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By Dr Jaclyn L. Neo
For the first time since its independence in 1965, Singapore has a female President. Madam Halimah Yaacob was sworn in as the country’s 8th President on 14 September 2017. She is also Singapore’s first Malay President since the presidency was changed from a nominated office to an elected one in 1991.
Several constitutional changes led up to Madam Halimah’s election. The first took place in 1991, when the Presidency was changed to an elected office. This change was justified on the grounds that the President needed a democratic mandate to wield additional constitutional powers. Under the British Westminster parliamentary system, after which Singapore’s political system is modelled, the head of state is mostly a ceremonial position. Accordingly, Singapore’s President only had limited discretionary powers, i.e. over 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, Article 21 of the Singapore Constitution explicitly stated that the President had to exercise his functions in accordance with the advice of Cabinet.
However, the 1991 changes to the constitution departed from the President’s largely ceremonial role and granted the President additional powers that were characterized as ‘custodial’ in nature. The President gained constitutional powers 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 decide over preventive detention orders under the Internal Security Act and restraining orders under the Maintenance of Harmony Act where the cabinet disagreed with the recommendations of the respective advisory bodies; and, (4) to grant approval for corruption investigations where the Prime Minister refuses to do so.
The stated aim of the 1991 changes was to strengthen checks and balances within the government. Stringent eligibility criteria were put in place to ensure that only ‘sufficiently qualified’ persons run for office. Eligible candidates would have to have served for a period of time in identified positions within the public sector (e.g. as Cabinet Minister, Speaker of Parliament, Attorney-General, Chief Justice, etc.), or in a leadership position in a high-value company.
The second set of important changes to the Presidential scheme came in 2016 after a Constitutional Commission was convened to consider and recommend changes to “safeguard minority representation in the Presidency”. This is in addition to its two further tasks of reviewing the qualifying process and the framework governing the exercise of the President’s custodial powers. The Commission’s recommendations to address minority representation has the most radical impact on the electoral process for the Presidency. To safeguard minority representation, the Constitutional Commission recommended a “reserved election scheme” whereby certain elections would be reserved for candidates from specified ethnic backgrounds.
This reserved election (also called the “hiatus-triggered” election) is a unique constitutional innovation. According to it, if no person belonging to a specified ethnic community has held the presidency for any of the 5 most recent terms of office, the next elections would be reserved for candidates from that community. Per the recommendation, government introduced a bill amending the constitution instituting these changes. The Bill was passed by Parliament on 9 November 2016.
These changes meant that the 2017 presidential election was reserved for Malay candidates because Presidents in the preceding five terms had been only of Chinese and Indian/Other races. The reserved elections scheme sought to ensure that the Presidency would be represented among the major ethnic groups in Singapore: the Chinese, Malay, and an agglomeration of Indian or Other minority groups. The categorization is based on existing dominant categories that the government uses to classify Singaporean society. Using this categorization, as of end-June 2017, the Chinese population formed 74.3% of the resident population of Singapore, the Malay community 13.4%, Indian community 9%, and others 3.2%.
The 2016 changes were not the first time that Singapore had modified its electoral system to ensure minority representation: in 1988, the government introduced the Group Representation Constituency (“GRC”) scheme used the same classification scheme was used for the GRC. The GRC scheme requires that in a team of candidates running in a group constituency, at least one of the candidates must come from a minority Malay or Indian/Other background. (Notably, the Indian and Other communities tend to be grouped together because of their relatively smaller numbers.) The GRC scheme was similarly justified as necessary to ensure minorities are represented in Parliament.
The 2016 amendments to the Presidential elections adopted the GRC’s two-fold test of self-identification and community acceptance to determine whether a candidate is from a relevant minority background. It stipulates that a person is from the community if he/she considers himself/herself to be a member of that community (‘self-identification’) and if he/she is generally accepted as a member of the community by that community (‘community acceptance’). Community committees were set up to decide on the latter.
The two-fold test insulates Parliament from having to provide a substantive definition of ethnicity. Indeed, defining who is Malay is a potential minefield that early constitutional thinkers in Singapore had refrained from addressing: the first constitutional commission, tasked in 1966 to consider how to ensure adequate safeguards for the rights of racial, linguistic, and religious minorities, declined to incorporate a definition of Malay into the Singapore constitution. A proposal was made to include a definition of Malay based on Article 160(2) of the Malaysian constitution, which states that “Malay means a person who professes the Muslim religion, habitually speaks the Malay language and conforms to Malay custom”. The commission found the definition over-inclusive because it would include all persons who satisfied those criteria but who are not of the Malay race. It was also under-inclusive because it would exclude persons of the Malay race who choose to renounce Islam.
These difficult definitional issues were however raised in public discussions leading to the 2017 presidential elections, with commentators debating how to define ‘Malayness’ or, even more controversially, who is an authentic Malay. At a public forum, one commentator suggested adopting a definition based on religion, language, and culture that was identical to the definition rejected by the 1966 Constitutional Commission. This was not merely a theoretical debate but would have impacted the question as to whether candidates who had declared themselves to be members of the Malay community would qualify. One aspiring candidate’s identity card stated that his race is Pakistani, whereas Madam Halimah and another candidate have fathers of Indian origin. A definition based on religion (Islam), language (Malay language), and culture would probably encompass all three candidates, though the under-inclusive aspect of the definition with respect to ethnic Malays who are not Muslims remain unresolved.
In the end, as a former speaker of Parliament, Madam Halimah was the only candidate to receive a certificate of eligibility to contest the elections. The two other candidates who declared themselves to be of Malay ethnicity did not satisfy either the public-sector or private-sector requirements. Notably, they were not denied certificates on ethnic grounds. Two additional applicants did not receive certificates of eligibility because they did not declare themselves to be members of the Malay community.
The current heightened focus on defining ethnicity is an uncommon phenomenon in Singaporean society. Even though the GRC had also made ethnicity a condition of political candidature, the two-fold test was presumably successful in avoiding definitional disputes since it determined candidacy for parliamentary seats, which are many. Even if one did not qualify as a minority candidate in a GRC, this would not preclude one from running as a non-minority candidate. The reserved elections however raise the stakes on ethnic identity as there is only one office of the President. If one does not qualify as an ethnic candidate in a reserved election, one would be precluded from that election cycle and have to wait for the next cycle or later to contest the presidency.
In conclusion, the injection of ethnicity as a criteria for candidacy for the office of the President has inevitably brought to fore a difficult dilemma. On the one hand, there is a legitimate desire to ensure community representation in a multi-ethnic polity, including power sharing at the elite level. On the other hand, there is an invariable difficulty of defining ethnic identity while not over-emphasizing difference. It remains to be seen how these difficult issues will be navigated in future presidential elections in Singapore.
Dr. Jaclyn L. Neo is an Assistant Professor at the National University of Singapore’s Faculty of Law. She co-authored written representations to the Constitutional Commission and were among those invited to make oral representations before the Constitutional Commission.