Constitutional Change in Singapore

Reforming the Elected Presidency

Jaclyn Neo, Swati Jhaveri, Jaclyn L Neo

• Publisher: Routledge
• Year: 2019
• Topic: Social Sciences
• eBook ISBN:
  9781351666619
• Subtopic: Regional Studies
• Index: Social Sciences

Once a ceremonial position modelled after the constitutional monarchy in the United Kingdom, the office of the President of Singapore was transformed from an appointed to an elected one in 1991. As the head of state, but not the head of government, the elected President was to have additional discretionary powers involving the spending of financial reserves, appointment of high-ranking public servants, and certain ministerial powers to detain without trial. In 2016, a constitutional commission was convened to consider further reforms to the office and the elections process. This book explores Singapore's presidency, assessing how well it has functioned, discussing the rationales for an elected presidency, and evaluating the constitutional commission's recommendations for reforms, including the need for minority representation in the office. In doing so, the book provides important reflections on how the constitutional reform process raises crucial questions about the rule of law and the practice of constitutionalism in Singapore.

1 Looking back at the Elected Presidency

Design choices and unintended consequences

Kevin Y.L. Tan and Lam Peng Er

1.1 Introduction

The Elected President scheme was the product of a panic brought on by the spectre of a ‘freak election’ in which the ruling People’s Action Party (“PAP”) is vanquished at the polls. What if a profligate government came to power? Was there anything to stop them from raiding Singapore’s considerable financial reserves and send the country down the road to economic ruin? There was really no safeguard against such a scenario since the parliamentary system of government and the single plurality system of voting allowed the party in government to do practically whatever it wanted. Without securing an absolute majority of votes, a political party can come into power and immediately pull on all the levers of power. And there was nothing to stop them from using that power to go on a spending spree, buying votes with populist policies and massive subsidies. In the words of the then Prime Minister Lee Kuan Yew (“Lee”):

Today, any government elected can get at those reserves and spend it. So you can get a wild offshoot of an election – free bus rides, lower electricity, free water, lower MRT fares, and your reserves will just vanish like that within a few years. Then like Brazil, Argentina and Mexico, we’ll be borrowing hundreds of millions of dollars. And we’re finished. This place will never get off the ground again.¹

It appears that the Cabinet began discussing this problem as early as 1982, a year after the PAP was defeated in the by-election for the Anson constituency, its first loss of any seat since 1968.² In 1984, at his National Day Rally Speech, Lee made his case for transforming the office of President into an elected one:

As the Constitution now stands, if there’s a freak election result, and a coalition forms the government, all the reserves are available. The larder is wide open. You can raid it! Twenty-five years’ work, savings … You can go on a spending spree for five years and then we are another broken-backed country. We’ve thought up some mechanisms so that no government can spend previously built-up reserves. You build up the reserves, you spend it. You promise free bus rides, you raise the taxes. But you’re not spending what we have saved … and I think we should have a President with moral authority to block it. The thing has to be thought out carefully because there’s bound to be a row when the President says “No” to a newly-elected Prime Minister. … I think the President has got to be elected by the people, direct vote, not in Parliament. He also has moral authority, preferably he should be an ex-Minister with an understanding of how governments and budgets are run. And there could be a committee too so that he will have the backing of a Special Committee for the Preservation of Reserves. And if the two of them agree, then the Government of the day is blocked.³

It was clear from Lee’s first soundings of this new scheme that a Parliament of the future would be checked through the office of a popularly elected President working in concert with a special council constituted for the sole purpose of protecting Singapore’s reserves. Not unexpectedly, Lee’s proposal set tongues a-wagging and there was much discussion and speculation about what the new system would look like. It is interesting that much of the discussion focused on the mechanics and personality of who the first Elected President would be – Lee being favoured by most – but hardly anyone asked if this was the best institutional solution to the problem. This article looks at the way in which alternative design choices were proposed and sidelined and how these options came again to the forefront in the course of the Constitutional Commission hearings of 2016.

1.2 Design principles of Lee’s original scheme

Lee Kuan Yew’s approach to this dilemma of protecting the national reserves from a potentially profligate government and an electorate drunk on political bribes was not to work through parliamentary checks and balances (including an Upper House or Senate), an active civil society or a free press. Instead, he proposed amending the Constitution to transform the office of the President into an elected one. The Elected President (“EP”) would then carry the people’s mandate to act as a custodian of national reserves and a ‘gatekeeper’ for the appointment of key office bearers of the State. Lee’s assumption was that control should vest in a single PAP-like ‘good man’ rather than a Council of Ephors (as in Sparta)⁴ or Genrō (elder statesmen in Japan)-like system.⁵ Lee did not explain how he or the Cabinet arrived at this conclusion or if they had indeed seriously considered any other options.

What seems clear is that Lee’s institutional design was premised on an oversimplified ‘good versus bad’ dichotomy: a Good PAP (type) President versus Bad Opposition Government. In other words, a good President (a person trusted by the PAP establishment) was expected to check a bad Government (formed by an erstwhile opposition party or parties). However, as Lam has previously argued, this scenario ignores the possibility of four possible outcomes within this paradigmatic matrix.⁶ This is graphically illustrated in Table 1.1. To explain:⁷

Table 1.1 Alternative scenarios for President–Government checks and balances.⁷

	Good President	Bad President
Bad Government	PAP’s Scenario	Worst Scenario
Good Government	Best Scenario	Opposition Scenario

1 PAP’s Scenario: A ‘responsible’ EP checks an ‘irresponsible’ government by safeguarding the national reserves, maintaining the integrity of key civil and military appointment, and preventing arbitrary arrests of citizens.

2 Opposition’s Scenario: An opportunistic and vindictive pro-PAP EP bent on sabotaging a newly elected government formed by non-PAP party or parties. The discrediting of the new government will then result in the PAP regaining power in the next election.

3 Best Scenario: A felicitous state of affairs where Singapore is doubly blessed by the presence of a ‘good’ president and a ‘good’ government. Since the EP has no need to intervene and exercise his veto against a good and responsible government, the EP will keep a low profile politically and essentially perform a ceremonial role. The EP will continue to act as a sentinel but his veto will not be activated.

4 Worst Scenario: A double jeopardy when a ‘bad’ EP and a ‘bad’ government collide or collude, thereby spelling disaster for the country. There is nothing in the Constitution to prevent collusion between a venal EP and a corrupt government commanding a parliamentary majority.

Scenarios (1) and (2) above will lead inevitably to clashes between the President and the Government and quite possibly gridlock since the thwarted Government will invariably try its best to either amend the Constitution or have the President removed. This could in turn set in motion a long and ugly political battle that will ultimately devastate the political system and faith in it. Even in the case of the ‘Best Scenario’, there is no guarantee that the President and the Government will always be ad idem on matters invoking the President’s discretion. Even when the President had originally been a member of the PAP, a clash between the EP and the Government could still erupt, as in the case with President Ong Teng Cheong, the first EP who served from 1993 to 1999.

The creation and implementation of the EP scheme represented a significant departure from Singapore’s erstwhile Westminster constitutional model with a largely ceremonial President as the Head of State and with real political power vested in the Prime Minister and Cabinet drawn from within Parliament. That said, it was not such a major departure in the sense that the President would only have blocking powers and could not initiate policy or legal change.

1.2.1 Other design options

When Lee broached the scheme in 1984, there was little discussion on what possible alternatives the Government had, and it was not until the release of the first White Paper⁸ in 1982 that in deciding on the proposed scheme, the Government had:

considered many alternatives: creating an upper legislative body, reposing the power of veto in the Presidential Council for Minority Rights or some other body analogous to the US Federal Reserve Board, or requiring decisions on financial assets to be subject to the approval of the electorate in a referendum.⁹

The White Paper was introduced by Lim Boon Heng (MP for Kebun Bahru) on 11 August 1988,¹⁰ and in the ensuing debate, several MPs voiced their discomfort with the proposed scheme. Former Cab...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of tables
• Notes on contributors
• Acknowledgements
• Table of cases
• Table of constitutions and legislation
• Introduction: constitutional design and change in ‘reforming’ Singapore’s Elected Presidency
• 1 Looking back at the Elected Presidency: design choices and unintended consequences
• 2 Past imperfect, future tense: the Elected Presidency and the constitutional development of an ‘ever evolving hybrid’
• 3 Mandates, majorities and the legitimacy of the Elected President
• 4 Perfecting Singapore’s system of political governance: privileging elites in the quest for good governance
• 5 Constitutionalizing minority representation: the reserved elections mechanism and the politicization of ethnicity in Singapore?
• 6 Squaring the circle: the President as a symbol of multiracialism and national unity
• 7 From eligibility to election: the mechanics of the presidential poll
• 8 Of Constitutional Commissions and expert-led interpretation during processes of constitutional change
• 9 Reflecting on constitutional change in Singapore: the role of the Executive, Legislature and Judiciary
• Index