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What entrenching means

If no one understood the news reports on Law Minister K. Shanmugam’s reply to NMP Eugene Tan on not being able to activate a part of the Constitution, no one is going to blame you. It’s taken me some time to get to the bottom of it – and I am still not sure I’m right.

To re-cap, this is the question the NMP asked:

To ask the Minister for Law (a) what are the reasons for not bringing Article 5(2A) of the Constitution into force given that the constitutional amendment was first passed in 1991; (b) under what conditions will the Government be ready to bring Article 5(2A) of the Constitution into force; and (c) whether the Government will instead bring into force Article 5(2A)(b) and Article 5(2A)(d) to entrench the constitutional provisions relating to fundamental liberties and general elections respectively ahead of the constitutional provisions entrenching the elected presidency.

Now, what is this about exactly?

First, about this Article 5(2A).
This was introduced way back in 1991 when the elected presidency was put in place. And yes, it was a constitutional amendment which required a two-third majority in Parliament. It is basically an elaboration of the elected President’s powers.

So what is this Article?

Here it is in its unvarnished form:
A Bill seeking to amend any provision in this Constitution shall not be passed by Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of the elected Members of Parliament referred to in Article 39 (1) (a).
*(2A) Unless the President, acting in his discretion, otherwise directs the Speaker in writing, a Bill seeking to amend —
(a)this clause or Article 5A;
(b)any provision in Part IV;
(c)any provision in Chapter 1 of Part V or Article 93A;
(d)Article 65 or 66; or
(e)any other provision in this Constitution which authorises the President to act in his discretion,
shall not be passed by Parliament unless it has also been supported at a national referendum by not less than two-thirds of the total number of votes cast by the electors registered under the Parliamentary Elections Act (Cap. 218).

Still don’t understand?

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Basically, any change to the Constitution that affects fundamental liberties (very broad section which covers freedom of speech, religion, forced labour…) or to do the General elections (Article 65/66) and other money matters like use of reserves now requires two-thirds of Parliament to get passed. And then Presidential assent.

This Article adds another line of check: The G has to go to the PEOPLE as well in a referendum, UNLESS the President says No Need.

Now this particular Article has been passed, but is “not in force’’ or “entrenched’’. This means that it remains in the books, but is not “activated’’. Usually, all laws will come into force or “gazetted’’ with a date which states when this will start.

Interestingly, this is actually a a 1996 version. Yup, the 1991 version that was “not in force’’ was amended in 1996 and is still “not in force’’.

Of course, the question then is: why is it taking so long?

Apparently, there’s no set time between parliamentary approval, presidential assent and final force. It’s to up to the G.

According to the Minister, it hasn’t been “entrenched’’ because we’re still feeling our way about the powers of the presidency. So many amendments have been made since 1991 to the powers, the last one being in 2008 on the G’s ability to use the Net Investment Returns on Singapore’s reserves. In fact, there were eight years in which Parliament had to meet to agree on changes in the powers of the President, mostly in connection with financial safeguards and ability to veto key appointments.

Said Mr Shanmugam: “To bring Article 5(2A) into force before that would otherwise potentially trigger a national referendum each time we needed to make a further refinement or adjustment. Our view is that we should give ourselves more time, before entrenching the provisions.’’

His argument is that Singapore can expect to tweak the way it spends and invests over the next decade, since it has to cater for so many changes with an ageing population. Think G subsidies for health and so forth. It would tie the hand of the G significantly if it has to go to the people whenever it wants to make a change, like if it wants to raise taxes or the amount of NIR which can be used from the reserves.

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He added: “We must therefore preserve our ability to make necessary adjustments in due course, so that we can maintain Singapore’s strong financial position, and our fair and progressive system of taxes and transfers. For these reasons, it remains the Government’s intention not to bring Article 5(2A) of the Constitution into force until the position is clearer.’’

Okay, that looks clear enough.

But what of the NMP’s last question? If we don’t activate anything to do with spending/investment/appointments, we can surely do something about other sections, like the ones to do fundamental liberties and elections? There hasn’t been much, or even any change, on this front as related to the powers of the President as far as I can tell. The system of dissolving Parliament and holding elections has been in place since the last big change to introduce Group Representation Constituencies in 1988.

Mr Shanmugam chose to repeat what his predecessor said in 2007 in reply to this part: “As the previous Minister for Law explained, the Attorney-General had advised the Government that, having regard to the provisions concerned, that the implementation of Article 5(2A) cannot be staggered, as this would go against the intent that Article 5(2A) should operate as an integrated package.’’

Now what exactly did ex-Law Minister S Jayakumar say in 2007? I checked and interestingly, it was another lawyer-NMP, Thio Li-Ann who asked practically the same question as Mr Tan.

The question:
Whether Article 5(2A) of the Constitution which entrenches the elected presidency will be brought into operation soon and, if not, whether the Government will consider bringing into effect Article 5(2A) insofar as it entrenches basic constitutional provisions relating to general elections and fundamental liberties.

Prof Jayakumar gave somewhat similar answers on how the Presidential safeguards, particularly over finances, were still being refined. Hence, not yet time to entrench the provision. At that time, the issue was also over the use of NIR (then known as Net Investment Income). As for the section on elections and fundamentals, he didn’t say anything more than that this is was the AGC’s advice.

He did have this to say in closing though:
“Whether the Article is entrenched or not, the Government has made it a practice to always seek the President’s views whenever it intends to move Constitutional amendments that affect the relevant provisions. The President’s views have been reflected in the respective Second Reading speeches in this House. We have not made any amendments which the President had not agreed with, except once in 1995 when we referred a legal question to a Tribunal of Supreme Court judges set up under Article 100, which ruled in favour of the Government’s interpretation o f the Constitution.”

That was in the late Prez Ong Teng Cheong’s time – and a whole another story…

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So, that’s the background I’ve dug up.

Do NOT shoot the messenger.

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An ex-journalist who can't get enough of the news after being in the business for 26 years

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