Istana]], the official residence of the President of Singapore, photographed in January 2009
The powers of the President of Singapore are divided into those which the largely ceremonial President may exercise at his own discretion, and those he must exercise in accordance with the advice of the Cabinet of Singapore or of a Minister acting under the general authority of the Cabinet. In addition, the President is required to consult the Council of Presidential Advisers (CPA) when performing some of his functions. In other cases, he may consult the CPA if he wishes to but is not bound to do so.
In 1991 the Constitution of Singapore was amended to transform the office of President, which was previously indirectly elected by Parliament into an office directly elected by the people. The amendment conferred on the President certain executive functions to block attempts by the government of the day to draw down past reserves that it did not accumulate. Thus, a guarantee may only be given or a loan raised by the Government if the President concurs, and his approval is also needed for budgets of specified statutory boards and Government companies that draw on their past reserves. The President also possesses personal discretion to withhold assent to any bill in Parliament providing directly or indirectly for the direct or indirect variation, changing or increase in powers of the Central Provident Fund Board to invest moneys belonging to it; and the borrowing of money, the giving of any guarantee or the raising of any loan by the Government if in the President's opinion the bill is likely to draw on reserves not accumulated by the Government during its current term of office. In addition, the President may withhold assent to any Supply Bill, Supplementary Supply Bill or Final Supply Bill for any financial year if in his opinion the estimates of revenue and expenditure, supplementary estimates or statement of excess are likely to lead to a drawing on past reserves.
The President is also empowered to approve changes to key civil service positions, such as the Chief Justice, the Attorney-General, the chairman and members of the Public Service Commission, the Chief of Defence Force and the Commissioner of Police. He also appoints as Prime Minister a Member of Parliament (MP) who, in his personal judgment, is likely to command the confidence of a majority of MPs. The President has certain powers of oversight over the Corrupt Practices Investigation Bureau and decisions of the Executive under the Internal Security Act and the Maintenance of Religious Harmony Act.
The term of office of the first popularly elected President, Ong Teng Cheong (1993 1999), was marked by differences between him and the Government concerning the extent of his discretionary fiscal powers. Discussions culminated in the Government issuing a non-binding white paper entitled The Principles for Determining and Safeguarding the Accumulated Reserves of the Government and the Fifth Schedule Statutory Boards and Government Companies (1999). In 2009, the Government requested approval from President S.R. Nathan to draw S$4.9 billion from past financial reserves in order to meet current budget expenditure, the first time it had done so. The sum was used to fund the Government's Resilience Package consisting of two schemes aimed at preserving jobs and businesses during the financial downturn.
Grant of powers to the President
Tony Tan Keng Yam, the President of Singapore since 1 September 2011
Before 1991, the Constitution of Singapore contained no provisions preventing the Government from squandering the nation's financial reserves and leaving it economically ruined. There were also no safeguards against the Government appointing unsuitable persons to important civil service positions. The Government concluded that a constitutional safeguard was necessary in order to preserve both the integrity of the public service, as well as Singapore's reserves which should be prevented from falling into the hands of a future irresponsible government.
The Government took the view that the safeguards could be achieved by providing the direct election of the President, thus making the President directly accountable to the people, and enabling him to serve as a check against the Government by increasing his discretionary powers. By the Constitution of the Republic of Singapore (Amendment) Act 1991, the President was conferred certain executive functions to block attempts by the government of the day to draw down past reserves that it had not accumulated, and to approve changes to key civil service positions. He also had certain powers of oversight over the Corrupt Practices Investigation Bureau and decisions of the Executive under the Internal Security Act and the Maintenance of Religious Harmony Act.
The office of the President is one of Singapore's most heavily altered institutions, and it is still being re-made today. As of 2007, almost one-third of all the constitutional amendments since Singapore became independent in 1965 consisted of changes to the President's office. Approximately half of the amendments implemented were to alter the President's fiscal powers.
The powers of the President are divided into those he may exercise in his own discretion, and those he must exercise in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet. In addition, the President is required to consult the Council of Presidential Advisers (CPA) when performing some of his functions. In other cases, he may consult the CPA if he wishes to but is not bound to do so.
The CPA consists of six persons, two appointed at the personal discretion of the President, two on the advice of the Prime Minister, one on the advice of the Chief Justice, and one on the advice of the Chairman of the Public Service Commission. The President also acts in his discretion to appointment one of the members of the Council as chairman. As at 16 June 2010, the Chairman of the CPA was Joseph Yuvaraj Pillay, Chairman of the Singapore Exchange, and the other members were Po'ad bin Shaik Abu Bakar Mattar, former Chief Justice Yong Pung How, former Government minister S. Dhanabalan, former Supreme Court judge Goh Joon Seng, and Bobby Chin Yoke Choong. The CPA conducts proceedings in private, and its members are required to take an oath of secrecy.
Powers exercisable by the President
||Provisions of Constitution
||Whether personal discretion
||Whether CPA must be consulted
|Withholding of assent to bill varying, changing or increasing powers of Central Provident Fund Board to invest moneys belonging to it
||Arts. 21(2)(c), 22E
|Withholding of concurrence to guarantee or loan given or raised by Government; and withholding of assent to bill for borrowing of money, giving of guarantee or raising of loan by the Government if likely to draw on reserves not accumulated by Government during current term of office
||Arts. 21(2)(c) and (d), 144 (1) and (2)
|Withholding of assent to Supply Bill, Supplementary Supply Bill or Final Supply Bill for any financial year if estimates of revenue and expenditure, supplementary estimates or statement of excess likely to lead to drawing on reserves not accumulated by Government during current term of office
||Arts. 21(2)(c), 148A
|Withholding of concurrence and approval to appointments and budgets of statutory boards and Government companies specified in Fifth Schedule to Constitution
||Arts. 21(2)(e), 22A, 22C
|Disapproval of proposed transactions of specified statutory boards and Government companies, or Government itself, likely to draw on reserves accumulated by board, company or Government before Government's current term of office
||Arts. 21(2)(f), 22B(7), 22D(6), 148G
|Concurring with advice of Minister for Finance on long-term real rates of return expected to be earned on assets so equivalent amount may be excluded from reserves not accumulated by Government during current term of office
|Concurring with Parliament to authorize expenditure by resolution approving estimates containing a vote on account before passing of a Supply law for a particular year, or by resolution approving a vote of credit because of magnitude or indefinite character of any service or in circumstances of unusual urgency
|Powers relating to key office holders
|Appointing the Prime Minister
||Arts. 21(2)(a), 25
|Refusing to make or revoke an appointment to specified key offices (for instance, the Chief Justice, the Attorney-General, the chairman and members of the Public Service Commission, the Chief of Defence Force and the Commissioner of Police) if the President does not concur with the advice or recommendation of a relevant authority that he is required to consult
||Arts. 21(2)(i), 22
|Appointing chairman and members of advisory board constituted to determine if person should continue to be preventively detained without trial for security reasons
||No, but must consult Chief Justice before appointing members other than chairman
|Withholding of consent to a request for dissolution of Parliament
||Arts. 21(2)(b), 65(3)
|Withholding of assent to bill seeking to circumvent or curtail President's discretionary powers, whether this proposes to amend the Constitution or relates to ordinary legislation
||Arts. 5A (not yet in force), 21(2)(c), 22H
|Withholding of concurrence in relation to the detention of person under law passed against subversion
||Arts. 21(2)(g), 151(4); Internal Security Act, s. 13A
||No, but must consider recommendations of advisory board considering detainee's representations against detention
|Cancelling or confirming restriction order under Maintenance of Religious Harmony Act, if Cabinet's advice contrary to recommendation of Presidential Council for Religious Harmony
||Arts. 21(2)(h), 22I; Maintenance of Religious Harmony Act, s. 12.
||No, but must consider recommendations of Presidential Council for Religious Harmony
|Directing that any bill seeking to amend specified clauses of the Constitution shall not be passed by Parliament unless supported at national referendum by not less than two-thirds of total number of votes cast by electors
||Arts. 5(2A) (not yet in force), 21(2)(i)
|Concurring with Director of the Corrupt Practices Investigation Bureau for investigation to take place even if Prime Minister refuses consent for Director to investigate
||Arts. 21(2)(i), 22G
|Appointing two members of CPA, and a member of the Council as chairman
||Arts. 21(2)(i), 37B(1)(a) and (2)
|Granting of pardons and reprieves for offences or execution of sentences, and remissions of sentences
|Referring question as to effect of provision of Constitution to tribunal of Supreme Court judges for opinion
|Issuing Proclamations of Emergency and promulgating emergency ordinances
statutory boards]] and Government companies that are likely to draw on past reserves. The Monetary Authority of Singapore, photographed here in September 2009, is one such statutory board.
As the fiscal guardian for the nation's past reserves (that is, reserves not accumulated by the Government during its current term of office), the President's concurrence is required for a number of financial transactions that the Government may wish to enter into. A guarantee may only be given or a loan raised by the Government if the President concurs, whether the transaction is authorized by a resolution of Parliament or is made under one of eight specified statutes. The President's approval is also needed for budgets of specified statutory boards and Government companies that draw on their past reserves. The statutory boards that come under the President's purview are the Central Provident Fund Board (CPF Board), the Housing and Development Board, JTC Corporation and the Monetary Authority of Singapore, while the Government companies are the Government of Singapore Investment Corporation Pte. Ltd., MND Holdings Pte. Ltd., and Temasek Holdings Pte. Ltd. Before the start of its financial year, every statutory board and the board of directors of every Government company must present its budget for that financial year to the President, together with a declaration by the statutory board's chairman and chief executive officer (CEO), or the Government company's chairman of the board of directors and the CEO, as to whether the budget is likely to draw upon past reserves. If so, the President may exercise personal discretion to disapprove the budget. If he approves the budget even though he is of the opinion that the budget is likely to draw upon past reserves, the decision and opinion must be published in the Government Gazette. Similarly, statutory boards and Government companies are bound to inform the President of financial transactions that are likely to draw on past reserves, and the President has a personal discretion as to whether such transactions should be approved.
In addition, the President possesses personal discretion to withhold his assent to any bill in Parliament providing directly or indirectly for:
- the direct or indirect variation, changing or increase in powers of the CPF Board to invest moneys belonging to it; and
- the borrowing of money, the giving of any guarantee or the raising of any loan by the Government if in the President's opinion the bill is likely to draw on reserves not accumulated by the Government during its current term of office;
The President may withhold assent to any Supply Bill, Supplementary Supply Bill or Final Supply Bill for any financial year if in his opinion the estimates of revenue and expenditure, supplementary estimates or statement of excess are likely to lead to a drawing on past reserves. However, if his decision to do so is contrary to the CPA's recommendation, the refusal to concur may be overridden by a Parliamentary resolution passed by not less than two-thirds of all the elected Members of Parliament (MPs).
Changes to the President's financial powers
Transfer of surpluses from statutory boards and Government companies
Initially, the President had the power to disapprove transactions that were likely to draw on reserves, including all transfers of funds from the Government, and from statutory boards and Government companies specified in the Fifth Schedule to the Constitution, to any other entity within or outside that group. In 1994, the Constitution was amended to allow statutory boards and Government companies to transfer their reserves to the Government, provided that the Minister for Finance gave a written undertaking that these sums would be added to past reserves. This effectively excluded such transfers from the President's scrutiny while at the same time adding an additional safeguard in the form of the Minister's undertaking.
The Constitution was further amended in 2002, allowing a transfer or proposed transfer of reserves between statutory boards upon the passing of a resolution by the statutory board to add those reserves to its past reserves. Finally, following amendments in 2004, statutory boards and Government companies are now allowed to transfer their surpluses either to the Government or to each other without the President's scrutiny. A new Article 148I was also added, enabling the Government to transfer its past reserves to any statutory boards and Government companies without the President's consent.
Removal of Singapore Technologies and POSB from Constitution
Singapore Technologies (now ST Engineering) was formerly a Government company and the Post Office Savings Bank (POSB, now POSBank) a statutory board the budgets of which were under the President's scrutiny. They were removed from lists of statutory boards and Government companies in the Fifth Schedule to the Constitution in 1994 and 1998 respectively. The change of status of POSB allowed for its sale to DBS Bank to be effected without the President having to be informed of the matter.
Removal of veto powers over defence and security measures
A provision, Article 151A, that was inserted into the Constitution in 1994 removed the President's veto powers over "any defence and security measure". A defence and security measure is defined as
When proposed in Parliament, the change was met with strong criticism from legislators on the ground that the provision was so wide that made it open to abuse by unscrupulous politicians. Nominated Member of Parliament (NMP) Walter Woon argued that such a change would make it too easy for a rogue government to circumvent the constitutional safeguards since "national security" was "such a wide thing that it would be possible to fit any sort of handouts within the rubric". The Government's response was that since it was the Prime Minister and Cabinet's job to decide whether Singapore goes to war, they must have the full powers to execute such a decision and Singapore cannot risk a tussle between the Prime Minister and the President.
Changes to the Monetary Authority of Singapore Act
Before 30 June 2007, the Monetary Authority of Singapore (MAS) could only purchase and sell securities authorized by the President and with the recommendation of the Authority's board of directors. Following a 2007 amendment to the Monetary Authority of Singapore Act, the President's approval was no longer required. The reason for the change cited by the Minister for Trade and Industry Lim Hng Kiang was that since the range of new securities and assets was getting wider and more complex, this made it "very cumbersome" for the President to have to approve every new recommendation for such purchases.
Changes in the definition of net investment income
The President's scope of scrutiny over Singapore's net investment income (NII) derived from both current and past reserves depends on whether such NII is considered "past reserves". The Constitution was amended in 2001 to state that all the NII in a financial year certified by the Government to be derived from its current reserves (that is, reserves accumulated by the Government during its current term of office) returns to current reserves. If no certification is made, at least 50% of the NII of the financial year derived from past reserves has to be classified as past reserves. These changes, however, do not apply to the NII earned by specified statutory boards and Government companies. Their NII is considered as part of normal income and is excluded from the President's scrutiny.
Differences between Government and first directly elected President
Prime Minister]] Goh Chok Tong in June 2001
On 2 September 1993, Ong Teng Cheong became Singapore's first directly elected President. During his term of office, some differences arose between him and the Government concerning the extent of his discretionary fiscal powers. At a press conference on 16 July 1999, the President announced he would not be seeking re-election, and referred to what he termed a "long list" of problems he had experienced when trying to protect the nation's past reserves. In particular, he mentioned:
- that the Accountant-General had informed him it would take 52 man-years to provide him with a list of the Government's physical assets;
- an "unpleasant" encounter in which he had felt compelled to withhold approval of the budget of the Central Provident Fund Board (CPF Board) as it would have drawn on its past reserves;
- a disagreement regarding whether net investment income (NII) should be treated as current or past reserves; and
- his "disappointment" that the Government had changed its treatment of NII so as not to require him to approve the use of past reserves to finance its package of cost-cutting measures aimed at combating the effects of the 1997 Asian Financial Crisis.
The Minister for Finance Richard Hu Tsu Tau and the Prime Minister Goh Chok Tong made ministerial statements in Parliament on 17 August 1999 explaining the Government's views on the points raised.
- Access to information
In order to exercise his constitutional functions, the President is entitled to request for information about the Government which is available to the Cabinet, and about the statutory boards and Government companies listed in the Fifth Schedule to the Constitution which is available to the board's members or the company's directors. The President may also ask any Minister, senior officer of a ministry or a government department, CEO and members of the governing board of a statutory board, and directors of any Government company to furnish information concerning the reserves of the Government, a statutory board or a Government company. At a meeting with the Accountant-General in August 1996, the President, having been given a list of the Government's physical assets, had commented that the monetary value of the assets should have been stated. The Accountant-General had then stated it would take 56 (not 52) man-years to value the properties.
The Minister for Finance explained that his Ministry had asked the Attorney-General to advise it as to whether such a valuation was necessary. The Attorney-General's Chambers subsequently stated that the Constitution did not require Government property to be revalued, as the issue of whether past reserves were being drawn upon did not arise unless ownership of a piece of property was about to be transferred. In addition, a revaluation would lead to unnecessary expense since much state land would remain as such, and the value of each piece of land depended on planning and zoning restrictions which the Government could change.
- Withholding of approval for CPF Board's budget
In December 1996, the CPA informed the President that for 1997 the CPF Board had budgeted for capital expenditure of S$27 million, which exceeded its operating surplus of $23 million. Although the intention was for the excess of $4 million to be funded out of the Board's accumulated surpluses, because a general election was due in 1997 the Board's accumulated surpluses would become past reserves and require the President's approval to be drawn upon. The Government explained that the CPF Board's accounts were prepared on an accrual basis. Thus, capital expenditure was depreciated over the useful life of each asset and not indicated as a lump sum in the year of expenditure. The Board's operating surplus of $23 million had been computed on the basis of annual depreciation of $11 million being charged against the year's income. Hence, no drawdown on past reserves was required. The President expressed concern that accrual accounting would "allow a profligate Government to hide its lavish spending under the guise of capital expenditures". The Government disagreed, taking the view that accrual accounting was well established.
- Definition of net investment income
The President informed Government that he had been told that net investment income (NII) should be classified as current reserves, though he was not certain as he was not an accountant. The Government, having taken the Attorney-General's advice on the matter, said that NII was correctly treated as current income, as it is the interest and dividend income earned from investing the Government's reserves, less expenses on investment and debt servicing. It does not include capital gains or losses from the disposal of investments, which are regarded as investment adjustments. Since the Constitution provides that the President has only custodial powers over past reserves, these powers do not extend to NII as they are accumulated during the current term of office of the Government, even when the NII stems from the investment of past reserves that are themselves "locked up". Nonetheless, the Government would take into consideration a suggestion from the President and the CPA to lock away half of the NII derived from past reserves as past reserves. In 2001, as indicated above, the Government amended the Constitution to redefine how NII should be treated.
- Government's change in treatment of NII
Finally, the Government disagreed with the President that it had changed the way it treated NII. Furthermore, it had not been necessary to ask him to sanction the use of past reserves for its financial packages and the budget deficit as it had enough budget surpluses built up within its current term of office.
Following discussions between the President and the Government, in 1999 the Government issued a non-binding white paper entitled The Principles for Determining and Safeguarding the Accumulated Reserves of the Government and the Fifth Schedule Statutory Boards and Government Companies. Speaking in Parliament on 17 August 1999, the Prime Minister said:
Six months after his term of office ended, Ong gave an interview to Asiaweek magazine, during which he reiterated that he had only been given an incomplete list of the Government's immovable assets halfway through his term. In addition, he claimed not to have been informed about "some ministerial procedures" as he had learned of the sale of the assets of the Post Office Savings Bank, a statutory board the reserves of which he was supposed to protect, to DBS Bank from the newspapers instead of being informed first. He mentioned: "[the Prime Minister] said that my statements, and his rebuttal in parliament, were probably a good thing. They showed the transparency of the system. I stand by what I said."
First use of financial powers
In January 2009, the Government requested approval from President S.R. Nathan to draw $4.9 billion from past financial reserves in order to meet current budget expenditure, the first time it had done so. The sum was used to fund the Government's Resilience Package consisting of two schemes aimed at preserving jobs and businesses during the financial downturn: the Jobs Credit scheme, which provided employers with financial assistance to pay employees' salaries; and the Special Risk-Sharing Initiative, which helped mid-sized companies to obtain credit. The President gave in-principle approval 11 days later on 21 January. During this time, the Government briefed him and the Council of Presidential Advisers (CPA), and the CPA considered the request and provided the President with its recommendation. Subsequently, at a press conference on 17 February, the President explained that when the Prime Minister had broached the subject informally on 10 January, he had agreed at that stage to give every consideration to the proposal as he and the CPA were already aware of the prevailing financial crisis and how it was impacting the country. He commented that he was not an Executive President and that the Executive was really the Government. It was for them to find solutions to the nation's problems and come out with proposals: "As to whether the proposals were right or wrong, we don't micro-manage Government. And it's for the Government in power to determine what is to be done." However, "[i]f they came with scatterbrained proposals I would have said no."
Powers relating to key office holders
A 1988 White Paper issued by the Government stated that the success of Singapore could be attributed to the stable public sector, and that its stability might be diluted if an irresponsible government made key appointments based on considerations other than merit as "nepotism and corruption may result and the public service will collapse". For this reason, the Constitution provides that the President, acting in his discretion, may refuse to make an appointment to any of a number of key offices, or to revoke an appointment if he does not concur with the authority on whose advice he is required by law to act. The offices are:
Navy]] are among the office holders whose appointments and dismissals must be concurred in by the President.
As a result of changes to the Constitution effected in 1996, Parliament may overrule the President's decision with a resolution passed by not less than two-thirds of all elected MPs if he refuses to make or revoke an appointment contrary to the CPA's recommendation. The President exercises similar powers as regards the appointment or revocation of appointment of the chairman, members or CEO of specified statutory boards and the directors or CEOs of Government companies, and his decisions in this respect may be overruled by Parliament in the same manner as decisions relating to the key office holders referred to above. This constitutional amendment reduced the power of the President to veto executive appointments.
The President appoints as Prime Minister an MP who, in his personal judgment, is likely to command the confidence of a majority of MPs.
Maintenance of Religious Harmony Act
The Maintenance of Religious Harmony Act authorizes the Minister for Home Affairs to make a restraining order for up to two years against a person in a position of authority in, or a member of, any religious group or institution where the Minister is satisfied that the person is attempting to commit or has committed any of the following acts:
- causing feelings of enmity, hatred, ill-will or hostility between different religious groups;
- carrying out activities to promote a political cause, or a cause of any political party while, or under the guise of, propagating or practising any religious belief;
- carrying out subversive activities under the guise of propagating or practising any religious belief; or
- exciting disaffection against the President or the Government while, or under the guise of, propagating or practising any religious belief.
A restraining order can prevent a person from addressing orally or in writing any congregation, parish or group of worshippers or members of any religious group or institution on any subject, restrain him or her from assisting or contributing to any publication produced by any religious group, or prevent him from holding office in an editorial board or a committee of a publication of any religious group without the Minister's prior permission.
The Minister may also make a restraining order against a person other than those mentioned above who has committed or is attempting to commit an act causing feelings of enmity, hatred, ill-will or hostility between different religious groups; or who is inciting, instigating or encouraging a religious group or institution, or a leader or member of such a group or institution to do so. Such an order may restrain the person from addressing or advising any religious group or institution or any of its members, or making any statement or causing any statement to be made concerning or affecting relations between that religious group or institution and the Government or any other religious group or institution.
Once a restraining order is made, it must be referred to the Presidential Council for Religious Harmony, which must recommend to the President whether the order should be confirmed, cancelled or varied in some way. The President is required to consider the Council's recommendations and to decide whether the order should be cancelled or confirmed, and if confirmed whether any variations are necessary. He is required to act in accordance with Cabinet's advice on the matter, unless this conflicts with the Council's recommendation, in which case he may exercise personal discretion.
Internal Security Act
The Internal Security Act, among other things, authorizes the Minister for Home Affairs to make an order directing that a person be detained for up to two years at a time if the President is satisfied that the detention is necessary to prevent the person from acting in a manner prejudicial to the security of Singapore or the maintenance of public order or essential services. A detained person is entitled to make representations to an advisory board made up of a chairman appointed by the President who is or has been, or is qualified to be, a Supreme Court Judge, and two other members appointed by the President after consulting with the Chief Justice. An advisory board must consider the representations and make recommendations to the President within three months from the date of detention. If an advisory board recommends that a detainee be released, and the government authority on whose advice or order the person was detained disagrees with the board's recommendation, the President has a personal discretion as to whether the person should continue to be detained. The President's power in this area is restricted by the requirement that the board must recommend the detainee's release; if further detention is recommended, the President has no power to direct otherwise.
Corrupt Practices Investigation Bureau investigations
The Director of the Corrupt Practices Investigation Bureau may seek the President's assent to inquire or carry out investigations regarding information received about the conduct of any person, or any allegation or complaint made against any person. If the President exercises his discretion in concurring with the Director, he or she is permitted to proceed with the investigations, notwithstanding the Prime Minister's refusal to consent. This is one of the few instances where the President's power is not limited by some other body.
Granting of pardons, reprieves and remissions
Subject to Cabinet's advice, the President is empowered to pardon offenders, or accomplices who provide information leading to the conviction of principal offenders in crimes. He may also grant offenders a reprieve or respite from the execution of any sentence; and wholly or partially remit an imposed sentence, penalty or forfeiture. In the case of death sentences, the President must call for reports made to him by the judge who tried the case and the Chief Justice or other presiding judge of the appellate court which heard the appeal in the matter to be forwarded to the Attorney-General. The reports, along with the Attorney-General's opinion on the case, are then forwarded to Cabinet which then advises the President as to whether to exercise his powers.
Preventing certain constitutional amendments and circumvention or curtailment of powers
Article 5(2A) the sleeping provision
Article 5(2A) of the Constitution allows the President to direct that any bill seeking to amend certain important clauses of the Constitution shall not be passed by Parliament unless it has been supported at a national referendum by not less than two-thirds of the total number of votes cast by the electors. The clauses are:
- Article 5(2A) itself, and Article 5A which confers discretion on the President to withhold assent to a bill seeking to amend the Constitution that provides for the circumvention or curtailment of his discretionary powers;
- the fundamental liberties in Part IV;
- provisions dealing with the President in Chapter 1 of Part V, and Article 93A which confers jurisdiction on the Supreme Court to determine questions relating to the validity of a presidential election;
- Articles 65 and 66, which mandate the dissolution of Parliament every five years and the holding of a general election thereafter; and
- other provisions in the Constitution which authorize the President to act in his discretion.
This provision, however, was not immediately brought into force when enacted, as the Government stated at the time that a grace period of at least four years was needed for modifications and refinements to the Elected President scheme to resolve unforeseen problems that arose upon implementation. Article 5(2A) has still not been brought into force. On 21 October 2008, in response to a question by NMP Thio Li-ann, the Prime Minister Lee Hsien Loong said:
Articles 5A and 22H
The original Article 22H of the Constitution provided the President with personal discretion to withhold assent to any bill (other than a bill to which Article 5(2A) applies) which provided directly or indirectly for the circumvention or curtailment of the discretionary powers conferred upon the President by the Constitution. At that time, Article 5(2A) provided that the President could prevent Parliament from passing a bill seeking to amend certain specified clauses of the Constitution, including those dealing with the President's powers, unless it had been supported by not less than two-thirds of the votes cast at a national referendum. However, as Article 5(2A) was not yet in force, a question arose as to whether the Government was entitled to amend the Constitution in a way that circumvented or curtailed the President's discretionary powers, or whether Article 22H prohibited this entirely.
To resolve the issue, Article 100 was inserted into the Constitution to enable the President to refer to the Constitution of the Republic of Singapore Tribunal any question as to the effect of any constitutional provision. President Ong Teng Cheong then referred to the Tribunal, which consisted of three Supreme Court judges, the issue of whether he had the power under Article 22H(1) to withhold assent to any bill seeking to amend any of the provisions referred to in Article 5(2A), and specifically to any bill seeking to amend Article 22H to restrict the application of the President's powers under that Article to non-constitutional bills. In a judgment delivered on 20 April 1995, the Tribunal held that even though Article 5(2A) was not in force, the Government's intent in including it as part of the Constitution had to be considered. Looking at it in this way, it was clear that Article 5(2A) was intended to deal with bills seeking to amend the Constitution, while Article 22H covered only ordinary bills. Therefore, the President had no power under Article 22H to withhold his assent to any bill seeking to amend the Constitution, and in particular any of the provisions referred to Article 5(2A).
In 1996, Article 5A was inserted into the Constitution and Article 22H were amended to clarify the situation by providing different procedures for circumventing or curtailing the President's discretionary power, depending on whether the Government seeks to do so by way of an ordinary bill or a bill seeking to amend the Constitution. Article 22H deals with attempts to alter the President's powers by introducing an ordinary bill. If this occurs, the President may exercise personal discretion to withhold assent to the bill. The Cabinet may, if it wishes, advise the President to refer to the Constitution Tribunal the question whether the bill in fact has the effect of circumventing or curtailing his discretionary powers. If the Tribunal determines that the bill does not have that effect, the President is deemed to have assented to the bill on the day following the day when the Tribunal's opinion is pronounced in open court.
On the other hand, Article 5A deals with attempts to alter the President's power by amending the Constitution itself. When the provision is brought into force, the President will also be able to decline to assent to a bill seeking to amend the Constitution that has a direct or indirect effect of circumventing or curtailing his discretionary powers. In this case, the Cabinet may also advise the President to refer to the Tribunal the question of whether the bill indeed has this effect. If the Tribunal rules that the bill does not have this effect, the President is deemed to have assented to the bill on the day immediately following the day when the Tribunal pronounces its opinion in open court. On the other hand, if the Tribunal decides to the contrary and the Government wishes to push the amendment through in the face of the President's opposition to it, the Prime Minister may opt to submit the bill to the electorate. If the bill is supported at a national referendum by not less than two-thirds of the total number of votes cast, the President is deemed to have assented to the bill on the day immediately following the day when the results of the referendum have been published in the Government Gazette.