by: Jewel Philemon and Justin Tan/
Photographs: Terry Xu/
Maruah (working group for ASEAN human rights mechanism), held a public forum,’ What do you do, Mr President?’, discussing the key roles and functions of the President, on Saturday 20th August. The event featured presentations from constitutional law expert, Dr Kevin Tan, and popular web commentator, Mr Alex Au. The event was attended by over 100 participants.
Ms Braema Mathi, President of Maruah, opened the session saying, “For us in Maruah, as a human rights group, what is our interest in this? The right to information is fundamental to knowing what is going on, to making decisions, to choices, etc. It is one of the fundamental principles on the Universal Declaration of Human Rights. It is on that premise that we continue to engage on such issues, that we want to share and find speakers who can speak on the issues with knowledge, expertise, objectivity and also challenge our thinking in a lot of ways.”
She then invited Dr Kevin Tan to present. Dr Tan who has been teaching constitutional law for the past 25 years, focused his presentation on the constitutional provisions and implications of Singapore’s elected president.
Constitutional powers of the President
Dr Tan explored Article 21 of the constitution of Singapore which outlines the roles and powers of the elected president. “The general rule is that the president must act in accordance with the advice of cabinet or of a minister acting under the general authority of the cabinet”, he said.
He added that, despite this, the president can use his discretionary powers in the following areas:
- The appointment of the Prime Minister
- The withholding of consent to a request of dissolution
- The withholding of assent to any bill under article 5A, 22E, 22H, 144(2) or 148A
- The withholding of concurrence under article 144 to any guarantee or loan to be given or raised by the government
- The withholding of concurrence and approval to the appointments and budgets of the statutory boards and government companies to which articles 22A and 22C apply.
- Any other function of which the president is authorized by this constitution to act in his discretion
He firmly concluded, “Unless expressly allowed by the constitution, the president must always act on the advice of the cabinet.”
Can the president…?
Dr Tan then proceeded to address some questions raised by the public in accordance to the constitution.
- Can the president act as a proxy for the people who didn’t vote for the present government? No.
- Can the president publicly criticize government policies or civil service? No, he shouldn’t.
- Can the president rally the people in times of crisis or soothe frayed nerves? No, he cannot.
Dr Tan also identified other questions such as “Can the president advance charitable or other worthwhile causes?”, and “Can the president publicly call on the government to act on any matter”, as being grey areas.
“There are an infinite number of grey areas and shades of grey”, Dr Tan emphasised.
Thwarting an activist president
In the final part of his presentation, Dr Tan delved into how an activist government can be thwarted using the constitution.
“An activist president can be thwarted in three ways, One, by amending the constitution to remove the powers of the president. Two, by removing the president for intentional violations of the constitution. This is a decision for the courts. It is a judicial process. And three, by circumventing presidential scrutiny by amending the law to either increasing taxes, selling state assets, or granting of monopoly or oligopoly licenses. “
“With that, I leave you – there probably are more questions than answers – and let Alex take you through the political-social issues.”
What’s on the other side of the watershed?
Human rights activist and popular blogger, Mr Alex Waipang Au, then took over joking, “Kevin has done a great job of clarifying. Now I shall confuse.”
“You know, the word, ‘watershed’, has been used, especially after the General Election. So, 2011 is the year of the watershed.”, Mr Au began, “…but what is on the other side of the watershed? Often when we are climbing up a mountain we cannot see what is on the other side and we are at that point now. We don’t know what is on the other side of that watershed…well, with one candidate we know (laughs) but if one of the other three get elected, then who knows?”
Mr Au echoed Dr Tan’s statement that they are many grey areas. “What acts constitute ‘discharging the functions’?” He mused. “The rule, as Kevin pointed out, is that the president must always act on the advice of cabinet. So how about an impromptu speech? Must he wait for the Prime Minister to script one for him? Or how about what shirt to wear? Must he ask the advice of the prime minister? He’ll probably say pink…” he laughs.
“The bottom line is that law can only anticipate so much.” Mr Au continued, “It can only govern so many areas of the presidential office. A lot more will depend on common sense but also depends on the situational context. Effectively, in the end, it’s a system where people operate. And people have a very funny way of doing things in unanticipated ways.”
The actual practice, on the other hand, will depend on five things, Mr Au said. The temperament of the president, his political acuity, the resistance of the cabinet, the size of the parliamentary majority and the public opinion. “A lot of these factors will determine how the office of president is going to be shaped”, he added.
“It is rather artificial to restrict authority to five areas of discretion”, Mr Au concluded, referencing the limited powers of the president.
Questions were raised from the floor after the presentation. One participant enquired on the relevance of the Presidential Elections Committee (PEC) and the guidelines for a suitable candidate.
It was noted that apart from integrity, which could be guided by legal principles (e.g. not having committed an offence), the other criteria of good character and reputation were almost impossible to check for.
Also, the necessity of having a candidate serving as chairman of a board of directors or CEO of a company with paid up capital of $100 million was questioned, noting that even very large companies which hand-picked their CEOs have gone bust before.
Mr Ravi Philemon, interim chief editor of The Online Citizen (TOC) who participated in the forum brought up that TOC had written to PEC questioning them on their media release which said, “the Committee deliberated on the merits of each application, taking into account the information provided by the applicant and obtained from various government agencies”.
TOC, Mr Philemon said, had asked PEC to elaborate which were the government agencies that provided PEC with these information and also if the national service records of the candidates (if any) were taken into consideration in their deliberation process. He said TOC got no reply from the PEC on these questions.
Participants also raised questions in relation to a portion of Article 21(2) Discharge of performance and functions of President, which reads:
“The withholding of concurrence under Article 151 (4) in relation to the detention of or further detention of any person under any law or ordinance made or promulgated in pursuance of Part XII.”
Dr Tan clarified that where there was no agreement between the Cabinet and the preventive detention advisory body on the detention or further detention of any person, the President’s decision on the matter will be final; and that he can make this decision without consulting or heeding the advise of the Council of Presidential Advisers.
Mr Philemon remarked that this alone was reason enough to vote in a President who is independently-minded.
President Ong Teng Cheong
Despite ending his term of Presidency in 1999, it was quite obvious that President Ong Teng Cheong had left a strong legacy, as he was mentioned favourably by both the speakers as well as the participants.
One participant asked if the President to be elected would have the same difficulties now as Mr Ong had during his term.
Dr Tan remarked that it should be quite different now as the presence of four candidates, public reactions and the moral authority the newly elected President would have to exercise, should minimise some of those difficulties Mr Ong faced.
Mr Au articulated it differently. He said that the Presidential Elections came after the watershed general elections, and so the government of the day would have to be conscious of the shifting reality.
Dr Tan also observed that President Ong broke new grounds during his term and suffered for it too. He remarked that the people were now the beneficiaries of this.
Despite initial reservations about his independence, President Ong proved to be non-partisan upon severing ties with the PAP as the Elected president of SIngapore, pointed out Dr Tan. Dr Tan further added that Mr Ong pushed for more information and transparency regarding the reserves, and that he once even withheld his approval on a statutory board budget because it would have drawn on past reserves.
Dr Tan also praised Mr Ong for clarifying the roles and powers of the President, and for being accountable to the people, by giving a press conference detailing problems he faced during his tenure as President.
Mr Ong Teng Cheong is the type of independent, non-partisan and accountable President, the people would come to expect the newly Elected President to be, concluded the Forum.