Speech by Minister for Foreign Affairs and Law, Mr K Shanmugam, at the Institute of Policy Studies Forum on the Elected Presidency

05 AUG 2011

5 Aug 2011 Posted in Speeches

  1. Introduction
  1. This Forum is timely because recent discussions indicate that there is some confusion on what the Elected President can actually do under the Constitution. As a result of the confusion, various remarks , divorced from the c onstitutiona l and legal reality , have been made about what the President can and cannot do.
  1. In these remarks, I will : -
    1. Set out the President’s pre-1991 constitutional role and powers ;
    2. Consider the effect of the 1991 constitutional amendments giving the President additional powers; and
    3. 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.
  1. My key points are that:-
    1. The Elected President can be highly influential and has significant powers;
    2. Much of the discussions so far have not focused on the real powers and influence of the Elected President – 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; and
    3. In law, the Elected President has no such powers – that was not the role that had been envisaged for the Presidency.
  1. The Presidency Before The 1991 Constitutional Amendments
  1. 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 - and the Constitution alone is the source of powers for the Presidency.
  1. The Queen in the UK is slightly different – she is the fount of power and honour, but she is circumscribed by conventions and by the law as well. I will come back to this later (see para 13 below).
  1. In Singapore, the President is the Head of State. Ours is a political system where the Head of State and Head of Government are different ; the roles are split, unlike in the US or France. In such a system, the Head of State generally has three roles:
    1. Constitutional functions. These are mainly formal, such as appointing the Prime Minister, or dissolving legislatures.
    2. Ceremonial duties.
    3. Symbolic functions. In these instances, the Head of State is the representative of the whole country.
  1. These roles are detailed in a journal article by British constitutional expert, Vernon Bogdanor, a Reader in Government and a Fellow of Brasenose College, Oxford University 1:
    2. The functions of a head of state, where that office is separated, 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. It is this last role that is the crucial one ...
  1. For present purposes, I will look at the constitutional functions , as most of the ongoing public discussion relates to this aspect. I will make three points:
    1. In the discharge of his constitutional functions, the President can only act and speak as advised by the Cabinet.
    2. This does not mean that the President has no influence; he can wield influence through his regular discussions with the Prime Minister.
    3. The President has to keep his discussions with the Prime Minister confidential.

I will elaborate on each of these points in turn.

  1. Legal Position: The President can only act as advised by the Cabinet (unless otherwise provided in law)
  1. The legal position of the President in discharging his dutie s is as follows:
    1. All his public acts – including public speech – can only be undertaken on the advice of the Cabinet, except where powers specifically vested in the Office allow otherwise;
    2. He cannot act of his own volition – in any public aspect, except where powers specifically vested in the Office allow otherwise;
    3. He cannot reject the advice given by the Cabinet; and
    4. He must be impartial and be seen to be impartial on political debates.
  1. These principles are articulated in Articles 21(1) and 24(2) of the Constitution, which in turn reflect the constitutional position and law in the UK and the Commonwealth, developed over centuries:
    • Article 21(1) - Discharge and performance of functions of President
      Except as provided by this Constitution, the President shall [- and not “may”] , 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. (Emphasis added.)
    • Article 24(2) - Cabinet
      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.
  1. This point can be illustrated with reference to a famous event in British monarchic history – the romance between King Edward VIII and Mrs Simpson: in 1936, King Edward wanted to marry Mrs Simpson and was told that he had to abdicate if he wanted to marry her. The King wanted to make a speech to the public explaining his reasons for wanting to marry Mrs Simpson. Then PM Stanley Baldwin wrote to the King (see Annex A) to set out, in no uncertain terms, why the King was not allowed to make such a public speech. The King could not, under Constitutional principles, even speak about the lady he wanted to marry – except as authorised by the Cabinet. And the Cabinet decided that the King should not make such a speech. It is obvious that the same principles will apply with greater force if the King (or a Head of State) wanted to speak on subjects such as: transport fares, whether transport operators should be nationalised, and the cost of living.
  1. Bogdanor elaborates on the rationale for this, at Annex B.
  1. In the UK, these p rinciples developed in the context of the Sovereign there, whose powers – in theory at least – are much broader than the Head of State in Singapore. For example, i t is “Her Majesty’s Cabinet”, “Her Majest y ’s Judges”, and “Her Majesty’s Army”. Similar principles apply in other Commonwealth countries as well.
  1. Our Constitution, including provisions such as Articles 21(1) and 24(2), was based on English principles and conventions. It follows that these same principles apply to our Presidency, which in turn is created and empowered by the Constitution. Any powers that the President wishes to exercise must therefore be found in the Constitution.
  1. Let me trace the roots of our Constitution:
    1. Our Constitution was modelled on the Malaysian Federal Constitution of 1957;
    2. This in turn was modelled on the Indian Federal Constitution of 1950;
    3. In turn, this had adopted the English model for the Indian Presidency, and followed the English constitutional position that the Head of State must act on the advice of his ministers in all public matters.

This is made clear in a summing-up speech made to the Indian Constituent Assembly, by the President of the Assembly, and India’s first President. (See Annex C.)

  1. The Malaysian Constitution largely followed the Indian one. The Reid Commission, in its report, said:
    2. The Yang di-Pertuan Besar will be the Head of State (Art. 27), but he must be a constitutional Ruler. He must therefore act on the advice of his Ministers with regard to all executive action. He will be a symbol of the unity of the country.
  1. Our Constitution is derived from the Malaysian Constitution.
  1. The rationale for the approach at para 9 is that the President symbolises and represents the entire country. As such, he has to be above the political fray. On the other hand, the power to legislate lies with Parliament. The President cannot publicly engage in a debate with the Government. If he comments on social or political issues, the Office will be dragged into politics. Such a 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, and allows the President to be representative of the entire country. The fifth proposition in the note accompanying Baldwin’s letter at Annex A captures this point well. For these reasons, the President can speak only as advised by the Cabinet.
  1. President can be highly influential and effective
  1. Nevertheless the President can be highly influential. He receives Cabinet papers and meets the Prime Minister regularly to discuss a wide range of issues – including issues of the day. His influence can be considerable, as he can advise the Prime Minister on a wide variety of matters. Any Prime Minister will give due weight to such advice, especially if the President has had substantial experience, is wise and knowledgeable, and is trusted and respected by the Prime Minister. But of course, whether the President actually wields influence depends very much on who the President is. If he is someone who commands little or no respect, his influence would be limited.
  1. Walter Bagehot famously wrote of the nature of the monarch’s influence 2 :
    • The Sovereign has, under a constitutional monarchy such as ours, 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. He would say to his minister: 'The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn'. Supposing the King to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. He might not always turn his course, but he would always trouble his mind.
  1. Bogdanor, refers to recent British experience and the influence that the Queen can wield 3 :
    • One can only speculate on the influence of the Queen. Three thoughts can perhaps be ventured. The first is that the influence of a sovereign is likely to increase during her reign, for the longer she remains on the throne the greater the political experience which she accumulates. By 1996, the Queen will have been on the throne for 44 years, known nine Prime Ministers and have enjoyed a longer experience of public life than anyone who is politically active today. 'In the course of a long reign', Bagehot declared, 'a sagacious king would acquire an experience with which few ministers could contend. The king could say: "Have you referred to the transactions which happened during such and such an administration, I think about fourteen years ago?" They afford an instructive example of the bad results which are sure to attend the policy which you propose. You did not at that time take so prominent a part in public life as you now do, and it is possible you do not fully remember all the events. I should recommend you to recur to them, and to discuss them with your older colleagues who took part in them. It is unwise to recommend a policy which so lately worked so ill.’
  1. The President has to keep discussions confidential
  1. Another key point is that the President has to keep these discussions confidential. Again, Bogdanor has this to say 4:
    • It is important to notice that the sovereign's right to express her opinions on government policy, … [to the Prime Minister ], 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 is a fundamental condition of royal influence that it remains private. It follows, therefore, that the sovereign must observe a strict neutrality in public and great discretion in her private conversation.
  1. 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.
  1. The 1991 Constitutional Amendments Introducing The Elected Presidency
  1. The 1991 constitutional a mendments gave the President specific powers , and the Ministry of Law had issued a Statement (see Annex D) on 6 June 2011 setting out the effect of the a mendments.
  1. In summary, the EP is given veto powers on : the spending of reserves, specific appointments, detentions without trial , and Corrupt Practices Investigation Bureau investigations. The rationale for these powers is to :-
    1. Provide a check against a profligate Government, which might be tempted to spend accumulated reserves;
    2. Provide a check against a Government that might become corrupt; and
    3. Provide a check against crony appointments in the Civil Service, Judiciary, Statutory Boards, etc.

These are extremely important roles and powers.

  1. Taking a step back, some have asked what the Elected President does then, if he has no powers. Actually, it is quite untrue that the President is powerless; the exercise of the powers I have mentioned are critically important if the Government is corrupt or incompetent . So far however, there has been little or no public discussion on these points.
  1. 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 Advisors , and so on. The President’s direct election gives him the moral authority to exercise these important powers.
  1. In all other aspects, the office and powers of the President remain unchanged, and the same constitutional position as before holds. This was made clear in the 1988 White Paper . In the Parliamentary debates thereafter , various ministers have made clear that the changes in the President’s powers are only in the specific areas covered by the Constitutional amendments. (See Annex E.) Articles 21(1) and 24(2) of the Constitution remain in full force – without any change. Then SM Lee 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.
  1. In summary, all of this means that unless the Constitution provides and vests specific powers in the Presidency, the Elected President :-
    1. Must follow the advice of the Cabinet in the discharge of his duties; and
    2. Cannot act or speak publicly on issues of the day except as advised by the Cabinet.
  1. 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.
  1. Some Comments On Recent Discussions
  1. 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.
  1. These views are quite innocent of any legal basis. I have previously explained the constitutional position.
  1. 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. They 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 the Cabinet use the fact that its members are elected ,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 the absurdity of it.
  1. If a Head of State challenges the Government, he would be acting unconstitutionally. The draft of the Note which was eventually sent by PM Baldwin to King Edward VIII (a copy of which is at Annex F) points out that, “the last time when [the King acted in disregard of his Ministers’ advice] in English history was when Charles I raised His Standard at the beginning of the Civil War on August 22nd, 1642.” Eventually this sentence was changed to a more polite version (as in Annex A ) . Nowadays, thankfully, there are processes to resolve these questions, if the need arises, without requiring a revolution.
  1. Leaving aside the Constitution and the law , as a matter of principle : should the Head of State speak publicly, either in support of or in opposition to Government policies? If the purpose is to influence the Government, would the best approach be to go public, or would it be to speak in private with the Prime Minister – as is generally done? If the real purpose of going public is to be populist, then the Presidency will inevitably be engaged in politics. The reality is that, once you argue a position on any issue of the day, it will be hard to avoid be 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”!
  1. These points have been considered over a long period of time in many countries, and the distilled practice on how constitutional Heads of States should conduct themselves, is now settled – for very good reasons.
  1. There is another point: Let’s assume that the EP speaks on what he thinks ought to be done. Does it then follow that the Government necessarily has to implement what the EP advocates? If so, p hilosophically, who then should be responsible for the results – the elected Government or the EP?
  1. On whether the rationale for the EP is to provide a means of feedback to the Government, one commentator rightly pointed out that the President is not a “glorified feedback channel”. As before, we come back to the question of motivation, and why there is the need for the feedback to be given publicly.
  1. Conclusion
  1. When it comes to choosing a presidential candidate, the real questions we should be asking are:
    1. Who will best protect the reserves – who has the knowledge, the skill, the acumen?
    2. Who will best command the confidence and respect of the Prime Minister and the Cabinet, and be able to influence them?
    3. Who has the gravitas and stature to be the symbol of the country?
  1. The “wrong” questions would be:
    1. Who is going to speak up publicly?
    2. Who is going to contradict the Government?
    3. 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.

  1. In conclusion, we are a young nation. In arriving at our current model for the Presidency, we drew on the experience of other countries and shaped the Presidency as a constitutional Head of State . We then added some very important powers in 1991. 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.
  1. As we grow as a nation, we should develop the presidency as an institution of authority and prestige, with significant c onstitutional powers. It can be a powerful , influential i nstitution, checking on a rogue Government , if the Office is held by people who can discharge the duties with great skill and care.

Annexes to Remarks by Minister Shanmugam at IPS Forum (1.04MB)

[1] Bogdanor, Vernon, “The Monarchy and the Constitution”, Parliamentary Affairs, 1996, 49(3), pp410-411.

[2] Bagehot, Walter, The English Constitution, (Oxford University Press, 2009 reprint), pp38-72.

[3] Bogdanor, Vernon, “The Monarchy and the Constitution”, Parliamentary Affairs, 1996, 49(3), p418.

[4] Bogdanor, Vernon, “The Monarchy and the Constitution”, Parliamentary Affairs, 1996, 49(3), p417.

Last updated on 25 Nov 2012