Law allows Parliament to count Wee Kim Wee's term in triggering reserved presidential election: High Court

Dr Tan Cheng Bock at a press conference at Sheraton Towers on March 31, 2017. PHOTO: THE BUSINESS TIMES

SINGAPORE - Parliament is free to start counting from Mr Wee Kim Wee's term as president for the purposes of reserving the next election for Malay candidates, the High Court ruled.

In dismissing a legal challenge on the timing and basis of the upcoming reserved presidential election, Justice Quentin Loh said: "The recent constitutional amendments reflect a re-emphasis on the president's unifying role and the conviction that, in order for the president to fulfil that role, that office must reflect the multi-racial character of our country."

"From the perspective of ensuring multi-racial representation in the makes no difference whether the president was elected by the electorate or by Parliament," he added in a 65-page judgement released on Friday (July 7).

Former presidential candidate Tan Cheng Bock had challenged the Government's decision to reserve the September presidential election for Malay candidates, saying that it is unconstitutional.

To ensure minority representation in the office of the president, the Constitution was amended to allow for elections to be reserved for candidates from a particular community, if no one from the community has been president in the past five terms.

The Government had counted the five terms starting with Mr Wee, who was in office when the elected presidency took effect in 1991 and was the first to be vested with its powers. There have been four other terms since then ending with current President Tony Tan Keng Yam.

Senior Counsel Chelva Retnam Rajah, representing Dr Tan, argued that this was not correct.

He cited parts of the constitution that referred to the president as someone elected by the citizens of Singapore, and other parts stating a president's term as six years, saying that only the terms of presidents fulfilling these conditions can be considered.

This means Mr Wee, who was elected by Parliament and served two four-year terms, cannot be included in the count.

By this reading, Parliament can only start its count from the term of former president Ong Teng Cheong onward, he said.

The Attorney-General's Chambers (AGC), representing the Government, argued that the specific articles in the Constitution dealing with the reserved election did not specifically exclude presidents elected by Parliament.

It added that this means Parliament has "full discretion" to decide which term of which president to take as the first of the five that would trigger the reserved election.

In his judgement, Justice Loh ruled that 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 that while the Constitution "is a document which reflects our prevailing constitutional arrangements at any given time", the overarching definition of president in the document has not changed since it was included in 1980.

This definition is found in Article 2 of the Constitution, and specifies that the term "president" means any person elected president under the Constitution, which includes presidents elected by Parliament.

Justice Loh noted that this definition was retained over the years, through two major constitutional changes to the elected presidency in 1991 and 2017.

"The fact that Parliament retained the definition...must be that the definition was of utility and valid because it would include Presidents elected by Parliament."

"Otherwise, all the presidents before President Wee would no longer be presidents 'elected under this Constitution'...this would mean that all their acts, including all the Acts of Parliament to which they assented, would fall away," he said.

Given this, Parliament's discretion on the issue of which president's term to include in the count is unfettered, he added.

Ultimately, Parliament was free to start the count from Mr Ong, any president after Mr Ong, as well as Mr Wee, said Justice Loh.

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

The judge also noted that when the elected presidency first came into force in 1991, the law had specifically provided for Mr Wee to continue to hold the office for the rest of his term, and had vested him with the powers and duties of an elected president.

This was similar to a provision made when Singapore first introduced the presidency after independence in 1965, so that then Yang di-Pertuan Negara Yusof Ishak could continue as president, he said.

Mr Rajah had also argued that the Court should favour an interpretation of the law that would delay the reserved election as far as possible, because such an election encroaches on the fundamental rights of Singaporeans to run in a presidential election.

However, Justice Loh said that standing in a presidential election was not a fundamental right akin to freedom of speech and religion, and prohibition of slavery, among others, that are enshrined in the Constitution.

"The president is head of state with important custodial powers. He is also a symbol of the dignity and honour of our people, a symbol of the unity and values of our country. He is our face to the world," he said.

For this reason, he noted, the Constitution specifies stringent expertise and experience for people to qualify as a presidential candidates.

In this light, the right to stand for election for the presidency is plainly very different from the fundamental rights in the Constitution, "because it is clear that not everyone can meet the qualifying conditions and requirements", he said.

The judge also addressed the issue of whether Dr Tan had the standing to bring the constitutional challenge to court, although this was not an issue of contention.

Justice Loh ruled that Dr Tan had standing, because he had gotten a "very credible number of votes" in the 2011 Presidential Election, and had publicly announced his intention last year (2016) to stand again.

He added if the changes to the law that have disqualified him were found to be unconstitutional, Dr Tan will then be able to put himself up as a potential candidate.

It is for these reasons that Dr Tan has satisfied the requirements of standing, the judge said.

Dr Tan's lawyer said on Friday that Dr Tan will consider the judgement and decide in the course of next week whether or not to appeal.

The deadline for filing an appeal is July 12.

The AGC did not ask for legal costs. Deputy Attorney-General Hri Kumar Nair said this is because Dr Tan had indicated he will not be pursuing costs.

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