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PE2017: Were MPs misled by the G?

The Middle Ground logo The Middle Ground 4/10/2017 Suhaile Md

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by Suhaile Md

THERE’s only one way to be sure if Parliament had been misled by the G over who should be counted as the first elected President: Ask each and every MP who was at the sitting. Can they say, hand on heart, that they thought the Attorney-General’s (AG) advice was critical to the count?

At the adjournment motion in Parliament yesterday (Oct 3), opposition MP Sylvia Lim asked if Prime Minister Lee Hsien Loong (PM Lee), Deputy Prime Minister Teo Chee Hean (DPM Teo), and Minister Chan Chun Sing had “made misleading statements” and used the AG’s advice “as cover to avoid full parliamentary debate on why the count was not starting from President Ong Teng Cheong”.

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In other words, she meant that they had framed it as a decision based on the advice of the AG, and not as a policy decision the G took with the AG merely confirming it as acceptable. Hence, this allowed the G to decide on a policy without having to be cross-examined in Parliament. And when pressed to reveal the AG’s advice, the G claimed it was irrelevant given the sovereignty of Parliament. At best, she added, the trio were “ambiguous” on whether it was a legal decision or a policy making decision.

It’s a pity that it was an adjournment motion. This meant that it was a 20 minute speech by Ms Sylvia Lim followed by a 10 minute response from Law Minister K Shanmugam, with no one else speaking. There would be no grilling on either side. Both parliamentarians spoke uninterrupted.

Yesterday’s session was the first time this issue was raised since the Court of Appeal, on Aug 23, turned down Dr Tan Cheng Bock’s application for the count to be triggered from the Ong presidency.

Here’s how it went down in Parliament yesterday:

Ms Lim and Mr Shanmugam disagreed on how PM Lee’s words could be interpreted in Parliament on Nov 8 last year.

Ms Lim quoted this part of PM Lee’s speech: “The symbolic role of the President is just as important as his custodial role. As a symbol of the nation, the race of the candidate is relevant. So, while individually, a good candidate of any race will be satisfactory, collectively, over a period of time, we need that mix of Presidents of different races, and the election mechanism must be designed to produce such a mix over time. That is what the hiatus-triggered model delivers.

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.”

Ms Lim added: “The clear impression given to members was that the Government’s decision to count from President Wee was based on the Attorney-General’s Chambers (AGC) advice.

That must have been why the PM sequenced sentences as he did, that having taken the AGC’s advice, the Government was counting the five terms from President Wee.

The PM did not say that the Government intended to count from President Wee, and that the AGC had merely confirmed that it was acceptable to do so.”

Mr Shanmugam disagreed: “I don’t see anything that’s ambiguous… the Prime Minister was entirely right to say, we will start counting from here, the next elections will be reserved for Malay President, and we have taken advice from AGC.

What Ms Lim is saying is that we are starting to count from here because of AGC’s advice. That was never suggested. We start counting, we are a careful government, we make a policy decision, but we take advice to see whether there are any impediments and this government as a rule generally does not publish legal opinions that it gets. If it can be done according to the law, we do it, if the law has to be changed to achieve policy objectives, we do it.”

Ms Lim’s backup: “The impression that it was AGC who advised the government to count from President Wee was perpetuated the next day 9th November by DPM Teo Chee Hean. During clarification time, I rose to expressly recall that the PM had said that the decision to count from Dr Wee Kim Wee was based on the Attorney-General’s Chambers advice on how to count the terms.

I asked whether the government was prepared to publish that advice. DPM Teo did not reply immediately. After a cabinet huddle, DPM Teo eventually rose and responded as follows: ‘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.’

Any reasonable person hearing those words would assume the following: One, that the AGC had advised the government how to count. Two, that the AGC’s advice involved a question of law. Why else would I be asked to challenge it judicially?”

Ms Lim added that when she raised the question again on Feb 6 in Parliament, Minister Chan Chun Sing’s response was that she could challenge the AGC’s decision in court if she thought the “Attorney-General did not give the Government the appropriate advice”. He did not want to reopen the debate and instead wanted to focus on the details.

Mr Chan had added that if Ms Lim suspected PM Lee was not being truthful about the AGC’s advice, then: “I am afraid it is a very serious issue to cast aspersions on the integrity of our Prime Minister…  I think we should not impute motives on this Government or the Prime Minister.”

Said Ms Lim yesterday: “[Mr Chan] said he did not want to reopen the debate on the count from President Wee, even though Parliament was then asked for the first time to enact the table stipulating the count from President Wee.”

Mr Shanmugam’s backup: “The Court of Appeal’s judgement makes clear… the PM’s speech in Parliament, on the constitutional amendments, made it clear that Parliament intended to give itself the discretion to specify the last term of President Wee as the first term to be counted for purposes of deciding whether an election is reserved… They said the Prime Minister has been very clear.”

The Law Minister added that the role of the Court is to judge if a decision is constitutional or not. To that end it can refer to parliamentary debates if the legislative provisions are unclear.

Said Minister Shanmugam: “In that context, what one party, the Government’s lawyers told the government, or what the other party’s lawyers told the other party, Dr Tan Cheng Bock, are completely irrelevant. And that’s a legal argument the AGC put forward… a point that the Court of Appeal also makes. But that’s quite different, from the Prime Minister in Parliament explaining that look, these are the steps we have taken. We have also taken AGC’s advice. He is telling that to the members. It’s the truth, but it’s irrelevant as a matter of law.”

By and large Mr Shanmugam’s arguments reprised those of the judges.

At the start of the her speech, Ms Lim had said that the motion was not about the “wider issues of the presidency nor multiracialism which are worthy of much longer airtime”. Instead she wanted to know if the decision to start the count from President Wee and not President Ong was a legal or political one. Mr Shanmugam made no bones about it being a political decision.

What was left unsaid was why this political decision, which the G acknowledged would cost it political capital, was made.

As a result of counting from President Wee’s term, PE 2017 was not an open election but was instead reserved for the Malay community. This meant that Dr Tan Cheng Bock, who lost the 2011 elections by only 0.35 percentage points would not have been able to run this time round on account of his race. Although he wouldn’t have qualified anyway, given the higher benchmark set.

Mr Shanmugam reiterated that the count must be from the President who exercised powers rather than the one who was popularly elected. Perhaps, the G simply thought it was time for a Malay President and didn’t want to wait another six years.

It’s a pity that MPs didn’t ask more questions about the timing when the political decision was made in Parliament.

Said Ms Lim: “We in this house should have been told, in no uncertain terms, that it was the government that wanted to count from Wee Kim Wee, the government should have defended its own decision on why counting from President Wee was appropriate. It should not have evaded the debate by using the AGC’s advise as a distraction, and then gone to court to say that the AGC’s advice was irrelevant.”

In his conclusion, Mr Shanmugam said that it would “make no sense” to say that Parliament decided based on AGC’s advise, “because Parliament is sovereign”.

It’s the same point the Court of Appeal made in its judgement, that Parliament as the lawmaking body of the land has the right to make the decision. Which is to say, the MPs, as lawmakers, are the ones responsible for making the final decision on whether it should have been counted from President Wee or from President Ong.

So the question remains: Did MPs really understand what was happening then?

Featured image is a screenshot from gov.sg YouTube.

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