Tan Cheng Bock's constitutional challenge on Elected Presidency fails

UPDATE: The High Court released its judgement on Tan Cheng Bock’s application.

Tan Cheng Bock’s constitutional challenge to the timing of the reserved Presidential Election (PE) was rejected by the High Court on Friday (7 July).

The hearing at the High Court took place in chambers, which means that members of the public were not allowed to attend.

Tan’s legal application was dismissed without costs. He has until 12 July to file an appeal. Chelva Retnam Rajah, who is representing Tan, said his client will consider the judgement and make a decision over the course of next week.

In May, Tan filed an affidavit to the High Court to challenge the counting of five terms of the EP to trigger this year’s reserved election. The upcoming presidential election is reserved for Malay candidates and will be held in September.

The 76-year-old former Ayer Rajah MP, who held a media conference in March about the issue, questioned the advice given by the Attorney-General’s Chambers to the government that the first term of the EP began with President Wee Kim Wee.

Tan said that the election should be an open one. “The AGC should have counted the five most recent presidential terms produced by open elections. This starts with President Ong Teng Cheong,” he said.

Calling it “a matter of national importance”, Tan said last month that he had engaged Queen’s Counsel Lord David Pannick, a high-profile barrister from the United Kingdom, to represent him.

Tan had argued the reserved election’s definition of “five most recent terms” refers to Presidents who were elected by citizens to serve for a six-year term. He said Wee did not assume office through an election and his term of office under the constitutional provisions then in force was four years.

Citing the Constitutional Commission’s report to support this argument, Tan said a reserved election would be triggered if “no candidate from a particular racial group has held the office of President for 30 years or more”.

Rebutting Tan’s arguments, the Attorney-General’s Chambers said that the Constitution states that a President can be one that “includes any person for the time being exercising the functions of the office of the President”.

The AGC said, “Parliament considered that the definition was apt to encapsulate both Presidents elected by Parliament, and Presidents elected by the citizens of Singapore.“

In the High Court judgement, Justice Quentin Loh referred to 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 Art 19B(1) (“First Term”).”

The court found that, on a plain reading of Art 164, Parliament is not limited to choosing a particular term of office of the President as the First Term. However, the power under Art 164(1)(a) must be exercised in accordance with Art 19B(1) because the purpose of Art 164 is to enable Parliament to implement Art 19B.

It also found that there is nothing in the text or textual context which limits Parliament’s power by requiring Parliament to start the count from the term of office of a popularly elected President.

The High Court concluded in the judgement that Parliament had acted constitutionally in specifying President Wee’s second term of office as the first term.