Counting from President Wee Kim Wee or President Ong Teng Cheong for Reserved Presidential Election − Policy Decision or Legal Question?

ADJOURNMENT MOTION

The Leader of the House (Ms Grace Fu Hai Yien): Mr Deputy Speaker, Sir, I beg to move, "That Parliament do now adjourn."

Question proposed.

Counting from President Wee Kim Wee or President Ong Teng Cheong for Reserved Presidential Election − Policy Decision or Legal Question?

7.05 pm

Ms Sylvia Lim (Aljunied): Mr Deputy Speaker, Sir, President Halimah Yacob took her Oath of Office on 14 September 2017. President Halimah is a popular figure who is well-respected in many circles. She was also my former Member of Parliament, who worked hard to serve her constituents. Yet, despite her personal attributes, the lightning circumstances under which this Government installed her as the Head of State have left Singaporeans reeling in its wake.

In the immediate aftermath of announcing this year's Presidential Election as reserved for Malay candidates, the media reports highlighted how the public embraced the move with open arms, welcoming a Malay President after a break of 46 years. Yet, as the dust started to settle, it was clear that the public was very divided over this issue. At public discussion forums, such as the one organised by the Institute of Policy Studies on 8 September, law professors and retired politicians raised legal issues and shared adverse public opinions on the matter. Social media exploded in critique and satire.

Indeed, in the past few days, it seems to me that the top Government leaders have been going into overdrive, trying hard to convince Singaporeans that the Elected Presidency is an integral pillar of Singapore's commitment to multiracialism. The Government now appears to be well-aware of the unhappiness on the ground caused by its manoeuvres to install President Halimah.

Sir, this Motion does not seek to deal with the wider issues of the Presidency, nor multiracialism, which are worthy of much longer airtime. Neither is it my purpose to go into the legal arguments, some of which have been aired in our Courts in July.

This Motion focuses on the Parliamentary debates, and one aspect only of those debates. What did the Government tell Parliament was the basis for counting Reserved Presidential Elections under the hiatus-triggered model, and was what the Government told Parliament accurate? To cut to the chase, did the Prime Minister, Deputy Prime Minister Teo Chee Hean and Minister Chan Chun Sing make misleading statements to the House that the question of which President to count from was a legal question? Did the Government all along make a policy decision itself to count from President Wee Kim Wee? Did the Government merely use the Attorney-General's Chambers' (AGC's) advice as a cover to avoid full Parliamentary debate on why the count was not starting from President Ong Teng Cheong?

To answer this question, it is necessary to start with what happened in November during the debate on the Constitution (Amendment) Bill. During that debate on 8 November, the Prime Minister told the House the following:

"… the symbolic role of the President is just as important as his custodial role. As a symbol of the nation, the race of the candidate is relevant. So, while individually, a good candidate of any race will be satisfactory, collectively, over a period of time, we need that mix of Presidents of different races, and the election mechanism must be designed to produce such a mix over time. This is what the hiatus-triggered model delivers."

"When should the racial provision start counting? The Constitutional Amendment Bill states that the Government should legislate on this point. The Government intends to legislate when we amend the Presidential Elections Act in January next year."

"We have taken the Attorney-General's (AG's) advice. We will start counting from the first President who exercised the powers of the Elected President, in other words, Dr Wee Kim Wee. That means we are now in the fifth term of the Elected Presidency."

"…Therefore, by the operation of the hiatus-triggered model, the next election, due next year (2017), will be a reserved election for Malay candidates." Unquote. That was the Prime Minister's speech.

Sir, the clear impression given to Members was that the Government's decision to count from President Wee Kim Wee was based on the AGC's advice. That must have been why the Prime Minister sequenced the sentences as he did, that having taken the AGC's advice, the Government was counting the five terms from President Wee Kim Wee. The Prime Minister did not say that the Government intended to count from President Wee Kim Wee and that the AGC had merely confirmed that it was acceptable to do so.

Sir, it seems that the media had a similar impression. In a Channel NewsAsia (CNA) report on 8 November, there was a headline which read as follows, reporting on the debate:

"Next Presidential Election to be reserved for Malay Candidates. Prime Minister Lee says the Government has taken the Attorney-General's advice that the racial provisions in the review of the Elected Presidency will start counting from Dr Wee Kim Wee."

That was the headline. The impression that it was the AGC which advised the Government to count from President Wee was perpetuated the next day, 9 November, by Deputy Prime Minister Teo Chee Hean. During clarification time, I rose to expressly recall that the Prime Minister had said that the decision to count from Dr Wee Kim Wee was "based on the AGC's advice on how to count the terms". I asked whether the Government was prepared to publish that advice.

Deputy Prime Minister Teo did not reply immediately. After a Cabinet huddle, Deputy Prime Minister Teo eventually rose and responded as follows:

"On the reserved elections and how to count, I would like to confirm that this is indeed the Attorney-General's Chambers' advice. And if not, and you do not think that is correct, I think it is possible if you wish to challenge judicially."

Let me repeat what he said.

"On the reserved elections and how to count, I would like to confirm that this is indeed the Attorney-General's Chambers' advice. And if not, and you do not think that is correct, I think it is possible if you wish to challenge judicially."

Mr Deputy Speaker, Sir, any reasonable person hearing those words would assume the following:

(a) That the AGC had advised the Government how to count; and

(b) That the AGC's advice involved a question of law. Why else would I be asked to challenge it judicially?

As the debate went on, I was asked whether I was suggesting that the Prime Minister had falsely told the House that such was the advice of the AGC. I repeated that my interest was in asking for the AGC's advice to be published. Deputy Prime Minister Teo then told the House that he would ask the Prime Minister to consider publishing the advice.

Three months later, on 6 February, this House held a Second Reading debate on the Presidential Elections (Amendment) Bill. What struck me in preparing for the debate was that the Bill contained a new Schedule with a Table, stipulating that the count was to start from President Wee Kim Wee. It dawned on me then that the Government had simply wanted Parliament to make new law to stipulate that the count should start from President Wee Kim Wee. It was completely a Government decision.

When I put it to the Government that counting from President Wee Kim Wee was "an arbitrary and deliberate decision to achieve a desired outcome", Minister Chan Chun Sing rejected my assertion. He told the House that the Government had decided not to publish the AGC's advice. Minister Chan further said:

"The Government is confident of the advice rendered by the Attorney-General. We proceeded on that basis during the debates on the constitutional changes in this House. Prime Minister Lee explained to all why we needed the hiatus-triggered mechanism, and we passed the Constitution (Amendment) Bill. We are here today to put the nuts and bolts in place for a decision made clear by the Prime Minister during the debates in November. And we will not go through this again…"

He continued: "Ms Lim once again questioned the Attorney-General's advice. I am a bit bewildered by this. I would like to clarify: (a) is Ms Lim suggesting that the Attorney-General did not give the Government the appropriate advice; or (b) that the Prime Minister has not been truthful with the Attorney-General's advice? If it is the first, then I think Ms Lim, as suggested by Deputy Prime Minister Teo, can challenge this in the Courts. But if it is the second, then I am afraid it is a very serious issue to cast aspersions on the integrity of our Prime Minister."

Sir, we should note what happened here. Instead of confirming that it was the Government who made the decision to count from President Wee, Minister Chan explicitly said that the Government was confident of the AGC's advice and proceeded on that basis to make the Constitutional changes. He said he did not want to reopen the debate on the count from President Wee, even though Parliament was then asked, for the first time, to enact the Table stipulating the count from President Wee. Here we were debating a law that would practically rewrite history, by deeming President Wee as the first Elected President. Yet, instead of the Government using the opportunity to clarify the matter and any misimpressions created, it chose, instead, to impute sinister intentions to me. And that was how the Parliamentary debates on the reserved Presidential Elections ended.

Sir, with this background, we now turn to what happened next in the Court proceedings brought by former Presidential Election candidate, Dr Tan Cheng Bock. In High Court Originating Summons No 495 of 2017, Dr Tan sought a declaration from the Court that the amendment to the Presidential Elections Act in February to count from President Wee Kim Wee was unconstitutional. In other words, his case was that Parliament had passed an unconstitutional law in February when it legislated the Schedule to the Presidential Elections Act, with the Table to count the hiatus from President Wee.

Sir, prior to commencing his case, Dr Tan had obtained the opinion of a prominent Queen's Counsel (QC) in London, considered an expert on Westminster-model Constitutional Law. The advice received was that Parliament's amendment to the Presidential Elections Act to count reserved Presidential Elections from President Wee Kim Wee was unconstitutional. The basis for this opinion was that one had to read the Constitution in a purposive manner, that is, the Constitution should be interpreted in a way that furthers its purpose. Since the purpose of the Constitutional amendment was to cure the problem of five Presidential Elections not turning out a candidate from a particular ethnic community, counting from President Wee did not make sense, since he was never elected. This would mean that it was proper to count only from President Ong Teng Cheong or later. If that were to be done, this year's Presidential Election would still be open to candidates of all communities.

Sir, although Dr Tan's case has now been dismissed by the Court of Appeal, what is most telling is the stand taken by the AGC in the case. Deputy AG Hri Kumar, a former People's Action Party (PAP) Member of Parliament, represented the Government. He made the following submissions to the Court. Before the High Court on 29 June 2017, the Deputy AG said:

"The Prime Minister never said that the AG advised the Prime Minister to start the count from President Wee. What the Prime Minister said is that the AG advised that what the Government was proposing to do was legitimate." This is from the Official Court transcript.

Mr Hri Kumar further submitted that the decision on which President to count from was a policy matter for the Government and not a legal question. He argued that, "the AG was in no position to tell the Government where to start the count from."

On 31 July, before the Court of Appeal of five judges, the Deputy AG repeated his position even more vividly. He submitted that the AGC's advice was "irrelevant". He also tried to explain away the Prime Minister's speech on taking the AGC's advice. He said:

"One should not look at speeches like statutory instruments. The Prime Minister had made it clear from his speech that President Wee was not a popularly elected President, but a President who exercised the powers of an Elected President. Then he says, fifth term of Elected President. A convenient term used in his speech. He was not defining presidency in this context as Elected Presidency."

That was Mr Hri Kumar Nair's submission to the Court. Sir, I was in Court when he made that submission, which to me, was astonishing. Was the Deputy AG saying that we should not take the Prime Minister's speech literally but loosely? Not place too much weight on the terms the Prime Minister used in making a keynote speech to Parliament to amend the Constitution?

Indeed, the Deputy AG's submission that the Prime Minister would use terms "for convenience" drew some scepticism from one of the Judges, who remarked from the Bench that the Prime Minister was speaking in a Parliamentary debate and would not refer to the Elected President "for ease of convenience".

Mr Deputy Speaker, Sir, the Government's reference to the AGC's advice has confused Members and also the Courts. The Ministers kept consistently referring to the AGC's advice as the basis for the legislative changes. Yet, the Deputy AG says in Court that the advice is "irrelevant". I would like all parties interested to look at the Court transcripts to see how the Courts struggled with trying to make sense of what the Government was saying in Parliament with regard to the AGC's advice.

Mr Deputy Speaker, the mysterious AGC's advice has still not been produced before Parliament nor the Courts. I can only assume that revealing the advice would not be useful to the Government.

Even if one were to give the benefit of doubt to the Prime Minister to assume that the Prime Minister's speech in November was just ambiguous rather than misleading, it is also deeply troubling that nobody from the front bench sought to correct the impression given. The Ministers must have known that the House understood that the Government was acting on AGC's advice on how to count, that there were legal questions involved. Yet, nobody came out to clarify that, "Hey, actually, it was the Government who decided to count from Wee Kim Wee, it was a policy decision. Nevertheless, we have sought the AGC's blessing to cover ourselves". This was never told to us.

Sir, as things stand, the Courts have now decided that which President to count from for the Reserved Presidential Election is, indeed, a policy decision for Parliament.

The Government's handling of the Parliamentary debates on the legislative changes for a Reserved Presidential Election has been most unsatisfactory. Here we are, debating changes affecting the highest office in the land, yet the Government decides to engage in ambiguous language and red herrings. We in this House should have been told in no uncertain terms that it was the Government that wanted to count from Wee Kim Wee. The Government should have defended its own decision on why counting from President Wee was appropriate. It should not have evaded the debate by using the AGC's advice as a distraction and then gone to Court to say that the AGC's advice was irrelevant.

Sir, with the benefit of the additional knowledge from the Court case, I now think back of the Parliamentary debates when the Government refused to publish the AGC's advice despite repeated requests. Did the Government refuse to publish the advice because doing so would have made it clear that the decision to count from President Wee was initiated by the Government and the Government alone?

Be that as it may, the Deputy AG has now told us that the AGC's advice was merely sought to legitimise what the Government itself wanted to do. Sir, the Government should have told Parliament directly that counting from President Wee was its decision and defended the decision on the merits. Instead, it chose to distract and confuse.

The Government's inconsistent explanations would further fuel the suspicions of Singaporeans about the real intention behind the legislative changes that resulted in this year's Presidential Election being a closed one.

Mr Deputy Speaker: Minister Shanmugam.

7.20 pm

The Minister for Home Affairs and Minister for Law (Mr K Shanmugam): Mr Deputy Speaker, I would like to make a few points.

First, the Government has been always very clear and upfront on the policy objectives of this hiatus-triggered reserved elections framework. It has been 46 years since we have had a Malay President and our challenge was how to achieve both meritocracy and multiracialism where qualified candidates from different races can regularly be elected to be our Head of State.

When the Prime Minister announced the appointment of the Constitutional Commission to review the Elected Presidency system, he said, our President is the Head of State, he represents all Singaporeans in our multiracial society. As such, it is important that the minorities have a chance to be elected and that this happens regularly.

Second, the Government has always been clear that when it comes to the counting, it is a policy matter for Parliament to decide. Ms Sylvia Lim protests far too much.

I made this clear upfront. In a dialogue session held after the Government released its White Paper, I was asked the following question: when would the circuit breaker to hold the Reserved Election after a racial group has not been represented in Presidential Office after five continuous terms come into effect?

What was my reply? "The most direct answer is actually, the Government can decide. When we put in the Bill, we can say we want it to start from this period. It is … a policy decision…" CNA reported it. It is still on record.

Ms Sylvia Lim: Read some more.

Mr K Shanmugam: The Court of Appeal has confirmed that it was for Parliament to decide. Ms Lim said she was present. She heard that this Judge asked that question; that was said, this was said. Why does Ms Lim not read the judgment?

There is only one person in this House whom the Courts have held to be misleading Parliament and he is not from the PAP. Only one person, after evidence is heard − Ms Lim knows whom the High Court held was misleading Parliament. So, I suppose Ms Lim knows all about misleading Parliament.

The Court of Appeal's judgment makes clear a number of things.

First, the constitutional text is clear that Parliament can choose from any of the five terms preceding the 2017 elections.

Second, the Prime Minister's speech in Parliament on the constitutional amendments made it clear that Parliament intended to give itself the discretion to specify the last term of President Wee as the first term to be counted for purposes of deciding whether an election is reserved.

Members can read the part Ms Lim quoted from the Prime Minister. I do not see anything that is ambiguous.

The point is this − and we are not changing history here; Ms Lim is a lawyer, she knows this − Dr Wee, in the second term, exercised the powers of an Elected President. There is nothing ambiguous about that. That is a matter of clear law. Parliament could have started counting from Dr Wee; could have started counting from an earlier President. Parliament decided to start from Dr Wee. It was made very clear that it was a policy decision. But in the context of that, for example, if we wanted to start from Dr Wee, are there any legal impediments to start counting from Dr Wee? I am just talking about one question amongst many that can arise. There are a number of questions that can be asked and there were also provisions relating to minority rights and so on. And I said that we are asking AGC to advise us on a number of questions. That was, I think, on the CNA transcript.

So, the Prime Minister was entirely right to say: we will start counting from here, the next elections will be reserved for a Malay President and we have taken advice from AGC.

What Ms Lim is saying is that we are starting to count from here because of AGC's advice. That was never suggested. We start counting, we are a careful Government, we make a policy decision, but we take advice to see whether there are any impediments. And this Government, as a rule, generally does not publish legal opinions that it gets. If it can be done according to the law, we do it. If the law has to be changed to achieve policy objectives, we do it.

And I said it upfront, well before the Parliamentary proceedings. And the Prime Minister was totally clear. And the Court of Appeal said the Prime Minister was very clear.

What Deputy AG Hri Kumar said in court is: you do not try and take every Member of Parliament's speech and every Minister's speech and then try and interpret it as if it is statutory interpretation. You go back to the legislation.

And we had a long spiel, totally irrelevant, about the QC's advice. Ms Lim knows what happened to the QC's advice in Court, she carefully omits saying anything about that. And we know how QC's advice can be obtained.

What matters is what the Court of Appeal has said. And the Court of Appeal has been very clear. They said that the Prime Minister has been very clear. They looked at the proceedings. They looked at the legislation. This argument that it was unconstitutional does not have any leg to stand on, because the Constitution provided for Parliament to legislate, and Parliament legislated. Nobody is suggesting that Dr Wee was elected. It is an untruth that is attributed to the proceedings. What is suggested is that he was the first person to exercise the powers of an Elected President.

And is there any legal impediment for us to start counting from there? These are questions which others may just decide for themselves. But we will usually ask AGC for advice on these things. And that is exactly what − you know if you look at the context − we decide, and we check with AGC. The Prime Minister said it, Deputy Prime Minister Teo on second day said it, and Minister Chan said it a few months later.

The Court of Appeal, as a matter of law, said AGC's advice is irrelevant. AGC also argued in Court that their advice is irrelevant. Absolutely so. Because for the legal question of whether a provision is unconstitutional or constitutional − and Ms Lim really should know about this, instead of spending so much time making a point out of nothing − the question before the Court is: this particular provision in the Presidential Elections Act, is that constitutional or unconstitutional?

What does the Court have to do? The Court has got to look at the constitutional provisions, it has got to look at the provisions in the legislation. It can have a reference to Parliamentary debates, if the provisions are not clear, and decide how it interprets, which is what the Court of Appeal did.

And in that context, what one party − the Government's lawyers told the Government, or what the other party's lawyers told the other party − Dr Tan Cheng Bock − are completely irrelevant.

That is a legal argument AGC put forward, and that is a point that the Court of Appeal also makes. But that is quite different from the Prime Minister, in Parliament, explaining that: "Look, you know, these are the steps we have taken. We have also taken AGC's advice." He is telling that to the Members. It is the truth, but it is irrelevant as a matter of law. Surely, the Member knows the difference.

Let me, therefore, summarise and say this, Mr Deputy Speaker, Sir. The Government made it clear, right from the time when the Prime Minister issued instructions, in terms of within Cabinet and then set out a letter explaining what he wanted to do, the terms of reference; and then, when the Constitutional Commission was set up, he also explained to the public that having a minority representation is an important issue and he wants the Constitutional Commission to consider that issue, amongst other issues.

Then, we have the Constitutional Commission's report. The Government made clear in the White Paper exactly what its approach was, including on the reserved elections. And then, we explained it on the ground, district by district. I said on record − and I am happy to be shown any other part; Ms Lim suggests that I said something else, somewhere else − that is quite untrue, I am very clear and careful about what I say and I am happy to be confronted with anything else I might have said.

I said: this is a policy matter for us to decide. And that we are taking advice on a number of issues. I am paraphrasing because I do not have it in front of me. Why would I go and say it is a policy matter if I thought it was a pure legal issue? If Ms Lim is right, then I was misleading all of Singapore.

Mr Deputy Speaker: Minister Shanmugam, you have 30 seconds to wrap up.

Mr K Shanmugam: Thank you, Sir. I will use up the 30 seconds and sit down. So, we were very clear. It is a policy matter. And that is on the record. The Prime Minister took the same position; he explained in Parliament: we decide, but we took AGC's advice. The next day, Deputy Prime Minister Teo Chee Hian, and subsequently, Minister Chan Chun Sing, took the same positions. Did anyone say: "We are going to decide this way because this is the way that AGC has told us that we have to decide"? That would make no sense, because Parliament is sovereign. Ms Lim must know Parliament is sovereign. If there is a certain legal approach, then we can change the law. You have got to read whatever statements I have made in the overall context that Parliament is sovereign. Its will is sovereign − and the real issue is: can we achieve what we want, within the current framework of taking this approach? Or do we need to make some changes? I think it is quite clear. Thank you, Sir.

Mr Deputy Speaker: Order. The time allowed for the proceedings has expired —

Mr K Shanmugam: Sir, can I please read what the Prime Minister actually said, and put it on record?

Mr Deputy Speaker: You have 30 seconds.

Mr K Shanmugam: Yes. "We have taken the Attorney-General's advice. We will start counting from the first President who exercised the powers of the Elected President" − so, no rewriting of history here − that was "Dr Wee Kim Wee. That means we are now in the fifth term of the Elected Presidency. We also have to define the ethnic group of each of the Elected Presidents we have had so far. There is no practical doubt, but as a legal matter, we have to define it".

Mr Deputy Speaker: Order. The time allowed for the proceedings has expired.

The Question having been proposed at 7.05 pm and the Debate having continued for half an hour, Mr Deputy Speaker adjourned the House without Question put, pursuant to the Standing Order.

Adjourned accordingly at 7.35 pm.