15 May 2017

Date with High Court, Cha-cha with Cheng Bock

Dr Tan Cheng Bock, ready for makan!
Photo by Shawn Byron Danker
It was clear from Dr Tan Cheng Bock's press conference on 31 March 2017 that the good doctor would mount a challenge to the reserved presidential election to be held in Singapore before September 2017. It has been a week since Dr Tan broke the news that he had applied for "a clarification" from the High Court - an application which was accepted.

It is time for us to examine the principles that may guide the court when it makes that clarification for both Dr Tan and the Attorney-General's Chambers. We make no attempt to weigh the "correctness" of these principles or the likelihood that they will be accepted by the Court in its judgement.

Clarification or challenge?

Initial afternoon tea with the High Court is set on 22 May 2017
Dr Tan requests the High Court to step in and rule whether section 22 of the Presidential Elections (Amendment) Act 2017), resulting in "The Schedule" in the Presidential Elections Act, is constitutional. To wit, was the advice given by Attorney-General's Chambers to the Prime Minister on counting the late president Wee Kim Wee in the "race clock" for reserved elections constitutional? On the surface, it is of course a request for a clarification. In actuality, it is a challenge and has been described as such in the media. Certain legal experts note in addition that it is a challenge that has the potential to derail a tight timeline for the next presidential election.

Here are some legal principles that may surface from Dr Tan's legal team and the AGC

Natural meaning


Humpty Dumpty on the natural meaning of words
An election for the office of the President is reserved for a community if no person belonging to that community has held the office of President for any of the 5 most recent terms of office of the President.
What does the word President here refer to? Only an elected president? Any president? It can be argued that

1. Whenever terms are undefined or ambiguous, the legal principle is to accept the "natural meaning" of the word. That is, the Court should take the excerpt to refer to an elected president who has the official title (de jure), powers (de facto), and acclamation of such an elected president (legitimate process);
2. Being grandfathered into the new presidency halfway through his term, President Wee does not fulfil to the fullest extent, all these requirements (while any elected president, whether elected or walkover, can);
2(a). By popular understanding, President Wee is not regarded as an elected president by the populace ever, nor in official record until recently;
3. Subsequently Section 22 and the resulting Schedule should be ruled invalid.

Parliamentary sovereignty

The UK still believes that parliament is sovereign and has the workings to prove it
How do separation of powers look like in a Westminster parliamentary system?

Legislative branch (i.e. parliament) makes the laws
Judiciary branch addresses ambiguities or silences in the laws
Executive branch (i.e. the cabinet and the PM) decides on policy
Head of state (i.e. the president, in the case of dominions and former colonies) advises, counsels, and warns the executive in its policymaking

Parliamentary sovereignty or parliamentary supremacy is a principle dividing the Westminster system from say, the American system. As long as parliament passes it, it is law. As long as parliament votes to undo it, it is undone. As long as parliament passes an amendment, it becomes law. As long as parliament votes to adopt a supranational law, it is the law of the land. And despite any "Hotel California" clauses in such supranational laws, if parliament so chooses to repeal that law, it is unbound.

It doesn't matter if the populace may not agree about the status of the Wee presidency. Nor if the Constitutional Commission had not asked for President Wee to be put inside in the racial clock. It was raised, debated, and passed in parliament by our MPs. And since parliament chose to pass a law to include President Wee in the racial clock, it is the law and the court may choose to uphold it on this principle.

Non-interference with policy


The court may even argue that if there is an ambiguity in the status of President Wee, it is an ambiguity of policy and not of law, and it is not the role of the judiciary to ultimately decide on the nitty-gritty of policy. This is unlike the American principle of judicial activism, where the apex court would be empowered make its own interpretation in such a situation, thus usurping the role of the legislature and the executive. In the Westminster situation, the court will either defer to the legislature or request further action by the legislature.

Unusual Precedents?

Dr Tan, the AGC, and the High Court all have reasons to thank Lord Pannick QC
We note with interest that Dr Tan has cited the advice of Lord Pannick QC on the constitutional changes to the office of the elected president. Lord Pannick played a key role in the legal challenge to Brexit in the Supreme Court. But the challenge was won on arguing for parliamentary sovereignty, in that PM May and her cabinet had to put to parliament Article 50 instead of triggering it unilaterally...

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