Wednesday, 10 May 2017

Tan Cheng Bock files High Court application challenging reserved Presidential Election; Legal challenge to reserved election fails

Tan Cheng Bock goes to court to ask why Elected Presidency starts from Wee Kim Wee
By Nur Asyiqin Mohamad Salleh, The Straits Times, 9 May 2017

Former presidential candidate Tan Cheng Bock has filed an application in the High Court to question the Government's decision to reserve the upcoming presidential election for Malay candidates.

He wants the court to decide if the Government's counting of the five presidential terms needed to trigger a reserved election is consistent with constitutional amendments to the elected presidency.

In his application, which includes a statement from top British constitutional lawyer David Pannick, Dr Tan contends that the counting of five terms should start with Mr Ong Teng Cheong. The Government had started counting from the term of Mr Wee Kim Wee, the first president vested with the powers of the elected presidency.



A Supreme Court spokesman said yesterday that the High Court had accepted Dr Tan's filings on Section 22 of the Presidential Elections (Amendment) Act 2017.

In a Facebook post last night, Dr Tan, 77, said he filed the application last Friday, and a pre-trial conference has been fixed for May 22.

His legal challenge follows a press conference in March, when he spoke on the Government's decision to implement changes to the elected presidency this year.

Last November, Parliament passed changes to the Constitution to ensure the presidency reflects Singapore's multiracial society. A provision was included for presidential elections to be reserved for candidates from a racial group that has not been represented in the office for five continuous terms.

In January, the Presidential Elections Act was amended. The Government, on the advice of the Attorney-General (A-G), started counting the five terms from Mr Wee, who was in office when the elected presidency took effect in 1991. After him were Mr Ong; Mr S R Nathan, who served two terms; and current President Tony Tan Keng Yam.

At the March press conference, Dr Tan called on the Government to refer its decision to the courts, saying: "I am concerned that the changes were introduced to prevent my candidacy."

He had announced his second bid last year, while a review of the elected presidency was ongoing.

Yesterday, he said he had not heard from the Government about the points he raised.

"Since this is a matter of national importance, I sought to find the legal answer and consulted the best constitutional lawyer I could find," he added.

He turned to Lord Pannick, a Queen's Counsel who is also a member of the House of Lords.

Dr Tan said he sent Lord Pannick, among others, the report by the Constitutional Commission that reviewed the elected presidency, the Government's White Paper on its recommendations, and parliamentary reports.



He said Lord Pannick disagreed with the A-G's advice, and said Section 22 of the Act was unconstitutional. "I could not keep his legal opinion to myself. It would be in the public interest to have the court decide which legal view is correct," he said.

Lord Pannick led the successful legal challenge to stop British Prime Minister Theresa May from triggering Britain's exit from the European Union without a vote in Parliament.

Dr Tan is represented by law firm Tan Rajah & Cheah.

"I believe this question can be answered without confrontation or hostility. Both the Government and I have the nation's best interest at heart. It is in nobody's interest to have a reserved election that is unconstitutional," he said.

































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* Court dismisses challenge to first reserved election
Constitution doesn't say only popularly elected presidents can be considered, it says
By Joanna Seow, The Straits Times, 8 Jul 2017

The High Court ruled yesterday that Parliament has the right to start counting from the term of former president Wee Kim Wee for the purposes of reserving the upcoming presidential election for Malay candidates.

The reason is that the Constitution does not restrict Parliament to consider only presidents that are elected by Singapore citizens when deciding the timing of an election for a racial group, said Justice Quentin Loh in his judgment.

The Constitution also allows the term of a president elected by Parliament, in this case Mr Wee, to be included in the five terms needed to trigger a reserved election.

Justice Loh made this key point yesterday when dismissing a legal challenge brought by former presidential candidate Tan Cheng Bock on the timing and basis of the reserved presidential election for Malays in September. "From the perspective of ensuring multi- racial representation in the presidency... it makes no difference whether the president was elected by the electorate or by Parliament," he said in a 65-page judgment.



Changes to the Constitution were passed last year to allow for elections to be reserved for candidates from a particular community, if no one from that community has been president in the past five terms.

The Government counted the first of the five terms as Mr Wee's term, as he was in office when the elected presidency took effect in 1991. There have been four other terms since, ending with current President Tony Tan Keng Yam.

Dr Tan Cheng Bock said this was unconstitutional, and that the reserved election should take place in 2023 at the earliest and not this year. His lawyer, Senior Counsel Chelva Retnam Rajah, said Mr Wee's term should not be counted. He cited parts of the Constitution that referred to the president as someone elected by the citizens and serving a six-year term.

Mr Wee, he said, was elected by Parliament and served two four-year terms.

This means Parliament can start its count only from the term of Mr Ong Teng Cheong, the first popularly elected president, he added.

Deputy Attorney-General Hri Kumar Nair, representing the Government, argued that the articles in the Constitution on the reserved election did not specifically exclude presidents elected by Parliament.

This means Parliament has "full discretion" to take into account Mr Wee's term, Mr Hri Kumar added.

Justice Loh ruled that the Constitution does not specify that only a popularly elected president can be considered in determining when an election should be reserved.

While the Constitution "reflects our prevailing constitutional arrangements at any given time", the overarching definition of "president" in Article 2 has not changed since it was included in 1980, he said. This definitionspecifies the term "president" means any person elected president under the Constitution.

Justice Loh noted the definition was retained through two major constitutional changes to the elected presidency in 1991 and this year. He said: "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."

Ultimately, Parliament is free to start the count from Mr Ong, any president after Mr Ong, as well as Mr Wee, he said, and 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 took effect in 1991, the law provided for Mr Wee to continue for the rest of his term, and vested in him the powers and duties of an elected president. This was similar to a provision made in 1965, after independence, for Yang di-Pertuan Negara Yusof Ishak to continue as president, he said.

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

Justice Loh said contesting the election is not a fundamental right akin to freedom of speech and religion, among others, which are enshrined in the Constitution.

Due to the president's important role, the Constitution specifies stringent expertise and experience for people to qualify as a presidential candidate, which not everyone can meet. In this light, the right to stand for the election is plainly very different from the fundamental rights in the Constitution, he said.

The Attorney-General's Chambers did not ask for legal costs. Mr Hri Kumar said this is because Dr Tan has indicated he will not be pursuing costs.

In a post last night on Facebook, Dr Tan said his lawyers are studying the judgment. "I am, of course, disappointed with the result and will announce whether I will appeal, after this weekend," he said.















Other points addressed in Justice Quentin Loh's 65-page judgment
The Straits Times, 8 Jul 2017

WHAT IS THE PURPOSE OF THE RESERVED ELECTIONS?

Senior Counsel Chelva Retnam Rajah, for Dr Tan Cheng Bock, said it is to address a specific problem: the possibility that open elections will not result in minority candidates winning from time to time.

By this measure, only the term of a popularly elected president should be considered in determining when to trigger reserved elections, he said.

Deputy Attorney-General Hri Kumar Nair said the aim of reserved elections is to ensure multiracial representation in the office.

The fact that there has not been a Malay president for a long time, he added, is troubling regardless of how presidents are elected.

Justice Quentin Loh, agreeing with Mr Hri Kumar, 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 multiracial character of our country."

Interpreting the law in this light, he said, it made no difference that Mr Wee Kim Wee - the first president vested with powers of the elected presidency - was elected by Parliament and not the people.

Parliamentary debates on the issue cited by both sides also show that Parliament was aware of the Government's intention when it passed the laws, he added.

Starting the count from Mr Wee's term ensures that "after a passage of 46 years... Singapore will have its first Malay president since Mr Yusof Ishak", he said.


SHOULD ATTORNEY-GENERAL'S ADVICE MATTER?

Prime Minister Lee Hsien Loong had said during parliamentary debates: "We have taken the Attorney-General's advice. We will start counting from the first president who exercised the powers of the elected president, in other words, Mr Wee Kim Wee."

This was cited by both sides to support their case.

Mr Hri Kumar said this meant Parliament was aware of the intention to count from Mr Wee's term when it passed the Presidential Elections (Amendment) Act 2017, which spells out the nuts and bolts of the reserved elections.

Mr Rajah contended that the Attorney-General's advice was wrong, and asked the court not to put too much weight on Parliament's intention.

Justice Loh said: "I do not know what the Attorney-General's advice was. But more importantly, the reason I have placed weight on the relevant statements is because they reflect Parliament's intention."

He said that ultimately, Parliament had decided on the reserved elections with the knowledge that it allows Mr Wee's term to be counted.

Whether this was based on the Attorney-General's advice or otherwise is not relevant, he added.


DID DR TAN HAVE STANDING TO LAUNCH A LEGAL CHALLENGE?

Justice Loh also ruled that Dr Tan had standing to bring the challenge to court.

Although it was not a subject of contention, he addressed it, saying he considered several reasons.

He said Dr Tan got a "very credible number of votes" in the 2011 Presidential Election, and had publicly announced his intention last year to stand again.

Reserving the coming election for Malays disqualifies Dr Tan from running, and if the counting of the five terms was unconstitutional, Dr Tan may then be a candidate.

Citing these reasons, Justice Loh said Dr Tan has satisfied the requirements of having the standing to bring the challenge to court.









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