Counting from President Wee Kim Wee or President Ong Teng Cheong for Reserved Presidential Election – Policy Decision or Legal Question? – Speech by Sylvia Lim

(Delivered in Parliament on 3 October 2017)


President Halimah Yacob took her oath of office on 14 September 2017.  President Halimah is a popular figure who is well-respected in many circles.  She was also my former Member of Parliament, who worked hard to serve her constituents.  Yet, despite her personal attributes, the lightning circumstances under which this government installed her as the Head of State have left Singaporeans reeling in its wake.

In the immediate aftermath of announcing this year’s Presidential Election as reserved for Malay candidates, the media reports highlighted how the public embraced the move with open arms, welcoming a Malay President after a break of 46 years.  Yet, as the dust started to settle, it was clear that the public was very divided over this issue.  At public discussion forums such as the one organized by the Institute of Policy Studies on 8 September, law professors and retired politicians raised legal issues and shared adverse public opinions on the matter.  Social media exploded in critique and satire.

Indeed, in the past few days, it seems to me that the top government leaders have been going into overdrive, trying hard to convince Singaporeans that the Elected Presidency is an integral pillar of Singapore’s commitment to multiracialism.  The government now appears to be well-aware of the unhappiness on the ground caused by its manoeuvres to install President Halimah.

Sir, this motion does not seek to deal with the wider issues of the Presidency, nor multiracialism, which are worthy of much longer air time.  Neither is it my purpose to go into the legal arguments, some of which have been aired in our courts in July.

This motion focuses on the Parliamentary debates, and one aspect only of those debates.  What did the government tell Parliament was the basis for counting Reserved Presidential Elections under the hiatus-triggered model, and was what the government told Parliament accurate?  To cut to the chase – did the PM, DPM Teo Chee Hean and Minister Chan Chun Sing make misleading statements to the House that the question of which President to count from was a legal question?  Did the government all along make a policy decision itself to count from President Wee Kim Wee?  Did the government 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?

To answer this question, it is necessary to start with what happened in November during the debate on the Constitution Amendment Bill.

During that debate on 8th November, the Prime Minister told the House the following:

“…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.

“…Therefore, by the operation of the hiatus-triggered model, the next election, due next year (2017), will be a reserved election for Malay candidates.”

The clear impression given to Members was that the government’s decision to count from President Wee Kim Wee was based on the AGC’s advice.  That must have been why the PM sequenced the sentences as he did, that having taken the AGC’s advice, the government was counting the five terms from President Wee Kim Wee.  The PM did not say that the government intended to count from President Wee Kim Wee and the AGC had merely confirmed that it was acceptable to do so.

It seems that the media also had a similar impression.  In a Channel News Asia report on 8 November, the headline was phrased as follows:

“Next Presidential Election to be reserved for Malay Candidates.  PM Lee says the Government has taken the Attorney-General’s advice that the racial provisions in the review of the Elected Presidency will start counting from Dr Wee Kim Wee”.

The impression that it was the AGC who advised the government to count from President Wee was perpetuated the next day, 9th November, by DPM Teo Chee Hean.  During clarification time, I rose to expressly recall that the PM had said that the decision to count from Dr Wee Kim Wee was “based on the Attorney-General’s Chambers’ advice on how to count the terms” and asked whether the government was prepared to publish that advice.

DPM Teo did not reply immediately.  After a Cabinet huddle, DPM Teo eventually rose and responded thus:

“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.”

Let me repeat what he 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.”

Any reasonable person hearing those words would assume the following:

  1. That the AGC had advised the government how to count.
  2. That the AGC’s advice involved a question of law.  Why else would I be asked to challenge it judicially?

As the debate went on, I was asked whether I was suggesting that the PM had falsely told the House that such was the advice of the AGC.  I repeated that my interest was in asking for the AGC’s advice to be published.  DPM Teo then told the House that he would ask the PM to consider publishing the advice.

Three months later, on 6 February, this House held the Second Reading debate on the Presidential Elections Amendment Bill.  What struck me in preparing for the debate was that the Bill contained a new Schedule with a Table, stipulating that the count was to start from President Wee Kim Wee.  It dawned on me then, that the government had simply wanted Parliament to make new law, to stipulate that the count should start from President Wee Kim Wee.  It was completely a government decision!

When I put it to the government that counting from President Wee Kim Wee was “an arbitrary and deliberate decision to achieve a desired outcome”, Minister Chan Chun Sing rejected my assertion.  He told the House that the government had decided not to publish the AGC’s advice.  Minister Chan said:

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.”

We should note what happened here.  Instead of confirming that it was the government who made the decision to count from President Wee, Minister Chan explicitly said that the government was confident of the AGC’s advice, and proceeded on that basis to make the Constitutional changes.   He said he did not want to re-open the debate on the count from President Wee, even though Parliament was now asked, for the first time, to enact the Table stipulating the count from President Wee.  Here we were, debating a law that would practically re-write history, by deeming President Wee as the first elected president.  Yet, instead of the government using the opportunity to clarify the matter and any mis-impressions created, it chose, instead, to impute sinister intentions to me.

And that was how the Parliamentary debates on the Reserved Presidential Election ended.

With this background, we now turn to what happened next in the court proceedings brought by former Presidential Election candidate, Dr Tan Cheng Bock.  In High Court Originating Summons No. 495 of 2017, Dr Tan sought a declaration from the Court, that the amendment to the Presidential Elections Act in February to count from President Wee Kim Wee was unconstitutional.  In other words, his case was that Parliament had passed an unconstitutional law in February, when it legislated the Schedule to the Presidential Elections Act, with the Table to count the hiatus from President Wee.

Prior to commencing his case, Dr Tan had obtained the opinion of a prominent Queen’s Counsel in London, considered an expert on Westminster-model Constitutional Law.   The advice received was that Parliament’s amendment to the Presidential Elections Act to count Reserved Elections from President Wee Kim Wee was unconstitutional.  The basis for this opinion was that one had to read the Constitution in a purposive manner i.e. the Constitution should be interpreted in a way that furthers its purpose.  Since the purpose of the Constitutional amendment was to cure the problem of five Presidential Elections not turning out a candidate from a particular ethnic community, counting from President Wee did not make sense, since he was never elected.  This would mean that it was proper to count only from President Ong Teng Cheong or later.   If that were to be done, this year’s Presidential Election would still be open to candidates of all communities.

Although Dr Tan’s case has now been dismissed by the Court of Appeal, what is most telling is the stand taken by the AGC in the case.  Deputy AG Hri Kumar, former PAP MP, represented the government.  He made the following submissions to the Court.

Before the High Court on 29 June 2017, the Deputy AG said:

“The Prime Minister never said that the AG advised PM to start the count from President Wee.  What PM said is that the AG advised that what the Government was proposing to do was legitimate.”  (Official court transcript, page 13, lines 27 to 30).

He further submitted that the decision on which President to count from was a policy matter for the government and not a legal question.  He argued that, “the AG was in no position to tell the government where to start the count from.”

On 31 July, before the Court of Appeal of 5 judges, the Deputy AG repeated his position even more vividly.

He submitted that the AGC’s advice was “IRRELEVANT”.  He also tried to explain away the PM’s speech on taking the AGC’s advice.   He said:

“One should not look at speeches like statutory instruments.  The PM had made it clear from his speech that President Wee was not a popularly elected President, but a President who exercised the powers of an Elected President.  Then he says, fifth term of Elected President.  A convenient term used in his speech.  He wasn’t defining presidency in this context as Elected Presidency.”

I was in Court when he made that submission, which to me was astonishing.  Was the Deputy AG saying that we should not take the PM’s speech literally but loosely?  Not place too much weight on the terms the PM used in making a keynote speech to Parliament to amend the Constitution?

Indeed, the Deputy AG’s submission that the PM would use terms “for convenience” drew some skepticism from one of the Judges, who remarked from the Bench that the PM was speaking in a Parliamentary debate and would not refer to the Elected President “for ease of convenience”.

The government’s reference to the AGC’s advice has confused MPs and also the Courts.  The Ministers kept consistently referring to the AGC’s advice as the basis for the legislative changes.  Yet the Deputy AG says in Court that the advice is “IRRELEVANT”.  I would invite all parties interested to look at the court transcripts to see how the Courts struggled with trying to make sense of what the government was saying in Parliament with regard to the AGC’s advice.

Mr Speaker, the mysterious AGC’s advice has still not been produced before Parliament nor the Courts.  I can only assume that revealing the advice would not be useful to the government.

Even if one were to give the benefit of doubt and assume that the PM’s speech in November was just ambiguous rather than misleading, it is also deeply troubling that nobody from the front bench sought to correct the impression given.  The Ministers must have known that the House understood that the government was acting on AGC’s advice on how to count, that there were legal questions involved.  Yet, nobody came out to clarify that: “Hey, actually, it was the government who decided to count from Wee Kim Wee, it was a policy decision.  Nevertheless, we have sought the AGC’s blessing to cover ourselves”.

As things stand, the Courts have now decided that which President to count from for the Reserved Presidential Election is a policy decision for Parliament.

The government’s handling of the Parliamentary debates on the legislative changes for a Reserved Presidential Election has been most unsatisfactory.  Here we are, debating changes affecting the highest office in the land, yet the government decides to engage in ambiguous language and red herrings.  We in this House should have been told in no uncertain terms that it was the government that wanted to start the count from President Wee.  The government should have defended its own decision on why counting from President Wee was appropriate.  It should not have evaded the debate by using the AGC’s advice as a distraction, and then gone to court to say that the AGC’s advice was IRRELEVANT!

With the benefit of the additional knowledge from the court case, I now think back of the Parliamentary debates when the government refused to publish the AGC’s advice despite repeated requests.  Did the government refuse to do publish the advice, because doing so would have made it clear that the decision to count from President Wee was initiated by the government and the government alone?

Be that as it may, the Deputy AG has now told us that the AGC’s advice was merely sought to legitimize what the government itself wanted to do.

The government should have told Parliament directly that counting from President Wee was its decision, and defended the decision on the merits.  Instead, it chose to distract and confuse.

The government’s inconsistent explanations would further fuel the suspicions of Singaporeans about the real intention behind the legislative changes that resulted in this year’s Presidential Election being a closed one.