Chief Justice reserves judgment on Tan Cheng Bock's appeal on presidential election

Mr Tan Cheng Bock arriving at the Supreme Court, on July 31, 2017.
Mr Tan Cheng Bock arriving at the Supreme Court, on July 31, 2017.ST PHOTO: DIOS VINCOY

SINGAPORE - The Court of Appeal has reserved judgment on former presidential candidate Tan Cheng Bock's appeal against a High Court decision on the timing and basis of the upcoming reserved presidential election.

A five-judge panel of the apex court, including Chief Justice Sundaresh Menon, heard arguments from both sides on Monday (July 31). The other judges are Judge of Appeal Judith Prakash, Judge of Appeal Steven Chong, Justice Chua Lee Ming and Justice Kannan Ramesh.

They did not say when their judgement will be delivered.

At the centre of the hearing was the question of how the Constitution defines "president".

Dr Tan's lawyer, Senior Counsel Chelva Retnam Rajah, argued that a president must be elected by the people in an open election for the purpose of triggering a reserved election.

But Deputy Attorney-General Hri Kumar Nair, representing the Government, countered that this was an attempt to limit the definition of president to delay the coming reserved presidential election in September.

Dr Tan, 77, had contested the counting of the five consecutive terms before a reserved election is triggered, in a legal challenge dismissed by Justice Quentin Loh on July 7.

The Government, in triggering the election under a provision to ensure minority representation, had started its count from the term of President Wee Kim Wee.

Mr Wee was in office when the elected presidency took effect in 1991, and there have been four other terms since including that of current President Tony Tan Keng Yam.

Mr Rajah argued on Monday that this was unconstitutional as Mr Wee was not popularly elected.

Citing articles from the Constitution and the Interpretation Act, he said the definition of "president" had changed since the elected presidency system was introduced in 1991. Under these changes, a president has to be popularly elected.

Given this, he added, the Government can only start its count from the term of President Ong Teng Cheong and the presidents after him, so the reserved election should start in 2023 at the earliest.

He added that the Government, in changing the laws to ensure minority represenation, had wanted to fix the problem of minority candidates not being voted into office in open elections.

Since this was so, the count to trigger a reserved election should necessarily only include presidents who are voted into office at the polls.

To this, Mr Nair said that Mr Rajah was putting the definition of president into a "smaller and smaller box" for the sole purpose of disqualifying President Wee's term from the count.

He added that under the Constitution, the definition of president had not changed since 1965, and includes any president who was elected under the Constitution.

This means the terms of presidents elected by Parliament can also be included in the count of the five terms, he said.

Mr Nair added that the sole question before the Court was whether the Government's decision to start the count from Mr Wee's term was legal.

He argued that it was legal, saying the law had given the Government unfettered discretion to decide which presidents' terms to include in triggering a reserved election.

He also said the Government had made a policy deicsion in choosing to start the count from Mr Wee's term, as it wanted to trigger a reserved election for candidates from the Malay community.

Singapore has not had a Malay president since President Yusof Ishak died in office in 1970.

After the hearing, Dr Tan said to reporters: "I think they got a fair hearing, that's very important...If (the court decides) we are wrong, then we will accept it. That's what democracy is all about - the exchange of ideas. But if we are right, then the Government must also accept it."

In the High Court judgment on the challenge, Justice Loh had ruled that Parliament, ultimately, has the right to decide which presidential terms to take into account.

He also said the Constitution does not specify that only a popularly elected president can be considered for the purposes of determining when an election should be reserved.

He added: "Parliament's choice of the first term is a policy decision which falls outside the remit of the courts."

In a Facebook post last week, Dr Tan highlighted the significance of having a five-judge panel hear the appeal.

"It points to the importance of the constitutional issues for clarification," he said.

CJ Menon had, in 2014, said the expansion of the apex court from three judges to five would allow "difficult or unsettled issues" to be resolved "with the benefit of the collective wisdom and insights of a larger pool of judges".

Dr Tan added in his post that some had asked whether CJ Menon should hear the case, given that he had chaired the Constitutional Commission convened last year to update eligibility criteria for the elected presidency and ensure it reflects Singapore's multiracial society.

The Constitutional Commission had recommended reserving an election for members of a racial group if it had not been represented in the presidency for five continuous terms. This was accepted by the Government and passed by Parliament, which decided this year's election should be reserved for Malay candidates.

Dr Tan said he welcomed the involvement of CJ Menon, adding: "In my view, no other judge knows more about the subject than the CJ.

"It is, therefore, proper and beneficial to Singaporeans that he is available to address questions on the reserved election scheme and its spirit and purpose," he said.

Dr Tan noted that last week, the court wrote to the Attorney-General as well as to his lawyers, led by Senior Counsel Chelva Rajah of Tan Rajah & Cheah, to ask if either party had any objections to CJ Menon sitting at the hearing.

Both sides said there were none, he added.