2012: Constitutionally speaking

2011 was a watershed year in the politics of Singapore.  With the General Elections and Presidential Elections sending strong signals to the ruling PAP and with the empowering effect of social media, the scene was set for an interesting 2012.

Much has happened in the political arena.  The PAP would probably place emphasis on the National Conversation as a major political highlight.  Most citizens would probably remember this year as the year of sex in politics and the civil service.  I am sure there must be plenty of other mainstream and social media perspectives on the year that has just whizzed past us.  I don't plan to cover the same ground.  Perhaps a survey of Constitutional developments might be of some interest.

From a Constitutional standpoint, this has been an interesting year.  There have been some developments in the law and not all of them are positive from the perspective of citizens' rights. 

THE HOUGANG BY-ELECTION CASE

This was a case that was waiting to happen.  There have been several instances in the past when the ruling PAP has avoided by-elections.  Ever since the dramatic loss of the Anson seat to the Workers' Party in 1981, the default mode of the PAP has been to resist any calls for a by-election when a seat became vacant. 

Prior to the Hougang by-election case, there was one attempted Constitutional challenge when the Bukit Batok seat fell vacant in 2008 due to the death of Dr Ong Chit Chung.  A claim was filed in Court and eventually withdrawn when the claimant (a Bukit Batok resident) decided not to proceed with the case after his lawyer J.B Jeyaretnam passed away.  Bukit Batok was part of a GRC and so the legal issues there were slightly different.

http://article14.blogspot.sg/2008/07/is-constitution-redundant.html

When Mdm Vellamma instituted judicial review proceedings in relation to the PM's discretion in calling for by-elections, it is probably true to say that tremendous political pressure fell on the PM's shoulders.  In a GRC it was possible for the PM to claim that the other MPs would 'cover' the responsibilities of Dr Ong.  But, Hougang is a single member constituency and clearly the PM could not go on a default mode of givng a template response.  http://article14.blogspot.sg/2012/02/bye-yaw-and-now-for-by-election.html

With the application for leave being granted by the High Court and the attempt by the government to have the case thrown out being unsuccessful, there must have been a significant fear in the PM's office that the Constitutional interpretation would work to constrain the PM's discretion.  A by-election was called and I honestly expected that Mdm Vellamma would drop the case.  But, the case proceeded nevertheless.  http://article14.blogspot.sg/2012/04/houngang-by-election-case-decision-to.html
http://article14.blogspot.sg/2012/05/hougang-by-election-26-may-2012.html
http://article14.blogspot.sg/2012/05/hougang-by-election-case-may-be.html


The final judgment by the High Court is most unfortunate for the citizens of Singapore and for the status of our country as a democracy.  In a highly technical approach to the reading of our Constitution, the High Court ruled that the PM has unfettered discretion in deciding on whether to hold a by-election.  I disagree with the Court's reasoning and I have set that out my views here: http://article14.blogspot.sg/2012/12/the-hougang-by-election-case-belated.html

As a direct consequence of the decision, the legal position today is that a vacant Parliamentary seat need not be filled and it can remain vacant till the next general election. 

Since Mdm Vellamma lost her case, the AG requested for an order of costs against her.  The default mode in the Court is that 'costs follow the event'.  That is just lawyers' language for 'legal costs to be paid by the losing party to the winning party.'  Incindentally, judges do have discretion to deviate from this norm and this has been done in the United Kingdom.  (Our Rules of Court are modelled on the English Rules.) 

In a landmark ruling the same High Court judge that dismissed Mdm Vellamma's case found in favour of Mdm Vellamma on the costs issue.  As her case involved a matter of public interest, the Court saw it fit to rule that no costs would be payable even though she lost the case. 

As a consequence of this ruling, Singaporeans have been given the hope that they can safely proceed with judicial review on matters of general public interest and will not be penalised in costs if they lose the case eventually. 

THE IMF LOAN CASE

There is something seriously wrong about the politico-legal order in our country when we have an official rationale for the existence of an Elected President (as an additional check against potential Executive abuse of the reserves) and at the same time a rather cavelier attitude on the government's part when it comes to giving out loans to foreign institutions. 

Most observers reading our Constitution would walk away with the impression that any loan given by our government to a foreign entity is required to be subject to Presidential scrutiny.  But, what appears logical to an ordinary individual can often be seen very differently by lawyers.  This was one such instance.  Though personally I am in favour of subjecting loans by the Singapore government to Parliamentary scrutiny (at the very least), the truth is that the High Court judgment in this case is one that is, at least, consistent with the background to Art 144 of the Constitution.  I would have preferred a different approach by the Court by relying on the need for restrictive interpretation of the Constitution when it comes to Executive powers so that the Rule of Law can be preserved. 

Today, as a result of the IMF loan case, our government needs to seek Presidential approval for the giving of a guarantee and the raising of a loan.  But, there is no need for such approaval for the giving of a loan and the raising of a guarantee.

Another issue arising out of the High Court's decision in this case concerns 'locus standi'.  The Court has ruled that the applicant Kenneth Jeyaretnam had no locus standi to bring this claim because the claim was in relation to a public right and the claimant had to show that he suffered some special damage.  This is effectively a bar on any future claim by a citizen alleging any breach of Article 144. 
http://article14.blogspot.sg/2012/10/the-day-constitution-died-again.html

The effect of this case is that in future, the Executive might breach Article 144 by raising a loan or giving a guarantee without Presidential or Parliamentary scrutiny and citizens would be left without legal recourse.

THE GAY RIGHTS CASE

Tan Eng Hong v AG as decided by the Court of Appeal represents a significant postive step in the interpretation of our Constitution.  At the present stage of the proceedings, there hasn't been any final determination on the Constitutionality of s.377A of the Penal Code.  But, the Court of Appeal has made two rulings of significance. 

S.377A is a pre-independance provision and it pre-dates our Constitution. The AG attempted to argue that s.377A cannot be declared to be void because it is a pre-1965 law.  The Court of Appeal has rejected this. http://article14.blogspot.sg/2012/08/from-gay-rights-to-rights-of-all.html


It is now clear that all statutes that violate the Constitution can be declared to be void and it does not matter whether the statute existed prior to the Constitution.  

The second significance of this case is that the very existence of an unconstitutional statute can sometimes give rise to the violation of the rights of an individual.  So, even if a person has not been prosecuted under s.377A, that person can still bring an action to challenge the Constitutionality of the law. 

The case has general significance in all cases involving the validity of statutes (where there has been a contravention of the Constitution).  A citizen does not have to wait to have his rights violated before bringing a challenge against the statute. 
http://article14.blogspot.sg/2012/08/rights-come-alive-tan-eng-hong-v-ag.html


All of these three cases are still alive.  The decisions in the Hougang by-election case and the IMF case have been appealed against.  Tan Eng Hong will go before the High Court for a determination on the constitutionality of s.377A. 

There is much to watch out for in 2013. 

Happy new year. 

Not profiteering. But politicking?

Social media has been abuzz with questions relating to the role of Action Information Management Pte Ltd in the leaseback agreement with 14 PAP Town Councils.  There have been suggestions by some netizens that there should be a CPIB investigation and other suggestions that AIM is but an example of profiteering at the expense of citizens. 

Based on information that is so far available:

1.  The 3 directors of AIM are PAP members. Two of those 3 are also shareholders of AIM
2.  Dr Teo Ho Pin, the coordinating chairman is reported to have claimed that AIM is a PAP owned company. (technically, the company is owned by Chandra Das and Lau Ping Sum and not PAP, the political party.)
3.  The company has a paid up capital of $2.
4.  Dr Teo has stated that there was a tender process for the sale and leaseback of the computer systems and that only AIM made a bid even though there were 5 companies that collected the forms.
5.  Dr Teo also confirmed that only the software was sold to AIM at $140,000 and the terms of the leaseback was for the Town Councils to pay $785 per month per Town Council. 
6.  Chandra Das (Director of AIM) has stated that he and his fellow directors do not receive any directors' remuneration. 
7.  It has also been confirmed that the original service provider (NCS) that developed and maintained the system for the 14 Town councils is still providing the services under the leaseback arrangement as AIM has engaged NCS to maintain and develop the system. 

I am going to take all the facts above as true and accept Dr Teo and Mr Chandra Das' statements as true.  In fact, I am going to give Mr Chandra Das the benefit of the doubt.  Let us assume that the shareholders of AIM have not and will not be given any dividend.  AIM has entered into a transaction that is clearly profitable.  However, the Directors do not get any remuneration and the shareholders do not get any dividends.  In such an arrangement, there is a potential for profits to accumulate year on year.  What is going to be done with these profits eventually? 

A quick calculation of the rate of returns has alerted many people to the possibility of profiteering by AIM.  But, I do not think that this is an instance of profiteering.  After all, AIM has engaged NCS to maintain and develop the system.  In all likelihood, the $785 per month per Town Council is entirely channeled towards payments to be made to NCS as the service provider.  There is a high probability that AIM (having, presumably, no skilled personnel or infrastructure) is a middle man that is not deriving any profit at all. 

This is a leaseback arrangement that probably produces no profit for AIM and one where NCS continues to be the ultimate service provider at arguably more or less the same rate as before the leaseback.  After accepting Chandra Das' assertion as true and giving further benefit of the doubt so as to remove any suggestion of impropriety, we have to render the leaseback agreement as a zero profit venture for AIM. 

Why would a company go through a tender process and choose to make no profit at all unless there was some other purpose for the transaction?  I suspect that this transaction had nothing to do with profiteering and everything to do with politicking.  Nothing illegal.  Just dirty politics. 

The new contract with AIM containing the termination clause in the event of change in management was most probably intended to frustrate opposition parties in the event that a Town Council management ended up in the hands of the opposition.  Given the fact that Town Council management runs parallel to the seats won by MPs, the possibility of a change in management is always going to be inevitable.  The termination clause was probably inserted in anticipation of electoral defeat in some constituencies.  Probably.

Anyway, for good measure, in order to eliminate the possibility of profits being made by AIM, I tried to do an online search through ACRA for the audited accounts of AIM.  This is what I found:

 

The Annual Returns (AR) filed by the company is without accounts.  I didn't bother clicking through to purchase the AR.  I backtracked to look at the business profile of the company that is available here http://www.tremeritus.com/wp-content/uploads/2012/12/Action-Information-Management.pdf?9804ec
AIM is an Exempt Private Company.  There is thus no legal requirement for Audited accounts to be filed at the registry. 

The PAP has to come forward and give a proper detailed explanation on this whole transaction before the online speculations grow completely out of hand.  As it stands there are questions being thrown around as to the propriety of the tender process and the profits possibly being made by AIM.  With social media setting the agenda on this issue and MSM playing catch-up and the Town Councils and AIM being patchy with information, there is an urgent need for thorough explanation. 

What a way to end the year!

Terminating Aljunied Town Council's Contract: What's their AIM?

Palmergate is yesterday’s news.  Let’s move on.  He’s human.  He erred.  He has resigned.  This is now a personal issue for him to deal with his family.  What remains to be sorted out is the vacant Parliamentary seat.  Even though the current judicial interpretation of the Constitution would result in a full discretion for the PM to decide whether or not to hold a by-election in Punggol East, it would be politically prudent for the PM to call for one in order to avoid the further hardening of moderate voters against the PAP. 

Amidst all this, and amidst online discussion about the undesirably close (though not necessarily improprietous nor unlawful) relationship between PA and PAP (with Michael Palmer and Laura Ong providing the useful metaphor of being in bed with each other), the Workers’ Party’s  Sylvia Lim has revealed that a certain Action Information Management Pte Ltd manages the computing and financial system for PAP run Town Councils.  This information has surfaced as a result of Sylvia Lim’s public clarification as to the reason for delays in her Town Council’s audited statements.  The following is from her statement:

"After the GE in May 2011, the Town Council was served with a notice that the Town Council’s Computer and Financial Systems will be terminated with effect from 1 August 2011 due to material changes to the membership of the Town Council. This Computer and Financial Systems had been developed jointly by the 14 PAP Town Councils over a period of more than 15 months but was in January 2011 sold to and leased back from M/s Action Information Management Pte Ltd, a company which was dormant. This effectively meant that the AHTC had to develop its own equivalent systems, in particular the Financial System, within a 2 months’ timeframe."

Sylvia Lim has brought this information up in the context of explaining delays to the audit of the Town Council.  She does ask the relevant question as to why the Computer and Financial System was sold to Action Information Management (AIM).   Although AIM director, S Chandra Das, has attempted to clarify that they were willing to grant a further extension if requested, he has not stated anything about how or why AIM was awarded this contract in the first place. 

At this point in time we do not know what is the price for which the 14 PAP run Town Councils sold their Computer and Financial Systems to AIM. 

Let’s assume that the System was valued at market value through an independent valuation process and sold to AIM.  AIM then leased it back to the Town Councils.  The Town Councils will now be contractually bound to pay a price to AIM under the terms of this leasing agreement.  What is the contracted price?  Is there a profit derived by AIM through the purchase by them of the System and the subsequent lease back to the Town Councils?  If so, what is the amount of profit so derived?

Whilst it is understandable that a Town Council might commission a third party to develop a system, it is indeed strange that a system developed by a Town Council should be sold to a third party only to be leased back to the Town Council.  But, perhaps the third party might have had particular skill and expertise that it could bring to bear in relation to the system.  If that were the case, what was the specific skill and expertise that AIM brought with it in order to justify this contractual arrangement.  Sylvia Lim claims that AIM was a dormant company.  (The company’s registration number is 199103607Z.  That would mean that it was incorporated in 1991.  Perhaps it was operational for some time.)

What was the process by which AIM was awarded this sale and lease back contract?  Was it done through a tender process?  Considering that the directors of AIM are ex PAP MPs, did the Town Councils invest in extra effort in going through a transparent process in awarding the contract (so as to avoid inviting unwarranted allegations of impropriety)?

On the assumption that AIM derives no profit from the contract, why would a private company want to enter into a contractual arrangement where it is not going to benefit at all?  That leads us to come up with a grand conspiracy theory (which was probably what Sylvia Lim was hinting at).  Anticipating that PAP might lose control of more constituencies at GE 2011 and therefore some Town Councils, the Computer and Financial System might have been sold off to a third party with a lease back arrangement.  The contract provided for termination by giving a month’s notice.   In the event that a Town Council management falls into the hands of an opposition party, AIM’s services could be withdrawn by giving 1 month’s notice.  There is nothing illegal about it.  Just some old-style politics.  The kind of politics that we hope to eventually see the back of.  

PAP leaders have recently lamented the increasing polarization of Singaporeans and expressed their wish that we don’t embrace divisive party politics.  The problem is that it is the PAP’s traditional approach of demonizing, maligning and disadvantaging opposition parties that has caused a certain degree of anger and frustration amongst many voters and led to the kind of online vitriol that we witness on and off. 

Expecting civility in politics would mean that one has to be civil in the first place.  It is not too late.  We can start afresh.  We can start by looking at all the aspects of our electoral and political system that creates a less than level playing field and seek to change that.  Right now, that looks like a mammoth task.  It may involve a systemic overhaul.  Many citizens are arguably ready for it.  But, is there the political will or desire for it?

 

 

Punggol East: 29 out of 30 residents feel that there should be a by-election

I read the following article online:

http://www.todayonline.com/Singapore/EDC121215-0000040/Punggol-East-back-in-the-spotlight

The Headline is "Punggol East back in the spotlight."  The sub-headline reads: "Many residents aren't thinking of a by-election yet; they're still in shock over the loss of an MP who was clearly popular."

My first reaction in reading the sub-headline was to think that unfortunately most Singaporeans don't seem to appreciate the need for Parliamentary representation in a democracy. 

As I read further, I came across the following:

 "...for many of the residents, the thought of going to the polls again has not sunk in yet. They are still reeling in shock over the loss of an MP who was clearly popular among the residents."

The impression that was building in me was that a majority of Punggol East residents are uninterested in the issue of having a by-election.  Further down in the article comes the following:

"Among the 30 residents TODAY spoke to, 13 felt that a by-election should be called within three months. Slightly more than half (16) felt that there was no rush, and one said there was no need to elect a new MP for the constituency."

Firstly, this is not a properly conducted survey.  So, it is not going to be sufficiently representative of residents' sentiments and a wide margin of error must be accounted for. 

I find the 'findings' made by TODAY to be rather amusing especially for the impression that they were trying to create.  Clearly, by stating that 13 felt that there should be a by-election within 3 months and more than half felt that there was no rush, TODAY is brushing over a very important fact.  Of the 30 persons interviewed, 29 actually thought that there is a need for a by-election.  Only one person thought that there was no need to elect a new MP.  If the information was presented in this way, it would not aid the overall impression that the PAP probably wants to create: that there is no necessity for a by-election and that municipal duties of the MP can be performed by an MP from a neighbouring constituency (and that many residents are not interested in a by-election). 

TODAY's unscientific straw poll (after reading in between the lines) restores (in mymind at least) some faith in my fellow citizens.  We are not about to roll over and play dead.  Clearly, many want to see the Parliamentary vacancy filled.  I expect that there is bound to be disagreement as to whether by-elections should be held as soon as within 3 months of the vacancy.  But, only the hardcore PAP apologists would preach on the merits of an empty Parliamentary seat, the acceptability of an unrepresented Constituency and the disenfranchisement of about 31,000 voters. 

Coming back to TODAY's article.  This appears to be just part and parcel of the whole business of perception management:  presenting information in a technically accurate but linguistically 'massaged' form to create the impression that there is not much public support for a by election. 

Well, so long as you keep a healthy ability of not taking information at face value, you won't be caught in the matrix. 

(To put an opposite spin the information: 96% of Punggol East residents want a by-election.  :-) )

By-election in Punggol East?

The Speaker of Parliament and MP for Punggol East, Michael Palmer has resigned from his post as Speaker, his position as the member of Parliament and his membership in the PAP.  It appears that he has had a relationship with a member of the Peoples' Association. 

I had blogged earlier this year about the Yaw Shin Leong affair and my stance on the extra marital affairs and the duties and functions of elected representatives.  I don't think that Parliamentarians and ministers should be judged on the basis of what goes on in their private lives.  What is important is the way in which the public official conducts his duties.  http://www.article14.blogspot.sg/2012/02/politics-of-affairs.html

Now that Palmer's seat is vacant, we again get to visit the question of whether a by-election should or would be held.  After Yaw Shin Leong's resignation, several members of the PAP made public statements about how the calling of a by-election is entirely at the discretion of the PM.  At that time, my view of the Constitutional provision on the filling of vacancies in Parliament was pretty much straightforward.  Article 49 states that the vacancy "shall be filled by election" and that to me (and most observers) was clearly denying any discretion for the PM.  The only discretion that he could have was to delay the time within which the by-election had to be called.  http://article14.blogspot.sg/2012/02/by-election-when-not-whether.html . 

However, the Vellama case that sought to obtain a determinative pronouncement on the interpretation of Art 49, has complicated matters somewhat.  When the Hougang seat became vacant, the PAP leadership was getting heat from the people and also from the Court application.  Eventually, it relented and called for a by-election.  As it turned out, the High Court ruled against Vellama and the current legally affirmed interpretation is that the PM has discretion to decide whether and when to call a by-election.  I disagree with the Court's reasoning in that case and I blogged about this a few days ago. 

http://www.article14.blogspot.sg/2012/12/the-hougang-by-election-case-belated.html

With Michael Palmer's resignation, there will be renewed calls for a by-election.  There are already facebook postings calling for a by-election in Punggol.  Workers Party (which was slow to comment on the SMRT drivers' strike) has already issued a comment on Palmer's resignation and called for by-elections to be held.  The Worker's Party's facebook posting states:

"The Workers' Party has noted the announcement today that the Speaker of Parliament, Mr Michael Palmer, has resigned from the People's Action Party.

By virtue of Article 46 of the Constitution, Mr Palmer's Parliamentary seat for Punggol East Single Member Constituency (SMC) has become vacant.

In order that the residents of Punggol East SMC are properly represented, the Workers' Party urges the Prime Minister to call a by-election in the constituency as soon as possible.

In the last General Election, the Workers' Party contested Punggol East SMC. The Workers' Party is ready to offer a choice to the voters of Punggol East SMC again in the by-election."

The PAP government's reaction to calls for a by-election would be interesting to watch.  Previously, without the benefit of the High Court judgment, they were already adament about the existence of a discretion.  Now, it would be easy for the PM to hide behind the legal interpretation and state that there is no legal requirement for him to call for a by election. 

But, what the PM must remind himself about is the fact that if indeed it is legally the PM's discretion, then politically he must exercise that discretion in a fair and reasonable manner in order not to contribute to a further reduction in the PAP's political capital.  GE 2011 may seem like a distant memory to the political leadership of the PAP.  They must remind themselves that part of the reason why they did not lose more of the popular vote was that an apology was extended midway through the election campaign.  There must have been a sizeable number of voters that were swayed by the apology.  But, 18 months after the general elections, people are beginning to get a sense that no major policy changes are lined up.  There has been more of an attempt at perception management rather than genuine policy adjustment.  I am sure that as we stand today the PAP has less political capital than it did during the general elections. 

A decision by the PM not to call for by-elections at Punggol East would add to the loss of political capital.  It is not prudent for the by-election to be postponed indefinitely.  That would be one more issue for the opposition to raise at the next GE about the high-handedness of the PAP. 

Of course, calling for a by-election at Punggol East represents a high risk for the PAP in terms of losing another seat in Parliament.  Palmer won Punggol East with 54.54% of the vote.  A vote swing of 5% would be needed for PAP to lose this seat.  In the last GE, there were a few constituencies that witnessed vote swings of between 10% to 14% (e.g. Joo Chiat = 14%) against the PAP.  But, that swing has to be seen in the light of the general election cycle (spanning 5 years) and the unusually strong anti-PAP sentiments on the ground.  It is possible that this sentiment had already been fully milked during GE 2011 and in Punggol East today we might just see a marginal swing away from the PAP of 2% to 3%. 

PAP could make the prudent calculation that there is a possibility of retaining Punggol East and at the same time coming across as not doing business as usual by doing the democratic thing: calling for by-elections.  The ball is in your court Prime Minister. 

(Meanwhile, Mdm Vellama's appeal in the Court of Appeal is still pending.  Things could still play out very differently and the court could rule that a by-election is mandatory.)

 

The Hougang By-Election case - A belated analysis of the High Court judgment

It has been quite some time since the High Court delivered its judgment in the Hougang by-election case. I haven't found adequate time to read through the judgment in order to write about it. Thanks to a couple of hours of waiting time at the Hong Kong airport last month, I penned down a few quick thoughts. Finally, I have added some finishing touches and here it is. Better late than never, I guess.


Firstly, let me recall what I stated about the Constitutional position on vacancy of seats in Parliament in an earlier blog post way back in February this year:

"Anyone that states that a by-election in Hougang is not mandated by law is talking stark nonsense." http://article14.blogspot.sg/2012/02/by-election-when-not-whether.html


Now that the High Court has decided that "there is no requirement in the Constitution to call elections to fill elected Member vacancies" and that whether "to call or not to call an election to fill an elected Member vacancy is a decision to be made by the Prime Minister", I have to withdraw my rather extreme assertion. :-) I can't say that the court is talking stark nonsense, can I? (I might just go the way of the kangaroo t-shirt wearers)

Having read the judgment, I have to admit that it sets out a well-argued position. In any event, I still hold a view contrary to that expressed by the judge and I will explain this along the way and summarise it towards the end of this post.



Firstly, how does the judgment proceed?



For those that might be put off by the length of the judgment, the good news is that the first 19 pages of the judgment deals with a procedural point relating to the type of relief that can be claimed under specific provisions in the Rules of Court in judicial review cases. This is not relevant for those interested in the issue of whether the Prime Minister has the sole and unfettered discretion in deciding whether to call a by-election.



The main issue: "shall be filled by election"



Article 49(1) of the Constitution refers to the situation where a seat becomes vacant and stipulates that the vacancy "shall be filled by election". The High Court judge has rightly decided to situate the phrase within the context of other usages in the Constitution as well as the historical context of its usage.

Firstly, the judge presents the possible interpretation of "shall be filled by election" as being a reference to a process on the one hand or alternatively a reference to the event, i.e. the holding of an election. He spells it out as follows:

The word "shall" ordinarily means that whatever it is referring to is mandatory. However, what is being mandated by the word "shall" in Article 49(1) is not immediately clear, because "election" can mean either: (a) an event, in the sense of, "to hold an election"; or (b) a process, in the sense of, "by the process of election".

Proceeding on the assumption that there are two possible interpretations of the phrase "shall be filled by election", the Court assesses the historical origins of the phrase in Art 49(1). It is here that I believe that the judgment took a wrong turn. Working with his interpretation of the 2 meanings of the phrase ('to hold an election' and 'by the process of election'), it is clear that the judge has decided two possible outcomes although he doesn't expressly state that at that stage of the judgment. But, the net effect of the court's assumption is that the phrase is capable of giving rise to only two possible outcomes:

a) 'to hold an election' - where there is a vacancy, an election must be held

b) 'by the process of election' - where there is a vacancy, it may or may not be filled. But, if it is filled, then it must be through the process of having an election instead of some other process such as nomination.

I take the view that if we were to consider "shall be filled by election" to contain multiple meanings, then the following meaning could also be attributed to the phrase:

a) where there is a vacany, it must be filled and the filling of that vacancy must be by the process of election instead of any other process.

The judge analysed that the mandatory word "shall" could relate to either "election" as an event or "election" as a process. By associating "shall" with "election", the specific mode of reasoning deployed by the court is possible. But, the word "shall" is more naturally associated with the word "filled". What is mandatory in my view is the filling of the vacancy.

Let me draw an analogy with another situation to illustrate this point about linguistic usage and interpretation. Let’s assume that an instruction is communicated in the following form:



‘If this glass becomes empty, it shall be filled’



The mandatory word ‘shall’ is associated with the filling of the glass. No multiple meanings are possible.



Let’s try another form of this instruction:



‘If this glass becomes empty, it shall be filled by dipping into a pot of water’



Based on the interpretive approach adopted by the High Court, we could arrive at two possible meanings:



a)If the glass becomes empty, the glass must be dipped into a pot of water

b)If the glass becomes empty, then the filling of the cup must be done by dipping into a pot of water and not by any other means (such as pouring water from a kettle).

In the first interpretation, the mandatory shall is associated with dipping into the pot as an event that must occur.

In the second interpretation, the mandatory shall is associated with the dipping into the pot as a process so that the process is mandatory if, and only if, a decision to fill the empty glass has been made in the first place.



I venture that there is a 3rd interpretation that is highly consistent with the statement ‘if this glass becomes empty, it shall be filled by dipping into a pot of water.’:



If the glass becomes empty, the glass must be filled and the filling of the glass must be by dipping into a pot. The word shall is to be both associated with the mandatory requirement of ‘filling’ as well as the mandatory nature of the ‘process’ of filling.



It is this third possible interpretation that the Court had failed to address in its judgment and one that I feel should be properly raised during the appeal.


Whilst reading paragraph 60 and 61 of the judgment, I formed a disagreement in my mind over the dualistic approach presented by the court. But, I decided to suspend judgment until I read through the historical context that the court presented. After all, there could have been something in the historical context that indicated that the filling of the vacancy was not mandatory and only the process by which the filling took place was mandatory.



Up to paragraph 80 of the judgment, the judge took some effort to demonstrate the different processes by which vacancies are to be filled for different types of members of Parliament. We have Nominated MPs, Non-Constituency MPs and elected MPs. The Court demonstrated that the Constitution provided for different processes for the filling of vacancy of each type of seat in Parliament. This led the judge to come to the conclusion that the mandatory “shall” in Art 49 referred to the process.

“It is abundantly clear that a nominated Member can only be appointed and not elected. It is also clear that non-constituency Members can only be declared elected under the Parliamentary Elections Act. Accordingly, elected Member vacancies are to be filled only by election. It must therefore follow that the phrase “shall be filled by election” in Article 49(1) refers to the process whereby the vacated seats of elected Members are to be filled.”

I have to pause here again. I agree that the Constitution provides for different methods for the filling of a vacancy. But, the fact that there are different methods does not mean that the word “shall” in Art 49 related to process of filling the vacancy instead of the filling of the vacancy itself. Let me refer to section 4 of the Fourth Schedule to the Constitution:

4.—(1) Whenever the seat of a nominated Member has become vacant by reason of the expiry of his term of service, the vacancy shall, as soon as practicable, be filled by the President by making an appointment on the nomination of the Special Select Committee referred to in section 1.

(2) Whenever the seat of a nominated Member has become vacant for any reason other than a dissolution of Parliament or the expiry of his term of service, the Special Select Committee may, if it thinks fit, nominate a person for the President to appoint as a nominated Member to fill the vacancy.

I have highlighted the words ‘shall’ and ‘may’ in sections 4(1) and 4(2) respectively. This provision deals with the NMP position.

Firstly:

When the NMP’s term of service expires, the President is required to fill it and in filling it the stipulated process is by nomination from the Special Select Committee and appointment by the President

Secondly:

When the NMP’s seat is vacant for some other reason (e.g. death), the President is not required to fill the vacancy. Instead, it is stated that the Committee may nominate a person for the President to appoint as NMP. Clearly, the absence of the words ‘shall be filled’ indicates that there is no mandatory requirement for the filling of the vacancy and only that there is a discretion as to whether or not it is filled and if it is to be filled the process of nomination by the Committee is to be followed.



It is clear from these provisions that the Constitution draws not only distinctions in terms of the process of filling a vacancy but also distinctions in terms of whether the filling should be done.

Where it is an NMP whose term has expired, the vacancy must be filled and the process of filling is stipulated as being by way of nomination.

Where it is an NMP whose seat has become vacant for other reasons, the filling of the vacancy is discretionary and if it is to be filled, then the process is provided for.

Where it is an elected MP whose seat has become vacant, then the vacancy must be filled and the process of filling that seat is by way of election.



I do not agree that the Constitutional provisions on the filling of Parliamentary vacancies lend credence to an interpretation that the mandatory ‘shall’ in Art 49 is to be associated only with the process of filling the vacancy. “Shall” has been used in the Schedule to the Constitution in relation to NMPs to indicate that the ‘filling’ is mandatory. Where the ‘filling’ is not mandatory, the word ‘may’ has been used. This structure lends more credence to an interpretation that wherever the word ‘shall’ has been used in relation to the filling of a vacancy, the filling as well as the process of filling would be mandatory.

The historical origins of Art 49

During the colonial period, our Legislative Assembly progressed from being Nominated House to a partially Nominated and partially Elected House. The High Court looked at this progression and referred to the Singapore Colony Order of 1955. I quote from the Judgment:

"95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled.

96 Section 51 of the 1955 Order is the original source of Article 49(1) of the current Constitution. The exact wording of section 51 of the 1955 Order is crucial as it brings into clear light the meaning of Article 49(1) of the Constitution."

The 1955 Order:
Filling of vacancies

51.—(1) Whenever the seat of a Nominated Member of the Assembly becomes vacant, the vacancy shall be filled by appointment by the Governor in accordance with the provisions of this Order.
(2) Whenever the seat of an Elected Member of the Assembly becomes vacant, the vacancy shall be filled by election in accordance with the provisions of this Order.


The Judge added:

"97 It is immediately apparent that the expression “shall be filled by election” is common to both section 51(2) of the 1955 Order and the current Article 49(1) of the Constitution. Yet, there was no ambiguity in the meaning of the expression “shall be filled by election” in section 51(2) of the 1955 Order, because section 51(1) used the contrasting expression “shall be filled by appointment by the Governor”. Such an expression clearly meant that “election” in section 51(2) referred to a process and not an event, and the word “shall” in sections 51(1) and 51(2) of the 1955 Order mandated the process of filling the seat. In other words, under section 51(2) of the 1955 Order, whenever the seat of an Elected Member of the Assembly became vacant, the only process that could be used to fill that seat was by election and not by appointment. Subsequent constitutional provisions that originated from section 51(2) of the 1955 Order and containing the same expression have the same meaning unless the text was intentionally changed.


98 The expression “shall be filled by election” in Article 49(1) of the Constitution subsequently became obscure because the distinction between the processes of appointment and election in the 1955 Order was lost in subsequent Orders in Council and later, the Constitution. It is therefore important to follow the precise chain of events in our history to understand how and why this distinction became obscure."

The Judge then went on to explain how our legislature eventually became a fully elected body and the distinction in the two processes of filling vacancies became lost and “shall be filled by election” became obscure.

I beg to differ with the Court’s reasoning. The transition from from 1946 to 1955 was not merely a change in the composition of the legislative body and the method of replacing vacancies but also a transition from the discretionary ‘may’ to the mandatory ‘shall’. Whereas the 1946 order gave discretion to the Governor as to whether the vacancy was to be filled, the 1955 order stipulated that the vacancy ‘shall’ be filled (i.e. must be filled). Leaving aside the way in which Elected Members were to be dealt with, the clear difference in the way Nominated Members were to be treated is evident for all to see.

In the 1946 order, the Governor had an option to decide whether to fill the vacancy of any member. In the 1955 order, the Governor had to fill the vacancy (and in so doing was to use the process of appointment). Insofar as the Elected Members were concerned, the vacancy had to be filled and the process of filling was by way of election. This new provision used the mandatory ‘shall’. It is clear to me (especially with the contrast made with the 1946 Order) that the 1955 Order was intended to cause the filling of the vacancy to be mandatory as well as the process to be mandatory. In the case of Nominated Members, any vacancy had to be filled. In the case of Elected members, any vacancy had to be filled. For Nominated Members, the filling was by appointment and for Elected Members, the filling was by election.

Eventually, when our Parliament became a fully elected House, the distinction between Nominated and Elected MPs disappeared. However, that disappearance doesn’t obscure the meaning of the Article 49 of the Constitution. Article 49 still echoes the transition made from discretionary filling of a vacancy to the mandatory filling of the vacancy.

I’d like to go back to paragraph 95 of the Judgment:

“95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled.”

If I were to modify this to reflect my interpretation, then my modification of it would be as follows:

'Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer gave the Governor discretion to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out that each respective vacancy had to be filled and in doing so the process of filling was by appointment for the former and by election for the latter.'



What transpires is that instead of assisting the Court's reasoning in seeing Art 49 of the Constitution as presenting a discretion in the filling of a vacancy, the legislative history indicates that Art 49's origins lay in the transition from a discretionary filling of vacancies to a mandatory filling of vacancies. The irresistable conclusion that should be arrived at is that Art 49 removes discretion from the Executive in the filling of the vacancy and the manner of filling the vacancy. What is left is the discretion to decide on the timing of the filling of the vacancy.

The Judge also traced the development from 1958 through our merger with Malaysia to the eventual split and in the process discussed the temporary insertion of the 3 month limit during merger and the removal of the limit after independence. This removal was debated in Parliament and was justified by the legislature. To me the fact that the 3-month limit for the filling of the vacancy was removed does not equate with introducing a discretion as to whether the vacancy should be filled. It merely introduces a discretion as to timing of the filling of the vacancy. The vacancy must be filled. It must be filled by election. But, the timing of the election is not fixed and is therefore discretionary. This would then give rise to the question of what is a reasonable period of time within which a by-election should be called.



Summary:


Contrary to the Court's interpretation that there are two possible meanings to the phrase “shall be filled by election” in Art 49 of the Constitution, I am of the opinion that if we were to get into the process of seeking multiple meanings in that phrase, then a comprehensive approach would be to accept that there are three possible interpretations:

a) an election must be held (event of 'election' must happen)

b) if the vacancy is to filled then it must be by way of election (process of filling must be by way of election).

c) the vacancy must be filled and filling must be by way of election. (event and process)



The 3rd interpretation is not only the linguistically most natural interpretation, it is also consistent with the arrangement of the provisions in the Constitution (where the word 'may' instead of the word 'shall' is used for the filling of NMP seats and should be contrasted with the word 'shall' for the filling of elected MP seats – the difference is not merely related to the process but to the very 'filling' of the vacancy itself). The 3rd interpretation is also consistent with the historical development of the elected members' seats in Parliament. The 1955 Order moved away from discretionary filling of vacancies to the mandatory filling of vacancies.



The “shall” in the 1955 Order as well as Art 49 of the current Constitution is in relation to the “filling” of the vacancy as well as the process of filling that vacancy.



The Vellama case has already become a Constitutional milestone by virtue of the High Court's decision to not order costs against her in view of the strong public interest that exists in the interpretation and application of Art 49. The most fundamental of all rights in a democracy is the right to vote. The case is now proceeding to the Court of Appeal. Hopefully, the Court of Appeal would create another milestone by interpreting the Constitutional provision in a restrictive manner to prevent the Executive from exercising excessive discretion.



It is an important feature of the rule of law that wherever possible governmental action must be governed by law. Where discretion exists, then it ought to be the duty of the Courts to apply the law restrictively so that the area of discretion is limited and the manner in which discretion is exercised is subject to scrutiny and oversight. The 3rd interpretation not only has (a) the merit of consistency with the arrangement of provisions in the current Constitution and (b) is historically traceable to the development of the 1955 Order, it is also (c) compatible with adopting a restrictive interpretation to prevent excessive discretion from being conferred on the Executive arm. Besides, it is also linguistically the most natural meaning of the phrase.



Whilst I agree that the interpretation adopted by the Court is not impossible, I suggest that it is less probable than what I have proposed as the 3rd interpretation. In any event, it is going to come down to interpretation and which way the Court of Appeal is likely to go is not going to be easy to predict.



If the Court of Appeal upholds the High Court's decision, then this issue has to be resolved through Constitutional amendment by Parliament. The opposition parties have to seriously consider whether they would want to make the issue of this Constitutional amendment a part of their manifesto in the next elections as the right to vote is too fundamental to be given away simply because of a lack of clarity in the provision.

Strike: A 'four' letter word in Singapore

We are creatures of PAP's social engineering. 

I used to think that we have become cowards in being afraid to question authority.  The last general elections in 2011 successfully lifted the fear out of the hearts of many Singaporeans.  It has been gratifying to witness the transformation of Singaporeans from a once fearful population into a group of people that question the rationale of government policies.  But, I have to admit I was stumped when I read the reaction of many Singaporeans (online and offline) to the strike by the SMRT bus drivers. 

Many Singaporeans were calling for tough action.  Some were ridiculing the media (and the mainstream media deserves the ridicule) for failing to identify the action of the bus drivers as a strike.  Much of this ridicule of the failure to use the word 'strike' was with the subtext of how foreigners were getting away with the breaking of our laws.  Many were calling for these foreigners to be punished.  Perhaps, it was just the hatred of persons from China.  Perhaps, it was just the need to use any negative news against the ruling party (and thereby questioning the failure to act in a strict fashion against foreigners when locals are handled harshly). 

Or perhaps, we have just become so accustomed to the PAP constructed reality that we think that a strike is necessarily a bad thing.  Some of the posts seem to indicate as such (referring to the social harmony that we have worked hard to build).  Well, a couple of hundred transport workers going on strike would not bring our nation to its knees or result in widespread chaos and disarray.  But, judging from the reaction of some Singaporeans, one would get the impression that a 'strike' is, in its very nature, destablising. 

I remember thumbing through my niece's primary school textbook where references to the Hock Lee Bus riots are made.  At the end of that chapter, there is a kind of self-assessment question about what the student understands a strike to be.  I asked my niece what she thinks is a strike.  Her reply was that it would involve breaking shop windows and burning things.  It is entirely possible that this is the general impression that runs through the minds of many people.  Of course, there are many that do understand that a strike is just stoppage of work. 

There also appears to be another variant whereby strikes are recognised for what they are.  But, it is viewed that the consequences of a strike must necessarily be economically debilitating.  It is true that strikes worldwide have had a crippling effect for a short period of time and as a result inconvenienced many people.  However, these instances have been sufficiently spread out and prudently and responsibly managed by trade unions to avoid long-term destabilisation of the economy.  (Singapore's own zero strike approach ends up on the other end of the spectrum where workers' rights can be effectively trampled upon as these are sacrificed and offered up on the altar of corporate profits.)

I wonder if the hesitation of the journalists from mainstream media to label the actions of the bus drivers as a strike had anything to do with this extreme conditioning of our society whereby a strike is always associated with something that is chaotic and destabilising.  All the other words that they used in substitution of the word 'strike' still described what would constitute a strike.  So, why did they avoid the word in the first place?  Maybe it was just plain ignorance of the meaning of that word.  Maybe it was a hesitation that was born out of knowing that 'strike' came within the ambit of things that were beyond the OB markers.  Maybe, being a mouthpiece for the government, they were waiting for the 'green light' from the authorities before using this 'sensitive' word.   (Rather comically, an article by Teo Xuan Wei in Todayonline explained the reason for the media's avoidance of the word 'strike' by referring to the explanation given by the Minister for Manpower http://www.todayonline.com/Hotnews/EDC121128-0000063/Why-the-word-strike-was-not-used-initially )

In the end, we must not forget that a strike is essentially an 'economic' offence. 

The end of another judicial era

With the retirement of Chief Justice Chan Sek Keong, another era in Singapore's judicial history ends.  Every CJ has left some indelible mark in our legal history and it has to be acknowledged that the outgoing CJ definitely left his. 

The accolade from the new Chief Justice Sundaresh Menon is as follows:

"We know him as a lawyer with a peerless love and devotion to the law. If law is the foundation of society and judges are its servants, then we know that the Chief is among its most ardent and loyal servants, passionately committed to doing justice in accordance with the law and seeking, like Dworkin's Hercules, to always get it right. I know that history will vindicate these assessments; but more than that, with the benefit of time, I believe history will judge the Chief as the greatest jurist this country has ever produced. And in time, we will each fully realise just how privileged we have been to have shared at least some part of that ride with him."

CJ Chan was reportedly described (by CJ Sundaresh Menon) as "a world-class jurist, with a clear and principled judicial philosophy and an unmatched grasp of the foundational principles that underlie the law." The Channelnewsasia article reporting his retirement and book launch is here: http://www.channelnewsasia.com/stories/singaporelocalnews/view/1235377/1/.html   

I definitely appreciate the clarity and consistency found in the judgments of CJ Chan in comparison with his immediate predecessor.  In fact, a classic moment in our legal history was when CJ Yong (sitting as a single judge in the High Court) made a clear error of law in increasing a defendant's sentence beyond the maximum permitted under the law (PP v Gilbert Louis) and it was the then AG Chan Sek Keong that had to bring a Criminal Reference to the Court of Appeal against CJ Yong's decision in order to get the defendant's sentence reduced and to set the law right.  In my recollection, that stands out as CJ Chan's finest moment.  http://lwb.lawnet.com.sg/legal/lgl/rss/landmark/[2003]_SGCA_33.html
 

And, it is interesting that the other event that immediately crops up in my mind as his least noble moment was also when he was the AG.  In 1997, Goh Chok Tong, Dr Tony Tan and Lee Hsien Loong were within a polling station.  The Workers' Party had lodged a complaint against them for violations of the Parliamentary Elections Act.  No action was taken.    The following opinion of the Attorney General (Chan Sek Keong) was made available to the public by the then Law Minister:  

PRESENCE OF UNAUTHORISED PERSONS INSIDE POLLING STATIONS

1. On 14 July l997, THE Workers' Party issued a press release expressing "amazement" that the public prosecutor had advised police that no offence was disclosed in the reports made by it leaders against the prime minister, the two deputy prime ministers and Dr S Vasoo that they had been present inside polling stations when they were not candidates for the relevant constituencies. The Workers' Party queried why such conduct was not an offence under paragraph (d) or (e) of section 82(1) of the Parliamentary Elections Act.

2. On 15 July 1997, the Singapore Democratic Party also called on the attorney general to explain his "truly befuddling" decision and to state clearly if it was an offence for unauthorised persons to enter polling stations.

3. You have asked me for my formal opinion on the question raised in these two statements. My opinion is set out below.

Opinion

4. The question is whether it is an offence under the Parliamentary Elections Act for an unauthorised person to enter and be present in a polling station.

5. For this purpose, the authorised persons are the candidates, the polling agent or agents of each candidate, the Returning Officer, and persons authorised in writing by the returning officer, the police officers on duty and other persons officially employed at the polling station; see section 39 (4) of the Act (quoted below)

Activities Outside Polling Stations

6. The relevant sections of the Parliamentary Elections Act to be considered are sections 82 (1)(d) and 82 (1)(e). These provisions were enacted m 1959 pursuant to the Report of the Commission of Inquiry into Corrupt, Illegal or Undesirable Practices at Elections, Cmd 7 of 1968 (hereinafter called "the Elias Report)"

7. Section 82 (1)(d) provides that - "No person shall wait outside any polling station on polling day, except for the purpose of gaining entry to the polling station to cast his vote".

8. Plainly, persons found waiting inside the polling stations do not come within the ambit of this section. Similarly, those who enter or have entered the polling station cannot be said to be waiting outside it. Only those who wait outside the polling station commit an offence under this section unless they are waiting to enter the polling station to cast their votes.

9. Section 82 (1)(e) provides that -
"No person shall loiter in any street or public place within a radius of 200 metres of any polling station on polling day."

10. The relevant question is whether any person who is inside a polling station can be sad to be "within a radius of 200 metres of any polling station". The answer to this question will also answer any question on loitering inside a polling station.

11. Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station. A polling station must have adequate space for the voting to be carried out. Any space has a perimeter. The words "within a radius of 200 metres" ' therefore mean "200 metres from the perimeter of" any polling station. This point is illustrated in the diagrams in the Appendix. (Editor's note: Diagrams not available).

12. The above interpretation is fortified by the context of the provision. The polling station, as a place, is distinguished from a street or public place. It is not a street or a public place. Hence, being inside a polling station cannot amount to being in a street or in a public place. By parity of reasoning, loitering in a street or public place cannot possibly include loitering in the polling station itself and vice versa.

13. There is no ambiguity in section 82 (1)(e). If the legislature had intended to make it an offence for unauthorised persons to wait or loiter inside a polling station, it could have easily provided for it. It did not. The mischief that section 82 (1)(e) is intended to address is found in paragraph 99 of the Elias Report. It reads:

"In order to prevent voters being made subject to my form of undue influence or harassment at the approaches to polling stations, we recommend that it should be made an offence for any person to establish any desk or table near the entrance to any polling station, or to wait outside any polling station on polling day except for the purpose of gaining entry into the polling station to cast his vote; and that it should be an offence for any person to loiter in any street or public place within a radius of 200 yards of any polling station on polling day ."

14 . Paragraph 99 of the Elias Report appears under the heading "Activity OUTSIDE POLLING STATIONS". The Commission of Inquiry was addressing the possibility of voters being subject to undue influence and harassment as they approach the polling stations. There is therefore no doubt whatever that this provision was never intended to cover any activity inside the polling station as there would be officials and election agents in attendance.

15. The legislative history makes the provision so clear that it is not even necessary to consider the application of an established principle of interpretation that any ambiguity in a penal provision should, whenever possible, be resolved favour of the accused.

Activities Inside Polling Stations

16 Activities inside polling stations were made subject to a different regime under the Act. Section 39(4) provides that -

"the presiding officer shall keep order in his station and shall regulate the number of voters to be admitted a time, and shall exclude all other persons except the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station."

17. Under section 39(7), any person who misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer may be removed from the polling station by a police officer acting under the orders of the presiding officer. If an unauthorised person refuses to leave the polling station when told to do so by the public officer, he commits an offence under section 186 of the Penal Code for obstructing a public servant in the discharge of his duty.

18. There is a consistency in the rationales of the regulatory schemes governing activities inside and those outside polling stations on election day. Waiting outside a polling station is made an offence because it gives rise to opportunities to influence or intimidate voters: see paragraph 99 of the Elias Report. Hence, the Act has provided a safety zone which stretches outwards for 200 metres from the polling station. In contrast, the possibility of a person inside a polling station influencing or intimidating voters in the presence of the presiding officer and his officials, the polling agents etc was considered so remote that it was discounted by the Act.

19. I therefore confirm my opinion that the Parliamentary Elections Act does not provide for any offence of unauthorised entry into or presence within a polling station. Accordingly, those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act.

20. You are at liberty to publish this opinion

  I still remember reading this a long time ago in 1997.  I could imagine the PAP candidates dropping into the polling station using parachutes.  :-)  

Anyway, when all in said and done, he has definitely had an impact on the bench.  Under the previous CJ, the concentration was on administrative efficiency.  It used to be next to impossible to get an acquittal.  With CJ Chan, there was a discernible difference.  Many criminal lawyers will vouch for the fact that CJ Chan brought about a significant attitudinal change in the criminal justice system.  At least, CJ Chan will be remembered as a legal technician and not a 'banker'.

In his first speech as the Chief Justice he said this:

It is therefore not surprising that Professor Michael Hor, who teaches criminal law and justice in the Law Faculty of the National University of Singapore, expects me “to re-focus on the law and its internal values – rather than on its management and measurement by external criteria – with an increased attention to the quality of decisions, a fine tuning of the balance between fairness and efficiency.”

My response to this expectation is: “Yes, the fearsome backlog of cases which was the driving force behind the relentless waves of court reforms has been eliminated more than 10 years ago.  Efficiency is vital in court administration but it should not be pursued to the point when it starts to yield diminishing returns in the dispensation of justice. The Judiciary must always give priority to upholding the fundamental values of the legal system, such as due process or procedural fairness, equal protection of the law, consistency and proportionality in sentencing, and rationality in decision-making.  We should now be confident enough to give greater emphasis to the basics of judicial decision-making without the recurrent fear of a resurgent backlog.”

Many practising lawyers saw in that speech the indication of a shift away from what used to be perceived as 'efficiency at the expense of justice' under the tenure of the previous CJ.

The day the Constitution died (again)

To begin with, we don't have much of a Constitution to speak of.  Ours is not a liberal Constitution peppered with extensive safeguards against the abuse of power.  Our Constitution does attempt to limit the exercise of power and there are many restrictions on what the respective organs of state may or may not do.  But, there are enough provisions that allow the state to claim expansive powers and enough provisions to allow for the restriction of citizens rights. 

But, whatever we might say about our (amendment-ravaged) Constitution, the fact remains that it is a document that is a starting point for any discussion in law about the extent of the state's power and the extent of the citizen's rights.   There are 'silences' in many provisions that enable legroom for a pro-citizen instead of a pro-state interpretation. (Just realised that 'pro-state' unhyphenated is prostate.  There is an accidental link between intellectual alignment with the powers that be and a part of the anatomy near the testicular region. Sorry about this unnecessary and irrelevant digression. :-) )

That brings me to the IMF loan case.  Kenneth Jeyaretnam, the leader of the Reform Party, brought an application to the High Court for the Court to rule on the legality of the Singapore government's decision to pledge a loan to the IMF.  I wasn't surprised by the decision of the Court.  The Court has ruled as follows:

"Art 144(1) was obviously intended to apply to the raising of loans and not the giving of loans. It follows that the approval of Parliament and the concurrence of the President are not required for the Loan. As such, the present application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought and it could not be said that there appeared to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed. On this ground alone, the application for leave must be dismissed."

At issue in the case was the question of whether the government required Presidential/Parliamentary approval for the raising and giving of loans.  Kenneth contended that approval is needed for both.  The government contended that approval is only needed for the raising of a loan and not the giving of a loan.  The reason for the contention is the mode of interpretation to be employed.  Kenneth's Counsel argued for a literal interpretation of the Constitution relying on the ordinary dictionary meaning of the words employed.  The government relied on a purposive interpretation. (This is a technique of statutory interpretation where a law is interpreted on the basis of the objectives of Parliament in enacting the provision; i.e. looking at the 'purpose' behind the provision.)

The Court has obviously accepted the purposive interpretation.  The actual provision in question is:

"Article 144.
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs"



The Court is of the view that Article 144 prohibits the giving of a guarantee and the raising of a loan and not the other way around.  I have blogged about this earlier and have mentioned that this is a technical legal possibility.  http://www.article14.blogspot.sg/2012/06/singapores-pledge-of-us-4-billion-to.html

So, no surprises as to the result.  If so, why do  I say that the Constitution has died.  Well, there is another concern that I have about the High Court decision.  This is a far more serious matter with far-reaching consequences.  The Court has decided that Kenneth Jeyaretnam does not have the locus standi to make a claim.  (locus standi - the standing of the party.  the question as to whether the person has the right to make a particular claim in court.)

Ordinarily, if the case is one involving a private interest, there is little difficulty in establishing locus standi.  But, if the issue is one of public interest, the law hasn't been clear in Singapore.  The English Courts (from whom we adopt this concept) have moved ahead to give a broad application for locus standi in public interest cases.  Tan Lee Meng J stated the following at paragraph 42 of the judgment:

"The English position on locus standi in relation to the enforcement of public rights has become more liberal. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] 1 AC 617, Lord Diplock stated (at 644) as follows:

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 judge went on to look at the Malaysian position in Government of Malaysia v Lim Kit Siang.  In the end, the decision of the Court was to decide along the lines of the Malaysian case.  (In any event, the Malaysian case appears to have been given a nod to by our Court of Appeal in PP v Tan Eng Hong recently.)

On that basis, the High Court has now decided that Kenneth does not have the locus standi to pursue this case:

"an applicant in a case involving a public right should certainly be required to show that he had suffered special damage as a result of the public act being challenged and that he had a genuine private interest to protect or further."


The impact of this decision is that in future, any judicial review case involving a public interest will require special damage to be suffered by a citizen before it can be brought before the Court.  And so, one possible avenue of ensuring Constitutional governance is closed.  And so too, our Constitution has died. 

Of course, one might just as well cynically conclude that it was not a living document to begin with.  To be alive, the Constitution must not merely be a bunch of words on a piece of paper.  To be alive, the Constitution must be imbued with the spirit of a people and the values of a nation.  With so much to question about whether we have a coherent set of values or that there is a certain Singapore spirit and in fact, with so much to question as to whether we are even a coherent collection of individuals capable of being collectively referred to as a 'people' and even so much to question whether we are a 'nation', the question of a living Constitution probably doesn't arise.  If something is not alive, it can't die, can it?

Minister spoke to Archbishop

In Parliament on Monday, 15 October 2012, DPM Teo confirmed that he had a meeting with Archbishop Nicolas Chia on 30 May 2012.  There had been some speculation over the past few weeks as to whether the Home Ministry or the ISD had visited the Archbishop and exericsed their persuasive skills on the latter. 

I have blogged on this issue before and the brief background can be found here:
http://article14.blogspot.sg/2012/09/mha-walks-into-minefield-when-didnt.html
http://article14.blogspot.sg/2012/09/and-mine-explodes.html

We now know for a fact that after the Archbishop's first letter to Function 8 (presumably with sympathetic words for the Speakers' Corner event on the call for the abolition of the ISA), there was a meeting between the Archbishop and the DPM.  On the same day as the meeting, the Archbishop changed his mind and sent a letter to Function 8 retracting his earlier letter. 

I have reproduced the Minister's answer to the Supplementary question in Parliament:

Response to Supplementary Question on Keeping Politics and Religion Separate

Response by Mr Teo Chee Hean, Deputy Prime Minister, Coordinating Minister for National Security & Minister for Home Affairs to Mr Hri Kumar’s supplementary question in Parliament (15 October 2012) on whether there a meeting between the DPM and the Archbishop of the Catholic Church Nicholas Chia regarding a letter that the Archbishop had written to the organisers of the F8 function at Speakers’ Corner on 2 Jun 2012.

Mr Speaker, Sir, I’ll be happy to do so. As I have explained in my earlier reply to Mr Laurence Lien, Government leaders meet religious leaders regularly to build mutual understanding and trust. I have met Archbishop Nicholas Chia from time to time over the years, and several times since I was appointed as the Minister for Home Affairs last May.

2. Last year, I hosted him and a small group of Catholic leaders to lunch, so that I could understand better the issues that concern the Catholic community in Singapore. I also visited the Archbishop in hospital when he unfortunately fractured his leg last August. There was no publicity or fanfare for these meetings. The Archbishop knows that any time he needs to discuss any sensitive issue with me, he can see me in private. Likewise, I would have no hesitation to share my concerns honestly and openly with him if I felt the need to do so.

3. Sir, it was in this spirit that I asked to meet Archbishop Nicholas Chia on 30 May 2012 together with the Chairman of the Presidential Council for Religious Harmony (PCRH), Mr Goh Joon Seng. I wanted to understand better the context to the Archbishop’s letter to the organisers of an organisation which calls itself F8, which was going to stage a political event scheduled for 2 Jun at Speakers’ Corner. I was anxious to avoid any misunderstanding between the Government and the Catholic Church. When we met, I explained my concerns to Archbishop Chia. The Archbishop stated very clearly that the Catholic Church has always maintained the position that it does not wish to be involved in political activities, and that the Church wants to work closely with the Government and does not wish to set itself on a collision path with the Government.

4. I was greatly reassured by the Archbishop’s comments, as they were consistent with his record of service throughout his 11-year tenure as leader of the Catholic Church in Singapore. He has consistently shown that he values religious harmony and appreciates the importance of separating religion from politics in our local context.

He has also worked hard to forge inter-religious understanding and harmony, reflecting his strong belief in this fundamental basis of our social harmony.


5. It also became clear from the discussion that firstly, the Archbishop had intended the letter as a private communication to the F8 organisers; and secondly, on reflection, the Archbishop felt that the letter did not accurately reflect his views on the subject, and if used in a manner he did not intend, might inadvertently harm our social harmony. Archbishop Chia then decided on the same day to send a second letter to the F8 organisers to withdraw his earlier letter. The F8 organisers acknowledged the Archbishop’s request and according to the Archbishop, returned him his original letter.

6. Sir, those who know well Archbishop Chia, the type of person he is, and his contributions to Singapore over the decades, will certainly know that he is not one who would endanger social harmony in Singapore. The position he took, in withdrawing the letter, was consistent with his words and deeds throughout his leadership of the Catholic Church and as a respected religious leader in Singapore.

7. Mr Goh Joon Seng, who was at the meeting in his capacity as Chairman of the Presidential Council for Religious Harmony, is a retired Supreme Court judge who knows the Archbishop professionally and personally. They have served together on the Presidential Council for Religious Harmony for the 10 years, and have been friends, I’m told, for some 50 years. Mr Goh is a Catholic himself, and he knew that it was not in character for Archbishop Chia to do anything that would entangle the Church in politics.

8. Although I may not know the Archbishop as well as Mr Goh, I have had interactions with him on several occasions. Through my conversations with the Archbishop, we have established mutual understanding and share the desire to respect the religious beliefs of the various communities in Singapore while upholding the wider interest of all Singaporeans and of Singapore.

The Minister states that the purpose of the meeting was for him to understand the context of the Archbishop's letter to Function 8.  So, the Minister had known about this private letter sent by the Archbishop to Function 8 before he arranged for the meeting.  If he had known about it, was his Ministry or the ISD in the first place conducting surveillance on Function 8?  If there was surveillance conducted on the activities of a civil society group, on what basis was such surveillance conducted?  What national security threat did Function 8 pose?  If the threat was merely one of political embarrassment for the ruling party, on what basis is the resources of the security services deployed for such purposes?

Of course, that is a lot of 'If's.  :-)

Race: In the words of Harry

In the wake of extensive online discussion of racist remarks, racial stereotypes and racial intolerance, I thought that it would be useful to highlight the perspective of our first Prime Minister on the issue of race. 

"It is in part the difference between the more intense and exacting Sinic cultures of East Asia and the less demanding values of Hindu culture of South and South-east Asia, that accounts for the difference in industrial progress between Eastern and Southern Asia. The softer and more benign Hindu civilisation spread through Burma, Thailand, Laos and Cambodia, meeting the Sinic civilisation on the borders of Vietnam.... Gunnar Myrdal, in his "Asian Drama" voluminously sets out the reasons for lower achievements amongst these peoples [of South and South-cast Asia]. He terms them "soft societies." Their expectations and desire for achievement are lower. Had he studied the Sinic civilisations of East Asia - Korea, Japan, China and Vietnam - he would have come to the opposite conclusions, that these were hard societies."

 

on the differences between the Malays and the Chinese in Malaysia: "One is the product of a civilisation which has gone through all its ups and downs, of floods and famine and pestilence, breeding a people with very intense culture, with a belief in high performance in sustained effort, in thrift and industry. And the other people. more fortunately endowed by nature, with warm sunshine and bananas and coconuts, and therefore not with the same need to strive so hard. Now, these two societies really move at two different speeds. It's like the difference between a high- revolution engine and a low-revolution engine. I'm not saying that one is better or less good than the other.
But I'm just stating a fact that one was the product of another environment another history, another civilisation, and the other is a product of another different climate, different history." 

 

 

"Three women were brought to the Singapore General Hospital, each in the same condition and needing a blood transfusion. The first, a Southeast Asian was given the transfusion but died a few hours later. The second, a South Asian was also given a transfusion but died a few days later. The third, an East Asian, was given a transfusion and survived. That is the X factor in development."

 

"...these were not cultures which created societies capable of intense discipline, concentrated effort over sustained periods. Climate, the effects of relatively abundant society and the tropical conditions produced a people largely extrovert, easy-going and leisurely. They've got their wars, they have their periods of greatness when the Hindus came in the 7th and again in the l2th centuries in the Majapahit and the Srivijaya empires. But in between the ruins of Borobudur and what you have of Indonesia today, you see a people primarily self-indulgent."

 

"There is only one other civilization near the Equator that ever produced anything worthy of its name. That was the Yucatan peninsular of South America - the Mayan Civilization. There is no other place where human beings were able to surmount the problems of a soporific equatorial climate. You can go along the Equator or 2 degrees north of it, and they all sleep after half past two if they have had a good meal. They do! Otherwise they must die earlier. It is only in Singapore that they don't. And there were good reasons for this. First, good glands, and second, good purpose."

 

"In the older generations, economies and culture settled it. The pattern of procreation was settled by economics and culture. The richer you are, the more successful you are, the more wives you have, the more children you have. That's the way it was settled. I am the son of a successful chap. I myself am successful, so I marry young and I marry more wives and I have more children. You read Hong Lou Meng, A Dream of the Red Chamber, or you read Jin Ping Mei, and you'll find Chinese society in the 16th, 17th century described. So the successful merchant or the mandarin, he gets the pick of all the rich men's daughters and the prettiest village girls and has probably five, six, seven, eight, nine, ten different wives and concubines and many children. And the poor labourer who's dumb and slow, he's neutered. It's like the lion or the stag that's outside the flock. He has no harems, so he does not pass his genes down. So, in that way, a smarter population emerges."

All of the above quotes are taken from the following article entitled: "Lee Kuan Yew: Race, Culture and Genes" by Michael Barr of the University of Queensland. 
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN004070.pdf

The perspectives present themselves as not merely prejudices born out of ignorance.  They are couched as anthropologically sound and logically provable.  If these views were expressed by you and I (or Amy Cheong), what would have happened to us? 

And on a separate note, to what extent has the metanarrative of our society been influenced by these views?