CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT NO. 2) BILL

[Mr Speaker in the Chair]

Debate resumed.

Encik Othman bin Haron Eusofe (Marine Parade GRC): Mr Speaker, Sir, I support the Bill.

I would like to comment on the provisions in the Bill which deal with the changes in the Civil Service personnel management system.

Sir, the establishment of Personnel Boards to take charge of personnel management in the Ministries is a significant development. As the Deputy Prime Minister has said, at present the Civil Service personnel management system separates authority from responsibility. Permanent Secretaries who are responsible for their Ministries do not have authority over the staff they can recruit, deploy and promote. With the devolution of the personnel functions, the Permanent Secretaries will have more flexibility and authority to manage their staff. However, for the Personnel Boards and Permanent Secretaries to manage personnel effectively, it is important that there is transparency in the way decisions are taken in promotions, staff deployment and staff appraisals. The staff appraisal system must be one which extends beyond the annual performance or evaluation of the officers to one which helps to develop their talents and abilities. Staff must be informed of the basis on which their performance is evaluated. It is important that managers in the Ministries and departments be given adequate training to enable them to assess their staff effectively.

Sir, let me now turn to the need for Permanent Secretaries and other managers in the Ministries to conscientiously develop a close and positive working relationship with union leaders in their Ministries. This can indeed be achieved when they are able to work in a way which will promote mutual trust and confidence. Union leaders should be recognised as partners in the effort to raise the standard of performance and quality of work and contribution in the Ministries. Regular meetings and information sharing exercises should be encouraged. When there are changes to be introduced in the terms and conditions of service, deployment of staff or any restructuring and reorganisation of work, the unions and employees should be quickly informed so as to minimise any anxiety and confusion. Sir, Permanent Secretaries must understand, recognise and appreciate the work done by the union leaders in their Ministries. In this way, we can persuade more persons who are capable and with good work attitudes, commitment and integrity to serve in the unions.

Sir, I am happy to note that there are avenues for any person aggrieved by a decision of a Personnel Board to appeal to the appropriate Commission which, prior to the establishment of the Personnel Board, is in charge of personnel in the Ministry.

Finally, Sir, I would like to ask the Deputy Prime Minister to clarify clause 19(6)(b) on the need to disqualify a member of any trade union or of any body or association affiliated to a trade union from becoming a member of any Personnel Board. Sir, I can understand it if an official of a trade union cannot be appointed as a member of a Personnel Board. Sir, we are trying to expand our union membership to include persons who may be senior officers or executives who strongly and genuinely support the mission and objectives of the trade union. In fact, many officers and executives, including some very senior ones, want to join the trade unions because of the attractive facilities and benefits which our trade unions offer to their members, like membership of the Orchid Country Club, use of NTUC resorts, including new ones which the NTUC is currently developing.

Some senior officers may also join as associate members of a union or even in the general branch so that they are able to support the union and enjoy social and leisure benefits which the union offers. In this case, they would not be involved in the industrial relations function. So I would like to ask the Deputy Prime Minister whether consideration can be given to the restriction to become a member of a Personnel Board to apply only to a person who is the holder of any office in the trade union.

Assoc. Prof. Walter Woon: Mr Speaker, Sir, I have no quarrel with most of the provisions in the Constitution of the Republic of Singapore (Amendment No. 2) Bill that is before this House, but there are two provisions in particular that I am quite concerned about. The first is the proposed Article 151A and the second is the proposed Article 100.

Article 151A, as the Deputy Prime Minister has explained, is designed to waive the Presidential veto in cases of national security. We have to look at amendments like this, not from the point of view of what a responsible government would do, but from the point of view of what an irresponsible profligate government would do, because that, after all, is the whole point of having an Elected President. If we have got a responsible Government, it really does not matter whether the President has a veto or not. It is when we have an irresponsible government that the presidential veto becomes absolutely crucial. So when we have got something like Article 151A, which takes away the veto, we have to consider how an irresponsible government might use this to circumvent the whole scheme of protection.

If Members will look at the proposal, Article 151A states that "Articles 22B(7), 22D(6), 148G(2) and (3) and 148H shall not apply to any defence and security measure." This means that the President cannot veto any drawdown of reserves of a statutory board, any drawdown of reserves of a Government company, any drawdown of national reserves, when you have a defence and security measure. Who defines the defence and security measure? If you look at the proposed Article 151A(2), it says "For the purposes of clause (1), a defence and security measure means any liability ... which the Prime Minister and the Minister responsible for defence, on the recommendations of the Permanent Secretary to the Ministry of Defence and the Chief of Defence Force, certify to be necessary ..." This is conclusive. It cannot be challenged by anyone.

Let us think of it. Supposing you have a situation where the government is irresponsible and they want to spend money to buy votes and they disguise this by saying, "In order to promote the long term stability of Singapore, we consider this to be a security measure." If they can get the Chief of Defence Force and the Permanent Secretary to recommend and to agree to that, nobody can challenge that. So the key really is the independence of the Permanent Secretary and the Chief of the Defence Force. The whole point of giving the Elected President the veto is that he has got the moral authority to say no to the Government. He has been elected by the people. He has been elected by a majority. He can stand up to the Prime Minister and say, "No, I do not think that you should be spending the money in this way."

The other point about the Elected President is that it is the highest office in the land. A person who has reached the office of Elected President has no more desire to go higher because he has reached the highest. The Chief of Defence Force and the Permanent Secretary still can be offered inducements. They may be ambitious people. The Elected President has constitutional protection against being sued, constitutional protection against having his Civil List cut. The Chief of Defence Force and the Permanent Secretary have to live with the Government, even if they are inclined to stand up to the Prime Minister.

An irresponsible profligate government intent on getting its way might, by threats or inducements or outright bribery, get the recommendation from the Chief of Defence Force and Permanent Secretary, and nobody can challenge that. Since the determination is conclusive, imagine what an irresponsible Prime Minister could do! He could circumvent all the safeguards by certifying any transaction as necessary for national security, and national security being such a wide thing that it would be possible to fit any sort of handout within that rubric if you are intelligent enough. All you need is a smart and crooked lawyer to help you to do this. And it should be possible, especially when nobody can challenge it.

So when you open a loophole like this, all kinds of abuses are possible. I do not say they are probable. I say they are possible. I do not think it is desirable that we should take away the presidential veto in this way. If it is desired to preserve secrecy of these transactions, then, by all means, provide that the President does not have to give reasons. If it is desired to have a government override, then perhaps some sort of override mechanism, like the override mechanism for budgets, can be introduced where Parliament can debate the matter, if necessary, in camera without the press, without the media. But to take away the power altogether from the President, I think, opens the door to abuse. There is no point having two keys to a door if you leave the door unlocked. And this is what I am afraid that Article 151A might do.

The other point is Article 100. Before I deal with Article 100 itself, could I just ask why it was not included in the original amendment Bill. The amendment that we have got in the Order Paper Supplement goes beyond merely changing words here and there in a proposal that had already been put to this House. Article 100 is a substantive provision and Members, I believe, only have one or two days' notice of it. Not enough time to consider it in depth and not enough time to make suggestions as to its improvement. May I request that if Government wishes to put these things before the House that at least we be given some decent notice so that improvements may be suggested.

As for the substance of Article 100, from what the Deputy Prime Minister has said, it is designed to allow reference to a constitutional court on points of interpretation. I notice that the President may refer the point to a tribunal. However, Article 21 of the Constitution provides that the President may not act in his discretion, unless Article 21(2) says that he can. And Article 21(2) does not include a reference to Article 100. In other words, the President can only refer a constitutional question to the tribunal on the advice of the Cabinet. He has no discretion to refer it himself. If you are going to give the power to the President to clear up constitutional ambiguities, would it not be better to allow him to make the reference himself when he sees there is an ambiguity, rather than to constrain it only to situations where Cabinet sees there is an ambiguity? Had there been time, I would have suggested that Article 100(1) be amended so that the reference to this tribunal could have been done by the President acting in his discretion or by the Prime Minister. In other words, both Government and President would have had access to the tribunal. At present, if the President says, "I see an ambiguity, I would like to refer it", but the Government declines to advise him to refer it, he has no power to refer the constitutional question to the tribunal at all. And that seems to me to be a defect.

The second thing is that, judging again from the Deputy Prime Minister's speech, it is intended to test the interpretation of Article 22H by referring it to the tribunal. The wording of Article 100 seems to be ambiguous on that point because it refers to questions as to the effect of any provision of the Constitution. Until a Constitutional Amendment Bill has been passed, the provisions in that Bill are not provisions of the Constitution. So one wonders whether they can in fact be referred to the tribunal before they are passed. You might get a situation where you have to pass the amendment Bill, then refer it to the tribunal. At least, that is the way, on a plain reading, it looks like.

If you look at clause 4 of Article 100, clause 4 is not as clear as it should be, but it clearly envisages that the Bill can be referred. Perhaps it should have been re-drafted to make it absolutely clear. Again, had we sufficient time, I would have put up some suggestions for the re-drafting to make this clear.

In summary, Mr Speaker, as far as Article 100 is concerned, I think it is a good thing that there should be a final tribunal somewhere to interpret ambiguities in the Constitution. But it would be much better, from the point of completeness and also from the point of view of presidential powers, if the President has the right to refer to the tribunal. The Hon. Deputy Prime Minister has already referred to the fact that the President needs his own advisors. It would be consonant with that if he also has this independent power of referral without necessarily requiring Cabinet's advice on the point.

Mr Chin Harn Tong (Aljunied GRC): Mr Speaker, Sir, I rise to comment on the provisions of the Constitution (Amendment No. 2) Bill pertaining to the proposed Personnel Boards. I agree that the decentralisation of the personnel function of the Public Service Commission is a good idea and has been long overdue.

However, I am not too clear about two small points concerning the proposed Article 110D, clause (6), as set out in clause 19 of the Bill. I assume and accept that there are good grounds for disqualifying Members of Parliament, trade unionists and political office holders from sitting on any Personnel Board.

Sir, I am sure it is not the intention of the Deputy Prime Minister to draw an anomalous distinction between elected and appointed Members of Parliament by disqualifying the former but not the latter from serving on any Personnel Board. If the Deputy Prime Minister can give an assurance that the expression "duly nominated candidate for election as such Member" covers a candidate for appointment as a Nominated Member of Parliament, I am satisfied.

Sir, my other point concerns the disqualification of trade unionists. I think the line of exclusion here may be too broadly and carelessly drawn. Singapore is a very compact society where the pool of eligible persons for any specific purpose is very limited. The number of persons in this House wearing more than one ministerial or other hats illustrates my point.

The trade union movement in Singapore has cooperative or commercial offshoots, on whose boards sit persons who are not trade unionists in every sense of the word. Nevertheless, it seems to me that such persons would be disqualified from sitting on any Personnel Board by reason of their being members "of any body or association affiliated to a trade union."

Moreover, as the Singapore National Employers' Federation (SNEF) is a trade union of employers, does it mean that the officers and shareholders of the commercial or industrial organisations which are affiliates of the SNEF would be also similarly excluded? If it does, I should think it is a great pity as their expertise and experience might be useful to the proposed Personnel Board. Then, again, an anomalous distinction is drawn between the SNEF and other employers' organisations such as the Singapore Manufacturers' Association and the various Chambers of Commerce, which are fortuitously not registered as trade unions.

I suggest the Bill's blanket exclusion of all trade unionists from the proposed Personnel Board may be made surgically precise. You do not deal with a boil on the hand by cutting off the whole arm! As the Trade Unions Act bars trade unions representing non-government employees from representing Government employees, an exclusion of the members of a trade union of Government employees from the proposed Personnel Board would serve the desired aim of the proposed Article 110D(6)(b) as well.

I do not believe that it can be the intention of the Deputy Prime Minister to suggest that trade unionists representing non-Government employees cannot be relied upon to take hard-headed, unpleasant and objective decisions as members of the proposed Personnel Board on their Government colleagues. For more than one decade, an active trade unionist has sat in Cabinet meetings without giving rise to any talk of untoward occurrence as a result of such participation by a trade unionist.

Mr Low Thia Khiang: ( In Mandarin): Mr Speaker, Sir, the Constitution is the supreme law of the country. When a government takes office, it must first of all take an oath to defend the integrity of the Constitution. Why? In simple language, the Constitution is the covenant between the government and the people. Because the Government has the duty to defend the integrity of the country's sovereignty and to govern the country, the people therefore agree to let the Government have certain powers under the Constitution in order to carry out its duties.

On the other hand, the Government has the powers to rule after it is returned to office. It can use such power to suppress and hoodwink the people. Therefore, the Government must agree to defend the provisions in the Constitution which gives protection to the people, and to undertake not to exceed the limit given for the Government to exercise its powers under the Constitution.

Under such a premise, the people vote in the Government at a General Election to rule the country. The Government must first be given the mandate by the people before it can legally exercise the powers provided under the Constitution.

Therefore, when each government takes office, it must take an oath to defend the Constitution and not to violate any provision or the spirit of the Constitution which would infringe upon the rights of the people. That is the significance of the Constitution.

Since independence, the PAP Government has been amending the Constitution almost every year. I think the frequency in which we have been amending the Constitution may well earn us another "first in the world". From what the Deputy Prime Minister said just now, it would appear that our Constitution, which is already scarred and battered, may have to suffer many more amendments, and I really do not know when these amendments will end.

Mr Speaker, Sir, with regard to the Constitution of the Republic of Singapore (Amendment No. 2) Bill, which is now before the House for Second Reading, I would like to comment only on the proposed Article 151(A).

On the face of it, new Article 151(A) appears to provide a definition for the powers of the President under the Constitution, and to impose a restriction thereof. But, at the same time, it provides for special powers to be given to the Prime Minister and the Minister for Defence. So long as the Chief of Defence Force and the Permanent Secretary of the Ministry of Defence make a recommendation which is then certified by the Prime Minister and the Defence Minister to be necessary for the defence and security of Singapore, then nobody else can have a say in it, and there is no need for any explanation to Parliament. The new Article provides that for any liability or debt relating to defence or national security, or any proposed transaction thereof, the Prime Minister and the Minister for Defence can exercise this special privilege. This amendment to the Constitution to provide for the concentration of power in just a handful of people to make decisions on matters relating to our defence and national security is indeed alarming.

Now, I would like to express my views on the matter. First of all, will this lead to a loss of power on the part of Parliament in supervising over the Government's spending on national defence and matters relating to national defence? With this new provision in the amended Constitution, even the Audit Act will have to be amended. The Government can be exempted from reporting to Parliament on any liability or proposed transaction certified to be necessary for the defence and security of Singapore. Can Members of this House raise any query on it? How is Parliament going to exercise its supervisory role over the Government's expenditure and the operation of the Government departments? This will curtail the powers of Parliament as well as the powers of the people.

As a matter of fact, the connotation of the proposed new provision in the Constitution is vague. The scope of power can be expanded through different interpretations of the wording. Let me give you two examples. Firstly, is the purchase and sale of arms included in the so-called "proposed transaction"? Secondly, if the Government allows a certain country to set up a military base or to install nuclear weapons in Singapore, will this be included in the so-called "transaction or liability" in this new Article?

Mr Speaker, Sir, I am aware of the sensitivity of national defence and security matters. At present, information relating to defence expenditure in our Budget, as provided to this House, is already very minimal. I believe that Members of Parliament in general, including most PAP Backbenchers, have very limited knowledge of the inside information relating to our defence expenditure. Now, this amendment is going one step further by giving the Prime Minister and the Minister for Defence this supreme power. This will leave matters concerning our national defence in the hands of an extremely small number of people. This is an unhealthy situation.

In the early days of nation building, our national defence was still in its infancy. Coupled with the tension of the political situation around the region at that time, to maintain a high degree of secrecy in defence matters was understandable in those circumstances. Strangely, in those days, it did not occur to the PAP Government to amend the Constitution to concentrate the powers on defence and national security matters in the hands of the Prime Minister and the Defence Minister, in order to maintain a high degree of secrecy. Yet today, when Singapore has already built up a sound defence infrastructure, and has established good and friendly relationship with our neighbouring countries, and the situation in the whole world is getting more relaxed, the Government is now seeking to amend the Constitution to curtail the powers of Parliament in supervising over the Government's expenditure on national defence and security. This is really beyond our understanding. What, really, is the motive behind it? To put national security matters concerning the life and wealth of the people in the hands of just a few people, free from supervision by Parliament, without the need to explain to Parliament, and even seek, with the warrant of a good conscience, to have it written in the Constitution, is indeed inconceivable!

Furthermore, if these people, acting on impulse, make a wrong decision resulting in great damage to the country, do they not have to account to Parliament? Do they not have to face the people! Where is the responsibility of the elected Government to the people?

Once a precedent is set by allowing the Prime Minister and the Minister for Defence to arrogate all the powers to themselves to decide on major national matters, free from supervision by Parliament, then I fear that many more Bills, which are similar to this, may be presented in Parliament in the future. For example, for the sake of national solidarity and security, the Government can well introduce a Bill that, as long as the Prime Minister and the Minister for Home Affairs agree, they can deal with and make decisions on all matters relating thereto, or to arrest those who are deemed to be a threat to national solidarity. Likewise, all you need is a certificate and everything is taken care of, and nobody else is to have a say on it.

Mr Speaker, Sir, this Amendment Bill will open up the Pandora's box and Singapore will move towards an era whereby the ruling Party can shut out the heavens with one hand, and pull the wool over the eyes of the public.