31 March 2017

Tough Questions with Tan Cheng Bock

Image by Shawn Byron Danker
Copyright 2017 by Laevateinn Strategic Enterprises
On the morning of 31 March 2017, Dr Tan Cheng Bock held a press conference on the upcoming presidential election. During this conference, the good doctor read out the text of his media release (which is also helpfully reproduced on facebook and streamed by The Online Citizen).

As usual, we at Illusio will hold your hand and help you read between the lines.
"I call this press conference to ask the government whether it is correct to make the 2017 Presidential Election a reserved election"

Public interest in the reform of the elected presidency was never high. The inevitability and finality of the proposed changes cultivated an air of resignation in the public mind. Because it was a done deal, the public at large shunned reading about the proceedings of Constitutional Commission and the parliamentary discussions on the Constitution Amendment Bill 2016.

Dr Tan's question is a gambit to reverse the sense of inevitability and finality towards the changes to the Constitution, to reignite public interest in the issue. In the Q&A session, it was put to Dr Tan that his objection and question should have been made known during the parliamentary debate, if not sooner when the White Paper was published. In spite of his reply, a former lawmaker and cabinet member of Dr Tan's stature should know that the best time for public comment would be exactly during these time frames.

"The purpose for reserved election was explained in the Constitutional Commission’s report... Let’s look at what the Constitutional Commission Report originally said..."

But isn't this a little too late? Hasn't the bill passed its second reading and voted into law? Dr Tan suggests that the the constitutional changes to the presidency can be challenged on the basis that it does not match the intentions of the Constitutional Commission.

"I question whether AGC’s method of counting is actually in line with the spirit and purpose put forward by the Constitutional Commission for having a reserved election"

We at Illusio note it is true that legislation and constitutional changes may be challenged or clarified on the basis that it does not reflect the intentions of parliament's lawmakers. This is why constitutional lawyers and scholars will pore over the Hansard (or in this case, the Singapore Parliamentary Report) to determine that legislation matches the intent and purpose of MPs.

We put it to you, dear reader, that a former lawmaker and cabinet member of Dr Tan's stature would not be unfamiliar with the concept of parliamentary sovereignty; a commission or panel may be convened, reports written, recommendations issued, but it is ultimately the right of parliament to make the law by accepting, rejecting, adapting, ignoring, or even reformulating whatever is discussed or recommended hitherto. From the legal viewpoint, the primacy of any piece of legislation lies in the intention of parliament, not the intention of any commission or panel submitting a preliminary report.

If as Dr Tan puts it, the commission proposes that the frame for reserved elections be calculated on the basis of properly elected presidents, and parliament passes the constitutional changes for the frame to be calculated on the basis of office-holders exercising the powers of elected presidents, the Westminster system dictates that parliament has the right of it.

"The Government White Paper published on 15 Sept 2016 accepted this position"

Again, we put it to you, dear reader, that a former lawmaker and cabinet member of Dr Tan's stature would not be unfamiliar with the process of lawmaking. A White Paper is not a Bill. It is a policy document that spells out several proposals that need to be worked out, discussed, and consulted over by the public and eventually in parliament when a Bill is presented. We daresay Dr Tan is not suggesting that any position in a White Paper is unconditional and not open to further change.

A Bill and a Constitution

What happened between the Commission, the White Paper, and the Bill?

One only needs to look at the wording of the Commission's recommendations to see how legislatively, they are unworkable. According to Dr Tan's press release:
"if free and unregulated elections produce Presidents from a varied distribution of ethnicities, the requirement of a reserved election will never be triggered." "An election is reserved for racial group A because no candidate from racial group A has been ELECTED for 5 consecutive terms" [emphases Dr Tan]
Let's not talk about whether, in the minds of the Constitutional Commission, Mr Wee Kim Wee would be counted in their frame of a president produced by free and unregulated elections. Applying strictly the criteria of being ELECTED, the Commission's recommendation, if written unchanged into the Bill and passed into law, would actually cause the presidency of the late SR Nathan to be discounted in any counting of terms for a reserved election because he had a walkover.

Ironically, a strict interpretation of the Commission's words would mean Singapore would need 12 more years of a Chinese president before a reserved election is called for both Malay and Indian candidates. And the election after that will be reserved for the community that didn't produce a president!

This is why the Constitution Amendment Bill (2016) states it as such:
An election for the office of the President is reserved for a community if no person belonging to that community has held the office of President for any of the 5 most recent terms of office of the President.
Note that the Bill states "office of President", not "office of Elected President". So there is an ambiguity: do we count just Presidents, or only Elected Presidents? Presumably the AGC was called in to clarify. Parliament debates were about the specific office of the elected presidency, but also about the principle of having the highest office in the land be open to all racial communities.

Was the AGC's answer to the prime minister satisfactory and competent? We at Illusio would've advised the PM that in light of parliament affirming the principle of having the highest office in the land open to all racial communities, to just count backwards the terms of the heads of state of Singapore, whether they were elected, had walkovers, were presidents, elected presidents, or were presidents exercising powers of elected presidents.

The AGC's answer to count from the second term of Mr Wee Kim Wee inspires public outrage; Dr Tan may be suggesting that it should inspire legal outrage. De facto, Mr Wee performed the duties of an elected president. De jure, he never was an elected president. This explains why in official records, Mr Wee is described as a president who exercised, performed, and discharged all functions of an EP as part of the transition, after the constitutional changes came into effect.

Dr Tan's dredging of the AGC's miscasting of Wee Kim Wee and the robbery of Ong Teng Cheong as first elected president gambles on the status of Mr Ong an anti-PAP symbol in the eyes of some Singaporeans. The jury is out on whether this is a popularly held belief outside the echo chamber of the online opposition.

Poor presidents Ong and Wee!
But why now, Dr Tan?

At the time of the conference, it appears that the Constitutional Amendment Bill had not commenced into the constitution despite being passed in parliament last year. What this means, according to Prof Kevin YL Tan, is that
An Act comes into force only at the date of its publication in the Gazette. The publication date of a law and its commencement date are two different things. An Act may be published in the Gazette but may not be in force because of a clause providing for the date of commencement to be decided by the Minister...
As it turns out, the Act that switches on the changes to the elected presidency in the constitution was published only on the morning of the press conference, as a subsidiary legislation issued by the president.

Did Dr Tan know of the commencement date for the Constitutional Amendment Bill when he announced his press conference?
Did the government know of Dr Tan's intentions to hold a press conference when it decided on the date of commencement of the Bill?

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