COMMENTARY: "The first-past-the-post system only really works when there are two contenders."

With time yet for more potential candidates to declare their intent to run in the upcoming presidential elections, academic and Senior Counsel Walter Woon explains why more candidates do not necessarily mean a better result.

Woon is currently the Lee Kong Chian Visiting Professor at the Yong Pung How School of Law at the Singapore Management University and Emeritus Professor at the National University of Singapore. He has also previously served as Attorney-General, Nominated Member of Parliament (NMP), Legal Adviser to the President and Council of Presidential Advisers, and in various diplomatic appointments as an ambassador.

By Walter Woon

The presidential election is upon us once more. Let’s hope it will not be a one-horse race again. Nothing would damage the institution more than to watch the “winner” trot past the post ahead of an empty field. We need a contest.

But too many horses in the race would not be good either.

To understand why, we need to appreciate the role of the elected president.

He (or she) is not the standard-bearer for the opposition. Nor is his function to make governing Singapore more difficult for the ruling party. His crucial function is to ensure that the system remains clean. The president is our guarantor against hidden corruption and appointment of politically-connected persons to key positions to cover up abuse of power.

True, the ostensible reason for creation of an elected presidency was to provide a check on profligate governments raiding the national piggy-bank. Commentaries tend to focus on this two-key safeguard for the financial reserves. But given the fiscal prudence of the government over the years, this is not really the president’s most important function today.

How might key appointment holders abuse their powers?

Suppose, hypothetically, that the Prime Minister of the day is embezzling billions of dollars from the country’s sovereign wealth fund. The Attorney-General prepares charges to be laid against him. The Attorney-General is removed. A new one is appointed, who then publicly declares that there is no evidence of embezzlement and refuses to prosecute.

Take another example. Senior politicians and officials are suspected of condoning bribery by government-linked companies in order to get business. The Director of the Corrupt Practices Investigation Bureau wants to commence an investigation. The Director is removed and a new one appointed. The new Director squelches any attempt to investigate.

Third hypothetical: the Prime Minister of the day wants to sue political opponents for defamation. To ensure that he wins and gets ruinous damages, he packs the Supreme Court bench with his friends and allies who can be counted on to “do the right thing”.

Why having a president is important

Singapore is fortunate against the odds that none of the above scenarios has happened. But just because it hasn’t happened before doesn’t mean that we will be forever immune. The unhappy experiences of other countries with similar legal and constitutional systems clearly demonstrates what could go wrong if we are complacent.

This is where the elected president steps in. Under the Constitution, the president “acting in his discretion, may refuse to make an appointment to [certain offices] or to revoke any such appointment” if he disagrees with the person or body who has power to make such appointments (technically, such persons “advise” the president, who by constitutional convention is obliged to accept their “advice”).

Among the key appointments that the president may veto are the Chief Justice and judges of the Supreme Court, the Attorney-General, the Auditor-General, the Accountant-General, the Chief of Defence Force and of the Army, Navy, Air Force and Digital and Intelligence Service, the Commissioner of Police and the Director of the Corrupt Practices Investigation Bureau. When there is a change of leadership, one of the first things the newcomers will do is to dole out plum positions to their supporters, both as rewards as well as to cement their position. The president is there to ensure that these key appointments are not held by party hacks who can subvert the integrity of the public services.

Inevitably, when the president refuses to make an appointment that the Prime Minister insists upon there will be a clash of wills. The outcome of such a clash depends on the political strength of the two sides.

Political neutrality and a clear mandate

For the president to fulfil his role properly, two things are required. First, he must be politically neutral and seen to be so. This is why when the Constitutional amendments creating the elected presidency were first proposed in 1990, several people (including myself) suggested that the president should renounce his allegiance to any political party. Now, anyone who wants to run for president must break his pots and sink his boats by resigning from his political party and ministerial posts.

Ong Teng Cheong was the first person to be elected president. He took pains to ensure that he was seen to be politcally neutral, conscious of the criticisms that as a former Deputy Prime Minister he was too close to the ruling party. I was honoured to be appointed as his Legal Adviser even though he knew that I had voted for his opponent.

Second, and more importantly, the president must have a clear mandate from the people. This is crucial if he is to stand up to the Prime Minister, who will claim such a mandate.

Myth that winner is decided by majority vote

It is a myth that under the Westminster-style election system the party with the most seats is supported by the majority of voters. The first-past-the-post system that we have inherited does not ensure that the winner commands the support of the majority of the electorate.

Take Boris Johnson’s thumping 81-seat majority in 2019 UK general election. In terms of actual votes, the Conservatives only polled 43.6 per cent. It gets worse; since voting in the UK is not compulsory (unlike in Singapore), only 67.3 per cent of the eligible voters bothered to cast their ballots. The Conservative landslide was based on 29.3 per cent of the total electorate.

This has happened in Singapore before. In 1961 David Marshall won the Anson by-election with 43.32 per cent of the votes. There were four other candidates, including one from the PAP who polled 36.75 per cent. The stark arithmetic has never stopped the winners from loudly proclaiming that the people have bestowed on them the mandate to rule.

Current system works best with two contenders, not more

The first-past-the-post system only really works when there are two contenders. Throw in a third party and it is quite possible for the winner to have significantly less than 50 per cent of the vote. The 2011 presidential election provides a cautionary tale.

That was the election of the four Tans. The winner, Tony Tan, obtained 35.2 per cent of the vote. Tan Cheng Bock got 34.85 per cent, Tan Jee Say 25.04 per cent and Tan Kin Lian 4.91 per cent. To avoid any allegation of being a sore loser, for the record I voted for Tony Tan. Nonetheless, it was unsatisfactory that the president, who is supposed to represent Singapore, was chosen by slightly more than a third of the electorate.

The only time there was a straight one-to-one contest was when Ong Teng Cheong was up against Chua Kim Yeow, the former Auditor-General. Chua was a reluctant candidate who didn’t campaign and at one point said that Ong was the better choice. Despite this, he got 41.3 per cent of the vote. Ong declared that 58.7 per cent was still a majority and went on to prove that his former links to the ruling party would not get in the way of doing his job. A senior member of government told me some years later that Ong changed after becoming president, keeping his distance from old comrades.

A better system for choosing the president is the French one. Under the Constitution of the Fifth Republic there is a two-round election for president. If no candidate obtains an outright majority in the first round, the two highest-polling candidates go into a second round.

France went to the polls in April 2022. Emannuel Macron was up for re-election. Despite (or because of) the fact that he had been president since 2017, he polled just 27.9 per cent in a field of twelve candidates. There was a second round of voting. Macron obtained 58.55 per cent of the valid votes against 41.45 per cent for his opponent Marine Le Pen. Curiously, Macron’s percentage of the votes is almost exactly the same as Ong Teng Cheong’s percentage in his one-to-one contest against Chua Kim Yeow.

But this is a digression. The next presidential election here will be held under our present Constitution. We do not know how many the Presidential Elections Committee will let onto the track. We can only hope that there will be a two-horse race, so that whoever wins will get over 50 per cent and not squeak in with a plurality.

May the winner get a clear mandate from the people. For the sake of Singapore.

Top image via Singapore Law Review and Google Maps Street View