Do we still want a Nathanesque presidency? Part 1

The presidential election is shaping up as one where the People’s Action Party (PAP) government is trying hard to set to agenda, but to a large degree, failing. Nonetheless, in the process a number of  memes are being pushed out into the public arena, which increasingly irk me. Not only do these memes serve to lend advantage to one candidate, which was why they were propagated in the first place, it is not even as if the validity of these ideas is open and shut; in fact, it is contestable.

In this two-part article I am going to argue my case against them.

All the memes spring from the argument that the presidency is a largely ceremonial office, except that it has blocking powers in a few constitutionally enumerated areas. Hence,

1. there is no case for candidates and voters discussing issues outside of these specific areas, since they are irrelevant;

2. that any candidate continuing to do so is “over-promising”, potentially seeking conflict with the government, leading to a risk of political paralysis and the collapse of Singapore — the usual rhetoric of crisis again;

3. to avoid that dire scenario, voters should decide on a candidate that best “complements” the government — a word that I found the mainstream media using;  and

4. that voters should look at which candidate is suitable for playing a ceremonial role — thus superficial characteristics like looking distinguished when meeting foreign dignitaries are paramount.

I think all the above borders on disinformation. Moreover, I think this kind of lecturing fails to recognise the evolving political sensibility of Singaporeans, particularly younger voters. The argument I am going to make here is that ultimately the political system we will have is not so much determined by what cookie the PAP will want baked, but what Singaporeans want themselves.

And so we have a headline in Yahoo! news, saying “Voters’ expectations could shape President’s role”, by Alicia Wong, 21 August 2011. Guess what? She was quoting from me.

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The talk and the press

I was speaking at an event organised by Maruah about the upcoming presidential election. Law professor Kevin Tan was the first speaker, giving a detailed run-down of the relevant constitutional provisions. This helped to clarify something that few Singaporeans, in the past, had much reason to pay attention to — what exactly the constitution says about the powers of the president.

Partly because of unfamiliarity with the role of the head of state, since our presidents have generally been like puppets on a string, many Singaporeans initially approached this election as a replay of the general election, bringing up issues such as housing, transport, the income gap and the influx of foreigners. Law minister K Shanmugam, in the last month or so, had to sternly tell Singaporeans that the president had no power at all — he was mostly to be a figurehead — except in a few areas where the constitution said he could act in his own discretion. Shanmugam’s attempt to shut Singaporeans up didn’t work as well as he might have hoped; expressions of bread-and-butter frustrations continue.

The mainstream media, taking the cue from the government, has mostly framed their reporting in the same way, but instead of saying that Singaporeans didn’t understand what the presidency was about, put a twist on it:  saying that certain candidates didn’t understand. The slant was that these candidates were “over-promising” and that they will surely fail to deliver and disappoint their supporters. There is also an unspoken slur that these candidates are out to break the law, raising the bogeyman of “confrontational politics”. Sotto Voce: These are bad candidates and you shouldn’t vote for them.

A reporter called me Sunday and asked me questions along those lines again. The thrust of the questions was to try to get me to agree that certain candidates were over-promising, and that they were unrealistic — from which it would be a short hop to saying they were delusional or confrontational. I resisted, reiterating what I said at the Maruah forum.

To which we will now come back. . .

Kevin Tan pointed out at the conclusion of his part of the talk that ultimately, no constitution can be exhaustive. It still leaves a lot of grey areas. For the record, he also said that no one, not even the law minister, has the final word on what the constitution means, except the Supreme Court.

He provided me precisely the starting point I wanted for my half of the talk. Whereas Kevin spoke about the law, for my part, I wanted to talk about the politics of the office, and the politics spring from those grey areas. This article is not a reprise of that talk. Instead, as I noted at the top, I want to contest several ideas that are meant to restrict our proper understanding of the politics. In this Part 1, I will deal with three.

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“In accordance with the advice”

Except for those areas where the constitution explicitly gives discretion to the president, Article 21 (1) is the catch-all provision that says:

21 (1) Except as provided by this Constitution, the President shall, 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.

Constitutional convention invests into the phrase “in accordance with the advice”  the real meaning: “follow the direction of”. So it looks watertight, doesn’t it? Yes, but there is another phrase that needs looking at — “in the exercise of his functions”. What constitutes an exercise of his functions?

When a president is making an appearance at an official function and he has to choose what to wear, must he refer to “advice”  from the cabinet? If he is asked to make a short impromptu speech at a casual occasion, which he happens to find himself in, must he refuse and say “I have to ask the cabinet for permission”? If he wants to consult some leading academics or civil society leaders whom he has known for years over their views on some policy area in order to advance his own thoughts on the matter, must he ask the Prime Minister’s Office for the green light before he can invite his old friends over for coffee?

These are examples of grey areas, and the difference between one president and another will be in how the man chooses to use them. One candidate may signal to Singaporeans that he has absolutely no intention to use such opportunities in any constructive way. Another candidate may, quite validly, say yes, I intend to use these possibilities in creative ways to advance or spotlight certain important concerns of the times.

Ultimately, I explained at the talk, whether and how such grey areas are used, will likely depend on five factors:

1. The temperament and personality of the person occupying the office himself;

2. His political acuity, meaning his ability to choose his issues strategically, and his gestures and timing effectively for optimum impact;

3. The resistance of the cabinet;

4. The parliamentary majority commanded by the government of the day — which will surely impact the president’s political calculations of what he can get away with; and most importantly,

5. Public opinion.

Singaporeans need a more sophisticated understanding of how politics work. When candidates promise to do all they can within the confines of the office, this is exactly what it means — using the grey areas where there is some freedom of manoeuvre. To label it as “over-promising” is to over-simplify.

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Going public

Listen carefully to what all the candidates say and you will hear a certain consensus. They know that the president has full access to cabinet papers, they know they will get opportunities to have a private word with the prime minister or other cabinet ministers. All of them say that if they have concerns on any matter, they intend to raise them privately; they will seek to influence the cabinet by sharing their perspectives and careful reasoning. Even Tony Tan implies the same each time he highlights his long experience in finance and economics, for why else does he think that long experience is an asset? To be used as input into government decisions, of course! In other words, influence.

The difference is that some candidates reserve the right to go public about their concerns if they feel it is a matter of grave principle. Tan Cheng Bock, for example said on 18 August 2011 that if he found he was faced with a “rogue cabinet” he would “speak out” and he would feel “a duty to warn” (video, at about 44 min 30 secs). Another candidate might implicitly tell voters that he has no intention whatsoever of going beyond the private chat even if the government is, in his view, making a huge mistake. That kind of silence, of course, will suit the government just fine.

The government appears to be taking a line that the president can go public if he has something to say to the people in the specific areas where he has discretion, but must not do so on other subjects. In a letter to the Straits Times taking lawyer Harpreet Singh to task, the Law Ministry said that former prime minister Goh Chok Tong had said in 1999:

‘We should not regard it as unusual for the President to publicly acknowledge differences between him and the Government. It shows the independence of the presidency in the two areas in which he is vested with custodial powers, and this will help future presidents.’

[snip]

Mr Goh’s actual position is similar to the Law Minister’s: that the elected president can speak independently on the areas where he has been expressly conferred with authority by the Constitution.

— Straits Times Forum, 22 August 2011, letter by Chong Wan Yieng (Ms), Director, Corporate Communications, Ministry of Law

I disagree. I don’t think it should be limited to just the areas where he has custodial powers. As I discussed above, there are huge grey areas, and anyway, what is not expressly denied by law is considered to be lawful. That we have no laws allowing the wearing of make-up does not mean it is illegal.

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Influence

If, as I pointed out above, trying to influence the government with a private word or two is totally kosher, then Singaporeans deserve to know which direction that influence will be exercised.

For example, at the forum organised by The Online Citizen on 18 August 2011, to a question by a visually handicapped person (Part 1, at 33 min 05 secs) about the lack of transport fare concessions for the disabled, Tan Jee Say said (at 35 min 07 secs):

I believe and it is my philosophy that those with special needs should be given special assistance. And we are no longer a poor country. We are arguing it out [about] safeguarding the reserves. Lots of money in it. And these reserves do not come from nowhere. They come from the people, from land sales, from surpluses in the budget . . . .

I wouldn’t consider this taking money from the reserves as raiding the reserves. These are for needs, for your own people, who cannot, because of circumstances of birth or whatever, accidents, they do not create these problems for themselves and they are victims of accidents, victims of birth or whatever, so they deserve help, and I am very conscious of the fact that not enough has been done.

My philosophy has always been that a society can only progress if everybody progresses, that nobody is left behind, and nobody is disturbed or nobody falls below a certain line, become worse off as a result of other people going up, which is what is happening in the last few years. We have a lot of GDP growth, a lot of people have gone up, have become very rich — millions of dollars in bonuses. But look at those at the bottom. They have become worse off. So as a society, we are worse off.

Compare that to Tony Tan’s views about using the reserves, albeit in answer to a different question (at 28 min 24 secs):

I would be extremely careful about allowing any government of the day to use the [past] reserves. . . . The government should fund these projects from current reserves.

In my view, it is very important that candidates should be informing voters as much as possible of their thinking. It gives voters an idea how they will use their influence whenever circumstances merit it.

Another example I gave at the talk was that of the death penalty.

Shanmugam will say, I’m sure, as did the Supreme Court in a recent decision, that the president has no discretion when it comes to granting clemency; he must sign the execution warrant if the cabinet tells him to. But, I said to the audience, what if death penalty abolitionists manage to make unexpected progress over the next two years, and some time in the middle of the next president’s term, the government changes the law and gives true discretion to the president on appeals for clemency? Wouldn’t it be important that by then we have in place a president who would favourably consider clemency?

Therefore, wouldn’t it be important to know in advance, where each candidate stands on the death penalty?

The government would say that candidates talking about their view on the death penalty is off-topic, because the president has no discretion today, and if any candidate continues to talk about it, he is “over-promising”. The mainstream media would imply the same. But I say: No, that is not the case. Voters have a right to know as much as possible about the candidates in the event that one or other aspect of their personal philosophy becomes important in the future.

In short: Since, within the confines of the constitution, presidents have a little bit of influence, especially when expressed privately, therefore, voters deserve to know how each candidate intends to exercise that influence. So, if candidates talk about income distribution, death penalty, social safety nets — none of that is truly irrelevant, despite what the government would have us believe.

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In Part 2, I will touch on issues of Criticism and conflict, and Moral authority and leadership.