Category Archives: Singapore

Eugene K B Tan – Singapore’s First Reserved Presidential Election: More Haste, Less Speed, and A Missed Opportunity?

This is guest post by Eugene K B Tan, Associate Professor of Law at the Singapore Management University School of Law. He served as an unelected lawmaker between 2012 and 2014 in Singapore’s 12th Parliament.

After much hype and anticipation that preceded it, Singapore’s sixth presidential election in September 2017 quickly reached an anti-climatic end when the Presidential Elections Committee in pre-qualifying three presidential hopefuls determined that only one person, Madam Halimah Yacob, was eligible to contest.

Madam Halimah Yacob, who was Speaker of Singapore’s Parliament between 2013 and August 2017, made history by becoming Singapore’s first-ever woman President. She is also Singapore’s first ethnic Malay President in 47 years since Yusof Ishak (1965-1970), and will hold office for a six-year term until 13 September 2023.

The 2017 election was the third time (after 1999 and 2005) that the presidential election was uncontested since 1993. Earlier, in 1991, the presidency was converted from a ceremonial appointment to a popularly elected one.

This year’s presidential election was unique. Prior to the election, the government had embarked on the most significant re-engineering to Singapore’s constitutional architecture since the introduction of the Elected Presidency (EP) in 1991. In the 1991 constitutional changes, the head of state became a popularly elected office.

The EP institution was born out of the fears of a popularly elected ‘rogue government’ that could send Singapore down the road to ruin and perdition through populist measures that are financially unsustainable and the corrupt appointments of cronies to key leadership positions. However, the EP does not, in any way, detract from the fact that executive power and responsibility resides with the Cabinet. Singapore remains fundamentally a parliamentary system of government.

Under the Singapore Constitution, the EP is not a separate, countervailing power to the elected government. The EP’s role has been likened to a ‘second key,’ a watchdog, and a custodian. Through his custodial powers, the EP provides an additional layer of checks and balances, an “intra-branch” check on the Cabinet, which did not exist prior to 1991, in specifically defined critical areas including the drawdown of past national reserves, key appointments in the Public Service, corruption investigations, preventive detentions without trial under the Internal Security Act, and restraining orders under the Maintenance of Religious Harmony Act.

To enable the president to stand up to the popularly elected government, the constitutional designers in 1991 decided that the head of state should possess the requisite authority and legitimacy through a popular mandate obtained in a presidential election.

Where the EP institution did not fare as well as its predecessor was for the office to be rotated among the different races. Prior to 1991, Singapore had consciously sought to rotate the presidency among the different races. For example, the successors to Yusof Ishak (Malay) were Benjamin Sheares (Eurasian), Devan Nair (Indian), and Wee Kim Wee (Chinese). With the introduction of elections for the presidency, no Malay had been elected in the four elections between 1993 and 2017.

The constitutional review process on the EP began in February 2016 with Prime Minister Lee Hsien Loong appointing a high-powered, nine-member Constitutional Commission, headed by Chief Justice Sundaresh Menon, to work on three tightly scripted terms of reference. They sought to update the eligibility requirements for presidential hopefuls, as well as the framework governing the exercise of the President’s custodial powers, including whether the views of the Council of Presidential Advisors can be given more weight – and if so, how. The Commission was also asked to consider including a mechanism to ensure minorities have a chance to be elected as President.

The Commission, only the second in independent Singapore’s 52-year history, invited submissions from the public on specific aspects of the EP. It received more than 100 written submissions. Of these, 20 contributors were invited to expand on their submissions at four public hearings in April and May 2016. The Commission completed its work in August 2016 and its report was publicly released in early September 2016.

The Government followed up with a White Paper on 15 September 2016 outlining its agreement with many of the Commission’s recommendations but also noting some of the differences in implementation and ideas.

A critical proposal it made was to have “reserved elections”, to pre-emptively manage the potential issue of race marginalisation and the need to have a person from every major race for the head of state office. The Commission recommended a “hiatus-triggered” mechanism in which a reserved election is activated only after there has not been a president from a major racial community for five continual terms, or 30 years. Clearly, the Commission viewed the reserved election as an inter-generational safeguard for minority representation.

Besides providing for reserved elections, the amendments to the Constitution made in November 2016 also raised eligibility thresholds for candidates from the private sector to qualify to run for the presidency. Such candidates must be the most senior executive with executive control and being accountable for the entity they run. Such an entity must be at least S$500 million in shareholders’ equity, and the candidates must have a track record of running these entities well.

Second, the Council of Presidential Advisers (CPA) was strengthened. The unelected CPA advises the President on matters pertaining to the exercise of the custodial powers, such as whether the government’s budget would draw on Singapore’s fiscal reserves not accumulated by the government of the day, and key appointments in the Public Service. This constitutional duty to consult the CPA applies to these decisions.

The President can exercise his discretion to veto the budget but if he does so against the advice of the CPA, then Parliament can vote to overrule the President. The November 2016 constitutional amendment increased the number of CPA members from six to eight.

In making consequential legislative amendments in February 2017, the government also announced that the 2017 presidential election would be a reserved election for the Malay community as the hiatus-triggered model came into play. (Whether the 2017 election ought to be a reserved election was the subject of an unsuccessful constitutional challenge.)

Historical Significance Overshadowed

Unfortunately, the historic significance of Madam Halimah’s election was overshadowed by the unhappiness among large segments of Singaporeans.  The public unhappiness cohered around two factors: (1) That the presidential election was uncontested, and (2) the apparent affirmative action provided for in a reserved election runs contrary to meritocracy, a key tenet of the Singaporean society which is almost sacrosanct for public office.

On the unhappiness over the uncontested election, the perception was that the enhanced eligibility criteria were unfair and sought to restrict the pool of eligible candidates to establishment figures and so strengthening the ability of the powers that be in ensuring that their preferred candidate would have a significant electoral advantage.

As for the apparent unhappiness over reserved election, this was not because Singaporeans did not appreciate that the presidency symbolised and embodied the nation itself and was a symbol of national unity. There is no doubt that having a minority President, elected by popular mandate, is a powerful statement of a thriving multiracialism in a polyglot society, where the ethnic Chinese comprise 75 per cent of the citizen population and the ethnic Malay is constitutionally recognised as the indigenous people and accorded a special position within the constitutionally setup.

Rather, Singaporeans were not persuaded that they could not see past a candidate’s race in deciding who to cast their ballot for. Again, the reserved election was seen as excluding candidates who might otherwise be eligible if it were an open election.

To be sure, the reserved election proposal was never popular right from the outset. Prime Minister Lee Hsien Loong noted that the reserved election “would be unpopular and cost us votes”.[1] For the government, their premise was that Singapore has “not arrived at an ideal state of accepting people of a different race” even where progress have been made “but it is a work in progress”. He added that Singaporeans “should not be shy to acknowledge that in Singapore, the majority is making a special effort to ensure that minorities enjoy full and equal treatment”. The reserved election, in ensuring that minorities regularly have a chance to be the President, would also strengthen multiracialism: “[I]t is one important symbol of what Singapore stands for, and a declaration of what we aspires to be. It is a reminder to every citizen, especially the Chinese majority race, that there is a role for every community in Singapore”.

However, there was the concern that the reserved election was an unfair indictment of nation-building efforts and the strength of the Singaporean-Singapore identity. Furthermore, there was also concern that the reserved election could transmogrify into a vehicle for affirmative action. A race-based election can give rise to the belief that a racial community has a legal right for one of its own to be elected president. Will there be subsequent expectations that other public offices be rotated among the races? If all races must have a chance to be elected head of state, would it also be setting a precedent for the other important public office such as the Prime Minister?

The concern with the erosion of the centrality of meritocracy was palpable. The Commission emphasised that candidates in a reserved election will have to meet the stringent eligibility criteria, similar to an open election. However, as a reserved election is not open to hopefuls from other races, a legitimate argument can be made that the meritocratic principle is not exercised in its full measure.

Furthermore, the reserved election approach also presupposes that only a minority race President can be a symbol of Singapore’s much-vaunted multiracialism. Indeed, it is not race or the colour of their skin that automatically endowed previous presidents as symbols of Singapore’s multiracialism. Rather, it was their practice and promotion of multiracialism that infused into the institution of the presidency the spirit and soul of multiracialism.

A reserved election might just reinforce the alleged tendency of Singaporeans to vote along racial lines. Voters might see that there is no necessity or urgency to vote for an electable minority candidate since the system will provide for a minority president in regular intervals if one is not elected.

Put simply, Singaporeans remained sceptical that they will compromise their own best interests and elect someone who is not deserving simply because they are of the same race. On the other hand, the government was of the view that multiracialism in Singapore needed the nudge of reserved election.

In essence, both sides of the debate saw the value and the power of electoral integration and how it could aid in the nation-building endeavour. The apparent chasm pivoted on whether integration should be allowed to develop organically or whether there should be deliberate effort at constitutional engineering. It probably boiled down to how the presidency can be safeguarded as a true symbol of Singapore’s national unity and to keep her multiracialism sustainable.

The above discussion does not at all deny that race, religion, and language remain fault-lines in Singaporean society. Neither do the above arguments under-estimate that these markers of ethnicity can induce and arouse primordial loyalties. Nevertheless, no amount of constitutional engineering can remove a racial or even a racist mindset and disposition in electoral behaviour.

Instead, the key questions that should arise from yet another uncontested presidential election is whether the reserved election mechanism would nudge and provide “incentives” for candidates and the electorate to think of how their electoral behaviour and their votes can entrench multiracialism and for their self-interest.

Singapore’s constant efforts at constitutional engineering suggest that in institutional design or re-design, process and procedures are not mere contingent tools or instruments by which the invaluable end of a more robust system of governance is realised. The process and procedures must be regarded and treated as necessary components of any system of governance.

How Singapore went about effecting the latest set of changes to selected aspects of the elected Presidency matters as much as the end result itself. Lessons will have to be learned as to why the ostensibly good intentions that formed the basis of the constitutional changes were not seen in similar light. It remains early days yet to determine whether values such as multiracialism, meritocracy, integrity, and the democratic mandate will be nurtured in the new constitutional framework.

The less than enthusiastic response to the no-contest outcome in September’s reserved presidential election suggest that ostensibly good intentions alone are inadequate as Singapore strives to create a system of governance that is robust, relevant, and resilient for the good and betterment of Singaporeans’ common destiny. Perhaps the process of engagement was inadequate.

In a one-party dominant system where the ruling People’s Action Party has governed uninterrupted since 1959, such significant constitutional changes are often perceived to be disguised attempts to maintain the political status quo and buttress the political hegemony of the regime. This is more so when the dominant impression was that of the government proceeding with undue haste especially when the system is not regarded to be broken. The process is as important as the final outcome, which in Singapore’s case is often seen as a foregone conclusion. This is a pity and could breed cynicism since the elected presidency, as the apex office in the city-state of 3.44 million citizens, can be a valuable safeguard in a system of government that has long taken pride in and become known for good governance, multiracialism, and meritocracy.

Notes

[1]  Quotes in this paragraph are taken from Prime Minister Lee Hsien Loong’s remarks at the People’s Association Kopi Talk at Ci Yuan Community Club, 23 September 2017. The title of his remarks was, “Race, Multiracialism and Singapore’s Place in the World”.

Jack Tsen-Ta Lee – Singapore’s Elected President: An Office That Is Still Evolving

This is a guest post by Jack Tsen-Ta Lee in the School of Law, Singapore Management University

Changes made to Singapore’s Constitution a quarter of a century ago brought it further away from the traditional Westminster model which the nation inherited from the United Kingdom, the former colonial power. These amendments created a new type of President – not a full executive head of state, but what might be described as a ‘figurehead-plus’. Now, the Government is proposing to tweak the system further.

Before 1991, the office of the President was a purely ceremonial one, and the officeholder was elected by the Parliament. This meant the President was effectively chosen by the People’s Action Party (PAP), as it has been the ruling political party controlling a majority of the seats in Parliament since 1959.

In fact, for 16 years from 1965 when Singapore became an independent republic, the PAP held every single parliamentary seat. The situation only shifted in 1981, when J B Jeyaretnam of the Workers’ Party was returned to Parliament in a by-election. In the following general elections in 1984 and 1988 Jeyaretnam retained his seat, and was joined in the opposition by Chiam See Tong of the Singapore Democratic Party.

In this political climate, the PAP began to introduce constitutional changes to allow more alternative voices to be heard in the legislature. In 1984 it became possible for a certain number of opposition candidates in a general election who were the ‘best losers’ to be deemed elected as Non-constituency Members of Parliament (NCMPs). At present, the number of NCMPs thus elected is nine less the number of opposition candidates successfully contesting the polls in their constituencies. In 1990 the position of Nominated Member of Parliament (NMP) was created. Up to nine NMPs selected from fields such as culture, industry, community service and the labour movement can be appointed by the President upon nominations made by a special select committee of Parliament.

While NCMPs and NMPs are free to participate in parliamentary debates, they cannot vote on certain important issues, including constitutional amendments, financial matters, and votes of no confidence in the Government. Moreover, they are powerless to block the passage of bills they are allowed to vote on. PAP MPs presently outnumber them as the party holds 83 of the 101 seats in Parliament.

Some critics have denounced the NCMP and NMP schemes as a ploy by the PAP Government to dissuade voters from electing opposition MPs, since the schemes ensure a token presence of potentially non-PAP views in the legislature. Nonetheless, NCMP seats have been a platform for opposition politicians to maintain visibility in public life, which may have helped them to win in later general elections. NMPs have also raised a number of important issues for discussion in Parliament.

‘Second key’

These changes to the constitutional order culminated in the Elected Presidency scheme. The PAP described it as a safeguard against a “freak election result” – one in which the PAP no longer forms the Government. In that scenario, the Elected President holds a ‘second key’ over certain significant matters, the ‘first key’ being wielded by the Government. Transforming the office into one directly elected by the people would give the President moral authority to disapprove of government decisions, if need be.

No longer a purely ceremonial head of state, the President has discretionary power to 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. In addition, the President may authorize the Corrupt Practices Investigation Bureau to conduct investigations in the face of a contrary command by the Prime Minister.

The President also holds a casting vote over whether someone should be detained without trial under the Internal Security Act, or should have a restraining order issued against him or her under the Maintenance of Religious Harmony Act. This vote may only be exercised if there is a difference of opinion between the Minister for Home Affairs who wishes to proceed against the person, and the advisory body appointed to make a recommendation to the President on the matter.

To a degree, some of the President’s discretionary powers only have a signalling effect, serving to highlight to the electorate the Government’s actions. If the President decides to veto such action against the recommendation of the Council of Presidential Advisers, the Constitution authorizes the Government to override the veto with a parliamentary resolution supported by at least two-thirds of all the elected MPs. This override mechanism applies to the President’s fiscal powers and powers over public service appointments and dismissals. Given the PAP’s dominance in Parliament, it is a foregone conclusion that such a resolution would pass. In any case, since the Elected Presidency scheme came into being, no holder of the office has yet exercised his veto.

Further changes

In January this year, Prime Minister Lee Hsien Loong announced in Parliament that he would be appointing a constitutional commission chaired by Chief Justice Sundaresh Menon to consider further changes to the Elected Presidency scheme. In particular, he said the qualifying criteria to be President might need to be more stringent, and that some mechanism might be required to ensure that members of minority communities are elected as President from time to time.

Among the qualifications for being elected President set out in the Constitution is the requirement that a person must have held, for not less than three years, one of several high offices, including that of cabinet minister, Chief Justice, Speaker of Parliament, Attorney-General, or Permanent Secretary of a government ministry. Alternatively, Article 19(2)(g) states that a person is qualified if he or she has held office for the requisite period:

(iii) as chairman of the board of directors or chief executive officer of a company incorporated or registered under the Companies Act (Cap. 50) with a paid-up capital of at least $100 million or its equivalent in foreign currency; or

(iv) in any other similar or comparable position of seniority and responsibility in any other organisation or department of equivalent size or complexity in the public or private sector which, in the opinion of the Presidential Elections Committee, has given him such experience and ability in administering and managing financial affairs as to enable him to carry out effectively the functions and duties of the office of President.

The Prime Minister noted the S$100 million sum was to ensure that Presidents are “people with high senior management competence and experience, as they have to assess and decide on financial proposals involving billions of dollars”, and are able to hold a demanding appointment. However, “over 25 years, our economy has grown, government spending and reserves have increased, and the size and complexity of the organisations subject to the second key of the President have increased many fold”. Thus, he suggested the figure might need upwards adjustment.

The Prime Minister added:

The President is the Head of State, he represents all Singaporeans in our multi-racial society. I think it is important that minorities have a chance to be elected President, and that this happens regularly. […] But in future, when Presidential Elections are more likely to be contested, even hotly contested, I believe it will become much harder for a minority President to get elected.

He therefore submitted there should be a procedure “to ensure that minorities can be periodically elected if we have not had a particular minority as President for some time”.

The Constitutional Commission, only the second to be convened since Singapore’s independence, issued a call for submissions on the matter and held four public hearings in April and May. I was one of those who made a submission and appeared before the Commission, and also attended a number of the hearings. Judging from the questions asked by Commission members, it appears that serious consideration is being given to pushing up the financial criterion, perhaps by several hundred million Singapore dollars; and to having occasional elections reserved for minority candidates if no President from a minority community has been President for a certain number of terms. Quite a few of those appearing before the Commission were asked to comment on the latter suggestion, originally made by Dr Mathew Mathews of the Institute of Policy Studies (IPS).

My own view is that the two main issues the Commission is focusing on pull in opposite directions. Increasing the financial threshold to be President reduces the potential pool of candidates, and might make it harder for minority candidates to qualify. Only senior executives who are Singapore citizens may stand for office, and many will probably not wish to do so anyway. Of the citizens willing to throw their hats into the ring, because almost 75% of Singapore residents are Chinese, only a low percentage are likely to be from the Malay, Indian and other minority communities.

While diversity in institutions of governance is vital, legislating some sort of reserved election might also imply that minority candidates cannot succeed on their own merits without a leg-up, a point made to the Commission by Dr Gillian Koh and Mr Tan Min-Wei, also from the IPS. Perhaps a ‘softly, softly’ approach is warranted, at least for a start. We could experiment with having an independent body reach out to business and professional associations, and other relevant organizations, and encourage minority candidates to participate in presidential elections.

The Constitutional Commission is expected to report in the latter half of the year, and if changes are recommended the Government may seek to implement them before the next presidential election due in 2017. It will be interesting to see how such changes affect the election. Regardless, it seems the office of the Elected President continues to evolve.