Did Minister K Shanmugam deflect responsibility for PM Lee, DPM Teo and Minister Chan?

Ms Sylvia Lim, Member of Parliament for Aljunied GRC from Workers’ Party had filed an Adjournment Motion, “Counting From President Wee Kim Wee Or President Ong Teng Cheong For Reserved Presidential Election – Policy Decision Or Legal Question?” on 3 October 2017 (Tuesday), seeking an explanation from the government on whether did the PM, DPM Teo Chee Hean and Minister Chan Chun Sing make misleading statements to the Members of Parliament that the question of which President to count from was a legal question.

She also asked whether did the government all along make a policy decision itself to count from President Wee Kim Wee and merely use the AGC’s advice as a cover to avoid full Parliamentary debate on why the count was not starting from President Ong Teng Cheong.

Instead of the three whomMs Lim had addressed in her speech, Mr K Shanmugam took the podium on their behalf. With the three sitting just at his back, he addressed Ms Lim’s questions.

Here are the summarised points of Minister of Law and Home Affairs, K Shanmugam ‘s speech in Parliament against Ms Sylvia Lim’s allegations in regards to the counting of the Elected Presidents for the purpose of the Reserved Presidential Election:

  • Government has been clear and upfront on policy objective of reserved election to achieve meritocracy and multiculturalism.
  • Clear when it comes to counting, it has been a policy issue.
  • Quoted ownself saying at a dialog session (not parliament session) that the government can decide.
  • Court of Appeal has confirmed that Parliament to decide on the counting of the Presidents preceding the 2017 Election.
  • PM’s speech during the constitutional amendments made clear that Parliament intends to give itself the discretion to specific the last term of President Wee as to whether the election is to be reserved.
  • After quoting PM Lee’s speech in Nov 2016, says he does not see how the PM’s speech was ambiguous.
  • Points that only one person whom Court of Appeal/High Court has identified as misleading the Parliament.
  • Mr Wee exercised the powers of an Elected President and Parliament decided to count from Mr Wee.- PM was entirely right to say that the Parliament will start counting from Dr Wee and that he had taken advice from Attorney General (AG).
  • AGC advice was only to see if there was any legal impediments.
  • Government generally do not publish legal advice that it gets.
  • says “If laws have to be changed to reach policy objectives, we do it.”
  • Nobody suggesting that Dr Wee was elected, what was suggested is that he was the first to exercise the powers of an Elected President.
  • Both Court of Appeal and AGC itself have said that AG advice is irrelevant
  • says PM had explained the matter in Parliament, We decide but we took AGC’s advice and that DPM Teo and Minister Chan took the same position.
  • On the matter of the influence of AG’s advice, asked if anyone said, “We are going to decide this way because this is the way that AGC has told us that we have to decide.”

A point to note here is that at the beginning and start of the speech by Mr K Shanmugam, he said that he had all along said that it was a policy decision by the Parliament. But he seems to not realise the fallacy of his argument as Ms Lim is not referring to him as the ones misrepresenting the matter to Parliament but PM Lee, DPM Teo and Minister Chan. Using him as a shield for the trio, the Minister wilfully suggest that Ms Lim might have accused him of lying.

Furthermore, the Minister had made the comments at a dialog session and not at the Parliament itself. If he was so certain that the counting of the Presidents for Reserved Election is a policy decision, then why didn’t he stand to clarify the point when Ms Lim raised questions over the debate on the matter?

For the purpose of determining whether the Law Minister addressed the concerns of Ms Lim, one will have to look back at what PM, DPM Teo and Minister Chan said in their speeches at Parliament over months of debate on the counting of the Elected Presidency. If one were to read the transcripts of the debate, one can see how the three had been misleading and defensive in the matter of AG’s advice being presented to Parliament and what was the actual advice given.

If AG’s advice is merely a legal advice to see if the counting of Mr Wee is legal, then why was the decision to count Mr Wee as the first president for the purpose of Reserved Election not debated in parliament? One can read the transcripts below to see that all attempts to touch on the matter was dismissed with challenge to raise the matter to the Court. Which former Presidential candidate Dr Tan Cheng Bock did, and his application to touch on the matter was thrown out by the Court.

Other than the unanswered questions that the Law Minister had deflected from, one other question that bugs me the most. Why can’t the Prime Minister stand up and defend what he said in Parliament himself in Nov 2016? We all know late Lee Kuan Yew would have done that to clear his name.

PM Lee’s speech to the Parliament when he announced in Nov 2016 that the Presidential Election in 2017 will be a Reserved Election.

Secondly, the symbolic role of the President is just as important as his custodial role. As a symbol of the nation, the race of the candidate is relevant. So, while individually, a good candidate of any race will be satisfactory, collectively, over a period of time, we need that mix of Presidents of different races, and the election mechanism must be designed to produce such a mix over time. That is what the hiatus-triggered model delivers.

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.

Therefore, by the operation of the hiatus-triggered model, the next election, due next year, will be a reserved election for Malay candidates. That means if a Malay candidate steps up to run, or more than one Malay candidate steps up to run, who is qualified, Singapore will have a Malay President again. As Minister Yaacob Ibrahim observed yesterday, this would be our first Malay President after more than 46 years, since our first president Encik Yusof Ishak. I look forward to this. [Applause]

Mdm Speaker, these are practical arrangements we must make, in order to make our multi-racial system work. We recognise where we are and we will work to strengthen our multi-racial society. Our ideal is to be race-blind. We “pledge ourselves as one united people, regardless of race, language or religion”, and we must continue striving towards this goal. As we get closer to this ideal, and minority candidates are regularly elected President in open elections, we will need the hiatus-triggered reserved elections less and less.

The debate between DPM Teo and Ms Lim when asked about the exact advice given by AG to PM Lee in Nov 2016,”

Ms Lim: “…Secondly, Madam, regarding the announcement yesterday by the Prime Minister that the next Presidential election is going to be reserved for Malay candidates. I have received, of course, feedback also from residents on this point, and there was an expression of surprise. And 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?

DPM Teo : Ms Sylvia Lim is correct in that on the entrenchment provisions, we had made some changes to the way the entrenchment provisions operate. That is correct. But it is still true that the CPA has no veto. So, the CPA cannot veto the President and cannot veto the Government. So, that is still true with regard to the entrenchment provisions.

But with regard to the safeguards on the reserves and the safeguards on appointments, there is no change in the powers.

I explained extensively in my speech, although it was rather late in the speech, about an hour plus into the speech, the entrenchment provisions. I provided the charts as well to explain that. I am glad that Ms Lim looked at it carefully. That is indeed so. And the purpose of doing so, as I explained, is to have the correct balance between rigidity and adaptability of our Constitutional system.

Ms Lim and the Workers’ Party have expressed from time to time serious concerns about gridlock. And in fact, if you have serious concerns about gridlock, then you should welcome and support these changes.

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 : 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?

DPM Teo: 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 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.

DPM Teo: 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.

Minister in Prime Minister Office, Chan Chun Sing replied Ms Lim’s question on the AG advice in Feb 2017:

“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.”

In both debates, Ms Lim was disallowed by former-Speaker and current President Halimah Yacob to raise further questions by summary ending the debate.