Tuesday, August 05, 2014

I have moved

This blog has now been moved to wordpress.

You can access all the posts here:

Thursday, June 05, 2014

A Right Roy-al Mess (Vandalism, Defamation, CPF and the demise of the PAP)

It’s been a while since I last blogged.  But, quite a few things have been going on in our little red dot and some of them have been pretty red hot. 

Two things seem to have converged together to give the impression that there is a state of rage right now in this country and that the PAP needs to take heed of this.  Quite literally, the writing is on the wall. 


We have seen the issue of vandalism hitting the media spotlight with the Sticker Lady (Samantha Lo) a couple of years ago.  What she did had mild political overtones.  But, otherwise it was the case of an individual pushing the boundaries of acceptable social behaviour (whilst at the same time crossing the legal  boundaries).

The other famous instances of vandalism were the Michael Fay incident in 1993/1994 and Oliver Fricker’s train vandalism in 2010.  These had nothing to do with politics.

When the Vandalism Act was passed in the 1960s, it included caning as a punishment.  The reason was political.  Even if we were to put aside the question of whether caning should be a form of punishment at all, it is plainly obvious that caning for a property offence is extremely disproportionate.  It appears that in the 1960s slogan-writing by political opponents was a phenomenon the PAP government had to contend with.  LKY and his fellow Parliamentarians seem to be aware that they were not dealing with mere juvenile delinquents.  These were persons driven by ideological passion.  In his cruel, brutish fashion, the old man seems to have felt that a few strokes of the cane would set right whatever political thinking there was in the minds of the slogan writers. 

I have blogged about this issue of the politics behind the Vandalism Act before…

I feel it is appropriate to quote from the man himself on the reason for corporal punishment:

“a fine will not deter the type of criminal we are facing here.  He is quite prepared to go to gaol, having defaced public buildings with red paint.  Flaunting the values of his ideology, he is quite prepared to make a martyr of himself and go to gaol.  He will not pay the fine and make a demonstration of his martyrdom.  But if he knows he is going to get three of the best, I think he will lose a great deal of enthusiasm, because there is little glory attached to the rather humiliating experience of having to be caned.”  -  Lee Kuan Yew, 1966
So we have now come full cycle. 

“Fuck the PAP”.  

That is not the first time that I have seen that phrase.  There must be numerous public toilets in Singapore serving the function of being the canvas for the citizenry’s frustrations.  But, the display of that undercurrent of frustration on a wall on top of a HDB block is dramatic and audacious.  Before the authorities could whitewash those words away (and they were swift in doing so), pictures of the graffiti got posted, re-posted and shared on numerous Facebook walls.  To be honest, many of us cheered the figurative punch in the PAP face even if we may not condone vandalism.  The local media (dutifully attempting to protect the image of their masters) carried a photograph with the words “fuck” and “PAP” blurred which prompted many mocking statements online about how the Straits Times seems to think that the latter is a vulgar word that deserves to be censored. 

The authorities moved in swiftly.  The crime scene was whitewashed swiftly after police had inspected it.  5 kids were duly rounded up and have been charged and are out on bail.  Guilty or not guilty?  That is now for the court to determine.  But, it is undeniable that the anti-PAP sentiment seems to be boiling over. 

We don’t usually expect elderly persons to scribble graffiti.  This seems to be an activity reserved for teens and young adults.  So, when a 71 year old man was arrested for writing graffiti on bus stops, his age was itself a statement that spoke louder than the words that he scribbled:  “We support CPF blogger. Return our CPF money…”   In all, 11 bus stops were identified by the police to have been vandalized by the same individual.

What would drive a 71 year old man to take the rather risky step of defacing public property when the state’s intolerance of this kind of crime is well known?  Obviously, a deep-seated hatred for the government’s policies relating to CPF is sweeping the land.  The older generation (including my parents) has been pretty loyal in its electoral support of the PAP.  But, as many of them are struggling to make ends meet and as medical bills rise and as their children struggle to support them in their old age, they can’t help but notice the woeful inadequacy of CPF as a retirement fund. 

The frustrations are real.  I see many former PAP loyalists of that generation becoming openly critical of the PAP.  Persons that I have known to be lifelong PAP supporters have been lamenting that the current leaders have become completely out of touch.  The lack of transparency surrounding the GIC, Temasek and CPF has led many citizens to speculate about investment losses and even potential cronyism.  Just as there is no evidence to suggest that there is no wrongdoing, the non-transparent approach adopted by the state results in a lack of evidence as to whether all is well in relation to the CPF monies of the people.

On and off, there have been articles online speculating about Temasek Holdings and its financial health.  None of them managed to fire the popular imagination.  The usual opposition supporters would have been the likely readers of many of these articles. 

Roy and the Emperor’s Opaque clothes

Frustrations are such that very few people have the ability to intellectually dissect and try to understand and come to terms with the exact source.  If I have been feeling frustrated about one issue, it can very easily be morphed over into being a frustration about another issue.  For some time now, Singaporeans have been troubled by transportation woes, rising property prices, rising cost of living, depression of wages, overcrowding and of course many of these frustrations have been channeled into being a general resentment of the government’s population policy. 

But there is a more fundamental sore point that haunts many Singaporeans.  We don’t often articulate it as the single biggest issue.  When you come to think of it, the issue surrounding CPF savings and the ability of Singaporeans to retire has been something that has troubled us long before immigration and overcrowding became issues. 

Many Singaporeans have a legitimate concern about the viability of the CPF system as a retirement plan.  Personally, I don’t think I can retire comfortably with my CPF savings.  I have to make other financial plans for retirement.  If you are still in your 20s or 30s, you would be well advised to start early in saving and investing for your retirement.  Don’t put it off till you are in your 40s or 50s.  I believe that for the average Singaporean, the CPF savings and the amounts in Medisave will be insufficient for their retirement and medical needs. 

For the elderly today it is already too late to do anything.  My parents’ retirement investment was their kids.  That’s the same with my wife’s parents.  I believe that for many Singaporeans in their 70s and 80s the common problem is that they have become entirely dependant on their children for medical as well as daily living expenses.  Medical expenses can be a real killer.  From my own experience, my wife’s Medisave has been completely depleted after using substantial sums for her parents’ medical expenses.  My parents are presently dependant on me and my sisters for daily expenses as well medical expenses.  My mother’s medisave is depleted and my father’s would be easily depleted if either one of them has a major hospitalization expense.  It was not common during my parents’ generation for them to have medical insurance. 

I am aware that many other elderly Singaporeans don’t even have the luxury of depending on their kids.  These are the Singaporeans that must be feeling that there is a certain breach of faith in the social contract.  We have a generation of elderly Singaporeans that are not able to support themselves financially:  A generation of Singaporeans that toiled really hard; a generation that did not have much by way of education but one that compensated for it through sheer hard work; a generation that was literally being abandoned by the government and the general society until the recently announced Pioneer package (which the cynical amongst us can’t help but feel is nothing more than a desperate attempt to prevent further erosion of votes). 

We then have Singaporeans in their 50s and 60s that are experiencing immediate issues with the postponement of the retirement age and the increase of the minimum sum for the CPF.  This, I believe, is a very angry group.  If you were to speak to individuals from low income background (or even middle income) that are part of this age-group, you’d find that there is a general resentment at the CPF policies.  The fact is that many people do not have any idea as to how the CPF rules work and there is of course the general dissatisfaction over the low interest payment of 2.5% that is paid into the CPF. 

Against the backdrop of this general dissatisfaction, we have Roy Ngerng blogging about the CPF issue.  I have read Roy’s blog on and off and he has done some good work on many socio political issues relevant to Singapore.  Recently, when I came across the offending article that is the subject matter of the dispute between the PM and Roy, I was somewhat disappointed at the rather sensationalistic headline and layout of the article.  When I saw the analogy drawn between City Harvest Church and the movement of CPF monies through Temasek and GIC, I couldn’t help but feel that Roy was acting recklessly.  When the PM’s letter of demand was eventually made public, I wasn’t surprised. 

There have been other instances in other local defamation cases when the words were on the borderline of being defamatory.  But, in the case of Roy’s article, I have to say that the legal requirements for defamation can be easily made out. 

I feel that the PM’s decision to send a letter of demand with not just a request for apology but also for damages was a mistake.  By doing so, he gave Roy no alternative.  Apologise and pay damages?  Fight, lose the case and pay damages?  That’s not much of a choice.  When Roy did offer an apology and the sum of $5000, it was turned down. 

I expect that from a PR perspective this case is going to be pretty much a downhill affair for the PM.  Already, the general public perception has been that this is a case of the big guy bullying the little guy.  The swift online fund-raising campaign on behalf of Roy demonstrates that there are a significant number of people that are willing to put their money where their mouth is.  Hitting $70,000 in collections in 4 days is undeniably a record.  The contributing public is clearly not homogenous.  Some see this as a battle to find out the truth about the CPF.  There are others who hate the PAP and just want to help out Roy in his fight.  There are contributors adopting a nuanced position on this whole saga: ‘I don’t agree with Roy’s assertions but I defend his right to speak up fearlessly’.   (I personally feel that way as well.  It is for precisely this reason that I did not support the petition to close down STOMP.)

What the PM needs to recognize is that this is not just another one of those old defamation cases pitting PAP Ministers against opposition politicians.  For one, Roy is just an average citizen earning a meager income as a social worker.  And secondly, the issue raised up by him is closely tied up with that very issue that is most Singaporeans’ biggest sore point.  Forget about immigration, the population white paper and the infrastructural squeeze.  CPF strikes a raw nerve. 

It is quite likely that as the case against Roy proceeds, the issue of retirement funds will be kept high up in the priority list as far as voters are concerned.  I am sure that the PM’s lawyers will try their level best to ensure that they get a summary judgment in the case so that the matter will not go for trial.  Once it doesn’t go through the trial process, then there will be no embarrassing questions that can be asked about the CPF or Temasek or GIC. 

In all likelihood, they will succeed in obtaining a summary judgment and the matter will be concluded through a chamber hearing and members of the public will miss out on any juicy cross-examination in open court.  Roy’s rather public display of his admission means that he doesn’t have any defence when the matter proceeds to court.  His letter of apology states the following:

“2.   I recognise that the Article means and is understood to mean that Mr Lee Hsien Loong, the Prime Minister of Singapore and Chairman of GIC, is guilty of criminal misappropriation of the monies paid by Singaporeans to the Central Provident Fund.
3.   I admit and acknowledge that this allegation is false and completely without foundation.”

One of the defences to defamation is ‘justification’.  This is an assertion by the defendant that he is stating the truth.  Some netizens that have expressed support for Roy seem to think that Roy should ‘expose the truth’ in court and prove that what he said is true.  That statement in paragraph 3 of Roy’s apology letter renders any such attempt an impossibility.  If he tries to run the justification defence, the PM’s lawyers will rely on Roy’s admission that what he wrote was false and without foundation.

If Roy had privately communicated through his lawyer and attempted to settle the matter through ‘without prejudice’ letters, the communication would have been ‘privileged’ and would not be referred to in Court.  But, by making a public show of the apology letter, Roy has effectively waived the privilege.  PM’s lawyers will apply for summary judgment and there’s a high probability that they will get it. 

The most likely consequence of this is that the matter will eventually be fixed for assessment of damages and it is at that hearing that M. Ravi (Roy’s lawyer) will get to cross-examine the PM.  However, any questions asked about the subject matter of the defamation will most likely be overruled by the judge as being irrelevant.  The judge would only entertain questions pertaining to the issue of the damage to reputation.  This may not go down very well with the general public.

The irony of all this is that even through the law taking its ordinary course and the judiciary acting impartially and fairly in accordance with the law, the public is going to end up getting the impression that the proceedings are biased and unfair.  Perception, not truth, is everything in politics.  PAP politicians, more than any others should be aware of this. 

Pursuing this case all the way is going to be a serious PR disaster for the PM. 

Thanks to the increased publicity generated by Roy Ngerng’s case, I have noticed that social media is abuzz with plenty of articles focusing on CPF, Temasek, GIC and transparency. (SG Daily carries links to most of these articles  If these issues are kept on the agenda consistently, it will turn more and more voters away from the PAP.  I am not sure if the PM’s PR people realize that they have stirred the hornet’s nest.

Saturday, 7th June 2014, Hong Lim Park will witness another protest.  Turnout is likely to be strong.  Many friends and acquaintances have expressed a desire to go for this protest.  It would be interesting to see how many people feel concerned enough about the CPF issue to turn up for the protest.  The protest is not about Roy Ngerng.  But, the defamation suit has definitely coloured the event. 

There are some serious issues that need to be addressed in Singapore about what should be the ideal retirement plan that is feasible not only for the rich but also for the weakest amongst us.  The “Return Our CPF” protest would hopefully help to get the ball rolling in terms of greater transparency in the system and in ensuring that we as a nation can work out a more viable retirement plan for our citizens.  But of course, one can’t help but feel cynical. 

Whatever your position might be on the Roy Ngerng saga, I feel that it is important to have a good showing on Saturday to send a clear message to the government that we are not happy with the way that the CPF system is being administered. 

Friday, April 11, 2014


I had a fish tank with not much fish inside.  My father gave it to me. The fish had a lot of room to swim around and the tank was clean and beautiful. I didn't need to spend a great deal of time, effort or money to clean the tank.

Over time, I decided to keep the tank dynamic and I introduced more fish into the tank. It became more colourful and more interesting and most of my friends that visited my place did not get bored as there was always something new in the fish tank for them to see.

Three years ago, one of my friends pointed out that the fish were not happy. I thought it was absurd. How could he know how the fish felt? In any event, they were well fed. Why should they be unhappy? Do they have feelings in the first place?

And then in May that year, some of the fish started jumping out of the water and some of them started crowding in one corner as if they were attempting to push the tank. (Silly fish!  Structural things like that are too mighty for mere fish to deconstruct or destroy.  Anyway, no tank = no fish.)

I realised from their behaviour that something was wrong. I didn't know how to communicate with them nor did I understand what they were up to and so I got my friend who speaks to fish to converse with them. I know that whatever problems one perceives can easily be solved by persuading that person to see the wisdom of my point of view. Getting the fish to see my point of view shouldn’t be too difficult as they are not too smart.

The conversation was going well, I think. My friend told me that the fishes understand my position and they were just upset that foreign fish were allowed into the tank. I can't believe how narrow minded fish can be. I guess they don't have the intelligence of us humans. I explained to them, through my friend, that they too were foreign at one point in time when the tank was empty. They have to be grateful. Who put the water in? Who put the filters in? Who cleans the tank regularly? Who is feeding them?

I need a whole variety of fish to keep the tank interesting. Those visiting my house have come to see the fish tank as the main attraction. If this variety of fish didn't exist, my visitors will go away.  This is how I have been generating revenue.  I charge the visitors a fee and through this revenue, I am able to feed my fish.  I think some of what I was saying was beginning to filter into their pea-sized brains.  

And then it happened. My filter wasn't working properly and the pump broke down. Over the years I have outsourced all maintenance of the tank to a few different companies. It's an efficient way of maintaining the fish tank, you know. Besides, I wasn't too worried because all these companies were ultimately overseen by my wife. She's a very capable woman. She doesn’t make mistakes. Even when she does, if you view it in the long run, they would not really be mistakes. But you need human brains to understand this. Fish brain is somewhat limited. As I now realize through my fish language interpreter that fish have feelings, I cannot tell the them that they are daft. They are daft as my papa has often pointed out. But I can't tell them that.

Anyway, I digress. So, with the filters malfunctioning and the pumps not working, the fish started getting worked up. These days they have found a way of communicating with each other that is fast and effective.  There is a wire mesh netting on the top of the fish tank that I installed.  The fish have found a way to tap on the net to send messages to all parts of the tank.  Their noise making can be incessant at times and the fish interpreter tells me that the dissident fish frequently pick up any mistake by the maintenance companies and DRUM out messages using the net.  Over the last two years, the maintenance failures have increased and the noise from the tank has been increasing. 

Last year, I decided give the fish a reality check.  I took a piece of white paper and I wrote the following on it:  “You no make babies.  Not enough fish.  No visitors come.  No money for me to buy food.  You become hungry.  You die.  I bring new fish.  Make tank colourful.  More people come to visit.  More revenue come in.  You get more food.”  I am told that some of the fish have become clever and they can understand what I am saying.

I put the white paper inside the tank.  The fish went wild.  They didn’t like the fact that I was going to introduce more fish.  Imbeciles! They don’t understand that the tank will become unsustainable without the new fish.  I don’t know how to keep them happy.  Over the last year, the filter and the pump have been having frequent problems and the tank has been getting dirty and…   well….  crowded.  

The other day one reporter found out about the complaints of my fish and asked me about it and this is what I told him:  “I succeeded more than I expected in building up a vibrant fish tank and so in terms of the infrastructure, I was not able to catch up – my pump, my filter.  And I have paid a price.  I have spent the last few years working hard to come back up to speed.  I wish I had been able to foresee this outcome and I could have acted sooner.  But, that is 20-20 hindsight.”

The stupid fish are making fun of me.  They think that I should have foreseen that if I introduced more fish, the tank will get crowded and there will not be enough space and that the tank’s infrastructure cannot cope.  I am fed up. 

Monday, August 26, 2013

offshore companies, business interests and the need for transparency

In April this year the International Consortium of Investigative Journalists (ICIJ) announced that they have in their possession a database of offshore firms.  I had blogged about this back then. A Singapore entity (Portcullis Trustnet) setting up trust companies was thrown up as a link by the ICIJ.  Portcullis has officially taken the position that its operations are perfectly legitimate and that no laws have been infringed. 

To be fair there are legitimate usages for offshore companies and one has to proceed carefully to avoid jumping to conclusions.  In June this year, ICIJ released their database and made it available in a searchable format online.

The link for the database is here:

Before I proceed further, here is a disclaimer by ICIJ:
"There are legitimate uses for offshore companies and trusts.  We do not intend to suggest or imply that any persons, companies or other entities included in the ICIJ Offshore Leaks Database have broken the law or otherwise acted improperly."

There will be a tendency by many to assume that offshore firms are used for the purpose of money laundering and tax evasion.  Whilst there is a possibility of such abuse, the truth is that the bulk of the companies are legitimate businesses using offshore firms for perfectly legitimate purposes. 

For the fun of it I decided to run a few local personalities' names through the database.  A random selection of our politicians (PAP and opposition) didn't throw up any information.  I tried some local law firms' names and a number of firms cropped up in the database.  It is likely that some of these lawyers were acting as nominees for their clients or that they were assisting in the setting up of offshore firms for these clients.  Whilst I was searching law firms' names, I decided to start keying in individual lawyers' names.  That was when I decided to try Mr K. Shanmugam's name. 

This is what I got:

He had been a shareholder and director of Ever Fortune Management Limited from 10 October 2005 and the company became dormant in Nov 2008.  The search reveals that there was another shareholder, Yao Mina, (not Yao Ming...  although that is what I thought I saw  :-)  )  who was the sole shareholder and director from 24 Jan 2005.  This person's directorship ended on 10 October 2005 although he continued as a shareholder.  It is entirely possible that Mr Shanmugam's position is no more than just as a nominee director. 

Before any wild speculation starts parading around the internet, let me be clear on this.  The fact that he had shares in or directorship in an offshore entity does not in any way lead to the conclusion of any wrongdoing.  Firstly, he could have occupied the role of a nominee.  Secondly, he could have been running a legitimate business and using a BVI company could have just been a case of tax structuring (which is perfectly legal). 

The point that I wish to raise is entirely different.  We have a situation of our politicians having business interests.  This, in itself, is not wrong and we do not expect our politicians to drop all business activities simply because they are now political office holders.  But, it would certainly be good if there is some regular and transparant reporting of commercial interests by all Parliamentarians.

In the UK, Parliamentarians are required to report their financial interests in the Register of Members' Interests.  This is now uploaded on the Parliament website and any person can freely browse through to see the kind of financial interests that politicians have.

Back in Singapore, every now and then we get surprising revelations about business interests.  In December 2012, the discovery of the existence of a "PAP owned" company was shocking to many.  (In reality, the ownership of AIM was by an ex-PAP MP and not the PAP itself.)  More recently, in the height of the furore over the haze, there was an unfounded allegation of financial interests on the part of a Minister in a company that may have been involved in the slash-and-burn farming in Indonesia.

I believe that it is about time that all elected representatives are made to commit themselves to making full and frank disclosure about all their financial interests so that citizens will have a clearer picture.  Secrecy & opacity, unfortunately, fuels speculation.  The following is from the introduction to the UK Register of Members interest and it sets out the purpose behind such disclosure:

"The purpose of the Register is to encourage transparency, and through transparency, accountability. It is "to provide information of any pecuniary interest or other material benefit which a Member receives which might reasonably be thought by others to influence his or her actions, speeches or votes in Parliament, or actions taken in the capacity of a Member of Parliament"."

I hope to see the development of such a disclosure mechanism in Singapore. Our Parliamentary disclosure requirement is found in S.32 of the Parliament (Privileges, Immunities & Powers) Act (Cap 217).

“32. A Member shall not in or before Parliament or any committee take part in the discussion of any matter in which he has a direct personal pecuniary interest without disclosing the extent of that interest and shall not in any circumstances vote upon any such matter.”

In the Standing Orders of Parliament, there is a provision for the procedure when there is an issue of financial interests:

"65. – (1) Apart from the provisions of law requiring a Member to disclose the extent of any direct pecuniary interest, a Member shall not vote on any subject in which he has a direct personal pecuniary interest.
(2) A motion to disallow a Member’s vote on this ground shall be made only as soon as the numbers of the Members voting on the question shall have been declared."

It is clear that MPs cannot vote and cannot engage in discussion on an issue where they have some financial interest.  But, how do we as citizens ascertain for ourselves what those financial interests are?
I have been searching the Parliament website to see if there is any publicly available information on the financial interests of MPs.  I can't find anything.   The Register of Members' Interests in UK is a publicly available document and anyone with internet access can easily view it at the Parliament website.  I hope that we could have something similar.

In the immediate aftermath of the 2011 general elections, the Prime Minister issued an advisory to his fellow PAP MPs entitled "Rules of Prudence".

There is a direction in there to the PAP MPs to disclose Directorships to the Party Whip:

"Please inform the Whip of all the Directorships that you hold, and of the director's fees or benefits in kind e.g. stock options, which you receive.  Include the name of the company, the position(s) held, the date of first appointment and the current Chairman of the Board.......  by the end of January for the preceding calendar year..."

Can we now have public disclosure of all MPs' financial interests and make it easily and freely accessible online?

Tuesday, June 11, 2013

The Broadcasting Act is fundamentally flawed

We've had our blackout online protest.  We have done our offline protest at Hong Lim Park.  The blogging community has made a loud enough statement to be heard.  But, as with many things in Singapore, though we might shout out loud, we may still not be heard. 

I was at Speakers' Corner on Saturday, 8 June 2013.  It was a remarkable job by the #FreeMyInternet chaps.  They managed to get themselves organized within a short time frame and got the message out to enough people to gather a decent crowd on Saturday. 

I know that the #FreeMyInternet movement made it very clear that their primary goal for the time being is the revocation of the MDA's latest licensing rules.  But, I am sure their ultimate desire is also to see greater freedom in terms of the traditional media as well. 

There is one thing that we need to be very clear about.  The current licensing rules are set out in the Broadcasting (Class Licence) (Amendment) Notification 2013.  By virtue of this notification, MDA can, at its discretion, remove any website from the Class Licence and require it to obtain a specific licence.  The problem is not really a result of this subsidiary legislation.  The problem is in the parent Act of Parliament itself.  Parliament has drawn up a provision that is so broad that it has authorised lawlessness. 

Under Section 8(2) of the Broadcasting Act,
"Every broadcasting licence, other than a class licence, granted by the Authority shall be in such form and for such period and may contain such terms and conditions as the Authority may determine"

This is equivalent to saying that the licence will be in 'x' form, for 'y' period and contain 'w' terms, where x, y and w will be determined by MDA. 

As for Class licenses, section 9 deals states the following:

9(1) The Authority may, by notification published in the Gazette, determine a class licence, being a broadcasting licence, for the provision of such subscription broadcasting services and other licensable broadcasting services as the Authority may specify.
(2) The Authority may include in a class licence such conditions as it thinks fit.
MDA may issue any form of class licence and impose any conditions. 
Sometimes when a legislative provision is vague and open to interpretation and there exists a danger that it could be interpreted too broadly, we might caricature that legislation by stating that Parliament could have simply given unfettered discretion to a public body to do as it pleases.  The Broadcasting Act has been drafted in such a manner that it literally gives that unfettered power to the MDA. 
In Chng Suan Tze v Minister of Home Affairs (1988), Wee CJ stated:
"All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so."
Ordinarily, the kind of case that the Courts would face involves a government body that exceeds the discretionary power that has been given to it by an Act of Parliament.  Clearly, the Courts would restrain any government body that attempts to do so.  But, the relationship between the Broadcasting Act and the MDA is such that the "four corners" that the Chief Justice referred to in the quotation above is missing from the legislation.  The legislation literally states that the MDA can do whatever it wants.  How did Parliament enact such a law in the first place? 

For Parliament to make a law stating that the Executive arm of government may do as it pleases is as good as signing off on a blank cheque.  The Broadcasting Act is MDA's blank cheque.  It is the hallmark of the rule of law that a government must be subject to and act in accordance with the law.  But, the Broadcasting Act makes a mockery of this principle.  MDA can easily impose any kind of licensing conditions and still claim that it is acting in accordance with the law.  A law that facilitates absolute discretion is only a law in form.  It fails to fulfill its true role in restraining the arbitrary exercise of power. 

In a kingdom, when a king wields absolute power and is not restrained in any way by the law we say that the king is the law, meaning that there is no rule of law in such a state.  What if the king decides to subject himself to the law and he forms a Parliament that would make the law and that Parliament makes a law stating that the King may do as he pleases?  Would we say that there is the rule of law in such a state?  We wouldn't. 

The Broadcasting Act must not facilitate discretion and the arbitrary exercise of power.  It must restrict the MDA's power. 

Friday, June 07, 2013

It is not about the Internet alone. We need to free the media as a whole.

Singapore has come some way since the days of near absolute information control and a pervasive climate of fear.  As a teenager in the 1980s, I remember clearly the oppressive political environment within which alternative voices and opposition politicians were operating.  Even when engaging in coffee shop conversation, there was a tendency amongst many of us to speak less audibly when it came to politics (or not at all) or to cast glances at possible undercover ISD officers.  This was especially so in the wake of the arrests and detention of alleged Marxist conspirators in 1987.  There were many that believed in the official version.  There were many that didn't.  But, one thing was for sure.  We knew that Big Brother was watching. 

From the time that JBJ broke through in the Anson by-election in 1981, there arose a certain excitement and expectation that more alternative voices would enter Parliament.  In the years that followed, there was a growing interest in opposition politics and alternative news.  Those days, with absolute control of the print media being exercised by the state, there was very little by way of alternative sources.  Many of us read in between the lines to make up our minds.  Newspapers that appeared to display an independent streak quickly disappeared.  I managed to get much of my independant information from foreign publications or books available across the causeway. 

Growing up in Singapore against the backdrop of constant propaganda and an undeniably constant climate of fear, the last ten years or so of online information availability has been a truly liberating experience.  For those of us that crave for different perspectives in a debate, the internet has provided us with not only access to information but also an avenue to express our opinion.  There was the often inevitable problem that letters to forum page of the main English daily that were too critical or against the national narrative would not see the light of day.  Those amongst us that had alternative views or perspectives were effectively shut out from the 'national conversion' (to borrow the current national cliche) of the past.

Blogging has provided many articulate Singaporeans an avenue for free expression and other Singaporeans who crave for alternative news a source of information.  Online content providers such as The Online Citizen have emerged as political game changers in many ways.  I am sure that many Singaporeans were relying heavily on alternative online sources for information during the last General Elections in 2011.  My blogs traffic increased tremendously during the GE and also the Presidential Elections.  I can only imagine the kind of increase in traffic that sites like TOC would have experienced.  Singaporeans have been increasingly consuming news online and let's be honest about it, many Singaporeans could well be influenced by the opinion and commentary that they read online. 

When the MDA's new licensing regime was announced last week, I was a little hesitant to brand it immediately as a regressive step and to brand it as an attack on the larger blogging community.  I wanted to read the wording of the regulations to understand whether legally it was possible for MDA to clamp down on alternative news sites.  At first, based on the MDA press release I wrote speculatively about what the government might be trying to accomplish and how it might accomplish it from a legislative standpoint.
Subsequently, when the MDA issued the Broadcasting (Class Licence) (Amendment) Notification 2013, the framework of MDA's action became much clearer and I blogged on this here:

The way that I see it the new licensing regime is sufficiently vague to allow for future licensing notices to be directed at sites such as TOC.  MDA has made assurances that the measure is not targetted at blogs.  The issue for me is not so much as to who is targetted now.  The question is whether alternative sites providing unfavourable content can be subject to licensing in the future.  During the Talking Point show that was aired on ChannelNewsAsia, Minister Tan Chuan Jin did allude to the fact that blogs reporting news could come within the ambit of the licensing requirement.  To be frank, TOC is a site that does not merely publish opinion and commentary on local events.  Some of their activities does involve news reporting.  During the last General Elections, we saw quite a fair bit of reporting from on the ground that was done by TOC.

Considering the fact that there are linguistic loopholes in the subsidiary legislation for the authorities to exploit, the blogging community has very little to go on except to hope that the PAP government will act in good faith.  The main reason for the online uproar is that the past political record of the PAP hasn't been positive from the standpoint of freedom of speech and expression.  Citizens are generally skeptical about the Ministerial assurances.  (Perhaps, as citizens we might have to wonder whether we are unfairly forcing the current generation of PAP leaders to bear the historical burden of their party.  I have reflected upon this often and tried my best to give the present PAP leaders a clean sheet to work from.  But, the historical baggage is difficult to erase from memory.) 

We don't know the real reason for the sudden announcement surrounding the introduction of the new licensing rules.  We suspect a hidden agenda.  We may or may not be right.  But, one thing is for sure.  If there had been a hidden agenda of gradually subjecting popular alternative sites to a regime of licensing (which involves financial constraints and take-down notices), then the uproar from the blogging community has certaintly acted as a persuasive force in preventing the MDA from taking such steps in the future.  If anything, a concession has been forced in the form of a public statement that the licensing regime is not targeted at bloggers.  It is a minor victory.  But, a victory nevertheless. 

If there was no hidden agenda, the bare mimimum that has been achieved this week is that the blogging community has sent a clear message that we value our limited space and are not willing to give it up easily.  Some of my friends asked me about the point of participating in a 'blackout' (on 6 June 2013) and whether it was a futile and self-defeating exercise.  My take on it is that if websites went on an indefinite blackout until the licensing regime is withdrawn, the blackout action would have been futile and stupid.  What was done yesterday was, in my view, symbolic.  It helped to demonstrate the broad cross-section of support that exists for the freedom of online space.  It was not merely the socio-political bloggers that participated in the blackout. 

Tomorrow, it is time to turn up at Hong Lim Park.  I am going down to show support.  I don't think that the task at hand is merely about reversing the licensing regime.  The current regulations as framed and as explained (defensively) appear unlikely to prevent online discourse and debate.  There are two broad tasks that we as a nation need to focus upon:

1.  Firstly, we have to recognise that the Broadcasting Act enacted by Parliament grants to the MDA too broad a power to institute a licensing regime with any restrictive conditions of licensing whatsoever and all of this can be done without any need for Parliamentary debate.  Just as MDA has introduced the current licensing regime, the MDA can replace it and introduce another licensing regime with entirely different conditions.  The Broadcasting Act has given too much discretionary power to the MDA and discretionary power with improper or no legal contraints is always a dangerous tool in the hands of those that might be bent on abusing that power.  To prevent such future abuse the Broadcasting Act must be amended to take away the general power of the MDA to set licensing conditions in a discretionary fashion. 

2.  Secondly, the traditional print media in Singapore has to be freed up.  The Newspapers and Printing Presses Act has to be either amended or repealed.  The key control mechanisms in this Act that prevent our mainstream media from acting in an independant fashion must be removed.  I have previously blogged about the legal structures that limit the press:
Minister Yacoob Ibrahim spoke about creating a parity of mainstream media and the online media.  Rather than taking the regressive step of introducing controls upon the online media to bring it on par with our MSM, we should take the progressive step of removing the controls on our traditional media.

Anyone interested in understanding the mechanics of legal control in relation to the press should read this book by Francis Seow entitled "Media Enthralled" 

In my reading of the current political situation I would not approach it with a sense of doom and gloom.  I believe that the political awakening of our citizens that has been going on over the last few years will be met and matched by a gradual political rehabilitation of our politicians.  As a country we have every reason to be optimistic since citizens are beginning to show a willingness to stand up for issues that affect the broader community instead of pursuing their own selfish goals.  The juggernaut of the popular desire for greater freedom has started moving.  Nothing can stop it now.  Singapore in 2013 is very different from the Singapore of the 1960s or the 1980s.

We take our pledge seriously and believe in it entirely.  We will strive towards a "democratic society based on justice and equality."

Thursday, May 30, 2013

Making sense of the legislative framework underlying MDA's move

When I blogged on Tuesday about MDA's decision to bring ten news sites under licensing conditions, there was no subsidiary legislation yet on the matter.

On 29 May 2013, the MDA has gone ahead to issue a subsidiary legislation:  The Broadcasting (Class Licence) (Amendment) Notification 2013.  This Notification amends the earlier Broadcasting (Class Licence) Notification.  The amendment that has been made will cause Paragraph 3 to appear as follows:

"3. The provision of the following licensable broadcasting services are subject to a class licence except a computer on-line service provided on or after such date as the Authority specifies in a notice given to the provider of the service under paragraph 3A:
(a) audiotext services;
(b) videotext services;
(c) teletext services;
(d) broadcast data services;
(e) VAN computer on-line services; and
(f) computer on-line services that are provided by Internet Content Providers and Internet Service Providers."
The words in 'bold' represent the amendment. 
What has happened is that whereas in the past all sites were automatically licenced, the new legal position is that MDA can exclude a web site from the class licence.  The precondition for excluding a website from class licence is stipulated in a new paragraph 3A.  It is in this paragraph 3A that the now notorious stipulation of a reach of 50,000 unique IP addresses and at least 1 article per week is set out.  So, news sites excluded under the class licence would have to be registered under s.8 of the Broadcasting Act. 
Interestingly, even before the current development, websites and content providers that came within the class license were required to abide by the Class License Conditions and the Internet Code of Practice.  The change is that MDA will now designate certain sites as requiring licences.  These will be removed from the automatic licensing.  As a condition of specific licensing MDA can then require that a bond is furnished.  Using Yahoo News as an example.  YahooNews was already subject to the Class Licence.  Now it is going to be required to obtain a licence specically.  The news, if deemed to be objectionable, can be objected to and pulled out by MDA. 
So, the real issue is not about whether a site such as YahooNews should be subject to liecensing.  The issue is whether stipulating the requirement of a $50,000 performance bond will operate as a bar to many independant and alternative news sites in the future if these sites were forced to get themselves licensed.  Given the fact that moving a site from class licensing to specific licensing facilitates the State's ability muzzle articles, it is difficult to avoid the conclusion that this exercise is targetted at unfavourable alternative news sites. 
If the concern was about racist statements or such other offensive words, other laws already adequately address them.  There is no need to fool around with the automatic licensing regime.  The irresistable conclusion that one has to reach is that MDA wants to be able to force the removal of content through the threat of forfeiture of the performance bond.