Category: Legislature

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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Wielding “Real Power” to Disagree: Amendments to the Council of Presidential Advisers Framework

The Istana, Singapore,

The Istana, which is the official residence of the President of Singapore. (By Sengkang [copyrighted free use], via the Wikimedia Commons.)

Benedict Chan Wei Qi
Third-year LLB undergraduate
School of Law, SMU

THE RECOMMENDATIONS of the Constitutional Commission on the Elected Presidency have generated much national debate even before they are tabled before Parliament. While the spotlight has largely been on the recommendations relating to securing minority representation in the nation’s highest office, perhaps we should also pay heed to the wise men and women behind the decisions of the Elected President – the Council of Presidential Advisors (“CPA”).

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Who Is an Elected President?

President S. R. Nathan on 31 December 2006

President S R Nathan (1924–2016). (Photographed in December 2006 by Calvin Teo, CC-BY-SA-3.0 via the Wikimedia Commons.)

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

REPORTING the death of former President S R Nathan at the age of 92 on 22 August 2016, The Straits Times of 23 August stated in the first paragraph on its front page that he was “Singapore’s first elected and longest-serving president”.[1]

It was soon pointed out that the first presidential election was held in 1993 and led to Ong Teng Cheong being elected to the highest office in the land. (ST couldn’t change its print edition, of course, but did update its website by removing the words first elected and, and publish a correction in the next day’s newspaper.)[2]

However, some have questioned whether Nathan can be regarded as having been ‘elected’ at all, since the 1999 and 2005 elections he had participated in had been walkovers – he had been the only candidate declared eligible by the Presidential Elections Committee.

This raises an interesting question: who can be considered an elected President?

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Textualism vs. Purposive Interpretation: Must an NCMP Seat Be Filled?

Dr Jaclyn L Neo
Assistant Professor
Faculty of Law, National University of Singapore

In a recent blogpost, Dr. Jack Lee argued that if an opposition candidate declines to take up an NCMP seat, the PAP-dominated government may not be obliged to offer that seat to the next eligible opposition candidate. This has thrown up a very interesting debate as to the legal obligations of Parliament to fill the NCMP seats. Besides Dr Jack Lee, Professor Thio Li-ann has also been reported as taking the position that there is no legal obligation on Parliament to offer the seat to the next eligible candidate. In contrast, Professor Kevin Tan argues that article 39 of the Constitution, read with section 52 of the Parliamentary Elections Act obliges Parliament to offer the seat. He is quoted as saying that “The seat cannot be left vacant. A combined reading of both provisions makes it clear that Parliament must have nine members who do not form the government.”

Parliament (Source: Singapore Parliament)

Parliament (Source: Singapore Parliament)

There are clearly good legal and policy arguments for and against imposing a legal obligation on Parliament to offer the seat to the next eligible opposition candidate where it had been previously declined. The disagreement stems from differing approaches to statutory and constitutional interpretation. Continue reading

Updated: When an NCMP Seat is Turned Down

Sign in front of Parliament House, Singapore

Who will be the NCMPs in the 13th Parliament of Singapore? (By Smuconlaw [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via the Wikimedia Commons.)

Read the 17 September 2015 update

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

AS THE DUST SETTLES after the 2015 general election (and I don’t just mean the haze), thoughts now turn to the filling of the Non-constituency Member of Parliament (NCMP) seats in Parliament.

The issue remains relevant as the possibility that the Opposition would capture at least nine parliamentary seats, raised by Jaclyn Neo in a recent post, did not happen. Citizens returned the People’s Action Party (PAP) to power with an increased vote share of 69.9% based on the votes cast in Singapore.

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Towards True Political Pluralism: Whither the NCMP scheme?

Dr Jaclyn L Neo
Assistant Professor
Faculty of Law, National University of Singapore

Today, 11 September 2015, Singaporeans go to the poll. For the first time since its independence in 1965, every (elected) parliamentary seat is being contested. A total of nine political parties are contesting in this year’s general elections. Among the questions about the anticipated outcomes is whether there will be any Non-Constituency Members of Parliament (NCMP) in the new Parliament. The NCMP scheme was introduced in 1984. It allocates parliamentary seats to opposition candidates who have obtained the highest number of votes but did not win any seats in any constituency. Article 39 of the Constitution of the Republic of Singapore states that apart from elected Members and nominated Members, Parliament shall consist of members “known as non-constituency Members, as the Legislature may provide in any law relating to Parliamentary elections to ensure the representation in Parliament of a minimum number of Members from a political party or parties not forming the Government”. Continue reading

Online Election-time Engagement Tricky as Ever

Wait, are you sure you can post that?

Wait, are you sure you can post that? (By María Tobías [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via the Wikimedia Commons.)

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

IT’S BEEN INTERESTING to see that a post I made in 2012 at the time of the Hougang by-election has been seeing a surge of visits, as people try to figure out what they can or can’t post on cooling-off day and polling day of the 2015 general election (10 and 11 September).

The law hasn’t changed since then, so what I said in that post still applies today. This means online election-time engagement still remains a tricky issue for many.

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