirement was entirely new, which is the concept of the hiatus-triggered Reserved Election.[2] 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,[3] 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”.[4] 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.[5] 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.^[6]

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.[7] 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.[8]

Furthermore, Loh J adopted a purposive interpretation, citing Article 2(9) of the Constitution and Dorsey James Michael v World Sport Group Pte Ltd.[9] 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.[10]

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.”[11] 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.”[12] 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.”[13]

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.

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[1] 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).

[2] See Singapore Constitution, Article 19B.

[3] Singapore Constitution, Article 19B(4)(a).

[4] Singapore Parliamentary Debates, Official Report (27 January 2016) vol 94 (Lee Hsien Loong, Prime Minister).

[5] See Report, at p 82.

[6] Parliament 13, Session 1, Vol 94, Sitting 32, 06-02-2017, Second Reading Bills, Presidential Elections (Amendment) Bill.

[7] Tan Cheng Bock v Attorney-General [2017] SGHC 160 (“Judgment”), at [1].

^{[8] Judgment, at [58]-[62].} 

[9] [2013] 3 SLR 354 at [18].

[10] Judgment, at [85](b), [88]-[89], and [92].

[11] Parliament 9, Session 1, Vol 70, Sitting 18,  17-08-1999, Ministerial Statement, at Col 2042.

[12] Parliament 8, Session 1, Vol 61, Sitting 6, 31-08-1993, Tribute to President Wee Kim Wee.

[13] See Report, at p 82.