Everybody's talking about talking

The hottest topic of the season on the local blogosphere is the 'National Conversation'.   Everyboy's talking about why we need to have the Nat-Con, what is the government's agenda, how we can contribute to it, etc, etc.  If it was intended to be the National Distraction, I think it is succeeding.  Nat-con is the political equivalent of a viral YouTube video.  (I am having images in my mind of PM doing a dance a la Gangnam Style.)

I also suspect that just like a viral video, in this fast-paced, low-memory-capacity age, this Nat-Con phase will die out soon enough. 

In the meantime, what are we missing out? 

Well, the Auditor General has dropped a bombshell and almost nobody has noticed the explosion with the lone exception of Kenneth Jeyaretnam.  Kudos to Kenneth for having had the patience to run through the AGO's report which is available here: http://www.ago.gov.sg/doc/ar-1112.pdf  Most of us, including myself, would tend to give boring financial stuff a miss.  (I guess it is good to have a finance guy in the opposition.)

Kenneth has done an excellent job on his blog in highlighting a Constitutional breach by the Ministry of Finance.  http://sonofadud.com/2012/08/30/auditor-general-mof-breached-constitution-article-144-in-january-2012/

The relevant part of the AGO's report that highlights the Constitutional breach goes as follows:

"President's Concurrence Not Obtained for Promissory Note Issued

33.   The Constitution of the Republic of Singapore (1999 Revsed Edition) includes safeguards to protect the past reserves of the Government.  One such safeguard, set out in Article 144 of the Constitution, requires the President's concurrence for the granting of certain loans and guarantees. 

34.   AGO found that the Ministry of Finance did not comply with Art 144 of the Constitution when it issued a promissory note without obtaining the required President's concurrence.  The promissory note for US $16.34 million was issued on 4 January 2012 to the International Development Association.  In March 2012, the Association encashed US$2.94 million from the note.

35.  The Ministry explained that the President's concurrence was not sought because of an administrative oversight stemming from an officer's lack of familiarity with the relevant processess needed for such a transaction, which occurred infrequently.  Following AGO's observation, the Ministry took immediate steps to rectify the matter. 

36.   The Ministry subsequently obtained the President's concurrence and issued a fresh promissory note in place of the one issued on 4 January 2012 which is invalid.  There was no draaw on past reserves as the Ministry had made the cash payment of US$2.94 from its own operating expenditure budget for the financial year 2011/12.  The Ministry has reviewed its internal processes and tightened its standard operating procedures to prevent similar occurrences in the future."


Art 144 is of particular interest to me as it involves one of the powers of the Elected President that is clearly acknowledged by everyone along the entire political spectrum in Singapore to be the discretionary power of the President.  Whilst there might be argument about other powers (whether stipulated or not in the Constitution), it is clear that the President is not in any way constrained by the Cabinet in relation to Art 144. 

When the decision of the Singapore government to grant a loan to IMF was announced on 20th April 2012, I blogged about the possibility that Art 144 may have been infringed:
http://article14.blogspot.sg/2012/04/that-us-4-billion-to-imf-is-it.html

I followed that up with another post where I speculated about the possible government defence.  There is an Alice-in-wonderland argument (passable as a matter of legal logic even if it may defy common sense) that was used by the government in 1997 when confronted by questions from JB Jeyaretnam about a loan to Indonesia.  I have addressed this here: http://article14.blogspot.sg/2012/06/singapores-pledge-of-us-4-billion-to.html.  The gist of the government's argument (as presented by the then Attorney General) was that the Constitution prohibits the raising of a loan and the giving of a guarantee without the President's consent and that it does not prohibit the giving of a loan or the raising of a guarantee.  Art 144 is as follows:

Article 144.
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs;
(b)under the authority of any law to which this paragraph applies unless the President concurs with the giving or raising of such guarantee or loan; or
(c)except under the authority of any other written law

I am not sure if the AG's chambers will resurrect this old argument in the IMF loan case (Kenneth Andrew Jeyaretnam v Attorney General).  The way that their Affidavit is drafted, there is little indication of whether they would assert that the giving of a loan is not prohibited by th Constitution. 

Given the fact that the Auditor General considers any loan advanced without Presidential approval to be unconstitutional and void, (and given the fact that even the Ministry of Finance appears not to have disputed that in the case of the Promissory Note to the International Development Association) any argument by the Attorney General in the IMF case that the giving of a loan does not require Presidential approval will be highly inconsistent.  It is clear that the MOF thought that the lack of Presidential approval for the promissory note was an oversight.  It is also clear that the Attorney General in 1997 argued that no Presidential approval was needed for the loan to Indonesia. 

It will be interesting to see how the arguments play out in Court. 

As for words and the meaning of words and the causing of words to mean a thing other than the meaning of words, here is something from Alice in Wonderland:


'And only one for birthday presents, you know. There's glory for you!'
'I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'
'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

The IMF Loan and the Office of the President

Much was debated during the Presidential Elections in 2011 about the power of the Elected President in Singapore.  There were those that argued for a fully intrusive and almost combative role for the President in scrutinising the executive arm of government.  There were those that argued that the Elected President's role was no more than that which is fulfilled by the Queen of England as the Head of State (with the exception of a constitutionally reserved discretion when it came to the use of our reserves).  Others (like myself) contended that where the constitution was silent, the President could take a pro-active role and that this may be politically necessitated by the fact that the President could carry the mandate of the electorate (giving rise to the evolution of a constitutional convention). 

Whatever the shades of argument, one thing was very clear: There was no dispute as to whether the President had discretionary powers in relation to the matters specifically stipulated in the Constitution. An example of such stipulations could be found in Article 144(1) of our Constitution.   

That brings us to the issue surrounding the IMF loan pledged by the Singapore government.  Firstly, this is not part of the current subscription payable to IMF.  It is clearly an additional loan.  Leaving aside the contentious issue of interpretation of whether or not a loan given by the government is required under Article 144(1) to be subject to the President's approval, it is clear that a circumstance that falls within the ambit of Article 144(1) triggers one of the discretionary powers of the President. 

When Kenneth Jeyaretnam recently wrote to the President to seek clarification as to whether his consent was sought, the President has reportedly responded by stating that his permission had not been sought. http://sonofadud.com/2012/06/21/the-truth-about-that-imf-loan/

Kenneth has also stated that the President has referred this matter to MAS.  I would have expected something more proactive from the President.  Several questions arise in my mind.  Was the President fully appraised of his powers under Article 144(1)?  What is the interpretation of that provision that the President himself subscribes to?  Does the President agree with the view expressed in 1997 by the AG that a loan received by the government has to be approved and that a loan given by the government does not need to be approved? (http://www.article14.blogspot.sg/2012/06/singapores-pledge-of-us-4-billion-to.html)  If he agrees with that interpretation, could he not have informed Kenneth Jeyaretnam that the Article 144(1) issue does not arise and that his consent was not necessary?  Did the President have any specific reaction to the government's decision to grant the loan to IMF?  Did he ponder about whether he had a role in the process?  Or was he only going to exercise the discretion to grant consent when consent was requested? 

This is an important point to ponder about when we consider the role of the President.  There is no doubt that Article 144(1) deals with an area of the President's discretionary power.  Since we do elect our President and since the bare minimum that we might expect him to do in relation to his responsibilities is the safeguarding of the reserves and since Article 144(1) deals with such express discretionary power, there should be a strong expectation on the part of the electorate that the President carry out his Constitutional duties actively.  So, I hope that President Tony Tan had a clear understanding of Article 144(1) and that he was aware of the potential for the IMF loan to fall foul of that Article and that he actively addressed his mind to it and then decided that his consent was not necessary as the issue did not fall within the ambit of the Article.  Nothing less than that will do. That is the minimum expectation that we as the electorate should have in relation to the Elected President. 

That US 4 billion to the IMF: Is it unconstitutional?

On 20th April 2012, the Monetary Authority of Singapore announced that Singapore will give a "bilateral loan of US$4 billion to the International Monetary Fund (IMF), as part of the broader international effort to provide the Fund with sufficient resources to tackle crisis and promote global economic and financial stability."

Let me just state at the outset that I am not going to question the wisdom of such a move. I can see the need for the global community to rally together to hold steadfast against any future economic crisis. Some would question whether this is nothing more than an exercise in futility. In fact, in the United Kingdom (where the government has pledged 10 billion pounds), several ruling party MPs have started questioning the wisdom of providing such a backup to the IMF. Peter Bone (MP from the Conservative Party) said: "We might as well put £10billion in the nearest litter bin.” There is a sense in which this move is seen as money down the drain and an exercise in futility even if it may appear to be well-intentioned.

The Shadow Chancellor, Ed Balls (of the opposition Labour Party) had this to say: "The IMF has a vital role to play in the global economy and should have the resources to do that job, but it should not be bailing out the eurozone when the euro area countries are not doing their own bit to help themselves." "The IMF cannot and should not become the de facto central bank of the euro area." "The IMF is being put up to step in and play the role that the European Central Bank should be playing - a strategy which cannot work and is self-defeating by highlighting the lack of a proper ECB firewall." I can see the validity in this proposition that IMF should not do ECB's job.

Meanwhile, back in Singapore, we have mundane news reports of a mere 4 billion US dollars being pledged to the IMF. I am rather curious about the status of this loan commitment from a legal standpoint. Under our Constitution, there are some restrictions on loans and guarantees provided by the government. Article 144 of the Constitution is as follows:

Article 144.
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs;
(b)under the authority of any law to which this paragraph applies unless the President concurs with the giving or raising of such guarantee or loan; or
(c)except under the authority of any other written law.
(2) The President, acting in his discretion, may withhold his assent to any Bill passed by Parliament providing, directly or indirectly, for the borrowing of money, the giving of any guarantee or the raising of any loan by the Government if, in the opinion of the President, the Bill is likely to draw on the reserves of the Government which were not accumulated by the Government during its current term of office.

The present issue of the loan to IMF comes under Clause 1(b). The Constitution makes reference to specific laws under which loans may be given and one such statute listed at Clause 3 is the Bretton Woods Agreement Act (Cap 27). Subscription payments to the IMF and other monetary commitments to the IMF are covered by the Bretton Woods Agreement. Given this fact, the Constitution clearly prohibits at Clause 1(b) above any loan given to the IMF without the President's consent.

I wonder if the President was consulted. I wonder if he has given his consent. Given that this is one of the areas of the President's discretionary powers and given the fact that he is an Elected President, I would expect some transparency and accountability here simply in the form of an official request for the President's consent and the President's communication of such consent with reasons stated. This would ensure that the people can judge the President's record when it comes to the next Presidential Election. What decisions did he make in relation to his discretionary powers? How did he justify those decisions? Are the justifications acceptable? These are important questions and can't be brushed aside on the bare assertion that our President is like the Queen of England and that he carries out his functions behind closed doors. Our President is Elected (and not appointed or a hereditary title holder) and these are part of his discretionary powers for which he was elected.

Thus I have 2 issues with the current loan to the IMF. (1) A guarantee or a loan without the President's consent will be unlawful. (2) If the President has consented, can we have an official statement from Istana?

Who should I vote for?

For an election that is not going to make a great deal of difference in our political power structure, the Presidential Election has surprisingly placed me in a fix. Who should I vote for?

I had decided from Day 1 that I am not going to vote for the PAP endorsed candidate. When Tony Tan announced publicly that he was contesting, I had no illusions that he is the PAP endorsed candidate. Sure enough, the endorsements came regularly from different quarters. I am definitely not voting for Tony Tan.
That leaves me with three candidates, all of whom are to varying degrees capable of acting independently when elected.

Dr Tan Cheng Bock on a personal level gives me the vibes of a moderate person who would neither be a 'yes' man nor an unnecessarily confrontational individual. Tan Jee Say and Tan Kin Lian appear to be equally minded to address policy issues with the Cabinet and possibly through that reshape the Presidency.

I have narrowed myself down to Dr Tan Cheng Bock and Tan Jee Say. It is now between the Palm Tree and the Heart. I just went through the New Asia Republic's tabulation of the candidates' position on various issues: http://newasiarepublic.com/?p=32344

Still undecided.

Three Tans and The TAN

Whatever I am going to say here is purely unscientific and is based on a gut feeling resulting from observing current debates about the Presidential elections.

From conversations with my friends and observing online chatter it is clear that all the usual anti-PAP crowd is anti-Tony Tan. I believe that there is no doubt that based on the GE 2011, the same 40% that voted for the opposition would not be voting for Tony Tan. But, the big question is whether they would all instinctively gravitate towards a single candidate. Tan Cheng Bock, Tan Jee Say and Tan Kin Lian all have their merits and attractions for the anti-PAP voter.

What I find pretty clear as well is that a sizeable part of the 60% of PAP voters would not be voting for Tony Tan who is popularly perceived to be the PAP endorsed candidate. I know of friends and relatives that voted for the PAP in the GE for several reasons that would play no part in the presidential elections:
a) constituency level issues
b) fear of losing a PAP government
c) fear of losing credible Cabinet ministers
d) fear that they would lose out perks or promotions because they are in the civil service
e) fear that they will be 'marked' because they voted against PAP

I am sure that about 30% of voters would have been hardcore PAP supporters. These individuals would vote for the PAP endorsed candidate.
(I have always believed that the PAP has about 30% of hardcore supporters and there are about 25% to 30% hardcore opposition supporters. The remaining 40% to 45% of voters could be persuaded).

Nearly half of the voters that voted for PAP are likely to vote for someone other than Tony Tan. It is easy to assume that the person who benefits from this would be Dr Tan Cheng Bock given that he was a PAP MP and the PAP voter that decides not to vote for Tony Tan may not be inclined to vote for either Tan Jee Say or Tan Kin Lian.

The pro-opposition camp appears to me to be leaning towards Tan Jee Say. But, the 40% of opposition voters are not going to naturally veer towards Tan Jee Say and Tan Kin Lian. Some of my friends have expressed their preference for Dr Tan Cheng Bock. Though he was a PAP MP in the past, he has enough of a track record in opposing the official policy position of his Party. If elected, we can expect him to be a President like Mr Ong Teng Chiong. Given this dynamics, I wouldn't be surprised if the 40% contribute a little to Dr Tan Cheng Bock's votes.

Dr Tan Cheng Bock might turn out to be the biggest beneficiary of a 4-cornered fight picking up votes from both the opposition as well as PAP voters. He also has the requisite personality to endear himself with the people.

Putting aside 30% of the votes for Tony Tan, the remaining 70% would probably be split amongst the Three Tans. There is a good chance that TCB can garner 35% of the votes with TJS and TKL picking up the balance 35% between the two of them.

If on nomination day all 4 Tans contest, Dr TCB stands the best chance of winning.

My own hope is that the Three Tans come to a consensus and two of them give way so that it would be a straight contest between TT and another Tan. The result would be clear. The next President would not be TT. But, with the three Tans going against TT, the split in the votes could be such that TT might get in by the narrowest margin by getting as little as 30% because the other three could get 25%, 25% and 20% That would be a result that most of us would not want. I hope it doesn't come to pass that way.

COE FOR THE PRESIDENT

The Presidential Election Committee must grant a Certificate of Eligibility to a candidate before he would be able to contest the Presidential Election.

So far we know that there are 3 serious contenders. Don't forget that there's a fourth chap who has collected the papers for submission, Mr Ooi Boon Ewe. He is likely to be rejected by the Committee (as he was when he applied to contest for the 2005 Presidential Election).

I wonder if the PEC will grant the COE to all the 3 Tans. I believe that there is little doubt that the hardcore PAP supporters will go for Dr Tony Tan. I suspect that the hardcore anti-PAP voter would go for Tan Kin Lian. Dr Tan Cheng Bock is inevitably the one that could be the vote splitter. Would he split the PAP supporters or the opposition supporters? It would be interesting to see.

Given the current political climate, I believe that if it was a straight fight between Dr Tony Tan and Tan Kin Lian or Dr Tony Tan and Dr Tan Cheng Bock, Dr Tony Tan would lose. If we take the general election result as a starting point, 60% voted for the PAP and 40% against. Whilst the 40% can be trusted to cast a vote against the PAP 'approved' candidate in the Presidential election, the same cannot be said about the 60% who voted for the PAP. Many amongst the 60% already showed unhappiness but were either unconvinced by the opposition, inspired by local constituency level issues, cowed by fear or swayed by last minute apologies. I believe that, in a Presidential Election, these voters would not hesitate to vote for the candidate that presents himself as 'non-white'. This would work to the advantage of the candidate racing against Dr Tony Tan.

If the COE is granted only to Dr Tony Tan and one other candidate, I strongly believe that the other candidate would win. If the 3 Tans get the COE, Dr Tan Cheng Bock would either split the pro-PAP or the pro-opposition voters.

Would the 3 Tans qualify for the COE?

Under the constitution the following criteria needs to be met (in addition to others that I feel is not really an issue for the 3 gentlemen):

The candidate must satisfy the Presidential Elections Committee that he is a person of integrity, good character and reputation.

For not less than 3 years, he must have been either a Minister, Chief Justice, Speaker of Parliament, Attorney-General, Chairman of the Public Service Commission, Auditor-General, Accountant-General or a Permanent Secretary;
or
Chairman or CEO of CPF Board, HDB, JTC or MAS;
or
Board Chairman or CEO of a company with paid-up capital of at least $100 million

If the candidate does not meet the requirement of 3 years' experience in those positions, he can still qualify if he occupied a similar position (based on seniority & experience) in any other organisation of equivalent size/complexity in the public or private sector. The criteria here is that the PEC must form the view that the candidate's position has given him experience in adminstering and managing financial affairs so as to enable him to discharge the President's functions effectively.


Given the background of the 3 gentlemen, I believe that the PEC ought to grant the COE to all three men unless the Committee for some reason decides to question or doubt one of them on the ground of integrity, good character or reputation. This, I believe is unlikely.

In all probability we are looking at a 3 horse race.

Dr Tony Tan: The 'approved' candidate?

Dr Tony Tan is contesting in the Presidential Elections. I'm sure the Committee will approve his candidature. He fits the criteria stipulated for the Presidential Elections.

I have reservations about Dr Tony Tan. He was amongst the Plaintiffs that sued Tang Liang Hong for defamation. He is currently the Chairman of Singapore Press Holdings. The combination of these two facts hardly qualifies him as a defender of free speech. He certainly is not and I am sure he would not pretend to be one.

Freedom of Expression is one of the pet issues that I have against the present government and certainly any Presidential candidate that does not share a value system based on free expression would not get my vote.

The Online Citizen has updated on their facebook wall the following: "you have to defend your name when slandered says dr tony tan in response to what he feels about using defamation suits to quell opposition"

It indicates to me that Dr Tony Tan is essentially the same establishment man that he has always been.

Another update from the TOC FB page: "One of the area I would like to concentrate on is to rally Singaporeans to alleviate the burden of the needy, disabled and disadvantaged" - Dr Tony Tan.

That is pretty much the way that the present government orientates itself. "rallying singaporeans to alleviate the burden of the needy" means Singaporeans have to help themselves through private self-help groups. Don't expect handouts. The same PAP mantra that we have heard all the time. When it comes to social assistance, they are true-blue free market economists. When it comes to social freedoms, they want to control and micromanage as much as they can.

From TOC FB update: "Dr Tony Tan: There is only one power centre in Singapore and that is the elected government of the day. The Elected President is not a rival power centre."

I do not disagree with Dr Tony Tan on this issue of the 'power centre', although I have blogged earlier about an enhanced vocal role for the President. However, the lingo that he has used is the same rehashed official phraseaology. This is just more evidence that Dr Tony Tan is the 'PAP endorsed' candidate for the upcoming elections unless Mr Nathan decides that he wants to go for re-election.

Another issue I have with Dr Tan's candidature is the fact that he was a Cabinet Minister at the time of the infamous Marxist Conspiracy detentions under Operation Spectrum back in 1987.

Certainly not the liberal Presidential Candidate that I am looking out for.

We the people can make our President speak

The debate on the President's powers is taking a healthy turn. I'm glad that netizens are weighing in with good arguments one way or the other. A truly heartening aspect of this discussion is that most views are expressed within the ambit of the current constitutional framework as set out in our written Constitution. Nobody has illusions about the powers that are provided for.

The Ministry of Law's press statement is an accurate rendition of the relevant constitutional provisions. For those readers that don't plan to labour over the Constitution, I would recommend the MinLaw statement for a useful guide.
http://www.news.gov.sg/public/sgpc/en/media_releases/agencies/minlaw/press_release/P-20110610-1/AttachmentPar/0/file/Press%20Statement%20from%20Minister%20%28Law%29%20-%20Elected%20President%20_10%20June%202011_.pdf
We can potentially debate about whether the Constitution itself ought to be amended to give the President express powers in additional areas or to remove the constraints placed by the Cabinet's advice in the exercise of certain powers (e.g. Clemency). But, that would be a different kind of debate.

The present debate, as it is shaping up, is about whether the next President should speak up on policy issues or not. Traditionally, the head of state in a commonwealth country has been fashioned after the British monarch. There is no historical controversy in the assertion that our first President was in many ways a replica of the British monarch. His power was essentially more ceremonial than actual. As with the Queen, our unelected President lacked the constitutional legitimacy to speak up.

Singaporeans had never debated about the extent to which a President should exercise his powers because we never really saw him as having any legitimacy to wield any power.
Two things have changed from the 1990s onwards - today's President is elected and today's President earns an obscenely high salary. There is, therefore, a popular perception that the will of the people must be voiced in some way by the President and the President must be worth the money that he is being paid.

The expressly stated powers of the President in our Constitution do not traverse the area of his right to speak and express his views. Yes, he is not in a position to veto most bills and he is not in a position to veto policies. But, the Constitution is silent on his right to express a view. In such instances we have to resort to the political conventions surrounding the office of the President. Being a carbon copy of the British Queen, the original office of the President was governed by conventions that applied to the queen. An unelected person has no legitimacy to chide the elected leaders for their policies. Similarly an unelected person has no legitimate role in criticising the legislation passed by an elected parliament.

The conventions surrounding the British monarchy were easily transplanted into our constitutional arrangements. But, it still remains true that those were conventions and not strict provisions in our constitution.

Those of us advocating an expanded role are relying on the elastic nature of conventions. Once the Head of State is elected the game changes considerably. (In fact, one of the drawbacks of the creation of the elected presidency was the failure to appreciate the potential impact of the electoral mandate on the office itself. The complacent PAP government did not anticipate that an Elected President might one day challenge and question the PAP itself). Constitutional law does not reside in a vacuum. Political currents can be sufficiently strong to push through major shifts in the way certain officeholders may carry out their functions. This can happen without necessarily amending the Constitution and at the same time by avoiding any offence to existing constitutional provisions.

There is room to manoeuvre. We want our next President to use that room.
If ever there is to be a political moment in our nation's post-independence history where the power of the people's voice was strong enough to effect change, this is it. The push-back by the people against the PAP was loud and clear in May 2011. The PAP (to its credit) did not react with a heavy hand. It is responding through a reassessment of itself.
This displays that there is an important threshold that the PAP leaders are themselves prepared to cross. Criticism need not be crushed. It can be the basis of constructive analysis instead of building a culture of group-think.

I firmly believe that if there is sufficient public support for a vocal presidency, the winning candidate may carry with him a powerful electoral backing with which he can re-shape the office.

The current Cabinet ministers may possess sufficient wisdom to permit a slightly expanded role for the President. Who knows?

In a country where we are accustomed to the rules of the game being changed by the PAP, it is about time that the people play a part in changing the rules.

Summarising my previous blog post and the current post, my premise for an expanded role is this:
a) There are powers that the President can exercise discretion on
b) There are powers that the President is required to exercise in accordance with the advise of the Cabinet
c) There are no limitations or constraints on the President’s ability to publicly express his opinion
d) Public expression of opinion rendered in a gentlemanly fashion would at most piss off the government of the day but it would not result in a constitutional crisis
e) Dissenting views are a healthy aspect of a mature democracy (and we are on the way to maturing as a democracy)
f) By expressing his views, the President is not going to emerge as another power centre as his functions are still clearly demarcated

Clemency and the Constitution

I didn’t think that there was much hope for Vui Kong in the recent application before the High Court. Even if the Court had decided that the President may exercise his discretion, it would not have won Vui Kong a reprieve. But, the decision appears to have aroused a primal cry from netizens and armed critics with another weapon with which to mock the highly paid and allegedly powerless ‘Elected President’.

Many decry the legal confirmation of the President as a figurehead. Some have taken the Court ruling to mean that the President has no legal authority at all under the Constitution and that he is nothing more than a puppet. At the other end of the spectrum, there are lawyers and legally trained persons who are puzzled as to why M Ravi attempted this outrageous application when a ‘plain’ reading of Article 21 and Article 22P of the Constitution is supposed to reveal that the President does not have discretion in the matter of the Pardon.

I think that it is important to understand the Constitutional position.

1) Is the President a powerless figurehead under the Constitution?

No. By virtue of Art 21(2), the President has a number of discretionary powers.

Art 21(2) is as follows:
(2) The President may act in his discretion in the performance of the following functions:
(a) the appointment of the Prime Minister in accordance with Article 25;
(b) the withholding of consent to a request for a dissolution of Parliament;
(c) the withholding of assent to any Bill under Article *5A, 22E, 22H, 144 (2) or 148A;
(d) the withholding of concurrence under Article 144 to any guarantee or loan to be given or raised by the Government;
(e) the withholding of concurrence and approval to the appointments and budgets of the statutory boards and Government companies to which Articles 22A and 22C, respectively, apply;
(f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G;
(g) the withholding of concurrence under Article 151 (4) in relation to the detention or further detention of any person under any law or ordinance made or promulgated in pursuance of Part XII;
(h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony Act (Cap. 167A); and
(i) any other function the performance of which the President is authorised by this Constitution to act in his discretion.

Some netizens have gone overboard in making remarks that the High Court’s decision confirms what everyone privately feared… that the President is just an expensive rubber stamp. I find this to be an extreme response to the Court’s decision. The judge was examining one of the President’s powers and made a ruling that this power was constrained and the President had to act in accordance with the Cabinet’s advice.
Activists have to act with care not to make the assertion that the President is a rubber stamp (period). On the question of the pardon, the President is required to rubber stamp the Cabinet’s decision and not in relation to all functions.

2) Did the Court get it obviously wrong in deciding that the President had no discretion in the granting of the pardon?

No. There is a strong and irresistible conclusion that one can arrive at in reading the Constitution plainly that the President has no discretion in the use of the Art 22P power.

Arguments have been brandished (without reading the Constitution properly, I believe) that Art 22P states that the President ‘may on the advise of the Cabinet’ grant a pardon. Art 22P read in isolation leads one to conclude that the President has full discretion in the grant of the pardon.

Art 22P is as follows:
22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet —
(a) grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;
(b) grant to any offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence pronounced on such offender; or
(c) remit the whole or any part of such sentence or of any penalty or forfeiture imposed by law.
(2) Where any offender has been condemned to death by the sentence of any court and in the event of an appeal such sentence has been confirmed by the appellate court, the President shall cause the reports which are made to him by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General with instructions that, after the Attorney-General has given his opinion thereon, the reports shall be sent, together with the Attorney-General’s opinion, to the Cabinet so that the Cabinet may advise the President on the exercise of the power conferred on him by clause (1).

I understand perfectly well that the plain reading of this provision indicates that when the clemency issue arises, the President will call for reports from the judges to be sent to the AG who will send these reports together with his opinion to the Cabinet for the Cabinet to advise the President. The provision appears to leave the exercise of discretion by the President hanging ambiguously in the background.
Many lawyers and even law students will point out quickly that interpretive problem can be easily unravelled by reading Art 21.

21. —(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.

So, Art 22P confers on the President the function of granting the Presidential Pardon. Art 21 states that in the exercise of this and other functions, the President ‘shall’ act in accordance with the advice of the Cabinet. The use of the word ‘shall’ is mandatory and affords no discretion in the matter.

Art 21(2) lists out the different powers that are given to the President and that can be exercised with full discretion contrary to what is stated in Art 21(1). The list of these powers has been reproduced above. Art 22P is not listed nor is the granting of pardon referred to expressly. Therefore, quite justifiably there is a camp of lawyers who would assert boldly that the President has no discretion in clemency matters.

3) Did M Ravi miss the obvious and get his arguments wildly off the mark?

No. He raises an equally viable argument vis a vis Art 22P.

I have seen some comments posted by some individuals questioning M Ravi’s failure to see the obvious: i.e. the Constitution is clear and unambiguous in Art 21(1) and 21(2). But, I think they have failed to see the thrust of Ravi’s submissions to the Court. The interpretation that he proposed of Art 22P is a plausible reading of Art 21(1), Art 21(2)(i) and Art 22P.

Art 21(1) suggests that the President shall act in accordance with the Cabinet’s advice.

Art 21(2) provides for exceptions where the President can exercise his discretion.

One of the exceptions is as follows:
Art 21(2)(i) - any other function the performance of which the President is authorised by this Constitution to act in his discretion.

‘authorised… to act in his discretion’
Whilst Ravi’s argument is not the most obvious way to read the Constitution, it presents a perfectly valid legal argument that stands in competition with the simplistic reading of the Constitution as requiring the President to exercise no discretion in the granting of the pardon. Ravi claims that the function of granting pardons falls within the kind of functions referred to at Art 21(2)(i) (any other function the performance of which the President is authorised by this Constitution to act in his discretion).

The Constitution spells out the President’s powers in a number of ways. I have selected 3 provisions to illustrate the different approaches:

Article 25. —(1) The President shall appoint as Prime Minister a Member of Parliament who in his judgment is likely to command the confidence of the majority of the Members of Parliament, and shall, acting in accordance with the advice of the Prime Minister, appoint other Ministers from among the Members of Parliament

Article 22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet — (a) grant a pardon………..

Article 22A. —(1) Notwithstanding any other provision of this Constitution — (a) where the President is authorised by any written law to appoint the chairman, member or chief executive officer of any statutory board to which this Article applies, the President, acting in his discretion, may refuse to make any such appointment or to revoke such appointment if he does not concur with the advice or recommendation of the authority on whose advice or recommendation he is required to act…

The salient parts of the 3 provisions can be set out in the following way:
(1). The President shall, acting in accordance with the advice of the PM, ……
(2). The President may on the advice of the Cabinet…
(3). The President, acting in his discretion, may…

There are two ways of dealing with these three phrases. The first argument would be that the word ‘shall’ is a prescription to the President to do something and that it affords no discretion to him. The word ‘may’ presents an option to the President so that he now has discretion and the advise of the Cabinet that he considers goes towards the exercise of his discretion. Therefore, (1) is a provision that gives no discretion and (2) and (3) confer a discretion on the President. Interpreted in this manner Art 22P (the granting of the pardon) is arguably within the ambit of Art 21(2)(i) and therefore, Vui Kong’s counsel has a valid point in stating that the President has discretion.

The second way of dealing with the 3 phrases is to assert that only those provisions that state specifically that the President is ‘acting in his discretion’ would qualify under the proviso in Art 21(2)(i). Eventually, it appears that the Court has interpreted the Constitution in this manner. There are a number of provision that state ‘the President, acting in his discretion, may”. These provisions were contrasted from Art 22P which states that the ‘President may on the advice of the Cabinet’ grant the pardon. The Court, therefore, concluded that Art 22P does not provide for the President to act in his discretion.

The short of the long story?

The power under Article 22P was open to interpretation. The High Court has interpreted it. Let us see how the Court of Appeal views the provision and whether it is declared that the President does or does not have discretion in the grant of the pardon.

Reactions from CNN panel as they witness history

Restoration of America

I posted the following on the Soulcast blog on 18 August 2006 and it was titled: "Why I admire America". Today with the historic election of Barack Obama as President, I feel compelled to repost it here:

I am not an American. I am probably one of millions of people around this planet seething with anger about American foreign policy and what it has done and what it is doing to the rest of the world. I express negative views about the Bush administration's policies. I oppose the so-called "war on terror" used as a cover for domination of oil resources in the middle east. etc. etc. etc.

An American listening to me might easily assume that I have a lot of disdain for the USA and Americans. But, I'll let you in on a secret.

I love all the great and glorious ideals of freedom and liberty that America stands for... those ideals that are enshrined in its constitution. As someone living in a country where freedom of speech, freedom expression and freedom of assembly have been practically wiped off the public domain (driving most of us into the last frontier of the internet), I have always admired Americans and their ideals. And I guess, that is why it has pained me to witness the gradual erosion of those rights and ideals in the USA since 9/11. If the PATRITOT ACT, guantanamo, domestic surveillance under inherent executive powers and such other assortment of legal and extra-legal measures are utilised to destroy rights in the very place that I looked up to as the beacon of liberty, then what can we say about the future for the rest of us living in repressive societies of varying degrees.

Like the rats migrating to America believing that there are no cats in America (a la American Tail), those of us in other parts of the world have lived under the impression that America is truly a land of the free. The post-9/11 USA looks terrifyingly like an Orwellian nightmare.

But, amidst all of the gloom of the last few years, here is again another reason why I love America......

A Federal Judge has ruled that the NSA wiretapping authorised by the President under supposedly inherent powers is illegal. This is what she said:
“We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all ‘inherent power’ must derive from that Constitution.” “The Government appears to argue here that …. because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.”

Ultimately, even when the Executive appears to assume excessive powers, there is enough sanity and independance within the Judiciary to ensure that the Constitution and the rule of law are not usurped.

Thank God for the sane voices. Long live liberty.

That was posted two years ago as I saw a glimmer of hope in the Supreme Court repudiation of the Bush enchroachment on civil liberties. Today, I hope that the Obama Presidency would usher in a return to America's core constitutional values and by doing so restore that great nation to its rightful status as the beacon of liberty.

The 44th President of the United States of America

The scenes are euphoric. The moment is historic. A man of partial African origin has become the President-elect of the most powerful nation on this planet. At this point I think the following words of Martin Luther King are apt:

From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!

Thank God Almighty, we are free at last!³

Ron Paul drops out of Republican race

Ron Paul, the Libertarian leaning Republican, has officially dropped out of the Republican race. Although realistically he was not going to get the necessary delegates to vote for him at the Republican Convention later this year, Ron PAul kept the hopes of his supporters alive by keeping himself in the race.

There was a stage towards the end of last year and the beginning of this year when the net was abuzz with the Ron Paul Revolution. There appeared to be this new hope on the horizon. He was the most popular candidate on the internet. But, the MSM hardly gave him any credence. They won in the end. They succeeded in muzzling his voice and his message. He is, in my view, the person best suited to be President and the one person whose uncompromising and principled views would have done a great deal of good for America and the world.

Well, Ron PAul has announced that he will shift his focus now to maintain a long term campaign for liberty. I guess in the larger scheme of things the Presidential campaign is not the be all and end all.

The Long Ride

The First African slaves were introduced into what is today the United States in the year 1619.

In 1641, Massachusetts legalised slavery.

In 1808, the American Congress abolished the slave trade.

In 1865, slavery was abolished

In 1868, Afican Americans received full citizenship

In 1870, African men received the right to vote

In 1909, the NAACP was formed

In 1948, the US Army was desegregated

In 1963, the famous speech by Martin Luther King... 'I have a dream' (one of my personal favourites)

In 1964, the Civil Rights Act

In 1965, the Voting Rights Act

In 1968, to quote from U2.... Early morning, April 4th... A shot rings out in the Memphis sky... Free at last... they took your life. They could not take your pride...
Martin Luther King was assassinated.

40 years later... In 2008, Barack Obama has become the presumptive Presidential nominee for a major political party.

History is sometimes very poetic... It is exactly 200 years since the slave trade was abolished. The Democratic National Convention is scheduled for the 28th of August. That is the 45th Anniversary of Martin Luther King's famous 'I have a dream' speech. Barack Obama will be officially accepting the Democratic Party's nomination.

Well... I watch in awe as history sculpts another poetic page.