AGC cannot just change our political history without any explanation – Dr Tan Cheng Bock

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The following is the text of Dr Tan Cheng Bock’s press conference today.

2017 SHOULD BE AN OPEN PRESIDENTIAL ELECTION

(Dr Tan Cheng Bock’s Press Conference on 31st March 2017)

1. Thank you everyone for making the time to attend this Press conference.

2. I call this press conference to ask the government whether it is correct to make the 2017 Presidential Election a reserved election. I think it should be an open election.

3. For those new to Singapore politics, our Constitution was recently changed. We now have a new Article 19B(1). This reserves an election for a racial group if no one from that community has been President for the 5 most recent Presidential terms.

4. The purpose for reserved election was explained in the Constitutional Commission’s report dated 17 August 2016. They said that a reserved election for a minority group should only be invoked if VOTERS do not CHOOSE someone from that minority group as President after 5 consecutive presidential terms produced by free and unregulated elections.

5. Let’s look at what the Constitutional Commission Report originally said (Constitutional Commission Report dated 17 August 2016):

“5.36 … if free and unregulated elections produce Presidents from a varied distribution of ethnicities, the requirement of a reserved election will never be triggered.

5.40 … This may be illustrated in the following scenario: An election is reserved for racial group A because no candidate from racial group A has been ELECTED for 5 consecutive terms”.

6. The “free and unregulated” elections mentioned by the Commission, is what many people call “open elections”. It is not closed to a specific group of candidates. It is a presidential election where candidates of all races can stand, and voters can elect a President who is Chinese, Malay, Indian or any other race.

7. The Government said the Attorney General’s Chambers (AGC) advised the Prime Minister that 2017 will be our 1st reserved election. This is based on AGC counting 5 consecutive presidential terms beginning with President Wee Kim Wee.

8. I question whether AGC’s method of counting is actually in line with the spirit and purpose put forward by the Constitutional Commission for having a reserved election.

9. The AGC included a nominated President in their count. But the Commission’s emphasis was on open elections, where voters fail to vote in a minority president.

a. Let me read for you what the Commission said again:

“5.36 … if free and unregulated elections produce Presidents from a varied distribution of ethnicities, the requirement of a reserved election will never be triggered.

5.40 … This may be illustrated in the following scenario: An election is reserved for racial group A because no candidate from racial group A has been ELECTED for 5 consecutive terms”.

b. The Government White Paper published on 15 Sept 2016 accepted this position. At paragraph 81 and 82, they explain,

“81(b) … A reserved election will never arise if free and unregulated elections produce Presidents of varied ethnicities. It will only be invoked if there has not been a President of a given ethnicity for an “exceedingly long period.

82 The Govt agrees with the approach proposed by the Commission.”

c. On 7 Nov 2016 in Parliament, DPM Teo Chee Hean at the 2nd reading of the Constitutional Amendment Bill repeated that a reserve election will only come into play if OPEN ELECTIONS fail to return a President from the different races. I quote at paragraph 107(b) of his speech “..it will only come into play if open elections fail to periodically return Presidents from the different races”.

d. So, open elections is the trigger for reserved elections.

e. DPM Teo then introduced the new Article 19B of our Constitution at paragraph 109 of his speech by saying that “Elections will generally be open to candidates from all races.” “However, if a particular racial group has not held the Presidency for the most recent 5 consecutive terms, Article 19B(1) reserves the next election for that group.”

f. Reading DPM Teo’s statements, which adopted the Commission’s report and the White Paper, it is obvious that 5 open elections must first take place before there is a reserved election.

g. So his reference to “the most recent 5 consecutive terms” to be counted must therefore mean “the most recent 5 consecutive terms PRODUCED BY OPEN ELECTIONS”.

h. However one day later, on 8 Nov 2016, PM Lee told Parliament that AGC had advised the Government to count 5 consecutive terms of presidents who exercised elected powers. So AGC counted from Dr Wee Kim Wee 5 Presidents with elected powers. PM Lee said:

“We have taken the Attorney General’s advice. We will start counting from the first President who exercised the powers of the Elected President. That means we are now in the fifth term of the elected Presidency.“

i. The counting is clearly different from what the Commission said previously. If you recall, the Commission said that “An election is reserved for racial group A because no candidate from racial group A has been elected for 5 consecutive terms”. The Commission’s emphasis was on open elections and not Presidents who exercised elected powers.

j. So AGC’s trigger and the Commission’s trigger for reserved elections are different.

10. Unfortunately, there was no debate on whether AGC advised the Government correctly. The Government also declined the opportunity to explain this in Parliament. As a result of AGC’s advice, 2017 became a reserved election year.

11. So we need to know why the AGC did not advise the PM to count 5 “open elections” in line with the spirit and purpose of the Commission? And why did the AGC also advise the PM that Singapore is now in the fifth term of the Elected Presidency when only 4 presidents have been returned by open elections?

12. History shows that Singapore has only invoked 4 open presidential elections. The Prime Minister only issued 4 writs of Presidential Elections: in 1993, 1999, 2005 and 2011.

13. Our 1st open election produced President Ong Teng Cheong. President Nathan returned unopposed in the 2nd and 3rd open elections. The 4th open election produced President Tony Tan. Following the Commission’s recommendations as accepted by the Government, 2017 should be an open election.

14. President Wee never stood for election. He was a President nominated by Government. He only exercised the powers of an elected president for less than ½ a term. Those powers were given to him by Parliament as a transitional provision. But his term was never an Elected Presidency. That is the view of a respected constitutional law professor in Singapore. He said: “Although he exercised all the discretionary powers of an elected president, the first truly elected President was Ong Teng Cheong.” (https://singaporepubliclaw.com/2016/08/25/elected-president/)

15. In all my 26 years in Parliament we had always referred to Mr Ong Teng Cheong as the first elected President. Our Presidents past and present, and Ministers and MPs in Parliament have ALL referred to President Ong Teng Cheong directly or indirectly as Singapore’s first elected president and the 1st elected presidency. Even the Constitutional Commission’s Report contains a statement calling President Ong Teng Cheong the first elected president. That is also the view of most, if not all, Singaporeans I’ve spoken to.

16. To summarise, I have put forward the reasons why I think 2017 should be an open election year. I think my understanding is consistent with the Commission’s spirit and purpose for introducing reserved elections. The AGC should have counted the 5 most recent presidential terms produced by open elections. This starts with President Ong Teng Cheong.

17. I now invite the Government or the AGC to explain why they counted the presidential terms of presidents who exercised elected powers. If need be, the Government can refer AGC’s opinion to Court for independent judicial verification. After all, the Courts have the final say on legal issues in Singapore. And a recent high profile Court of Appeal case has shown that the AGC is not always correct in their legal opinion.

18. If the Government double-checks the AGC’s advice with the Court, then Parliament and the people of Singapore can be satisfied beyond doubt that the constitutional changes they are making stand on strong legal foundations.

19. But if the Government simply accepts AGC’s advice without explaining why they accepted the accuracy of the opinion, I am concerned that our Elected Presidency will always be tainted with the suspicion that the reserved elections of 2017, was introduced to prevent my candidacy.

20. How we do things is as important as what we do.

21. On this note, I would urge the Government to explain, or refer AGC’s opinion to Court to confirm whether AGC’s advice is in sync with the Commission’s spirit and purpose for having reserved elections.

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