SINGAPORE -The Court of Appeal on Wednesday (Aug 23) unanimously dismissed the appeal of former presidential candidate Tan Cheng Bock over the timing of the reserved election.

The decision clears remaining legal doubts over the Government's decision to reserve the election in September for Malay candidates, and paves the way for the Writ of Election to be issued.

Dr Tan had argued it was unconstitutional for the Government to start its count of the five terms to trigger a reserved election from the term of president Wee Kim Wee, as he was not elected by the people.

The apex court, which had five judges hear this appeal, upheld an earlier judgment on July 7 that Parliament has the right to count from the term of former president Wee Kim Wee, for the purpose of reserving the upcoming presidential election for candidates from the Malay community.

It set out its reasons for doing so in a judgment released on Wednesday (Aug 23), that spelt out the correct interpretation of Article 19(B) and Article 164 of the Constitution.

Article 19(B) provides that an election for the office of the president shall be reserved for candidates of a particular community if no person from that community has held the office of resident for the five most recent terms of office.

Article 164 requires Parliament to specify, by separate legislation, the first term of office of the president to be counted for the purposes of deciding whether an election is reserved.

Both articles were introduced in their present form when Parliament passed amendments to the Constitution last year, following a review of the elected presidency by a Constitutional Commission, which also consulted the public.

Dr Tan's lawyer, Senior Counsel Chelva Retnam Rajah, had argued that to determine when a reserved election should take place, Parliament can only start counting the five terms of office from among those of the presidents elected directly by the citizens of Singapore.

THE COURT'S REASONING

But the court held that reading both articles together showed that Parliament has the freedom to select, as the first of the five most recent terms, a term of office that predated the coming into force of the recent amendments to the Constitution.

This is for the purpose of determining when the reserved election scheme would take effect.

Also, the court found that the definition of a president elected under the Constitution covers presidents who were elected by Parliament and those who were elected by the citizens of Singapore.

Given all of this, "there is then no logical or principled basis for drawing the line at 1991", said the judgment.

Mr Rajah had sought to exclude presidents elected under the Constitution prior to its amendment in 1991, the year when there was a major electoral reform to the office of the president. He said a president must be someone who was popularly elected.

Opposing him was Deputy Attorney-General Hri Kumar Nair, who said the constitutional definition of president included those who were elected by Parliament and by the people.

The court also found that some of the supplementary material submitted by Dr Tan's legal team were irrelevant to how the law should be interpreted.

In particular, the report issued by the Constitutional Commission which recommended the introduction of the reserved election, and the White Paper issued by the Government which accepted that recommendation, were not relevant to the appeal.

This is because they concerned the concept of the reserved election, rather than the specific question of when the count could start to determine if an election would be reserved.

The court found that the remaining relevant materials confirmed the court's reading of Article 19(B) and Article 164.

"There was nothing to suggest any fetter on Parliament's power to specify President Wee's second and last term of office as the first term," said the judgment.

Lastly, the court rejected the argument of Dr Tan's lawyers that Parliament's specification of President Wee's term as the first term was based on the misapprehension that President Wee was a president elected by the citizens.

It pointed out that nothing in Prime Minister Lee Hsien Loong's statement, or those of any other MPs, suggests that they believed that President Wee had been elected by the citizens instead of by Parliament.

Rather, PM Lee's statement explicitly stated that President Wee was chosen because he was the first president to exercise the functions of the elected president, said the court.

Dr Tan's arguments in appeal

- Definition of president in Article 2 of the Constitution refers only to presidents elected by citizens. Hence Parliament could not specify President Wee Kim Wee's term as the first because he was elected by Parliament.
- From a reading of extraneous material - Parliamentary debates, the CC report and Govt White Paper - Parliament intended to specify the term of a president elected by citizens as the first term.
- Parliament's specifying WKW's term as the first term was based on misapprehension of the law that WKW was a president elected by citizens.

AGC's arguments in response

- Parliament has unlimited power to specify the first term. Article 19B focuses on those who have been president, not how they came to hold the office.
- Parliament's specific intention was to specify WKW's last term as the first term for the purposes of the reserved election.
- TCB (and the court) does not know the content of AG's advice and has concluded it must have been wrong because it differed from his own interpretation.

COA's reasons for dismissing appeal

- It is Parliament's right to decide when to start the count, be it in 1991 or earlier, and it is a fact that WKW was the first president to exercise the powers of the EP
- Extraneous material is not relevant because it did not address when and how the count should start
- No one said WKW was the first elected president, and everyone is clear that he was the first person to hold the office of the EP