Category: Constitutional interpretation

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

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.

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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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

The Constitutional Status of the Proclamation of Singapore

Proclamation of Singapore

The Proclamation of Singapore, signed by Lee Kuan Yew on 9 August 1965. (From the National Archives of Singapore, archived in the Internet Archives.)

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

THIS MORNING at 9:00 am, a 2012 audio recording of the Proclamation of Singapore by the late former Prime Minister Lee Kuan Yew was broadcast on radio and television. It was on this day half a century ago that Singapore declared its independence from the Federation of Malaysia. Back then, the proclamation was read by a Radio Singapore announcer as Lee had “too many other things to do in quick succession”, including the famous noon press conference at which he teared up. Continue reading

Protecting Human Rights: The Approach of the Singapore Courts

Article 4 of the Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint)

Article 4 of the Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint). (Photograph by Smuconlaw [CC-BY-SA-4.0], via the Wikimedia Commons.) The Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution?

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

THE SINGAPORE COURTS have been taking an approach that is very deferential to the political branches of the government – the executive and the legislature. This doesn’t mean that they are deliberately biased in favour of these branches, for example because they have been induced to do so. It means that there is a judicial attitude of giving the political branches much leeway, assuming that action taken by the executive or legislation passed by Parliament is constitutional unless such acts are completely absurd or arbitrary.

This extremely high standard stems from the courts’ view of their role in the constitutional system. I would like to suggest that this view means that the courts have limited their role of upholding the Constitution[1] unnecessarily. Continue reading

The Status of International Human Rights Conventions under Singapore Domestic Law

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

The High Court today struck out Wee Kim San Lawrence Bernard’s application for judicial review on the basis that the plaintiff had no locus standi. Mr. Wee had argued that the government’s failure to clarify the position that homosexual males are protected from discrimination under Article 12 of the Constitution of the Republic of Singapore is a violation of his constitutional rights. One of Mr. Wee’s arguments was that the Singapore government’s obligation to provide protections for homosexuals stems from its accession to both the UN Convention on the Rights of Persons with Disabilities (“UNCRPD”) and the Convention to Eliminate All Forms of Discrimination Against Women (“CEDAW”).

Leaving aside the substantive question of whether the provisions under UNCRPD or CEDAW cover and assist claims for protection against sexual orientation discrimination, the case raises interesting legal question of the status of ratified treaties/conventions under Singapore law. Singapore is a dualist state. This means that ratified treaties/conventions are not part of domestic law until specifically incorporated. This contrasts with monist states, where treaties are self-executing/automatically incorporated; no additional legislative act is required. Continue reading

Hougang By-election Case: What Court Decision on By-election Reveals

A poll card issued for the 2011 general election

A poll card issued for the 2011 general election. (Photograph by Jacklee [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

THE COURT OF APPEAL’S judgment of 5 July in Vellama d/o Marie Muthu v Attorney-General[1] – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics.

The decision came as a surprise to those used to a judicial stance that is fairly deferential towards the Government. It is one of only a handful of cases in which the courts have not accepted the Government’s interpretation of the Constitution.

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