EXEMPTED BUSINESS

Resolved,

That the proceedings on the item of business under discussion and the remaining items on the Order Paper for today be exempted from the provisions of Standing Order No. 1. - [Mr Wong Kan Seng].

Dr Kanwaljit Soin: Mr Speaker, one of the main reasons for the creation of the post of the Elected President was to act as a check on the Government's spending of the nation's financial reserves.

In this House, in October 1990, Mr Goh Chok Tong, who was then the First Deputy Prime Minister, in introducing the Bill to have an Elected President with special powers, said the Government was, in fact, "clipping its own wings". It seems to me that, in introducing this amendment, the Government is now trying to add on some feathers. I am referring specifically to the new Article 151A. By this provision, the Elected President will be unable to veto the proposed transactions on defence and security measures. There is no such exemption for any other area.

I am of the opinion that if our purpose in having an Elected President is to have him operate a second key as a check, then we cannot allow a copy of this key to be made and given away to the Executive, in this case, the Prime Minister. On top of that, it is precisely in the area of defence and security that horrendous sums of money can be spent and it is dangerous to have no check or balance. The proposed check of including the Permanent Secretary and the Chief of Defence is not adequate because the latter could be an interested party. If the inclusion of the Permanent Secretary is an adequate safeguard, then why do we not have the same for the other areas of spending as well? Then what is the role of the Elected President and the second key? I think we must stick to our original objective, that is, the Elected President is the only one who has the second key and we should make no exceptions.

The other matter, Mr Speaker, that I would like to raise concerns the Acting President. The Oath that the Acting President has to take differs from that of the President in one crucial area. The President's Oath includes the following, and I quote, "and without regard to any previous affiliation with any political party". This is not present in the Acting President's Oath. To ensure that the Acting President can adequately fit into the shoes of the Presidential office, we have to ensure and we have to be sure of its non-partisan stance like that of the President. If we do not have this assurance, then it detracts from the whole concept of the Elected President as a check on the Executive, that is, the Government.

Mr Speaker, Sir, on the matter of the Civil Service and Personnel Boards, the PSC with the other Commissions has been the main pillar of safeguarding the high standards of integrity and impartiality of the Civil Service. A lot has not changed in the Civil Service set-up since the PSC was formed except that the Civil Service has become much bigger. This is not reason enough to change what has been a hallmark of the impartiality of the Civil Service in the form of the PSC. My fear is that, with the implementation of Personnel Boards, favouritism and cronyism may begin to find their way into the hiring and promotion of civil servants. There is the possibility of abuse of delegated powers although a system of appeals to PSC exists. I cannot understand how a system like the PSC that has worked so well and for so long is considered as a fundamental flaw in the administration. The rationale that Personnel Boards will introduce flexibility into the system is not convincing enough. The same end result can be achieved by fine-tuning the three Commissions and having top civil servants, including the Permanent Secretaries, from the relevant Departments sitting on the Boards of the Commissions instead of relegating most of the work of the Commissions to decentralised Personnel Boards which may lead to fragmentation and varying standards in the Civil Service. We must guard against this happening.

Dr Tan Cheng Bock: I rise to support this Bill. There are, however, a few points I would like to raise. The liberalised recruitment in the Civil Service poses questions: What is the future role of the PSC now? Are we disbanding the PSC? Can we recruit civil servants now at different levels? Or must we go through the normal procedure where the recruitment must be at the bottom? For example, for Division III recruitment, you start from Division III. Suppose you are an Administrative Officer, you start from the Administrative Service scheme. Can we, for example, recruit a Permanent Secretary from the private sector if you find that he is a very competent and able person?

The other point I would like to touch on is this question of the President having no veto powers over the drawdown on reserves for defence and security. I am of the opinion that when the Presidential Elections Bill was introduced, the idea behind having an Elected President was having another key to check on our reserves. I think defence spending is very sizeable. We are assuming that the Prime Minister and the whole Cabinet are all very good people. But we cannot say this because, in the years to come, there may be a Prime Minister, who may, in the course of his duty, have suffered some mental disability. Then what is going to happen? He might order certain very high expenditure, for example, he wants to buy big missiles. There is no check on him. I think the President's veto power in this area should remain.

Mr Peh Chin Hua (Jalan Besar GRC): ( In Mandarin): Mr Speaker, Sir, thank you for allowing me to join in this debate.

I support this Bill. Just now, I heard Mr Low Thia Khiang raising a few points and I was very confused. As he said, defending the Constitution is the duty of every citizen. But it is also the duty of every one of us as Members of Parliament to amend the Constitution to make it better. Any Bill to amend the Constitution has to be supported by not less than two thirds of the total number of Members. It cannot be immutable and frozen forever, unless the Members are so inflexible, or they do not want to think of the long-term interest of the nation.

Giving the Prime Minister and the Defence Minister greater responsibility and power to deal with some important issues is a correct move. Take, for example, the incident in which a SIA aeroplane was hijacked. When it happened, and if we had to wait for Parliament to sit before a decision could be made, then the matter would not have been dealt with so quickly and efficiently. 4.00 pm

BG Lee Hsien Loong: Sir, Dr Soin asked why the Acting President's oath does not require him to ignore any previous affiliation with any political party. The practical answer is that, from time to time, under the Constitution, the Speaker will be required to act as President and the Speaker is usually a member of a political party. But we will look into the question whether we can frame the oath, so that when the person is acting, he swears that whatever party affiliation he has will not affect him in his discharge of his duties, as I am sure is presently the case.

On the Public Service Commission, Dr Soin says, "Why not keep the status quo? Nothing much has changed with the civil service since we established a Public Service Commission." That is precisely the problem. The world has changed. The Public Service Commission structure and the civil service have remained static. We modelled this on the British. The British do not do this any more. They have divided up. Their Ministries promote civil servants separately. There is some central control only at the very top.

The Malaysians followed the British, like us. They have abandoned that mechanism and they provided for extensive devolution of the powers to Permanent Secretaries or any other boards which the Yang Di-Pertuan Agong may specify, because they could not work the old system. It is a big country. They have civil servants all over and you cannot have 12 wise men in the centre settling for the whole country in order to have complete parity and rational progression and no mis-steps and so on. It did not work for them.

In Hong Kong, which has a similar Public Service Commission, the Public Service Commission does not have the final word. It has advisory responsibility. The Governor decides. The man who is in charge of running the system will be the man who has the power to hire and fire.

Dr Soin is in the private sector. I am sure she does not have a commission to decide who should be on her staff. She decides. It is your company - whom do you want to hire, who will work for you, who will be fit to be promoted, who should be sacked. That is how the private sector works. That is how it should work. That is not how the civil service works.

We need safeguards, yes. Because it cannot just be on the whims and fancies of an individual Permanent Secretary who may have a down on a person or his judgment may be poor. So norms must be established, procedures must be established and there must be cross-checking. There must be mechanisms whereby if anything goes awry or simply departs from what is usually the case, we will be able to pick it up and trap it.

But it is not as if we have never done this before. Mindef has operated its own system for years. No Member has raised complaints about unfairness of the Mindef personnel system. The statutory boards have operated independently for years. They are not subject to the Public Service Commission. They have established their own check and balance mechanisms. If we had not broken off Mindef and the statutory boards from the PSC system, we would have no Mindef today and the statutory boards would never have grown. It is impossible. And there is no reason why, given what we have been able to do with Mindef and with the statutory boards, we are unable to do it with the other Ministries, and substantially improve the structure.

Civil servants are not saints. They are not from out of this world. They are young human beings who are looking for careers - fulfilling, challenging, rewarding. They want a career where they can be sure that their contribution will be recognised, that if they do well they will be rewarded and they can move up. And if they are capable, they will reach the top early. The present system does not allow us to do that. It is very good at making sure that no person who is incapable ever gets promoted. I am extremely doubtful whether it is capable of making sure that a person who is fit to be promoted is guaranteed to be promoted. Very often he is not. You never know. If you look around, you ask, where are they? I can tell you. They are gone. Because they are not waiting around to be left out. They have watched others and they have decided that they are not going to be part of this, and they leave. It used to be that they waited 7-8 years to leave, because then they have worked off most of their bond and it is just one or two years left, somebody may buy them out. Now they are leaving younger, because it is easier to be bought out and they are more confident of what will happen to them if they go outside.

We have to adjust. If the system were working well, we would not be making a major change. We have over delayed this change. It should have been done at least five years ago. In 1989, when we made major salary revisions and we had a committee, we looked into many aspects of the civil service. This was one of them. At that time, we decided to leave it be. But we already knew there was a problem. Probably even then it was overdue. But we waited five years, and five years down the road, today you know what the situation is. I have spoken on this several times in the House when we made salary revisions. We will be having a White Paper on the Civil Service and Ministerial Salaries. That will give further data. It shows you how serious the problem is.

The Administrative Service age profile is like a population pyramid. It is not broad at the bottom where people come in, narrowing gradually to the top as people grow older and there is attrition, and some leave. It is broad at the bottom where people come in. It narrows down to a waist in the late 30s because they have already disappeared. And then there is another bulge in the 40s because these are the older officers who are already locked in by the pension scheme and cannot leave.

Now, imagine what happens to the civil service when that bulge reaches 45, which is when people should become Permanent Secretaries. I think we will already have a problem with the quality of the administration in Singapore. And if you do not do this, you would not just be having a narrow waist, you will have anorexia nervosa. I think we better fix it now rather than wait for that to happen.

Dr Tan Cheng Bock asked why we are disbanding the PSC. I have explained that we are not disbanding the PSC, but we are devolving its powers. The PSC will remain and will keep control of the Significant Grade and above, which means the top level.

Can we recruit at different levels, meaning mid-stream? Yes, we would like to try. It is quite difficult for two reasons. One, the culture of the civil service is such that you have got a system where everybody knows each other, and for a stranger to come in mid-stream and join that magic circle, that is very difficult. We want to do it, but we have not yet succeeded. I hope this freeing up will enable us to try.

The second reason, of course, is that our pay is out of line and nobody will join you in mid-career, unless you do not want him. And that also has to be fixed.

One other point on the PSC. Mr Chin Harn Tong and Mr Othman Haron Eusofe raised the question about the exclusion of unionists and associations affiliated to trade unions from serving on a Personnel Board. I should point out that what we have drafted here is nothing new. It is copied exactly, from the same restrictions which apply to membership of the Public Service Commission, the Education Service Commission and the Police and Civil Defence Services Commission. It has not proven a problem in practice because for the Commission members, we are looking for people at very senior levels. When we have Personnel Boards, they will also be at very senior levels and they are unlikely to be either members of the trade union movement or affiliated to the trade unions. If it does become a problem later on because you have associate members, because of Orchid Country Club or other union facilities, we can look into it. But I think the same rules should apply, whether to the PSC or to the new Personnel Boards.

I go on to Article 151A. When we first established the Elected President legislation, there were big debates whether we should in fact institute such a mechanism, as Dr Kanwaljit Soin reminded us, to clip our wings. Now that we are making adjustments we have another big debate whether we should make adjustments. But we have to make these adjustments. I think that the Members who have read Article 151A have not quite grasped how it fits in together with the rest of the Constitution. It does not stand in isolation, allowing the Government carte blanche in defence and security matters. It applies, if you read the legislation, through its effects on certain other Articles of the Constitution which are specified in Article 151A(1), namely, I read:

`Articles 22B(7), 22D(6), 148G(2) and (3) and 148H shall not apply to any defence and security measure.'

What are these specified Articles? They are to do with individual transactions which may draw down reserves, or liabilities which have been incurred as a result of transactions which were not noticed, but which may draw down reserves. The President, because of new Article 151A, will not be able to veto such transactions. But that is not the only door which needs to be unlocked to spend the money. Because you have to budget the money, and budget means that you have to come to Parliament. Or the statutory board has a budget or the company has a budget which has to be approved by the President. We have not made an exclusion from the requirement for the President to approve budgets which draw down money, because of defence and security measures.

What does that mean? It means the President cannot object to the specific transaction. If you are buying 20 aeroplanes, he cannot say, "No, don't buy the aeroplanes." But at the end of the year when you budget to pay for the aeroplanes, he can say, "No, your budget doesn't pass. You cut some other items of expenditure in order that you have a balanced budget, and then I will approve it."

So there still remains a check. It is the existing arrangement. Today, Parliament debates the Defence budget once a year. We do not provide details. We do not intend to provide details. I think it would be unwise for us to provide details. It is a block vote. Mindef operates it. There are internal checks and balances. There is also the external auditors who go in and vet Mindef's spending and make sure that Mindef does not become a camouflaged Ministry for Community Development. I do not think any Member has suggested that that is the case.

That will continue. But the specific transaction at the critical time, that must be the Executive's decision. You cannot declare war by committee. In the United States, declaration of war is the prerogative of the President. He is the Executive President. Congress does not have that right. Of course, Congress has now passed the War Powers Act to say that after you have declared war, we have to confirm it. But the constitutionality of that legislation has never been tested. And every President of the United States challenges that constitutionality because he has got his institutional prerogatives to protect. There is a reason why the President declares war and you do not have a debate of 100 Senators before you decide "Aye" we go to war, or "No" we do not go to war.

In Singapore, it is not an Elected President. It is an elected Executive. The Prime Minister and the Cabinet are answerable. They decide whether to go to war. And if they decide, then they must have the wherewithal to execute that decision, and that is why we need Article 151A.

You have to balance between safeguards and flexibility. If we want full flexibility, we could just say the Prime Minister and Defence Minister will decide and that is the end of the matter. But we have said that the Chief of Defence Force and the Permanent Secretary (Defence) must recommend. If they do not recommend, then it cannot go through.

Can they be suborned? Yes, sure. So can the President. So can the Prime Minister. What happens if the Prime Minister goes mad? God help us! You are looking for certainty, assurance and safety using fallible human digits. And you are trying to make a scheme which will give you that certainty, not a probability of one, but a probability of 99.9% that the system will work even if individuals within it go wrong.

As for Article 22H, Assoc. Prof. Walter Woon raised the question whether the drafting is loose and whether we need to pass an amendment first, or whether we can refer a Bill to a tribunal. We do not intend to refer a Bill under Article 100 to a tribunal of the Supreme Court for a decision. The decision which we seek from a tribunal of the Supreme Court concerns the existing Article 22H. We want an interpretation. As it stands, Article 22H clearly protects non-constitutional legislation. If you want to amend non-constitutional legislation and it curtails or circumvents the President's powers, the President can veto and it can be tested in the court. If you want to amend non-core provisions of the Constitution, Article 22H is also clear. It is wrong, but it is clear. The President can veto that, and the court will decide whether in fact it curtails or circumvents the President's powers or not, and that's that.

The question which arises is whether Article 22H applies to itself and protects itself today, because Article 22H says it applies to everything to which Article 5(2A) does not apply. Article 22H is protected by Article 5(2A). But you can make a literal argument that since Article 5(2A) has not been brought into effect, therefore, Article 5(2A) applies to nothing. Therefore, Article 22H applies to everything. Therefore, we have locked the door and thrown away the key. The Attorney-General's considered opinion is that that is not the case. The Government's position is that that is not the case. But the President prefers this to be tested in the courts and the Government agrees that it is good to have this question tested in the courts. This is what we will put to the tribunal to decide.

The existing Article 22H is not a putative future amendment. If the courts rule that we have the power to change, then we will decide whether we want to change, and when. At some stage, it must be done. If the courts rule that we cannot change, we will find some other way. But it has to be put right. So that question raised by Assoc. Prof. Walter Woon, in fact, does not arise.

On Article 100, Assoc. Prof. Walter Woon asked, "Why not provide for the President to have the right to refer questions to the tribunal acting in his discretion rather than on the advice of Cabinet?" Firstly, we have drafted Article 100 following the Malaysian precedent. That is how the Malaysians have worked their legislation. It has worked for them. We think that it is safe for us to follow them.

Secondly, it is the intention, the design of the Elected President legislation, that the initiative lies with the Government, and not with the Elected President. So the Government decides and sets the rules. The Elected President has a custodial safeguard power. He acts within the rules until such time as the legislation is entrenched. If he does not like something, some transaction, or he is not satisfied about a name, he has the power to say "No", but he does not have the power generally to initiate. Similarly, here, the Government would be the one which will have the power to initiate. The Cabinet will advise the President and the matter will be referred.

It does not mean that the President has no recourse, because the Elected President plays a custodial role. If he is unhappy with a legislation or he thinks the Government is curtailing his powers, he may not be able to refer the question, but he can veto the legislation. Then the Government must either call a referendum or it must take the matter to the tribunal and the matter will be tested out, and the tribunal will decide whether the President is acting within his rights or the President is acting ultra vires.

Thirdly, if there is a disagreement between a President and the Cabinet, and the Cabinet wants to ride roughshod, and says that it is quite convinced and refused to refer the matter, I think that the Government will be under considerable public pressure to have the matter tested in the courts because, finally, what is the test? The courts must decide issues of right and wrong. They cannot decide issues of policy. Whether you should or should not do is not their business. Whether that is the correct legal interpretation, that is their business. So the Government will be under pressure to refer to the Courts. I think we take one step. We introduce Article 100. Let us work the system and see how it works.

Mr Low Thia Khiang: Mr Speaker, Sir, may I have a clarification with the Deputy Prime Minister? Does the Deputy Prime Minister agree that Article 151A sets a precedent that the absolute power to decide on a specific matter is now given to the Prime Minister and another Minister, rather than a decision which rests with the Cabinet?

BG Lee Hsien Loong: I disagree completely. As I have explained, firstly, the Permanent Secretary and the Chief of Defence Force have to be involved. Secondly, the money finally has to be voted by Parliament. The Prime Minister and the Defence Minister do not have absolute power. They do have ultimate responsibility. Therefore, they have considerable leeway to make the move. But in the end they have to come and justify and get the money from Parliament.

Mr Speaker: The Question is, "That the Bill be now read a Second time."

A Division will be taken to ascertain that the Second Reading of the Bill is supported by the votes of not less than two-thirds of the total number of Members of Parliament, which is 54 Members, pursuant to Article 5(2) of the Constitution. The Clerk will ring the Division Bells.

Question put, "That the Bill be now read a Second time."

Division taken: Ayes, 66; Noes, 2; Abstention, 1. Ayes Ayes (cont.) Abdullah Tarmugi Lim Hng Kiang Beng Kian Lam, Arthur Loh Meng See Chandra Das, S Low Seow Chay Chay Wai Chuen Mah Bow Tan Chen, Bernard Mohamad Maidin B P M Chen Koon Lap, Kenneth Ong Chit Chung Chen Seow Phun, John Othman bin Haron Eusofe Chew Heng Ching Ow Chin Hock Chin Harn Tong Peh Chin Hua Chng Hee Kok Shanmugam, K Ch'ng Jit Koon Sinnakaruppan, R Chong, Charles Sung, Peter Choo Wee Khiang Tan Cheng Bock Davinder Singh Tan Keng Yam, Tony Dhanabalan, S Tan Soo Khoon Goh Chee Wee Teo Chee Hean Goh Chok Tong Teo Chong Tee Goh Choon Kang Umar Abdul Hamid Harun bin A Ghani Vasoo, S Heng Chiang Meng Wang Kai Yuen Ho Kah Leong Wong, Aline K Ho Peng Kee Wong Kan Seng Ho Tat Kin Wong Kwei Cheong Hu Tsu Tau, Richard Yap Giau Cheng, Eugene Ibrahim bin Othman Yatiman Yusof Jayakumar, S Yeo Toon Chia Ker Sin Tze Yeo Yong-Boon, George Koh Lip Lin Yu-Foo Yee Shoon Lau Ping Sum Zulkifli bin Mohammed Lee Hsien Loong Lee Kuan Yew Noes Lee Yiok Seng Ling How Doong Lee Yock Suan Low Thia Khiang Leong Horn Kee Lew Syn Pau Lim Boon Heng Abstention Lim Chun Leng, Michael Cheo Chai Chen

Mr Speaker: The Second Reading of the Bill has been carried by the votes of not less than two-thirds of the total number of Members of Parliament.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [BG Lee Hsien Loong].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clauses 1 to 18 inclusive ordered to stand part of the Bill.

Clause 19 -

BG Lee Hsien Loong: Mr Speaker, Sir, I beg to move,

In page 10, line 13, before "the procedure" to insert "prescribe".

This is to correct an error in drafting.

Amendment agreed to.

Clause 19, as amended, ordered to stand part of the Bill.

Clauses 20 to 31 inclusive ordered to stand part of the Bill.

New Clause - "Advisory 100. - (1) The President may refer to opinion a tribunal consisting of not less than 3 Judges of the Supreme Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise. (2) Where a reference is made to a tribunal under clause (1), it shall be the duty of the tribunal to consider and answer the question so referred as soon as may be and in any case not more than 60 days after the date of such reference, and the tribunal shall certify to the President, for his information, its opinion on the question referred to it under clause (1) with reasons for its answer, and any Judge in the tribunal who differs from the opinion of the majority shall in like manner certify his opinion and his reasons. (3) The opinion of the majority of the Judges in the tribunal shall, for the purposes of this Article, be the opinion of the tribunal, and every such opinion of the tribunal shall be pronounced in open court. (4) No court shall have jurisdiction to question the opinion of any tribunal or the validity of any law, or any provision therein, the Bill for which has been the subject of a reference to a tribunal by the President under the Article."

Brought up, and read the First time.

BG Lee Hsien Loong: Sir, I beg to move, "That the clause be read a Second time."

I have explained the rationale for this clause in my main speech earlier.

Question put, and agreed to.

Clause read a Second time and added to the Bill.

The Chairman: This new clause is to be inserted immediately after clause 15. This will be done.

Consequential amendments will be made to the renumbering of clauses consequent on the addition of the new clause.

Bill reported with amendments.

Third Reading

Mr Speaker: Third Reading, what day?

BG Lee Hsien Loong: Now, Sir. I beg to move, "That the Bill be now read a Third time."

Mr Speaker: A Division will be taken to ascertain that the Third Reading of the Bill is supported by the votes of not less than two-thirds of the total number of Members of Parliament, which is 54 Members, pursuant to Article 5(2) of the Constitution. Ring the Division Bells.

Question put, "That the Bill be now read a Third time."

Division taken: Ayes, 66; Noes, 2; Abstention, 1. Ayes Ayes (cont.) Abdullah Tarmugi Lim Hng Kiang Beng Kian Lam, Arthur Loh Meng See Chandra Das, S Low Seow Chay Chay Wai Chuen Mah Bow Tan Chen, Bernard Mohamad Maidin B P M Chen Koon Lap, Kenneth Ong Chit Chung Chen Seow Phun, John Othman bin Haron Eusofe Chew Heng Ching Ow Chin Hock Chin Harn Tong Peh Chin Hua Chng Hee Kok Shanmugam, K Ch'ng Jit Koon Sinnakaruppan, R Chong, Charles Sung, Peter Choo Wee Khiang Tan Cheng Bock Davinder Singh Tan Keng Yam, Tony Dhanabalan, S Tan Soo Khoon Goh Chee Wee Teo Chee Hean Goh Chok Tong Teo Chong Tee Goh Choon Kang Umar Abdul Hamid Harun bin A Ghani Vasoo, S Heng Chiang Meng Wang Kai Yuen Ho Kah Leong Wong, Aline K Ho Peng Kee Wong Kan Seng Ho Tat Kin Wong Kwei Cheong Hu Tsu Tau, Richard Yap Giau Cheng, Eugene Ibrahim bin Othman Yatiman Yusof Jayakumar, S Yeo Toon Chia Ker Sin Tze Yeo Yong-Boon, George Koh Lip Lin Yu-Foo Yee Shoon Lau Ping Sum Zulkifli bin Mohammed Lee Hsien Loong Lee Kuan Yew Noes Lee Yiok Seng Ling How Doong Lee Yock Suan Low Thia Khiang Leong Horn Kee Lew Syn Pau Lim Boon Heng Abstention Lim Chun Leng, Michael Cheo Chai Chen

Mr Speaker: The Third Reading of the Bill has been carried by the votes of not less than two-thirds of the total number of Members of Parliament.

Bill accordingly read a Third time and passed.