Rights come alive - Tan Eng Hong v AG

A couple of days ago I wrote a post on the legal significance of the Court of Appeal decision in Tan Eng Hong v AG (2012).  The point that I highlighted was on the interpretation of Article 4 of our Constitution.  This is a follow-up post.

There is another significant ruling made by the Court of Appeal in this case and it would have far reaching consequences for other Constitutional cases. 

The Court of Appeal has effectively stated that in some instances, the very existence of an unconstitutional law is sufficient to give rise to the violation of constitutional rights.  The AG was contending that there must be a present prosecution under the particular law before it can be asserted that there was a violation of constitutional rights.  The Court of Appeal has flatly rejected this:


 "At the same time, and for the avoidance of doubt, we state conclusively that we also reject the proposition that a subsisting prosecution under an allegedly unconstitutional law must be demonstrated in every case before a violation of constitutional rights can be shown. A law is either constitutional or it is not. The effects of a law can be felt without a prosecution, and to insist that an applicant needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues. Even though a violation of constitutional rights may be most clearly shown where there is a subsisting prosecution under an allegedly unconstitutional law, we find that a violation may also be established in the absence of a subsisting prosecution. In certain cases, the very existence of an allegedly unconstitutional law in the statute books may suffice to show a violation of an applicant’s constitutional rights."

Thus, if Parliament enacts a discriminatory criminal offence, a person can challenge the law even though he/she may not have been prosecuted for the offence.  This applies generally to all offences and not merely s.377A.  VK Rajah JA goes on to explain:

"We add that while there is no right not to be prosecuted, there is a right not to be prosecuted under an unconstitutional law. Persons who act in ways that may cause them to be liable under an allegedly unconstitutional law are in the unenviable position of waiting to see whether a prosecution will be brought against them despite the alleged unconstitutionality of the law. The waiting and the uncertainty in itself can be said to be a form of suffering, "

From gay rights to the rights of all Singaporeans

Tan Eng Hong v AG (2012) SGCA 45 is a case of immense significance and students of Constitutional Law will no doubt be referred to this case on the interpretation of Article 4 of our Constitution. 

As much as there has been much talk about the 'victory' for the gay community in getting past the first hurdle in this attempt to have s.377A of the Penal Code declared void,  the fact is that this Court of Appeal decision has already become a landmark in relation to Article 4.  Whether the proceedings eventually lead to a declaration that s.377A is void or not, is something that we will have to wait and see. 

The Article 4 issue

Interestingly, the specific issue of whether Art 4 can be relied on was not raised at the High Court and the AG raised this argument only on appeal at the Court of Appeal.  So, thanks to the AG's Chambers we now have an authoritative pronouncement on the application of Article 4. 

What does Article 4 say?

Article 4
This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. 


The gist of the AG's argument was that if a legislation enacted after 1965 were to be inconsistent with the Constitution, then that unconstitutional legislation can be declared to be void.  But, where the offending legislation was already in existence before 1965, then Article 4 cannot be used to render the legislation void.   Section 377A of the Penal Code is a colonial invention and if the AG's argument was accepted, then all pre-independance laws will be immune from Constitutional challenge. 

The Court of Appeal rejected this argument and upheld the principle of the Supremacy of the Constitution:

"The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. Therefore, we find that the supremacy of the Constitution cannot be dependent on when a law was enacted: constitutional supremacy must apply equally both to laws which pre-date and laws which post-date the enactment of the Constitution "

A very literal reading of Article 4 of the Constitution would have led the Court of Appeal to a very different decision and the AG might have succeeded it immunising much of our laws from Cosntitutional control.  Given that there has been no previous case in Singapore on this issue, the Court of Appeal surveyed several Malaysian cases (not entirely consistent decisions) and arrived at the conclusion that Art 4 applied to both pre-independance and post-independance laws.  In the words of the Court:

"We thus find that the mere accident of vintage should not place an unconstitutional law which pre-dates the Constitution beyond the potency of Art 4"

Let us not underestimate the significance of what has happened.  Gay men may not have gained a victory yet.  Singaporeans, in general, definitely have. 

(I have simplified the analysis of the Court in an attempt to highlight the significance of the case.)

That Facebook post by Minister Shanmugam

After a series of incidents involving racist comments being circulated on the internet, I would have least expected the Law Minister to enter into the fray to share a racist email that he received from a resident.  It was also somewhat uncharacteristic of a PAP politician to point out a negative aspect of race relations in Singapore instead of emphasizing the positive aspects.

Perhaps, he was genuinely taken aback by the email (considering its racist content and considering Shanmugam is himself an Indian) and the audacity of the resident to threaten to vote against the PAP over this issue.  So taken aback that he couldn't help but post the comment on Facebook. 

Perhaps, he was subtly using this incident to build a narrative of how it is wrong for the government to formulate policy on the basis of popular views on the ground or on the basis of every individual complaint.  This incident is definitely a stark example of what politicians should not pander to.  A racist resident that has problems with his neighbours and demands that something be done about the neighbours, failing which he'd vote against the PAP.  No right minded citizen would consider that a Minister or MP should pander to such demands of a citizen. 

I attended a Singapore Legal Forum on Saturday, 18 August 2012.  There was a closed door discussion with the Law Minister and the request that was made was that none of the matters discussed that day should be reported outside.  So, I am not going to set out the issues verbatim.  But, one impression that the Minister sought to convey through an array of information and through some 'softball' questions thrown at him was about the need to avoid populist policy making.  Should the government feel so threatened by voter backlash that it resorts to populist policies?  Or should it be responsible and do the 'right' thing?

Presented in that fashion, the answer is a no-brainer.  Unreasonable, irrational and irresponsible demands of the majority of the electorate should not be the basis on which policies are formulated.  Policies ought to be formulated on the basis of what is for the greater good of Singaporean society. 

This example of racist comments by a resident coupled with a threat of using the vote fits into the overall narrative of irresponsible voter demands and the response of a responsible government.  Perhaps, the Law Minister was sharing this email as part of the overall narrative.  Eventually, that narrative would help to convince the 'rational' amongst us as to the merits of some of the unpopular PAP policies.  The subtle messaging is that 'unpopular' = 'rational and responsible' and 'popular' = 'irrational and irresponsible'.

Perhaps, I am reading too much into all of this.  Perhaps, the man was just (understandably) taken aback by the fact that some resident had the gall to send a racist email like that to him (and a few weeks after receiving the email he decided to post about it on Facebook).

"I received a complaint from one of my residents, a few weeks ago. He is Singaporean. He was upset that he had to "tolerate" his Indian neighbours. The resident protested at having to "smell thier Indian sweaty smell and unwashed bodies". He described the Indian family as living in squalor and complained about their poor social status. He then listed other Indians whom he found unpleasant - th...e Indian man smoking in the lift, the Indian woman with her dog, and his daughter's Indian neighbour who walks around in a sarong, and said that he didn't want his grandson growing up looking at Indian men in sarong.


The complaint about smoking in the lift is understandable.

The rest of the complaints taken together however, are quite disturbing. The resident actually sent me an email setting this out. The resident appears to see his neighbour's race as being the problem and the overt prejudice is quite troubling. Most Singaporeans would not agree with his perspective. We need to make sure that things stay positive between people of different races."

After some comments posted on his facebook page, the Minister made a clarification in a follow-up post:

"A number of ppl have asked for more details on my post on gentleman who complained to me about Indians. He is an elderly person ( I refer to his grandchildren in th post ). He is born n bred here. I blv all th ppl he is complaining about are also Sporeans. He sent th complaint via email. some have asked or implied - whether he is referring to me , dont think so (!) . Have helped him previously, so he started off his email by thanking me for th previous help. He ended off his email by telling me that if the problems are not taken care of, he will know which way to vote in th next elections."

Of course, all of this is still part of the overall messaging that we get from the PAP about the fragile state of race relations in Singapore and how we can descend into chaos at any point in time if we do not stay vigilant. 

My take on racism in Singapore is as follows:
1) racial stereotyping is pretty common in Singapore and all races are guilty of doing this
2) racist jokes and comments are common enough and many members of the minority communities have learned how to live with them even if it might hurt now and then
3) there are instances where racism has played a part in employment and promotion issues
4) on the whole, most Singaporeans are able to tolerate each others' habits and practices although we may not be a genuine melting pot.
5) on a personal level many Singaporeans are able to identify with each other as Singaporeans regardless of our race (and hence the obvious distinction drawn by many between foreigners and Singaporeans even if the foreigners might be of the same race). 
6) our state of race relations doesn't place us in a fragile state. 

These days I have stopped reacting angrily to racist remarks and I must say that the comments highlighted by the Law Minister did not instigate any emotional response in me.  Strange.  As I age, I must be turning less and less human.  :-)

In March, I wrote about my reaction to the comment by Shimun Lai. http://article14.blogspot.sg/2012/03/shimun-lai-whats-her-crime.html
There may be some difference between what Shimun Lai commented and what this resident has emailed.  But, in essence, I don't feel threatened by such views or comments. 
There are enough right-thinking individuals in this society and such comments are not going to undermine us.

The Death of a politician and the birth of a new politics

Christopher Neo Ting Wei, NSP candidate for Jurong GRC in the 2011 general elections, passed away on 14 August 2012 at the age of 49. 

Condolences have been expressed by various politicians from opposition parties.  I was pleasantly surprised to read DPM Tharman Shanmugaratnam's Facebook update a short while ago.

Paid last respects to Christopher Neo this morning, before the last rites. He left us early, at 49.


He led the NSP team in Jurong GRC in GE2011, and fought admirably. I regarded him well - he had an unassuming style, and was concerned for poorer citizens.

His wife Amy told me about the four wonderful kids he had left her with. They always helped each other. The eldest, do...ing her O-levels soon, helped the second girl; the second helped the third girl; the third played with the little boy aged 4. The girls were doing well in school.

His parents were elderly but sturdy. They were Chinese-educated, but spoke with me in English. Christopher left many siblings. His elder sister had been with him from his first GE in 1997 as his Election Agent, and we chatted about meeting at last year’s GE in Jurong. Christopher had taken after his father, who contested in the 1963 General Elections with the Singapore Alliance party, more than three decades earlier. Christopher contested in four GEs. He had stamina.

Every river, whichever its path, winds its way safe to sea.

Rest in peace, Christopher Neo.

It is good, and certainly refreshing, to see a PAP politician coming forward to express his condolences in this manner.  This may just be a small and tentative sign of change.  But, I see the possibility of political growth in this country.  Little by little, PAP politicians appear to be realising the need for a more concilliatory style. 

Recently, when Dr Lim Hock Siew passed away, Dr Vivian Balakrishnan gave a tribute on his facebook which was commendable:

I remember meeting him 24 years ago at a party hosted by my mentor Professor Arthur Lim. They were classmates in medical school and life long friends.


He introduced himself as “I am Lim Hock Siew, and just came out of prison a few years ago!”

We had a good chat and he freely shared his life experiences. I was struck by the absence of bitterness despite all his sacrifices. I think he knew in his heart that he was a patriot, and was proud that he never gave in.

I consulted him before I entered politics. He did not discourage me. On the contrary, he told me to focus on doing the right thing. He told me he did not bear any ill will to the current leaders. He reminded me that he was a founding member of the PAP.

We met from time to time socially. Whenever we discussed politics, it was obvious that he was still a conviction socialist. There were times, we agreed to disagree.

Singapore has lost another member of the founding generation. We must all be deeply grateful to him and his family for all their sacrifices. He was a good and honourable man.

Considering that Dr Lim Hock Siew was a political detainee, such words from a Man in White is commendable.  I hope that this kind of refined attitude amongst politicians continues.  My sincere wish for Singapore is that PAP politicians would stop treating opposition politicians as 'the enemy' and see these fellow Singaporeans for what they really are:  countrymen; patriots and concerned citizens committed enough to their principles to stand up for Singapore even when it might be unpopular or even dangerous. 

The Pledge

In 2009, I blogged about the NDP parade and the much touted 'universal pledge moment'.  Everyone was encouraged at a single point in time, 8.22pm, to take the pledge.  I questioned whether most Singaporeans that took the pledge understood the implications of the pledge and if so, how many of them were sincere about the pledge. 

The article is here:  http://article14.blogspot.sg/2009/08/822-hypocritical-oath.html

Between 2009 to now, the major political shift that has happened in Singapore is the 2011 General Election.  Due to the shock therapy given to the PAP by the voters, the government has been on a back foot for the last one year.  There is a growing hope that we would be able to make a genuine attempt at accomplishing the goals that we have outlined for ourselves in our national pledge.  The often ignored phrase "to build a democratic society, based on justice and equality" has to be resurrected in our collective psyche so that when we take the pledge we mean what we say. 

Too often, I have come across PAP apologists that preach to me about the demerits of democracy.  These chaps would enthusiastically participate in the farce of pledge taking.  But, when it comes to the crunch, they do not believe in some of the words that they are pledging.  Where does it leave a person if he pledges to build a democratic society whilst at the same time he believes that democracy is a nuisance that gets in the way of economic efficiency.  He is not going to act on his pledge.  That would make him a hypocrite. 

When the Hougang by-election case was in Court, there were many netizens that chided Mdm Vellamma for wasting resources and time in bringing the case to Court.  Though her application in Court was the most democratic (and responsibly patriotic) thing that a voter could do in the aftermath of the vacancy of the Hougang Parliamentary seat, there were those that wished that she would lose the case and bear the legal cost so that she would 'learn her lesson'.  The people that wished that upon her are not fit to take the pledge.  They'd be hypocrites if they did. 

As I dwell on the issue of Hougang by-election, another matter comes to mind.  Many of us, including Constitutional Law experts from NUS and SMU, reasoned that the vacancy of a Parliamentary seat in a single member constituency would give rise to an obligation on the part of the PM to call for an election with the limited exception that the timing of the by-election was within the PM's discretion. 

Last week, the High Court made a ruling that under our Constitution, the PM is not obliged to call for a by-election if there is a vacancy of a Parliamentary seat.  I have some reservations about the reasoning in the judgment.  Leaving that aside, the High Court decision represents a step in the wrong direction (a less democratic direction).  If a seat falls vacant (or for that matter in an extreme hypothetical example all the seats in Parliament fall vacant), the PM has full discretion as to whether to govern all the way till the next election without adequate Parliamentary representation.  This is a regressive step in our democracy and I don't see any reason to cheer the outcome. 

If we truly believe in the pledge that we take, we would be advocating a Constitutional amendment to impose a mandatory obligation on the PM to call for by elections whenever a seat falls vacant.  If we truly believe in the pledge that we take, we would be advocating for an end to the GRC system.  If we truly believe in the pledge that we take, we would oppose detention without trial.  I can go on and on.

There are many ways in which our political and legal system has to change in order to meet the requirement of the phrase in the pledge... "to build a democratic society based on justice and equality."  But, many of us would be reciting the pledge so blindly that we do not realise the significance of building a democratic society.  Many of us would understand what the pledge says and yet feel that the 'democratic society' bit is irrelevant and so go ahead hypocritically to take the pledge.

Maybe, this National Day, more of us would take the pledge with a greater degree of sincerity. 

Happy National Day.

Is he dead?

Rumours are going around that Mr Lee Kuan Yew has died.  There are other variations that he is seriously ill or that he is in a state of coma.  Twitter has been active over the last 24 hours with these rumours.  My Facebook friends have been relatively quiet.  I have spoken to several friends and one set of rumours is coming out of the legal fraternity. 

Such rumours are not new.  In all likelihood, there is no truth in it and the man will be at the NDP tomorrow.  But, in the event that it is true that the man has died, I hope that the government doesn't behave in a vile and vulgar manner by keeping the matter secret whilst the nation celebrates its birthday.  I have a lot of reservations about LKY and his style of government.  But, the fact remains that he was amongst the first Cabinet of ministers in Singapore that saw the country through two decades (mid-60s to the mid-80s) of rapid development.  I am sure that the government can afford to postpone the NDP and inform the people promptly so that an official state of mourning can be observed.  We do not need to behave like some third world dictatorship that has difficulty coming to terms with the illness or death of its leader and so postpones the announcement of ill-health or death. 

I hope that the culture of opacity fostered by successive PAP governments has not become so systemic that even information about the state of health (or death) of Singapore's first Prime Minister has to be stifled so that the NDP show can go on. 

We just need an official statement.  When rumours like these swirl around, it would be good for a statement dismissing these rumours or if they are true, then an acknowledgement.  Even if it is a case that he is seriously ill and is receiving treatment, I am sure that Singaporeans deserve to know.  It would be vulgar to have a wild party tomorrow if something has indeed happened to the man. 

If this rumour is untrue, I have this to say to those that started the rumour:  "Shame on you."