Is the AG the best person to decide on election laws?

Is the AG the best person to decide on election laws?
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Former presidential candidate Tan Cheng Bock said in a press conference today (31 Mar) that the upcoming presidential election should be an open election which candidates from all races can contest; and not one reserved for Malay candidates. In particular, he questioned the Government’s decision to include the term of former president Wee Kim Wee in deciding when to trigger a reserved election.

His public comments came nearly 5 months after the Lee Hsien Loong’s Government decided to change the eligibility criteria for presidential candidates. One of the key changes is to let a minority candidate become the president when no one from his or her racial group has been elected president in five terms.

PM Lee has already said that this year’s PE will be reserved for Malay candidates as there has not been a Malay president since Yusof Ishak, Singapore’s first president. He counted the five terms from Mr Wee’s term, on the “advice” of Attorney General Chambers (AGC).

Dr Tan said, “In all my years in Parliament, we have always referred to Mr Ong Teng Cheong as the first elected president.”

The late Mr Ong came after Mr Wee with the rest as follows:
* Wee Kim Wee
* Ong Teng Cheong
* SR Nathan
* Tony Tan
* New Malay President commencing 2017 (?)

So, if one was to count Mr Ong as the first elected president, the 5-term condition for a “reserve election” to enable a minority candidate to become the president this year would not apply.

As much as Dr Tan tries to make his point, looking at past actions by Singapore’s AGC however, it appears that Dr Tan’s effort in trying to change AG’s mind will remain futile.

In 1997 during the general election that year, it was reported that then PM Goh Chok Tong, DPM Lee Hsien Loong and DPM Tony Tan had been present inside polling stations at Cheng San, a hotly contested GRC, when the laws prohibit any unauthorised persons, especially other non-involved candidates, from entering polling stations other than to vote. This is to prevent the influencing of voters’ decision at the polling stations. WP lost Cheng San to PAP narrowly in that election.

When police reports were made against the PAP candidates, then AG Chan Sek Keong decided that the PAP candidates did not break the Parliamentary Elections Act and hence, did not charge them.

Later, the opposition debated the issue in Parliament again and AG Chan submitted the following letter to Law Minister S Jayakumar to explain his interpretations of the law and why he did not charge the unauthorised PAP candidates inside the polling stations.

AG Chan wrote, “The question is whether it is an offence under the Parliamentary Elections Act for an unauthorised person to enter and be present in a polling station.”

Section 82(1)(e) provides that – “No person shall loiter in any street or public place within a radius of 200 metres of any polling station on polling day.”

And this was how AG Chan explained his interpretations:

“Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station. A polling station must have adequate space for the voting to be carried out. Any space has a perimeter. The words ‘within a radius of 200 metres’ therefore mean ‘200 metres from the perimeter of’ any polling station.”

“The polling station, as a place, is distinguished from a street or public place. It is not a street or a public place. Hence, being inside a polling station cannot amount to being in a street or in a public place. By parity of reasoning, loitering in a street or public place cannot possibly include loitering in the polling station itself and vice versa.

“Waiting outside a polling station is made an offence because it gives rise to opportunities to influence or intimidate voters… Hence, the Act has provided a safety zone which stretches outwards for 200 metres from the polling station. In contrast, the possibility of a person inside a polling station influencing or intimidating voters in the presence of the presiding officer and his officials, the polling agents etc was considered so remote that it was discounted by the Act.”

“I therefore confirm my opinion that the Parliamentary Elections Act does not provide for any offence of unauthorised entry into or presence within a polling station. Accordingly, those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act.”

AG Chan served as the third Chief Justice of Singapore in 2006, holding office until 2012. He was the AG from 1992 to 2006.

In any case, Dr Tan has called for the interpretation of the new Presidential Election laws, especially on the definition of “elected president” to be reviewed by an open court.

The call has been echoed by others, including human rights advocate, M Ravi, who posted on his Facebook page following Dr Tan’s press conference.

“I feel it would be right for His Excellency Mr Tony Tan to exercise his powers vested under Article 100 of the Constitution of the Republic of Singapore to direct that a constitutional Court be convened to determine the matter,” Mr Ravi said.

“Its a golden opportunity for Cabinet to resolve the matter by advising the President to refer to the Tribunal for an opinion on the subject matter in question. Otherwise, it is open to Tan Cheng Bock and interested citizens to challenge the validity of the upcoming Presidential Elections in court.”

Dr Tan himself has asked if the AG is the right person to determine the law in this case.

“After all, the Courts have the final say on legal issues in Singapore,” he said. “And a recent high profile Court of Appeal case has shown that the AGC is not always correct in their legal opinion.”

It is unclear which “recent high profile case” Dr Tan is referring to but in January the Court of Appeal struck down the Government’s claims in the case involving the Protection from Harassment Act which the AGC had brought against The Online Citizen website and Dr Ting Choon Meng.

The AGC had argued that the Government was a “person” who qualified for protection under the said Act.

“If the Government double-checks the AGC’s advice with the Court, then Parliament and the people of Singapore can be satisfied beyond doubt that the constitutional changes they are making stand on strong legal foundations,” Dr Tan said.