SINGAPORE: Constitutional experts and lawyers Channel NewsAsia spoke with said it is unlikely that the recent High Court application by former presidential candidate, Dr Tan Cheng Bock will delay the Presidential Election, due to be held in September.
Following amendments to the Constitution last year, the next election will be reserved for candidates from the Malay community.
On Monday (May 8) Dr Tan announced in a Facebook post that he had filed an application with the High Court last week. He said he is seeking to determine if Section 22 of the Presidential Elections (Amendment) Act - which triggers a reserved election by counting former President Wee Kim Wee as the first elected President - is in line with the Constitution.
Dr Tan said he had filed the application after seeking the legal advice of Queen’s Counsel David Pannick. He said he asked Lord Pannick if the Attorney-General (AG) had correctly advised the Government to specify President Wee’s term as the first to be counted for the reserved election, on the basis that he was the first President to exercise elected powers.
Dr Tan has previously stated his belief that the trigger for a reserved election should start with former President Ong Teng Cheong. In the Facebook post, Dr Tan said Lord Pannick disagreed with the AG’s advice, which prompted Dr Tan to file the application before the High Court. A pre-trial conference (PTC) has been fixed for May 22.
Law professor at Singapore Management University, Eugene Tan, said that as the courts do not prejudge, one should not read too much into the merits of the case merely by the court's acceptance of the application.
“An application may be rejected if the required particulars are incomplete or requirements under the Rules of Court have not been complied with. The acceptance of the application indicates that the application is in order,” Assoc Prof Tan said.
Senior Counsel N Sreenivasan added the PTC is an administrative process where issues are fleshed out and where timelines for the application are discussed. Mr Sreenivasan, who is also managing director of law firm Straits Law said the timeline for subsequent proceedings will become clearer after the PTC. But he said the court would be mindful of urgent deadlines.
"Where the court’s determination will have an impact on a forthcoming event or parties rights, the court would normally fix an earlier hearing date to accommodate such matters," he said.
Assoc Prof Tan agreed, saying the election formalities will begin in June, when presidential hopefuls can start applying for the certificates of eligibility and community certificates. But he said the critical point of the election process is when the writ is issued, probably in late August. Assoc Prof Tan said the court will take this into account in managing this case.
“I believe the court will move resolutely and expeditiously so that the election will not be detrimentally affected by the unresolved issue as to whether it (the provision in question) is constitutional or not,” he said.
But adjunct law professor at the National University of Singapore, Kevin Tan, said the timeline could be tight, especially if there are appeals made in between.
“Let’s say Dr Tan Cheng Bock loses the case and says ‘I want to appeal’ but no leave of appeal is given then there may be an appeal on the no leave matter. That is where the time crunch will be,” he said.
Assoc Prof Tan added that for Dr Tan to succeed, he would have to show that the advice to the Government by the Attorney-General was “fundamentally flawed”. “In general, courts refrain from reviewing the exercise of political judgment by Parliament or the Cabinet,” he said.
“The AG will robustly explain and justify the legal basis for starting the count from President Wee, including the deeming provision in Article 163(1) of the Singapore Constitution,” he said.
The provision states that although not elected into office by Singaporean voters in a Presidential Election, the person holding the office of President just before Nov 30, 1991 will exercise, perform and discharge all the functions and duties conferred upon the office of the Elected President as if he had been so elected.
Dr Wee was President when the provision came into effect as part of the legislation for the Elected Presidency.