SINGAPORE: With Singapore’s first reserved presidential election looming, the High Court is expected to make a judgement on Dr Tan Cheng Bock’s legal challenge to the process soon.
Dr Tan, a former presidential candidate, mounted the challenge in the High Court in May. He is taking issue with the Attorney-General’s advice to the Government that President Wee Kim Wee’s term could be included when assessing when an election needs to be reserved for candidates from a particular racial group, on the basis that he was the first President to exercise elected powers.
Under changes to the Constitution passed in November, if there is no President from a particular racial community for five consecutive terms, then the next term will be reserved for a President from that community.
While the case was heard last week in chambers, Channel NewsAsia obtained the 2,000 pages of affidavits and other documents submitted by both Dr Tan, represented by Senior Counsel Chelva Retnam Rajah, and the Attorney-General’s Chambers (AGC), represented by Deputy Attorney-General Hri Kumar Nair.
PRESIDENT WEE’S TERM MUST BE VOIDED FOR RESERVED ELECTION: DR TAN
Dr Tan’s case took issue with this year’s presidential election being reserved, arguing that President Wee’s term should not be the basis for assessing how many terms there have been without a Malay President. He suggested that only Presidents elected by a vote are relevant to trigger a reserved election.
Mr Wee Kim Wee was President of Singapore for two terms from 1985 to 1993, and the Elected Presidency was legislated in Singapore in 1991, in the middle of his second term.
Dr Tan argued it should be President Ong Teng Cheong’s term (1993 to 1999) that should form the basis for assessing whether there needs to be a reserved election. If that were the case, 2017 would not be a reserved election for Malay candidates.
Dr Tan’s submission cited several provisions of the Constitution, before linking it to Article 19B(1), which states that an “election is reserved for a specific community if no person belonging to that race has held the office of the President for any of the five most recent terms of office of the President”.
For example, Dr Tan’s submission cited one provision that a President has to be elected by citizens of Singapore in accordance with any law made by the Legislature, the law in this case being the Presidential Elections Act.
Another provision in his argument was one that stated that the President must hold office for a term of six years from when he assumes office.
By such definitions, Dr Tan argued the reserved election’s definition of “five most recent terms” should refer to Presidents who were elected by the citizens to serve for a term of six years. “President Wee Kim Wee was not elected to office by the citizens of Singapore and his term of office (under the constitutional provisions then in force i.e old Article 17) was four years,” his submission stated.
He also used the Constitutional Commission’s report to support this argument. The report stated that a reserved election would be triggered if “no candidate from a particular racial group has held the office of President for 30 years or more”.
Dr Tan said the figure of 30 years was derived on the basis of five terms of 6 years each, and that the report “therefore cannot have envisaged that the first term to be counted would be that of President Wee Kim Wee, as each of his two terms of office was for four years.”
Dr Tan also cited other provisions around the reserved election timing, saying they referred to a President elected by popular vote.
His submission stated the reserved election provision is also “not concerned” with whether a President exercised new functions of the President after the Constitution was amended in 1991, but whether a President was elected to exercise them.
DR TAN’S CASE “IRRETRIEVABLY FLAWED”: DEPUTY ATTORNEY-GENERAL
Responding to Dr Tan’s submissions, the Attorney-General’s Chambers (AGC) argued that Dr Tan’s case was combining two separate issues. The first, it said is a legal matter, on whether legislature can conclude that President Wee’s term is the basis for triggering the reserved election.
The second is a matter of policy, it said, with the submission questioning why the legislature decided on President Wee’s term.
Additionally, the AGC called Dr Tan’s case “irretrievably flawed” because it not only reads words into Articles 19B and 164 (1) which are not there, but ignores Parliament’s specifically articulated intention for these provisions.
It submitted that Parliament was acting within the bounds of the Constitution because Article 164 (1), which requires the Legislature to specify the term of office does not impose any requirements as to which President or which category of Presidents Parliament must choose from, “much less that the specified President must be popularly elected”.
The AGC said the power for the Legislature to specify any President also enables it to end the hiatus for any community “sooner rather than later”. It accused Dr Tan’s challenge as one that “undermines the longstanding imperative for multiracial representation in the office of the President, which the reserved election framework seeks to safeguard”.
It added that the decision to specify President Wee’s term addressed the concern of a lack of a President from the Malay community for over 46 years.
The AGC added that Parliament’s decision to specify a President who was the first to exercise custodial powers is one of policy.
“The plaintiff may very well have personal reasons for disagreeing with these policy considerations, but they have nothing to do with the constitutionality of specifying President Wee, and are irrelevant to the legal question before the Court.”
DEFINITION OF PRESIDENT, DESPITE CHANGES TO CONSTITUTION, REMAINS THE SAME: AGC
In responding to Dr Tan’s argument that a President - as set out in the reserved election provision - should have held office for a term of six years, the AGC argued that there is no such restriction in place.
For example, it said the article in question, 19B, could have had restrictions in place as with other provisions, if it intended to narrow the definition of what it means to hold office.
“In fact, it does so by excluding those who exercised the role of the President under a temporary arrangement,” the submission read. “No other restriction was laid down, and the clear and necessary inference is that no other restriction was needed.”
Rebutting Dr Tan’s submission that a President should have been elected in a poll, the AGC highlighted that Article 2 of the Constitution states that a President can be defined as one elected under the Constitution, and “includes any person for the time being exercising the functions of the office of the President”.
It said President Wee was elected under the Constitution that stood before it was amended in 1991, and more importantly, the definition was not “materially amended” by the amendment of the Constitution.
The AGC said the implications were clear, stating: “Parliament considered that the definition was apt to encapsulate both Presidents elected by Parliament, and Presidents elected by the citizens of Singapore.“