Open to Tan Cheng Bock to challenge Elected Presidency changes in court: law dons

Vernon Lee
Senior Editor
Former presidential candidate Tan Cheng Bock held a press conference on 31 March 2017 to discuss the Elected Presidency changes. (Photo: Amritpal Khaira/Yahoo Singapore)

Former Singapore presidential candidate Tan Cheng Bock may have a chance to mount a constitutional challenge in court against the recent changes to the Elected Presidency (EP), according to two legal experts.

The comments by Singapore Management University law dons Jack Lee and Eugene Tan come after Dr Tan, former MP of Ayer Rajah, held a press conference on Friday (31 March) to ask the Attorney-General’s Chambers (AGC) or the government to explain how it counts the terms of presidents who had exercised elected powers.

Dr Tan’s contention was that the first ever term of the EP was when Ong Teng Cheong assumed office in 1993 after winning the inaugural presidential election in the same year. But the AGC had advised the government that the term began when Wee Kim Wee first exercised the powers of EP, even though he was not directly elected when the institution was enshrined in the amended Constitution in 1991.

Based on the AGC’s advice, Dr Tan is ruled out as a presidential candidate as the “hiatus-triggered mechanism” is applicable to the next election in September, which is reserved for Malay candidates.

To clarify the matter beyond any doubt, the government should refer AGC’s advice to the court for a judicial review, Dr Tan said at the conference.

Assistant Professor Lee, who is a constitutional law expert, said that the government did not publicly release the text of AGC’s advice. In the past, the full text of advice provided by the AGC had been released to the public on some occasions, he noted.

“If the government does not release the full text of the AGC’s advice, or Dr Tan does not agree with the advice or the government’s explanation, it is certainly open to him to bring a constitutional challenge to the validity of the recent amendments to the Presidential Elections Act,” Asst Prof Lee said.

Associate Professor Tan, who appeared before the Constitutional Commission at a public hearing into the proposed changes to the EP last year, also said that Dr Tan can attempt to apply for a judicial review. But the High Court has to decide if he has “standing” before it can consider the matter.

“Dr Tan could argue that as a candidate in the 2011 election and more importantly, as someone who had early on declared his intention to contest in the upcoming election, he has standing,” Assoc Prof Tan said.

His difficulty, however, is that the matter had been vigorously debated in Parliament, the SMU don added.

“Under the separation of powers doctrine, the Court may not interfere with what it considers a political question. The Court could take the view that Parliament would be a better forum to decide on the issue,” Assoc Prof Tan said.

Ultimately, mounting a constitutional challenge could be the only legal avenue open to Dr Tan and even that would be an uphill task for him.

“I don’t think the law is on Dr Tan’s side when it comes to this matter. His chances of succeeding would be very slim,” according to Assoc Prof Tan.

–additional reporting by Nicholas Yong