Could we please talk about the President’s custodial powers?

There should be no confusion. The true Constitutional position is very clear. The President exercises custodial, not executive powers. Only the Government exercises executive powers. Under the Constitution, the Cabinet shall have the general direction and control of the Government. In contrast, the President’s custodial powers are reactive and blocking powers. The President does not have any executive power.

– Then-Prime Minister (PM) Goh Chok Tong, 1999, in a Parliamentary Statement.

Amid the controversy surrounding this year’s reserved Presidential Election, it is unfortunate that neither the mainstream media nor the presidential hopefuls (not yet candidates, as we are still waiting on the Electoral Department’s decision on Nomination Day, 13 September) have adequately addressed what I believe is the most important aspect of the Elected Presidency: the President’s wide-ranging custodial powers.

The conversations right now can be grouped into three main strands: First, a theoretical dialogue about race and identity. Is Mdm Halimah Yacob really Malay if her father was Indian? Is Mr Farid Khan of Pakistani or Malay descent? How do we, as a community, construct and perceive “race”, anyway? Second, a wide-ranging conversation on whether the presidential hopefuls will be able to “bring Singaporeans together”.  Third, a debate over the Government’s intentions in reserving the upcoming Presidential Election for Malay candidates. Did they do this to block Dr Tan Cheng Bock from running? Why did they consider the late Wee Kim Wee as our first “elected president” when he was appointed by Parliament?

These are valuable discussions to be had, but are tangential to the question of who deserves to be the next President. We can talk about the follies of racialised politics (see: the GRC system as another example of how the Government may be concealing instruments of authoritarian control as affirmative action policy) or the suppression of democratic freedoms in Singapore (see: criticisms levied against the Government for allegedly gerrymandering political districts) all we want, but the decision to proceed with the reserved Presidential Election has already been made.

Hence, the more important question is: If the Electoral Department decides that two or more presidential hopefuls are qualified to stand for election, on what basis should we then vote? My opinion – assuming that you, like me, have faith in the Singaporean political system and will not spoil your vote – is that we shouldn’t focus on the President’s role as a figurehead, and instead vote for the candidate whom you believe is best placed to discharge the President’s custodial duties.

This was, in fact, the reason why Parliament decided to amend the Constitution in 1991 to provide for an elected President. Prior to 1991, the President served an exclusively symbolic role – they were appointed by Parliament, and could exercise discretion on three matters: Appointing the PM, declaring the office of the PM vacant, and refusing a request to dissolve Parliament.

But in the aftermath of the 1984 General Election, where the PAP did not win every seat in Parliament for the first time since 1963, then-PM Lee Kuan Yew voiced his concerns that a “rogue government” might raid the reserves and hollow out the civil service. As he explained in 2011, “if you change all the permanent secretaries, military chiefs, commissioner of police, heads of statutory boards, then you’ll ruin the system. For five years, the President can prevent that. And our past reserves cannot be raided.”

This is why the Elected Presidency was established. A vote is not necessary to select a unifying symbol – from Yusof bin Ishak to Wee Kim Wee, we’ve had four “figurehead” Presidents appointed by Parliament without controversy – but it is necessary to vest an individual with the custodial powers to safeguard Singapore’s reserves, approve key public-sector appointments, oversee extra-judicial detentions and corruption investigations, and have the final say over restraining orders under the Maintenance of Religious Harmony Act.

Even if one were to disregard the intent behind setting up the Elected Presidency, there is a good face-value argument for emphasising the President’s custodial function over their function as Unifier-in-Chief. We have the civil service apparatus – one whole Ministry of Culture, Community, and Youth – to propose policies to bring Singaporeans together. We have experienced Parliamentarians who can weigh in to provide reassurance during times of crisis. Most importantly, we cannot abrogate the task of social cohesion to the state. If we need someone sitting on a gilded chair in the Istana to strengthen our social fabric through Presidential diktat, then we are doomed as a nation.

In contrast, no other party (or parties) can fulfil the custodial role which the President serves. Imagine if the PAP’s worst nightmare comes true – overnight, a populist and profligate government comes to power – and the President needs to prevent the government of the day from squandering our national reserves. Or if a future Prime Minister is confronted by serious allegations of corruption and the President needs to decide if they should chair a CPIB investigation. Or if a competent non-PAP government is voted into power, but a partisan President obstructs their attempts to pass a budget or appoint people to key civil service positions.

If we are to forget the primary custodial function that the President is supposed to perform, the consequences are dire. This is why I’m deeply disappointed when Mdm Halimah Yacob – widely considered by many to be the front-runner – shared that her main goal is to unify the nation if she becomes President. In an interview with TODAY, Mdm Halimah was asked if she had the judgement to exercise the “second key” on the nation’s reserves. She gave a non-committal response that failed to assuage concerns that her experience in the labour movement and as a Member of Parliament was ill-suited for the role of President.

“Numbers are important – what is the amount, how much will it affect our reserves, is this sustainable, how many years will this programme go on (and) what will be the impact. Those are the questions you ask in terms of numbers.

But the real issue you’ve got to ask yourself is, how do you exercise judgment?

(…)

I had to go to a factory at 6.50am to wait for the workers to (finish their shift)… the managing director said ‘we are going to retrench the workers’, so I had to go down with my officers,” she recalled. ‘I understand the impact (of an economic recession on workers).’”

– Mdm Halimah Yacob, in response to a query if she has the judgement to exercise the “second key” on the nation’s reserves.

Similarly, in a farewell interview with multiple media outlets, outgoing President Tony Tan chose to focus on how the President “can build a sense of community and a cohesive society”. Emphasis was once more placed on his role as a unifying and symbolic figure. Only two-thirds down in the Straits Times article was there mention of his custodial function. Even then, President Tan’s remarks were anodyne. In response to a question about the financing of long-term projects like the expansion of Changi Airport, he said, “”This would take not one term of government, but many terms. You have to study ahead and see how these (projects) can be financed in different ways.”

In no way do I mean to downplay the importance of social cohesion in Singapore. But I do think that there has been too much focus on the “soft” aspects of Presidential influence, and not the “hard” custodial function that the President serves. The media should demand more of our presidential hopefuls, and ask them important questions about the latter issue. Presidential hopefuls, too, should spend more time discussing their philosophies on governance and stewardship rather than spouting rehearsed platitudes about national unity. Only then can we make a more informed decision at the ballot box, if an election does happen.

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