The PEC only receives attention when a presidential election rolls around every six years. Members have the unique job of scrutinising the credentials of those who want to run for the presidency, to ensure that the candidate is competent as well as of good character. They have to check that those who apply through the automatic tracks on the public and private routes do indeed meet the benchmarks set in the Constitution. But they can also exercise their discretion when applicants ask to be considered under the so-called deliberative tracks. And this is usually when things get interesting.

Q: Just give us the facts please. Who appoints these wise men and women and who are they anyway?
It’s all set out in the Constitution, by virtue of their designations, or to be appointed by particular designated persons.

The chairman of the Public Service Commission, who is Mr Lee Tzu Yang, automatically chairs the PEC.

The chairman of the Accounting and Corporate Regulatory Authority, who is Mr Ong Chong Tee, is automatically a member.

As for the rest, two are appointed because they have some high-level experience of the work expected of a President:

Professor Chan Heng Chee, by virtue of being a member of the Presidential Council of minority rights. She was put up by council chairman Chief Justice Sundaresh Menon. (This will be her second time assessing presidential candidates)

Mr Chua Thian Poh, because he is a member of the Council of Presidential Advisors. Council chairman Eddie Teo nominated him.

The last two:

Justice Kannan Ramesh, because the Constitution provides for someone qualified to be or is a Supreme Court judge. He was appointed by Chief Justice Sundaresh Menon.

Justice Quentin Loh, picked by the Prime Minister, because he is assessed to have the expertise and experience in the private sector to help the Committee in his work.

Q: So it is just these six people who are supposed to screen on behalf of the rest of us?
Originally, the PEC only comprised three members. Then the Constitution was amended in 2017 to expand the membership to six. The 2016 Constitutional Commission suggested adding a legal expert, a member of the Council of Presidential Advisers as well as a private sector person nominated by the Prime Minister in light of the new private sector eligibility criteria. Parliament accepted these recommendations but decided not to confine the Prime Minister’s nominee to a member from the private sector. Justice Quentin Loh, the PM’s nominee, is a Senior Judge, who had spent time in private practice.

Q: But why do we even need such a pre-selection team? The people can't be trusted to vote the right person in?
Some person or group of persons must have the responsibility of making sure that the constitutional requirements are met. Even for the ‘automatic’ tracks, the PEC must still make sure that whatever is submitted is accurate and true. The job is bigger and more complex when it comes to candidates who submit through the ‘deliberative’ track. The PEC is also responsible for determining (for all tracks) whether a candidate is a person of ‘integrity, good character and reputation’ (Art 19(2)(e)). The PEC framework has been criticised because it gives too much discretion to a group of unelected persons, especially since the committee’s word is final. Although the criteria for eligibility is stated in the Constitution, the PEC has considerable discretion to decide if it will interpret the clauses literally or more liberally. And they don’t have to explain how it determines, for example, if a person applying under the deliberative track has the requisite experience and ability that is comparable to an automatic qualifier.

Critics have called for more transparency, arguing that more information would help educate the people about the process. It would also erase suspicions that the PEC is in hock with the Establishment, especially as its members are generally drawn from that strata. There were also concerns that political endorsements of applicants could sway the PEC.

Q: But why can't the PEC be more transparent?
First, the law doesn’t require it to be. If it decides to reject an applicant, it has to inform the person in writing of its decision, no later than the day before Nomination Day. Second, if it does disclose, say, the reasons for the rejection, there’s the concern about embarrassing the rejected applicant. What the PEC has done in the past is to inform the applicants who had been rejected of its reasons, and leave it to them to make the matter public.

At least this was the case at least for businessman Salleh Marican and corporate executive Farid Khan, who failed to qualify in the 2017 PE. After they were informed, they told the media that the PEC had referred to the shareholder equity of their respective companies, which were well short of the $500m threshold. The public disclosure of the PEC’s reasons came from the unsuccessful applicants themselves.

While the Constitutional Commission agreed that it was for the rejected applicants to decide whether to make the reasons for rejection public, it suggested that all documents and information provided by successful applicants be made public. This was not taken up by the Government.

Q: What if the PEC is undecided?
The Presidential Elections Act makes clear that a decision made by the Committee is based on a majority of votes. If there is a tie, the Chairman has the casting vote. In any case, if the PEC thinks fit, it may ask the applicant or his or her referees to provide further information. It can conduct interviews with them or consult anyone. The applicant, however, has no right to insist that the committee take any of these steps. For the 2017 PE, the PEC appeared to have based its decision solely on the documents submitted.

Q: Can anyone challenge the decision of the PEC?
Article 18(12) of the Constitution provides that the PEC’s decision on the eligibility of a candidate ‘is final and is not subject to appeal or review in any court.’ This is what is known as an ouster clause. It is an attempt by Parliament to instruct the courts not to interfere in the way in which a decision is made. But all power has legal limits and it is the province of the judiciary to ensure that the power of the PEC is exercised in a legal and rational manner. Any attempt to stop the court from so doing may be considered to be an infringement of the judicial power of the courts. Tribunals (or for that matter, any decision-makers) are not infallible. They may act irrationally or make decisions in a manner contrary to the constitutional or parliamentary intent.

So while Article 18(12) outwardly forbids the Court from reviewing the PEC’s decision, this provision has never been legally challenged.

Q: So when is the PEC going to decide who is eligible to run in this year's PE?
While three people have said that they wish to contest in the PE, it’s unclear if they have submitted their forms applying for the certificate. Application forms were available from June 13, but no submission deadline has been set. Under the Constitution, the deadline is five days after the Writ of Election is issued. The PEC must decide, at the very least, a day before Nomination Day. This year, the presidential election must be held by Sept 13.

Lights on Istana

Through ‘Lights on Istana’ we hope to bring clarity to the facts and foster constructive discourse on the key themes of the upcoming Presidential Election.