Backdating legislation for individual needs: Setting a dangerous precedent

On 6 November, the People’s Action Party (PAP) government proposed significant amendments to Singapore’s Constitution, encapsulated in the “Constitution Amendment No. 3 Act 2023.”

The Prime Minister’s Office (PMO), targeting existing constitutional restrictions, presented this bill, which seeks to allow the President and ministers to engage in foreign and international roles on a personal basis.

This initiative is purportedly aimed at enhancing Singapore’s diplomatic influence and serving national interests globally.

Currently, the Constitution does not permit the President, as head of state, to take up public roles in a private capacity. The proposed amendments, if ratified, would address these constraints, allowing the President to participate in public roles privately, but only contingent on the Cabinet’s advice.

The PMO emphasizes a framework that would enable the President to engage in such roles, provided this aligns with national interests. This measure is said to aim to strike a balance. It seeks to balance the President’s autonomy with overarching national priorities. This approach underscores the Cabinet’s advisory role in guiding the President’s actions and statements in these capacities.

The PMO states that occasionally, the President or ministers are invited to take up key positions in foreign organizations. Such positions can enhance Singapore’s international standing.

Furthermore, the amendments mandate the disclosure of any acceptance or relinquishment of such offices in the Gazette, ensuring transparency. However, the timing and specificity of the bill is questionable.

As previously pointed out in another article, the amendments sought in the bill weren’t considered before former Senior Minister Mr Tharman Shanmugaratnam’s election as President on 14 September, which is why I named the amendment bill as the “Tharman’s bill”.

As of today, Mr Tharman continues to hold positions such as the chairmanship of the G30’s board of trustees and the co-chairmanship of the Global Commission on the Economics of Water, even after his appointment as president, roles which some had assumed he would relinquish.

On 2 September, the day after he won the presidential election, he told the media that he would be reviewing his positions, given that he was set to be Singapore’s ninth president. He said then that he would also need to go along with the advice of the Cabinet on whether keeping some of these appointments would be in Singapore’s interest.

Therefore, it appears that the Cabinet’s response is to amend the constitution to accommodate Mr Tharman’s situation.

Was the Constitution violated? This question becomes particularly pertinent as the bill seeks to backdate to 14 September, the date Mr Tharman was sworn into office. If there was no violation, it is puzzling why the bill seeks to have the amendments backdated. Does this aim to rectify an administrative lapse or address a potential violation of the Singapore Constitution?

Should there indeed be actual breaches of the Constitution, can we trust Mr Tharman to perform the duties he is supposed to do as president — such as vetoing government budgets and key public appointments when necessary — even if we disregard the potential conflict of interests arising from his appointments in foreign entities?

A more significant question arises: Can the government change laws, even to the extent of backdating amendments, to enable specific individuals to remain within legal boundaries and avoid prosecution or censure?

Just imagine a scenario where a law, such as one concerning corruption, is retrospectively amended to state that personal benefits from official appointments are permissible, provided they do not exceed a certain value, thereby exonerating individuals who fall under this criterion.

Is this the ‘blank cheque’ that Singaporeans have given the PAP government to sign?