Elected Presidency White Paper: Changes to law on entrenching powers of the elected president

Major changes to the elected presidency proposed by a constitutional commission have been largely accepted by the Government, but with significant differences which it spelt out in a White Paper.
Chief Justice Sundaresh Menon (right), speaking on the third day of the Constitutional Commission hearing, held at the Supreme Court on April 26, 2016.
Chief Justice Sundaresh Menon (right), speaking on the third day of the Constitutional Commission hearing, held at the Supreme Court on April 26, 2016. PHOTO: ST FILE

SINGAPORE - Parts of the Constitution that safeguard the elected presidency will be amended to give the Government greater flexibility in updating the presidential system, without having to hold a national referendum each time it wants to do so.

The parts that will be changed are two provisions that "entrench" the president's powers - that is, protect them by making it difficult for Parliament to alter these powers.

Currently, these provisions - set out in Article 5A and Article 5(2A) - impose strict conditions that must be met before Parliament can pass the amendments.

Under these Articles, the President can veto any attempt by Parliament to amend the Constitution to curtail his powers.

To override the presidential veto, Parliament must get the support of two-thirds of the population in a national referendum.

Neither of the provisions has been in force. In fact, the Government had suspended them indefinitely.

But an indefinite suspension may not be appropriate, said the Constitutional Commission in a report last week on its review of the elected presidency.

Yesterday, the Government explained why it had suspended the provisions.

 

It also proposes to re-craft the provisions into a two-tier system.

But the new system will not be put into force for now, said the Government: "It is best to let some time pass, see how the institution works over time, before entrenching."

The reason for its cautious approach was to strike a balance between a Constitution that is too rigid and almost impossible to amend, and an overly flexible Constitution that can be altered by a simple majority vote in Parliament.

Singapore's Constitution needs to be able to continually evolve to meet changing needs, but a national referendum makes this hard.

A two-thirds majority of the electorate will be difficult to get on most issues. Indeed, it is such a high bar, there are only two other instances in the Constitution that require it.

They are: deciding whether to surrender Singapore's sovereignty or control of its armed forces or police force, and amending the provisions governing these decisions.

The issues in a referendum to override a presidential veto will also be complex and unable to be resolved by a simple "yes" or "no" vote.

The framework making it difficult for Parliament to change the laws of the elected presidency is also too broad now. The framework covers more than just the president's core job of safeguarding the reserves and making key public appointments.

It also includes operational details related to the presidency and even provisions completely unrelated to the presidency.

A new two-tier system

In view of this, the Government proposes to separate critical changes to the presidency from non-critical changes, which relates more to procedures.

It also suggests setting different standards for each category.

The first tier of provisions establishes the elected presidency and its powers.

If the Government wants to change them but the president and the Council of Presidential Advisers (CPA) disagree, the Government will need the people's support in a referendum to override the presidential veto.

But if the president and the CPA do not agree on the veto, the Government can go ahead and make the change if two-thirds of Parliament supports it.

The CPA's advice should be given more weight because a presidential veto of these fundamental changes has wide-reaching effects, and should be supported by "at least a majority" of his advisers.

The second tier covers how the president operates.

The Government argued that it was important for it to have the flexibility to amend these operational details, and to ensure they evolve over time as needs change.

 

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If the Government wants to change the second-tier provisions but the president and the CPA disagree, the presidential veto can be overridden if three-quarters of Parliament support the changes.

If the CPA disagrees with the president on his veto, then the change can still go ahead with the support of two-thirds of Parliament.