Tan Cheng Bock v AG

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 07 July 2017
• Neutral Citation: [2017] SGHC 160
• Year: 2017
• Date: 07 July 2017
• Published date: 29 August 2017
• Hearing Date: 29 June 2017
• Plaintiff Counsel: Chelva Retnam Rajah SC, Earnest Lau Chee Chong and Zara Chan Xian Wen (Tan Rajah & Cheah)
• Defendant Counsel: Deputy Attorney-General Hri Kumar Nair SC, Aurill Kam, Nathaniel Khng, Seow Zhixiang and Sivakumar Ramasamy (Attorney General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 160
• Docket Number: Originating Summons No 495 of 2017

Quentin Loh J: Introduction

The Plaintiff, Dr Tan Cheng Bock, seeks a declaration that: s 22 of the Presidential Elections (Amendment) Act 2017 (Act 6 of 2017) (“the PE(A) Act 2017”) is inconsistent with Arts 19B(1) and/or 164(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”), and therefore void by virtue of Art 4 of the Constitution; alternatively, the reference to President Wee Kim Wee (“President Wee”) in the Schedule referred to in s 22 of the PE(A) Act 2017 is inconsistent with Arts 19B(1) and/or 164(1)(a) of the Constitution, and therefore void by virtue of Art 4 of the Constitution.

The Plaintiff, represented by Mr Chelva Retnam Rajah SC (“Mr Rajah SC”), contends that Art 19B(1), properly interpreted in context and having regard to its purpose, means that the first Presidential term to be counted for the purpose of determining a reserved election under Art 19B(1) (“Reserved Election”) (ie, a Presidential election reserved only for candidates from a particular community) must be that of a President who was elected by the citizens of Singapore to a six-year term of office. The Schedule to the Presidential Elections Act (Cap 240A, 2011 Rev Ed) (“PEA”), as enacted by s 22 of the PE(A) Act 2017, is unlawful and invalid because it starts the count for a Reserved Election from President Wee, who was elected by Parliament and not by popular vote of the citizens.

The Attorney-General (“the AG”), represented by Deputy Attorney-General Mr Hri Kumar Nair SC (“Mr Nair SC”), contends otherwise and resists the grant of the declaration sought.

The parties are in agreement that the issue to be decided is a question of law, viz, whether Parliament acted constitutionally in specifying the last term of office of President Wee as “the first term of office of the President to be counted for the purposes of deciding whether an election is reserved under Art 19B” (“First Term”) (Art 164(1)(a)).

The issue of standing

The Plaintiff brings this action under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). To seek such declaratory relief, the Plaintiff must show that he has the requisite standing to do so. In Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan”), which was approved of in the subsequent cases of Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (at [16]) and Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 (at [46]), the Court of Appeal (“the CA”) recognised at [115] that an applicant will have standing to bring a constitutional challenge if the following three requirements are satisfied: the applicant has a real interest in bringing the action; there is a real controversy between the parties to the action for the court to resolve; and there is a violation of a personal right. In respect of requirement (c), an applicant need only show an “actual or arguable violation” of a personal right (see Tan at [73]).

The Defendant is prepared to accept that the Plaintiff has standing to seek this declaration.¹ During the hearing on 29 June 2017, neither party made submissions on the Plaintiff’s standing before me.

In the likely event that this is taken up elsewhere, I should express my views on standing. On the assumption that the Plaintiff meets the eligibility criteria and other requirements for standing for the office of President under the Constitution and the PEA, which are not issues before me or within my purview, I am prepared to accept that the Plaintiff has standing to bring this action for the following reasons: First, the Plaintiff, who is a medical doctor by profession and a former Member of Parliament (“MP”) for some 26 years,² ran in the 2011 Presidential Election. The Plaintiff garnered a very credible number of votes with the current President succeeding only by a narrow margin in 2011. The Plaintiff, who is about 77 years old today, publicly announced his intention on 11 March 2016 to stand in the next Presidential Election.³ It is not disputed that at the time of this application, the Plaintiff still wishes to stand as a candidate in the Presidential Election slated for September this year (“the 2017 Presidential Election”). Secondly, if the amendments which the PE(A) Act 2017 effected to the PEA are valid, they will prevent the Plaintiff from standing as a candidate in the 2017 Presidential Election as it will be a Reserved Election for the Malay community: see ss 9(4)(c) and 9(5) of the PEA. Thirdly, the Plaintiff has put forward serious arguments challenging the start of the count, for the purpose of the hiatus-triggered mechanism for a Reserved Election (“the Model”) under Art 19B(1), from the second term of office of President Wee who, as mentioned above, was elected by Parliament and not by popular vote of the citizens. If, as the Plaintiff contends, the count could only start from the first popularly elected President, ie, President Ong Teng Cheong (“President Ong”), then the 2017 Presidential Election cannot be a Reserved Election under the Constitution as it stands today. The Plaintiff will then be able, on the assumption made above, to be nominated as a candidate for the office of President. For these reasons, I am prepared to accept that the Plaintiff satisfies the elements of standing which the CA reaffirmed in Tan.

The background The origins of the Presidency

When Singapore gained its independence from the United Kingdom on 16 September 1963, it did so as a state within the Federation of Malaysia. Singapore’s Head of State was then called the Yang di-Pertuan Negara. This office was created by the Singapore (Constitution) Order in Council 1958 (GN No S 293/1958), which also abolished the equivalent colonial office of the Governor and Commander-in-Chief of the Colony. Encik Yusof bin Ishak, who was the Yang di-Pertuan Negara on 16 September 1963, continued as the Head of State of Singapore in Malaysia under Art 1(1) of the State Constitution set out in Sched 3 to the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (GN Sp No S 1/1963) (“the 1963 State Constitution”) which preserved the office of the Yang di-Pertuan Negara. He was formally appointed as the Yang di-Pertuan Negara under the 1963 State Constitution on 4 December 1963: see Singapore Parliamentary Debates, Official Report (30 November 1967) vol 26 at col 407 (Lee Kuan Yew, The Prime Minister).

When Singapore became an independent nation on 9 August 1965, the Head of the Federation of Malaysia, the Yang di-Pertuan Agong, relinquished his sovereignty, jurisdiction, power and authority over Singapore; and this was vested in our Yang di-Pertuan Negara (see s 6 of the Constitution and Malaysia (Singapore Amendment) Act 1965 (Act 53 of 1965) (M’sia), which was passed by the Malaysian Parliament, and s 3 of the Republic of Singapore Independence Act (Act 9 of 1965), which was passed by our Parliament). On 22 December 1965, Parliament passed the Constitution (Amendment) Act 1965 (Act 8 of 1965) (“the 1965 Amendment Act”) which was given retrospective effect from 9 August 1965. The 1965 Amendment Act contained the following relevant provisions: s 2(1)(a) changed the title of the Yang di-Pertuan Negara of Singapore to that of the President of Singapore; s 3 repealed Art 1 of the 1963 State Constitution, which had provided for the office of the Yang di-Pertuan Negara (see [8] above), and inserted a new Art 1 in its place. The new Art 1(1) provided for a President of Singapore to be elected by Parliament. Under Art 1(3), the President was to hold office for a term of four years; and s 9 stated that the person holding the office of Yang di-Pertuan Negara on 9 August 1965, viz, Encik Yusof bin Ishak, was deemed to be the President of Singapore as if he were duly elected by Parliament and entered upon his office on 4 December 1963.

Encik Yusof bin Ishak became the first President of independent Singapore under s 9 of the 1965 Amendment Act. Thereafter, Parliament re-elected Encik Yusof bin Ishak and elected the next three Presidents: Upon the expiry of Encik Yusof bin Ishak’s first term in office, he was re-elected as President by Parliament on 4 December 1967. However, he passed away in office on 23 November 1970 before he could complete his second term. Dr Benjamin Sheares was elected by Parliament as our second President on 30 December 1970, and assumed office on 2 January 1971. He was re-elected by Parliament for a second and then third term of office; but unfortunately, he too passed away in office on 12 May 1981. Mr Devan Nair succeeded Dr Benjamin Sheares as our third President on 23 October 1981. He resigned on 28 March 1985, some months before his term expired, due to health reasons. Dr Wee Kim Wee became our fourth President on 30 August 1985. He served a total of two terms and retired on 31 August 1993.

It should not escape anyone’s notice that our first four Presidents were each of a different race. Encik Yusof bin Ishak was Malay, Dr Benjamin Sheares was Eurasian, Mr Devan Nair was Indian and Dr Wee Kim Wee was Chinese. This was no accident. In an interview in 1999, the then Senior Minister Mr Lee Kuan Yew referred to “the convention of rotating the Presidency among the races … to remind Singaporeans that their country was multi-racial”: see Zuraidah Ibrahim and Irene Ng, “Good to rotate EP among races”, The Straits Times (11 August 1999) at p 27.

The role of the first few Presidents, elected by Parliament, was largely ceremonial and symbolic. Thus, one MP described the President as “a symbol of the dignity and honour of our people … a symbol of the unity and the values of our Republic”: see Singapore Parliamentary Debates, Official Report (30 December 1970) vol 30 at col 380 (Ch’ng Jit Koon). Another MP spoke of the President as “the living depository of all things Singaporean”: see Singapore Parliamentary Debates, Official Report...