Tuesday, 29 March 2016

Whither Singapore Elected Presidency?

Separate, unAccountable and unEqual.
In Reality, the Elected Presidency is Subordinate to Cabinet and Parliament.



The Singapore Elected Presidency (EP) has a 6-year term and has veto powers over the spending of national reserves and monetary policies as well as over the appointments of key positions in the Civil Service, government companies and statutory boards.

A 6-member Council of Presidential Advisers (CPA) advises the President in the exercise of his custodial and discretionary powers. The President is obliged to consult the Council in the exercise of his discretionary veto powers in matters such as the Government’s budgets and key appointments.  If the Council agree with the President’s veto, then the veto is final and Parliament must comply. If the Council disagree, the President can still use his veto, but Parliament can override the veto with a two-thirds majority.  In other matters, such consultation is optional.

In many ways, the current Constitutional framework does not give due cognizance to the fact that the President is popularly elected and enjoys such moral weight and electoral authority that is implied from popular election.

This Post highlights the practical reality of the Elected Presidency as a separate, unaccountable and unequal “branch” of the political governance structure of Singapore.

The Constitution expressly and deliberately subordinates the Presidency to Parliament even though its s23(1) has first pronounced that “the executive authority of Singapore shall be vested in the President”.  The Constitution then proceeds to dilute the same “executive authority” by distributing its exercise jointly among the President, the Cabinet or any Minister authorised by the Cabinet. 

The Constitution [s24(2)] further explicitly vests the executive power to run the Government in the Prime Minister and his Cabinet, who “shall have the general direction and control of the Government and shall be collectively responsible to Parliament”.   

Elsewhere, the Constitution also empowers Parliament ie the Cabinet and Members of Parliament (MPs), but not the President, to “enact laws conferring executive functions on other persons”, and the President is mandated to give his assent as long as such laws did not interfere with his discretionary powers [s22H(4)]. 

The Elected President does not have any law-making powers. In other words, the Constitution did not provide the EP with any tool or “tooth” for the execution of his Constitutional “executive authority”, the bulk of which were “separated” and delegated or assigned by the Constitution to the Prime Minister (and his Cabinet).  And in their exercise of such executive powers supposedly vested in the Presidency by the Constitution [s23(1)], the Prime Minister and his Cabinet is accountable to Parliament, not the Presidency.
   
In further clear and unambiguous language, the Constitution in s21(1) pronounces that the President shall, "in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet".  The President cannot behave or act unilaterally without Cabinet’s approval.

This “distribution” of executive powers by the Constitution among the Elected President, Parliament and the Prime Minister (and his Cabinet) impacts the efficacy of the Presidency by confusing their separation of powers and frustrates the EP’s critical role as the national reserve watchdog vis-a-vis government’s financial prudence and possible indiscretion.  In fact, many of the EP’s powers, and its decisions even on critical discretionary matters are not absolute and can be “overruled” by a two-third majority vote in Parliament acting in accordance with Constitutional provisions.  

The popular election of the President was meant to imbue the Office with moral weight and democratic electoral authority for the exercise of its functions, especially on matters relating to past reserves and the appointment/removal of key office holders.  This is however misconceived and an exaggerated expectation of democratic elections.

The Elected President may be popularly elected, but it is not a “democratic” institution by any measure since nothing in the Constitution requires the EP to be responsible and accountable to the electorate.  There is also no key performance indicator (KPI) to assess the EP performance during his tenure. This further confirms the lack of executive function and authority in the EP.

Unlike MPs, as well as the Prime Minister (and his Cabinet) who must regularly renew their electoral mandate, the Elected President faces no such prospects even though there is nothing in the Constitution preventing the EP from being elected again, as indeed President SR Nathan.

To what extent therefore is the Elected President “accountable” to his electorate?
Answer: The Elected President is NOT accountable to the electorate.

To the extent “approved” by the Prime Minister (and his Cabinet), the EP can publish in the Official Gazette his opinion and the case for his support or veto of the Government’s request to use the national reserves.  No provision exists in the Constitution for the EP to engage in public communication or debates in order to allow questioning and probing by the electorate regarding his opinion to agree or his grounds for veto, whichever the case may be.  It is clearly not the intention of the Constitution for the Elected President to be an alternate political power centre to that of the duly-elected Government.   

The Singapore Elected Presidency, with its Constitutionally-vested “executive powers” tremendously diluted by the very same Constitution, is a separate and unequal branch of the political governance structure.  Constitutionally, it is also not accountable to its own electoral constituency.  



Having “consulted” his CPA, should the Presidential use of veto power be absolute? There is no constitutional provision for the President to obtain a second opinion outside the CPA.  The Constitution creates an anomalous and ironic incongruity by requiring an Elected President to accept the opinion of his unelected members of his CPA; but where they disagreed to his veto, the Elected President could very well face a two-third Parliamentary veto overturn.   

Should a veto by the Elected President in his discretionary decisions be challenged and over-ruled by Parliament?
Or only by a National Referendum? 

A simpler mechanism is to bypass the need for Presidential approval for the spending from national reserves if, and only if, two-thirds of Parliament has already approved the expenditure.   

Separate, unaccountable and unequal, whither the future of Singapore Elected Presidency?

A “big picture” perspective is necessary to remove the anomalies in the Elected Presidency innovation.  The EP remains very much a work-in-progress in Singapore’s political governance landscape.  A custodial Presidential oversight responsibility over sovereign reserves and appointment of senior public officials does not necessarily confer any viable executive authority onto the Elected President.

The current review of the Elected Presidency should examine all the constitutional provisions relating to the EP, Cabinet and Parliament. To avoid ambiguities with regard to who has final and ultimate executive authority would require expressed and explicit statements to the effect. In a democracy, it is the Cabinet, supported by Parliament, who has true electoral mandate and therefore the ultimate executive authority to be responsible and accountable to the electorate. 






  


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