Wednesday, 10 May 2017

Tan Cheng Bock files High Court application challenging reserved Presidential Election; Legal challenge to reserved election fails

Tan Cheng Bock goes to court to ask why Elected Presidency starts from Wee Kim Wee
By Nur Asyiqin Mohamad Salleh, The Straits Times, 9 May 2017

Former presidential candidate Tan Cheng Bock has filed an application in the High Court to question the Government's decision to reserve the upcoming presidential election for Malay candidates.

He wants the court to decide if the Government's counting of the five presidential terms needed to trigger a reserved election is consistent with constitutional amendments to the elected presidency.

In his application, which includes a statement from top British constitutional lawyer David Pannick, Dr Tan contends that the counting of five terms should start with Mr Ong Teng Cheong. The Government had started counting from the term of Mr Wee Kim Wee, the first president vested with the powers of the elected presidency.



A Supreme Court spokesman said yesterday that the High Court had accepted Dr Tan's filings on Section 22 of the Presidential Elections (Amendment) Act 2017.

In a Facebook post last night, Dr Tan, 77, said he filed the application last Friday, and a pre-trial conference has been fixed for May 22.

His legal challenge follows a press conference in March, when he spoke on the Government's decision to implement changes to the elected presidency this year.

Last November, Parliament passed changes to the Constitution to ensure the presidency reflects Singapore's multiracial society. A provision was included for presidential elections to be reserved for candidates from a racial group that has not been represented in the office for five continuous terms.

In January, the Presidential Elections Act was amended. The Government, on the advice of the Attorney-General (A-G), started counting the five terms from Mr Wee, who was in office when the elected presidency took effect in 1991. After him were Mr Ong; Mr S R Nathan, who served two terms; and current President Tony Tan Keng Yam.

At the March press conference, Dr Tan called on the Government to refer its decision to the courts, saying: "I am concerned that the changes were introduced to prevent my candidacy."

He had announced his second bid last year, while a review of the elected presidency was ongoing.

Yesterday, he said he had not heard from the Government about the points he raised.

"Since this is a matter of national importance, I sought to find the legal answer and consulted the best constitutional lawyer I could find," he added.

He turned to Lord Pannick, a Queen's Counsel who is also a member of the House of Lords.

Dr Tan said he sent Lord Pannick, among others, the report by the Constitutional Commission that reviewed the elected presidency, the Government's White Paper on its recommendations, and parliamentary reports.



He said Lord Pannick disagreed with the A-G's advice, and said Section 22 of the Act was unconstitutional. "I could not keep his legal opinion to myself. It would be in the public interest to have the court decide which legal view is correct," he said.

Lord Pannick led the successful legal challenge to stop British Prime Minister Theresa May from triggering Britain's exit from the European Union without a vote in Parliament.

Dr Tan is represented by law firm Tan Rajah & Cheah.

"I believe this question can be answered without confrontation or hostility. Both the Government and I have the nation's best interest at heart. It is in nobody's interest to have a reserved election that is unconstitutional," he said.

































********











########







* Court dismisses challenge to first reserved election
Constitution doesn't say only popularly elected presidents can be considered, it says
By Joanna Seow, The Straits Times, 8 Jul 2017

The High Court ruled yesterday that Parliament has the right to start counting from the term of former president Wee Kim Wee for the purposes of reserving the upcoming presidential election for Malay candidates.

The reason is that the Constitution does not restrict Parliament to consider only presidents that are elected by Singapore citizens when deciding the timing of an election for a racial group, said Justice Quentin Loh in his judgment.

The Constitution also allows the term of a president elected by Parliament, in this case Mr Wee, to be included in the five terms needed to trigger a reserved election.

Justice Loh made this key point yesterday when dismissing a legal challenge brought by former presidential candidate Tan Cheng Bock on the timing and basis of the reserved presidential election for Malays in September. "From the perspective of ensuring multi- racial representation in the presidency... it makes no difference whether the president was elected by the electorate or by Parliament," he said in a 65-page judgment.



Changes to the Constitution were passed last year to allow for elections to be reserved for candidates from a particular community, if no one from that community has been president in the past five terms.

The Government counted the first of the five terms as Mr Wee's term, as he was in office when the elected presidency took effect in 1991. There have been four other terms since, ending with current President Tony Tan Keng Yam.

Dr Tan Cheng Bock said this was unconstitutional, and that the reserved election should take place in 2023 at the earliest and not this year. His lawyer, Senior Counsel Chelva Retnam Rajah, said Mr Wee's term should not be counted. He cited parts of the Constitution that referred to the president as someone elected by the citizens and serving a six-year term.

Mr Wee, he said, was elected by Parliament and served two four-year terms.

This means Parliament can start its count only from the term of Mr Ong Teng Cheong, the first popularly elected president, he added.

Deputy Attorney-General Hri Kumar Nair, representing the Government, argued that the articles in the Constitution on the reserved election did not specifically exclude presidents elected by Parliament.

This means Parliament has "full discretion" to take into account Mr Wee's term, Mr Hri Kumar added.

Justice Loh ruled that the Constitution does not specify that only a popularly elected president can be considered in determining when an election should be reserved.

While the Constitution "reflects our prevailing constitutional arrangements at any given time", the overarching definition of "president" in Article 2 has not changed since it was included in 1980, he said. This definitionspecifies the term "president" means any person elected president under the Constitution.

Justice Loh noted the definition was retained through two major constitutional changes to the elected presidency in 1991 and this year. He said: "The fact that Parliament retained the definition... must be that the definition was of utility and valid because it would include presidents elected by Parliament.

"Otherwise, all the presidents before President Wee would no longer be presidents 'elected under this Constitution'...this would mean that all their acts, including all the Acts of Parliament to which they assented, would fall away."

Ultimately, Parliament is free to start the count from Mr Ong, any president after Mr Ong, as well as Mr Wee, he said, and added: "Parliament's choice of the first term is a policy decision which falls outside the remit of the courts."

The judge also noted that when the elected presidency took effect in 1991, the law provided for Mr Wee to continue for the rest of his term, and vested in him the powers and duties of an elected president. This was similar to a provision made in 1965, after independence, for Yang di-Pertuan Negara Yusof Ishak to continue as president, he said.

Mr Rajah argued that the court should favour an interpretation of the law that would delay the reserved election as far as possible, because it encroaches on Singaporeans' fundamental rights to run in a presidential election.

Justice Loh said contesting the election is not a fundamental right akin to freedom of speech and religion, among others, which are enshrined in the Constitution.

Due to the president's important role, the Constitution specifies stringent expertise and experience for people to qualify as a presidential candidate, which not everyone can meet. In this light, the right to stand for the election is plainly very different from the fundamental rights in the Constitution, he said.

The Attorney-General's Chambers did not ask for legal costs. Mr Hri Kumar said this is because Dr Tan has indicated he will not be pursuing costs.

In a post last night on Facebook, Dr Tan said his lawyers are studying the judgment. "I am, of course, disappointed with the result and will announce whether I will appeal, after this weekend," he said.















Other points addressed in Justice Quentin Loh's 65-page judgment
The Straits Times, 8 Jul 2017

WHAT IS THE PURPOSE OF THE RESERVED ELECTIONS?

Senior Counsel Chelva Retnam Rajah, for Dr Tan Cheng Bock, said it is to address a specific problem: the possibility that open elections will not result in minority candidates winning from time to time.

By this measure, only the term of a popularly elected president should be considered in determining when to trigger reserved elections, he said.

Deputy Attorney-General Hri Kumar Nair said the aim of reserved elections is to ensure multiracial representation in the office.

The fact that there has not been a Malay president for a long time, he added, is troubling regardless of how presidents are elected.

Justice Quentin Loh, agreeing with Mr Hri Kumar, said: "The recent constitutional amendments reflect a re-emphasis on the president's unifying role and the conviction that, in order for the president to fulfil that role, that office must reflect the multiracial character of our country."

Interpreting the law in this light, he said, it made no difference that Mr Wee Kim Wee - the first president vested with powers of the elected presidency - was elected by Parliament and not the people.

Parliamentary debates on the issue cited by both sides also show that Parliament was aware of the Government's intention when it passed the laws, he added.

Starting the count from Mr Wee's term ensures that "after a passage of 46 years... Singapore will have its first Malay president since Mr Yusof Ishak", he said.


SHOULD ATTORNEY-GENERAL'S ADVICE MATTER?

Prime Minister Lee Hsien Loong had said during parliamentary debates: "We have taken the Attorney-General's advice. We will start counting from the first president who exercised the powers of the elected president, in other words, Mr Wee Kim Wee."

This was cited by both sides to support their case.

Mr Hri Kumar said this meant Parliament was aware of the intention to count from Mr Wee's term when it passed the Presidential Elections (Amendment) Act 2017, which spells out the nuts and bolts of the reserved elections.

Mr Rajah contended that the Attorney-General's advice was wrong, and asked the court not to put too much weight on Parliament's intention.

Justice Loh said: "I do not know what the Attorney-General's advice was. But more importantly, the reason I have placed weight on the relevant statements is because they reflect Parliament's intention."

He said that ultimately, Parliament had decided on the reserved elections with the knowledge that it allows Mr Wee's term to be counted.

Whether this was based on the Attorney-General's advice or otherwise is not relevant, he added.


DID DR TAN HAVE STANDING TO LAUNCH A LEGAL CHALLENGE?

Justice Loh also ruled that Dr Tan had standing to bring the challenge to court.

Although it was not a subject of contention, he addressed it, saying he considered several reasons.

He said Dr Tan got a "very credible number of votes" in the 2011 Presidential Election, and had publicly announced his intention last year to stand again.

Reserving the coming election for Malays disqualifies Dr Tan from running, and if the counting of the five terms was unconstitutional, Dr Tan may then be a candidate.

Citing these reasons, Justice Loh said Dr Tan has satisfied the requirements of having the standing to bring the challenge to court.







***************


 


















** Five judges to hear Tan Cheng Bock's appeal on election

By Joanna Seow, The Straits Times, 28 Jul 2017

Five judges, instead of the usual three, will hear Dr Tan Cheng Bock's appeal on the upcoming presidential election on Monday.

They include Chief Justice Sundaresh Menon, who previously noted that the Court of Appeal could be expanded to hear selected cases of jurisprudential significance.

CJ Menon also chaired the Constitutional Commission convened last year to update eligibility criteria for the elected presidency and ensure it reflects Singapore's multiracial society.



Dr Tan said in a Facebook post last night that some had asked whether CJ Menon should hear the case, given his role on the commission.

He said he welcomed the involvement of CJ Menon, adding: "In my view, no other judge knows more about the subject than the CJ.

"It is, therefore, proper and beneficial to Singaporeans that he is available to address questions on the reserved election scheme and its spirit and purpose," he said.

Dr Tan noted that last week, the court wrote to the Attorney-General as well as to his lawyers, led by Senior Counsel Chelva Rajah of Tan Rajah & Cheah, to ask if either party had any objections to CJ Menon sitting at the hearing. Both sides said there were none, he said.

"Having five judges is significant," he added. "It points to the importance of the constitutional issues for clarification."



The Constitutional Commission had recommended reserving an election for members of a racial group if it had not been represented in the presidency for five continuous terms. This was accepted by the Government and passed by Parliament, which decided this year's election should be reserved for Malay candidates.

The Government started its count of the five terms from the term of President Wee Kim Wee, who was in office when the elected presidency took effect in 1991. There have been four other terms since, including that of current President Tony Tan Keng Yam.

But Dr Tan Cheng Bock, who contested the 2011 presidential election, had argued this was unconstitutional as Mr Wee was not popularly elected. He said the count should start from President Ong Teng Cheong, so the reserved election should start in 2023 at the earliest.

But Justice Quentin Loh ruled on July 7 that Parliament, ultimately, has the right to decide which presidential terms to take into account.

He said the Constitution does not restrict Parliament to consider only presidents elected by citizens when deciding the timing of an election, and added that it also allows the term of a president elected by Parliament, in this case Mr Wee, to be included.

CJ Menon had, in 2014, said the expansion of the apex court would allow "difficult or unsettled issues" to be resolved "with the benefit of the collective wisdom and insights of a larger pool of judges".

Also in the court for Monday's hearing, which will start at 10am, are Judge of Appeal Judith Prakash, Judge of Appeal Steven Chong, Justice Chua Lee Ming and Justice Kannan Ramesh, according to the Supreme Court hearing list.










*** Court of Appeal reserves judgment in Tan Cheng Bock's appeal on constitutional challenge

The Straits Times, 1 Aug 2017

The Court of Appeal yesterday reserved judgment on former presidential candidate Tan Cheng Bock's appeal against a High Court decision on the timing and basis of the upcoming reserved presidential election.

Chief Justice Sundaresh Menon said a decision would be made "as soon as possible".

Dr Tan's lawyer, Senior Counsel Chelva Rajah, argued it was unconstitutional for the Government to start its count of the five terms to trigger a reserved election from the term of president Wee Kim Wee, as he was not elected by the people.

But Deputy Attorney-General Hri Kumar Nair said Mr Wee was "elected under this Constitution" by Parliament, and therefore his term could be counted.











Arguments over definition of president at Tan Cheng Bock's appeal hearing

Lawyers from both sides cross swords over how Article 19 (B)1 in the Constitution should be read
By Danson Cheong, The Straits Times, 1 Aug 2017

Lawyers for former presidential candidate Tan Cheng Bock and the Government yesterday argued in the apex court about how the Constitution defines a president.

Senior Counsel Chelva Retnam Rajah said a president must be someone who was popularly elected, while Deputy Attorney-General Hri Kumar Nair said the constitutional definition of president included those who were elected by Parliament and by the people.

The two men were arguing about how Article 19(B)1 in the Constitution should be read.

The provision allows the Government to reserve a presidential election for candidates from a particular community if it has not been represented in the highest office in the land for five consecutive terms.

The upcoming September election has been reserved for Malay candidates, and former presidential candidate Tan Cheng Bock is challenging the timing and basis of this.

The High Court had, on July 7, dismissed his challenge.

Appealing this yesterday, Dr Tan, who was represented by Mr Rajah, said it was unconstitutional for the Government to start its count of the five terms needed to trigger a reserved election from the term of President Wee Kim Wee.

Mr Rajah said that for the purposes of this count, a president must be elected by the people in an open election.

President Wee, who was the first president to be vested with the powers of the elected president, was elected by Parliament. He was followed by President Ong Teng Cheong, who was elected by Singapore citizens in the first presidential election in 1993.

If Mr Rajah's arguments prevail and the count starts from President Ong's term, the reserved election would start in 2023 at the earliest.

It would mean that Dr Tan, 77, who lost narrowly to current President Tony Tan Keng Yam in 2011, could apply to stand in the election, although the updated eligibility criteria mean he is unlikely to qualify.

He had made known his desire to contest the election in March last year.

The Court of Appeal, with five judges presiding, including Chief Justice Sundaresh Menon, had reserved judgment on the case.

Chief Justice Menon - who headed a constitutional commission set up to look into changes to the elected presidency - said a decision would be made "as soon as possible".

In arguing against the count, Mr Rajah cited articles from the Constitution and the Interpretation Act to show that the definition of "president" had changed since the elected presidency was introduced in 1991. He said "to be included in the count, you have to be a president who falls within the meaning of president that exists in the Constitution as it appears today".

This means that the Government can start its count only from the term of presidents who were popularly election, starting from President Ong, he added.

But Mr Hri Kumar, representing the Government, said the argument was an attempt to limit the definition of president so as to delay the reserved presidential election set to take place in September.

He said Mr Rajah was putting the definition of president into a "smaller and smaller box" for the sole purpose of disqualifying President Wee's term from the count.

The constitutional definition of president had not changed since 1965, when Singapore became independent, he argued, and covers presidents elected "under this Constitution".

He said the definition of "president" was not affected by how a president was elected, the length of his tenure or power he holds, only that he was elected under the Constitution. This necessarily allows the Government to consider Mr Wee's term in the count of the five terms, he added.

He said Mr Rajah's efforts to "draw a bright red line" to exclude him was "nonsensical".

Taken to its logical conclusion, he added, this would mean that presidents elected before the latest constitutional change last year were no longer considered presidents.

Mr Hri Kumar said the issue was whether the Government had acted legally in starting the count from Mr Wee's term, adding it was legally and fully entitled to do so.

He also said that the Government was not proclaiming Mr Wee a popularly elected president in starting the count from his term, contrary to what people have been saying online.

During the hearing, Chief Justice Menon asked Mr Rajah if Article 163 of the Constitution had any bearing at all on whether Mr Wee could or could not be included in the count.

The Article provides for Mr Wee to be treated as if he was elected by Singapore citizens when the elected presidency came into effect in 1991, midway through his second term in office.

Mr Rajah said the Article was a "transitional provision" and "it doesn't make him or deem him to be an elected president".

He also argued that it was not Parliament's intention, when it passed the changes to the law, to consider the terms of presidents who were not elected at the polls.

Mr Hri Kumar rebutted this, saying the Government had made clear its intention to start the count from Mr Wee's term during parliamentary debates on the issue.

Yesterday's hearing was held in a packed courtroom that included prominent opposition politicians such as Workers' Party chairman and MP Sylvia Lim and former National Solidarity Party secretary-general Lim Tean.

The four other judges are: Judges of Appeal Steven Chong and Judith Prakash, and Justices Chua Lee Ming and Kannan Ramesh.

After the hearing, Dr Tan told reporters: "We got a fair hearing, that's very important... If (the court decides) we are wrong, then we will accept it. That's what democracy is all about - the exchange of ideas. But if we are right, then the Government must also accept it."











Deputy A-G, lawyer tussle over true intention of Parliament

By Danson Cheong, The Straits Times, 1 Aug 2017

Parliament had made a policy decision in choosing the term of President Wee Kim Wee to begin the count of five consecutive presidential terms needed to trigger a reserved election, Deputy Attorney-General Hri Kumar Nair said yesterday as he set out his arguments in the Court of Appeal.

And it had done so to end the long hiatus of Singapore not having a Malay president, he added. In fact, he said, this was Parliament's intention when it passed changes to the law to ensure minority representation in the highest office in the land.

Mr Hri Kumar was rebutting the argument of Senior Counsel Chelva Retnam Rajah, who contended that Parliament's true intention was to fix the problem of minority candidates not winning open elections.

Given this, said Mr Rajah, only the terms of presidents who were popularly elected could be considered in the count. He is representing former presidential candidate Tan Cheng Bock, who challenged the timing of the upcoming presidential election reserved for Malay candidates.

Mr Wee was in office when the elected presidency took effect in 1991. After him, there were four other presidential terms, including the term of current President Tony Tan Keng Yam.

Pointing to Article 164 in the Constitution, Mr Hri Kumar said the law gave Parliament unfettered and "full discretion" to decide from which president's term to start the count needed in triggering a reserved election. He referred to the speech made by Prime Minister Lee Hsien Loong during a parliamentary debate last November, in which PM Lee explained why the Government was starting the count from Mr Wee.

"If he was selected, the next election will be reserved for Malays and the reason for that was to break the hiatus... That was what Parliament was endorsing when it passed the Act," said Mr Nair.

Singapore has not had a Malay president since Mr Yusof Ishak died in office in 1970.

But Mr Rajah argued that the Government had made that decision because it was acting on the bad advice of the Attorney-General.

As as result, he said, it was not the true intention of Parliament to start the count from Mr Wee's term when it passed the amendments into law.

But Chief Justice Sundaresh Menon, who was among five Court of Appeal judges hearing the case, said it would be "invidious" for the court to be put in the position of deciding whether the A-G's advice was right or wrong when the court had not seen the advice.

He said if the court agreed with Dr Tan's reading of the Constitution, it would not matter what the A-G had said, as this would not change the legality of the Government's decision. Similarly, if the court agreed with the Government's reading, it would matter even less what the A-G had said, said the Chief Justice.











No comments:

Post a Comment