A Very Good Article that I somehow failed to read in Singapore. Jeff- She is a big boss in the legal circle

Straits Times 2005-08-19Is Singapore heading for a selected presidency?

By Thio Li-Ann
In 1991, a novel constitutional experiment took place when the office of the President was transformed from a ceremonial head of state, like the Queen of England, into one charged with additional executive functions. This stemmed from a perceived need to have a fiscal guardian stand sentinel over the nation’s coffers, should freakish elections yield a profligate, irresponsible government which dominates Parliament and enjoys untrammelled power.
To prevent nepotism, the Elected President (EP) was given powers allowing him or her to refuse to concur with key civil service appointments. The EP also has constitutional roles in preventing corruption and protecting human rights. Thus, even without the Prime Minister’s consent, the director of the Corrupt Practices Investigation Bureau can investigate a minister, with the EP’s concurrence.
The EP safeguards personal liberty and religious freedom through cancelling ministerial orders under the Internal Security ACt or Maintenance of Religious Harmony Act, under certain conditions.
This is important as judicial review in these matters has been limited or entirely excluded.Thus, the EP scheme buttresses the separation of powers, affirming the need for institutionalised checks on public power.
The EP must be armed with legitimacy and the moral authority to block the Government which could be derived only from the people’s will, expressed at elections. Thus, the institution was made elective.
The EP is commonly understood as an institution which checks the Government in certain stipulated areas. It is thought to add another dimension to democratic, limited government as it derives its legitimacy through the mechanism of the popular vote.
However, the picture is more complex than this as there are other actors, both elected and non-elected, which play an important role in the process of electing an EP and counter-checking the EP’s powers.
As the EP’s powers are relatively limited in the broader scheme of things, it begs the question as to whether the the stringent pre-qualification criteria are necessary for an office which plays a reactive role in governance.
Furthermore, the process of having an unelected body determine the suitability of potential EP candidates not only takes the power of choice one step further away from the people, but it also raises issues about whether these decision-makers should be accountable to the people or whether their decisions should continue to be completely insulated from scrutiny and challenge. Absolute discretion is anathema to the rule of law.
Three key points
To better understand how this complex institution works and what it represents in terms of constitutional government, three important points bear noting.
Firstly, the EP does not work alone in his custodial role but in tandem with the moderating influence of the constitutionally established Council of Presidential Advisers (CPA), which makes recommendations. The EP slects two members and the CPA chair, while four others are appointed on the advice of the Prime Minister, Chief Justice and Public Service Commission (PSC) chair. Where the CPA advises the EP to withhold assent to a Bill, members must indicate the grounds for this. When the EP is temporarily unable to discharge his functions, it is the CPA chair or Speaker that steps in.
Secondly, the EP is subject to counter-checks: where the EP, contrary to CPA recommendations, refuses to assent to a supply Bill or a public appointment such as the attorney-general, Parliament can override the EP’s decision with a two-thirds majority-backed resolution. Thus, the EP cannot hinder a government that controls minimally 66 per cent of parliamentary seats.
Thirdly, the democratic quality of the EP scheme is diluted in two main ways. The first relates to the pre-qualification criteria, which some consider onerous. These impair the equal right of candidature, yielding a small pool of possible candidates.
It is easier to meet the qualifications to be PM (or even the United States President), than to qualify to run for EP, although the PM and the Cabinet shoulder the primary responsibility of formulating and implementing government policy.
Candidates must meet one of the following criteria:
Hold high public such as minister, chief justice, Speaker, attorney-general, auditor-general or permanent secretary. This ensures the candidate has high executive or administrative experience with public affiars, but not necessarily financial expertise across the board.
Alternatively, the chairman or CEO of a company with a minimal paid-up capital of $100 million may qualify. This guarantees financial literacy but not public affairs management experience.
Lastly, the Presidential Elections Committee (PEC) may decided a candidate qualifies, if he holds, as the Constitution states, any similar or comparable position of seniority and responsibility in the public or private sector, which confers the necessary experience and ability in managing financial affairs, equipping the candidate to effectively discharge EP functions.
Under these criteria, people who might be well-qualified to be EP, such as diplomats or respected community leaders, are excluded.
The second way in which the democratic quality of the EP scheme is diluted relates to the process which filters out unsuitable candidates by denying them a certificate of eligibility. Candidates are vetted by “three wise men” of the PEC (the chairs of the PSC and Accounting and Corporate Regulatory Authority, and a Presidential Council of Minority Rights member). The PEC must be satisfied that a candidate meets the subjective requirement of being a person of integrity, good character and reputation.
Singaporeans can vote only for PEC-vetted candidates, which seems to indicate a paternalistic concern that the electorate cannot be trusted to evaluate candidates and select the right person for the job.
Furthermore, PEC decisions are unaccountable as they are not subject to judicial challenge. Where the PEC states a candidate lacks good character, it cannot, in the absence of malice, be sued for libel.
Who then guards these unelected guardians? The PEC has given brief reasons for denying certificates of eligibility to past candidates, but is not legally obliged to do so; this is anomalous in an age where ensuring the transparency and accountability of all public actors is recognised as essential good governance values.
Dr Thio Li-ann is an associate professor at the Faculty of Law, National University of Singapore. The views expressed here are her own.