President has executive authority

The Minister for Law in Singapore recently issued a statement. He noted,

"The Constitution clearly defines the role and scope of the President. He has custodial powers, not executive powers. In other words, he can veto or block Government actions in specified areas... The President’s veto powers over the Government are limited to specific areas:
(a) Protection of past reserves,i.e. reserves accumulated during previous terms of office of Government;
(b) Appointment of key personnel; and
(c) ISA detentions, CPIB investigations and any restraining order in connection with the maintenance of religious harmony."

The doctrine of the separation of powers, which is embedded in our Constitution and which our Judiciary has emphasised time and time again (most recently in the Court of Appeal case of Yong Vui Kong v Attorney-General [2011] SGCA 9), recognises three forms of powers:
a. legislative (the power to make law);
b. executive (the power to administer law); and
c. judicial (the power to interpret law).

What this underscores is that, in our democratic tradition, the Minister does not have the final say on matters of legal interpretation.

As such, this frees to me register my disagreement with the Minister’s statement by relying on what the Judiciary has ruled.

I accept that the Minister has correctly set out what the President can or cannot do. However, I cannot agree with the Minister’s analysis that the powers of the President are not executive.

Article 23(1) of the Singapore Constitution clearly vests executive authority of Singapore in the President.

Article 21 clarifies the manner in which this executive authority is exercised, which the Chief Justice has summarised in the Yong Vui Kong case as follows:

“In our legal order, no judge, in discharging his functions, is free to disregard fundamental principles of law. The principle that under the Singapore Constitution, the President must act on the advice of the Cabinet in all matters in the discharge of his functions, except where discretion is expressly conferred on him, is one such fundamental principle of constitutional law. This principle is set out in Art 21(1) read with Art 21(2) of the Singapore Constitution, and has been part of our constitutional order ever since Singapore attained internal self-government in 1959.”

The Chief Justice’s remarks should be read in the context of observations made by his predecessor in Constitutional Reference No 1 of 1995 [1995] 2 SLR 201.

In that decision, the former Chief Justice noted,

“The concept of an Elected Presidency was first proposed in the 1988 White Paper and subsequently refined in the 1990 White Paper. As evident from the titles of the White Papers, the Elected Presidency was designed primarily to meet two concerns of the Government, namely, how to ensure that no government, present or future, would squander the nation’s reserves and to ensure that the integrity of the public service would be preserved. The 1990 White Paper also identified three additional safeguard roles for the Elected President for which he would also be conferred discretionary powers. They were as follows:

(a) to give or refuse his concurrence to any decision by the minister to continue to detain a person under the Internal Security Act (Cap 143) made against the recommendation of an Advisory Board;

(b) to cancel or vary a restraining order made under the Maintenance of Religious Harmony Act (Cap 167A, 1991 Ed) where the minister acts contrary to the advice of the Presidential Council on Religious Harmony; and

(c) to concur with the decision of the Director of CPIB to proceed to investigate any minister for corrupt practices where the Prime Minister has refused his consent to such an inquiry or investigation.”

In light of these judicial pronouncements, it can be argued that the custodial or veto functions of the President represent an area of executive authority, where the President has been conferred discretion.

This discretion is subject, where applicable, to the mechanics laid out in the Constitution. Such discretion is not an exercise of legislative or judicial power; it is an exercise of executive power.

Happiness
Dharmendra Yadav

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