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Decision by Justice Quentin Loh to consider AGC’s advice irrelevant, perplexing and worrying

On Friday, the High Court dismissed Dr Tan Cheng Bock’s constitutional challenge to determine whether the legislation that specified President Wee Kim Wee’s term of office as the first term to be counted was unconstitutional.

TOC has yet obtained a copy of the written judgement but according to the report by Straits Times, the rationale presented by the presiding judge sounds questionable at least to a layman in legal affairs.

According to ST, Deputy Attorney-General Hri Kumar Nair argued in court that the aim of reserved elections is to ensure multiracial representation in the office. He highlighted that it is a fact that there has not been a Malay president for a long time, which is troubling regardless of how presidents are elected.

Justice Quentin Loh, in agreement with Mr Hri Kumar, was quoted saying: "The recent constitutional amendments reflect a re-emphasis on the president's unifying role and the conviction that, in order for the president to fulfil that role, that office must reflect the multiracial character of our country." and said, it made no difference that Mr Wee Kim Wee - the first president vested with powers of the elected presidency - was elected by Parliament and not the people.

The article by ST further notes that Justice Loh had based his decision on what has been discussed in the Parliamentary debates on the issue, as the Parliament was aware of the Government's intention when it passed the laws.

DAG Nair said this meant Parliament was aware of the intention to count from Mr Wee's term when it passed the Presidential Elections (Amendment) Act 2017, which spells out the nuts and bolts of the reserved elections.

Dr Tan's representing lawyer, Mr Rajah contended that the Attorney-General's advice was wrong, and asked the court not to put too much weight on Parliament's intention.

Justice Loh said: "I do not know what the Attorney-General's advice was. But more importantly, the reason I have placed weight on the relevant statements is because they reflect Parliament's intention."

According to ST, the judge said that ultimately, Parliament had decided on the reserved elections with the knowledge that it allows Mr Wee's term to be counted. "Whether this was based on the Attorney-General's advice or otherwise is not relevant, he added."

As TOC has not seen the full 65-pages written judgement, we can't comment much on the overall decision of the ruling but would like to address the quote of Justice Loh's comment on Parliament's intention.

Citizens who have followed the debates will find it funny that the honourable judge would comment in such a manner.

Government refuses to publish advice from AGC

First and foremost, the Parliament decided upon the term in which the reserved election is to be counted from, solely based on what Prime Minister Lee Hsien Loong said in Parliament on 8 November 2016. He stood and said, "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."

In that debate where PM Lee spoke in, Worker's Party MP, Ms Sylvia Lim asked the Government whether if it is prepared to publish that advice from the AGC and whether will the Government come back to the Parliament to present what the Attorney-General's Chambers has advised for the Members of Parliament to debate on it.

In response, Deputy Prime Minister Teo Chee Hean 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.

The conversation between two continues as below:

Ms Sylvia Lim: 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 Chee Hean: Mdm Speaker, 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.

Ms Sylvia Lim: 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 Chee Hean: 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.

At this point, the speaker ends the dialogue between the two and calls for a vote. All Workers' Party voted for no while PAP MPs all voted "Yes".

Moving on to 6 Feb this year, Minister of Prime Minister Office, Chan Chun Sing replied in response to Ms Lim's question on the AGC advice:

Ms Sylvia Lim made two points. First, she asked, as she did last November during the debate on the changes to the Constitution, about the advice from the Attorney-General's Chambers to the Government on the counting of terms. At the same debate, Deputy Prime Minister Teo had confirmed to Ms Lim that the advice referred to by the Prime Minister in his speech was, indeed, the Attorney-General's Chambers' advice, and invited Ms Lim to challenge it judicially if she thought that it was not correct advice. Ms Lim then suggested that there might be something controversial or confidential that the Government was unwilling to publish.

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 spoke about being bewildered. I have also gone round to solicit feedback from the public. I am rather bewildered that Ms Lim is bewildered, because I did not receive the sentiments that Ms Lim said she got. The feedback that I have received has not been like that. And if I may just make two points.

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.

As one can see from the above dialogues, the advice that PM Lee had cited from AGC had not been presented in both Parliament debate over the amendments to the Presidential Election. The MPs in Parliament had to simply take PM Lee's word for it. In both instances, DPM Teo and Minister Chan challenged Ms Lim who asked for the AGC advice to be published, to go to court if she is not convinced.

Which in the case of Dr Tan's constitutional challenge, it can be considered as going to court on behalf of Ms Lim. Then shouldn't the court then refer to the Parliament debate as part of the Parliament's intention to have the court determine the merits of the AGC advice? Is that not the advice given by DPM Teo and Minister Chan in their closing statements? Why did Justice Loh determine that it is irrelevant whether or not AGC advice was wrong?

Party Whip of PAP was not lifted

Putting aside the unwillingness by the Government to publish AGC's advice to Prime Minister on how to count the terms, let us not forget that the Party Whip was not lifted for both the Parliamentary Debate over the amendments to the Presidential Election.

This mean that even if Members of Parliament have doubts over the AGC advice, they technically cannot vote against the proposed bill.

Therefore, it is may be flawed for Justice Loh to state that it is the Parliament's intention to count from Mr Wee's term for the reserved election when there does not seem much of a debate nor choice. Which then brings to another question of whether is it right to determine the constitutionality of a decision just simply based on the votes of MPs who represent a political party.

Say if one day that the PAP decides to go crazy and raises a bill that amends the constitution so that the rights of citizens be revoked, and the bill is passed in Parliament because of PAP's overwhelming majority seats. Would the judge then rule in the same way that the Parliament's intent is so, therefore the amendment is constitutional? Technically it does seems to be so, but in the name of natural justice, is that right?

Amendments to the Elected Presidency should be put to National Referendum

Mr Chiam See Tong asked former Prime Minister, Mr Goh Chok Tong on the 1988 TV Debate on the Elected President Proposal, if the government will hold National Referendum to seek permission from the people to issue any more executive powers to the Elected President. Both ESM Goh and PM Lee declined to give a straight answer as to whether would they call for a national referendum to the Elected Presidency.

As we can see from the Parliamentary debate, the decisions to make amendments based on non-transparent advice and votes along Party lines do not bode well for how Singapore's democracy. Especially when it is to decide how an individual is to be elected to represent Singapore as a country and perform a role as an unifying figure.

For amendments to such important matters of national interest, the decision ought to be put to a national referendum so that certain party interest will not be placed above the country.

Read: Amendments to the Elected Presidency, how PAP stop at nothing to avoid checks and balance on itself