How powerful are all the President’s men?

by Bertha Henson and Wan Ting Koh

ARE we getting too carried away with the issue for having a minority President that we forget there are other things at stake? Like whether an unelected body like the Council of Presidential Advisers (CPA) should have more power?

Finally some light was shed, and it came from a group of Singapore Management University undergraduates who appeared at the second day of public hearings by the Constitutional Commission. They suggested that the CPA be divided into three groups of specialists and that the decisions of the CPA be made public.

These undergraduates are actually students of Professor Eugene Tan, who went before the Commission on Monday. Yup. It was a class assignment.

Professor Tan had more to say about the CPA in his submission to the Commission, but he was quizzed by Commission members mainly on the need for more specific criteria on the qualifications of CPA members be embedded in the law. It seems the Commission preferred his students to do the elaborating.

The CPA’s role is an important plank of the Commission’s work – and it’s a pity so little has been said about it. Perhaps, it is because its work is behind closed doors (as stated in the Constitution), not many people know what questions to ask.

The Constitution spells out its role and its powers vis-à-vis the elected President, who can appoint two members to the CPA. For your information, the Prime Minister (PM) picks another two and both the Chief Justice and the Chairman of the Public Service Commission (PSC) have a nominee each. By the way, both the CJ and the head of PSC are on the Constitutional Commission.

So what powers does the CPA have and what did PM Lee Hsien Loong say about it?

Sure, they advise the President but beyond that? Let’s say the PM goes to the President and says the G needs to use the reserves. Under the Constitution, the President must consult the CPA on this. If President says no, but CPA says yes, then the issue goes to Parliament which can override the veto with a two thirds majority. If the President says no and the CPA says no, the veto is final.

That veto system is clear for key appointments and Supply Bills. PM Lee, in suggesting changes to the CPA, wants to make the veto system “apply uniformly” to ensure that the President’s powers do not “solely rely on the judgment of a single person acting alone”. “I think we should study if the CPA’s views should be given greater weight in more areas and, if so, how this can be done,” he said.

What other specific custodial powers does the President have? This is where it gets fuzzy. A layman’s reading of the Constitution shows that the president does not need the CPA’s input on matters like budgets of statutory boards and government-linked companies, and legislation concerning the Central Provident Fund. Was the PM referring to this?

Or was he referring to the President’s discretionary powers over application of orders under the Internal Security Act (ISA) or Maintenance of Religious Harmony Act? But the president already has expert advisers in the ISA Advisory Board and the Presidential Council for Religious Harmony to help him with this.

Even a constitutional law expert like Prof Tan seems puzzled. He wants the other “specific custodial duties’’ identified. “It is unclear what is meant by the CPA’s views to be given more weight,’’ he added in his submission to the commission.

“As it is, when the President disagrees with the Prime Minister and the CPA, Parliament may override the presidential veto by a parliamentary resolution passed by not less than two-thirds of the total number of the elected Members of Parliament.”

“The Prime Minister could be referring to cases where the Prime Minister and the President are in agreement but not the CPA. Should the CPA’s views count for more in such matters, and to what effect might that be if it the views are to be given more weight? The concern here may well be of a “rogue” government colluding with a “rogue” president to the detriment of Singapore and Singaporeans.’’

Whatever the Commission recommends should not nullify the President’s custodial powers or make it illusory. The President after all, has been elected by the popular vote while the CPA, although all well-qualified for the job, are merely appointees. One thing that hasn’t surfaced: It is worth remembering that there is actually a clause in the Constitution which allows the President to veto changes that trim his powers, but which hasn’t been enacted yet.

SMU students seem to agree with PM Lee’s view that the President’s powers should be uniformly applied. They want the veto powers of the President to be “unified” such that a veto power exercised by the President contrary to the advice of the CPA  can always be overridden by a two-thirds majority in Parliament.

“It is accepted that such a proposal will diminish the power of the President. However, such a concern is likely to be overstated. The proposal will only see practical effect if the President and the CPA are not in agreement. It should be emphasised that if both the President and the CPA are in agreement that his veto power should be exercised, no avenue for Parliamentary override is available. Furthermore, the President may act in his discretion in exercising his power; while the CPA may only counter the President if they act as a body. It is hence implicit that the President remains the main check against the Executive.”

They also want the President to publicise reasons for his assent or dissent and for the CPA to make public the results of its internal voting process and tag its advice to the President’s decision which is published in the government gazette.

“If the proposal is sufficiently controversial that the President disagrees with it, but the CPA agrees with the proposal, Parliament will have the benefit of these diverse opinions when it further debates the proposal. This subjects the proposal to greater scrutiny which should ultimately be beneficial for the whole of Singapore.”

Lawyer Ronald Wong had a far more drastic proposal about the CPA which would require an overhaul of the presidential system. He didn’t touch on the powers of the CPA per se, but suggested a hybrid system where the President is not fully elected but  selected from among the six members of the CPA through an internal vote. Only two of the six will be voted into the council through direct elections. This would shift custodial powers to the CPA rather than have it vested solely in the Elected President.

A radical proposal, but if only one knew what the work of the CPA is all about…

 

Featured image Istana Singapore by Flickr user Ice Moon. CC BY 2.0. 

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