Article 151A, Defence and Security Measures – Power struggle between President and the Cabinet

 “Within a dominant party state, this is a weak check and the spectre of the original fears that precipitated the institution of the Elected Presidency, that an overly strong Cabinet would have untrammelled power, re-emerges..The rationale of having the Elected Presidency was to provide an external check on the Cabinet; this amendment (Article 151A) diminshes the external check on the Cabinet in certain aspects.”

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Photo credit: ST

– Tho Li-ann on Article 151A (*A constitutional amendment introduced in 1994)

1What does Article 151 A say?11.jpg

New Article 151A
 
28.  The Constitution is amended by inserting, immediately after Article 151, the following Article:
 
“Defence and security measures
 
151A. —(1)  Articles 22B(7), 22D(6), 148G(2) and (3) and 148H shall not apply to any defence and security measure.
 
(2)  For the purposes of clause (1), a defence and security measure means any liability or proposed transaction 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 for the defence and security of Singapore, and any certificate under the hands of the Prime Minister and the Minister responsible for defence shall be conclusive evidence of the matters specified therein.
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Bill spoken in Parliament in 1994, in regards to the introduction of Article 151A 
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CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT NO. 2) BILL spoken in Parliament on 25 / 8 / 1994 in regards to Defence and Security Measures – 

The Deputy Prime Minister, Prime Minister’s Office (BG Lee Hsien Loong):

Defence and Security Measures 

We need to make one exception to the principle that the President must concur with any drawdown of reserves, and must publish his opinion if he concurs with any drawdown. This is for defence and security-related measures. 

Firstly, the President will not have power to veto such transactions. Spending for defence and security purposes is qualitatively different from giving handouts to the population or subsidising social services, which were the dangers the Elected President mechanism was designed to protect against.

The Prime Minister and Cabinet are ultimately responsible for Singapore’s defence and security, not the President. Under the Constitution, they, not the President, decide whether to declare an Emergency. We cannot take the risk of a disagreement between the Prime Minister and the President over whether some spending is necessary for defence and security. 

Secondly, such defence and security transactions will not be made public, even if they are likely to draw on the reserves. To do so would compromise security. In a period of political tension, untimely publicity may worsen the crisis and alarm the population. Even in peacetime, Mindef has never published details of its equipment procurements, though of course Mindef’s total budget is approved by Parliament every year. Nor do most other countries. 

Note that the President will still be informed about such transactions. But he cannot veto them, nor publish his opinion that they will draw on reserves. 

As this is a significant deviation from the principle of having two keys, we have incorporated a safeguard. The transactions must be recommended by both the Chief of Defence Force and the Permanent Secretary of the Ministry of Defence, and then certified by both the Prime Minister and the Defence Minister to be necessary for the defence of Singapore. The Chief of Defence Force and the Permanent Secretary (Defence) are both non-political appointments.

Permanent Secretaries are appointed by the President on the advice of the Prime Minister from a list of names submitted by the Public Service Commission. The Chief of Defence Force’s appointment is subject to the concurrence of the President, given in his discretion. Unless these two non-political appointees recommend the transaction, the Government cannot proceed with it. 

The amendment is set out in a new Article 151A. There will be consequential amendments to section 9 of the Audit Act to preclude untimely publicity for such transactions. 

1 Analysis of Article 151A1

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According to Tho Li-ann (Chief Editor of the Singapore Journal of Legal Studies, and Provost Chair Professor at the Faculty of Law, National University of Singapore) in her book titled – Singapore Chronicles – Presidency pg 34 – 36 (2015):

In 1994, the government moved a constitutional amendment which backtracked from the general ‘two-key mechanism’ in relation to government spending that would draw down on past reserves.  Article 151(A) stated that the elected President would have no role in relation to spending involving a ‘defence and security measure’ and that such transactions or liabilities would not be made public. Both the Prime Minister and Defence Minister must certify this was necessary for the defence and security of Singapore, which would be ‘conclusive evidence’ and not subject to scrutiny before a court of law, being a political decision.

In other words, an exception was created with respect to ‘defence and security measures’, that any bill relating to this which drew from past reserves would not be subjected to the need for presidential concurrence nor would the President be required to publish his opinion should he concur. He would only be informed about such transactions. Instead, such bills would only be subjected to parliamentary scrutiny that attends every bill that is laid before the house.

Within a dominant party state, this is a weak check and the spectre of the original fears that precipitated the institution of the Elected Presidency, that an overly strong Cabinet would have untrammelled power, re-emerges..(Individual) transactions drawing down on past reserves which were ministerially certified to relate to defence and security transactions would be known only to the Cabinet..

Criticism was levied against the amendment to the effect than an irresponsible Government could construe ‘defence and security’ so liberally, without being subject to any mode of accountability, as to use to use money to buy votes disguised as security measures. NMP Walter Woon, pointing to the possibility of abuses, argued an irresponsible prime minister could circumvent all safeguards by certifying any transaction as necessary for national security..He argued that ‘to take the power altogether from the President…opens the door to abuse. There is no point having two keys to the door if you leave the door unlocked’.

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Photo credit of President Ong Teng Cheong: The Straits Times

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