Submission to Constitutional Commission – Elected Presidency

MARUAH has submitted its feedback to the constitutional commission to review specific aspects of the elected presidency.

Summary

  • The President’s most important function is to ensure the integrity of the public service.
  • There is no evidence that raising the size of companies that non-governmental candidates must have headed would improve the quality of Presidential candidates.
  • In view of rising inequality in Singapore, cementing a business and administrative elite into place via restrictive criteria for the Presidency and CPA would be perceived as undemocratic and elitist.
  • Introducing racial criteria for the Presidency runs against our principles of treating all Singaporeans equally “regardless of race, language or religion”. Furthermore, narrowing the pool of candidates on racial grounds would increase the chance of a weak President being elected for lack of eligible candidates. There is no need to raise this divisive approach towards minority candidates for President.
  • Narrowing the eligibility rules for the Presidency would weaken the Presidency and may weaken the ability of the President to serve as a check against wrongdoing by the Government
  • MARUAH does not support narrowing the eligibility rules for the President on either financial or racial grounds

1. Background

The President is the Head of State of Singapore and following the Westminster system, the duties of the President were largely ceremonial until 1991 when the Constitution was amended to give the President some custodial powers over the spending of past reserves and the appointment of certain key public officials. With the enhancement of the President’s powers, direct elections were also introduced for the Presidency whereas before, the President was selected by Parliament. The President is not permitted to be a member of any political party, but the two Presidents[1] who were elected in a direct election were both former Deputy Prime Ministers from the People’s Action Party (PAP). In addition, in the last election, three of the four candidates had connections to the PAP, and the fourth contested the 2011 general election under the banner of the Singapore Democratic Party.

In January 2016, the Prime Minister, Mr Lee Hsien Loong announced that the Government was reviewing three areas related to the Presidency : The qualifying criteria for Presidential candidates; whether the views of the Council of Presidential Advisers (CPA) should be given greater weight; and how to ensure that minorities have a better chance of being elected.

2. MARUAH

MARUAH is an eight-year-old human rights organisation which has participated very actively in seeking changes to the General Elections in Singapore. We are also active in civil and political rights, economic rights and socio-cultural rights at the national and ASEAN levels.

We are submitting this paper to outline what we would like to see as changes on the role of the President, the role of the Council of Presidential Advisers, and on the process of the elections.

3. The Role of the Elected President

3.1 Powers of the Elected President

The powers of the elected President can be grouped in the following categories:

  1. Protection of past reserves – This includes his powers with regards to approval of government budgets, loans and the budgets of Fifth Schedule Statutory Boards and Government Companies (FSSBGC).[2]
  2. Ensuring the integrity of the public service – This includes the President’s power to approve the appointment or removal of key government officials[3] and directors of FSSSBGC[4], and the President’s power to authorise investigations by the Corrupt Practices Investigation Bureau (CPIB).[5]
  3. Protection of individual liberties – This refers to the President’s power to approve the detention of persons detained under the Internal Security Act and Criminal Law (Temporary Provisions) Act, and to approve restraining orders made under the Maintenance of Religious Harmony Act.
  4. Appointment of a Prime Minister following an election, and dissolution of Parliament.

While most public discussion of the elected Presidency has centred on his role in the protection of past reserves, we argue that the most important role of the President is in fact to ensure the integrity of the public service.

3.1.1 Protection of past reserves is a red herring

The government has often raised the spectre of a (presumably non-PAP) “rogue government” frittering away reserves that have been built up over the last 57 years. But the fact is that Supply Bills have to be voted on by parliament before any money can be spent. To the extent that parliament reflects the will of the people; the fiscal decisions of parliament represent the choices of the citizens of Singapore. To some extent, the Reserves Protection Framework is undemocratic, and designed as much to thwart the will of a “rogue citizenry” as that of a “rogue government”. However, the President’s custodial powers are by design extremely limited. As seen during the 2008/2009 financial crisis, there was no hesitation by either the legislature or the President to approve a budget that drew on past reserves. Realistically, there are very few circumstances under which the President could block a government spending Bill, both because it would be politically inexpedient for him to go against the will of voters, and because he would have to have the support of the CPA or at least one-third of Parliament to do so.

3.1.2 Ensuring the integrity of the public service

While the President has very limited ability to control the government’s fiscal policy, he has a much stronger ability to protect the integrity of the public service. Singapore has developed a sterling reputation for incorruptibility but this has to be weighed against the fact that institutionally, Singapore has a strong Executive and very limited administrative or legal checks on Executive power. The government likes to use the trope of a future “rogue government” spending the reserves through profligate budgets but as I have pointed out above, budgets are public documents and have to be passed by Parliament. There is an equally large risk that corrupt Ministers may be elected into office who may try to steal the reserves or to otherwise enrich themselves using their levers of power. We do not have to look very far to see examples of an Attorney-General, police and anti-corruption officers removed from office while investigating the disappearance of billions of dollars from a state investment fund.

The requirement in Singapore that key officials including Judges of the Supreme Court, the Attorney-General, Accountant-General, Auditor-General, Commissioner of Police and Director of the CPIB cannot be appointed or removed by the Government without the President’s approval is thus an important check against the risk of misconduct by Government. This is the most important function of the President- far more important than his role in the protection of past reserves.

As the list of key officials include finance officers such as the Accountant-General, Auditor-General, Chief Valuer, and Directors of FSSBGC, some may argue that the President’s power over these appointments is ancillary to his role in protecting past reserves. However, the majority of officers listed in Article 22 are non-financial officials including Judges of the Supreme Court, Chief of Defence Force, Commissioner of Police, and members of the Public Service Commission and Legal Service Commission. The inclusion of key judicial, legal and security officials in Article 22 shows that the President’s duty is to safeguard the integrity of the entire public service not just that of officers involved in stewardship of past reserves.

3.1.3 Political legitimacy of the elected President

While several commentators[6] have argued for a return to an appointed Presidency, we are not so sanguine about the risk of never having a “crooked government” in future. As such, we believe that we still require a President who has some (albeit limited) power over the appointment of key public officers[7] and investigations by the CPIB. To perform these duties, which may require him to go against the Government of the day, the President needs to have a direct mandate from the voters. Realistically, this means that even though Presidential candidates are not permitted to be members of a political party, only politicians with strong connections to political parties would be able to run a nation-wide campaign and be a viable candidate. Tightening the eligibility criteria for private-sector candidates cannot change this reality because the Presidency is by definition a political position.

As we have pointed out above, Reserves Protection is a red herring because the same electorate elects both Parliament and the President. The most important job of the President is to ensure the integrity of the Public Service through his power over key appointments. As such, the key qualification for the President is the ability to be a judge of character, not the ability to read financial statements. Raising the size of the companies referred to in Article 19 (g) (iii) does not guarantee that presidential candidates will be good judges of character or even be able to make good financial judgements themselves.

One of the lessons of the 2008 financial crisis was that even leaders of very large and complex companies worth billions of dollars were not immune from making self-serving and irresponsible decisions that ultimately hurt shareholders and the public purse. For that matter, Donald Trump in the United States is the Chairman and CEO of a billion-dollar company, but that does not make him suitable for the Presidency of even a small country like Singapore.

3.2 Qualifications of Presidential Candidates

There is no benefit in raising the minimum size of a company that a candidate has to have led to be eligible to run for President. If anything, the restrictive criteria in Article 19(g) arbitrarily reduce the pool of eligible candidates and are counter-productive in that they may result in the election of a weak President who would not have the political capital to be able to stand up to the government of the day. The best way to strengthen the office of the President would be to delete Article 19(g) in its entirety so that the best candidate can be selected by the voters, rather than to have a President who happens to be the only eligible candidate after having been sifted through arbitrary filters.

In 1996, PM Goh Chok Tong observed that “Given our limited talent pool, we may well end up with an inferior candidate[8]” when he introduced a constitutional amendment regarding the appointment of key public officials. If our talent pool is limited for civil servants, it is all the more limited for the higher office of President. The Government has not made a convincing argument that reducing the pool of candidates based on a company size criterion would produce a better President. If we take the Government’s claim that Chairmen and CEOs of large companies are intrinsically qualified for high political office, then Donald Trump would be eminently qualified for the Presidency!

Article 19(g) (iii) only serves as a fig leaf to camouflage the government’s preference for government-affiliated candidates. We recognise that our proposal to delete Article 19(g) completely is unlikely to be supported by the government, but the government’s policy intent would be best met by revising Article 19(g)(iii) to refer only to Fifth Schedule Government Companies, i.e., GIC, Temasek and MNDH. Rather than go through the pretence of raising the size of qualifying private-sector companies, it would be more honest for the government to simply make explicit the government’s intention to limit the pool of Presidential candidates to former Ministers, high-ranking civil servants and managers of FSSBGC.

3.3 Ensuring Minority Presidents

Once again, the government has not placed any specific proposals on the table and it is not clear what their intentions are. In his speech to Parliament on 27 January 2016, the Prime Minister mentioned how to “ensure minority Presidents periodically”.[9] This suggests a plan to have some sort of rotating Presidency predicated on the assumption that a minority candidate could not be elected otherwise. Yet both PM Lee and DPM Tharman have stated that it was possible for Singapore to have a non-Chinese PM.[10] For that matter, if DPM Tharman were to run for election as President, no candidate, minority or otherwise, could stand a chance against him.

A major difference between the Presidency and a Group Representation Constituency (GRC) is that there can be only one President but there are at least 3 MPs in a GRC. Whatever iniquities may be created as a result of ethnic quotas in a GRC are ameliorated by the fact that no candidate is denied a chance to be elected to parliament solely on the basis of race. If any sort of racial criteria is imposed on the Presidency, however, there will be potential candidates who are excluded solely on the basis of race. Given the Government’s presumed intention to narrow the pool of private sector candidates on financial experience grounds, further narrowing of the pool on racial grounds may result in a lack of viable candidates and the election of second-, third- or even fourth-best candidates. We state categorically that there is no need to raise this divisive approach towards minority candidates for the Presidency.

4. Council of Presidential Advisors

Except for authorising investigations by the CPIB under Article 22G, and the appointment of a PM or dissolution of parliament, the President has only limited discretion and is required to consult the Council of Presidential Advisors (CPA) in most cases. While he is not required to follow their recommendations, a Presidential veto supported by the CPA will be binding whereas one that is not may be over-ruled by a two-thirds vote of Parliament.

It is not clear what the government’s concerns are with the Council of Presidential Advisors. As presently constituted, the Council is split between members appointed by the President, the Prime Minister, the Chief Justice and the Chairman of the Public Service Commission. There is no reason to believe that any of these people would nominate a person who does not have the character, judgement, experience and ability to serve as a member of the CPA. In the absence of specific proposals from the government, we can only speculate that their intention is to introduce additional requirements for financial or government background similar to that for the President himself. We do not believe that would be warranted or wise. As income inequality has risen around the world, we have already seen the splintering of moderate political consensus in the US and Europe as resentment rises against political elites that serve the richest 1% of society. We have fortunately been spared the worst of the political dysfunction so far in Singapore, but it is undeniable that income inequality is high and rising in Singapore. Giving an unelected body such as the CPA greater powers and cementing a business and government elite into place via restrictive criteria for membership in the CPA will be seen as unrepresentative and undemocratic. It will not be tenable for a CPA appointed under such blatantly elitist criteria to have the moral authority to block appointments of key officials or to recommend against a budget put forward by a popularly-elected Government.

Concluding Comments – The Circle Cannot Be Squared

The government appears to be trying to achieve multiple competing objectives in its policy towards the elected President

  1. A President who is able to restrain a “rogue government” – This requires the President to be directly elected so as to have his own mandate from the voters and the moral authority to stand up to a popularly elected government.
  2. A President aligned with the existing establishment – Thus the various qualifying criteria and the proposal to further tighten the criteria on private sector candidates.
  3. A system for ensuring periodic minority Presidents.

Unfortunately the second and third objectives will inevitably weaken the first by narrowing the pool of eligible candidates to the extent that a weak President may be elected for lack of any other candidates. This would be an extremely undesirable outcome and would weaken the checks in our system that protect against a corrupt government.

 

 


[1] Mr Ong Teng Cheong and Dr. Tony Tan. Mr SR Nathan was elected unopposed.

[2] Articles 22B, 22D, 142(1A), 144, 148A and 148C of the Constitution

[3] Article 22 of the Constitution

[4] Articles 22A & 22C of the Constitution

[5] Article 22G of the Constitution

[6] e.g., Kishore Mahbubani, “Let’s talk about policy failures and the elected presidency”, Straits Times, January 18, 2016 and Han Fook Kwang, “Consider return to Singapore’s election system of 1965”, January 24, 2016.

[7] And Directors of FSSBGC.

[8] Parliamentary debate on Constitution of The Republic of Singapore (Amendment) Bill, Oct 28, 1996.

[9]PM Lee Hsien Loong parliamentary speech at the debate on President’s Address, 27 January 2016.

[10]Wong Siew Ying, “’Matter of time’ before S’pore has non-Chinese PM”, Straits Times, July 4, 2015.

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