Thursday, June 28, 2012

City Harvest saga - Satirists and Apologists

I am not going to waste any time blogging about whether Kong Hee and the 'gang of four' had indeed committed criminal breach of trust.  That matter is now clearly before the court.  If they are innocent, let them be cleared.  If they are guilty, let them be punished.  At this stage, without any indication of the extent of evidence at the Prosecution's disposal, it is hard to make any rational assessment of the strength of the Prosecution case. 

There is something about this saga that I find rather amusing:  the Pastor's wife and the "Crossover Project".  I know that sex sells and most marketing agencies will vouch for the effectiveness of sex appeal in advertising.  However, there is a certain incongruity when the conceptual underpinning in the "crossover project" is to appeal to baser instincts in man in order to spread the message of God. The claim being made by apologists of the Crossover Project is that the music career of Sun Ho is intended to reach out to a broader audience on behalf of the Church so that more could hear the message of Christ. 

I was totally amused by two articles that I read.  The first one appeared in New Nation (the self-proclaimed fake news site) and was presented as a letter from a member of the City Harvest Church.  The second is an article on The Online Citizen.  Although it is clear that the article in New Nation is meant to be a satire, it is both amusing and shocking to see how some comments from the faithful within the CHC appear to mirror the satirical piece.  I am, therefore, not suprised that some readers couldn't make out the fact that the New Nation piece is a satire.  Apologists sound just like satirists. 

The New Nation article:

Dear Editors,

I am deeply saddened by the reactions of netizens to the arrest of my dearest pastor Kong Hee. As a long time member of City Harvest Church, the public clearly does not understand the sacrifices he had to make in the name of God.

When I first received Sun Ho’s Chinese pop CD in 2003, I thought to myself: “what kind of devil’s music is this?” But as I listened more, it began to dawn on me that I was being overly prudish and she was actually spreading the word of God in the form of Satan-worshipping music to beat the devil at his own game.

Indeed, the more involved I became at the Church, the more I began to understand that I could not even begin to comprehend God’s plan and the plans pastor Kong had for me, and the church. You see, I am but mortal. Pastor Kong was the chosen one.

Without his light shining like a beacon of conscience, the gays, prostitutes, and the opposition would start to take over Singapore. Satan would then have a hub to take over the world.

So it was with deep love that I decided to dedicate 30% of my husband’s salary each month to help fund Sun Ho’s music career as part of the Crossover project.

As a good christian, I have an obligation to The Lord to spread his message: from Singapore to Malaysia, to Taiwan, China and even the town of sin, Hollywood.

It must have been extremely difficult for pastor Kong to see his wife in such disgusting states of undress in public, and for her to live in the heart of the most unholy places on earth, Beverly Hills. I’ve watched the TV series 90210 when I was younger. These people have no morals but like lepers, the Man and Woman of God must go to the sick to heal the sick.

People outside the church don’t understand us and are so quick to condemn when they haven’t experienced God through His music, sung to thumping beats and a negro man saying something intelligible at the beginning.

I do not understand how “China wine” or being a Geisha is related to God’s work, but as I said, I’m only mortal. God has a plan, even when I don’t understand. Even when it involves S$23 million. If pastor Kong was using that money, it must be God’s will.

Jesus preaches forgiveness, and therefore we must forgive even if we don’t want to.

So I forgive the government, and the public for misunderstanding and maligning the Church.

There’s a special place in hell for people who say nasty things about Kong Hee and an even worse one for those that framed God’s chosen workers.

I pray that it will be like Sodom and Gonorrhea.

Yours truly,

Conservative Nazi

The following is from TOC's site:
Mr Aries Zulkarnain, the Executive Pastor and a Founding Member of City Harvest Church (CHC) since its start 23 years ago says that the church stands with the members involved.

“The people currently in the news are pastors, trusted staff and leaders who have always put God and CHC first. As a church, we stand with them and I believe fully in their integrity. Pastor Kong is still our Senior Pastor.”

Mr Zulkarnain says that the Commissioner of Charities (CoC) has confirmed that Mr Kong Hee, the Senior Pastor, and Mr Tan Ye Peng, the Deputy Senior Pastor will continue to preach at the church.

He emphasises that church activities are not affected by the case. “CHC will continue to do its work. Our services and cell group meetings will carry on as usual. As a church we will continue to take care of our members and our community. We will not stop doing God’s work.”

With regard to the allegations, Mr Zulkarnain says, “It has been suggested that the church has been cheated of $50 million. This is not accurate. The $24 million, which went to investment bonds, was returned to the church in full, with interest. We didn’t lose $24 million, nor did we lose ‘another $26 million’ as alleged. The church did not lose any funds in the relevant transactions, and no personal profit was gained by the individuals concerned.”

Speaking on behalf of the Board, Bobby Chaw, the pastor in charge of missions at CHC, says that actions had been taken over the past two years in accordance with the MCYS’s code of governance.

“We replaced 50% of our Board with new members. We engaged RSM Chio Lim to do a full internal audit and we have been putting their recommendations into action, and will continue to do so,” says Mr Chaw. “We appreciate the need to maintain good corporate governance, and we are continuously working with MCYS to do so.”

However, Mr Chaw expressed his disappointment with some of the media’s coverage so far, particularly in relation to the CoC enquiry.

“In some instances, they seem to have pre-judged us. We will be dealing with this in due course,” he says.

He adds that the church was also surprised that CoC chose to implement the suspensions of the members involved without prior notice. “We have been co-operating with CoC for two years since the start of the case, so these sudden suspensions came as a surprise to us.”

CHC’s Advisory Pastor, Rev Dr Phil Pringle is in Singapore to stand by CHC. He is the Senior Pastor of C3 Church, Sydney, and the C3 Global Network of Churches. Dr Pringle expresses his support for the leadership.

“I have known CHC, Kong, Sun and Ye Peng for a long time. CHC is not just a local church in Singapore. It has 49 affiliated churches and 6 Bible Schools all across Asia. It has impact on international ground, and it has proven through many years that it serves the global community, both spiritually and practically through humanitarian works.”

Dr Pringle says he, along with CHC’s Advisory Chairman Dr A R Bernard, who is the Senior Pastor of Christian Cultural Center in Brooklyn, New York, fully believes in and endorses CHC’s Crossover Project as a mission to reach the world.

CHC states that the Crossover Project is not about one person’s singing career; it is a mission that is fundamental to the congregation of CHC. The Crossover Project is an outreach that uses Sun Ho’s singing and music to engage people and places that would never otherwise hear the Gospel. As a result of the Crossover Project, many churches have grown worldwide and the faith of many have been strengthened. Impact has been made on the needy in Haiti, disaster victims in China, the depressed and suicidal in Taiwan, and the sick children in Honduras, among others.

Dr Pringle says, “The Gospel is the Good News and Christians are meant to share it. CHC has done this through the Crossover Project, which lies at the very heart of our religious beliefs.”

The IMF Loan and the Office of the President

Much was debated during the Presidential Elections in 2011 about the power of the Elected President in Singapore.  There were those that argued for a fully intrusive and almost combative role for the President in scrutinising the executive arm of government.  There were those that argued that the Elected President's role was no more than that which is fulfilled by the Queen of England as the Head of State (with the exception of a constitutionally reserved discretion when it came to the use of our reserves).  Others (like myself) contended that where the constitution was silent, the President could take a pro-active role and that this may be politically necessitated by the fact that the President could carry the mandate of the electorate (giving rise to the evolution of a constitutional convention). 

Whatever the shades of argument, one thing was very clear: There was no dispute as to whether the President had discretionary powers in relation to the matters specifically stipulated in the Constitution. An example of such stipulations could be found in Article 144(1) of our Constitution.   

That brings us to the issue surrounding the IMF loan pledged by the Singapore government.  Firstly, this is not part of the current subscription payable to IMF.  It is clearly an additional loan.  Leaving aside the contentious issue of interpretation of whether or not a loan given by the government is required under Article 144(1) to be subject to the President's approval, it is clear that a circumstance that falls within the ambit of Article 144(1) triggers one of the discretionary powers of the President. 

When Kenneth Jeyaretnam recently wrote to the President to seek clarification as to whether his consent was sought, the President has reportedly responded by stating that his permission had not been sought.

Kenneth has also stated that the President has referred this matter to MAS.  I would have expected something more proactive from the President.  Several questions arise in my mind.  Was the President fully appraised of his powers under Article 144(1)?  What is the interpretation of that provision that the President himself subscribes to?  Does the President agree with the view expressed in 1997 by the AG that a loan received by the government has to be approved and that a loan given by the government does not need to be approved? (  If he agrees with that interpretation, could he not have informed Kenneth Jeyaretnam that the Article 144(1) issue does not arise and that his consent was not necessary?  Did the President have any specific reaction to the government's decision to grant the loan to IMF?  Did he ponder about whether he had a role in the process?  Or was he only going to exercise the discretion to grant consent when consent was requested? 

This is an important point to ponder about when we consider the role of the President.  There is no doubt that Article 144(1) deals with an area of the President's discretionary power.  Since we do elect our President and since the bare minimum that we might expect him to do in relation to his responsibilities is the safeguarding of the reserves and since Article 144(1) deals with such express discretionary power, there should be a strong expectation on the part of the electorate that the President carry out his Constitutional duties actively.  So, I hope that President Tony Tan had a clear understanding of Article 144(1) and that he was aware of the potential for the IMF loan to fall foul of that Article and that he actively addressed his mind to it and then decided that his consent was not necessary as the issue did not fall within the ambit of the Article.  Nothing less than that will do. That is the minimum expectation that we as the electorate should have in relation to the Elected President. 

Sunday, June 17, 2012

Punishment must fit the crime

The issue of whether punishment fits the crime has been the flavour of the week for me with two previous posts dealing with the question of corporal punishment for vandalism.

Hot on the heels of that we have Dr Woffles Wu being fined $1000 for abetting in providing misleading information to the police in relation to a traffic offence. The facts as reported in the newspapers seem to suggest that after Woffles Wu had commited speeding offences, his elderly employee had admitted to the commission of the offences.

When I first read that I assumed that Dr Wu would have been charged under the Penal Code. The obvious provision that I had in mind was s.182 of the Penal Code.

False information, with intent to cause a public servant to use his lawful power to the injury of another person

182. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

The other likely provision was s.204A of the PEnal Code:

204A. Whoever intentionally obstructs, prevents, perverts or defeats the course of justice shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

Giving false information to the police (and to some extent obstructing the course of justice) is ordinarily treated by the judiciary as being rather serious and in the past custodial sentences have been given for such offences. I was understandably surprised (and so were other friends of mine in the legal profession) that Woffles Wu did not get a custodial sentence.

I assumed that the mitigation plea by the counsel must have been really good. Of course, plenty of speculation arose as to whether he was treated leniently because of the fact that he was a well connected person. One blogger came up with a catchy line.... "In the land of the saggy, the man with the botox syringe is king." See:
One PAP MP, Hri Kumar, joined in the fray by lamenting the inconsistency in our sentencing regime. I am very glad that he did. We seriously need to look at our criminal laws as a whole come up with a coherent approach to sentencing. In those areas where judges are given discretion, we need a clear and transparent sentencing policy for the courts.

Something was not quite right with the sentence and I couldn't bring myself to believe that the court would have let Woffles Wu off so easily given existing sentencing precedent for similar offences. Charlie Lim Chau Lee was sentenced to imprisonment for 6 months for getting his friends to take the rap for a traffic offence committed by him. The difference in the sentencing is too stark to be dismissed as merely difference based on the facts of the individual cases.

The inevitable perception building up amongst the public is that the rich and the elite can get away with lighter punishment when compared to ordinary citizens. This is the general trend of commentary emerging on blogosphere right now. Up till this morning, I was having some difficulty reconciling the picture that was building up. I can't imagine that our judiciary will act so inconsistently that Woffles Wu could get away with a fine.

Finally, it dawned on me when I read the AG's Chamber's press statement as well as the Law Minister's comments that Woffles Wu was charged under S.81 of the Road Traffic Act and not the Penal Code.

So, it turns out that this is a case of prosecutorial discretion as opposed to judicial leniency. AGC explains in the press statement the reason for not charging Woffles Wu under s.204A. The provision was not enacted at the time that the offence had been committed. That is a valid legal position. But, of course, I can't help but wonder why he was not charged under s.182 of the Penal Code. That was, to me, the most obvious provision for an offence such as this.

The AGC in its press release has given its reason for not proceeding under s.182:

"The charge preferred against an accused person would be calibrated to reflect the seriousness of the criminal act and the fact situation, and whether the legislation in question provides a specific provision dealing with the criminal act or whether reliance has to be placed on general legislation such as the Penal Code. On the facts of this case, as there was no major accident or injury, it was considered appropriate to proceed under s 81(3) of the Road Traffic Act rather than invoke the general provisions of the Penal Code, such as s 182."

Firstly, I accept the AGC's position on s.204A. But, I find it hard to accept the position taken in relation to s.182. I am not convinced that the lack of injury should have been considered. The gravamen of the offence involving giving of false information is the falsity of the information and deliberately misleading public officials in their administration of justice. False information could have been given in relation to a littering offence. That does not detract from the seriousness of the fact that false information was given in the first place. The fact that there was no injury involved should not have been decisive in the decision not to prosecute under s.182 of the Penal Code.

I am pretty sure that if the charge was under s.182, the judge would have imposed a custodial sentence. I will cut some slack to the prosecution here though. Making a decision as to the offence to be charged is not an easy one and it is inevitable that tough decisions have to be made. It is unfortunate that the prosecution chose to charge Woffles Wu under the Road Traffic Act as it has sent a very wrong signal to the public. Too many people are now under the impression that the rich can get away with a light sentence. I am sure that this factor did not figure at all in the AGC's deliberation. But, this is the perception that has arisen.

Thursday, June 14, 2012

Singapore YOG & London Olympics: A Tale of 2 Budgets

The UK Sports Minister Hugh Robertson has revealed that the expenses for the London Olympics would be within the budget allocated for the games. A budget of 9.3 billion pounds was set in 2007. Hugh Robertson has indicated that about 500 million pounds would be returned to the Treasury as they are within the budget.

This is how you come out smelling like a rose. Set a high budget with a huge contingency in the budget (2 billion pounds) and then keep your spending within the budget. You get lauded for your fiscal responsibility.

Compare that to the heat receieved by Singapore's former Minister for Community Development, Youth and Sports, Vivian Balakrishnan. The budget set for the Youth Olympic Games was $104 million and the spending went up to $387 million.

Although the Olympic Games cannot be compared with the Youth Olympic Games in terms of logistics and expenses, I am trying to draw a comparison with the way expectation management is done. The organising committee for the YOG grossly underestimated the expenses and set a budget that was too low. In the end, given the nature of the event, $387 million was probably a reasonable sum.

But, in Singapore, the public conversation saw a mishmash of issues colliding together to form an overall anti-PAP rhetoric. (Incidentally, despite my long-standing stance against the PAP's authoritarian style of government, I did not see the YOG budget as an issue. If anything, the problem was in the initial estimate of the organising committee. It was not a case of fiscal irresponsibility.) 2010 was the year of the "once-in-50-years" flood. Singaporeans were becoming increasingly conscious of the presence of large number of foreigners. The plight of senior citizens fending for themselves by scavanging for tin cans was becoming more evident. For many, the YOG expenses became indicative of a government that had the wrong priorities.

I can imagine that the organising committee of the YOG could have estimated the budget at $500 million and kept the spending to $387 million leaving a balance of $113 million. I suspect that not much of a complaint would have been raised (and Vivian Balakrishnan might have kept his previous portfolio instead of being sent to fight floods).

From a public relations standpoint, the UK Sports Minister has scored a respectable point by keeping the Olympic Games expenses within the budget by 500 million pounds.

Tuesday, June 12, 2012

The politics of caning

Whilst the sticker lady issue rages on, I think this is an appropriate time to reconsider our sentencing philosophy.

I blogged about this two days ago. In the course of reading the Parliamentary debates in relation to the Punishment for Vandalism Bill 1966, it is clear that one concern was playing itself out. It appears that there were widespread instances of vandalism in Singapore and it is also evident that political slogans (anti-colonial, anti-american and pro-vietcong) were surfacing. I did not live through that period and it is hard to say if the events were as widespread as alleged or if this was just exaggeration to gain leverage for insisting on caning as a punishment.

Unrelated to the debate on the Vandalism Bill, other debates in Parliament in 1965 to 1967 reveal references to acts of vandalism that are politically motivated. There are references to Barisan Socialis being responsible for instigating these 'anti-nationalist' actions.

However, in the debate on the Vandalism Bill, the focus is on a broad range of vandalism offences. Anything from hanging banners to painting and damaging property. The extreme measure of caning is recommended as a deterrent. The distinction drawn in order to justify the use of a severe punishment is on the basis of whether the vandal has left a delible mark. If it is indelible, caning is mandated. If it is delible, caning is not mandated for a first time offender.

Using traffic lights as an example, caning is mandated if you destroyed a traffic light. It is mandated if you painted on the traffic light. Caning is not mandated if you pasted removable stickers on it or hung slogans from it and you happen to be a first time offender. But, a second offence involving hanging a slogan from a traffic light would trigger caning.

To me, it is shocking to cane someone for the act of hanging a banner (although it is restricted to a repeat offender).

Though I did not live through those times, I can't help but walk away with the feeling that the Vandalism Act introduced caning for vandals primarily because of the politcal nature of the vandalism that was taking place rather than the fact that vandalism was taking place at all.

LKY's own comments about how these vandals would be prepared to go to jail and consider themselves martyrs is indicative of the fact that the government did not have in mind the ordinary vandal who might at most be a delinquent and wayward individual. Caning was seen as a way of deterring anyone thinking of turning himself into a political martyr.

I have extracted the PM's (LKY) speech from the 2nd reading of the Bill:

Mr Speaker, Sir, I would like to explain to the House what we are seeking to do by making this departure from what is normal criminal law legislation. One of the problems we face in running the British system of administration of justice is that the law is often being administered, particularly in recent years, by legally trained magistrates who do not have the advantage of the wider background of the problems of the society and of administering that society. So it is that by the time the offender of a particularly vicious social misdemeanour, like taking a pot of paint and going to every bus stand and chalking up anti-American or anti-British or pro-Vietcong slogans, is apprehended and brought to court, from the vicious petty slogan-shouting hooligan that he is outside, he converts himself into a meek, humble breadwinner of a large family who was doing no more than just giving vent to his political exuberance. And he gets off with a caution and sometimes a light fine. The net result is that this particularly vicious social misdemeanour is not capable of being checked, let alone stopped. It is difficult enough to apprehend these offenders. Under the section in the Minor Offences Ordinance which we have to operate, this is a non-seizable offence. So if you are not a police officer, or even if you are a member of the Vigilante Corps, you will be a very brave man to go and apprehend such a culprit. I do not think it is possible for us to go back to the old British practice where people who are administrators, having served a term in the business of running the government, then do a spell of two or more years on the Bench, and so there is a constant flow of fairly matter-of-fact gentlemen who understand the mechanics of how the system works and know the other side of the coin, not just what happens in the courtroom.

The Bill makes a clear distinction between what is considered a lesser offence, something which just dirties up the wall - which is delible - and where you deliberately seek to mess up the place from time to time with red paint, which is a very difficult substance to eradicate, on bus shelters and public buildings. Large sums of money are expended in order to remove the unsightly scars which they leave behind.

Recently the problem has been complicated by the ease of access to public property which, in the nature of things, is difficult to prevent. Thefts of fountain heads made of copper, copper tubes outside Housing and Development Board premises used for boilers and other things - and copper is in short supply because of the transportation problem of Rhodesian and Zambian copper - and thefts of valuable parts of non-ferrous metals have taken place, to be sold for a fraction of their actual cost. I do not think we can allow this to go on, and I know how strongly the profession and the penologists are against caning. But we have a society which, unfortunately, I think, understands only two things - the incentive and the deterrent. We intend to use both, the carrot and the stick. The carrot is good citizenship. It is a seizable offence to do any of these acts of vandalism, and any member of the Vigilante Corps, any member of the public, can apprehend. A reward will be given in order that these culprits will be apprehended and these crimes will stop.

On the other hand, 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.

I am not suggesting, Mr Speaker, Sir, that I am quite sure that this is going to solve our problem, but I am convinced that if we are not prepared to innovate, if we are just to stick to old formal channels of legislation or old forms and modes of social control, then these are areas of public behaviour over which society will have no control whatsoever. I hope that there will never be any cause, once these provisions are known, for them ever to be invoked. But I feel reasonably confident that if the offenders are apprehended - as I think they can be apprehended; these are seizable offences and there are enough people in the Vigilante Corps and public-spirited members of the ordinary public - and an example is made of a few, then we will not have the discomfiture of finding the electric power supply failing, because somebody risks blowing up a whole transformer substation for a few dollars' worth of public property which is not sufficiently guarded. If this is understood - and they have a tendency to understand very quickly once the word gets around -I am quite sure that there will be a healthier respect for community property. This happens all over the world. But in every society, values are different, and ours is a new and young one. We could take the other point of view - the Government could be purely negative and say, "Well, in that case, we should not have this community property. We should not have fountains. We should not have these parks. We should not have these amenities, because they are likely to be destroyed, mutilated and losses will be heavy." I think that is a defeatist attitude. By and large, I would say that the majority of the people are law- abiding and respect community property, and if we can check the misbehaviour of this minority, then we can move into wider fields of public amenities with greater confidence that, first, the expenditure will not be wasted, and, second, the maintenance will be what the planners estimate it to be and not what we subsequently find ourselves carrying.

I hope eventually that the remarks I have made here in this House will also be heeded not only by the offenders but also by those who participate in the administration of justice. I have a feeling that often in the younger ranks of the service, the administration of justice is believed to be the application of the law. It is because they believe that, that we are forced to take these measures. I think a wider grasp that administration of justice means the application of the letter of the law in such a spirit that society is able to protect itself, is fundamental. If we are able to implement these provisions with efficacy in the first few months, I am quite sure that this will be a dead letter in our statute book.

Parliament could have increased the fine and length of imprisonment for this offence instead of introducing corporal punishment. It is clear that when the PM in fact spoke of the deterrent effect, he referred specifically of those flaunting the values of their ideology. The ordinary vandal might well be deterred by imprisonment. The political slogan-shouter needed more than imprisonment to deter him.

The Law Minister E W Barker offers up another justification for caning:

"The punishment of caning has been introduced advisedly and after considerable thought. It has been found in practice that while many convicted persons will accept without demur a heavy fine or even a lengthy sentence of imprisonment, they tend to view with the greatest alarm and despondency any sentence which requires the infliction of caning. This is, of course, typical of the mentality of the bully and the coward and of those who choose to perpetrate their offences under cover of darkness, which is, in fact, the case with the majority of acts of this sort. Caning has accordingly been made mandatory upon conviction..."

I wonder whether the reference to "it has been found in practice" is based on purely anecdotal evidence or on extensive field research. I can imagine that on a personal subjective level caning would deter me more than a fine or imprisonment. That being the case, if we found that a particular crime is on the rise, it would be easy to use caning as a deterrent. That would lead us down a slippery slope. As littering seems to be on the rise compared to 10 years ago, why don't we just introduce caning as a deterrent, for instance. CWOs don't work as well as "3 of the best" (to use LKY's reference to caning). In the end, punishment must fit the crime.

A curious feature of the Parliamentary debate is the way that the justifications were not refuted except for a brief speech by Mr Tang See Chim that questioned whether caning would really have a deterrent effect:

I have the impression that the Government is taking the view that severity of punishment is a deterrent. Mr Speaker, Sir, severity of punishment may not, in fact, necessarily be a deterrent. The way to deter any crime, I submit, is to impress on the wrong-doer the certainty of his being found out if he commits one. Also I have the impression that as far as acts of vandalism are concerned, that is, excluding the anti-national elements, this Bill could only be an interim measure, because, as I see it, vandalism cannot be rooted out by the introduction of a Bill with very severe punishment. It can only be rooted out by educating our young to respect public property and to have a sense of pride in the public amenities provided by society.

Nothing more robust than that was raised. No issue was taken as to whether corporal punishment may be inappropriate for a property offence. No issue was taken as to whether corporal punishment may amount to a form of cruel and inhuman treatment. (But then again, thanks to the Barisan Socialis walkout from Parliament and the consequent PAP dominance, there were no opposition MPs on hand to question the introduction of caning for this offence.)

In the history of our post-independence legislature, deterrence as the logic for corporal punishment has led us on a downward spiral, resulting eventually in the imposition of caning for drug abusers (an offence that requires medical and psychological rehabilitation more than any other offence) and even for immigration offenders (overstaying by more than 90 days after the expiry of the visa). We need to revisit the question of whether corporal punishment is appropriate in the first place and if so, whether our sentencing regime is in accord of the principle that punishment ought to fit the crime.

Sunday, June 10, 2012

The vandal on a pedestal and an incoherent sentencing philosphy

The sticker lady might get charged and eventually convicted under the Vandalism Act. But, one thing is for sure: She will not be subject to caning.

Whilst caning is provided for an offence under s.2 of the Vandalism Act, women are exempted from corporal punishment generally. Caning is not the norm for most offences in Singapore and it is reserved for very specific crimes.

Whether sticker lady (Samantha Lo) should be let off the hook or punished for vandalism is an issue that has been raging on blogosphere. There are those that take the view that this is a form of artistic expression and the state must give a little bit of leeway and that she should be let off with a warning. There are still others that take the view that a law has been infringed and there is good reason for having laws against vandalism and exceptions cannot be made (for fear of a descent into chaos.)

My view on this? As much as I believe that artistic expression needs to be spontaneous and not contrived and as much as I believe that there is value in the kind of expression that has an element of ‘here’s-me-spitting-in-the-face-of-authority-and-getting-away-with-it’ (the creative mind is inherently subversive), I also believe that there is role in society for rules regulating our behavior in the common space that we share. There is a role for laws proscribing conduct that may involve damage to or defacement of private and public property.

Let those that have an artistic impulse express themselves in a sometimes messy and socially (or even legally) unacceptable fashion and in the process let them be aware of the risks that they take. Equally, let the law take its course in providing for its important social function of maintaining public order. It could be a case of a band playing on a rooftop and attracting massive crowds that cause obstruction to traffic. The band takes the risk in the name of artistic expression. But, you can be sure that even in the freest societies, the authorities will try to shut down such activities that pose safety and public order problems.

It sounds almost schizophrenic for me to say this but I will. I cheer those that set the pace in society by pushing social and legal boundaries. I welcome their presence amongst us and sometimes quietly and self-flatteringly I like to believe that I have been such a person at certain stages of my life. I also believe in and support the need for order in society and I believe that such order is best secured by the enactment and enforcement of laws established to protect life, liberty and property. In the case of street art that involves damage to or defacement of property, the artist is to me a vandal on a pedestal. I’d brand her a vandal but I’d place her on a pedestal.

Having made these observations, I must express my misgivings about the Vandalism Act. The Act is a reflection of the lack of coherence in our sentencing policy. Corporal punishment is something that we inherited from the colonial days and it used to be reserved for serious crimes (e.g. attempted murder, culpable homicide or voluntarily causing grievous hurt).
When the Vandalism Act was passed in 1966, Parliamentarians were fully aware that corporal punishment was unusual and exceptional for a property offence. The following is from the footnotes to a paper entitled “Singapore’s Innovations to Due Process” presented by Prof Michael Hor of NUS:

The other famous example is the Vandalism Act (Cap 341) enacted in 1966 to deal with politically motivated graffiti in support of the communist insurgency. It was used a few years ago on the American teenager Michael Fay (Fay v PP [1994] 2 Singapore Law Reports 154) who was found guilty of spray-painting some motorcars, although he could hardly have been part of the insurgency which had died out a few years before that). This is an example of a “drift net law” gone wrong.

What Michael Hor was referring to in that article was the rationale for the punishment of caning in the Vandalism Act. The punishment was not motivated by a need to stop vandals but to prevent political graffiti from being widely displayed in Singapore. LKY explained the need for such punishment against political slogan writers because these people would simply glorify themselves as martyrs if they are fined or imprisoned. Caning, on the other hand, would presumably ‘rehabilitate’ the martyrdom out of them.

"... we have a society which, unfortunately, I think, understands only two things – the incentive and the deterrent. We intend to use both, the carrot and the stick. ... [A] fine will not deter the type of criminal we are facing here. He is quite prepared to go to goal, 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

Essentially, the punishment of caning is extraordinary and the intention of the government in introducing this punishment in 1966 was to deter political slogans. LKY himself acknowledged during the Parliamentary debate that the punishment was a departure from the norm. My position is that we need a rational and coherent sentencing policy today in relation to the variety of criminal offences that exist in Singapore. The law must speak with a single coherent voice and not present itself as a muddled, inconsistent and arbitrary creature.

And on a light-hearted note, here is demon-cratic's take on the sticker lady saga:

Tuesday, June 05, 2012

That we may dream again: The commemoration of the 25th anniversary of Operation Spectrum at Hong Lim Park as I saw it

Fear. It cripples you. It makes you a lesser being than what you are capable of. It causes you to watch your step and avoid paths, though noble, are known to have contained traps in the past.

Fear. It envelopes your consciousness in ways that few human emotions are capable of. It operates unseen and seeks justification in the most rational of arguments that mind can conjure. (After all, don't we often claim close links between bravery and foolhardiness. Conversely, we never do really state that the so-called rational man is often a coward for he seeks to cover up his fear with the respectable cloak of reason.)

On 2nd June 2012, I did something which seemed simple enough. I turned up at Hong Lim to show my support to the cause of the ex-ISA detainees, their families and friends. I had work commitments that day and didn't think that I could make it. But since the event was scheduled to end at 7 pm and since I was able to rush out of the office at 5.30pm , I thought skipping over to Hong Lim was the logical thing to do.

Was there a crowd? Well, it is all quite relative really. If we try to compare this to an election rally, there is no need to bother. The number of people that were there did not constitute a crowd by comparison (unless we were to compare it to a PAP rally). At the time that I reached there, about 300 to 400 people were gathered (based on an unscientific estimation). After the event, varying estimates have been produced and it appears safe to state that throughout the day (3pm to 7pm) anywhere between 400 to 500 people must have viewed the exhibits and/or listened to the speeches.

The important thing to note about the numbers is that this was the commemoration of an event that very few Singaporeans relate to or care about and that there is undeniably an undercurrent of fear in our nation about the ISA. For most Singaporeans, economic issues and their own personal financial battles and struggles are far more important than the demand for justice advanced by some individuals that have suffered at the hands of the authorities more than two deacades ago. Amongst those Singaporeans that consider themselves to be vocal on other issues, there are many for whom the issue of detention without trial does not resonate as a pressing concern. Then, there is the fear that holds sway in our country. Many Singaporeans that privately objected to and continue to object to the detention of students, lawyers and church workers in 1987 & 1988, do not dare to publicly identify themselves with the cause. Given these facts, the number of people that turned up (despite limited channels of communication) is remarkable.

The exhibits set up at Hong Lim turned out to be part of a kind of alternative museum of Singapore's undocumented history. As someone that loves history, I commended myself for making the split second decision to rush down from the office though it was already pretty late. There were two items that were on display that caught my attention more than anything else. The first was a calendar that was in Teo Soh Lung's car with the date 20 May 1987 hauntingly halted. She was in the habit of tearing off each date when she headed off to work. But, on 21 May 1987, she did not head off to work as she was whisked away in the middle of the night by ISD officers.

What must it be like to hear that knock on the door and to be cut off so abruptly in the prime of your youth from the rest of society and to be accused of 'crimes' that you had no knowledge of. The thought itself is frightening. The experience must have been traumatic. It is not surprising that many decent Singaporeans still fear the possibility that if you spoke out too much you would be detained under the ISA, charged for sedition, sued for defamation, pursued by regulatory bodies for regulatory infringements, denied access to benefits, denied HDB grants, demoted or not given promotions (for civil servants), denied funding or simply deprived of, denied or prevented from obtaining anything that might be within the powers of the state to deprive, deny or prevent.

I have friends that do not think that it is safe for me to blog the way I do. "Be careful" - that is a common refrain. Just a few days ago, I was casually reminded on facebook that the authorities probably monitor bloggers and that there is still the Internal Security Act in this country. The muzzling of political opinion, where such opinion deviates from the accepted state narrative, has been accepted and internalised by the citizens of this country. It is taken for granted by many that 'big brother is watching you.' When the arrests took place in 1987, I was 19 yrs old. I still remember being conscious about what my friends and I discussed in public. I remember that many of us were hesitant to voice out anything that might be perceived as being anti-PAP. Whatever the government might have intended to flow from the 1987 detentions and whatever the impression they intended to create, it is undeniable that the message taken away by many citizens was that criticising the PAP's policies or the PAP leaders was a dangerous thing.

A second exhibit that caught my eye was the crucifix that gave Vincent Cheng much strength.

Being a man of faith, the darkest hours in detention must have still been made bearable for Vincent Cheng by the reminder of God's infinite love. On seeing the crucifix, I couldn't help but recollect the subtext in the Marxist conspiracy allegation. Whilst most of the detainees were members of the Catholic Church, part of the official story that initially emerged involved Tan Wah Piow as the mastermind of the plot and Vincent Cheng as the local ringleader. The story was that of a conspiracy by these individuals to set up a Marxist state. But, a subsequent gloss on the Marxist plot was the linkage with Liberation Theology.

So many questions still remain in my mind. Did liberation theology really have any impact on local Catholics? Were they even aware or or influenced by the moving ideas of Liberation Theology? If indeed Liberation Theology had influenced these conspirators, what was so bad about it? Oh yes, the detractors of Liberation Theology claim that it is Marxist in origin. That is itself a contentious assertion. A milder assertion against Liberation Theology is that it is the face of political Catholicism: placing importance on social justice and political upliftment of the poor as a manifestation and expansion of the ideals of Christ.

If indeed, Liberation Theology was based on Marxism or influenced by it, were these adherents advocating the overthrow of the capitalist state by force? Or was it a more innocent yearning for greater democracy? What was the experience in Latin America and Philipines? Were they not seeking more democracy?

If indeed, the 1987 conspirators were influenced by Liberation Theology, were these individuals even planning the violent overthrow of the state? Were these individuals not advocating social change through law reform and attitudinal change in society? What was so threatening about their actions or their plans that warranted the action taken against them?

I know what many of my generation suspected. The state was beginning to witness increased criticism. Opposition parties were making headway into Parliament. The PAP's popular vote was being reduced. (It must be remembered that some of the detainees were also active in the Workers' Party.) If one were to throw workers' rights into the mix and allow the rise of social activism, it would not have been long before, the Parliamentary dominance of the ruling party would be affected.

Amongst the detainees is a person that I know personally. I did not know him at that time but became acquainted with him during my days as a practising lawyer. Kevin de Souza was a law student at NUS at the time of his arrest in 1987. If he was not arrested, his career path would have followed that of any other law graduate: proceeding into legal practice and focusing solely on fattening one's wallet or if one was a little bit more idealistic, putting one's legal skills to good use by doing regular pro bono work and assisting in the law society's Criminal Legal Aid Scheme. As it turned out, after his release from detention, he ended up exactly the way he would have ended up if he was not arrested: becoming a legal practitioner actively contributing his services to worthy causes. Idealist, yes. Marxist, no.

Another exhibit that moved me was a simple ink painting of a black sky with a white moon. It wasn't the painting that was moving but the poem written by Lim Li Kok as an accompaniment to the painting that got under my skin.


woke up last night
from the chill of
thin shards of rain falling from the sky.
i raised my head
the sky was pitch black
while the half moon
remained white

The theme that runs throughout the works of those that have experienced unjust imprisonment anywhere is the presence of hope in the darkest hour. I guess that hope is the one thing that keeps us sane.

On a lighter note, I was thoroughly amused by the meme's done up to represent the different detainees. It was fun and in a certain way spoke of the lack of animosity or bitterness on the part of the detainees today. What they want today is just to set the record straight.

AS I arrived at the event rather late, I missed most of the speeches and was in time to listen to part of Vincent Wijeysinha's speech.

I support the call for the abolition of the Internal Security Act. However, I can't agree with his suggestion of replacing it with a specific act targeting terrorists and presumably therefore permitting some form of preventive detention. The issue that I have with any form of detention without trial is that it becomes a tool in the hands of politicans that tempts them to abuse power. Detention without trial would deprive the person of any opportunity to present his case to an independent judiciary. The very problem that arose with Operation Coldstore and Operation Spectrum would arise in the context of persons alleged to be terrorists.

Amongst many people that support the cause of the 1987 detainees, there are a significant proportion that are convinced of the guilt of the JI detainees and the guilt of Mas Selamat. But, how do we so confidently assert that these men are guilty? How do we presume for ourselves the right to deny these men a fair trial before an open court. Let the state produce the evidence against a person alleged to be a terrorist in a court of law and let the court find him guilty. If the state did not have such evidence in the first place, then is mere suspicion and conjecture permissible as the basis for the arrest and indefinite detention of individuals?

Anyone calling for the repeal of the ISA on a principled basis must not be calling for some sort of preventive detention law targetted at alleged terrorists. Let those terrorists be charged and convicted in a court of law for the offences that they have committed and the offences that they are conspiring to commit. We cannot, simply on the basis that we have a gut feeling that the 1987 detainees were do-gooders, engage in a form of exceptionalism for persons that we deem to be political detainees and persons that we deem to be terrorists. That's just another label. How arbitrary is that?

Friday, June 01, 2012

25th Anniversary of the Marxist Conspiracy: remembering a legal footnote

This is an old piece I did for the 22nd anniversary of the Marxist conspiracy detentions. Today, 2nd June 2012, Maruah has organised an event at Speaker's Corner, Hong Lim Park to commemorate the 25th anniversary of the detentions. So, I think it is appropriate for me to resurrect this piece....

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.