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
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.
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”.
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.)
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?
Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU
TWO DAYS AGO [August 11, 2011], the Presidential Elections Committee (PEC) issued certificates of eligibility to four of the six prospective candidates who applied to contest the presidential election. We are thus assured of a poll for the first time in 18 years, and with the largest number of candidates to date.
The PEC’s announcement of its decisions makes interesting reading for what it does and does not say. It allows observers to examine how the Committee goes about fulfilling its crucial duty.
The Committee consists of the Chairmen of the Public Service Commission (PSC) and Accounting and Corporate Regulatory Authority (ACRA), and a member of the Presidential Council for Minority Rights (PCMR) nominated by the Council’s Chairman. The Government’s power over the PEC’s composition is regulated to an extent, as the outgoing President had personal discretion to veto appointments of unsuitable persons as PSC Chairman, and as the Chairman and members of the PCMR.
Nonetheless, how the PEC carries out its task can be improved. Continue reading