PE2023 offers 4 lessons on eligibility, discretion, politicisation, & unpredictability: Walter Woon

For future reference.

Mothership | September 05, 2023, 01:32 AM

COMMENTARY: "There will of course be pundits with the gift of retrospective prophecy who will claim that they foresaw the Tharman wave. Most political observers would have bet on Tharman being first past the post once it became clear it was a three-horse race. But Tharman himself admits that the size of his majority was a surprise."

The 2023 Presidential Election was Singapore's first since 2011. Academic and Senior Counsel Walter Woon outlines four lessons Singaporeans can take away from this historic election.

Woon is currently the Lee Kong Chian Visiting Professor at the Yong Pung How School of Law at the Singapore Management University, Honorary Fellow of St John's College Cambridge, 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

This was the hardest-fought Presidential contest in Singapore’s history. A decisive result was produced, for which we should all be grateful. President-elect Tharman Shanmugaratnam has a clear mandate from the people to fulfil his role.

For future reference, four lessons can be learnt, on the crucial role of the Presidential Elections Committee (PEC), the limited flexibility of the criteria for Presidential candidates, the inevitable (but not necessarily decisive) factor of party politics in a presidential election, and finally, a lesson on taking nothing for granted.

The role of the Presidential Elections Committee (PEC)

Lesson 1: the role of the Presidential Elections Committee (PEC) is crucial. They are the stewards who can scratch a contender before he reaches the starting gate. The PEC comprises the following:

  • The Chairman of the Public Services Commission (PSC);
  • The Chairman of the Accounting and Corporate Regulatory Authority (ACRA);
  • A member of the Presidential Council for Minority Rights (PCMR), appointed by the Chairman of the PCMR.
  • A member or former member of the Council of Presidential Advisers (CPA), appointed by the Chairman of the CPA.
  • A person who is qualified to be or has been a Supreme Court Judge, appointed by the Chief Justice; and
  • A person appointed by the Prime Minister.

It will be appreciated that the PEC mainly comprises persons linked to the establishment.

Anyone who aspires to be President must satisfy the PEC that he or she is “a person of integrity, good character and reputation”. This is required even if the prospective candidate is automatically qualified to run in the Presidential Election.

This gives the PEC a very wide discretion. We know that conviction of an offence does not necessarily debar a person from running. President-elect Tharman was convicted of an offence under the Official Secrets Act, about which he made no secret. He declared this in his application for the Certificate of Eligibility. It did not count against him. Beyond this, there is no clear guidance as to what the PEC will consider when they decide to bar a person on the ground of a lack of integrity, good character or reputation.

Limited flexibility in criteria for candidates

Lesson 2: the criteria for Presidential candidates are flexible, but only to a limited degree.

Three categories of people are automatically qualified to run in the Presidential race:

  • Anyone who has held office for 3 or more years as Minister, Chief Justice, Speaker of Parliament, Attorney-General, Chairman of the PSC, Auditor-General, Accountant-General or Permanent Secretary.
  • Anyone who has served for 3 years or more as chief executive of the CPF Board, the HDB, the Jurong Town Corporation (JTC), the Monetary Authority of Singapore (MAS), GIC Private Limited or Temasek Holdings (Private) Limited.
  • Anyone who has served for 3 years or more as chief executive of a company with at least S$500 million in shareholders’ equity.  Only companies incorporated or registered in Singapore count.

One may infer from the list of persons who are automatically qualified that really there are two basic criteria.

The first is the ability to understand accounts – hence the specification of the Auditor-General, the Accountant-General, the chief executives of CPF, JTC, MAS, GIC as well private-sector chief executives of large companies.  The Select Committee on the amendments to the Constitution which created the Elected Presidency stated in its December 1990 Report: “The criteria should therefore focus on a candidate’s ability, experience and integrity in administering the financial affairs of an organisation or department equivalent in size or complexity of, for example, Telecom or PUB”.

The second is familiarity with how Singapore is governed.  This is why the Attorney-General and Chief Justice are on the list; neither job requires a knowledge of accounts.  The Select Committee on the Constitutional amendments had this to say: “A Chief Justice, having served as head of the Judiciary, would have considerable experience in adjudicating complicated cases especially on appeal cases.  The experience he has gained as the highest judicial officer qualifies him as a candidate for the Presidency.  Similarly, a person who has served as Attorney-General would have advised the Government on major issues involving nearly every field of law.  As principal legal adviser to the Government, he would have also acquired an intimate knowledge and understanding of the workings of Government Ministries and Organs of State”.

It should be appreciated that the President does not work in isolation. There is a Council of Presidential Advisers to help fill the gaps in his knowledge and experience. The President chooses three out of the eight members of the Council. He may also appoint other professionals to help him, as Ong Teng Cheong did. The President’s choice of advisers is an indication of how independent he will be of both the government and the opposition.

However, some people may not fall within the stated criteria but yet be experienced enough to be trusted with the role of President. Even if a candidate does not automatically qualify, the PEC has the discretion to let him onto the course and issue a Certificate of Eligibility.

This time the PEC issued two such certificates, to Ng Kok Song and Tan Kin Lian. Ng applied under the public sector track as Group Chief Investment Officer of GIC. This was considered to be comparable to the experience and ability of a person who has held one of the public sector positions that automatically qualify a presidential candidate. Tan applied under the private sector track, relying on his experience as CEO of NTUC Income Co-operative Ltd. This organization was comparable to a company with S$500 million in shareholders’ equity.

George Goh was rejected. He had also applied under the private sector track, based on his experience as chief executive of five separate companies, the combined shareholders’ equity of which exceeded S$500 million. In its letter to Goh informing him of the decision not to grant him a Certificate of Eligibility the PEC stated that the Constitution “refers to one office in one private sector organisation, and not various offices in multiple private sector organisations”. The PEC did not consider that Goh’s experience in managing five smaller companies to be the equivalent of managing one large company.

The PEC is of course correct going by the wording of the Constitution. However, a serial entrepreneur may have his hand in many different businesses. These are not always consolidated under a single holding company. Running several disparate businesses successfully is more complex than running a single big company with one tightly-focussed core business. Had Goh’s five businesses been grouped under one holding company, the “one organisation” criterion would presumably have been satisfied.

Members of the PEC are appointed for 6 years and may be re-appointed. This means that some of the present members are likely to be around in 2029 for the next Presidential Election. Prospective candidates for the next race should pay attention to what happened this time.

One suggestion: the PEC should let prospective candidates know sooner rather than later whether they will get a Certificate of Eligibility. Where there is a limited number of slots (e.g., appointment as Nominated Members of Parliament) it makes sense to wait until all the applications are in before considering all of them together. But there is no limit to the number of candidates in a Presidential election. Waiting until after the close of applications to announce who gets to run means that there is no chance of a contested election if the PEC only lets one candidate onto the field. The relevant regulations state “the Committee must notify an applicant of its decision on his or her application as soon as practicable, and in any case no later than the day before nomination day”. No need to keep the electorate in suspense until the gates close.

Party politics inevitable, not necessarily decisive

Lesson 3: party politics will intrude, but will not necessarily be decisive.

To pre-empt any suggestions of being a sore loser, let me say for the record that I voted for Tharman; like him I was surprised by the size of his majority.

When the Select Committee met to consider the constitutional amendments creating the Elected Presidency in 1990 I was invited to give oral evidence. I had made two suggestions: firstly, that a Minister should not be allowed to run until five years had elapsed after vacating his ministerial office (five years being the maximum term for a government); secondly, that a candidate should resign from his political party before nomination. The Select Committee did not give me an easy time.

When discussing whether my suggested restrictions should be written into the Constitution, I had the following exchange with then-Deputy Prime Minister, Brigadier-General (BG) Lee Hsien Loong, who posed a hypothetical scenario where a candidate gets elected on the basis of his promise to approve certain government spending:

BG Lee Hsien Loong

226. … I am putting it to you that if the President was elected by the population of Singapore on the express understanding that he is a party-political person and he intends to take a political line, then he is fully entitled to do so, and he has the mandate, and that is the will of the people? –

(Mr Walter Woon) I think perhaps we have a basic disagreement here, Minister, because you consider that the President should be a party-political man, whereas I think that it is desirable that he should not be a party-political man. The reason I say this is that even the PAP in the best years can command only about six to seven out of 10 of the voters in Singapore, ie, 70 per cent. That is already very good. That means the 30 per cent who are against the PAP also may be against the President. The President is not just any other politician. He is the focus of a Singaporean's loyalty as Head of State. Are you going to alienate 30 per cent? I do not think it is desirable.

227. So you would propose presidential elections minus politics? - (Mr Walter Woon) I would say that is the ideal if that can happen.

228. Do you think it will happen? - (Mr Walter Woon) No, I do not think so. I am realistic enough to assume that it will not.

However, despite the rather spirited exchange with the members of the Select Committee (all from the PAP except for Chiam See Tong), the Committee did accept that there was a need for the President to be seen to be independent, as it noted in paragraph 14(f) of its report:

However, the Committee noted the views of representors that the President must not only be above party politics but be manifestly seen to be so. If he continues to be a member of a political party there may be lingering doubts that the President is still subject to party discipline and is thus constrained to act in accordance with decisions of his party caucus. It may be more re-assuring to the public if the President stood for election in his own right and not on a party platform. The Committee therefore decided that it is preferable for candidates in Presidential elections to stand as individual citizens, and for voters to judge them as such. Naturally the voters will take into account any endorsements or support which a candidate has received from one political party or other. Campaigning by political parties should be allowed; they can support any candidate whether or not he had previously belonged to that party. (emphasis added) But it will be unlike the situation in general elections, where candidates stand under a party flag, voters vote for a party slate, and MPs who are returned to Parliament are subject to the Party Whip.  

In this election the opposition lined up behind Tan Kin Lian.  He was openly endorsed by Tan Cheng Bock and Tan Jee Say.  There was campaigning, with posters and banners.  In the end the anti-Tharman camp only mustered 30 per cent — a mixture I believe of those who are implacably hostile to the PAP and a small percentage of voters who were not convinced that Tharman can be truly independent of the government he is supposed to check.

Interestingly, the “opposition” vote was almost equally split between Tan Kin Lian and Ng Kok Song.  This indicates that the anti-PAP bloc is not monolithic.  Given two or more non-establishment candidates, the chances for the establishment candidate are increased.  This time of course it would have made no difference as Tharman’s majority was overwhelming.  But it did make a difference in 2011 and could do so again in future.

"Take nothing for granted"

Final lesson: take nothing for granted.  There will of course be pundits with the gift of retrospective prophecy who will claim that they foresaw the Tharman wave. Most political observers would have bet on Tharman being first past the post once it became clear it was a three-horse race. But Tharman himself admits that the size of his majority was a surprise.

A study of multi-candidate elections elsewhere shows how unusual this is. The fact that Tharman managed such an overwhelming victory does not mean that he or another establishment candidate will be able to repeat this feat against a more formidable opponent.

Come 2029 there will be another Presidential Election. President Tharman may or may not run again. But the precedent has been established as to who may be let onto the track. A contested election is desirable so that the winner gets a decisive mandate. One hopes that the PEC leans in favour of allowing candidates to run rather than scratching them before they even reach the starting gate.

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Top image from video by Ethan Ong, photos by Alfie Kwa, Sheryl Seah, and via Ng Kok Song media team