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High Court throws out Tan Cheng Bock's challenge on upcoming reserved Presidential Election

SINGAPORE — The High Court has on Friday (July 7) dismissed the legal challenge mounted by former presidential candidate Dr Tan Cheng Bock against the Attorney-General’s Chambers (AGC) over the timing for the reserved presidential election.

TODAY file photo

TODAY file photo

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SINGAPORE — The High Court has on Friday (July 7) dismissed the legal challenge mounted by former presidential candidate Dr Tan Cheng Bock against the Attorney-General’s Chambers (AGC) over the timing for the reserved presidential election.

Dr Tan has until Wednesday to appeal against the ruling.

In November last year, various changes were passed in Parliament to the Elected Presidency (EP) scheme, including the triggering of a reserved election for a particular race that has not seen an elected representative for five consecutive terms. 

The Government, on the advice of AGC, started counting the five terms from Dr Wee Kim Wee’s presidency, forming the basis for the Government to trigger a reserved election for Malay candidates for the coming polls in September.

Filing his legal challenge last month, Dr Tan had taken issue against the AGC’s findings that Dr Wee was Singapore’s first elected President.

The late Dr Wee was the first President to exercise powers under the Elected Presidency (EP) scheme, after it was introduced in 1991 while Dr Wee was in office.

In his submissions, Dr Tan had cited Article 19B(1) of the Constitution which provides for a reserved election for a community if no person from that community has held the office of President for any of the five most recent terms of office of the President.

He had also referred to Article 164(1)(a) which provides for Parliament to specify the first term of office of the President to be counted under Article 19B(1).

In his 65-page written judgement, Justice Quentin Loh ruled that Parliament was “entitled, through the passing of the (amendments to the EP scheme), to specify President Wee’s last term in office as the First Term”, as made clear from both the text and context of articles and other relevant materials.

The judge ruled that “on a plain reading” of Article 164, Parliament is not limited to choosing a particular term of office of the President as the “first term”.

The court also found that there is nothing in the text or textual context of Article 19B which limits Parliament’s power by requiring it to start the count from the term of office of a popularly-elected President.

Justice Loh noted that Parliament could have started the count from the first popularly-elected President, Mr Ong, or - as Dr Tan’s lawyers submitted – it could have postponed the implementation of the hiatus triggered model by beginning the count from any President after Mr Ong. However, he pointed out that Parliament was “equally free to accelerate the implementation of the model”, by starting the count from Dr Wee’s second term. 

“Ultimately, since Article 19B does not fetter Parliament’s power under Article 164, Parliament’s choice of the First Term is a policy decision which falls outside the remit of the courts,” the judge said.

In his submissions, Dr Tan had argued that the Government should have started counting from the term of Mr Ong, as Dr Wee was not elected to office among other things. Hence, the impending presidential polls should be an open election and not reserved for the Malay community. Dr Tan added that Dr Wee’s presidency does not apply to the context and purpose of Article 19B(1). 

Labelling Dr Tan’s case as “irretrievably flawed”,  Deputy Attorney-General Hri Kumar Nair – who was representing the AGC – noted that Dr Tan had “completely ignored” the relevant principles of constitutional and statutory interpretation.

His case also undermined the “longstanding imperative multiracial representation in the office of President, which the reserved election framework seeks to safeguard”.

Highlighting that Dr Tan’s case is “entirely self-serving”, Mr Nair said that Dr Tan is “advancing a strained interpretation of the Constitution so that he can apply to stand as a candidate in the coming Presidential election”.

“His motives are purely selfish and he has shown no regard for the principle of multiracial representation which Parliament intended to safeguard through the enactment of Articles 19B and 164,” said Mr Nair. 

Speaking to reporters outside the chambers where the ruling was delivered, Mr Nair said the AGC will not pursue any costs against Dr Tan.

Representing Dr Tan, Senior Counsel Chelva Retnam Rajah said he and his client will study the judgment before deciding whether to appeal against the ruling. 

Dr Tan, a former Member of Parliament from the People’s Action Party, narrowly lost the 2011 election to Dr Tony Tan, the current President.

He was one of two people to had mounted legal challenges on changes to the Elected Presidency. Last month, the High Court dismissed a challenge by non-practising lawyer M Ravi, who had argued that the qualification criteria for the presidency, as well as reserving elections for particular races, were unconstitutional. 

In rejecting Mr Ravi’s application, the High Court noted that as a private citizen, he had no legal standing to mount the challenge on a public law matter. This is because he did not meet at least one of the criteria set out, such as having personal interest in the matter, or having suffered special damages. The court also added that amendments to the scheme were legally passed and effective. Mr Ravi was ordered to pay S$6,000 in legal fees, and reimburse the AGC for costs.

In a Facebook post late Friday night, Dr Tan said he was "disappointed" by the High Court Ruling. He added that he will announce after this weekend if he intends to appeal. 

The former PAP MP also criticised Deputy Attorney-General Hri Kumar Nair for calling him “selfish”. Mr Nair's remarks were "highly inflammatory and encroaches into dangerous racial politics", said Dr Tan. 

"The DAG is a public servant and an ex-PAP MP. He should not have made such a statement," he said.

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