“Did the government all along make a policy decision itself to count from President Wee Kim Wee? Did the government merely use the AGC’s advice as a cover to avoid full parliamentary debate on why the count was not starting from President Ong Teng Cheong?”
Workers’ Party chairman Sylvia Lim raised the issue of the reserved election count yesterday in parliament, saying that the government hid behind the “AGC’s advice” to avoid stating outright the count leading up to PE2017 being a reserved election was a policy decision.
Ms Lim brought up speeches made by PM Lee Hsien Loong, Deputy PM Teo Chee Hean and Minister in the Prime Minister’s Office Chan Chun Sing, saying that they used evasive language to distract the public and avoid debate on the count in parliament.
She said the government “should not have evaded the debate by using the AGC’s advice as a distraction and then gone to court to say that the AGC’s advice was irrelevant.”
Ms Lim first quoted the speech by PM Lee in parliament on 8th Nov during the debate on the Constitutional Amendment Bill:
“Prime Minister told the House the following, ‘The symbolic role of the president is just as important as his custodial role. As a symbol of the nation, the race of the candidate is relevant. So, while individually a good candidate of any race will be satisfactory, collectively, over a period of time, we need that mix of presidents of different races and the election mechanism must be designed to produce such a mix over time. This is what the hiatus-triggered model delivers. When should the racial provision start counting? The Constitutional Amendment Bill states that the government should legislate on this point. The government intends to legislate when we amend the Presidential Elections Act in January next year. 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. Therefore, by the operation of the hiatus-triggered model, the next election, due next year, 2017, will be a reserved election for Malay candidates.’
The clear impression given was that this was based on the AGC’s advice. That was why the prime minister sequenced his sentences as he did. The Prime Minister did not say that the government intended to count from President Wee Kim Wee and that the AGC had merely confirmed that it was acceptable to do so.”
DPM Teo said:
“On the reserved elections and how to count, I would like to confirm that this is indeed the Attorney-General’s Chamber’s advice. And if not, and you do not think that is correct, I think it is possible if you wish to challenge judicially.”
She said that based on this, “Any reasonable person would assume that the AGC had advised the government how to count, and that the AGC’s advice involved a question of law.”
“3 months later, on 6th February, this House held the second reading debate on the Presidential Elections Amendment Bill. What struck me in preparing for the debate was that the Bill contained a new schedule with a table stipulating that the count was to start from President Wee Kim Wee. It dawned on me then that the government had simply wanted parliament to make new law to stipulate that the count should start from President Wee Kim Wee. It was completely a government decision.
When I put it to the government that counting from President Wee Kim Wee was an arbitrary and deliberate decision to achieve a desired outcome, Minister Chan Chun Sing rejected my assertion. He told the House that the government had decided not to publish the AGC’s advice.
Minister Chan further said, ‘The government is confident of the advice rendered by the Attorney-General. We proceeded on that basis during the debates on the constitutional changes in this House. Prime Minister Lee explained to all why we need the hiatus-triggered mechanism and he passed the Constitution Amendment bill. We are here today to put the nuts and bolts in place for a decision made clear by Prime Minister during the debates in November and we will not go through this again’.
He continued, ‘Ms Lim once again questioned the Attorney-General’s advice. I’m a bit bewildered by this. I would like to clarify: A) Is Ms Lim suggesting that the Attorney-General did not give the government the appropriate advice? Or B) that the Prime Minister has not been truthful with the Attorney-General’s advice? If it is the first, then I think Ms Lim, as suggested by Deputy Prime Minister Teo, can challenge this in the courts. But if it is the second, then I’m afraid it is a very serious issue to cast aspersions on the integrity of our prime minister.’
So we should note what happened here – instead of confirming that it was the government who made the decision start counting from President Wee, Minister Chan explicitly said that the government was confident of the AGC’s advice and proceeded on that basis to make the constitutional changes.
He said he did not want to reopen the debate on the count from President Wee even though parliament was then asked for the first time to enact the table stipulating the count from President Wee. Here we were debating a law that would practically rewrite history by deeming President Wee as the first elected president. Yet, instead of the government using the opportunity to clarify the matter and any misimpressions created, it chose instead to impute sinister intentions to me. And that was how the parliamentary debates on the reserved elections ended.”
“Before the High Court on 29th June 2017, the Deputy AG said, and I quote, ‘The Prime Minister never said that the AG advised PM to start the count from President Wee. What PM said is that the AG advised is that what the government is proposing to do was legitimate.’ This is from the official court transcript. Mr Kumar further submitted that the decision on which president to count from was a policy matter for the government and not a legal question. He argued, and I quote, ‘The AG was in no position to tell the government where to start the count from.’
On 31st July, before the Court of Appeal of five judges, the Deputy AG repeated his position even more vividly. He submitted that the AGC’s advice was ‘irrelevant’. He also tried to explain away the PM’s speech on taking the AGC’s advice. He said, and I quote, ‘One should not look at speeches like statutory instruments. The PM had made it clear from his speech that President Wee was not a popularly-elected president but a president who had exercised the powers of an elected president. Then he says fifth term of elected president – a convenient term used in his speech. He wasn’t defining presidency in this context as elected presidency.’ That was Mr Nair’s submission to the court.
Sir I was in court when he made that submission, which to me was astonishing. Was the Deputy Attorney-General saying that we should not take the PM’s speech literally, but loosely? That we should not place too much weight on the terms PM used in making a keynote speech to parliament to amend the Constitution?”
Ms Lim said the government’s reference to the AGC has proved confusing:
“The government’s reference to the AGC’s advice has confused MPs and also the courts. The ministers consistently kept referring to the AGC’s advice as the basis for the legislative changes. Yet, the Deputy AG says in court that the advice is ‘irrelevant’.”
Despite repeated requests, Ms Lim said that the mysterious AGC’s advice still has not been produced, though the courts have confirmed in its dismissal of Dr Tan Cheng Bock’s legal challenge that the count is a policy decision.
“Here we are debating changes that affect the highest office in the land, yet the government decides to engage in ambiguous language and red herrings. We in this House should have been told in no uncertain terms that it was the government that wanted to count from Wee Kim Wee. The government should have defended its own decision on why counting from President Wee was appropriate. It should not have evaded the debate by using the AGC’s advice as a distraction and then gone to court to say that the AGC’s advice was irrelevant.”
Ms Lim accused the government of hiding behind the guise of the “AGC’s advice” to legitimise its actions.
“Did the government refuse to publish the advice because doing so would have made it clear that the decision to count from President Wee was initiated by the government and the government alone. Sir, be that as it may, the Deputy AG has now told us that the AGC’s advice was merely sought to legitimise what the government itself wanted to do.”