Speech by DPM Teo Chee Hean at 2nd Reading of Constitutional of the Republic of Singapore (Amendment) Bill

DPM Teo Chee Hean | 7 November 2016 | Transcript exactly as delivered

 

Madam Speaker,

1.          I beg to move, “That the Bill be now read a Second Time”.

I.           Introduction

2.          Before I begin, on behalf of the Government, I would like to thank the President for his considered and lucid statement, setting out the issues based on his experience. The Constitutional Commission submitted its report to the Prime Minister on 17 August 2016.

3.          The Government studied the report and responded by presenting a White Paper to Parliament on 15 September 2016.

4.          The proposed constitutional amendments were introduced at the First Reading of this Bill on 10 October 2016.

5.          The amendments seek to do two things to enhance the President’s important roles:

(a)       First, as a symbol and unifier of a diverse and multi-racial Singapore; and

(b)       Second, as a custodian of our nation’s past reserves and the integrity of our public services.

6.          Both are integral aspects of our multi-racial national identity and the foundations of our success.  

II.        Singapore’s Presidency

A.        Before Elected Presidency

7.          Let me begin with a brief history of our Presidency.

8.          When colonial Singapore attained self-government in 1959, the Yang di-Pertuan Negara was the Head of State. He represented the British Crown in Singapore.

9.          Upon independence in 1965, his constitutional title was changed to the “President”. Encik Yusof bin Ishak was our last Yang di-Pertuan Negara, and our first President.

10.      Like the British Monarch, the President was the ceremonial Head of State.

(a)       He had no executive role, and acted on the advice of Cabinet, save in respect of several historical constitutional functions such as appointing the Prime Minister and dissolving Parliament. 

(b)       His “central and defining” role was to be a symbol of national unity and a personification of the state, representing all Singaporeans, regardless of race, language or religion.

B.         The need for the Elected Presidency

11.      The Elected Presidency was first conceptualised in the 1980s, to guard against the risk of a profligate government squandering the nation’s reserves

12.      We must understand this risk in the particular context of the Westminister system of government that we had inherited.

(a)       English constitutional commentator Walter Bagehot observed that the strength of this system is the “[near] complete fusion, of the executive and legislative powers”.

(b)       This promotes efficient governance, and allows the country to move quickly and effectively, with clear direction and purpose.

13.      The Westminster system may be contrasted with systems of government that strictly separate their constituent branches. The price, however, of strict separation is inefficiency, and sometimes even paralysis or deadlock.

(a)       The United States, for example, experienced this very recently in 2013. Political fights over healthcare laws led to a budget impasse that resulted in a 16-day shutdown of the US Government.

(b)       During this time, about 800,000 federal employees were indefinitely furloughed, and another 1.3 million were required to work without known payment dates.

14.      Every system of government has its own strengths and weaknesses.

15.      The system we inherited permits swift and effective decision-making, but it also means that, if a government chooses to act irresponsibly, there are very few restraints on it, and things can go very wrong, and very quickly. 

16.      As then-Prime Minister Lee Kuan Yew cautioned at his 1984 National Day Rally, “… all the reserves are available. The larder is wide open, you can raid it”.

(a)       Any government, including a temporary coalition, would have complete access to all levers of power and decision-making, with “untrammelled power” to abuse the reserves and public services.

(b)       Irresponsible governments may use Singaporeans’ savings to buy short-term popularity, or appoint friends to high places to exploit these for personal gains rather than for the public good.

(c)       A single 5-year “spending spree” could bankrupt us and dismantle everything that we have built.

17.      We therefore carefully studied and debated various options to guard against the risk of this occurring in the future.

18.      Parliament decided that the most effective solution for Singapore was to establish an Elected Presidency with specific veto powers.

(a)       As before, the President would have no power to initiate action, and no policy-making role. The right and responsibility to govern the country would remain with Parliament and the Cabinet.

(b)       However, he would have additional non-executive custodial powers over 2 important areas: the spending of past reserves and key appointments to the public services. In order to effectively disagree with an elected Government in these areas, the President himself had to be elected with direct mandate from Singaporeans.

(c)       The symbolic role of the Presidency as a unifier and symbol of our nation would remain unchanged and undiminished.

19.      At the time the Elected Presidency was proposed, and still today, many, including Opposition parliamentarians, agreed with the need to protect our key assets.

20.      However, some argue that the best protection comes from within Parliament itself. We need to consider this matter carefully.

21.      The Parliamentary framework itself may not provide sufficient protection for our reserves. If a majority government decides to indulge in populist spending of the reserves, there is really little or no incentive for any other Parliamentarian to resist it. Indeed, the call, from both sides of the House, will often be to do more.

22.      Thus far, our Government has exercised financial prudence and great restraint in spending the reserves. But this is not the norm elsewhere. We see cautionary tales of elections descending into auctions, with political parties competing with each other to promise greater largesse from the nation’s coffers.

(a)       Take Greece, for example, where political parties engaged in a “disastrous competition” to offer patronage, cronyism, nepotism, and welfare populism. Once the populist policies were set in place, it was difficult to turn back as it would be “political suicide” for any party to do so. The end result was economic and political bankruptcy and a younger generation that finds that its future has been mortgaged.

(b)       Australia is another example. They have tightly contested elections in rapid 3-year electoral cycles. One party comes up with a programme, the other offers more, each trying to outbid the other. This has led successive governments to continue spending accumulated surpluses from a resource boom, which are, by now, gone.

23.      The Elected Presidency plays an important custodial role in safeguarding our key assets, in a way a purely Parliamentary process cannot.

(a)       It is a unique institution, separate from Parliament, that has the electoral mandate to veto the government in the 2 key areas.

(b)       It also deters political parties from making wild promises at Parliamentary elections. They know that even if they come to power, they cannot splurge our past reserves on populist measures.

24.      For the past 25 years, the Elected Presidency has helped to strengthen Singapore’s governance, by keeping watch over our nation’s savings and enabling their use appropriately in times of crisis.

25.      We saw the system at work in the 2008 Global Financial Crisis.

(a)       Faced with crippling circumstances, the Government sought the approval of the then-President, the late Mr S R Nathan, to use nearly $5 billion of past reserves to save businesses and jobs, and to guarantee about $150 billion of bank deposits to keep confidence in Singapore. President Nathan meticulously examined the proposals, consulted the CPA, and ultimately gave his approval.

(b)       When our economy recovered, the sum drawn down was returned by the Government to the past reserves by 2011.

C.        The need for review

26.      Madam Speaker, over the past 25 years, refinements have been made to the Elected Presidency from the experience gained from operating the system. However, there remained certain fundamental aspects of the office that had not been reviewed.

27.      The Government therefore appointed an independent Constitutional Commission earlier this year to review:

(a)       the qualifying process for Presidential candidacy;

(b)       the safeguarding of minority representation in the Presidency; and

(c)       the framework governing the President’s custodial powers.

28.      The Commission was chaired by the Chief Justice and included eight other distinguished members from the public and private sectors.

29.      It conducted extensive consultations, including public hearings.

(a)       It received more than 100 written submissions from many sectors of society, and invited 20 contributors to make oral representations across 4 public hearings. 19 of the 20 contributors invited did so, while the Workers’ Party indicated that it would make its points at this debate instead. 

(b)       The public hearings were widely reported in the media, and there were many discussions on the issues.

30.      The Commission studied all these representations, then published a detailed report of more than 150 pages, setting out its recommendations.

31.      After considering the report, the Government presented a White Paper to this House explaining our position and the details of the proposed constitutional amendments which are the subject of this Bill.

III.     The Proposed Amendments

32.      Madam Speaker, I will now turn to the Bill. With your permission, Madam Speaker, may I ask the Clerk to distribute the first handout? PDF icon 01 - Overview Handout.pdf

33.      I will discuss the proposed amendments in the following order:

(a)       First, eligibility criteria and the Presidential Elections Committee (“PEC”);

(b)       Second, multi-racial representation in the Presidency;

(c)       Third, the framework governing the Elected Presidency’s custodial powers, including the role of the Council of Presidential Advisers (“CPA”); and

(d)       Fourth, the Entrenchment framework.

A.        Eligibility and PEC

34.      First, eligibility and the PEC.

1.          Background

35.      When the system of Parliament appointing the President was replaced by direct elections in 1991, a pre-qualification approach was established to ensure that “voters are given qualified and suitable candidates to choose from”.

36.      This was necessary because the Elected President had to be a person who “fulfil[s] exacting standards of competence, experience and rectitude”.

37.      In his custodial role, he can prevent access to past reserves and veto budgets, transactions, and key appointments.

(a)       He cannot simply rubber-stamp the Government’s proposal or pass off the CPA’s recommendation as his own. He must make his own decision in the exercise of his discretion.

(i)         That means he must have knowledge, competence and discernment to assess whether proposals are in the national interest.

(ii)       He must have the courage, conviction and confidence to disagree, where necessary, with the CPA and the elected Government.

(b)       If he does not perform his role well, he may allow hard-earned money – the hard-earned money of all Singaporeans – to be frittered away needlessly, or prevent the Government from acting in a time of need to avert a crisis.

38.      Several contributors to the Constitutional Commission argued against the imposition of stringent eligibility criteria by comparing the Presidential eligibility criteria with the apparently less exacting eligibility criteria prescribed for the Prime Minister.

39.      However, as many of these contributors subsequently conceded, this is a false comparison.

40.      A person only becomes a Prime Minister after passing through “many stringent tests of leadership”.

(a)       He must be elected as an MP in the general elections.

(b)       He will generally lead and be endorsed by the political party which wins a majority of Parliamentary seats.

(c)       He must command the support of a majority of elected MPs. These MPs would have had the opportunity to scrutinise his abilities and values closely.

41.      These requirements mean that there is a multi-layered filtering process where a person’s abilities are tested before he is likely to become Prime Minister.

42.      The President comes into office by a different route. He is elected into office directly by the public. There needs to be eligibility criteria that set a baseline for the experience and qualities which a candidate ought to possess.

43.      If eligibility criteria are necessary for the Presidency, then the question is whether the current criteria serve as effective thresholds for Presidential candidature. Some clearly require updating because they are out of date.

44.      The economic environment we live in is very different from when the Elected Presidency was introduced in 1991. Our GDP, Official Foreign Reserves and CPF balances have grown by approximately 6, 7 and 8 times, respectively.

45.      Just consider the eligibility criteria for private sector candidates:

(a)       In 1993, there were only 158 companies, or about 0.2% of Singapore-incorporated companies then, which met the $100m paid-up capital requirement.

(b)       Today, there is a much larger base of Singapore-incorporated companies, and the smallest of the top 0.2% has a paid-up capital of approximately $431m, and if you go back to the 158th largest Singapore-incorporated company, that – today – has a paid-up capital of approximately $1.6b.

46.      There is therefore a need to update and refine the eligibility criteria.

2.          Changes to eligibility criteria

47.      Clause 7 of the Bill amends Article 19 for this purpose. With your permission, Madam Speaker, may I ask the Clerk to distribute the second handout? PDF icon 02 - Eligibility.pdf

48.      Currently, a person can qualify for Presidential office by having held, for 3 years, a position in any of the 4 limbs of the existing Article 19(2)(g).

(a)       The first 3 limbs, which have been referred to as the “automatic track”, give automatic qualification to any candidate who satisfies their requirements.

(i)         Limb (i) admits holders of certain key public offices. 

(ii)        Limb (ii) admits chairmen or CEOs of Fifth Schedule statutory boards.

(iii)        Limb (iii) admits chairmen or CEOs of companies with a paid-up capital of at least $100m.

(b)       Limb (iv) has been called the “deliberative track”. Qualification is not automatic, and an applicant has to satisfy the PEC that he has held a position that has given him experience and ability comparable to those under the first 3 limbs.

49.      These 4 limbs still exist under the revised framework. However, a new presentation is adopted in the new Article 19(2)(g)(i).

(a)       The current limbs (i) and (ii) are housed under the public sector service requirement found in the new Article 19(3).

(b)       The current limb (iii) is housed under the private sector service requirement found in the new Article 19(4).

(c)       As for the current limb (iv), each of the “public sector” and “private sector” routes will have its own “deliberative” track for qualification.

50.      Please refer to Handout 2.

51.      The Bill retains the 3-year qualifying tenure, but introduces, in Article 19(2)(g)(ii), a “look-back” or currency period that applies to all qualifying routes.

(a)       Any period of service a candidate relies on must fall partly or wholly within the 20 years that immediately precede the date of the writ of election.

(b)       This ensures that each candidate’s experience and ability is reasonably current.

52.      In light of this revised presentation, the existing Article 19(3) and (4), which relates to disabilities of the President, is deleted and re-enacted by Clause 8 of the Bill as the new Article 19A.

53.      I will now elaborate on the public and private sector service requirements.

(i)         Public sector service requirement

54.      The public sector service requirement may be satisfied in 4 alternative ways.

(a)       Key public offices

55.      The first way is by holding the key public offices set out in Article 19(3)(a).

(a)       This list remains identical to the existing limb (i).

(b)       It is a “tightly drawn” list of senior officeholders who have handled “complex matters [with] a wide-reaching public dimension”.

(c)       There is no current need to modify the list because the demands of these offices are self-adjusting over the years.

The scope and complexity of these officeholders’ responsibilities will increase alongside the development of our country.

(b)       Fifth Schedule entities

56.      The second way to satisfy the public sector service requirement is by serving as the chief executive of a Fifth Schedule entity, as provided for by Article 19(3)(b).

57.      As compared to the existing limb (ii), Article 19(3)(b) narrows the qualifying offices to only the “chief executive” of the Fifth Schedule entity.

(a)       “Chief executive” is defined in Article 19(10) as “the most senior executive … who is principally responsible for the management and conduct of the entity’s … business and operations”.

(b)       This change ensures that candidates who automatically qualify have sufficient experience in exercising authority, managing large organisations and taking responsibility for making critical and major decisions with wide-ranging and long-term consequences.  

58.      Article 19(3)(b) also  expands the qualifying entities beyond the Fifth Schedule statutory boards, to also include Fifth Schedule government companies such as GIC Private Limited and Temasek Holdings (Private) Limited.

(a)       These companies are key institutions that manage significant amounts of the national reserves.

(b)       Indeed, they are so important to the national interest that the appointment of their chief executives and their annual budgets are subject to Presidential oversight.

59.      To ensure that Fifth Schedule entities are of sufficient size, Clauses 13(b) and 14(b) of the Bill update the qualifying threshold for adding entities to the Fifth Schedule, from $100m to $500m. 

60.      Clause 34 of the Bill removes MND Holdings from the Fifth Schedule, as it is now defunct.

(c)       Deliberative track – public sector

61.      The third way to qualify under the public sector route is through Article 19(3)(c), which provides the public sector “deliberative” track.

62.      It applies to a person who has served for 3 or more years in an office in the public sector, for which:  

(a)       The PEC must be satisfied that, having regard to the nature of the office and his performance in that office, he has experience and ability comparable to a person who has held a qualifying key public office or has been the chief executive of a Fifth Schedule entity.

(b)       The PEC must also be satisfied that he has the experience and ability to effectively carry out the Presidential functions and duties.

63.      Examples of persons who may persuade the PEC that they qualify under this track include, for instance, ambassadors of international stature with deep diplomatic experience, who have played key roles in negotiations for complex international agreements requiring political and financial acumen and judgment.

A person with extensive experience helming a major international organisation may also qualify.

(d)       Aggregation of terms – public sector

64.      The fourth way to qualify under the public sector route is through Article 19(3)(d), which allows for aggregation of 2 separate terms of qualifying public sector office for the purpose of satisfying the 3-year requirement.

(a)       Each of these terms must be at least one year in length.

(b)       For example, a person who has served as a chief executive of a Fifth Schedule entity for 2 years and as a Permanent Secretary for one year will qualify,

provided that each of those terms falls wholly or partly within the 20-year window.

(ii)       Private sector service requirement

65.      The private sector service requirement may be satisfied in 3 alternative ways.

(a)       Private sector companies

66.      The first way is by serving as chief executive of a company that meets the criteria provided by Article 19(4)(a).

67.      As with Fifth Schedule entities, only holders of the most senior executive position will qualify.

68.      4 other substantive criteria must be met.

(a)       First, Article 19(4)(a)(i) requires that the person’s most recent period of service as the chief executive of that company, ignoring any period of service less than a year, must be at least 3 years.

(b)       Second, Article 19(4)(a)(ii) read with 19(7) sets a size requirement for the company: the company must have, on average, at least $500m shareholders’ equity during the person’s most recent 3-year period of service as chief executive.

(i)         As explained in the White Paper, the assessment metric is changed from paid-up capital to shareholders’ equity, because shareholders’ equity is a better indicator of a company’s size and complexity.

(ii)       The updated quantitative threshold of $500m reflects the vastly different economic climate today, compared to 25 years ago.

(iii)     While the increase in the quantitative threshold may sound large, significantly more companies fulfil the updated size requirement today, than companies which fulfilled the existing criteria in 1993.

(c)       Third, Article 19(4)(a)(iii) requires that the company must have, on average, made profit after tax for the entire period during which the applicant served as the chief executive.

(i)         This includes discontinuous periods of service, and also periods of service falling outside the 20-year look-back period.

(d)       Fourth, Article 19(4)(a)(iv) introduces a solvency requirement. This applies to candidates who have ceased serving as chief executive of the company before the date of the writ of election.

(i)         The company must not have been subject to any insolvency event within 3 years of the applicant’s last day of service as the chief executive, or until the date of the writ of election, whichever is earlier.

69.      Under Article 19(5)(a), candidates may only rely on their most recent period of service in a given company, and the size requirement for that company must be met during that period. This prevents candidates from cherry-picking terms of office for qualification purposes.

(a)       Take, for instance, a candidate who was a company CEO for 6 years.

(i)         For the first 3 years, the company had an average shareholders’ equity of $500m. 

(ii)       But for the most recent 3 years, the average was below $500m.

(b)       The candidate cannot rely on the first 3 “successful” years of service to qualify for Presidential office,

as that was not his most recent period of service as chief executive of that company.

70.      Article 19(6) empowers the Legislature to specify how the PEC is to determine shareholders’ equity and profits after tax, as well as what constitutes an insolvency event.

The detailed definition of these concepts may change along with accounting standards and insolvency law.

71.      Article 19(7), (8) and (9) introduces an updating mechanism to permit increases to the minimum required amount of shareholders’ equity.

(a)       The amount can be increased if a committee, consisting of all PEC members:

(i)         recommends an increase; and

(ii)       Parliament by resolution either agrees to the full increase, or chooses to increase it by less than the recommended amount.

(b)       The committee must review the amount at least once every 12 years, but may do so more frequently if it chooses.

(c)       Parliament cannot raise the threshold when the office of President is vacant, or in the last 6 months before the expiry of the incumbent President’s term.

(d)       The updating mechanism cannot be used to decrease the minimum amount.

That can only be done via constitutional amendment.

(b)       Deliberative track – private sector

72.      The second way to qualify under the private sector route is through Article 19(4)(b), which provides for the private sector “deliberative” track.

73.      It applies to a person who has served for 3 or more years in an office in a private sector organisation.

(a)       The PEC must be satisfied that the person has experience and ability comparable to a person who has served as a chief executive of a typical private company with $500m in shareholders’ equity.

(b)       As with the public sector deliberative track, the PEC must also be satisfied that he has the experience and ability for Presidential office.

74.      Examples of persons who may persuade the PEC that they qualify under this track include, for instance:

(a)       chief executives of companies limited by guarantee;

(b)       managing partners of large partnerships; and

(c)       COOs or CFOs of exceptionally large or complex companies.

(c)       Aggregation of terms – private sector

75.      The third way to qualify under the private sector route is through the aggregation of terms under Article 19(4)(c).

76.      This operates similarly to aggregation of public sector terms, save that the private sector candidate may only rely on his most recent term in each company.

He is not entitled to cherry-pick his terms, as explained earlier.

3.          Vacation / removal from Presidential office

77.      Clause 16 of the Bill introduces amendments relating to vacation of and removal from the Presidential office.

78.      The new Article 22L(1)(aa) provides that a President vacates his office if he ceases to be a citizen of Singapore.

79.      The new Article 22L(3)(e) provides that the President can be removed if, in demonstrating his eligibility to the PEC, he intentionally or knowingly:

(a)       makes a materially false or misleading statement of fact; or

(b)       fails to state a material fact.

80.      Similar amendments will be made, in due course, to the grounds for rendering an election void under the Presidential Elections Act.

4.          Strengthening the PEC

81.      Clause 6 of the Bill repeals and re-enacts Article 18 to strengthen the PEC.

82.      With the changes to the eligibility criteria, the PEC members will have additional responsibilities, such as:

(a)       assessing if an applicant held the most senior executive position in a Fifth Schedule entity or private company;

(b)       assessing if a private company fulfilled the size, profitability and solvency requirements; or

(c)       determining whether the various eligibility criteria are fulfilled in situations involving aggregation of terms.

83.      They also have to sit on a committee to periodically review the minimum shareholders’ equity threshold.

84.      Article 18(2) augments the PEC with 3 additional members, so as to expand the PEC’s expertise to deal with these additional responsibilities.

85.      Currently, the PEC comprises 3 members:

(a)       the Chairman of the Public Service Commission (“PSC”), who is the PEC Chairman;

(b)       the Chairman of the Accounting and Corporate Regulatory Authority (“ACRA”); and

(c)       a member of the Presidential Council for Minority Rights (“PCMR”), nominated by the PCMR Chairman.

86.      Article 18(2) adds:

(a)       A past or current CPA member appointed by the CPA Chairman.

(b)       A person who must be qualified to be, or have been, a Judge of the Supreme Court, appointed by the Chief Justice.

(c)       A person who has private sector expertise and experience that is relevant to the functions of the PEC, appointed by the Prime Minister.

87.      The PEC will remain a standing institution. Article 18(3) stipulates that appointed PEC members will hold 6-year terms, and may be re-appointed.

88.      Article 18(4) provides the grounds on which a PEC member’s office may be vacated. Two of these bear elaboration.

(a)       First, Article 18(4)(c) provides that PEC members who are appointed to the PEC by an appointing authority can have their membership revoked by their appointers. This mirrors the existing approach for the PCMR member who sits on the PEC.

(i)         However, Article 18(6) specifies that an appointment cannot be revoked from the time a writ for a Presidential election is issued to the time a person is declared to be elected as President.

(ii)       This avoids changes to the PEC composition during an election period, which could lead to confusion and also to possible claims of influencing the elections.

(b)       Second, Article 18(4)(e) stipulates that the CPA member who sits on the PEC will vacate his PEC office under certain conditions.

89.      Article 18(5) and (7) provides for situations where a PEC member’s office falls vacant, or where a PEC member is unable to discharge his functions.

90.      Article 18(8), (9) and (10) deals with the PEC’s internal procedures.

B.         Multi-racial Representation

91.      I turn next to the issue of multi-racial representation in the Presidency.

1.          Symbolic role

92.      Madam Speaker, Singapore has progressed well as a multi-racial society. A recent survey by Channel NewsAsia and the Institute of Policy Studies (“CNA-IPS”) shows that Singaporeans strongly believe in meritocracy, and that a high proportion report living out multicultural ideals.

93.      However, there is a need to ensure multi-racial representation in the Presidency, given its historical and principal role as the symbol of our multi-racial nation. This unique role distinguishes the Presidency from all other public offices.

94.      Prior to 1991, Parliament had appointed Presidents who collectively represented all the different racial groups.

95.      As the President noted in his message earlier today, it was no coincidence that our first four appointed Presidents were Malay, Eurasian, Indian and Chinese, respectively.  

96.      As then-Senior Minister Lee Kuan Yew emphasised, this rotation was “important to remind Singaporeans that [our] country was multi-racial”, and the Elected Presidency had to continue to be “a symbol of a multi-racial community, and an expression of our national identity”.

97.      We are not alone in recognising the importance of multi-racial representation in the office of the Head of State. In Switzerland, Canada and New Zealand, the office is rotated among ethnic groups, or periodically held by racial minorities.

98.      Since the Elected Presidency was introduced, much public attention has been focused on the “technocratic” aspects of the President’s custodial function. The symbolic role of the Presidency has sometimes been overlooked.

99.      But the symbolic role remains of vital importance. It is necessary to continue emphasising this role, particularly because once we have direct elections, it is difficult to ensure that the Presidents will continue to collectively represent the different racial groups. This is a real concern – that members of minority groups may not be elected to the Presidency for long periods. This will undermine the President’s vital role as the symbol of our multi-racial nation.

2.          Argument from meritocracy

100.  Views have been publicly expressed, including before the Constitutional Commission, that special arrangements to ensure multi-racial representation in the Presidency detract from meritocracy.

101.  The argument is that a President must be elected on the basis of merit, and that race should be irrelevant to this determination.

102.  But multi-racial representation can be achieved while ensuring that meritocracy is not compromised. As noted in both the Commission’s Report and the White Paper, meritocracy-related concerns lose force if the eligibility criteria apply to candidates of all ethnic groups.

103.  Furthermore, as the Commission put it – “the most meritorious candidate may not always be the most electable”, because race “has an impact on at least a portion of the electorate”.

104.  Indeed, the CNA-IPS survey I referred to earlier showed that a significant proportion of respondents were not willing to accept a President from a race other than their own.

105.  Therefore, a candidate’s race may work against him in some situations, and may have a decisive impact in moderately close elections.

3.          “5-term hiatus” model

106.  In trying to ensure multi-racial representation in the Presidency, we must carefully balance a number of considerations.

(a)       the need for multi-racialism, with our meritocratic ideals;

(b)       helping, and not impeding, our progress towards our long-term goal of greater multi-racialism; and

(c)       having direct elections, while ensuring that Presidents from minority groups are elected from time to time.

107.  After considering many different models, the Constitutional Commission recommended a “5-term hiatus” model, which the Government has accepted.

(a)       It seeks to balance all the factors mentioned earlier.

(b)       It involves minimal intervention, and will come into play only if open elections fail to periodically return Presidents from different races.

108.  We also agree that a hiatus of 5 terms strikes a good balance.

(a)       If the hiatus is too long, the system may not meaningfully ensure that the Presidency is accessible to the various racial communities.

(b)       Conversely, if it is too short, the system comes close to designating successive elections for different races, which might not be appropriate in a system of direct elections.

(i)         Operational mechanics

109.  Clause 9 of the Bill inserts the new Article 19B to establish the “5-term hiatus” model.

(a)       Elections will generally be open to candidates from all races. 

(b)       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 candidates from that group.

(i)         The usual eligibility requirements continue to apply.

(c)       If, during a reserved election, no eligible candidate from the relevant racial group comes forward, the election becomes an open election.

(d)       There may be situations where 2 or 3 racial groups have not held the Presidency for 5 or more consecutive terms. Article 19B(2)(b) and (c) deals with such situations.

(i)         The general principle is that an election will first be reserved for the racial group which has had a longer hiatus from office.

(ii)       If no eligible candidates come forward, then the election becomes reserved for the racial group with the next longest hiatus, and so on.

This continues until the election eventually becomes an open election.

(ii)       Which communities?

110.     Article 19B(6) defines the 3 racial groups that reserved elections can apply to:

(a)       the Chinese community;

(b)       the Malay community; and

(c)       a composite group comprising the Indian community and other minority communities in Singapore.

111.  If a person does not fall within any of the three stipulated groups, he can still contest in open elections like any other Singaporean who meets all the usual requirements.

112.  The definitions for the Malay, Indian and other minority communities are identical to those adopted in the GRC context. It is useful to note that the “other minority communities” refers to groups that have some degree of history, permanence, and established presence in Singapore, such as the Eurasian community.

113.  A similar definition will be introduced for the purposes of determining whether a Presidential candidate belongs to the Chinese community.

114.  These racial community definitions have two aspects – an applicant must consider himself a member of the relevant community, and must also be generally accepted by that community as a member. In the GRC context, this approach has proven to be capable of handling situations involving persons of mixed heritage.

115.  The establishment of the committees and procedures to decide whether a person belongs to one of the three racial groups will be provided for by way of legislation subsequently.

C.        Framework of powers

116.  I turn now to the framework of the President’s custodial powers, which the CPA is an important part of.

117.  The CPA is an independent expert advisory body with varied and deep expertise. 

(a)       It helps to ensure that the President’s decisions are well-informed, and provides a stabilising effect so that the President’s important custodial function does not depend solely on the judgment of a single person acting alone. As the President said in his message, the CPA helps to “moderate” the President’s custodial powers.

(b)       The CPA also plays a role in resolving disagreements that may arise between the President and the Government, as I will explain later.

118.  Overall, we want the framework to facilitate wise and prompt decisions, with suitable mechanisms to resolve impasses. With your permission, Madam Speaker, may I ask the Clerk to distribute the third handout?  PDF icon 03 - CPA.pdf

119.  The Bill improves the framework by making changes to the following areas:

(a)       First, the President’s obligation to consult the CPA.

(b)       Second, the Parliamentary overruling framework.

(c)       Third, time limits for the exercise of the President’s veto.

(d)       Fourth, disclosure of the President’s and CPA’s reasons.

(e)       Fifth, strengthening the CPA.

120.  Other consequential amendments will also be made.

1.          Obligation to consult

121.  First, the President’s obligation to consult the CPA.

122.  The President is currently required to consult the CPA prior to exercising the discretionary powers listed in the existing Article 21(3). However, this requirement applies in relation to some, but not all, of his fiscal and appointment-related powers.

123.  The obligation to consult the CPA should apply uniformly to all such matters. 

124.  Clause 22 of the Bill introduces the new Article 37IA, which adopts this uniform approach.

125.  As a matter of legislative drafting, unlike the existing Article 21(3) which sets out a list of discretionary powers, Article 37IA(1) imposes a general duty on the President to consult the CPA before exercising any discretionary power conferred on him by the Constitution.

126.  Article 37IA(2) introduces 3 categories of exceptions to this general duty, for which the President may, but need not, consult the CPA:

(a)       First, the President’s additional protective functions relating to restraining orders under the Maintenance of Religious Harmony Act (“MRHA”), detention orders under the Internal Security Act (“ISA”), as well as investigations by the Corrupt Practices Investigation Bureau (“CPIB”).

(b)       Second, the President’s discretionary powers concerning the CPA under Part VA of the Constitution.

(c)       Third, the traditional discretionary powers that pre-date the Elected Presidency.

2.          Parliamentary overruling

127.  Second, the Parliamentary overruling framework.

128.  When the President consults the CPA, the CPA will deliberate the matter and provide its recommendations.

129.  Where the President and the Government agree with each other, the CPA’s views will not have any legal weight.

130.  However, where the President exercises his veto, a veto supported by the CPA should have greater finality than a veto exercised contrary to the CPA’s recommendations.

(a)       Where the President’s advisory council agrees with the Government instead of the President, the issue may warrant a “second look [by] Parliament”.

131.  This approach currently applies already, but only in two areas, namely:

(a)       Supply Bills; and

(b)       key appointments to the public service and Fifth Schedule entities.

132.  In these areas:

(a)       The President’s veto is final if he acts with the CPA’s support.

(b)       However, where he exercises his veto contrary to the CPA’s recommendations, a 2/3 Parliamentary majority may overrule his veto.

(i)         Whether, and when, to trigger an overruling is the Government’s prerogative, but the President’s veto stands unless it is successfully overruled.

133.  The new Article 37IF(1), (2)(a) and (c), and (3) extends the overruling mechanism uniformly to all fiscal and appointment-related matters subject to a Presidential veto.

134.  On a related note, I will later move an amendment to refine the overruling mechanism in relation to Fifth Schedule entities. Under the amended approach, a President’s veto of a Fifth Schedule budget or transaction can be overruled only where the relevant entity has requested for an overruling resolution to be moved and the Government decides to trigger the overruling mechanism. The entity’s board or management oversees its operations. They are responsible for the budgets and its transactions. They have the necessary information and context to assess whether to seek to overrule the veto. If the Fifth Schedule entity decides to accept the veto, that should be the end of the matter.

135.  Article 37IF(4) stipulates 2 areas in which the Article 37IF overruling mechanism does not apply.

(a)       First, it does not apply to the entrenchment framework, which has its own overruling mechanism.

(b)       Second, it does not apply to Article 22H, which allows a President to withhold assent from the passing of ordinary legislation if he is of the opinion that the legislation circumvents or curtails his constitutional discretionary powers.

3.          Time limits

136.  Third, time limits for the exercise of the President’s veto.

(i)         Time limits – President

137.  Where the President does not expressly exercise his veto, but instead chooses to remain silent, there could be ambiguity about whether the Government may proceed.

138.  There are currently a few areas, such as Supply Bills, in which the President’s failure to exercise his veto within a stipulated time limit will result in him being deemed to not have exercised his veto.

139.  Such a deeming mechanism ensures that the President’s silence does not result in any ambiguity. It should thus generally be applied to Presidential vetoes. 

140.  Clause 11 of the Bill inserts the new Article 21A to introduce this deeming mechanism and stipulate time limits for the President’s exercise of his veto powers.

(a)       Article 21A(2)(a) provides that a 30-day time limit applies for certain time-sensitive matters, namely:

(i)         Supply Bills, Supplementary Supply Bills and Final Supply Bills;

(ii)       the President’s additional protective functions relating to ISA detentions, MRHA restraining orders and CPIB investigations; and

(iii)     amendments relating to entrenched provisions, when the entrenchment framework is brought into operation.

(b)       For all other matters, Article 21A(2)(b) imposes a 6-week time limit. 

(c)       Article 21A(3)(a) provides that where the Prime Minister certifies that a matter is urgent, the default time limit can be reduced to a minimum of 15 days.

(d)       Article 21A(3)(b) provides that the President and Cabinet may extend time limits by mutual agreement. 

(e)       Article 21A(4) applies where a bill is referred to a constitutional tribunal for determination. The time from the reference to when the tribunal pronounces its opinion is not counted towards the President’s time limit. 

(ii)       Time limits – CPA

141.  Corresponding time limits will be set for the CPA to provide recommendations to the President.

This facilitates a good working understanding, and also ensures that the President has sufficient time to study the CPA’s recommendation.

142.  The new Article 37IB requires the President to immediately refer to the CPA any fiscal or appointment-related matter over which the President may exercise a veto power.

143.  This is when the CPA’s time starts running under the new Article 37IC(1).

(a)       If the President has a 30-day time limit, the CPA must make its recommendation within 15 days.

(b)       If the President has a 6-week time limit, the CPA must make its recommendation within 3 weeks.

144.  Article 37IC(2) allows abridgment of time limits where a certificate of urgency has been issued.

145.  The President may extend the CPA’s time limit under Article 37IC(3).

146.  In all cases, notwithstanding any extensions granted, the CPA must give its recommendation at least 5 days before the President’s time limit for signifying his decision.

147.  If the CPA fails to give its recommendation within the stipulated time limit, it is deemed by Article 37IC(4) to have recommended against the exercise of a Presidential veto.

4.          Disclosure of President’s and CPA’s reasons

148.  Fourth, disclosure of President’s and CPA’s reasons.

149.  We agree with the Constitutional Commission that the framework for disclosure ought to be refined. However, as explained in the White Paper, we have adopted a different approach on some points.

150.  The revised framework, as set out by the new Articles 37ID, 37IE and 37IF, seeks to permit disclosure where necessary, while still protecting sensitive or confidential information.

151.  For simplicity, it may be thought of as a 3-stage process.

(i)         Stage 1

152.  The first stage applies in all situations where the President is required to refer his decision to the CPA. Under Article 37ID, the CPA’s recommendation will be provided only to the President, and will include:

(a)       the number of votes for and against the recommendation; and

(b)       the grounds for the recommendation.

153.  The President must then decide whether to exercise his veto.

(ii)       Stage 2

154.  The second stage applies if the President exercises his veto. Under Article 37IE(2)(a) and (c):

(a)       He must disclose his grounds and the CPA’s recommendation to the Prime Minister.

(b)       For vetoes relating to the budget or proposed transaction of a Fifth Schedule entity, the President must additionally make these disclosures to the Chairman of the entity. 

155.  This will allow the Government and the Fifth Schedule entity to learn of the reasons for the veto and, where overruling is possible, to make an informed decision on whether to initiate the overruling mechanism.

(iii)     Stage 3

156.  The third stage applies if the Government wishes to initiate the overruling mechanism. Under Article 37IF(2)(b), the Government must, before moving an overruling resolution:

(a)       cause the President’s grounds to be published in the Gazette; and

(b)       send the CPA’s recommendation to the Speaker, for presentation to Parliament.

(iv)     Supply Bills

157.  The 3-stage approach applies generally to all Presidential vetoes that are subject to Parliamentary overruling.

158.  A slightly different approach is taken for Supply Bills.

159.  A Presidential veto of a Supply Bill has considerable public signature, whether or not the Government seeks to overrule the President’s veto. The Government either has to return with a fresh Supply Bill, or have its spending confined to the Budget approved for the previous year.

160.  In such cases, Article 37IE(2)(b) provides that, should the President exercise his veto, he must additionally:

(a)       publish his grounds in the Gazette; and

(b)       send the CPA’s recommendation to the Speaker, for presentation to Parliament.

5.          Strengthening the CPA

161.  Fifth, the CPA will be strengthened in 3 ways. This is necessary because of the enlarged role it now plays.

(i)         New members and internal processes

162.  First, Clause 17 of the Bill amends Article 37B to introduce 2 additional CPA members, one appointed by the President and another appointed on the advice of the Prime Minister.  

163.  The CPA will therefore have 8 members in all:

(a)       3 appointed by the President in his own discretion,

(b)       3 appointed on the advice of the Prime Minister, and

(c)       one each appointed on the advice of the Chief Justice and the PSC Chairman.

164.  The President appoints one member to be the CPA Chairman.

165.  The new Article 37IG introduces rules relating to the CPA’s internal processes:

(a)       The CPA has a quorum of 5 members, including the Chairman.

(b)       The CPA’s recommendation must be made by a majority of members present and voting.

(c)       The CPA Chairman has a casting vote in the event of a tie.

166.  Clause 23(c) of the Bill amends Article 37J(3) to give the CPA autonomy over its internal procedure, subject to any constitutional provisions.

167.  CPA members act independently in advising the President, and not at the behest of their appointing authorities. However, a careful balance has been built into the CPA’s composition and processes as a safeguard.

(a)       So let’s assume that the President appoints one of his three appointees as the CPA Chairman.

(b)       If the President’s three appointees are unanimous on a particular recommendation, they will only need the agreement of one other CPA member in order for their recommendation to prevail by virtue of the Chairman’s casting vote.

(c)       Conversely, their recommendation may not prevail if they do not have a unanimous view, or do not have the support of any other CPA member.  

(ii)       Staggering terms

168.  Second, Article 37B(2) staggers the terms of CPA members to ensure continuity and to enhance the CPA’s independence.

(a)       CPA membership is drawn into 3 divisions. Each division has one member appointed by the President in his discretion and one member appointed on the Prime Minister’s advice. In addition, the first division has a member appointed on the Chief Justice’s advice, and the second division has a member appointed on the PSC Chairman’s advice.

(b)       Each member’s appointment expires every sixth year.

(c)       The 3 divisions are staggered so that every 2 years, all seats in a division will expire together.

(d)       If a seat is prematurely vacated, Article 37B(3) provides that the term of the replacement member is subject to the expiry date of the member he replaces, so as to preserve the staggering.

(e)       Clause 33 of the Bill inserts a new Article 165 to make transitional arrangements.

(iii)     Appointment considerations

169.  Third, Clause 19 of the Bill inserts a new Article 37D(2) that requires appointing authorities to consider:

(a)       whether a potential appointee is of integrity, good character and reputation; and

(b)       whether he has expertise and experience relevant to the matters on which the CPA may have to advise the President on.

6.          Consequential amendments

170.  Clauses 10, 12, 13(a), 14(a), 15, 18, 20, 23(a) and (b), 24, 27, 28, 29 and 31 of the Bill make consequential amendments in light of the changes to the framework governing the Elected President’s custodial powers.

D.        Entrenchment

171.  I come lastly to entrenchment.

172.  The entrenchment framework introduces additional safeguards, over and above the existing requirement of a 2/3 Parliamentary majority for constitutional amendments, to further entrench certain specific constitutional provisions.

1.          Brief History and Current Framework

173.  The concept of entrenchment surfaced in the 1988 and 1990 White Papers.

174.  When first mooted, entrenchment covered only the Elected Presidency and the core custodial powers of the office. The rationale was to protect the office and powers from easy removal or circumvention by an irresponsible government.

175.  The 1990 Select Committee subsequently recommended extending the entrenchment framework to other provisions, including some that were unrelated to the Elected Presidency.

176.  The entrenched provisions were protected by a national referendum requirement.

(a)       If the President disagreed with a proposed amendment to an entrenched provision, the amendment – however minor or process-related – may be made only with the support of a 2/3 national referendum majority.

(b)       In making his decision, the President was not required to consult the CPA.

177.  The entrenchment framework was not brought into operation because the Government felt that it needed more time and experience to refine and adjust the provisions governing the Elected Presidency, which is a unique institution.

178.  Over the years, several revisions have had to be made to improve the working mechanisms for the new powers of the Presidency.

179.  Had the provisions been entrenched, it would have been very difficult to improve the system. As the Constitutional Commission observed, the entrenchment framework – if brought into force – renders it “virtually impossible” to amend any aspect of the entrenched provisions.

180.  The fact that today – 25 years on – the Constitutional Commission has had to examine certain fundamental aspects of the Elected Presidency, culminating in this Bill, demonstrates the need for the institution to evolve over time.

2.          The need for balance

181.  As the system continues to evolve, we must revise the entrenchment framework to seek a better balance between rigidity and adaptability.

182.  The case study of the US presents a striking example of the need for such a balance.

183.  Numerous US Presidents have emphasised the need for a Constitution to be a living document.

184.  Yet scholars have observed that it is “almost impossible” to amend the US Constitution. 

(a)       Amendments must receive a 2/3 vote in both Houses of Congress – House of Representatives and the Senate – and be ratified by 38 of the 50 states. 

(b)       If just 13 states reject a constitutional amendment, the amendment fails. In other words, an amendment supported by more than 95% of Americans can still fail. 

(c)       Historically, of nearly 12,000 proposals introduced to amend the US Constitution, only 27 have been successful.

185.  This may explain the greater role that the US courts play in “interpreting” the constitutional text so that it keeps up with the times.

186.  This approach has been criticised for being anti-democratic. It results in constitutional law-making by unelected and politically unaccountable judges, and politicises the Judiciary.

187.  Nonetheless, the US example illustrates an important point: the Constitution must, in one way or another, continue to evolve over time.

188.  In our context, this means that we must seek a suitable balance in entrenchment, between rigidity and flexibility.

3.          Considerations for revision

189.  Finding this balance is ultimately a matter of judgment. In the White Paper, we approached this by considering three questions. 

(a)       First, which provisions should be entrenched?

(b)       Second, should the referendum requirement be revised?

(c)       Third, should the CPA’s views be given legal weight in the entrenchment context?

(i)         Provisions to entrench

190.  On the first consideration, I mentioned earlier that most of the entrenched provisions relate to the Elected Presidency, but some are entirely unrelated to it. At the same time, provisions relating to other critically important institutions, like the Judiciary and this Parliament, are not specially entrenched.

191.  The Constitutional Commission observed that since these other important institutions are not similarly entrenched, this may support the contention that entrenchment of the Elected Presidency should also similarly be done away with.

192.  We think that it remains critical to have an entrenchment framework for the Elected Presidency.

(a)       The Elected Presidency serves as an additional check on a Government in the two key areas. There is a risk that a Government bent on raiding the reserves or compromising the public services could remove the Elected Presidency to get rid of that check. This was the initial rationale for entrenchment: to protect the Elected Presidency and its core custodial powers against easy removal.

(b)       By contrast, it would be much more difficult to remove well-established institutions such as this Parliament or the Judiciary.

193.  We will therefore streamline the entrenchment framework to cover only the provisions establishing the Elected Presidency and its core custodial powers. This approach will also make the framework conceptually more coherent, since it is founded on the unique need to protect the Elected Presidency and its powers from easy removal.

194.  Other provisions which do not relate to these areas will remain protected in the same way as the rest of the Constitution, that is, through the need for a 2/3 majority in Parliament to amend these provisions. So they are not unprotected, but continue to be protected by a 2/3 majority requirement in this Parliament. 

(ii)       Referendum requirement

195.  The second consideration is whether the referendum requirement should be revised.

196.  Referendums serve a purpose on clear cut strategic decisions, which are so important that it is best that the people decide them directly in a national vote. However, referendums do have inherent limitations. They generally lead to binary outcomes, even though the issues that underlie the vote may be complex. Communicating these complexities to voters to make an informed decision is often not easy. Emotions and misinformation can have a big influence.

(a)       For example, studies on the Brexit referendum show that a significant percentage of people who voted to “leave”, subsequently regretted their vote.

(b)       More recently, in Colombia, the President signed a peace deal with the country’s largest rebel group to end a 52-year-old war that cost the lives of 220,000 people, and displaced another 5 million. For this he was awarded the Nobel Peace Prize. However, the deal had to be ratified at a national referendum. Early polls suggested that it would be comfortably ratified, but a vocal anti-ratification campaign, led by a former Colombian President, engendered a shock result: 50.2% of voters voted against the deal.

197.  Referendums should therefore be used in a circumspect way.

198.  Currently, the existing entrenchment framework applies the same referendum requirement bluntly to all entrenched provisions.

199.  The Bill replaces the framework with one that categorises the entrenched provisions into two tiers. We can distribute the next handout. PDF icon 04 - Entrenchment (landscape).pdf

(a)       The first tier contains provisions fundamental to the existence of the Elected Presidency, and the entrenchment framework itself. The electorate should have a direct say should the Government want to proceed with amendments to these provisions when the President, with the CPA’s support, disagrees with the Government.

(b)       The second tier comprises provisions relating to more operational aspects of the Elected Presidency and its custodial powers. It may not be necessary to put such issues to a national referendum.

200.  The required referendum threshold will also be revised from a 2/3 majority to a simple majority. The referendum threshold should be commensurate with the gravity of the decision in question. A 2/3 referendum majority requirement should thus be reserved only for provisions relating to the surrender of Singapore’s sovereignty and relinquishment of our Police and Armed Forces, or amendments to those provisions, as currently  provided under our Constitution. These are the circumstances under which the 2/3 referendum requirement majority applies, other than those which were for the Elected Presidency.

(iii)     CPA’s views in entrenchment

201.  The third consideration is whether the CPA’s views should be given legal weight within the entrenchment framework. Under the existing framework, there is no legal difference whether the President acts with the CPA’s support or against its advice.

202.  The CPA’s recommendations should be given legal weight so that it can serve as a counterbalance, as it already does in other areas relating to Presidential vetoes.

203.  This is so particularly since the entrenched provisions concern areas where disagreements between the President and the Government might be sharp and intractable.

4.          Revised entrenchment framework

204.  I turn now to the precise changes being made.

205.  I will first explain the changes being made to Article 17, which contains several key entrenched provisions.

206.  Clause 4 of the Bill amends Article 17 to set out the key functions and certain discretionary powers of the Elected President, and their relation to each other.

(a)       The principal Head of State function remains in Article 17(1).

(b)       The new Article 17(2) is a statement of principle of the President’s non-executive custodial function of safeguarding our reserves and the integrity of our public services.

(c)       The actual custodial powers arising from the functions mentioned in Article 17(2) are defined in the new Article 17(3).

(d)       The new Article 17(4) provides that the President may exercise other powers and perform other functions according to the Constitution and any other written law.

207.  The existing Article 17(3) and (4), which relate to the election of the President and the timing of polls, are deleted and re-enacted by Clause 5 of the Bill as the new Article 17A.

208.  I will now touch on the revised entrenchment framework itself.

209.  Clause 3 of the Bill introduces the new Articles 5A, 5B and 5C, which establish the revised 2-tiered framework.

210.  Clauses 2, 30 and 35 of the Bill introduce consequential amendments and remove the existing entrenchment framework.

(i)         Tier 1 – Article 5A

211.  The new Article 5A applies to a bill seeking to make textual amendments to Tier 1 provisions.

212.  Tier 1 provisions are listed in Article 5A(7).

(a)       These include Article 17(1) and (2), which establish the President’s function as the Head of State and the principle of his custodial function, as well as other key provisions establishing the Presidential office.

(b)       The entire entrenchment framework, comprising Articles 5A, 5B and 5C, is also protected under Tier 1. This is with the exception of the Article 5B(9), which sets out the Tier 2 provisions, and therefore is protected under Tier 2.

213.  A bill to which Article 5A applies can only be introduced in Parliament under the routes set out in Article 5A(1) and (2).

(a)       First, where the President concurs with the introduction of the bill, or the President withholds concurrence contrary to the CPA’s recommendation; or

(b)       Second, where the bill is supported by a simple majority at a national referendum.

(i)         Of course, the Government can submit the bill to a referendum at any time, regardless of whether the President’s concurrence has been sought.

214.  Under Article 5A(5), regardless of how the bill is introduced, the bill must still subsequently be passed by a 2/3 Parliamentary majority.

215.  Article 5A(6) provides that a bill introduced under the referendum route can be amended if the Speaker takes the view that the amendment is of a minor or purely drafting character, or that it does not affect the substance of the bill.

(ii)       Tier 2 – Articles 5B and 5C

(a)       Article 5B

216.  The new Article 5B applies to a bill seeking to make textual amendments to Tier 2 provisions.

217.  Tier 2 provisions are listed in Article 5B(9).

(a)       The new Article 17(3), which sets out the discretionary powers relating to the President’s custodial role over our reserves and key appointments, is protected in Tier 2. 

(i)         Only the specific discretion-conferring provisions of the Articles listed in Article 17(3), and not the entire Articles, are protected.

(ii)       The Explanatory Statement gives a clear example. Article 142 is listed in Article 17(3). However, only Article 142(1A)(a) – the discretion conferring provision – is entrenched in Tier 2. The other provisions, for instance Article 142(1A)(b), are not similarly entrenched. 

(b)       Tier 2 includes other provisions relating to the Presidency and the Election Judge.

(c)       Article 5B(9) also falls within Tier 2, as explained earlier.

218.  There are 3 routes for introducing a bill to which Article 5B applies.

(a)       The first 2 routes mirror those available under Article 5A. These are set out in Article 5B(1), (2) and (5).

(b)       The third route is set out in Article 5B(7):

(i)         A bill to which Article 5B applies may be introduced in the ordinary way like other constitutional amendment bills.

(ii)       However, it can subsequently be passed only by a 3/4 Parliamentary majority.

(b)       Article 5C

219.  The new Article 5C applies to a constitutional amendment bill that circumvents or curtails any discretionary power of the President that is conferred by a Tier 2 provision. Under Article 5C(1), the President may withhold assent to such a bill.

220.  The Article 5C mechanism is necessary because circumvention or curtailment of powers can occur without textual amendments being made to the power-conferring provision.

221.  Let me illustrate this with an example.

(a)       The Government’s spending limit depends on the expected long-term real rates of return (“ELTRROR”) on the “relevant assets” pool.

(b)       Under Article 142(1A)(a), the President’s concurrence must be obtained for the ELTRROR proposed by the Finance Minister. In this way, the President has a say over the Government’s spending limit.

(c)       Assume that a bill purports to remove certain assets from the definition of “relevant assets”.

(d)       Article 5B does not catch this amendment because the power-conferring provision – Article 142(1A)(a) – is not textually amended.

(e)       However, the President’s custodial power over the ELTRROR and the Government’s spending limit is diminished by such a change. This may therefore amount to a circumvention or curtailment that will be caught by Article 5C.

(f)        I should emphasise that this is only a hypothetical illustration. Whether there is any circumvention or curtailment is ultimately a question of law on the facts of every case.

222.  Article 5C(4) stipulates the circumstances under which the President’s withholding of assent may be overruled.

(a)       Where he withholds assent with the CPA’s support, he may be overruled if: 

(i)         the bill is supported by a simple majority at a referendum; or

(ii)       a 3/4 Parliamentary majority affirms the bill.

(b)       Where he withholds assent contrary to the CPA’s recommendation, a 2/3 Parliamentary majority may affirm the bill.

223.  Under Article 5C(2), on Cabinet’s advice, a bill may be referred to a constitutional tribunal for a decision on whether Article 5C applies to it.

(a)       If the tribunal rules that Article 5C does not apply to the bill, the President will be deemed to have assented to the bill.

(b)       But if the tribunal rules that Article 5C applies, then the President has basis to withhold assent.

In this situation, the same Article 5C(4) overruling mechanism applies.

(iii)     Disclosure of President’s and CPA’s views

224.  In all situations under Articles 5A, 5B and 5C, where the President has refused to concur or assent, the Government must make public the President’s reasons and the CPA’s recommendations before it can submit the bill to a referendum or move a resolution to affirm a bill.

225.  This is stipulated in Articles 5A(3) and (4), 5B(3), (4) and (8), and 5C(5) and (6).  

5.          Brief Conclusion

226.  The revised entrenchment framework seeks to achieve a more workable balance between preserving the adaptability of the entrenched provisions, and preventing easy removal or amendments to the Elected Presidency.

227.  We will consider bringing this framework into force after observing how the wide-ranging amendments in this Bill operate in practice.

IV.     NCMP Amendments

228.  Madam Speaker, before concluding, I will just mention the amendments relating to non-constituency Members of Parliament (“NCMPs”).

The reasons for and extent of these amendments have been explained by the Prime Minister in the debate on the President’s Address at the Opening of Parliament earlier this year.

229.  Clause 25 of the Bill therefore amends Article 39 to increase the maximum number of NCMPs from 9 to 12, and to give them the same voting rights as MPs.

Other amendments consequential on these changes are made as well.

V.        Conclusion

230.  Madam Speaker, let me draw to a conclusion.

231.  Prior to the establishment of the Elected Presidency, the system for appointing the President by this House allowed Parliament to take into account a fine balance of considerations in appointing a President to office.

(a)       It allowed for consideration of qualities such as profound learning, good character, high reputation and strong moral fibre.

(b)       The ethnicity of a candidate was also important, given our multi-racial composition.

The outcome was that the President was appointed from amongst the major racial groups, providing for them to be represented in the Presidency from time to time.

232.  The inception of the Elected Presidency in 1991 did not change the President’s foremost symbolic and unifying role. However, it overlaid onto the office an additional custodial role and transformed it into an elected office.

233.  Today, it is no longer this House that balances all the considerations when appointing a President to perform the President’s unifying and symbolic role. We therefore need another framework to achieve and maintain this fine balance. The proposed 5-term hiatus mechanism helps, where necessary, to facilitate the periodic election of members of different racial groups to the Presidency. This ensures that even though Presidents are now directly elected, they will, over time, continue to collectively embody the multi-racialism that symbolises us as a people and as a country.

234.  We must also ensure that the eligibility criteria stay updated, to maintain a measure of assurance that Presidential candidates have the necessary experience and expertise for the custodial role.

235.  These add to our continuing efforts to improve the Elected Presidency so that the President’s custodial powers are exercised in a timely manner, and with sufficient weight given to the collective advice of the Council of Presidential Advisors. This will provide stability to our system, and also help to avoid gridlock in situations where the President and the Government do not agree.

236.  Madam Speaker, in January this year, the Prime Minister spoke of the need to ensure that our country does not get “swept off course by a transient public mood, or an erratic government”. The Government needs to be able to respond to the mood, but not go too far and “capsize the boat”.

237.  I identify with this analogy at a very personal level. I devoted many years of my life serving in our Navy. In that time, I experienced navigating through both calm waters and rough seas. We learnt never to underestimate the power of the seas. We could not control the environment around us, but we sailed with confidence in the knowledge that – even in the face of a challenging environment where the unexpected might occur – we had built into our vessels various systems to maintain their stability and integrity.

238.  One of these is to provide sufficient ballast. In rough seas, this helps to prevent the ship from pitching and rolling uncontrollably and capsizing.

239.  Yet, if there is too much ballast, the vessel’s speed, agility and responsiveness will suffer.

240.  Our nation, like a ship, needs an optimal amount of ballast – enough to keep us stable, but not so much as to render us sluggish and unresponsive to change.

241.  Our Presidency has always served as our flag, our maritime flag, a symbol of our identity at sea.

We want to make sure that the Presidency remains a symbol Singaporeans from all communities will continue to identify with.

242.  But since 1991, it has also become an important part of our ballast system, stabilising our ship by safeguarding the two key areas – our reserves, and key appointments.

243.  The proposed amendments seek to enhance the ability of the Presidency to play both these important roles, to help keep our people united, and our country stable.

244.  Madam, I beg to move.

Governance