Court reserves judgment on Tan Cheng Bock’s PE appeal

SINGAPORE — After a hearing that lasted more than three hours on Monday (July 31), the Court of Appeal reserved judgment on the appeal by former presidential hopeful Dr Tan Cheng Bock against the basis and timing of the coming reserved Presidential Election.

The court gave no date as to when the decision by the panel of five judges, among them Chief Justice Sundaresh Menon, would be delivered. The other four judges hearing the case were Judges of Appeal Judith Prakash and Steven Chong, as well as Justices Chua Lee Ming and Kannan Ramesh.

Speaking to the media outside the hearing, Dr Tan said it was a “fair hearing”. He added: “Singaporeans must fully understand the issue, not just accept (it). If, in the end, we are found to be wrong, then we accept it. That’s what democracy is about — the exchange of ideas. But if we are right, then the Government must also accept it.”

He filed the appeal to the apex court after his earlier legal challenge was dismissed on July 7.

After changes to the Elected Presidency (EP) scheme were passed, a reserved election will be triggered for a particular race that has not seen an elected representative for five consecutive terms.

The Government, on the advice of the Attorney-General’s Chambers (AGC), started counting the five terms from Dr Wee Kim Wee’s presidency.

The late Dr Wee was the first President to wield the powers of the elected president, as the scheme was introduced during his term in 1991.

But Dr Tan has argued that it was unconstitutional to start the clock from Dr Wee’s term, as the former President had not been elected by the people, among other things.

Instead, the Government should have started counting from the popularly-elected Mr Ong Teng Cheong, who succeeded Dr Wee. This would make it four terms since the Republic has had an elected Malay President.

Earlier this month, Justice Quentin Loh dismissed Dr Tan’s case. The judge ruled that after amendments to the EP scheme were passed, Parliament was “entitled ... to specify President Wee’s last term in office as the first term” of office of the President for the purpose of the reserved election.

At the hearing on Monday, Dr Tan’s lawyer, Senior Counsel Chelva Retnam Rajah, argued that the lower court had wrongly applied the definition of “President” as being both an appointed and elected head of state. Rather, it should be the latter, he said.

Mr Rajah noted that following the introduction of the EP scheme, the definition of a “President” has switched from being appointed by Parliament to one that is elected by citizens of Singapore.

On this basis, the counting of terms should begin from Mr Ong’s term and that of his successors, he said.

He added that Parliament had “mistakenly” taken the position that Dr Wee was an elected President, and the lower court had erred in ruling that Parliament had not acted “under a mistake of law” in taking Dr Wee’s term as a starting point.

“If (Prime Minister Lee Hsien Loong) selected (the term of) President Wee (as the starting point) ... on the basis that he received legal advice that President Wee is the first elected President, then it’s not a policy decision. It’s a decision based on legal advice,” said Mr Rajah.

The lawyer also argued that since the purpose of triggering the reserved election is to “remedy a lack of diversity outcome” from an open election, counting of the terms should start with Mr Ong’s presidency.

Given that Dr Wee was not elected, his presidency “is irrelevant to whether the electoral process has produced community diversity”, he added.

In his counter-arguments, Deputy Attorney-General Hri Kumar Nair reiterated that Article 164 of the Constitution “clearly gives” Parliament full discretion to decide which Presidential term would be chosen as the “first term”. The provision does not in any way limit Parliament’s choice to a particular President or to popularly-elected Presidents, he said.

Rather, the real issue was whether Article 19B limits Parliament’s discretion under Article 164 in any way, said Mr Nair, who is also a Senior Counsel.

Article 19B(1) reserves a Presidential Election for a community after a five-term hiatus defined in terms of individuals who “held the office of President”.

Mr Nair said: “It does not impose further requirements on how these individuals came to hold office, or the length of their Presidential terms.”

He added that on plain reading of the constitutional provisions, Parliament was entitled to specify Dr Wee’s last term as the “first term”, and start counting from there. He also stressed that Parliament’s decision was a policy decision, based on policy reasons “which have nothing to do with the questions of constitutional interpretation before the Court”.

Mr Nair also took issue with Dr Tan’s arguments that Parliament’s decision should be considered void as it is irrelevant and based on “wrong” legal advice given by the AGC.

Mr Nair pointed out that Parliament had passed the amendments to the EP scheme in agreement with PM Lee’s intention to specify Dr Wee’s last term as the “first term” under the hiatus-triggered model.

On Nov 8 last year, during the debate on the proposed amendments, Mr Lee told the House that based on the Attorney-General’s advice, Parliament will “start counting from the first President who exercised the powers of the Elected President, in other words, Dr Wee Kim Wee”.

Mr Nair argued that Dr Tan also had “no basis” to conclude that the Attorney-General’s advice is wrong, as he “does not know what questions were referred for advice, or what the advice was”.

He added: “It is particularly fallacious to assume the correctness of Dr Tan’s) interpretation and on that basis assert that the Attorney-General was wrong.”