Former presidential candidate Tan Cheng Bock’s appeal against a High Court ruling on his constitutional challenge to the timing of the reserved presidential election has been dismissed.
A Court of Appeal panel of five judges – Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash, Judge of Appeal Steven Chong, Justice Chua Lee Ming and Justice Kannan Ramesh – unanimously rejected Tan’s appeal on Wednesday (23 August), after deliberating for almost a month. This follows the High Court’s dismissal of Tan’s initial legal challenge in July.
The panel noted that Tan’s appeal turned on two articles of the Constitution. Specifically, “Article 19B(1) provides for a Reserved Election for a community if no person from that community has held the office of President for any of the five most recent terms of office of the President” while “Article 164(1)(a) provides for Parliament to specify the first term of office of the President to be counted under Article 19B(1) (“First Term”).”
This year’s presidential election is reserved for Malay candidates, following constitutional amendments last year that reserves an election for a particular racial group that has not been represented in the office for five consecutive terms. The term count starts from the late Wee Kim Wee, according to the government, as he was the first to wield the powers of an Elected President.
Tan argued through his lawyer Chelva Retnam Rajah that the term count should start from the late Ong Teng Cheong as Wee was not elected by a popular vote. During a Court of Appeal hearing last month, Rajah also contended that President Wee’s second term in office was only chosen for the start of the term count because Parliament mistakenly thought he was an Elected President.
He also claimed that Parliament acted under a “mistake of law”, based on the advice of the Attorney-General’s Chambers (AGC), which has not been publicly disclosed. Rajah noted Prime Minister Lee Hsien Loong’s speech to Parliament on 7 November last year, when Lee said, “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.”
Reasons for rejecting the appeal
But the Apex Court agreed with the High Court that there is nothing in the text or textual context which limits Parliament’s power by requiring Parliament to start the term count from the term of office of a popularly elected President.
“It was evident from reading Art 19B together with Art 164 that it was open to Parliament, for the purpose of determining when the reserved election scheme would take effect, to select as the first of the five most recent terms, a term of office that predated the coming into force of the recent amendments to the Constitution,” said the panel in its written judgement.
The panel also addressed Rajah’s argument that there had been a “misapprehension of law” on Parliament’s part that President Wee was a “president elected by the citizens”. It declared that there “was no basis at all for finding any misapprehension”.
“Nothing in PM Lee’s statement, or the statements of any of the other Members of Parliament, suggests that they believed that President Wee had been elected by the citizens. Rather, PM Lee’s statement explicitly stated that President Wee was chosen because he was the first President to exercise the functions of the Elected President.”
Finally, the panel also found that the AGC’s advice was “irrelevant”, given that Parliament had the discretion to decide when to begin the term count.
“Nothing ultimately turned on the correctness of the AG’s advice, because if the Court had agreed with the Appellant that Parliament could lawfully only specify the term of office of a President elected by the citizens as the first term, Parliament’s choice would have been unconstitutional and it would not have mattered what the AG’s advice was in such circumstances.”