Dr Tan Cheng Bock held a press conference on Friday last week to ask the Singapore Government whether it is correct to set the Presidential Election 2017 as a reserved election under the newly introduced amendments to the Elected Presidency.
During his press conference on Friday, Dr Tan said, “I would urge the Government to explain, or refer AGC’s opinion to Court to confirm whether AGC’s advice is in sync with the Commission’s spirit and purpose for having reserved elections.”
It is moot to discuss or useless to bring up past evidence that Mr Ong Teng Cheong is indeed the first Elected President of Singapore. Go down to the streets and ask a member of public, and they will surely tell you that it is publicly accepted and recognised that Mr Ong is the first Elected President of Singapore, and on top of that, a well-respected and beloved President among all.
The crux of the issue is that the justification given in Parliament to counting Mr Wee as the first Elected President, making the upcoming Presidential Election a reserved election for Malay candidates.
Prime Minister Lee Hsien Loong said in his speech in Parliament on 8 November 2016,
“When should the racial provision start counting? The Constitutional Amendment Bill states that the Government should legislate on this point. The Government intends to legislate when we amend the Presidential Elections Act in January next year.
We have taken the Attorney-General’s advice. We will start counting from the first President who exercised the powers of the Elected President, in other words, Dr Wee Kim Wee. That means we are now in the fifth term of the Elected Presidency.
We also have to define the ethnic group of each of the Elected Presidents we have had so far. There is no practical doubt, but as a legal matter, we have to define it because you cannot convene the Committee retrospectively to certify them. So, the Act will deem:
(a) Dr Wee Kim Wee as Chinese,
(b) Mr Ong Teng Cheong as Chinese,
(c) Mr S R Nathan, who served two terms, as Indian,
(d) and Dr Tony Tan as Chinese.”
Mr Lee did not, in any way, explain what was the actual justification given by the Attorney-General’s Chamber (AGC) when he announced that the 2017 Presidential Election is to be an reserved election.
Mr Wee given powers of elected President but not considered as elected President
Dr Jack Lee, assistant professor at the Singapore Management University (SMU)’s School of Law, addressed this point in the “Singapore Public Law” website. He wrote:
“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.”
The wordings, “as if he had been elected to the office of President by the citizens of Singapore”, indicates that Mr Wee who was appointed as President prior to 1991, is given powers of an elected President but not an elected President.
In contrast to Dr Lee’s succinct interpretation of the constitution, what does AGC’s advice to PM Lee have to offer apart from a simple declaration that Mr Wee is considered an elected President?
Refusal to publish AGC’s advice
Ms Sylvia Lim, Member of Parliament for Aljunied GRC had asked in Parliament about the AGC’s advice:
“I think Prime Minister said yesterday that it was based on Attorney-General’s Chambers’ advice on how to count the terms. So, I am asking if the Government is prepared to publish that advice from the Attorney-General’s Chambers. And the second point is, under clause 32 of this Bill, it is stated that Parliament has to pass a law to specify how to count when the first reserved election would be. It is under clause 32. So, am I right then that the Government will actually come back to the House to present what the Attorney-General’s Chambers has advised for us to debate on it?”
Instead of answering the simple question posed by Ms Sylvia Lim, Member of Parliament for Aljunied GRC about the AGC’s advice, Deputy Prime Minister, Mr Teo Chee Hean challenged Ms Lim to go to the courts if she did not agree with the advice.
He said, “On the reserved elections and how to count, I would like to confirm that this is indeed the Attorney-General’s Chambers’ advice. And if not, and you do not think that is correct, I think it is possible if you wish to challenge judicially.”
Ms Lim then said in response, “Madam, that was not my question actually. My question was whether the Government is prepared to publish the advice from the Attorney-General’s Chambers because there is public interest in that advice. Is there something that is controversial or confidential that cannot be published? And the second part of that was under clause 32, it says that Parliament has to pass a law to specify how to count. So, is the Government going to present a Bill on that?”
Mr Teo then accused Ms Lim of alleging PM Lee of lying by saying, “I think the Prime Minister said so yesterday. It is in the Hansard. Are you saying that the Prime Minister has falsely told the House that this was the advice he received from the Attorney-General’s Chambers? And yes, we will be passing a law, the Presidential Elections Act to state so, that these are the designated races, and so forth.”
In response, Ms Lim said, “Mdm Speaker, I am not saying that the Prime Minister is not telling the truth or anything of that nature. What I was saying was that there is public interest to read the advice. So I am just asking whether the Government is prepared to publish the advice only. That is all. I am not accusing the Prime Minister of anything at all.”
Mr Teo again retorted Ms Lim by saying, “Mdm Speaker, the advice is quite straightforward. It is not normal – Ms Sylvia Lim is a lawyer herself – not the usual thing that is done to publish a lawyer’s advice because that is something which is provided to the Prime Minister. But I would ask the Prime Minister to consider. If the Prime Minister has stated so, I think there is no doubt about it.”
The Speaker at this point, ended the debate and called for the bill to be voted. The bill was then passed with Workers’ Party objection.
Subsequently in February 2017, Ms Lim brought up the issue of the AGC’s advice again by saying,
“I realise that this decision to count from President Wee was not a matter of getting legal advice to interpret any existing laws. If one looks at this Bill and the Schedule, the Government is asking Parliament to simply make it the law that President Wee is the first one to be counted. Why not count from the first Elected President, Mr Ong Teng Cheong? Is it because if President Ong was the first one to be counted, we would have to go through this year’s elections as an open election and risk the contest by Chinese or Indian candidates who may not be to the Government’s liking? Is the decision to count from President Wee not an arbitrary and deliberate decision of the Government to achieve desired outcome?”
Minister in Prime Minister Office, Chan Chun Sing replied on Ms Lim’s points by reiterating DPM Teo by saying:
“The Government is confident of the advice rendered by the Attorney-General. We proceeded on that basis during the debates on the constitutional changes in this House. Prime Minister Lee explained to all why we needed the hiatus-triggered mechanism, and we passed the Constitution (Amendment) Bill. We are here today to put the nuts and bolts in place for a decision made clear by the Prime Minister during the debates in November. And we will not go through this again..
…Ms Lim once again questioned the Attorney-General’s advice. I am a bit bewildered by this. I would like to clarify: (a) Is Ms Lim suggesting that the Attorney-General did not give the Government the appropriate advice? Or (b) that the Prime Minister has not been truthful with the Attorney-General’s advice? If it is the first, then I think Ms Lim, as suggested by Deputy Prime Minister Teo, can challenge this in the courts. But if it is the second, then I am afraid it is a very serious issue to cast aspersions on the integrity of our Prime Minister. Ms Lim, you are a lawyer; I am not a lawyer. 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. And as a lawyer, I think you will know this better than me. So, I think we should not impute motives on this Government or the Prime Minister.”
What debate on AGC’s advice is there?
In response to media queries on Dr Tan’s questions, Ministry of Communications and Information (MCI) said he “has not raised any new points that require response” and its spokesman said that the matter of the Elected Presidency has been considered and debated extensively, including the forming of a Constitutional Commission chaired by the Chief Justice which undertook extensive consultations and public hearings on the Elected Presidency.
“Dr Tan did not participate in those hearings or give his views to the Commission. The Government gave its response to the Commission’s report in a White Paper, and Parliament debated the matter over three days, before passing amendments to the Constitution,” said the spokesman.
As shown above in the Parliamentary records, what kind of debates have there been in Parliament?
Is there anything to hide?
If indeed, the AGC’s detailed advice is able to convince the public of the decision to name Mr Wee as the first Elected President, why not share it out in the open so that the public can stand convinced of the decision?
Or is AGC’s advice just what PM Lee has said in Parliament, “Mr Wee Kim Wee is the first Elected President because he had exercised the powers of the Elected President”?
If so, one would really have to wonder, whether was the decision a carefully crafted one to ensure that Dr Tan Cheng Bock does not stand for the upcoming Presidential Election.