The Constitutional Commission has produced its report. The key suggestions are not unexpected given the terms of reference of the commission.
As expected, the qualifying criteria have been made more stringent and a system for minority reservation has been proposed.
However, what took me by surprise was the last section of the report where the commission made an unsolicited suggestion to revert to the old Appointed Presidency and to introduce an alternative check and balance mechanism in the form of a Council or Parliamentary second chamber having a revising role. This suggestion was couched as a framework for future debate. Clearly, it couldn’t be a recommendation as it was outside the scope of the terms of reference given to the Commission.
Having examined the history and development of the Presidential office and having considered all the representations, it is clear that the Commission notes an inevitable tension in the office of the Elected Presidency. It is difficult to reconcile the historical role of a unifying President with the role inevitably trust upon an elected individual. For better or for worse, elections and the process of the electoral battle, draw a line between the contestants and as with voting for general elections, there are battle lines and divisions that appear across the electorate. The Commission rightly points out the inevitable politicisation of the office of the President.
In fact, if we think about it carefully, the last Presidential election that was so hotly contested was also a very divisive one. The candidate who was eventually elected was subject to many derisory remarks. It was hardly a contest that was capable of throwing up a unifying figure as the President.
The Commission states at para 7.43 of the report:
“But after 25 years and amidst an evolving environment, the Commission notes the emergence of strains rooted in the unavoidable tension between the President’s historical and custodial roles, which was alluded to at the beginning of this report. 367 . The former requires that he be non-partisan and a unifier of the nation, while the latter potentially requires him to confront the Government of the day – a task which is somewhat at odds with the role of a unifier. Furthermore, while the prospect for such confrontation necessitates that the President hold the legitimacy and authority that comes from having an elected mandate, it seems out of place for persons seeking a nonpartisan unifying office to have to go through a national election, which will likely be politicised and divisive.”
Any concerns about losing the symbolism of having a President from various communities can easily be addressed by having an appointed President as we did in the past. It would therefore be unnecessary to go through the elaborate arrangements currently sought by the government. I have always been in favour of the old system of having an appointed President. We didn’t need this mess of an Elected Presidency. It is heartening to read about the fact that the Commission seems to prefer the appointed Presidency.
I accept the point raised by the Commission that there is a need for checks and balances and that the appointed President is not the appropriate person to perform that function. The Commission recommends a possible alternative to check on Parliamentary and governmental decision-making by having a Council or Second Parliamentary Chamber. This may well be an advisable route for us in the long run.
I’ll leave you with the Commission’s thoughts on this matter. The Commission noted the contributions of Dr Loo Choon Yong, Loo Choon Hiaw and Assoc Prof Eugene Tan in their oral representations to the Commission. With reference to that the Commission concluded:
7.46…….. The same contributors proposed “unbundling” the President’s symbolic and custodial roles and assigning them to two different institutions. The important custodial role should be largely preserved but vested in a council of highly-qualified experts. The President would retain his symbolic and ceremonial role of the Head of State, as it had been at independence, and hold an appointed office. Parliament would abide by the convention of rotating the office among the different ethnic groups.
7.47 The Commission considers that this is a proposal that the Government may wish to consider if and when it is appropriate and timely to undertake a more fundamental change to the Presidency.
7.48 The Commission suggests that the unbundling of the President’s custodial role and its devolution to a specialist body could be operationalized in the following fashion. The custodial function over the nation’s fiscal reserves and key public service appointments could be vested in an appointed body of experts. The Commission conceptualises such a council of experts as a second chamber of Parliament with the ability to delay measures, force a debate upon them and require the Government to override any objections only with a super-majority. Hence, unlike the Elected President, the council, as an appointed body of experts, would never have the power to absolutely veto or block Government initiatives (as the Elected President presently does when he has the support of the CPA). But through a combination of raising the issue, forcing a debate on the council’s objections and requiring a super-majority, a suitable balance could be struck between the need to safeguard our critical assets on the one hand, and, on the other hand, enabling the Government to act.
7.49 In this respect, the Commission finds some guidance from the Westminster system, where the House of Lords (which primarily comprises appointed, as opposed to elected, members) has the power to delay, but not to block, the vast majority of bills passed by the House of Commons. Indeed, the Commission notes that second chambers with mainly appointed (as opposed to elected) members are not uncommon. Other examples include the Rajya Sabha in India, and the Dewan Negara in Malaysia. The US Federal Reserve Board also serves as an example of an appointed body of experts that is tasked to function independently and with the authority to make systemic financial decisions that have global ramifications (although the Commission notes that the Federal Reserve Board model was explicitly considered as an option by the First White Paper but ultimately not pursued).
7.50 The question might be asked whether such a role could equally be played by an appointed President. The Commission considers that it is a matter of paramount importance that the holder of the second key be, and be manifestly seen to be, independent of the holder of the first key. As long as the President is appointed by Parliament, this essential requirement would not be met. In contrast, an appointed council of experts could focus on the technical aspects of the custodial role without being distracted by political issues or worry about having to be elected. The key consideration will be to ensure that this body, though it consists of appointed members, in fact functions independently and has the requisite expertise to carry out its supervisory functions. To this end, its members should be subject to stringent eligibility criteria along the lines of those currently applicable to Presidential candidates.
7.51 To secure the independence of such a council, it will be necessary to devise the appointments process with care. For illustration only, the appointers could comprise a diverse range of key public servants, including those who currently appoint members of the CPA, namely, the Prime Minister, the Chief Justice and the Chairman, PSC, as well as representatives from industry and other interest groups and possibly a cross-party Parliamentary select committee. Nominations to the appointed body could be staggered as has been proposed above in relation to the CPA (see paragraph 6.30 above) to further enhance the council’s independence and ensure continuity in its work.
7.52 With the appointed body taking over the Elected President’s custodial role, the President can then focus on his historical role of being a symbolic unifying figure. He would retain his historical functions (such as, the appointment of a Prime Minister) and possibly also the protective functions (see paragraph 3.10 above). He would be a distinguished citizen of Singapore and be appointed by Parliament to serve with distinction.
7.53 The Commission has set out its thoughts on this issue only for the Government’s consideration and, if the Government deems it fit and profitable, further debate. The Commission does so only as a group of citizens which has had the privilege and the duty of undertaking an extensive study in the history, the purpose and the position that the President occupies in Singapore’s unique constitutional scheme.”