Tan Cheng Bock v Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 23 August 2017
• Neutral Citation: [2017] SGCA 50
• Plaintiff Counsel: Chelva Retnam Rajah SC, Earnest Lau and Zara Chan (Tan Rajah & Cheah)
• Docket Number: Civil Appeal No 124 of 2017
• Date: 23 August 2017
• Hearing Date: 31 July 2017
• Subject Matter: President,Interpretation,Constitution,Election,Constitutional Law,Constitutional Provisions,Statutory Interpretation
• Year: 2017
• Defendant Counsel: Deputy Attorney-General Hri Kumar Nair SC, Aurill Kam, Nathaniel Khng, Seow Zhixiang and Sivakumar Ramasamy (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 50
• Published date: 14 October 2017

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This appeal turns on the correct interpretation of two provisions in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”), Arts 19B and 164. Both provisions were inserted into the Constitution by the Constitution of the Republic of Singapore (Amendment) Act 2016 (Act 28 of 2016) (“2016 Amendment”), which was passed on 9 November 2016 and took effect on 1 April 2017. They were part of a raft of changes affecting the office of the President that were implemented by the 2016 Amendment.

Art 19B(1) introduces the concept of a “reserved election”. It provides that an election for the office of the President shall be reserved for candidates of a particular community if no person from that community has held the office of President for the five most recent terms of office. “Community” here refers to the Chinese, Malay, and Indian or other minority communities (Art 19B(6)(a)–(c)). As to how and when the framework for a reserved election shall take effect, Art 164 requires Parliament to specify by separate legislation “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”).

Parliament subsequently specified, in separate legislation, the last term of office of President Wee Kim Wee as the first of the five most recent terms of the office of the President for the purposes of Art 19B. After President Wee’s term of office, the office was next held by President Ong Teng Cheong, President S R Nathan (who held the office for two terms) and the incumbent President, Dr Tony Tan Keng Yam. Since none of these persons were members of the Malay community, the effect of Parliament’s choice is that the next presidential election, which is to be held in 2017 (“2017 election”), will be reserved for candidates from that community.

The specification of President Wee’s last term of office as the first term has given rise to a question as to the correct interpretation of Arts 19B and 164. The Appellant, Dr Tan Cheng Bock, contends that this specification by Parliament was contrary to the Constitution. He maintains that the discretion that Art 164 affords Parliament is not an unrestricted discretion. Rather, he contends that Parliament can only designate, as the first (in time) of the “5 most recent terms”, one of the terms of office of any of those Presidents who were elected to office directly by the citizens of Singapore rather than by Parliament. President Ong was the first President to be so elected. The Appellant accordingly maintains that President Ong’s term of office is the earliest one that Parliament could lawfully have specified as the first term pursuant to Art 164. It follows, on this interpretation, that the next presidential election should not be reserved for candidates from the Malay community.

As against this, the Respondent, who is the Attorney-General (“AG”), argues that there is no such restriction on Parliament’s power under Art 164. Indeed, he contends that at the time Parliament passed the 2016 Amendment, Parliament had been apprised of the Government’s intention to specify President Wee’s last term of office as the first term. This the Respondent says is clear from the record of the Parliamentary debates. He maintains that in the circumstances, there can be no basis for concluding that Parliament then acted outside its constitutional limits when it subsequently specified President Wee’s last term of office as the first term – just as it had said it would at the time the relevant constitutional provisions were passed.

Properly framed, the issue we are asked to determine is what, if any, are the limitations on the “term of office” of the President that Parliament could lawfully choose to specify as the first term under Art 164. More specifically, the question is whether Parliament was restricted to choosing from the terms of office of the Presidents elected directly by the citizens of Singapore, as the Appellant contends. This has to be answered by interpreting the relevant constitutional provisions purposively, as mandated by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”).

Background

On 5 May 2017, the Appellant filed Originating Summons No 495 of 2017 (“OS 495”) in the High Court seeking a declaration that: Section 22 of the Presidential Elections (Amendment) Act 2017 (Act 6 of 2017) (“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, which provides that the Constitution is the supreme law of Singapore and that any law enacted by Parliament which is inconsistent with it shall be void to the extent of the inconsistency; In the alternative, the reference to 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 application was heard before a High Court judge (“Judge”) on 29 June 2016. On 7 July 2017, the Judge dismissed the application, providing his detailed reasons in a written judgment: see Tan Cheng Bock v Attorney-General [2017] SGHC 160 (“Judgment”).

On 12 July 2017, the Appellant filed the present appeal against the Judge’s decision. The appeal was expedited in view of the urgency of the matter: the Government had announced its intention to issue the writ of election for the next presidential election no later than 31 August 2017, that being the expiry of the term of office of the incumbent President, Dr Tony Tan (see Singapore Parliamentary Debates, Official Report (6 February 2017) vol 94), and it was common ground between the parties that we should resolve this appeal before the writ is issued.

The Appellant is a medical doctor by profession, and stood as a candidate in the last presidential election that was held in 2011. Before that, he served as a Member of Parliament (“MP”) for 26 years. Before the Judge, the Respondent accepted that the Appellant had standing to bring this challenge under the Constitution (Judgment at [6]). For the reasons he gave at [7] of the Judgment, the Judge, too, thought that the Appellant satisfied the standing requirement. We proceed on the same basis.

Evolution of the office of the President

At [8] to [29] of the Judgment, the Judge detailed the evolution of the office of the President since Singapore gained independence on 9 August 1965. For the purposes of this appeal, it is unnecessary for us to repeat this in full. Instead, we highlight only some key historical developments in the office of the President, so as to provide some context for the discussion that follows.

Singapore separated from the Federation of Malaysia and became an independent nation on 9 August 1965. Prior to that, while Singapore was a constituent state of the Federation, the Head of State of the State of Singapore was the Yang di-Pertuan Negara. On Independence, the Head of State of the new nation was designated as the President of Singapore. At that time, the office of the President was largely a ceremonial one, albeit with immense symbolic importance. The President was elected by Parliament for a four-year term: see Art 17(1) of the Constitution of the Republic of Singapore (1980 Reprint) (“Constitution (1980 Reprint)”). In keeping with the ceremonial and symbolic role of the office, the President’s powers, for the most part, could only be exercised on the advice of the Cabinet or a Minister acting under its general authority. Despite subsequent amendments to the Constitution which expanded the scope of the President’s powers, the ceremonial and symbolic function of the President has never been abrogated. Indeed, this remained at the core of the President’s role as the Head of State and the personification of a multi-racial nation, even as the office was reshaped over time. Singapore has had four Presidents who were elected by Parliament: Encik Yusof bin Ishak, who had been the Yang di-Pertuan Negara and went on to become our first President; Dr Benjamin Sheares, who held office for three terms; Mr Devan Nair, who held office for one term; and President Wee, who held office for two terms and retired on 31 August 1993.

The year 1991 saw the transition to what is popularly referred to as the Elected Presidency. This involved several changes to the office of the President; for present purposes, of particular note is that the President was to be elected directly by the citizens of Singapore for a term of six years, rather than by Parliament for a term of four years. These changes were motivated by the desire to confer on the President the responsibility and power to act as a check on the Government when it came to safeguarding certain critical assets including, in particular, the financial reserves that Singapore had accumulated since Independence. The idea of the Elected Presidency was first mooted in 1984 by then Prime Minister Lee Kuan Yew. It was further developed in two White Papers issued in 1988 and 1990, which traced the contours of the proposed institution. On 3 January 1991, Parliament passed the Constitution of the Republic of Singapore (Amendment) Act 1991 (Act 5 of 1991) (“1991 Amendment”), which created the Elected Presidency. The amendments vested the President with important custodial powers which were not restricted to being exercised on the advice of the Cabinet, and which could potentially block the decisions of the Government. These powers related to two of Singapore’s key assets: its financial reserves and its public service. The President was empowered to veto decisions on a variety of matters concerning the use of Singapore’s financial reserves, as well as key appointments to the public service. The addition of these custodial functions to the Presidency also...