Following Dr Tan Cheng Bock’s press conference last weekend, there has been heightened public discourse on the Government’s curious interpretation of the following words: “the most recent 5 consecutive terms of the Elected Presidency.”
These words are from the latest amendments to our ever-amenable Constitution. They can be found in Article 19B, which was introduced to Parliament on 7th November 2016.
If the man on the street were asked to interpret Article 19B, he would most probably conclude that before a “election for the office of President is reserved for a community”, 5 open elections must proceed it. Following that line of logic, we have only had 4 terms of Presidents who were elected since the Presidential Elections were introduced in 1993. (1 Term of President Ong Teng Cheong, 2 Terms of President S R Nathan and 1 Term of President Tony Tan.) Therefore, using President Ong as a reference point, the reserved election should be held in 2022 and not this year.
However, one day later in Parliament, PM Lee told Parliament that the Attorney-General’s Chambers (AGC) had advised the Government to interpret the words in Article 19B to mean “count 5 consecutive terms of presidents who exercised elected powers.” This bizarre interpretation coupled with the questionable involvement of the AG raised many eyebrows. Such an interpretation was not mentioned anywhere in the Constitutional Commission’s report that was presented to the Government. In fact, the Menon Commission’s interpretation mirrored that of the layperson’s illustrated above.
In a speech to Parliament on 6 February this year, Ms Sylvia Lim called on the Speaker of Parliament (who is rumored to have been earmarked as the Establishment’s preferred candidate for the Reserved Elections) to register the Worker’s Party’s dissent to Article 19B.
“In 2011, Dr Tony Tan was the government’s preferred choice, but had to fight off 3 other candidates, scraping through to victory with a mere 35.2% of the popular vote, and a razor thin margin of 0.35%. For the next Presidential Election, we hear a sudden announcement by the government that it would be reserved for Malay candidates, based on reasoning which is totally unconvincing. How many people really believe that the Presidential Election this year is reserved for Malays to ensure minority representation, and why now?
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 a contest by Chinese or Indian candidates who may not be to the government’s liking? Isn’t the decision to count from President Wee an arbitrary and deliberate decision of the government, to achieve a desired outcome?”
The point of this piece is not to advance the argument that President Ong was our first Elected President. Such an endeavor would be akin to flogging a dead horse. With authorities from the Government itself that support that view, such an argument would be all to easy to make. I would go a step further to argue that we are barking up the wrong tree when we split hairs over how President Ong was the first Elected President.
Instead, we should aim aim to tackle the Government’s rationale for using President Wee as a reference point. Is President Wee actually the first President to exercise the powers of Elected Presidency?
Constitutional Law Professor Kevin Tan once opined that the Elected Presidency was the result of ‘One Man’s Paranoia.’ The idea for the Elected Presidency was first mooted by Lee Kuan Yew in the 1980s, where the People’s Action Party (PAP)’s hegemony in Parliament was first broken by the election of JB Jeyaretnam and Chiam See Tong in 1981 and 1984 respectively. Even though the PAP held all but 2 seats in Parliament House, the Government was still very wary of the potential that a Non-PAP Government may one day materialize. In order to prevent such a Government from emptying our coffers and “causing the nation to crawl on it’s bended knees”, the Elected Presidency was introduced as a safeguard against “bad governance” with powers such as the right to withhold assent to bills and blocking the Government from drawing from reserves vested in the office of the Elected Presidency.
I would submit that with the introduction of the Elected Presidency, the role of the President shifted from one that was largely ceremonial to one that was also custodial in nature. President Ong himself, despite being the Establishment’s preferred candidate, did keep the Government on its toes once he assumed office with a barrage of questions on the reserves, among other things. He acted as a effective check, to the surprise of both sides of the House, on the Legislative Branch. It must be noted, however, that the last three Presidential Terms were more ceremonial than custodial.
Many, including the Government, like to think of the Office of the Elected President as one of the two key-holders (the Government, of course, holding the other key) in the two-key safeguard against the raiding of Singapore’s reserves.
There is no doubt that President Ong held such a key. The question of whether President Wee exercised the powers of the Elected President turn on whether he too, like President Ong, held the key.
“As the first elected President, Teng Cheong had to work the new two-key system of safeguarding our reserves and key appointments in the public sector. We had no precedents to fall back on. When issues arose, we did not always hold the same views, as was to be expected because of our different responsibilities under the Constitution. But Teng Cheong applied himself diligently and worked with the Government to come up with the rules and procedures. His efforts helped to put the two-key system through its paces, and made the job of future Presidents that much easier.”
This excerpt from then Prime Minister Goh Chok Tong’s letter of condolence to President Ong’s son is of utmost significance because it not only addresses Ong Teng Cheong as the first Elected President (which is well-established) but it also argues that he was the first to exercise of an Elected President. In the letter, PM Goh speaks about how the late President “new two-key system.” In other words, the Prime Minister was of the opinion that the President Ong’s position was unprecedented.
Prima facie, both the former PM Goh and President Wee’s actions, or lack thereof, suggest that the Government’s argument does not hold water.
In the weeks to come, I hope that constitutional scholars, lawyers and opposition will demand accountability from the Government on why it chose President Wee as a reference point. If the Government’s argument reeks of political maneuvering, the bluff must be called. Disqualifying the rest of the playing field after the winner emerged with the slimmest of margins is an act that would undoubtedly raise skeptisism. This act of consolidating power by shifting goalpost under the pretense of minority representation is anything but unprecedented too (read: the formation of GRCs). Public Intellectuals like Professor Donald Low and Professor Cherian George have argued that if Dr Tan Cheng Bock and Mdm Halimah Yacob were to go head to head, contrary to popular opinion, the former would not be guaranteed a easy victory. That may be true but we have to remember that this is a Government that feels threatened even when it occupied all but 2 of the seats in Parliament in 1984. Compared to that, a margin of victory of less than 1% in the last election would, in their eyes, justify tinkering with the Constitution.
Presidential Candidate Dr Tan Cheng Bock did explore the possibility of taking up the issue in Court. Some legal academics have also raised the possibility of the Cabinet advising the President to refer such a challenge Constitutional Tribunal under Article 100 of the Constitution. It remains to be seen whether the issue would be raised in a Court of Law. In the Court of Public Opinion, the office of the Elected Presidency is fast becoming a stage for marionettes. The Office of the Elected Presidency, a product of one man’s paranoia, now runs the risk of being irreversibly tainted by that same paranoia from his son.