By Dr Jack Tsen-Ta Lee
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 wordsfirst 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?
Every President elected?
When most people use the term ‘elected President’, they mean someone who has been elected by the people.
However, in one sense, all of Singapore’s Presidents since independence have been elected. This is because Article 17(1) of the Constitution of the Republic of Singapore (1980 Reprint) used to say that the President was to be “elected” – by Parliament, not the electorate.
A check on a rogue government
The Elected Presidency scheme as it exists today was introduced in 1991. The Government’s intention was to enable the President to act as a check on a future rogue government. Thus, the President was given discretionary powers to, among other things, veto attempts by the Government to deplete the nation’s past financial reserves (those built up in previous parliamentary terms); and to effect unsuitable appointments to or dismissals of key public officers such as judges, the Attorney-General, the Chief of Defence Force, and the Commissioner of Police.
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.
We might assume the first person to exercise discretionary powers was Ong Teng Cheong, as he won the inaugural presidential election in 1993.
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 […]
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.
This brings us to our key question: can a candidate who has won a presidential election by default be said to have been elected? You’ve probably guessed that the answer is yes, legally speaking.
The relevant provision is section 15(1)(a) of the Presidential Elections Act, which says:
If, on nomination day after the decision by the Returning Officer of any objection which may have been lodged, only one candidate stands nominated, the Returning Officer shall immediately — […] declare the nominated candidate to be elected to the office of President; […]
Thus, a candidate who has entered office through a walkover is, from a legal standpoint, no less regarded as elected.
Indeed, provisions of this sort are commonplace in election laws. I’d guess no one really doubts that candidates standing in uncontested wards during parliamentary elections are deemed to have been elected, and this is confirmed by section 33 of the Parliamentary Elections Act.
In fact the Act says that even Non-constituency Members of Parliament (NCMPs), often called the ‘best losers’ in a general election, are to be declared as elected, rather than appointed, to their positions.
Therefore, as we remember S. R. Nathan for his service to the nation, we can rightly call him Singapore’s second elected President.
The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the School of Law, Singapore Management University.
© 2016 Jack Tsen-Ta Lee. First published at Singaporepubliclaw.com, and used with permission.
1 Chong Zi Liang, “State funeral for S R Nathan on Friday: PM Lee says ex-president, who died last night, had ‘deep sense of duty to nation’”, The Straits Times (23 August 2016), page A1.
2 Chong Zi Liang, “State funeral for S R Nathan on Friday: PM Lee says ex-president, who died last night, had ‘deep sense of duty to nation’”, The Straits Times (23 August 2016, 5:00 am; updated 7:50 am) <http://www.straitstimes.com/singapore/state-funeral-for-s-r-nathan-on-friday> (accessed 25 August 2016; archived here); “What it should have been”, The Straits Times (24 August 2016), page A2.
3 See Jack Tsen-Ta Lee, “Singapore’s Elected President: An Office That Is Still Evolving“, Presidential Power (20 July 2016; archived here, with a PDF version available here).
4 Presidential Elections Act (Chapter 240A, 2011 Revised Edition).
5 Parliamentary Elections Act (Chapter 218, 2011 Revised Edition) (“PEA”).
6 PEA, section 52.