Singapore’s Constitutional Commission: Altering the Elected Presidency to Ensure Multiracialism

In February 2016, and only for the second time since Singapore’s independence, the government convened a Constitutional Commission to consider changes to the constitution. Led by Chief Justice Sundaresh Menon, the commission was tasked to consider and recommend constitutional changes to safeguard minority representation in the Presidency. This was one of its three tasks, the other two of which were to review the eligibility criteria for presidential candidates and to review the framework governing the exercise of the President’s custodial powers, particularly the role and composition of the Council of Presidential Advisers (see its Terms of Reference).

Safeguarding minority interests as a necessary aspect of peaceful coexistence among the different racial groups is a frequent fixation of the government in multiracial Singapore. Demographic data in 2015 shows that persons of Chinese ethnicity constitute more than three quarters of the total citizen population (at 76.2%) while Malays form the largest minority at 15%, followed by those of Indian descent at 7.4%. Eurasians are classified along others as “Others”, which together constitute 1.4% of the citizen population. Indeed, the safeguarding of minority rights was also a concern for the first constitutional commission convened in 1965 and chaired by Singapore’s first post-independence Chief Justice Wee Chong Jin. That commission was tasked to consider how the rights of minorities can be adequately safeguarded in the Constitution. There, the Commission opted for a strong emphasis on equal individual rights for all. In recent years, however, there has been a shift from individual rights to protective measures aimed at groups. The Group Representation Constituency (GRC) scheme, for instance, is one such measure that the government adopted to ensure minority representation in Parliament. Under the scheme, certain constituencies are contested on a team basis in parliamentary elections with at least one member belonging to a designated minority group.

In its report released on 7 September 2016, the Constitutional Commission recommended a model of reserved elections for the presidency to safeguard minority rights. This means that if there has not been an office holder from a racial group for more than five consecutive terms of six years each, then only candidates from that particular group can contest the next election. While it was not within its Terms of Reference, the Commission also recommended that the presidency be reverted to its previously nominated, as opposed to elected, form as it opined that this was better suited for its symbolic function as a unifying figure for all races in Singapore. The government has, however, emphatically stated that this specific reversal is not an option.

By instituting safeguards for minority representation, the government seeks to reaffirm and strengthen the presidency’s symbolic function as a unifying figure for all racial groups in Singapore. However, this symbolic function sits uneasily with the elected nature of the presidency and changes to ensure that minority candidates would be elected as President would necessarily restrict political choice.

Background to the Elected Presidency

This recent exercise is yet another attempt by the Singapore government to tailor-make the political system to address identified deficiencies that arise from a purely majoritarian system. Singapore’s parliamentary democracy was modelled after the Westminster system. The Prime Minister is the head of government whereas the President is the head of state. Prior to 1991, the presidency was a ceremonial office where the President was nominated and confirmed by Parliament. The President then had limited powers and could exercise his discretion over three matters: the appointment of the Prime Minister; declaring the office of the Prime Minister vacant; and refusing a request to dissolve Parliament. In all other instances, he had to exercise his functions in accordance with the advice of Cabinet (article 21 of the Singapore Constitution). The office was changed to an elected one in 1991 when the government decided to grant additional custodial powers to the President which would allow him to exercise his discretion in four instances: (1) to withhold assent to drawdowns on past reserves; (2) to withhold assent to certain public appointments; (3) to exercise a swing vote in instances where the respective advisory bodies disagree with the Cabinet over detention orders under the Internal Security Act and restraining orders under the Maintenance of Harmony Act; and, (4) to give the go-ahead for investigations if the Director of the Corrupt Practices Investigation Bureau recommends the investigation but the Prime Minister has refused to give his consent. The exercise of his powers is subject to a fairly complicated framework whereby the President is at times required, at times permitted, to consult the Council of Presidential Advisers (CPA). Notably, the Constitutional Commission recommended that this framework be streamlined and the CPA’s role be strengthened.

Changing the office to an elected one was meant to endow the president with a mandate to disagree with the government should that scenario arise. Furthermore, to ensure that only sufficiently qualified persons are able to run for office and exercise these weighty functions, stringent eligibility criteria were put in place. A candidate not only has to be a Singapore citizen and at least 45 years old, he/she also has to have held a qualifying high public office for at least 3 years or have been chairman of the board of directors or CEO of a company with a paid-up capital of at least S$100 million. In addition, the candidates must also satisfy the Presidential Elections Committee that they are persons “of integrity, good character and reputation.”

While the impetus to create an elected, rather than nominated, office provide a strong mandate to the officeholder, there is a concern that free elections might make it more difficult to fulfil the presidency’s symbolic function as a unifying figure. This is because elections necessarily involve a degree of politicization as candidates have to campaign (and compete) for votes. Moreover, elections can be unpredictable. Since the office was changed in 1991, there have been two ethnically Chinese Presidents and one ethnically Indian President (who was elected unopposed twice). There has never been an ethnically Malay President. In contrast, under the previous arrangement, the presidency had by convention been rotated among the major racial groups. Majoritarian votes simply do not lead to such neat racial distribution and rotation.

Recommendations

In performing its functions, the Constitutional Commission sought to be consultative and inclusive. It invited representations from the public and received a total of 107 written submissions. Twenty contributors were invited to make oral representations to elaborate on or clarify their written submissions, of which 19 accepted the invitation. It can be said, that the representations suggested to the Commission four possible models: a group-representation team model, a pre-assigned rotational model, a hiatus-triggered model, and a combination of these.

First, the group-representation models drew inspiration from the GRC scheme. The group-representation model for the presidency would require candidates to run as a team comprising members of different ethnicities, with the running mate(s) either being installed as the Vice-President, Speaker of Parliament or as members/Chair of the CPA.

Secondly, under a pre-assigned rotational model, elections would proceed in a pre-determined order, with elections reserved for persons from a specific ethnic group. Thus, for example, elections could proceed on a three-term cycle, with the first term assigned to Chinese candidates, the second to Malay candidates, and the third to candidates from the Indian or other ethnic groups.

Thirdly, the hiatus-triggered model requires an election to be reserved for a particular group only if that group had not been represented in presidential office for a certain number of years. It is this model that the Commission ultimately favoured. It decided this on the basis of three key principles: that intervention should be minimal, that the measure should have an in-built mechanism that allows it to recede in significance and eventually be made redundant, and finally that the mechanism should not compromise the eligibility criteria that the candidates must otherwise satisfy. The Commission was particularly in favour of this model because it has a “natural sunset” character since the requirement of a reserved election would not be triggered if free elections produce at least one president from each ethnicity within the 30 year time-span.

The government has since responded in a White Paper accepting in principle the Commission’s recommendation for the hiatus-triggered model, although noting that some details had to be further determined. The changes will be enacted by way of a constitutional amendment bill when Parliament next sits.

Mitigating Racialized Voting: A Matter of Pre-emptive Political Calculation

There is no doubt that reforms to ensure minority representation (as well as to raise the eligibility criteria) would restrict political choices and modify the majority principle. However, the government has clarified that this is a “very necessary symbolism” of Singapore as a multiracial society.

Measures modifying the majority principle are generally premised on the idea that the particular social cleavage that it is aimed to overcome is a factor, if not the main factor, in how the electorate exercise political choices. This has become a contested premise in Singapore. Critics argue that safeguards to ensure minority representation are not necessary because there is no conclusive evidence that a candidate’s race would undermine his chances of being elected as President. Furthermore, there are concerns that introducing such a safeguard would reinforce racial differences rather than foster multiculturalism/multiracialism. Others however argue that while Singapore had made tremendous progress towards multiracialism, society has yet to reach the stage where one’s racial background would not affect his/her chances of being elected into public office.

Indeed, the government pointed to a recent survey of 2,000 Singapore citizens and permanent residents to reinforce its position that high levels of in-group preferences remain prevalent among Singaporeans, despite their stated commitment to the values of multiracialism. For instance, the survey suggested that most Singaporeans prefer someone of the same race to be Prime Minister or President. Furthermore, the survey shows that Chinese respondents were less accepting of a Singaporean Malay or Singaporean Indian becoming Prime Minister or President, than the other way round. Only 68% of Chinese respondents said they could accept an Indian President. The figure is lower when presented with a Malay President – only 59% of Chinese respondents said they could accept a Malay as President.

Determining Racial Identity: Risks of Rigidifying Difference

One noteworthy point about the Commission’s proposed reserved election mechanism is that it employs existing racial classification used by the government – what is known as the CMIO (Chinese, Malay, Indian, and Others) classification – which might risk further perpetuating racial differences. Like the GRC scheme, which employs the same classification, the new mechanism attaches political consequences on a person’s eligibility to stand for political office. This is even though the government has sought to distance itself from the exercise of determining one’s racial identity by making it dependent on a two-fold criteria – self-definition and community acceptance. For instance, the Parliamentary Elections Act establishes a Malay Community Committee and an Indian and Other Minority Communities Committee tasked with the function of certifying whether a person belongs to the Malay community or Indian/Other minority communities respectively. The Constitutional Commission recommends adopting the same mechanism.

There is, as yet, no reported instance of a dispute arising between a person seeking certification as a minority candidate and the respective committees. This could perhaps be because a candidate’s racial identification is commonly accepted as the one stated in his/her official records. However, in a presidential election, the chances of disputes arising may be higher since the stakes are higher: there is only one presidential office, whereas there are many non-reserved parliamentary seats that one can contest. Furthermore, with inter-ethnic marriages rising steadily over the years – they accounted for about 20% of all marriages in Singapore in 2014 – there is a need to consider how to approach mixed race candidates. This is especially since the government now allows double-barrelled identification of race in one’s official records.

While it is true that one is required to choose a dominant race, it does not ipso facto mean that one could not identify as being part of the non-dominant race and could also be accepted by that community as part of it. For instance, while a person of Malay-Indian heritage may choose Malay as her dominant race for official purposes, she may still have close ties with her Indian heritage and could possibly be accepted by the Indian community as part of the community. Under those circumstances, one could contest a reserved election on the basis of a racial identity that is not specified as the dominant one in official records. This may well be a necessary outcome if the government is not to be seen as being too interventionist in imposing a particular racial identity upon its citizens. But more importantly, as racial identifications become more complex, minority representation schemes like the GRC and the hiatus-triggered reserved election may well become anachronistic features that risk holding back society from overcoming its racial divides. This is something that future governments have to guard against. 

Conclusion: From Minority Representation to Multiracialism

In conclusion, while the reserved election may be the best proposal forward at this point in Singapore’s history, there is a need to ensure that it does not perpetuate or deepen racial cleavages. In this regard, the Constitutional Commission’s conscious adoption of the term “multiracialism’ as opposed to ‘minority representation’ and in couching its proposal in race-neutral terms are welcome symbolic shifts. They de-emphasize majority-minority differences in favor of equal coexistence. The government is right to accept this change in its White Paper. That said, the proposed changes can only do so much to improve racial relations in Singapore. More needs to be done to address the root causes of racialized-thinking and to overcome racialized voting. Ultimately, the best outcome for Singapore would be for reserved elections to become entirely redundant.

Dr. Jaclyn L. Neo is an Assistant Professor at the National University of Singapore’s Faculty of Law. She writes on constitutional law and human rights, including examining constitutional arrangements that seek to accommodate racial and religious diversity. She and her co-author were among those invited to make representations before the Constitutional Commission.