UPDATE 08 May: The Independent has contacted Lord David Pannick, QC, who is believed to have contributed his views to Dr Tan’s reported court filing. Lord Pannick told The Independent, when asked if he could elaborate on the submission: “Apologies but I am not commenting. You need to speak to Dr Tan’s lawyers in Singapore.”
Dr Tan Cheng Bock, presidential candidate in the 2011 elections, is reported to have filed a submission with the courts, to compel the Attorney General (AG) to explain changes to the Elected President scheme.
Namely, Dr Tan wants the AG to explain why the late Dr Wee Kim Wee, Singapore’s 4th government-appointed president, is also considered the nation’s first Elected President.
Dr Tan, who narrowly lost in the 2011 elections, had announced last year that he would again participate in this year’s contest . However, with the changes to the scheme to make this year’s contest a Reserved Election, Dr Tan no longer qualifies.
The Elected President scheme was introduced in 1991, just 2 years before the end of Dr Wee’s 8-year tenure as an appointed president.
His successor, Ong Teng Cheong, was the first president to go through an actual open electoral contest in September 1993, in which he beat his opponent Chua Kim Yeow with 58.7% of the vote.
Dr Tan’s court filing on Friday comes after changes were made to the Presidential Elections Act earlier this year, on the recommendations of the Constitutional Commission (CC), chaired by Chief Justice Sundaresh Menon.
Among the wide-ranging changes was the introduction of a Reserved Election which will be held if there has not been a minority-race President for 5 consecutive terms, or 30 years.
It is this which is at the heart of Dr Tan’s court action, after the Government had dismissed his call in March to explain why the count of 5 terms should start with President Wee, and not President Ong.
The Government had explained, in Parliament during the debate on the White Paper on the changes, that it was advised by the Attorney General that the count should start from President Wee because he was the first president to exercise the powers under the elected presidency.
Dr Tan, and the parliamentary opposition, had called on the Government to release or make public the advice given by the AG but the Government has refused to do so.
When asked in Parliament by the opposition to do the same, the Minister in the Prime Minister’s Office, Chan Chun Sing, said: “You will know that when you get advice, you do not freely publicise your advice and you may have various reasons why you do not publicise all your advice.”
The Commission vs the AGC
At the very heart of the controversy here is the definition of the term “elected president”.
Is the Elected President someone who merely exercises the duties and responsibilities of the elected presidency, or should the person also have gone through an actual open electoral contest and has won the majority vote?
Here, it would seem the Constitutional Commission, chaired by the Chief Justice, and the Attorney General, who advises the Government, hold different views.
From what Minister Chan told the House, the Attorney General’s views seem to be that anyone who exercises the powers of the elected presidency is considered an Elected President. Thus, President Wee is the first Elected President.
However, the Constitutional Commission’s views seem to be different. This is significant as the Commission is chaired by the Chief Justice himself.
Here we refer to the Commission’s own report.
First, in point 5.5, it explicitly mentioned that President Ong is “the first elected President”, not President Wee which the Commission also mentioned in the same sentence.
This is the exact quote from the report [emphasis added]:
“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: “[i]t’s time to remind Singaporeans, to have a symbol of a multi-racial community, an expression of our national identity”.
The reference to Mr Lee is an interview the former Senior Minister gave to the Straits Times in 1999.
What Mr Lee said:
ST: Right. But the fact that he [SR Nathan] was Indian, do you think there was a feeling that it’s time for a minority to be president?
SM Lee: Yes, I think so because we’ve had two terms of Wee Kim Wee, one term of Ong Teng Cheong. I think it’s time to remind Singaporeans that we are a multiracial community. And it’s also good. It’s a symbolic expression of our national identity.
Do note that Mr Lee, in this interview, did not describe President Ong as the “first elected president”. It was the Commission which did.
So, it is fair to say that that is how the Commission viewed President Ong – as Singapore’s first Elected President.
And in point 7.5 of the Commission’s report, it explains how the Elected President obtains his “legitimacy” [emphasis added]:
“The Commission considers that the President’s legitimacy derives from the fact that he has assumed office through a process which is free, open and fair, and which binds all citizens. The central feature of that process is that he must have garnered the largest share of votes at a nation-wide election.”
The Elected President is someone who “must have garnered the largest share of votes at a nation-wide election.”
This is how he has the legitimacy to be a check on the Government, on behalf of the people of Singapore.
It was President Ong, President Nathan and President Tony Tan who have all gone through such a “free, open and fair… nation-wide election.”
President Wee, who remains one of Singapore’s most popular presidents, did not.
The Commission’s views seem to be quite different from the Attorney General’s. The Elected President is not just someone who merely exercises the powers of the presidency but must also have gone through an actual open nation-wide election.
Law Professors weigh in
Following the constitutional changes this year, two law professors weighed in to give their views on the Singapore Public Law website. They both referred to the fundamental requirement of the president to go through an election.
“The office of President was transformed into one directly elected by the people to give the President moral authority to disapprove of government decisions, if need be,” said Assistant Professor of Law, Jack Tsen-Ta Lee of the School of Law at the Singapore Management University (SMU).
Professor Lee explained why President Ong was Singapore’s first Elected President, and not President Wee.
“We might assume the first person to exercise discretionary powers was Ong Teng Cheong, as he won the inaugural presidential election in 1993,” Prof Lee said. “In fact it was Wee Kim Wee who was the first one to do so, due to a special provision – Article 163(1) – inserted into the Constitution when the Elected Presidency scheme was introduced:
“The person holding the office of President immediately prior to 30th November 1991 shall continue to hold such office for the remainder of his term of office and shall exercise, perform and discharge all the functions, powers and duties conferred or imposed upon the office of President by this Constitution as amended by the Constitution of the Republic of Singapore (Amendment) Act 1991 (Act 5 of 1991) […], as if he had been elected to the office of President by the citizens of Singapore […]”
Professor Lee said: “The provision was carefully worded to avoid deeming Wee Kim Wee as having been elected, so although he exercised all the discretionary powers of an elected President, the first truly elected President was Ong Teng Cheong.”
Adjunct Professor of Law, Kevin Tan, of the National University of Singapore (NUS), similarly wrote about why an election was necessary to give the president the moral authority to perform his constitutional role as a check on the government of the day.
Prof Tan wrote:
“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.”
Affirmation in Govt’s White Paper
The Government’s own White Paper, issued in response to the Commission’s report, states very clearly who an Elected President is:
“A President who assumes office after a reserved election would, like all other elected Presidents, have met the constitutionally prescribed eligibility criteria and been chosen through a national electoral process.” [Emphasis added]
While the Government said it had been advised by the Attorney General, the Government seems to have agreed with the Constitutional Commission and the law professors, in fact, on what an “Elected President” is – someone who has gone through an actual and open electoral contest, or an election.
In the Presidential Elections Act, “election” means “an election for the purpose of electing the President.”
Is Commission right, or the AG?
So, it all comes down to the interpretation of what “Elected President” is, and whose interpretation of the term is accurate and definitive.
On the one hand, we have the Attorney General, the legal adviser to the Government.
On the other, there is the Constitutional Commission, chaired by the Chief Justice himself whose business is interpretation of the law.
The two sides seem to hold a different view of the term “Elected President”.
Whose view should hold more weight, or is the correct one?
It is regrettable that the Government chose to be so dismissive of Dr Tan’s and the parliamentary opposition’s call for it to explain the issue, or to make public the Attorney General’s advice, so Singaporeans can have some clarity on the matter.
In fact, in Parliament in February, Mr Chan had told Ms Sylvia Lim, Workers’ Party MP, who had raised questions about the matter:
“Are you suggesting that the Attorney-General did not give the Government the appropriate advice? Or that the Prime Minister has not been truthful with the Attorney-General’s advice?
“If it’s the first, then I think Ms Lim, as suggested by DPM Teo (Chee Hean), can challenge this in (the) courts.”
Now, Dr Tan has indeed brought it to the courts.
There is no reason for the Government to oppose the application, since it was Mr Chan and DPM Teo themselves who suggested it.
Let the courts be the final arbiter of what should and would have been a simple matter, if not for the Government’s arrogance and dismissive attitude towards those with valid concerns, refusing to provide explanations and openness on the matter.
Now, taxpayers’ money and the court’s resources will have to be spent on this.