It’s politics, blame not the law

Whether the late President Wee Kim Wee should be counted as the first Elected President (EP) for the purpose of the recently-enacted reserved presidency law is, without doubt, a matter of considerable public interest.

But it is not an issue of law because the law clearly empowers Parliament to decide freely who should be the first EP for this purpose. Nor is it clearly an issue of fact, as Mr Wee, though not popularly elected, did exercise the powers of the EP for a period prior to the election of Mr Ong Teng Cheong.

It is, instead, a political decision by the Government, in the same way that it decides on how much to spend on education this year, or whether section 377A of the Penal Code should remain in the statute books.

For those who do not have the inclination to pore over the 66 pages of the Court of Appeal’s judgment in the recent Tan Cheng Bock versus Attorney-General case, the position can be summarised in a few sentences.

Following last year’s amendments, the new Article 19B of the Constitution establishes the now familiar reserved presidency.

Article 164 then compels Parliament to pass a law to say who should be counted as the first EP for the purpose of implementing Article 19B. This Parliament duly did when, early this year, it passed the Presidential Elections (Amendment) Act, which names Mr Wee as the first EP.

The process has therefore been legally correct and indeed rather uneventful.

Armed with Article 164 and a clear majority in Parliament, the Government needed no approval from anyone to name Mr Wee as the first EP.

But it decided to seek the Attorney-General’s advice before doing so and informed Parliament that it had done so. This led to the speculation and confusion over whether the Attorney-General had advised the Government to name Mr Wee as the first EP and whether the Government then did so on the understanding that it was legally required to.

On a plain reading of Articles 19B and 164, the Government was free to name either Mr Wee or Mr Ong as the first EP.

While the Attorney-General’s advice has not been made public, given the abundance of legal talent in the Attorney-General’s Chambers, the advice could not have been that the Government was legally obliged to name Mr Wee as the first EP, but more likely to be that doing so would not contravene Article 19B or 164.

In any event, the legal standing of an Attorney-General’s advice is often overstated.

In his civil capacity, the Attorney-General is merely the Government’s legal adviser, just like any lawyer providing legal advice to a client. His advice carries no force of law and binds nobody.

So even if he did advise the Government to name Mr Wee as the first EP, the Government was not obliged to do so; and if the Government did so, the advice, as a matter of law, would neither lend weight to nor prejudice the Government’s action.

The decision is the Government’s and the Government’s alone to make and take responsibility for. How the Attorney-General’s advice went would have been legally immaterial.

A MISSED OPPORTUNITY

Whether Mr Wee or Mr Ong was named carried, of course, important consequences. If Mr Ong were named instead of Mr Wee, then this year’s Presidential Election would have been open to all races instead of being reserved for the Malays.

Yet the focus on this issue in isolation from last year’s Constitutional amendment package that created the reserved presidency in the first place misses the point.

While it is generally accepted that the Government was exercising its political power to rule when it introduced the reserved presidency last year, some believe that the naming of the first EP for this purpose should be legally determined in accordance with the Constitution.

The reality is that the Government could have named Mr Wee directly as the first EP in Article 19B. It could, for good measure, have added that that article should prevail in the event of any inconsistency with articles elsewhere in the Constitution.

That would have extinguished all legal doubts over who should count as the first EP. Even if it did not and the provision were to be struck down by the court, the Government could have just gone back to Parliament and enact whatever words the court had deemed necessary to put into effect what it wanted.

The naming of the first EP is therefore as much a political action by the Government as the entire Constitutional amendment package is.

The upshot is that in a Westminster-style Constitutional model that is Singapore’s, where the government of the day dominates and controls Parliament which, in turn, is regarded as supreme over all other institutions, it is futile to make legal issue of or seek legal redress for matters that are essentially political.

The reserved presidency and the consequential issue of who should count as the first EP are political issues that can only be canvassed and settled politically.

Since the Government made known its intention to reform the Elected Presidency at the opening of the current Parliament early last year, it had opened up extensive channels for the concept of reserved presidency to be debated.

While there was support for the idea, there was also no shortage of strong dissent from both sides of the political divide, before the Government decided to proceed with the reform late last year.

This was just as well, as after an issue has been fully debated politically, any government with a majority in Parliament is free to decide on the course of action to take, subject only to political consequences at the polls.

While the reform of the Elected Presidency was not raised before the last General Elections and so was not canvassed during the campaign, both Prime Minister Lee Hsien Loong and Prime Minister’s Office Minister Chan Chun Sing have admitted that the ruling People’s Action Party may incur political costs for the reform going forward.

Less fully debated politically was the consequential issue of naming Mr Wee as the first EP.

While there were rather intense exchanges between Workers’ Party chairman Sylvia Lim and Mr Chan during the second reading of the Presidential Elections (Amendment) Bill early this year, an erroneous focus on the Attorney-General’s advice clouded the debate.

The confusion continued to the recent adjournment motion in Parliament moved by Ms Lim on the matter.

An opportunity was missed to ask the Government who, in its own view and never mind the Attorney-General’s advice, should be named as the first EP and why.

The Government was not asked to give a political justification for naming Mr Wee instead of Mr Ong and no meaningful debate ensued on this point.

ABOUT THE AUTHOR:

Cheng Shoong Tat is a former journalist who now runs a medical business.