Hazy talk: We measure the PSI of every Minister who spoke on counting Elected Presidency terms
Some of them are really foggy. We don't blame you.
On Tuesday, the parliamentary exchange all of us have been waiting for happened — Workers’ Party MP Sylvia Lim finally balloted her adjournment motion on the reserved presidential (s)election, and spoke about it in Parliament.
She asked, in a roughly 18-minute speech, how it was decided to count Elected Presidents from the late Wee Kim Wee.
To simplify it for those of us who might be lost, there were essentially two possible scenarios in the decision-making process here:
- The government asked the Attorney-General (AG): “Who should we count from?” And the AG said, “Let’s count from Wee Kim Wee” and then the government said, “Okay, Wee Kim Wee it is”. OR
- It was entirely the government who were like, “Okay, we’ll count from Wee Kim Wee. Oh yeah, AG, are we cool to do that? Yes? Okay.”
From the 10-minute response Law and Home Affairs Minister K Shanmugam gave, the fog finally parted — it is, indeed, option 2.
In his speech, Shanmugam said “…the government has always been clear that when it comes to the counting, it is a policy matter for Parliament to decide, and Ms Lim protests far too much.”
But for, ahem, clarity’s sake, let’s now revisit the statements made by all the ministers who spoke on this specific point, as brought up by Lim in her speech, to evaluate just how clear they actually are:
1. PM Lee Hsien Loong
What was said
Here’s what PM Lee said about this on November 8, 2016, during the debate on the white paper regarding changes to the presidential elections act:
“When should the racial provision start counting? The Constitutional Amendment Bill states that the Government should legislate on this point. The Government intends to legislate when we amend the Presidential Elections Act in January next year.
“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, Dr Wee Kim Wee. That means we are now in the fifth term of the Elected Presidency.
“…Therefore, by the operation of the hiatus-triggered model, the next election, due next year (2017), will be a reserved election for Malay candidates.”
From Lim’s perspective, by the way PM Lee ordered his sentences, any reasonable person would conclude he meant that the government took advice from the AG before deciding to count from Wee’s term as the first.
“The clear impression given to Members was that the government’s decision to count from President Wee Kim Wee was based on the AGC’s advice. That must have been why the PM sequenced the sentences as he did, that having taken the AGC’s advice, the government was counting the five terms from President Wee Kim Wee. The PM did not say that the government intended to count from President Wee Kim Wee and the AGC had merely confirmed that it was acceptable to do so.”
This, she says, was followed by a report in Channel NewsAsia, which read: “PM Lee says the Government has taken the Attorney-General’s advice that the racial provisions in the review of the Elected Presidency will start counting from Dr Wee Kim Wee”.
Essentially, the minister said it is very clear. And when 2011 runner-up Tan Cheng Bock took it to the Court of Appeal, he said the Court agreed PM was very clear too.
“Members can read the part Ms Lim quoted from the Prime Minister. I don’t see anything that’s ambiguous. The point is this, and we’re not changing history here, Ms Lim’s a lawyer, she knows this, Dr Wee’s second term exercised the powers of an elected President. There is nothing ambiguous about that. That is a matter of clear law…
So the Prime Minister was entirely right to say we will start counting from here, the next elections will be reserved for a Malay President, and we have taken advice from AGC…
And the Prime Minister was totally clear. And the Court of Appeal said the Prime Minister was very clear…
So we are very clear, it’s a policy matter. On the record. Prime Minister took the same position, he explained in Parliament. We decide, but we took AGC’s advice.”
Clear? We can’t fully agree it was — based on what PM said, it is easy to interpret that the choice to count from Wee was influenced by the Attorney-General.
It is quite difficult for us to reason, in the absence of more information from anyone else, that he meant that his government decided how to count it before checking with AGC, just to make sure.
2. DPM Teo Chee Hean
What was said
The next day, on November 9, 2016, DPM Teo spoke in the Bill’s second reading in Parliament. We thought it would be useful to publish the questions Lim asked him back then, as well as his replies:
Sylvia Lim: Secondly, Madam, regarding the announcement yesterday by the Prime Minister that the next Presidential election is going to be reserved for Malay candidates. I have received, of course, feedback also from residents on this point, and there was an expression of surprise. And I think Prime Minister said yesterday that it was based on Attorney-General’s Chambers’ advice on how to count the terms. So, I am asking if the Government is prepared to publish that advice from the Attorney-General’s Chambers. And the second point is, under clause 32 of this Bill, it is stated that Parliament has to pass a law to specify how to count when the first reserved election would be. It is under clause 32. So, am I right then that the Government will actually come back to the House to present what the Attorney-General’s Chambers has advised for us to debate on it?
DPM Teo: On the reserved elections and how to count, I would like to confirm that this is indeed the Attorney-General’s Chambers’ advice. And if not, and you do not think that is correct, I think it is possible if you wish to challenge judicially.
Sylvia Lim: Madam, that was not my question actually. My question was whether the Government is prepared to publish the advice from the Attorney-General’s Chambers because there is public interest in that advice. Is there something that is controversial or confidential that cannot be published? And the second part of that was under clause 32, it says that Parliament has to pass a law to specify how to count. So, is the Government going to present a Bill on that?
DPM Teo: Mdm Speaker, I think the Prime Minister said so yesterday. It is in the Hansard. Are you saying that the Prime Minister has falsely told the House that this was the advice he received from the Attorney-General’s Chambers? And yes, we will be passing a law, the Presidential Elections Act to state so, that these are the designated races, and so forth.
Sylvia Lim: Mdm Speaker, I am not saying that the Prime Minister is not telling the truth or anything of that nature. What I was saying was that there is public interest to read the advice. So I am just asking whether the Government is prepared to publish the advice only. That is all. I am not accusing the Prime Minister of anything at all.
DPM Teo: Mdm Speaker, the advice is quite straightforward. It is not normal – Ms Sylvia Lim is a lawyer herself – not the usual thing that is done to publish a lawyer’s advice because that is something which is provided to the Prime Minister. But I would ask the Prime Minister to consider. If the Prime Minister has stated so, I think there is no doubt about it.
The italicised and bolded portions are the sections she highlighted in her speech on Tuesday.
To her, any reasonable person hearing the above from DPM Teo would assume the following:
- That the AGC had advised the government how to count.
- That the AGC’s advice involved a question of law.
She added, “Why else would I be asked to challenge it judicially?”
Regarding this, he referred to DPM Teo’s and Minister in the PM’s office Chan’s statements collectively, alongside what PM said:
“Because the constitution provided for Parliament to legislate and Parliament legislated, nobody is suggesting that Dr Wee was elected, it is an untruth that is attributed to the proceedings. What is suggested is that he was the first person to exercise the powers of an elected President.
And is there any legal impediment for us to start counting from there? And these are questions which others may just decide for themselves. We will usually ask AGC for advice on these things. And that’s exactly what, you know if you look at the context, we decide and we check with AGC. Prime Minister said it, DPM Teo second day said it, and Minister Chan said it a few months later.”
So he said, if you look at the context, we decide and we check with AGC.
Again, we can’t quite agree that the message we glean from what DPM Teo said is, “we decide and we check with AGC”.
Particularly if you were to read the context of Lim’s question, which was “And I think Prime Minister said yesterday that it was based on Attorney-General’s Chambers’ advice on how to count the terms.”
And in response, he said, “On the reserved elections and how to count, I would like to confirm that this is indeed the Attorney-General’s Chambers’ advice.” To add on, he also said if she disagreed, she could challenge this stance in court.
We would argue that DPM Teo here is even more foggy than PM Lee, because DPM Teo even added that Lim can “challenge” what the AG said “judicially”.
3. Minister in PM’s office Chan Chun Sing
What was said
On February 6, in a debate on amendments to the presidential election act bill, Chan responded to an assertion by Lim that the choice to count from Wee was an “arbitrary and deliberate decision to achieve a desired outcome”.
Here’s the relevant portion of what he said:
“The Government is confident of the advice rendered by the Attorney-General. We proceeded on that basis during the debates on the constitutional changes in this House. Prime Minister Lee explained to all why we needed the hiatus-triggered mechanism, and we passed the Constitution (Amendment) Bill. We are here today to put the nuts and bolts in place for a decision made clear by the Prime Minister during the debates in November. And we will not go through this again…
Is Ms Lim suggesting that the Attorney-General did not give the Government the appropriate advice?… then I think Ms Lim, as suggested by Deputy Prime Minister Teo, can challenge this in the courts.”
In other words, Chan, too, said he thought Lim can challenge the AG’s advice in court. He also said the government “proceeded on that basis (of the AG’s advice)” with respect to the choice in who to start counting from.
Here’s what she said:
“Instead of confirming that it was the government who made the decision to count from President Wee, Minister Chan explicitly said that the government was confident of the AGC’s advice, and proceeded on that basis to make the Constitutional changes. He said he did not want to re-open the debate on the count from President Wee, even though Parliament was now asked, for the first time, to enact the Table stipulating the count from President Wee.”
At this point, she had also highlighted that when the Bill was tabled for a second reading, a new table detailing that the count was to start from Wee Kim Wee was added to it. This, she said, gave her the impression that the decision to do so was indeed the government’s, and she asked for confirmation of her deduction.
She also said the government missed this opportunity to clarify the matter and any mis-impressions created through its prior communication on this.
Again, we reproduce what he said in defence of Chan’s statements:
“So we are very clear, it’s a policy matter. On the record. Prime Minister took the same position, he explained in Parliament. We decide, but we took AGC’s advice. And the next day DPM Teo and subsequently Minister Chan took the same positions. Did anyone say “We are going to decide this way because this is the way AGC has told us to decide”? I mean, that would have made no sense because Parliament is sovereign.“
Now, Minister Shanmugam is certainly right in saying that none of the ministers before him said “We are going to decide this way because this is the way AGC has told us to decide”. Not in those exact words, of course.
It is an open question, though, how one would interpret “The Government is confident of the advice rendered by the Attorney-General. We proceeded on that basis during the debates on the constitutional changes in this House”, followed later by “Is Ms Lim suggesting that the Attorney-General did not give the Government the appropriate advice?… then I think Ms Lim, as suggested by Deputy Prime Minister Teo, can challenge this in the courts”.
To us, it *really* isn’t clear at all that he was saying they had decided and then checked with AG to make sure all was okay.
And finally, we come to…
4) Minister for Law and Home Affairs K Shanmugam
We know what he said — if you need to see it again, we transcribed his full speech here — so we will jump straight to our take, since Lim did not have the chance to personally respond to what he said.
Minister Shanmugam’s speech is definitely the clearest in conveying the message that yes, it is the government who decided we should start counting from Wee Kim Wee, and we checked with the AG to make sure all’s good constitutionally.
And yes, the Court of Appeal agrees with the government that it is our call to make, in terms of how to count.
Guess it’s pretty much as clear as it can be.
Our conclusion: Y’all could have just said what Minister Shanmugam said from the start, and saved us all the headache, right? Including that of the Court of Appeal.
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Top photo collage via screenshots from Parliament videos