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Wednesday, December 02, 2009

Papmandering alert: SPH will brief Singaporeans on the right way to vote on the day before polling day. Every other person: Shut up and Sit Down!

The PAP is at it again: Papmandering - a form of gerrymandering unique to Singapore.

As I defined it in an earlier blog article: Papmandering: 'The art/science of redrawing electoral boundaries, electoral laws and/or the constitution for the purpose of maintaining overwhelming control of Parliament through the mechanics of clearly articulated arguments in favour of an inclusive form of democracy'.

The Prime Minister has chosen to announce, curiously from a faraway place, that a 'cooling off' day would be incorporated into the election process. This, it appears, is to prevent irrational voting. We the voters might be swayed by uplifting, exciting but misleading rhetoric and we might vote against the PAP erroneously. We the voters might be whipped into a frenzy of anger against the PAP and might commit the grave error of delivering a 'freak' election result.

Looks like the PAP has decided that the SPH in its infinite wisdom would be the sole source of information for us all. SPH would 'analyse' the campaign, 'summarise' the issues and present a profile/caricature of all the candidates in the elections. There will be no campaigning on the day before elections. But, will blogosphere remain silent?

The PM has left the Internet as a grey area for now. We would discover once the draft legislation is released. I wouldn't rule out the possibility that they may get so kiasu that they would prevent all unauthorised commentary on the elections either online or through other means. The other real possibility is that recognising that the internet does not possess a sufficient outreach to influence voters, they would take a hands-off approach to bloggers.

Any law that seeks to prevent commentary on elections (where such commentary is not pursuing a party objective but intended to be informative or insightful or even plainy supportive of a political party) would be undermining Article 14 of our Constitution, which provides for the Freedom of Speech. This freedom may be limited under the following circumstances:

Art 14(2) Parliament may by law impose —
(a) on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

It would be interesting to see the justification raised in parliament for such a limitation on free speech. The usual public order and security rant may not be viable. A clever argument could be constructed along the lines of 'the privileges of Parliament' vis a vis the electoral system and that might become the basis the restriction.

I don't know. I'm just speculating.

On the assumption that they do restrict online discussion on the day before polling day, the interesting question is: Will blogosphere remain silent?

Wednesday, August 19, 2009

Public Interest - Not a sufficient reason to disclose information

Finance Minister Tharman Shanmugaratnam: “People do want to know, there is curiosity, it is a matter of public interest. That is not sufficient reason to disclose information. It is not sufficient that there be curiosity and interest that you want to disclose information.”

One of the functions of Parliament is to call Ministers to account. With regard to individual Ministers the expectation is that PArliament is able to get information from them on matters that affect the public. As a representation of Ministerial accountability, Parliament is empowered under Standing Order No.19 to put questions to Ministers pertaining to 'affairs within their official functions'.

Any question about Temasek put to Mr Tharman would be within the ambit of his official functions as a Finance Minister. By Convention he is obliged to answer those questions unless the question is itself within the ambit of excluded matters listed out at Standing ORder No.21. (The Parliamentary Standing Orders are available at this link: http://www.parliament.gov.sg/Publications/SO-merge%20with%20SO%20notes.pdf )

The possible legitimate reasons that he might state for refusing to answer question could be that disclosure might harm national security or that official secrets might be compromised. But, judging from the report in the Straits Times, the Finance Minister appears to offer no justification for refusing to answer the questions. He appears to state that public interest is not a sufficient reason for disclosure. Based on the concept of Ministerial REsponsibility and based on Parliament's crucial role in ensuring that accountability, I would have thought that public interest is the most potent reason for disclosing information that is otherwise not protected as a state secret or information that is capable of compromising national security.

If Public Interest is not a sufficient reason for answering a question in Parliament, then Parliament can be disbanded. Parliament's scrutiny function would be redundant. Ministers can answer every question by saying: "There is a public interest in this issue. But, that is not a good reason for providing you with an answer." MPs don't have to provide a good reason for asking a question apart from the fact that it is a matter of interest to their constituents. It is a mockery of the PArliamentary system to say otherwise. To the Finance Minister, I would like to ask this: What does it mean sir when we say in our pledge: 'to build a democratic society'? Doesn't a democratic society involve the people having a right to know how governance is carried out? In a representative form of government such as ours, do PArliamentarians not have a right to ask a Minister to answer questions of public interest? Doesn't the failure to answer a question without providing any specific exceptional grounds (such as national security) undermine the workings of Parliamentary democracy? Where does that place our pledge so soon after that artificially concocted universal pledge moment?

Sample Q & A in Parliament:
MP: How much was collected from ERP gantries in 2008?
Minister: This is a public interest issue. But, that is not a sufficient reason for answering your question.

MP: What is the current birthrate in Singapore?
Minister: This is a public interest issue. But, that is not a sufficient reason for answering your question.

MP: What is the government doing to assist the elderly living on their own without the support of their children?
Minister: This is a public interest issue. But, that is not a sufficient reason for answering your question.

It can go on and on and on.

Thursday, August 13, 2009

8:22 - The Hypocritical Oath

8.22pm, 9th August 2009 – A moment of no real significance for our nation. But, as trumpeted by the mainstream media, it was ‘the universal pledge moment’. A moment of ‘significance’ manufactured out of thin air. An insignificant point in time artificially grafted onto the nation’s collective consciousness.

10am – That would have been my preferred time. 10am – The moment that the independence of Singapore was proclaimed on the steps of the City Hall.

Wouldn’t that be more significant? Wouldn’t we at least have a greater historical sense of what we were doing when we took the pledge? Wouldn’t it be emotionally significant to those old enough to recall where they were and how they felt at the precise moment of independence?

As with the general plasticity of many things in Singapore, the 8.22pm moment was just another plastic moment. Well, it doesn’t really matter in the end what time the pledge was taken. The larger question that we should ask is how many of those that took the pledge at that appointed time meant what they said?

If you watched the parade on tv, you would have seen a short ‘preamble’ appear on the screen……. ‘say what you mean. Mean what you say.’ I really hope that the citizens of Singapore taking the pledge on that day said what they meant and meant what they said.

My challenge to the pledge takers is this. Ponder very carefully on what you pledged. You pledged…(amongst other things)....

…. to build a democratic society based on justice and equality….

How have you helped to build such a society? Do we have such a society? What can we do to live up to our pledge?

What does it mean to say that a society is democratic? Is democracy defined by the conduct of elections? If the electoral process does not involve a level playing field, does it warrant being termed as being reflective of democracy? If the ballot is cast without an informed choice, is that democratic? Is it democratic to group constituencies together thereby shielding potentially weak candidates from electoral fire? Or even to use such a system to allow candidates that may have otherwise lost their seats to nevertheless become representatives of constituencies where they do not enjoy majority support? Is that democratic?

What is the meaning of justice? What do we mean by equality? Do we have due process in all instances? Or can we be arbitrarily classified as a security threat and incarcerated indefinitely? Do we enjoy equal treatment or does political persuasion play a part in decision making by the authorities?

These are questions that we have to ask ourselves.
If you believe that we do have a democratic society based on justice and equality, good for you. Blessed are the ignorant.
If you do not believe that we have a democratic society based on justice and equality, then you have to consider what is the peaceful and constructive way to accomplish such a society. You have to do this in order to live up to the pledge.
However, if you do not believe that we have a democratic society based on justice and equality and do not think that you need to even ponder about how such a society can be accomplished, but nevertheless gleefully took the pledge, you are a hypocrite!

Friday, August 07, 2009

TAMIFLU, Pharmaceutical companies and their profits

Big Pharma is at it again. I have long been conerned by their attempts at restricting access to cheaper alternative drugs. Originally, the Trade Related Intellectual Property Agreement provided the pharmaceutical companies with a great deal of bite in the global market through enhanced patent protection. However, thanks to a third world led fight for an exception in the TRIPS Agreement, patented drugs need not be shoved down the throats of needy patients in countries where they can't afford the drugs. They can obtain cheaper alternatives. This exception applies when there is a public health emergency.

Therefore, given H1N1's status as a pandemic, the public health emergency exception should now apply to TAMIFLU. But, would patients be able to get their hands on cheaper alternatives? Seems like the World Health Organisation is serving Big Pharma's interest right now.

The following article from The Independent is instructive:



http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-the-hidden-truth-behind-drug-company-profits-1767257.html

Tuesday, August 04, 2009

Celebrating National Day

He peered into the bin exploring the day’s possibilities.

At 71, Mr Lim is active enough to support himself. After all, life is a constant barter trade of drink cans for his daily bread. Like all good businessmen, he has learned the art of cost-cutting: home is now a choice of 4 void decks and the wet market thankfully offers a 20cents per entry toilet.

Staring at him from the bin was a kickapoo can; not as common as Coke or Pepsi these days. He used to enjoy it almost every day at the shipyard.

Those days are still fresh in his eyes. He watched the port speed its way to become the busiest of them all. His best friend Ramu used to joke, “we carry the whole of Singapore on our shoulders”. Ramu was a proud man. Diabetes took away one of his legs and he used to sell lottery tickets at waterloo street until two years ago. Lim heard that nobody claimed Ramu’s body. ‘What happens to unclaimed corpses at the mortuary’, he wondered.

His prolonged gaze at the kickapoo can was broken by an agitated female voice: “Seow ah!’
‘Yes, mad!’ he thought to himself.

Saturday, July 25, 2009

Goodyear leaves: A bad year for PAP to call for elections?

Now that Chip Goodyear's tenure as CEO of Temasek is a non-starter, a great many questions would be flooding Singaporean minds about the non-answers provided in the official statements of Temasek.

Strategic differences? What were they? Why did they not surface earlier during the courting process? Why were they not noticed by the astute custodians of Temasek? Perhaps, the differences involved some corporate governance issues? Perhaps they involved issues of transparency? We will never know.

But, in politics, speculations are just as bad as damaging revelations. How would the average Singaporean voter react to Goodyear's departure and the return of Ho Ching? Given the losses churned out by Temasek and the complete silence on the accountability front, it is tempting to assume that the latest news of Goodyear's departure would broaden discontent amongst the electorate. I am not so sure.

One type of Singaporean is a hardcore oppositionist. Everything negative involving the powers that be is reflective of PAP's failure. Temasek, headed by the PM's wife, having its portfolio decimated by the meltdown in the financial system is just another ammunition to hurl at the PAP; just another issue to hate the PAP for.

Then there is the hardcore PAP supporter. This this type of voter the PAP can do no wrong. Official explanations are the gospel. There is nothing fishy about even the fishiest explanation provided by any person or body remotely associated with the state. The person inhabiting this fairy tale la la land is not going to be moved by the Temasek saga at all. To this person Temasek did not lose $58 billion but made a gain of $56 billion from 2003.

There are voters who would normally vote for the PAP who either don't like the PAP's style of government (but don't hate them) or are not too interested one way or another about politics. The question is whether this grouo of voters would be swayed by the Temasek winds. My guess is that they would not.

Temasek is investing peoples' money. The $58 billion can be seen as gambling away the electorate's fund. But, the hard fact is that the retrenched Singaporean worker or the recession hit small business ownwer or any other Singaporean making ends meet or failing to do so does not see the relationship between Temasek and the food at his own dinner table. If that link is not drawn, Temasek would not be an emotional spark. Temasek to many a voter would be a side show. A useful distraction. A piece of entertainment for us to mock the powers that be. Beyond that, Temasek's debacle would be of no significance.

There are some narratives firmly engraved onto the consciousness of the average Singaporean that it would take more than a shaky Temasek to cause the electoral winds to change course. As office talk and coffee shop talk would have it, Temasek is a joke. It is not yet a source of anger.

Is it a bad year for PAP to call for elections? No.

Wednesday, July 15, 2009

Pork Barrel Politics: Good or Bad?

In the run up to the 1996 General Elections, the then Prime Minister Goh Chok Tong warned voters:

"Your estate, through your own choice, will be left behind. They'll become slums. That's my message."

The PAP then issued an open letter stating: "Please remember that the PAP government cannot upgrade all estates at the same time..... Our resources are limited. Which ones to upgrade first will depend on you. If you give strong support, you will be first in line."

The US State Department had some unkind words for the PAP with regard to the latter's 'threat' to the voters.

BG George Yeo retorted by stating that pork barrel politics had a long tradition in the USA.

so, I take it that pork barrel politics is good.

In 2005, at a luncheon organised by the Foreign Correspondants' Association, PM Lee Hsien Loong said the following with reference to Japan:

“...they landed into problems because of corruption, money politics, pork barreling, and then necessary changes were not made and the country, instead of making adjustments and prospering like America, just flew straight on and went into a storm. So how do we maintain our system and not end up like that?”

so, I take it that pork barrel politics is bad.

Good or bad, pork barrel politics continues. Whereas upgrading was delayed/withheld in the past, now upgrading has been promised for Hougang and Potong Pasir residents. A little sweetener before the elections. If the stick didn't work, perhaps the carrot would?

Tuesday, July 14, 2009

Human Rights for Some Humans

I am mulling over this issue: Is it possible to advocate for human rights and yet qualify it by asserting that not all humans are entitled to rights?

The easiest answer to give to that is to say that if you do not advocate rights for all humans, then you do not in fact stand for human rights. What you stand for is rights for a group of humans or a majority of humans. So, how could you be classified as a human rights advocate.

This issue has now been articulated through NYU’s invitation extended to Pro Thio Li-Ann.

Let us consider the following hypothetical situations:

a) Can I be considered an advocate for human rights if, despite other strong views supportive of human rights, I believe that the worship of idols either in public or private should be criminalised?

b) Can I be considered an advocate for human rights if, despite other strong views supportive of human rights, I believe that the law should state that women must be homemakers so long as there is a child in the family that is below 10 years of age (failing which a criminal penalty ought to be imposed)?

Many of us would instinctively jump at the 1st example as a case of religious intolerance and an infringement of the freedom of each individual to continue as a practitioner of a particular faith. Similarly, many would jump at the 2nd example as a case of gender discrimination if the law mandates that a woman should stay at home.

We have, in our minds, classified gender, race, religion, nationality and language (amongst others) as distinguishing characteristics within the human race and that any discriminatory application of the law in relation to persons on account of those differences as an infringement of their human rights.

So, the next question is: Can a person advocate equal rights for persons regardless of gender, race, religion, nationality, language, etc., but believe in the criminalisation of homosexual conduct and still be considered a human rights advocate?

Some of us would readily assert that discrimination against a person on account of their sexual orientation is an unacceptable form of discrimination. There are others that may construct an argument that a provision like s.377A is not discriminatory towards homosexuals and that it only criminalises the ‘act’. The opponent of homosexuality does not discriminate against the individual but only the act that the individual engages in.

I came across some interesting comments at the following site:
http://nyuoutlaw.blogspot.com/2009/07/nyu-outlaw-boards-official-statement.html

There is an individual posting the following comment anonymously:

“jailing someone for a particular act is different from jailing someone for who he is.
an example of jailing someone for who he is would be, say, putting a jew in jail simply because he was born to a jewish parent (and not because he engaged in any particular practice).
another would be putting japanese-americans in concentration camps simply because they were born to japanese parents - not because of any particular acts they committed.
the professor's argument, as i understand it, is that certain homosexual ACTS should be made criminal - NOT that homosexuals should simply be jailed regardless whether they commit any acts.”



In response to that comment another anonymous commentator posted the following:

“Targeting a behavior that only one group; a) engages in, and b) is defined by, is fairly clearly also targeting that group.
If you make "cheering for the Yankees" illegal, even if you allow people to "be Yankee fans," then you're seeking to jail Yankee fans. It's the same reason a Florida judge found Miami's Anti-Baggy-Pants law to be unconstitutional last year, because it unfairly targeted minorities.”


The 1st commentator then posted a response, part of which is as follows:

“don't many (most?) laws target particular groups? Laws against yelling drunkenly at 2 a.m. target people who like to yell drunkenly at 2 a.m. (an activity which is not without its merits). Laws against exposing yourself in public target nudists (among others).”


In relation to homosexuals the problem that is highlighted here is that the sexual act is targeted and not the group. The 2nd commentator is of the view that where an act is done by a group and that group is defined by the commission of the act, criminalising the act is equivalent to discriminating against that group. Homosexuals fall into such a category. But, what are we to make of the rejoinder about the people who yell drunkenly at 2 a.m.

If every human activity that can be identified as being performed by a group is to be protected on account of it being discriminatory if one were to criminalise the conduct, wouldn’t all criminal activity have to be de-criminalised? To criminalise murder is to discriminate against murderers. To criminalise theft is to discriminate against claptomaniacs… etc.

But, I believe that this conduct-group association misses the point. Criminalisation of a particular conduct by the state should be undertaken on the basis of the harm that the conduct causes to others. Murder, theft, assault, etc, are examples of harmful activities that the state proscribes. Where no harm is done to another, the state ought to refrain from proscribing that activity. It is for this reason that I believe that consensual sexual activity between two adults should not be criminalised.

Let me come back to this point about discrimination against homosexuals. A law such as s.377A criminalises the conduct engaged in by homosexuals and it is a conduct by which that group is defined/classified. The conduct itself causes no harm to others. Therefore, it is not conduct that can be classified alongside theft, assault, murder, etc. Prima facie, it is not conduct that the state has an interest in criminalising.

Next: Criminalisation of a conduct by which a group is defined where such conduct does not cause harm to others would amount to discrimination against the group.
Consider the idol worship example. A law criminalising idol worship would discriminate against Hindus, Buddhists and Taoists primarily and possibly Catholics and certain denominations of Christians.
Similarly, criminalising conduct by which a homosexual is defined where this conduct does not harm anyone is discriminatory.

This then gives rise to the next question. We readily accept that discrimination on account of race, religion, language and nationality is impermissible and we see it as a human rights issue. However, there appears to be a debate over whether discrimination on account of sexual orientation raises a human rights issue. I do believe that depravation of any individual’s ability to peacefully carry out activities that cause no harm to others is an infringement of a human right. So, how does one get to be called a human rights advocate whilst not advocating for the rights of some.

I am quite curious as to how an argument might be advanced to suggest that s.377A does not raise a human rights issue. Anyone willing to venture an argument along those lines?

ON ANOTHER NOTE, Prof Thio has struck a rather conciliatory tone after the furor over her invitation by NYU. There was a law student from NYU, Jim McCurly, who posted an open letter to Prof Thio and she responded to it. The following is a small part of her response:

I was sorry to read that you were beaten up - that is never justified; and being called "faggot" is as ugly as being called "homophobe" so perhaps we will leave the name-callers to their own devices and treat each other first and foremost as human beings with intrinsic dignity. (Is that a howl of protests I hear across the cyber-waves by the usual band of demonisers? C'est la vie.)


Let me get this straight. In ‘Thiology’, it is wrong for a person to be beaten up because he is gay; it is wrong for a person to be called a ‘faggot’. However, it is perfectly right, moral and justifiable that the state criminalise consensual adult male sexual conduct carried out in private. Apparantly 2 years behind bars is far more justifiable than being called a ‘faggot’.

Thursday, July 09, 2009

I can see where you are coming from Mr Shanmugam

My suspicion is that there is a general consensus or at least a majority view in the Cabinet that homosexuality is a non-issue. Clearly, as a matter of policy they keep asserting that s.377A would not be enforced. This indicates, probably, a Cabinet view that what happens in private between consenting adults is of no concern for the state. If, indeed, this was the predominant perspective of the Cabinet, then why did they still insist in Parliament that the law should be retained?

I have a rough idea as to what might have motivated the current posture. Like many average heterosexual individuals in Singapore, I expect that Parliamentarians as well as the Cabinet members by a majority are neither here nor there on homosexuality. Many are not homophobes. Many would have no difficulty communicating or mingling with a homosexual colleague, friend or relative. But, being heterosexual, they don’t understand the marginalisation of a segment of the population on account of sexual orientation. That s.377A stands as law and that it would not be enforced appears to many to be a sufficiently pragmatic approach to deal with the situation.

The argument is: Don’t worry la. We are not homophobes. We won’t persecute you. We won’t enforce the law. Since you have that assurance from us, you need not worry about the presence of s.377A.

So, why is it that Parliament would not repeal this law? Why is it that the Cabinet would not persuade Parliament to effect a repeal? I can only imagine that in the overall interest of maintaining societal harmony and in the face of vocal positions adopted by anti-gay, pro-‘family’ interest groups, the government has erred on the side of caution by retaining s.377A on the statute books. However, since they are not too impressed with the rationale behind the criminalisation of such conduct, they have repeatedly given assurances that the law would not be enforced.

Mr Shanmugam, I understand where you are coming from. You do not think it is right to punish consenting adults for their private sexual activities. However, you think that there is a conservative segment of the population that has a sense of moral outrage vis a vis homosexual tendencies. So, the solution is: Leave the law as it is. We did not make that law anyway. We will just refrain from using it.

After the recent Delhi High Court decision on s.377 of the Indian Penal Code, Mr Shanmugam has been quoted in the Straits Times:

“We won't change the law, but how that is interpreted is up to the courts, It is not our position to tell the courts what to do."

Now, that is a useful way to attempt a rethink on s.377A. Perhaps a ‘reading down’ of s.377A is in order. Our courts could interpret s.377A in a way that would not render it unconstitutional. Note that s.377A only makes the commission (etc) of an act of gross indecency an offence. The ordinary sexual activity involving two males could be interpreted by the courts as not being acts of gross indecency.

The Penal Code:
s.377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

The Constitution:
Article 12. —(1) All persons are equal before the law and entitled to the equal protection of the law.


On that note of judicial interpretation as the way to go, I feel it would be appropriate for me to quote from the judgment in the case of Naz Foundation v Government of NCT of Delhi and others (2009):

‘The judiciary is constituted as the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights. After the enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. To quote the words of Krishna Iyer, J: “The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.”

Tuesday, July 07, 2009

Section 377A is a law, a decorative piece or a potential political tool?

The High Court in Delhi has interpreted s.377 of the Indian Penal Code as not criminalising consensual homosexual relations between adults for to criminalise such conduct would be unconstitutional. To put things in perspective, Singapore had already repealed s.377 in 2007. However, we do have s.377A:

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.


What is our government's response to the Indian Court's decision?

“We have the law. We say it won’t be enforced. Is it totally clear? We, sometimes in these things, have to accept a bit of messiness.” - Mr K. Shanmugam, Minister of Law, 2nd Minister of Home Affairs.


Boy do I have a problem with that statement! The Law Minister is making a case for messiness in the law. Is it acceptable to have some messiness in the law?

The hallmark of the rule of law is the control of wide or discretionary power. Whenever the state is given power over citizens, that power must be regulated by law. Where the state has discretion in the use of power, that discretion must be regulated by law. Thus, in many areas of the exercise of authority, the Executive is required to operate within the boundaries prescribed by the Constitution and by Acts of Parliament. Where the Executive is permitted discretion in the application of particular policies, our system allows for judicial review of such discretion. In this way, we seek to control abuse of power by subjecting all power to law.

We have a slightly different problem when there is a law that criminalises a certain conduct. The state is now authorised to prosecute an individual for the commission of an offence as deemed by that law. Where such authority exists, the expectation of the citizenry is that the law be applied consistently and efficiently. With regard to much of our criminal laws we have earned the reputation of consistent and efficient application. What then becomes of a law that is not enforced? Does it cease to be law by its disuse? Does it gradually fail to have any legal status by the very fact of its long term non-application? The answer is an emphatic No! A law is a law so long as it fulfils the criteria of validity within a legal system. If it is found in a statute, by the requirements of legal validity in Singapore, we would regard it as a law. This is without regard to whether it has become comatose.

So, what is the problem if there is a law that criminalises a certain conduct and that law has gone into a state of disuse but is nevertheless considered to be a law? It is possible for someone to assert from a practical standpoint: ‘Look. That is the law. We haven’t been enforcing it right? We won’t enforce it in the future. So, there is nothing to worry about. The law is a bit untidy. But, that is just going to be an abstract issue of academic importance. You won’t get charged for this offence. We are sincere about it.’ It is easy to be enticed by this supposed distinction between the practical and the theoretical.

I firmly believe that there is a practical reason for removing a law that the Executive and the Legislature regard as one that should not be enforced. If a law that the state has chosen not to enforce is retained, it becomes a tool in the hands of a future Executive that seeks to abuse power. In relation to s.377A of the Penal Code this is the problem. It is clear from statements made by some of our ministers as well as some Parliamentarians that there is no collective interest on the part of our State to enforce s.377A. They have made repeated assurances that they would not enforce the provision. This includes the latest assurance by the Law Minister: “We have the law. We say it will not be enforced. Is it totally clear?” To be fair, I have no reason to doubt Mr K Shanmugam’s sincerity when he asserted that. In fact, there appears to be a certain impatience in the phraseology revealing the sincerity that the Minister has with regard to the non-enforcement of s.377A. I do not take issue with the sincerity of our government on this issue. I do believe that they would not enforce s.377A against consenting adults carrying out the act in private. Whilst I do not believe s.377A would be enforced, I do believe that it exists as a powerful tool if the state is minded to abuse power. We are all familiar with Anwar Ibrahim’s predicament in Malaysia. We should be aware of the fact that abuse of power through the use of archaic law is not merely a theoretical possibility but has in many jurisdictions been a painful reality.

We cannot pretend that we would be immune to such potential abuse of power. Imagine a scenario where a vocal critic is silenced through the application of s.377A. For example, the author of the Yawning Bread blog is, on an objective assessment, a vocal critic of the government. However, his criticisms are neither seditious nor defamatory. They are within the ambit of lawfully permitted speech. Nevertheless, if the state so desires, it could deploy s.377A against the author. Such potential for arbitrary use of power through the deployment of a law in a state of disuse is not just a theoretical possibility but also a practical problem when it materialises.

If the state sees justification in the criminalisation of a conduct, then that law must be enforced. If the state sees no justification for the enforcement of that particular law, then the state obviously does not believe in any justification for the criminalisation of that conduct proscribed by that law. In such a situation, when the law is in fact eventually enforced on an ad-hoc basis, it becomes a discretionary application of the law. The exercise of discretion by the Execeutive is always a worry when that discretion is unregulated. If the state is going to enforce s.377A on the basis of pure discretion, the law is susceptible to political abuse.

My view is that since the state appears not to believe in the need to enforce s.377A, that provision ought to be removed in order to prevent any future abuse of power. (For apologists of the status quo, imagine this: Dr Chee Soon Juan becomes the Prime Minister in 2030 and decides to have Mr K Shanmugam charged under s.377A using false allegations of engaging in homosexual acts with a former member of his staff. – I don’t intend to cast aspersions on the character of either Dr Chee or Mr Shanmugam by using this example. I have chosen to use this example so that the danger of leaving an unused law on the statute book can be driven home)

Monday, June 22, 2009

Uniquely Singapore: Papmandering

Papmandering: 'The art/science of redrawing electoral boundaries, electoral laws and/or the constitution for the purpose of maintaining overwhelming control of Parliament through the mechanics of clearly articulated arguments in favour of an inclusive form of democracy'

We are familiar with the concept of gerrymandering. It is the process by which electoral boundaries are redrawn to produce a distinct advantage for a candidate. Gerrymandering is possible in a first-past-the-post system whereby voting districts that appear to strongly favour an incumbent can be made to swallow up adjacent voting districts that appear to support opposition candidates.

In most countries employing the first past the post system, the principle governing redistricting or redrawing of constituency boundaries is based on the idea of equal representation for voters. Absolute equality in representation is impossible to achieve. However, boundary commissions/committees attempt to find approximate equality in terms of the MP to voter ratio. Considering that the key reason for boundary changes is to take into account demographic changes either due to migration of voters between constituencies or due to voters reaching the age of majority for voting, one finds it unethical that boundary changes could be used to ensure that an incumbent obtains the right number of votes to secure an election victory.

The word gerrymander itself is a combination of Gerry and Salamander. Governor Elbridge Gerry of Massachusets (USA) redistricted his state in 1812 to benefit his party. In particular, a district in Essex County resembled a Salamander because of the artificial redrawing of boundaries. The editor of the Boston Gazette referred to it as ‘gerrymander’ and the name entered the English lexicon through repeated usage.

The beauty of gerrymandering is that nobody can really prove that the redistricting was a purely political exercise as opposed to the legitimate exercise of ensuring equality in voter representation. In Singapore, many observers view boundary changes cynically even though, to be fair, the voter to MP ratio has been kept reasonably proportionate. Based on current practice, district population deviation is kept to a limit of 30%.

Notable amongst electoral regions that fell prey to redistricting would be Eunos GRC. In the 1997 elections, Eunos GRC was eliminated from the map and its residents were split up into neighbouring districts. In the previous elections, Eunos was hotly contested and the PAP team beat the WP team by 45,833 votes to 41,673 votes. In the 1997 elections, it was Cheng San GRC that was hotly contested and although not quite near the close battle of Eunos GRC, the WP managed to obtain approximately 45% of the votes cast. Cheng San GRC did not feature in the 2001 elections.

I don’t propose a detailed study of boundary changes undertaken in Singapore. There are other studies on this phenomenon. What is fascinating about ‘goal post changing’ in Singapore is not gerrymandering. Obviously, it is a practice that is inevitable and at the same time impossible to prove in the first past the post systems around the world. The fascinating twist in Singapore is the use of the following devices:
a) NCMP
b) NMP
c) GRC

In my opinion, the PAP’s strategy in relation to the trend in the 1980s of increasing opposition support was to provide dissenting voices a platform in Parliament. The PAP rightly sized up the general mood of the public as one that did not seek a change in the status quo overnight. There were hardcore opposition supporters. There were the PAP loyalists. There were those who felt intimidated by the perceived lack of secrecy of the ballot and would therefore vote for the PAP. There were then the voters who occupied the middle ground. These voters have existed in the 1980s and I suspect that they continue to exist. This segment of the population can be persuaded to vote for the opposition. They see the merit of a continuation of the PAP government but have thirsted and still do thirst for a greater diversity of views and voices in Parliament. Psychologically, the ability to vent one’s frustration in the public sphere is a necessity in any society. It is a case of letting off steam.

I suspect that the PAP assessed that by providing a platform for opposition voices in Parliament without allowing these opposition members from becoming fully empowered members of the Parliament they would be able to release some of the pressure that was building up in the 1980s. The Non Constituency MP scheme was a device to permit losing opposition candidates an opportunity to speak in Parliament. By doing this, PAP could tell the people: Look. You wanted us to form the government and you wanted opposition voices in Parliament. We have changed our electoral laws to allow you to continue to vote PAP MPs into Parliament and at the same time have your wish of hearing opposition voices in Parliament.

In the same vein of airing diverse views and in order to prevent public disquiet, the PAP tinkered with Parliamentary composition by introducing the Nominated MP scheme. This time, non partisan individuals could be introduced into Parliament and they could raise the quality of the debate through their knowledge in their respective fields. The PAP would have seen that this would be a way of assuring the public that a multiplicity of views can and will be aired in Parliament. Besides, the PAP might have hoped that the NMPs would appear to be of a ‘better’ calibre than the opposition MPs thereby diminishing the need for people to vote for the opposition.

I see the current proposal of increasing the number of NCMPs to be the latest in this line of tinkering with Parliamentary composition. Given the noticeable social activism in Singapore over the last few years, the PAP must have realised that they risk the possibility of losing a few more seats to the opposition in the next elections. One pre-emptive strategy would be to assure the people that more opposition MPs will get to sit in Parliament through the NCMP scheme. Indirectly, they are telling the electorate again that you don’t have to vote in an opposition MP for your constituency. All you need to do is to continue to have your PAP MPs and as a bonus you will get an increased number of opposition MPs in Parliament. These guys can bark. But they can’t bite.

From a strategic standpoint, PAP would have calculated that the hardcore opposition supporters would continue to vote for the opposition. But the segment of the population that thirsts for a voice can be persuaded to vote for the PAP candidates as they would be assured that there will be a minimum number of opposition candidates who will end up in Parliament even though they lost.

Part of the process of Papmandering therefore involves tweaking Parliamentary composition through amendments to the electoral law as well as to the Constitution. The other part of the process is to magnify the distortion normally produced by the first past the post system. In the first past the post system, it is possible for a party to gain a disproportionately high percentage of seats in Parliament when compared to the popular vote. For instance, a party can get 65% of the popular vote and still manage 80% of the seats in Parliament. In the United Kingdom for instance, every post WWII government with a Parliamentary majority has failed to obtain more than 45% of the popular vote.

Given the lack of proportionality that is inherent in the system, layering the GRC over it helps to aggravate the disproportionality. With the introduction of the GRC system, it is possible that some MPs that may have lost their individual seats are rescued by stronger candidates in other constituencies. The practice of having a Minister head a GRC team places an apprehension in the minds of voters that if the team loses, the Minister would no longer be able to serve in his office. Weak candidates within the GRC would benefit from the presence of a Minister on their team.

Let us take the Eunos GRC example. In the 1988 elections, Eunos GRC was a 3 member ward. The votes in favour of PAP – 36,500. The votes in favour of WP – 35,221. If the 3 constituencies that were a part of the GRC were single member constituencies in that elections, it is highly likely that at least one of the PAP candidates would have lost his seat. It is likely that Francis Seow would have won a seat in his constituency. In fact, with a vote difference of 1,279 votes, I would not be surprised if 2 PAP MPs had in fact lost to the opposition in the Eunos GRC(if only the Elections Department were to release the detailed results).

The same analysis can be applied to the Eunos GRC of the 1991 elections. This time around it was composed of 4 constituencies. PAP obtained 45,833 votes as opposed to 41,673 for the WP. With a vote difference of 4,160, again it is likely that at least one of the PAP candidates would have lost the seat in a conventional single member seat.

Through the GRC system, the PAP has managed to keep some of its MPs in Parliament where they would otherwise have found it tough going in a single member constituency. The growth in the size and number of GRCs was accompanied by the disappearance of most of the single member constituencies. This is another unique form of electoral management that has ensured the PAP’s continued super-majority in Parliament.

To accomplish this feat, the PAP has utilised not only electoral boundary changes but also changes to the electoral law and the Constitution. At every step of the way, the PAP has utilised innovative arguments to substantiate the need for such changes (the need for guaranteed minority representation being one). Many of us are cynical in the way that we view the reasons. But, there are many amongst the electorate who are convinced by the stated reasons.

This process of electoral management is uniquely Singapore and uniquely PAP. It warrants being called Papmandering. Of course, the point to remember is that none of this is unlawful or illegal or unconstitutional.

Saturday, June 06, 2009

Tiananmen

Why don't you ask the kids at Tiananmen Square, was fashion the reason why they were there? - from the lyrics of System of a Down

Wednesday, June 03, 2009

Song of Tiananmen Square

The following is an extract from David Rice's fictional work entitled 'Song of Tiananmen Square' based on the Tiananmen protests 20 years ago. I thought the declaration of martial law was handled rather well in this extract:


On the dot of ten a helicopter thudded down along the ravine of Chang'an Avenue, well below the tops of the buildings. It banked in front of Tiananmen Gate and swung in over the Square. It was one of those french-made Gazelles -- I recognised its faired-in tail rotor. We shaded our eyes to watch it hover right above us.
A huge bulk appeared below the helicopter, falling directly on top of us. Song screamed and I thought I was going to die. The thing exploded and became thousands of fluttering leaflets.
They had put it in writing, the bastards, their fucking Declaration of Martial Law.

Tuesday, June 02, 2009

Dazi Bao: Posters from Tiananmen Square - 1989

The following is a poem entitled Small Questions. It was posted anonymously at Tiananmen Square. There was a note from the person who had written it: "From a dialogue between a 4-year old girl and her daughter"

Small Questions

Child: Mama Mama these young aunties and uncles,
why aren't they eating anything?
Mother: They wish to receive a beautiful gift.

Child: What gift?
Mother: Freedom.

Child: Who will give them this beautiful gift?
Mother: They themselves.

Child: Mama Mama in the Square,
why are there so many people?
Mother: It is a holiday.

Child: What holiday?
Mother: The holiday of lighting of the torch.

Child: Where is the torch?
Mother: Inside the hearts of us all.

Child: Mama Mama Who is riding in the ambulance?
Mother: A hero.

Child: Why is the hero lying down?
Mother: To best let the child behind him see.

Child: Am I that child?
Mother: Yes.

Child: To see what?
Mother: The flower with petals every color
of the rainbow.


Translated by Mike O'Connor.
This poem appears in the book, "The Politics of My Heart" by William Slaughter.

Tiananmen: Open Letter from some PLA Officers to the Central Military Commission

The following is an extract from a letter written by some Peoples Liberation Army Officers. The content of this letter was broadcast by the protestors at Tiananmen Square on 18 May 1989. This was reported in Zhongguo Tongxun She, Hong Kong.


1. We absolutely cannot suppress the students and the masses by armed force. We must teach the whole body of PLA officers and men to love the people and protect them; to carry forward the people’s army’s glorious tradition of identity of army and people; and to strictly follow Central Military Commission First Vice-Chairman Comrade Zhao Ziyang’s demand for reason, calm, restraint, and order in properly handling our relations with the masses. Under no circumstances may we act like family members drawing swords on each other, which would give joy to our enemies.

2. As quickly as possible, urge the government and the student representatives to hold a public and fair dialogue. The lives of the hunger-striking students in Tiananmen Square are in danger and we hope you will be able to persuade the government leadership to go among the students and accept their reasonable demands to attain genuine stability and unity.

Tiananmen: The Tragedy of the Crops that Stood Up

A classic problem for a soldier or a law enforcement official: When can you disobey a lawful order?
Is there a higher law or a natural law that we ought to abide by? If the war that one is charged to fight is an unjust war, must the soldier obey the lawful orders directed at him to participate in that war? If a soldier is ordered to kill innocent civilians, must he obey those orders? The Neuremburg trials and the Japanese war crimes trials reveal that as far as international law goes, it is not a defence for a soldier to claim that he was merely following orders.

20 years ago, soldiers and commanders from several Beijing divisions of the Peoples Liberation Army were faced with the dilemma of obeying orders to 'empty the square of demonstrators' towards which end they were given orders to use all means necessary. Given the reluctance of some Beijing divisions, the Chinese government had to bring in troops from other areas.

On this 20th Anniversary of the Tiananmen massacre, it is perhaps worth honouring those brave individuals who could still differentiate between right and wrong even though they were in uniform. The following is from an article this week in Epoch Times:

According to an article published in the March issue of Open Magazine, at a public speech in Yunnan province, General Liu Yazhou [1] said that 38th Army Commander Xu Qianxian had refused to follow orders to lead his troops into Beijing on the eve of the June Fourth Tianamen Square Massacre.

Liu said that General Xu was a real military talent and related some of his experiences with General Xu during a military exercise. “He was sitting in a relaxed attitude, or lying in a tent when he was commanding his troops in good order. That is, he is able to direct and determine the outcome of a battle which may be thousands of miles away.”

During the June Fourth Movement, the Commander of Beijing Military Area Command Zhou Yibing met General Xu personally and requested him to lead his troops into Beijing. General Xu asked Zhou whether he had orders from the Military Commission of the Central Committee. Zhou answered “Yes.”

Then Xu asked again whether Zhou had orders from Deng Xiaoping. Zhou again answered “Yes.” Xu asked whether Zhou had orders from Yang Shangkun, vice-chairman of the Central Military Commission. Zhou answered “Yes.” Then Xu asked whether Zhou had orders from Zhao Ziyang, first vice-chairman of the Central Military Commission. This time Zhou answered “No.”

General Xu then said I cannot follow the orders. (Note: Zhao Ziyang was ousted from power on the afternoon of the proclamation of martial law. General Xu knew well the answer to the question asked.) Zhou then hurled his accusation in Xu’s face, “Your wife is a judge. Your two sons are protesting in the Tiananmen Square! I know it.”

Liu said the 38th Army sympathized with the student demonstrators and so did the 28th Army because they were stationed in Beijing.

The 28th Army was marching into Tiananmen Square on the morning of June 4, 1989. Protesters and many citizens of Beijing constructed roadblocks to stop the military’s progress. On the way to Tiananmen Square, army commander He Yanran looked around and said, “Everywhere there is a green curtain of tall crops.” The implication of his remarks was that the PLA had become like the enemy of the people and the Chinese people were the real protectors of China. The phrase referred to the anti-Japanese war, when a lot of ordinary people were fighting against the Japanese army, hiding in the crops and coming out to fight. The political commissar replied to him, “One hundred thousand youths stand for one hundred thousand soldiers.” Meaning the students and young people were playing the role of soldiers in the army defending against invaders. The 28th Army did not move against the blockade of Chinese citizens.
Vice-chairman of the Central Military Commission, Liu Huaqing requested Air Force Commander Wang Hai to send a helicopter to shout propaganda to the 28th Army such as “Move forward! Move forward regardless of anything!” But the army commander had no ear for this order.

Monday, June 01, 2009

Secularism - recycling an old article for the page 73 girl

Given my disappearance from blogosphere during the period of the AWARE saga, I have yet to express any view on the issues raised by 'hostile takeover'. For now, I have decided to recycle an old piece that I wrote in 2006 about secularism.

The Works of James Madison

Secularism is a political value that needs to be continually reinforced. In a multi-cultural, multi-religious society such as Singapore, it is taken for granted. Secularism is so much a part of the substratum of politics here that one does not even consider the dangers of a non-secular theological state.

One cannot be overly complacent about unholy alliance between the church and the state. Such alliances have never been spiritually fruitful and have always been instrumental in facilitating some form of tyranny or other... I was just reading some of the works of James Madison and came across the following. Its from an address by him to the General Assembly of the Commonwealth of Virgia in 1785. Americans today are faced with the dangerous enchroachment of right wing religious groups into the political arena. This observation of James Madison from 221 years ago has not been proven wrong despite the passage of time.

"What influence in fact have ecclesiastical establishments had on Civil Society?

In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.

A just Government instituted to secure & perpetuate it needs them not. Such a Government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another."

Tiananmen

The following video from Human Rights Watch is a timely reminder why this is a tragedy that cannot be forgotten.




http://www.hrw.org/en/video/2009/05/12/tiananmen-chinas-unhealed-wound

Thursday, May 28, 2009

A sizeable opposition now is an insurance policy for the future

An English friend of mine once remarked that there is a close link between the free market economy and the free marketplace of ideas. Just as the former is reliant on the unfettered exchange of goods and services and the natural forces of competition so is the latter reliant on competing viewpoints seeking attention and acceptance with the most rational or the most socially relevant (given the particular age and location) being pushed to the fore.

It is a case of survival of the fittest idea.

The quality of debate hasn't been stellar in Singapore (with the exception of signs of intelligence emerging via blogosphere). Insofar as Parliament is concerned, MPs haven't been accustomed to vigourous debate and I guess the sedate Parliamentary air can seep into the cells through some kind of osmosis and affect the logical faculties.

The Worker's Party leader Low Thia Khiang, made on Monday what I thought was a rather uncontroversial and straightforward observation about the need for greater opposition presence in Parliament to act as a check and balance on the PAP-led government. He was making the point that people would have no recourse if the ruling party were to abuse its power, trample on people's rights and become corrupt.

In response to Mr Low's assertion PAP MPs are reported to have raised some arguments. From Channelnewsasia:

"Indranee Rajah, Deputy Speaker and MP for Tanjong Pagar GRC, replied that the citizens of Singapore have the right to vote against the PAP, and said Mr Low's suggestion is unsound.

She said: "If that day ever comes, then the people are at liberty to vote out the PAP government and should do so in that situation.

"The premise of Mr Low's suggestion is flawed. He's really saying just in case PAP becomes corrupt in the future, then people had better vote for the opposition now.

"But if you apply the same logic, then the argument can also be made that if you vote in the opposition, then they may become corrupt in the future, so in order to avoid that, you might as well vote for PAP now." "


Ms Rajah's assertion (that when the PAP government does become corrupt in the future, the people of Singapore are at liberty to vote out the PAP) is rather surprising. Let us assume that we have the same power balance in Parliament in about 20 years time. Let us assume that there emerges clear evidence of corruption amongst a number of Cabinet Ministers of that future date. The people of Singapore decide to vote the PAP out of power. But, guess what. The opposition parties are weak and crippled by political impediments that currently exist and presumably would continue to exist at that later date. They are unable to field enough candidates and on nomination day the PAP gets a majority. Alternatively, the opposition parties manage to cobble together enough candidates and manage to deny PAP its majority and a coalition of opposition parties comes to power after the election. From a mere 2 MPs in Parliament, the coalition of opposition parties suddenly has let's say 50 MPs. These fresh Parliamentary faces would now have to figure out governance of the nation from scratch.

The problem with Ms Rajah's argument is that she expects to have a change in government the minute the PAP is corrupt. The presence of a sufficiently viable opposition in Parliament is so that if the existing government should become corrupt, the people have the choice of turning to an alternative that is waiting the wings and is ready and competent to govern. It is an insurance policy for the citizenry.

The reason why democratic elections present a better alternative to autocratic systems is because they allow citizens the opportunity to alter the persons exercising authority when the need arises through a stable process instead of causing a shock to the system. If a country had no elections to begin with, the only way that the citizens could alter the corrupt leadership is by popular revolution and other such drastic means. In a country that has an electoral process, the people are afforded the opportunity to replace their leaders peacefully and without placing undue stresses on the machinery of government. But, merely having the right to vote out the leaders is not going to ensure that there is no shock to the system. A key component of a viable and mature democracy is the presence of a competent and sizeable opposition in Parliament: an alternative that is waiting in the wings; one that can not only deliver peaceful change in leadership but can also govern from Day 1 (instead of coming in suddenly like a revolutionary government with popular backing but little experience and hence still constituting a shock to the system)

Ultimately, it is about having a system in place that will ensure peaceful and smooth transitions inspite of the individuals that pass through the halls of power. If citizens are to refrain from having any opposition in Parliament until something goes wrong with the PAP government, then it would be too late to attempt a complete overhaul. Such an attempt at overhaul would be equivalent to producing a revolutionary government with all the attendant potential problem that an inexperienced leadership could bring.

If in the next few elections, the opposition gets a foothold in Parliament, then in the long run they would be able to present that viable alternative to that hypothetically corrupt PAP 20 years down the road.

There is one other point to the presence of a visible and viable opposition. On the assumption that the ruling party becomes corrupt, who is to raise the issue in Parliament? Who is to exercise independant oversight? Of course, I can imagine that the retort would be that 1 opposition MP is sufficient for this purpose. Now that the PM has announced that there would be 9 opposition MPs (elected MPs and NCMPs), one could argue that these 9 could act as a check. The problem with this is that a small group of MPs would be ineffective in exposing corruption compared to a critical mass of opposition MPs.

Above all, a truly virulent Parliament that acts as the voice of the people is only possible through the diversity of views, ideas and arguments presented in public and debated vigourously. The weaker arguments will be exposed for the people to see and the more cogent ideas will come to the fore.

James Madison in the Federalist Papers once warned that when giving out political power we must bear in mind that 'enlightened statesmen will not always be at the helm'.

Thursday, May 21, 2009

A Good read from the foreword to Francis Seow's book

Only "objective" and "factual" political films please, we're Singaporeans: Lee's Betrayal of PAP and Singapore : Devan Nair

The Marxist Conspiracy of 1987 - revisiting a legal footnote


Five young activists have organized a gathering at Hong Lim Park to commemorate 21st May 1987. I’m glad to see that there are still many who recall the alleged ‘Marxist Conspiracy' of that era. I was 19 at that time and watched incredulously as a parade of tales emanated from the available media outlets.

There are so many things that we could recollect in relation to those days. Where were we? How did the news unfold? The general skepticism amongst many of us. I’d like to use this occasion to commemorate the day that our judiciary stood tall in the context of the rather limited legal role that it has in the review of executive action.

Chng Suan Tse v Minister for Home Affairs (1998) SLR 132
The case involved Operation Spectrum and the primary issue was over the court’s ability to review the Executive’s decision to detain under the Internal Security Act. It proved to be a landmark decision as the Court of Appeal chose to apply an objective test in assessing the discretion of the Executive instead of applying a purely subjective test as the courts had done in the past. Prior to this case, the position of the courts was to adopt a subjective approach as in the case of Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137.

What was the implication of the Chng Suan Tse decision? The Internal Security Act demands that the as a precondition to detention, the President be ‘satisfied’ as to certain matters. If the test was purely subjective as it was in Lee Mau Seng, there was little that a detainee could do to question the exercise of discretion. If the test was objective as propounded by the Court of Appeal in Chng Suan Tse, then it was possible for the court to assess at least whether objectively the President was ‘satisfied’.

The then Chief Justice, Wee Chong Jin stated in the judgment:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. 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.”

It must be clear therefore that the boundaries of the decisionmaker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. There is also, as counsel for the appellant has pointed out, no ouster clause in respect of s 8 or 10 of the ISA. Adopting the objective test in respect of ss 8 and 10 of the ISA would also be consistent with arts 9(2) and 93 of the Constitution. Further, it is, in our view, no answer to refer to accountability to Parliament as an alternative safeguard. As Lord Diplock put it in R v IRC, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 644:
It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge



The Court went on to rule that:

"the President’s satisfaction under s 8 of the ISA and the minister’s satisfaction under s 10 of the ISA are both reviewable by a court of law as:
(1) the subjective test adopted in Karam Singh [1969] 2 MLJ 129 and its progeny can no longer be supported and the objective test is applicable upon a judicial review of the exercise of these discretions; and
(2) although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations; similarly, although the court will not question whether detention was necessary for the purpose specified in s 8(1), the courts can examine whether the matters relied on by the executive fall within the scope of those specified purposes"



Of course, the story did not end there. Parliament duly amended the Internal Security Act in 1989 to nullify the effect of this case in relation to detentions under the ISA. By virtue of s.8B, the law on judicial review with regard to the ISA detentions was brought back to the position in 1971 and by virtue of s.8D the legislative change was to have effect in relation to any proceedings whether commenced before or after the amendment.

Law applicable to judicial review.
8B. —(1) Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply.
(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.
- Act 2/89 wef 30.1.89.

Commencement provision.8D. Sections 8A and 8B shall apply to any proceedings instituted by way of judicial review of any decision made or act done under the provisions of this Act, whether such proceedings have been instituted before or after the commencement of the Internal Security (Amendment) Act 1989.
- Act 2/89wef30.1.89.

Monday, May 18, 2009

Israelis Look to Obama for peace

It is often the case that one perceives a monolithic Israeli perspective as presented by AIPAC and other pro-Israel lobby groups in the United States. What is particularly ironic is that the press in Israel itself represents a broad spectrum of views and perspectives that one does not usually get to see through the filter of the global mainstream media.

I found the following article rather interesting for its analysis of the liberal perspective of the Israeli press.

Israelis Look For Hope In Washington
Mark Leon Goldberg - May 18, 2009 - 11:25am


Diplomacy
As it happens, I am in Israel this week. And in Israel, all eyes are on Washington, D.C. as Prime Minister Benjamin Netanyahu visits the Obama White House for the first time. The meeting, however, has the potential to be somewhat awkward the Israeli Prime Minister has yet to endorse the "two state" solution.

Scanning the Israeli press today it is stricking to see the degree to which Israelis are depending on Obama to press Netanyahu to once and for all endorse a two-state solution. For a good chunk of the Israeli body politic, all hope lies with Obama. Ha'aretz has a three-fer of editorials today which all reinforce this same point.

The lead editorial in Ha'Aretz advises Bibi to "say 'yes' to Obama:"

Now Netanyahu must show he can set aside his ideological opposition to dividing the country and support for expanding settlements and, for the good of the state, strengthen relations with the United States and advance the peace process with the Palestinians and the Arab states.

The Israeli public expects him to adjust his political stances to international reality.

Gideon Levy calls for a "political U-turn by the prime minister," and see's the American president as Israel's "final hope."

Obama is the final hope: Only if he throws his entire weight into the process will anything in the Middle East start moving. Any American president could have long ago brought about substantial progress, first and foremost ending the intolerable Israeli occupation. But Obama's predecessors shrank from the task, preferring to yield to the Jewish and Christian lobbies and to engage in masquerades of negotiations leading nowhere.

And Zvi Bar'el says an endorsement of a two state solution


As Prime Minister Benjamin Netanyahu lands in Washington Sunday, he brings a valuable gift for U.S. President Barack Obama: new U.S. legitimacy in the Middle East. If Netanyahu says the right password at the White House gates - "two states for two peoples" - Obama will have his first Israeli political achievement. Then there will be no escaping attributing this ideological compromise to American pressure on Israel.


Bottom line: A nation turns its lonely eyes to you, President Obama

Wednesday, March 25, 2009