Why Tan Cheng Bock's appeal was dismissed: Textual Analysis of Arts 19B and 164

The issue before the court:

Is Parliament restricted to choosing from the terms of office of the Presidents elected directly by the citizens of Singapore, as the Appellant contends?

Textual analysis of the specific provisions in dispute: Arts 19B and 164

Art 19B(1) is crucial in that it introduces the concept of a reserved election. That is apparent from its title: "Reserved election for community that has not held office of President for 5 or more consecutive terms”.

Article 19B(1)

"if no person .... has held the office of President"

It speaks not of a President who was elected to the office but of one who has held the office.

This choice of words is potentially of wide application.

There are potentially two categories of persons it could cover:

those who have held the office in their own right, pursuant to an election;

and those who do not hold the office in their own right but exercise the functions and powers of the office for a time.

"for any of the 5 most recent terms of office of the President"

The "5 most recent terms of office” referred to here are those terms of office held by Presidents under the Constitution as it stands after the APPOINTED DATE (i.e. the date the 2016 Amendment came into effect).

The practical effect of this interpretation is that any term of office held by a President before the appointed date cannot be counted, as it would have been a term of the office of the President as it existed under a previous version of the Constitution, and not a term of the office of the President as it exists after the coming into effect of the 2016 Amendment.

Can the Government start counting the terms of office held by presidents before the 2016 Amendment?

This is where Article 164 comes in.

Art 164 is a transitional provision for Art 19B.

Article 164

What Art 164 does for Art 19B:

Art 164(1)(a) mandates that Parliament shall specify the "first term of office” to be counted for the purposes of determining a reserved election under Art 19B;

Art 164 clearly contemplates that Parliament may choose a term of office that commenced either before or after 1 April 2017 as the first term.

Thus it is clear from Art 164 that the Government can start to count the terms of office held by presidents before Constitution was amended in April 2016.

The Past 5 Presidents

Of the five terms of office of the President preceding the 2017 election, the following may be noted:

President Ong, President Nathan and President Tan each held office pursuant to elections held under the framework of the Elected Presidency as it was prior to the 2016 Amendment.

President Wee, alone in this group, held the office pursuant to an election by Parliament, under an even earlier iteration of the Constitution than his successors.

President Wee continued to hold the office after the Elected Presidency was introduced and a specific transitional provision, Art 163, was passed at that time that was of particular relevance and application to him alone.

Article 163, transitional provision. Applies only to Wee Kim Wee.

Art 163 applies only to President Wee, being the person who held the office of President immediately before 30 November 1991.

What this provision does is to make it clear beyond argument that:

(a) President Wee held the office of President;

(b) He continued to hold the office after the 1991 Amendment; and

(c) President Wee was the first President to exercise the enhanced powers of the Elected Presidency and was empowered to do so as if he had been elected by the citizens.

The FOCUS of Arts 19B and 164

The FOCUS of Arts 19B and 164 is on those who have held the office of President and not those who have been elected to that office in a particular way:

(b) Both before and after the introduction of the Elected Presidency framework, the President was elected, albeit initially by Parliament and only later by the citizens.

Nothing in the text or context of Arts 19B and 164 suggests any concern over or preoccupation with the method by which they were elected;

(c) Although President Wee was elected by Parliament, by virtue of Art 163, it was indisputable that he did, in fact and in law, hold the office under the framework of the Elected Presidency.

Conclusion

Chief Justice Sundaresh Menon summarised the appeal court's interpretation of the plain meaning of Arts 19B(1) and 164, having regard to the text of the provisions in their statutory context, as follows:

(a) The counting of "terms of office” under Art 19B(1) may include terms already served, as well as partial terms of office that were uncompleted.

(b) Art 164 allows Parliament to specify any of the past five terms of office of the President that immediately precede the 2017 election as the first term to be counted under Art 19B(1).

(c) The focus of Art 19B(1) is on those who have "held the office of President” without any distinction made in relation to the method by which they were elected.

(d) The definition of "President” in Art 2 applies to Arts 19B(1) and 164.

The reference to "this Constitution” refers to the Constitution as it has stood and as it stands from time to time since 9 August 1965 and in this particular context, it is the Constitution as it stood at the date of the election of each of the Presidents in question. H

ence, Presidents "elected under this Constitution” includes those elected by Parliament as well as those elected by the citizens.

(e) It was therefore open to Parliament to specify President Wee’s last term as the first term under Art 164 for the purposes of Art 19B.

To read the judgement in full:
http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/court-of-appeal-judgments/22934-tan-cheng-bock-v-attorney-general