From The Straits Times, Aug 8, 2011
President is constitutional head of state
Law Minister K. Shanmugam spoke at the Institute of Policy Studies forum on the elected presidency on Friday Aug 5 in response to many publicly expressed opinions by the Presidential Candidates and other Singaporeans about the role of the president. Some candidates have suggested that if elected, they would take on a more active role as a voice for the people.
I WILL set out the president's pre-1991 constitutional role and powers; consider the effect of the 1991 constitutional amendments giving the president additional powers; and discuss some points made recently in the media and elsewhere about the elected president's powers - and the extent to which such points are grounded in legal reality.
The elected president can be highly influential and has significant powers. But much of the discussion so far has not focused on the elected president's real powers and influence. Instead the focus has been on issues that have no legal basis - such as whether the elected president can speak in public to contradict the Government, to disagree with the Government, and so on.
In law, the elected president has no such powers. That was not the role envisaged for the presidency.
The Constitution provides for the important institutions of state, including the presidency, Parliament, the executive and the judiciary. Our presidency is created by the Constitution. That means the Constitution alone can be the source of his powers.
The president is the head of state. In our system, the head of state and the head of government are different. As British constitutional expert Vernon Bogdanor puts it, in such a system, the functions of a head of state 'are generally of three main kinds: First, there are constitutional functions, primarily formal or residual, such as appointing a prime minister and dissolving the legislature. Second, there are various ceremonial duties. Third, and perhaps most important, is the symbolic function, by means of which the head of state represents and symbolises not just the state but the nation'.
I will look at the constitutional functions, since most of the ongoing public discussion relates to this aspect. Three points need to be made:
In the discharge of his constitutional functions, the president can act and speak only as advised by the Cabinet (unless otherwise provided in law).
This means all his public acts - including public speech - can be undertaken only on the advice of the Cabinet, except where powers specifically vested in the presidency allow otherwise.
The president cannot act of his own volition; he cannot reject the Cabinet's advice; he must be impartial and be seen to be impartial on political debates. These principles are articulated in Articles 21(1) and 24(2) of the Constitution.
Article 21(1) states: 'Except as provided by this Constitution, 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.' (Note it says 'shall', not 'may'.)
Article 24(2) states: 'Subject to the provisions of this Constitution, the Cabinet shall have the general direction and control of the Government and shall be collectively responsible to Parliament.'
These constitutional points can be underlined with reference to a famous event in British monarchic history: the romance between King Edward VIII and Mrs Wallis Simpson. In 1936, King Edward, wishing to marry Mrs Simpson, wanted to make a speech to the public to make his case. Then-Prime Minister Stanley Baldwin told the King, in no uncertain terms, why he was not allowed to make such a speech. The King could not even speak about the lady he wanted to marry, except as authorised by the Cabinet.
It is obvious that the same principles will apply with greater force if the King (or a head of state) wanted to speak on transport fares, the nationalisation of transport operators, or the cost of living.
The president symbolises and represents the entire country. As such, he has to be above the political fray. He cannot publicly engage in a debate with the Government. If he comments on social or political issues, the office will be dragged into politics.
This rule ultimately protects the presidency. If the president acts and speaks only on the advice of the Cabinet, his office would not be burdened by the responsibility for the outcome of specific policies. This allows the president to be representative of the entire country.
The constitutional limits do not mean that the president has no influence. On the contrary, he can wield influence through his regular discussions with the prime minister.
The president receives Cabinet papers and meets the prime minister regularly to discuss a wide range of issues. His influence can be considerable.
Any prime minister will give due weight to such advice as he may receive from the president, especially if the president has substantial experience, is wise and knowledgeable, and is trusted and respected by the prime minister. Of course, whether the president actually wields influence depends very much on who the president is. If he is someone who is not experienced, wise and knowledgeable, then his influence would be limited.
Walter Bagehot famously wrote of the British monarch: 'The sovereign has... three rights - the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with singular effect.'
Bogdanor, noting that the current British monarch, Elizabeth, has been on the throne since 1952, said that she would be in a position to warn ministers of the possible bad consequences of the policies they propose, precisely because she has had such deep experience of government, spread across 12 British prime ministers, beginning with Winston Churchill.
Our president would exercise similar influence if he is a person of wide and deep experience.
The president has to keep his discussions with the prime minister confidential.
Bogdanor notes: 'It is important to notice that the sovereign's right to express her opinions on government policy... entails... that communications between her and the prime minister remain confidential. She is not entitled to make it known that she holds different views on some matter of public policy from those of her government... It follows, therefore, that the sovereign must observe a strict neutrality in public and great discretion in her private conversation.'
Practically, if the president does not keep the discussions confidential, then the prime minister will most likely cease engaging in any meaningful discussion with him.
He has 'extremely important roles and powers'
THE 1991 constitutional amendments gave the president specific powers. He has veto powers over the spending of past reserves, specific key public service appointments, detentions without trial and Corrupt Practices Investigation Bureau investigations.
The rationale for these powers is to:
Provide a check against a profligate government, which might be tempted to spend accumulated reserves;
Provide a check against a government that might become corrupt; and
Provide a check against crony appointments in the civil service, judiciary, key statutory boards, etc.
Some have asked what the elected president does if he has no powers? Actually, it is untrue that the president is powerless. He has extremely important roles and powers. The exercise of those powers is critically important if the government is corrupt or incompetent.
It is worth noting that in some areas, the elected president has discretion to act; in other areas, he has to consult the Council of Presidential Advisers. The president's direct election gives him the moral authority to exercise his important powers. But in all other aspects, the office remains unchanged, and the same constitutional position as before holds.
This was made clear in the 1988 White Paper on the elected presidency. In the parliamentary debates that followed, various ministers made clear that the changes in the president's powers are only in the specific areas covered by the constitutional amendments.
Then-Senior Minister Lee Kuan Yew put it in his own inimitable words, and said that as a lawyer, he had paid careful attention to the words of the proposed amendments to make sure that the president's position was essentially unchanged, except for the areas specifically added thorough the 1991 amendments.
In summary, as a result of the 1991 constitutional amendments, the elected president has very important specific powers. He will continue to wield the influence that our head of state has always had, but this influence depends on the individual occupying the office. If he starts out saying that he is going to campaign against the government, one can draw one's own conclusions as to the weight that any prime minister will give to his views.
Various parties have stated that the elected president should consult the public, give feedback, and take a position by speaking publicly on issues of the day. Some have stated that the elected president should 'check' the Government, and that since he is elected, he has the authority to do so. These views are quite innocent of any legal basis.
Direct elections do not give the elected president the right to speak independently. Elections are the process by which an elected president is chosen, and are intended to confer moral authority in respect of the discretionary powers the president has. Elections cannot alter the scope of the powers given to the presidency through the Constitution.
Let me illustrate this by reference to the Cabinet. Ministers are also elected. Can they use that fact to argue that the Cabinet has greater powers than actually given to it by the Constitution? One has to only state the proposition to recognise its absurdity.
If a head of state challenges the government, he would be acting unconstitutionally. As the draft of the note that then-British Prime Minister Stanley Baldwin sent to King Edward VIII in 1936 noted, the last time in English history the King acted independently there was civil war. Eventually Baldwin dropped this reference to the 17th century Charles I, but he made the same point politely. Thankfully, there are processes now to resolve such disputes between a government and the head of state without a revolution.
But leaving aside the Constitution, as a matter of principle, should the head of state speak publicly, either in support of or in opposition to the Government? If the purpose is to influence the Government, would the best approach be to do so publicly or speak in private to the prime minister, as is generally done?
If the purpose of going public is to be populist, then the presidency will inevitably be engaged in politics. Once you argue a position on any issue of the day, it will be hard to avoid being seen as engaging in politics and debate. Saying that one can make statements on issues without being partisan is akin to saying that one can be only 'a little bit pregnant'.
There is another point: Let's assume that the president speaks on what he thinks ought to be done. Does it then follow that the Government necessarily has to implement what he advocates? If so, who then should be responsible for the results: the Government or the president?
As for the president providing feedback to the Government, as one commentator rightly pointed out, the president is not a 'glorified feedback channel'. And again, we come back to the question of motivation: why is there need for the feedback to be given publicly?
When it comes to choosing a presidential candidate, the real questions we should be asking are:
Who will best protect the reserves - who has the knowledge, the skills, the acumen?
Who will best command the confidence and respect of the prime minister and the Cabinet, and be able to influence them?
Who has the gravitas and stature to be the symbol of the country?
The 'wrong' questions would be:
Who is going to speak up publicly?
Who is going to contradict the Government?
Who is going to engage publicly on political issues?
These are 'wrong' questions because the president cannot do any of these things. He would be acting unconstitutionally if he did so.
We are a young nation. In arriving at our current model for the presidency, we drew on the experience of other countries - chiefly Britain, India and Malaysia - and shaped the presidency as a constitutional head of state. We then added some very important powers in 1991. Precisely because of this, it is important that the institution of the presidency be handled with judicious care. A wrong approach could seriously diminish the institution.
As we grow as a nation, we should develop the presidency as an institution of authority and prestige, with significant constitutional powers. It can be a powerful and influential institution, checking on a rogue government, if the office is held by people who can discharge its duties with great skill and care.
President is constitutional head of state
Law Minister K. Shanmugam spoke at the Institute of Policy Studies forum on the elected presidency on Friday Aug 5 in response to many publicly expressed opinions by the Presidential Candidates and other Singaporeans about the role of the president. Some candidates have suggested that if elected, they would take on a more active role as a voice for the people.
I WILL set out the president's pre-1991 constitutional role and powers; consider the effect of the 1991 constitutional amendments giving the president additional powers; and discuss some points made recently in the media and elsewhere about the elected president's powers - and the extent to which such points are grounded in legal reality.
The elected president can be highly influential and has significant powers. But much of the discussion so far has not focused on the elected president's real powers and influence. Instead the focus has been on issues that have no legal basis - such as whether the elected president can speak in public to contradict the Government, to disagree with the Government, and so on.
In law, the elected president has no such powers. That was not the role envisaged for the presidency.
The Constitution provides for the important institutions of state, including the presidency, Parliament, the executive and the judiciary. Our presidency is created by the Constitution. That means the Constitution alone can be the source of his powers.
The president is the head of state. In our system, the head of state and the head of government are different. As British constitutional expert Vernon Bogdanor puts it, in such a system, the functions of a head of state 'are generally of three main kinds: First, there are constitutional functions, primarily formal or residual, such as appointing a prime minister and dissolving the legislature. Second, there are various ceremonial duties. Third, and perhaps most important, is the symbolic function, by means of which the head of state represents and symbolises not just the state but the nation'.
I will look at the constitutional functions, since most of the ongoing public discussion relates to this aspect. Three points need to be made:
In the discharge of his constitutional functions, the president can act and speak only as advised by the Cabinet (unless otherwise provided in law).
This means all his public acts - including public speech - can be undertaken only on the advice of the Cabinet, except where powers specifically vested in the presidency allow otherwise.
The president cannot act of his own volition; he cannot reject the Cabinet's advice; he must be impartial and be seen to be impartial on political debates. These principles are articulated in Articles 21(1) and 24(2) of the Constitution.
Article 21(1) states: 'Except as provided by this Constitution, 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.' (Note it says 'shall', not 'may'.)
Article 24(2) states: 'Subject to the provisions of this Constitution, the Cabinet shall have the general direction and control of the Government and shall be collectively responsible to Parliament.'
These constitutional points can be underlined with reference to a famous event in British monarchic history: the romance between King Edward VIII and Mrs Wallis Simpson. In 1936, King Edward, wishing to marry Mrs Simpson, wanted to make a speech to the public to make his case. Then-Prime Minister Stanley Baldwin told the King, in no uncertain terms, why he was not allowed to make such a speech. The King could not even speak about the lady he wanted to marry, except as authorised by the Cabinet.
It is obvious that the same principles will apply with greater force if the King (or a head of state) wanted to speak on transport fares, the nationalisation of transport operators, or the cost of living.
The president symbolises and represents the entire country. As such, he has to be above the political fray. He cannot publicly engage in a debate with the Government. If he comments on social or political issues, the office will be dragged into politics.
This rule ultimately protects the presidency. If the president acts and speaks only on the advice of the Cabinet, his office would not be burdened by the responsibility for the outcome of specific policies. This allows the president to be representative of the entire country.
The constitutional limits do not mean that the president has no influence. On the contrary, he can wield influence through his regular discussions with the prime minister.
The president receives Cabinet papers and meets the prime minister regularly to discuss a wide range of issues. His influence can be considerable.
Any prime minister will give due weight to such advice as he may receive from the president, especially if the president has substantial experience, is wise and knowledgeable, and is trusted and respected by the prime minister. Of course, whether the president actually wields influence depends very much on who the president is. If he is someone who is not experienced, wise and knowledgeable, then his influence would be limited.
Walter Bagehot famously wrote of the British monarch: 'The sovereign has... three rights - the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no others would enable him to use these with singular effect.'
Bogdanor, noting that the current British monarch, Elizabeth, has been on the throne since 1952, said that she would be in a position to warn ministers of the possible bad consequences of the policies they propose, precisely because she has had such deep experience of government, spread across 12 British prime ministers, beginning with Winston Churchill.
Our president would exercise similar influence if he is a person of wide and deep experience.
The president has to keep his discussions with the prime minister confidential.
Bogdanor notes: 'It is important to notice that the sovereign's right to express her opinions on government policy... entails... that communications between her and the prime minister remain confidential. She is not entitled to make it known that she holds different views on some matter of public policy from those of her government... It follows, therefore, that the sovereign must observe a strict neutrality in public and great discretion in her private conversation.'
Practically, if the president does not keep the discussions confidential, then the prime minister will most likely cease engaging in any meaningful discussion with him.
He has 'extremely important roles and powers'
THE 1991 constitutional amendments gave the president specific powers. He has veto powers over the spending of past reserves, specific key public service appointments, detentions without trial and Corrupt Practices Investigation Bureau investigations.
The rationale for these powers is to:
Provide a check against a profligate government, which might be tempted to spend accumulated reserves;
Provide a check against a government that might become corrupt; and
Provide a check against crony appointments in the civil service, judiciary, key statutory boards, etc.
Some have asked what the elected president does if he has no powers? Actually, it is untrue that the president is powerless. He has extremely important roles and powers. The exercise of those powers is critically important if the government is corrupt or incompetent.
It is worth noting that in some areas, the elected president has discretion to act; in other areas, he has to consult the Council of Presidential Advisers. The president's direct election gives him the moral authority to exercise his important powers. But in all other aspects, the office remains unchanged, and the same constitutional position as before holds.
This was made clear in the 1988 White Paper on the elected presidency. In the parliamentary debates that followed, various ministers made clear that the changes in the president's powers are only in the specific areas covered by the constitutional amendments.
Then-Senior Minister Lee Kuan Yew put it in his own inimitable words, and said that as a lawyer, he had paid careful attention to the words of the proposed amendments to make sure that the president's position was essentially unchanged, except for the areas specifically added thorough the 1991 amendments.
In summary, as a result of the 1991 constitutional amendments, the elected president has very important specific powers. He will continue to wield the influence that our head of state has always had, but this influence depends on the individual occupying the office. If he starts out saying that he is going to campaign against the government, one can draw one's own conclusions as to the weight that any prime minister will give to his views.
Various parties have stated that the elected president should consult the public, give feedback, and take a position by speaking publicly on issues of the day. Some have stated that the elected president should 'check' the Government, and that since he is elected, he has the authority to do so. These views are quite innocent of any legal basis.
Direct elections do not give the elected president the right to speak independently. Elections are the process by which an elected president is chosen, and are intended to confer moral authority in respect of the discretionary powers the president has. Elections cannot alter the scope of the powers given to the presidency through the Constitution.
Let me illustrate this by reference to the Cabinet. Ministers are also elected. Can they use that fact to argue that the Cabinet has greater powers than actually given to it by the Constitution? One has to only state the proposition to recognise its absurdity.
If a head of state challenges the government, he would be acting unconstitutionally. As the draft of the note that then-British Prime Minister Stanley Baldwin sent to King Edward VIII in 1936 noted, the last time in English history the King acted independently there was civil war. Eventually Baldwin dropped this reference to the 17th century Charles I, but he made the same point politely. Thankfully, there are processes now to resolve such disputes between a government and the head of state without a revolution.
But leaving aside the Constitution, as a matter of principle, should the head of state speak publicly, either in support of or in opposition to the Government? If the purpose is to influence the Government, would the best approach be to do so publicly or speak in private to the prime minister, as is generally done?
If the purpose of going public is to be populist, then the presidency will inevitably be engaged in politics. Once you argue a position on any issue of the day, it will be hard to avoid being seen as engaging in politics and debate. Saying that one can make statements on issues without being partisan is akin to saying that one can be only 'a little bit pregnant'.
There is another point: Let's assume that the president speaks on what he thinks ought to be done. Does it then follow that the Government necessarily has to implement what he advocates? If so, who then should be responsible for the results: the Government or the president?
As for the president providing feedback to the Government, as one commentator rightly pointed out, the president is not a 'glorified feedback channel'. And again, we come back to the question of motivation: why is there need for the feedback to be given publicly?
When it comes to choosing a presidential candidate, the real questions we should be asking are:
Who will best protect the reserves - who has the knowledge, the skills, the acumen?
Who will best command the confidence and respect of the prime minister and the Cabinet, and be able to influence them?
Who has the gravitas and stature to be the symbol of the country?
The 'wrong' questions would be:
Who is going to speak up publicly?
Who is going to contradict the Government?
Who is going to engage publicly on political issues?
These are 'wrong' questions because the president cannot do any of these things. He would be acting unconstitutionally if he did so.
We are a young nation. In arriving at our current model for the presidency, we drew on the experience of other countries - chiefly Britain, India and Malaysia - and shaped the presidency as a constitutional head of state. We then added some very important powers in 1991. Precisely because of this, it is important that the institution of the presidency be handled with judicious care. A wrong approach could seriously diminish the institution.
As we grow as a nation, we should develop the presidency as an institution of authority and prestige, with significant constitutional powers. It can be a powerful and influential institution, checking on a rogue government, if the office is held by people who can discharge its duties with great skill and care.
