PEC took 'spirit, not letter' of law

[2011] 12 Aug_ST
PEC took 'spirit, not letter' of law
Source: Straits Times; Rachel Chang
THE Presidential Elections Committee's decision to issue four certificates of eligibility has put paid to concern that the criteria are onerous and may prevent contests.
In fact, observers said yesterday that the way the criteria have been applied has widened the goalposts. It now seems far more people than thought could be eligible to run for president, they said.
It is good to know that it is not a strict interpretation of the criteria, but involves human discernment as to the complexity of the role,' said Singapore Business Federation chief operating officer Victor Tay.
He was referring to the criterion that a candidate must have been chief executive or chairman of a company with paid-up capital of $100 million.

Investment adviser Tan Jee Say had applied on the strength of his role as regional managing director of asset management company AIB Govett Asia.
Although it had paid-up capital of less than $100 million, Mr Tan argued that his role was a 'similar or comparable position of seniority and responsibility in an organisation... of equivalent size and complexity'.
That is the wording of the 'catch-all clause' in the Constitution - so termed in 1990 by then-Deputy Prime Minister Goh Chok Tong.
There are now about 800 companies which fulfil the $100 million capital requirement. That means at least 1,600 people might be eligible, since each company would have a chief executive and a chairman.
With the PEC determined to look 'at the spirit, rather than the letter' of the criteria, as National University of Singapore law professor Thio Li-ann put it, this number could be many times more.
Former NTUC Income chief Tan Kin Lian was also found eligible under the catch-all clause, as Income is a cooperative rather than a company.
But it does fulfil the $100 million in paid-up capital requirement.
FairPrice deputy chairman John Lim said that the PEC has now signalled its agreement that 'running a cooperative is just as onerous as running a company'.
The $100 million paid-up capital, after all, serves as a signifier of size and complexity in an organisation.
Where it is lacking, as in Mr Tan Jee Say's case, is that 'it is less clear on what basis the PEC is measuring his management ability', notes constitutional law expert Kevin Tan.
Hence, Mr Tan Jee Say's eligibility is unlikely to become a guideline for future PECs, he said. 'It has always got to be on a case-by-case basis. There may come a time when, due to restructuring, for example, the managing director of the same company may not have the same powers that Tan Jee Say had.'
In denying former JTC Corporation group chief financial officer Andrew Kuan a certificate of eligibility, the PEC concurred with the 2005 PEC, which found that the seniority and responsibility of a chief financial officer were not comparable to that of a CEO or chairman.
Despite this, experts said the PEC is not legally bound to cleave to the decisions of former PECs.
The three-man committee is made up of the chairman of the Public Service Commission, the chairman of the Accounting and Corporate Regulatory Authority, and a member of the Presidential Council for Minority Rights.
This means the individuals in the PEC change as the appointment-holders come and go.
'The composition of the PEC does vary for different elections and I think it is important to institutionalise or regularise a duty to give reasons' for its decisions, argued Prof Thio.
Although she welcomed the longer explanations provided by this year's PEC, as compared with those given previously, she said that it should not be a matter of 'expedient choice but legal obligation'.
Political observer Derek da Cunha pointed out that while the PEC can implement the criteria with discretion, Parliament can change them entirely.
'We must not preclude the possibility of the Government amending the Constitution to make more stringent the criteria for eligibility,' he said.
rchang@sph.com.sg
Observers said yesterday that the way the criteria have been applied has widened the goalposts. It now seems that far more people than originally thought could be eligible to run for president, they said.
Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.
http://www.straitstimes.com/PrimeNews/Story/STIStory_701148.html

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