Thursday, June 09, 2011

Reshaping the Presidency

Prior to the creation of the Elected presidency, the President of Singapore was pretty much a carbon copy of the British monarch. His constitutional role as the Head of State was largely ceremonial.

However, the introduction of constitutional amendments in relation to the office of the President culminated in the adoption of a hybrid version of a Head of State. Is out President identical to the Head of State in the British system? My answer is: no. And of course, at the other end of the spectrum, our President is not at all like the American President whose executive powers are enormous. The Prime Minister and the Cabinet continue to be wielders of executive power in Singapore.

I was reading a couple of blog posts on the nature of the President's powers.
"Many things a President cannot do." from the blog: Thoughts of a Cynical Investor
"Will a President that speaks up cause a SIngapore Constitutional crisis?" from the blog: Thoughts of a Singapore statistician

Cynical Investor makes the assertion that the office of the President is so limited in terms of its constitutional role that there is not much that any Elected President can really do. His contention is that the President cannot, without provoking a constitutional crisis, address the many policy issues that some of us expect to be aired.

To be fair, the office of the Elected President was introduced as a safeguard primarily in relation to the reserves. So, many of the express powers given to the President involve some direct or indirect control over the use of the reserves. Cynical Investor is not off the mark when he states:

So, if for example Tan Kin Lian becomes president, he cannot speak out on of the need for a minimum wage, on the honesty and integrity of financial advisers, or whether lawyers, doctors and architects overcharge for certain services. He definitely cannot publicly ask the AG to look into prosecuting financial institutions or land bank businesses for “cheating” the public.

But, a small correction is in order... Article 22G of the Constitution provides for the President to direct the CPIB to carry out investigations despite the refusal of the Prime Minister. This can, turn out, in appropriate circumstances to be a potent power.

22G. Notwithstanding that the Prime Minister has refused to give his consent to the Director of the Corrupt Practices Investigation Bureau to make any inquiries or to carry out any investigations into any information received by the Director touching upon the conduct of any person or any allegation or complaint made against any person, the Director may make such inquiries or carry out investigations into such information, allegation or complaint if the President, acting in his discretion, concurs therewith.

Singapore Statistician contends that there is Constitutional space for the President to be independent and vocal despite the appearance of a limited function under the Constitution.

I shall now throw my 2 cents' worth into this conversation.

Firstly, what exactly does the Constitution provide? What can the President do? And what are the things that he cannot do?

The COnstitution provides for certain powers that are discretionary and others that the President exercises on the advise of the Cabinet. Many of us would remember the arguments in the Yong Vui Kong case as to the power of the President to grant clemency. The judiciary has interpreted that the President ought to act on the advise of the Cabinet and not exercise his discretion as he deems fit. In my view, this was not a clear-cut issue as some commentators had made it out to be. It was always open to interpretation and Yong Vui kong's case now settles the interpretation (at least for the time being). (I had expressed my view on this issue here: )

Let's leave the non-discretionary powers of the President aside. There would be something of a constitutional 'crisis' if the President acts against the advise of the Cabinet in relation to, for example, clemency.

If we focus on the areas of Presidential discretion we would notice that there is plenty of room for an individual President to stamp his personal style in the decision-making process. There is nothing preventing a President from expressing his views on policy and legislation in a firm, vocal and open manner.

Let's consider the granting of the Presidential Assent in relation to certain Bills passed by Parliament. I want to draw a quick comparison with the British monarch. She has legal power based on her Royal Prerogative to refuse to grant the Royal Assent. Yet, by convention (political practice) she always grants the Royal Assent. Our President has, under the Constitution an effective veto against certain Bills. Is there any political rule or practise that is capable of restraining our President from exercising his discretion? The British monarch is an unelected person and a hereditary title holder. She and her predecessors had for a long time acknowledged the superiority of the Parliamentary will. Today, we speak of the will of Parliament as the will of the electorate. Therefore, in the context of the UK the unelected monarch must give way (for want of political legitimacy) to the will of Parliament (the Lower House being an elected body).

In Singapore, the position of our President is constitutionaly different. Considering only the discretionary powers of the President, we can make out a cogent case for a vocal Presidency. This case is based solely on the enhanced legitimacy of our Head of State as an elected individual. Where both parliament and the President are elected, both can claim legitimacy by virtue of an electoral mandate. The constitutional provisions envisage the possibility that the President in the exercise of his discretion may pave the way for a deadlock. Any potential constitutional deadlock is untangled through a number of procedures one of which is a 2/3 majority resolution by Parliament.

When the President either grants or refuses to grant the Assent, there is a strong case for the contention that the President ought to make his reasoned arguments available for Public scrutiny.

It is a facet of (and even a strong expection in) modern governance, that laws ought to be made publicly and debated and reasoned out in an open manner. Our Parliament has been doing this from its inception. The Elected President is, arguably, in a position of political accountability towards the electorate. Therefore, apart from those occasions where he is exercising a discretion, it would be constitutionally useful for an assertive President to explain the reasons for his actions or even to express his disagreement even though a constitutional provision may provide him with no discretion.

Moving forward, a future elected President can choose to make his decisions and the attendant reasons public so that the process of law-making or executive decision-making is entirely transparent. Presidential candidates in this election can propose this as a change in the Presidential style. Note that this would not merely be a change in style but one with real substance.

By reshaping the Presidency into an office that explains its actions, the future President can use the opportunity to express his disagreement. Whether the Cabinet, Parliament or the President presents the clearer moral argument for a particular matter can ultimately be judged by the people. Of course, the reality is that whoever becomes the President and however much he may shout at the top of his voice and exercise his discretion, the current government can override the President's views and actions.

Realistically speaking, given the current composition of Parliament, there may be nothing concrete that can be accomplished by the President.

But, I firmly believe that what we are setting out to do now as a nation is to lay the foundation for a different kind of Presidency. The trend has to be set for future Presidents. Apart from exercising the Constitutionally prescribed function, the President can legitimately seek to be another voice against any potential abuse by the executive.

How far are the candidates willing to go to commit themselves to reshaping the Presidency? I am not calling for them to act unconstitutionally. But, working within the ambit of the Constitution, a President can actively and vocally exercise his discretion (sometimes agreeing, sometimes disagreeing) in a transparent fashion and give life to the potent power invested in him by the electorate.

I do not believe that an Elected President should wait for marching orders from the Constitution to open his mouth and speak up on policy issues. There is, after all, no gagging order imposed upon the President.


Anonymous said...

Thanks. Really well written post. I will be doing up a posting to reply to Cynical Investor over the weekend. Look forward to you joining in.

Wang said...

All of the comments and blogs does not contradict TCI's comments since Singapore follows the Westminster Model and not the Presidential system.

Hence,the EP is basically still more ceremonial with certain powers.


Subra said...

Personally, I don't disagree with TCI on the powers of the President. I notice that even SS doesn't disagree. I suspect that most people who are blogging on this issue have a clear idea as to the limitations of our Presidency. We are not trying to vote in a Obama. :-)

The powers are clearly set out and there is very little room for the President to call the shots.
But, I believe that there is at the same time no limitation on his ability to speak his mind. If he was merely an appointed Head of State or a hereditary one, then his ability to express his views would be completely curtailed.
But, being an elected representative himself, he has sufficient political authority to express his views if they are at variance with the executive or the legislature.

Honestly, I am of the opinion that the Constitutional powers of the President are extremely limited and bsaed on the Westminister model, they should be. But, if we want this person to play a more active role as a check and balance, then there is room to play around with despite the rather limited powers that he has.

Although we follow the Westminster Model, our President is elected and he can politically claim legitimacy through the electoral mandate. The Heads of State in other Commonwealth countries are merely appointed and not elected. While we don't have a Presidential system, our Constitutional innovation in the form of the EP has the potential to create more 'scolding' room for the President (and nothing more).

We know he can't do much. But, perhaps he can scold more. :-)

Anonymous said...

I don't think the idea is to scold more but to reflect the wishes of the public. Eg if Nathan fat ass had opened his mouth that there are strong views againts a casino in Singapore let alone two. Perhaps the PM and his cabinet may take a double take on it, instead of pushing through whatever they want just to achieve the shortermism of illusive growth. Ie the president reflects the conscience of the people. Otherwise why waste 4 million dollars of tax payers money to be a puppet president.