Article 14

Burma moves forward

2012-01-13T10:46:00.000-08:00

The Burmese government has released 651 prisoners, amongst whom are political prisoners detained since 1988.

Although this release is to be welcomed, it has to be remembered that there are probably many more political prisoners that continue to languish in jail. Estimates based on disappearances of activists and official reports of past detentions place the number of possible detainees at between 1000 to 1500. The Association of Political Prisoners in Burma has estimated that more than 1500 prisoners have been detained for political reasons.

This release of prisoners is a step in the right direction. Hopefully, the Burmese government will continue down the road to democracy by releasing all of its political prisoners.

Meanwhile, I read something that was said by the US President that I couldn't help but be amused about. He was referring to a telephone conversation that he had with Aung San Suu Kyi when he was in Indonesia 2 months ago:

"In Indonesia, I spoke about the flickers of progress that were emerging in Burma. Today, that light burns a bit brighter, as prisoners are reunited with their families and people can see a democratic path forward,"

I couldn't help but think to myself... and one day that light will burn even brighter and reach America's backyard and set the men at Guantanamo free (or at least let them have their day in a court of law). The hypocrisy of Obama is mind-boggling and downright ugly. What am I talking about? This is, after all, the Nobel Peace Prize winner that bombs babies and buries them under the banner of collateral damage.

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Death by prosecutorial discretion

2012-01-11T06:53:00.001-08:00

The rather uncomfortable fact surrounding the mandatory death penalty for drug trafficking in Singapore is the fact that the presumption of trafficking operates on the basis of the possession of a specified quantity of a prohibited drug. Prosecution does not prove that you are a trafficker. Prosecution proves that you are in possession of a specified quantity of drugs. The law artificially designates you are a trafficker and you stand to be convicted if you cannot prove otherwise.

Firstly, the reversal of the burden of proof (i.e. making the Defendant prove certain facts instead of the Prosecution) on its own raises questions of the right of a private citizen to a fair trial. There may be justifiable reasons for such reversals in limited situations. I am not opposed to reversals of the burden of proof on all occasions. But, the use of this evidential technique in drug trafficking cases, where the failure of the defendant to discharge his burden places him on death row, cannot be described as anything other than a form of injustice. That injustice is, of course, firmly a part of our Misuse of Drugs Act.

Complicating this injustice enshrined in our statute books is the application of prosecutorial discretion. Let me make this clear. I am not opposed to the exercise of discretion by the prosecution. It is a necessary feature of every mature legal system that discretion be given to prosecuting bodies to decide on whether to prosecute at all or to prosecute for any number of given offences. It is also not uncommon that if a person had stolen a mobile phone and a wallet, he is then charged only for the theft of the mobile phone. Such exercise of prosecutorial discretion is not considered as odd, exceptional or an abuse of process. In fact, it is a necessary feature of the proper administration of justice that a prosecutor should be able to exercise discretion.

But, the difference between charging a person for the theft of a mobile phone and a wallet as opposed to charging him for the theft of a mobile phone alone is not substantial. On the other hand, the difference of 0.01g of cocaine in a charge sheet for a drug trafficking offence is as dramatic as either having a noose around your neck or being granted what is effectively a 'prosecutorial pardon'.

This stark difference was played out in the case of Ramalingam Ravinthran. This was a case where his co-accused was charged with trafficking in 499.99g of cannabis and 999.99g of cannabis mixture conveniently shy of the mandatory death penalty by 0.01g. That is just decimal points away from death. Ramalingam himself was charged for the trafficking of quantities that triggered the death penalty. In the end, the facts were such that the charges arose from a single bag containing 5,560.1g of cannabis and 2,078.3g of cannabis mixture. Not only did the prosecution artificially slice the contents of the bag by charging the defendants in the way it did, it also placed one man on death row whilst granting the other his life.

The Court of Appeal has delivered its verdict in the Ramalingam case. Based on the Straits Times report it is not entirely clear as to what was the precise ambit of the decision. It is reported: "IT IS not unlawful for the Attorney-General to artificially reduce the amount of drugs specified in a trafficker's charges, to differentiate from those of his accomplice. Nor is it unconstitutional."
On the other hand, it also reported: "Still, the exercise of prosecutorial discretion is subject to legal limits - the A-G cannot act arbitrarily. This means the A-G must ensure like cases are treated alike. And in cases where several offenders are involved, the A-G must not unlawfully discriminate against an offender."

It is difficult to surmise from the news report itself as to the precise position of the Court. I would have to read the 48 page judgment itself to ascertain the legal position.

I gather roughly from the report that the court has gone for the position that the power of the prosecution to exercise discretion is lawful and constitutional. However, the manner in which such discretion is exercised may be called into question. If that is indeed the position, the decision should be welcomed. (I say this fully aware of the fact that it provides no comfort to either Ramalingam or his family.) It prevents arbitrary decision making on the part of the prosecution and forces prosecuting bodies to consider carefully their reasons before differentiating between two defendants in the same case or for that matter (arguably) two defendants in entirely separate cases where the circumstances might be similar.

I shall read the judgment first before commenting further on this case.

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Who should I vote for?

2011-08-25T02:37:00.000-07:00

For an election that is not going to make a great deal of difference in our political power structure, the Presidential Election has surprisingly placed me in a fix. Who should I vote for?

I had decided from Day 1 that I am not going to vote for the PAP endorsed candidate. When Tony Tan announced publicly that he was contesting, I had no illusions that he is the PAP endorsed candidate. Sure enough, the endorsements came regularly from different quarters. I am definitely not voting for Tony Tan.
That leaves me with three candidates, all of whom are to varying degrees capable of acting independently when elected.

Dr Tan Cheng Bock on a personal level gives me the vibes of a moderate person who would neither be a 'yes' man nor an unnecessarily confrontational individual. Tan Jee Say and Tan Kin Lian appear to be equally minded to address policy issues with the Cabinet and possibly through that reshape the Presidency.

I have narrowed myself down to Dr Tan Cheng Bock and Tan Jee Say. It is now between the Palm Tree and the Heart. I just went through the New Asia Republic's tabulation of the candidates' position on various issues: http://newasiarepublic.com/?p=32344

Still undecided.

PA or PAP?

2011-08-23T04:38:00.000-07:00

You can accuse us of political apathy. But, you can never accuse Singaporeans of stupidity.

I am amazed at the Peoples' Association's response to the Workers' Party assertions about WP MPs being deprived of an opportunity to be invited guests at the 7 month festivites. It has turned out that Chen Show Mao had been invited as a guest at a couple of 'Hungry Ghost' festival dinners. But, the organisers had to withdraw the invitation because the Peoples' Association informed that they would not grant future permission if the WP MP was invited.

This first surfaced via a facebook update by Mr Chen Show Mao and subsequently a press release by Ms Sylvia Lim indicating that HDB had granted leases at several places in the Alunied GRC to the Peoples' Association and taken away management of those parts of the estate from the Town Council. This had been done after the General Elections this year. This is in iself shocking as it suggests partisan politics at play in our public institutions. There is an important value that any self-respecting democracy must uphold: the independance and neutrality of the civil service.

But, I am totally stunned at the audacity of the PA's response.

"The PA and its GROs are non-partisan and do not allow any political party or MP to hold activities on PA premises or other facilities managed by the PA."

"This applies to all political parties and MPs, including the PAP"

There are so many things I can quibble about:
1. The Workers Party did not attempt to hold any activities on PA premises
2. The WP MPs did not attempt to hold any activities on the PA premises
3. Mr Chen was invited by civilian, non-partisan organisers to attend the function
4. Community Clubs are PA premises and PAP MPs have been invited as guests at functions held at CCs.

A simple google search reveals a wealth of information on PAP MPs attending activities or officiating as guests at events taking place on PA premises or facilities managed by the PA.
A sampling:
Eunos Heights Residents’ Committee organised a Chinese New Year Dinner on 20 February 2011 at Eunos Community Club Multipurpose Hall. MP for Aljunied GRC Mr Zainul Abidin was the guest of honour. http://eunoszone3.wordpress.com/2011/03/04/celebrating-the-year-of-the-rabbit/

Passion Nite: on 31st December 2009 at Cheng San CC
Guest of Honour: Dr Balaji Sadasivan, MP for Ang Mo Kio GRC http://www.pa.gov.sg/events/details/passion-nite-159.html

There are too many examples and they are easily available. When the PA decided to assert that they 'do not allow any political party or MP to hold activities on PA premises or other facilities managed by the PA', did they honestly believe that they can get away with that assertion?

I can imagine their response. Those events at PA premises where MPs were present involved MPs that were invited to attend and they were not activities organised by the PAP or the PAP MPs. Well, by the same token the hungry ghost event was not organised by the WP or its MPs. Mr Chen was invited to attend.

Please don't insult our intelligence.

And, by the way who is on the Board of Management in the Peoples' Association?
Lee Hsien Loong, Lim Swee Say, MG Chan Chun Sin, Grace Fu, Masagos Zulkifli, Janil Puthucheary, amongst others. (Interestingly, Mr Yam Ah Mee of GE2011 fame is also there)

Non-Partisan? My ***.

Three Tans and The TAN

2011-08-15T05:04:00.000-07:00

Whatever I am going to say here is purely unscientific and is based on a gut feeling resulting from observing current debates about the Presidential elections.

From conversations with my friends and observing online chatter it is clear that all the usual anti-PAP crowd is anti-Tony Tan. I believe that there is no doubt that based on the GE 2011, the same 40% that voted for the opposition would not be voting for Tony Tan. But, the big question is whether they would all instinctively gravitate towards a single candidate. Tan Cheng Bock, Tan Jee Say and Tan Kin Lian all have their merits and attractions for the anti-PAP voter.

What I find pretty clear as well is that a sizeable part of the 60% of PAP voters would not be voting for Tony Tan who is popularly perceived to be the PAP endorsed candidate. I know of friends and relatives that voted for the PAP in the GE for several reasons that would play no part in the presidential elections:
a) constituency level issues
b) fear of losing a PAP government
c) fear of losing credible Cabinet ministers
d) fear that they would lose out perks or promotions because they are in the civil service
e) fear that they will be 'marked' because they voted against PAP

I am sure that about 30% of voters would have been hardcore PAP supporters. These individuals would vote for the PAP endorsed candidate.
(I have always believed that the PAP has about 30% of hardcore supporters and there are about 25% to 30% hardcore opposition supporters. The remaining 40% to 45% of voters could be persuaded).

Nearly half of the voters that voted for PAP are likely to vote for someone other than Tony Tan. It is easy to assume that the person who benefits from this would be Dr Tan Cheng Bock given that he was a PAP MP and the PAP voter that decides not to vote for Tony Tan may not be inclined to vote for either Tan Jee Say or Tan Kin Lian.

The pro-opposition camp appears to me to be leaning towards Tan Jee Say. But, the 40% of opposition voters are not going to naturally veer towards Tan Jee Say and Tan Kin Lian. Some of my friends have expressed their preference for Dr Tan Cheng Bock. Though he was a PAP MP in the past, he has enough of a track record in opposing the official policy position of his Party. If elected, we can expect him to be a President like Mr Ong Teng Chiong. Given this dynamics, I wouldn't be surprised if the 40% contribute a little to Dr Tan Cheng Bock's votes.

Dr Tan Cheng Bock might turn out to be the biggest beneficiary of a 4-cornered fight picking up votes from both the opposition as well as PAP voters. He also has the requisite personality to endear himself with the people.

Putting aside 30% of the votes for Tony Tan, the remaining 70% would probably be split amongst the Three Tans. There is a good chance that TCB can garner 35% of the votes with TJS and TKL picking up the balance 35% between the two of them.

If on nomination day all 4 Tans contest, Dr TCB stands the best chance of winning.

My own hope is that the Three Tans come to a consensus and two of them give way so that it would be a straight contest between TT and another Tan. The result would be clear. The next President would not be TT. But, with the three Tans going against TT, the split in the votes could be such that TT might get in by the narrowest margin by getting as little as 30% because the other three could get 25%, 25% and 20% That would be a result that most of us would not want. I hope it doesn't come to pass that way.

BLACK SUNDAY MOVEMENT – Take 2

2011-07-01T01:42:00.000-07:00

I posted previously on the Black Sunday thingy and painted a positive picture of the direction we could be heading. It would be good if the non-prosecution of the black-shirted patrons at Starbucks leads to the opening up of the space permitted for free expression of ideas and opinions. However, I would like to throw in a note of caution. Hence, this 'Take 2”.

Arguably, the Black Sunday concept is a form of civil disobedience. If we take civil disobedience to be the refusal to comply with a law on account of deeply held views about the injustice of those laws, then the gathering of black-shirted persons (on the assumption that it infringes the Public Order Act) would be a form of civil disobedience.

Whilst I support the amendment of some of our laws to create greater space for free expression, I certainly would caution against disobeying current laws simply to make a point about the need for free expression. The Pink Dot event that took place at Hong Lim Park demonstrates how we can use the existing avenues for expression in an effective manner without breaching any law.

Given the light-touch approach adopted by the authorities in relation to online criticism, citizens should use the internet in a free and responsible manner to address current issues. The Speaker's Corner is something that I was cynical about when it was first created. But, I think now it has morphed into a tremendously useful venue for interest groups and NGOs to make their views known. We should use the space available to raise the issues of concern that we have.

The problem with attempting a 'protest', 'march', 'gathering', etc in contravention of the law is that it does not serve any political purpose. Civil disobedience (seen in its historical context) is not merely about point scoring or seeking attention through gimmicks. Civil disobedience has been effective only because of an effective marshalling of popular public opinion. Civil disobedience also represents a powerful statement of non-compliance with a law that may legitimately be judged to be unjust. Racial segregation in the American South led to civil rights activists engaging in defiant acts such as 'sit-ins' at segregated places such as restaurants and bars. During the Indian independence movement, Gandhi and fellow Congress leaders marshalled the power of peaceful non-cooperation as a means of drawing attention to specific unjust laws. For instance the 'salt march' was an attack on the revenue and also one that was capable of resonating with a majority of the people as salt itself was a commodity in common use in India. It involved attacking the British monopoly of the salt trade and a clear infringement of the Salt Act. Defiance of the law in that context where a nation was struggling under the yoke of colonialism, is arguably more acceptable and tactically wise.

Let's face it. We lack freedoms in Singapore. But, we do not suffer under the yoke of tyranny in the same way that some have suffered in other places and at other times. We have had our share of unjust imprisonments. But, these are issues about which we should voice our concerns and opinions through the media that is opening up to us these days. The net is available. Online petitions can be used. Write letters to relevant officials. Use the space at Hong Lim Park. Use the existing freedoms and build upon them.

I do not support civil disobedience for its own sake. There must be an overriding moral case against a law for civil disobedience in relation to that law. I do not believe that there is an overriding moral case against our existing laws on Public Assembly. I do not agree with those laws. I think we can do better. But, that is not a reason for me to disobey those laws. Non-compliance with law by citizens undermines the rule of law as much as non-compliance with law by the state.

Are you organising an event? Apply for a permit. You can't get a permit? Go to Hong Lim Park.

In the meantime, speak up for change in the laws.

I do not agree with the approach of the Black Sunday movement. But, I hope that the authorities continue to give these chaps the breathing space they desire.

COE FOR THE PRESIDENT

2011-06-28T03:33:00.000-07:00

The Presidential Election Committee must grant a Certificate of Eligibility to a candidate before he would be able to contest the Presidential Election.

So far we know that there are 3 serious contenders. Don't forget that there's a fourth chap who has collected the papers for submission, Mr Ooi Boon Ewe. He is likely to be rejected by the Committee (as he was when he applied to contest for the 2005 Presidential Election).

I wonder if the PEC will grant the COE to all the 3 Tans. I believe that there is little doubt that the hardcore PAP supporters will go for Dr Tony Tan. I suspect that the hardcore anti-PAP voter would go for Tan Kin Lian. Dr Tan Cheng Bock is inevitably the one that could be the vote splitter. Would he split the PAP supporters or the opposition supporters? It would be interesting to see.

Given the current political climate, I believe that if it was a straight fight between Dr Tony Tan and Tan Kin Lian or Dr Tony Tan and Dr Tan Cheng Bock, Dr Tony Tan would lose. If we take the general election result as a starting point, 60% voted for the PAP and 40% against. Whilst the 40% can be trusted to cast a vote against the PAP 'approved' candidate in the Presidential election, the same cannot be said about the 60% who voted for the PAP. Many amongst the 60% already showed unhappiness but were either unconvinced by the opposition, inspired by local constituency level issues, cowed by fear or swayed by last minute apologies. I believe that, in a Presidential Election, these voters would not hesitate to vote for the candidate that presents himself as 'non-white'. This would work to the advantage of the candidate racing against Dr Tony Tan.

If the COE is granted only to Dr Tony Tan and one other candidate, I strongly believe that the other candidate would win. If the 3 Tans get the COE, Dr Tan Cheng Bock would either split the pro-PAP or the pro-opposition voters.

Would the 3 Tans qualify for the COE?

Under the constitution the following criteria needs to be met (in addition to others that I feel is not really an issue for the 3 gentlemen):

The candidate must satisfy the Presidential Elections Committee that he is a person of integrity, good character and reputation.

For not less than 3 years, he must have been either a Minister, Chief Justice, Speaker of Parliament, Attorney-General, Chairman of the Public Service Commission, Auditor-General, Accountant-General or a Permanent Secretary;
or
Chairman or CEO of CPF Board, HDB, JTC or MAS;
or
Board Chairman or CEO of a company with paid-up capital of at least $100 million

If the candidate does not meet the requirement of 3 years' experience in those positions, he can still qualify if he occupied a similar position (based on seniority & experience) in any other organisation of equivalent size/complexity in the public or private sector. The criteria here is that the PEC must form the view that the candidate's position has given him experience in adminstering and managing financial affairs so as to enable him to discharge the President's functions effectively.

Given the background of the 3 gentlemen, I believe that the PEC ought to grant the COE to all three men unless the Committee for some reason decides to question or doubt one of them on the ground of integrity, good character or reputation. This, I believe is unlikely.

In all probability we are looking at a 3 horse race.

Dr Tony Tan: The 'approved' candidate?

2011-06-22T22:41:00.000-07:00

Dr Tony Tan is contesting in the Presidential Elections. I'm sure the Committee will approve his candidature. He fits the criteria stipulated for the Presidential Elections.

I have reservations about Dr Tony Tan. He was amongst the Plaintiffs that sued Tang Liang Hong for defamation. He is currently the Chairman of Singapore Press Holdings. The combination of these two facts hardly qualifies him as a defender of free speech. He certainly is not and I am sure he would not pretend to be one.

Freedom of Expression is one of the pet issues that I have against the present government and certainly any Presidential candidate that does not share a value system based on free expression would not get my vote.

The Online Citizen has updated on their facebook wall the following: "you have to defend your name when slandered says dr tony tan in response to what he feels about using defamation suits to quell opposition"

It indicates to me that Dr Tony Tan is essentially the same establishment man that he has always been.

Another update from the TOC FB page: "One of the area I would like to concentrate on is to rally Singaporeans to alleviate the burden of the needy, disabled and disadvantaged" - Dr Tony Tan.

That is pretty much the way that the present government orientates itself. "rallying singaporeans to alleviate the burden of the needy" means Singaporeans have to help themselves through private self-help groups. Don't expect handouts. The same PAP mantra that we have heard all the time. When it comes to social assistance, they are true-blue free market economists. When it comes to social freedoms, they want to control and micromanage as much as they can.

From TOC FB update: "Dr Tony Tan: There is only one power centre in Singapore and that is the elected government of the day. The Elected President is not a rival power centre."

I do not disagree with Dr Tony Tan on this issue of the 'power centre', although I have blogged earlier about an enhanced vocal role for the President. However, the lingo that he has used is the same rehashed official phraseaology. This is just more evidence that Dr Tony Tan is the 'PAP endorsed' candidate for the upcoming elections unless Mr Nathan decides that he wants to go for re-election.

Another issue I have with Dr Tan's candidature is the fact that he was a Cabinet Minister at the time of the infamous Marxist Conspiracy detentions under Operation Spectrum back in 1987.

Certainly not the liberal Presidential Candidate that I am looking out for.

Black Sunday: A New Dawn?: A test for the post GE 2011 government

2011-06-20T23:41:00.000-07:00

Under Section 5 of the Public Order Act 2009, a public assembly shall not take place unless notice of it has been given to the Commissioner under Section 6 and a permit has been granted under Section 7.

Effectively, any public assembly without a permit would constitute an offence.

So, what constitutes a public assembly? The Public Order Act 2009 makes the assembly of a single individual an offence. Although linguistically it seems impossible to evisage the assembly of one, the law can get away with the creation of fiction for convenience.

Section 1 of the Public Order Act spells out the definition of an 'assembly':

"assembly" means a gathering or meeting (whether or not comprising any lecture, talk, address, debate or discussion) of persons the purpose (or one of the purposes) of which is —
(a) to demonstrate support for or opposition to the views or actions of any person, group of persons or any government;
(b) to publicise a cause or campaign; or
(c) to mark or commemorate any event,
and includes a demonstration by a person alone for any such purpose referred to in paragraph (a), (b) or (c);

If a group of friends decide (let's say) to commemorate the death anniversary of JBJ by gathering at a public place, an offence would be committed. In fact, if I 'gathered' alone at a public place to commemorate an event, that would also constitute an assembly under the Act.

The definition is broad enough to cover any kind of 'protest', 'demonstration' or public display of views.

Into this restrictively drawn statutory arrangement waltzes 'Mandy Mary'.

I first came across this person via a facebook group. I was aware that 'she' was organising (or at least appeared via facebook to be a prime mover) the Black Sunday event. A successful Black Sunday event took place to register disapproval of MP Tin Pei Ling. This took place at the Starbucks outlet at Parkway Parade on 29th May 2011. I became aware of this event the day after it took place via some discussion with facebook friends. And then another Mandy Mary inspired Black Sunday event cropped up. This time it was at Wisma Atria at a Starbucks outlet on 12th June 2011.

By now, Mandy Mary had become emboldened enough to turn this into a 'movement'. There is a facebook page for 'Black Sunday Movement' now.

What do I think of these events? Do they fall foul of the law? Are the organizers and participants taking too much of a risk?

Two crucial issues:
1.Were they gathered for one of the stated purposes in the statute under the definition section of the Public Order Act as set out above?
2.Would a cafe constitute a public place for the purpose of the Public Order Act?

Under Section 1 of the Act 'public place' is defined as follows:

"public place" means —
(a) any place (open to the air or otherwise) to which members of the public have access as of right or by virtue of express or implied permission, whether or not on payment of a fee, whether or not access to the place may be restricted at particular times or for particular purposes, and whether or not it is an “approved place” within the meaning of the Public Entertainments and Meetings Act (Cap. 257); or
(b) a part of a place that the occupier of the place allows members of the public to enter, but only while the place is ordinarily open to members of the public;

This definition is broad enough to cover a restaurant or cafe where the owner of the premises grants an express/implied permission to the customer to have access to the premises.

With the Black Sunday Movement promoting a cause and the event being held in arguably 'a public place', (The Public Order Act definition is arguably broader than the reference to a 'public place' in the Public Entertainments and Meetings Act), I wouldn't be surprised if the authorities decide to charge the individuals involved.

But, I am surprised. Pleasantly as well.
I am surprised because no action has been taken. Nobody has been called up for investigation. Yes, some men in blue were seen at the location of the second event but apart from a photographer who was asked for his ID, nobody appears to have been troubled.

In my heart, I quietly hope and pray that this is the new dawn. Quietly, and without fanfare, freedom awakens in our land.

If our Prime Minister had truly taken to heart the voice of the people during the election campaign this year, he would have realised that the change that needs to be instituted is not going to be merely cosmetic. It would not do for him or his party to pay lip service to change. It would not do for him or his party to merely manage public perception through information management. He would have realised that the citizens of this country have reached a level of political maturity that demands that the tight-fisted approach of years gone by cannot work any more.

Politics in this country has changed at a fundamental level this May. The more you seek to control, the more you lose electoral control.

If this has dawned on our PM and his party colleagues, we might be witnessing the beginning of a new reality. Events like Black Sunday are pretty harmless. All they do is publicise a cause. No rebel-rousing speeches. No spirited chanting. Not even any placards. A silent and nuisance-free way of expressing dissent. I am sure the individuals composing the present Cabinet can live with this and tolerate its existence. After all, they are now living with and tolerating so much of dissent online. Whilst doing that, I am sure they are beginning to realise how harmless this kind of dissent really is.

The key for the PAP government is to battle dissent with clear, cogent and rational argument. They can't get away with killing dissent with a sledgehammer. Those days are gone. People have finally felt the sense of empowerment that their vote is capable of giving them. Silencing regular dissent would translate into more votes lost for the PAP. Engaging dissent constructively may in fact win back some votes for them. For the hardcore opposition supporter this might not sound like a good thing. In fact, one might even secretly wish that the PAP would not change its ways. If they don't change their ways, they would lose more votes.

But, PM Lee might have already made the prudent calculation that some level of restraint in the use of the law and a greater level of engagement in honest debate with the public would actually be the win-win solution for the PAP as well as for the people. More easing of control might actually result in more electoral clout for the PAP. This could be his opportunity to script a future for our country truly with the people as co-authors. Public assembly could be a start. There are so many other areas where control could be eased.

I am speculating. Who knows what the future holds?

But, these are interesting times in our nation's history.

The Black Sunday Movement could be the sign of a new dawn for us all.

We the people can make our President speak

2011-06-15T05:24:00.000-07:00

The debate on the President's powers is taking a healthy turn. I'm glad that netizens are weighing in with good arguments one way or the other. A truly heartening aspect of this discussion is that most views are expressed within the ambit of the current constitutional framework as set out in our written Constitution. Nobody has illusions about the powers that are provided for.

The Ministry of Law's press statement is an accurate rendition of the relevant constitutional provisions. For those readers that don't plan to labour over the Constitution, I would recommend the MinLaw statement for a useful guide.
http://www.news.gov.sg/public/sgpc/en/media_releases/agencies/minlaw/press_release/P-20110610-1/AttachmentPar/0/file/Press%20Statement%20from%20Minister%20%28Law%29%20-%20Elected%20President%20_10%20June%202011_.pdf
We can potentially debate about whether the Constitution itself ought to be amended to give the President express powers in additional areas or to remove the constraints placed by the Cabinet's advice in the exercise of certain powers (e.g. Clemency). But, that would be a different kind of debate.

The present debate, as it is shaping up, is about whether the next President should speak up on policy issues or not. Traditionally, the head of state in a commonwealth country has been fashioned after the British monarch. There is no historical controversy in the assertion that our first President was in many ways a replica of the British monarch. His power was essentially more ceremonial than actual. As with the Queen, our unelected President lacked the constitutional legitimacy to speak up.

Singaporeans had never debated about the extent to which a President should exercise his powers because we never really saw him as having any legitimacy to wield any power.
Two things have changed from the 1990s onwards - today's President is elected and today's President earns an obscenely high salary. There is, therefore, a popular perception that the will of the people must be voiced in some way by the President and the President must be worth the money that he is being paid.

The expressly stated powers of the President in our Constitution do not traverse the area of his right to speak and express his views. Yes, he is not in a position to veto most bills and he is not in a position to veto policies. But, the Constitution is silent on his right to express a view. In such instances we have to resort to the political conventions surrounding the office of the President. Being a carbon copy of the British Queen, the original office of the President was governed by conventions that applied to the queen. An unelected person has no legitimacy to chide the elected leaders for their policies. Similarly an unelected person has no legitimate role in criticising the legislation passed by an elected parliament.

The conventions surrounding the British monarchy were easily transplanted into our constitutional arrangements. But, it still remains true that those were conventions and not strict provisions in our constitution.

Those of us advocating an expanded role are relying on the elastic nature of conventions. Once the Head of State is elected the game changes considerably. (In fact, one of the drawbacks of the creation of the elected presidency was the failure to appreciate the potential impact of the electoral mandate on the office itself. The complacent PAP government did not anticipate that an Elected President might one day challenge and question the PAP itself). Constitutional law does not reside in a vacuum. Political currents can be sufficiently strong to push through major shifts in the way certain officeholders may carry out their functions. This can happen without necessarily amending the Constitution and at the same time by avoiding any offence to existing constitutional provisions.

There is room to manoeuvre. We want our next President to use that room.
If ever there is to be a political moment in our nation's post-independence history where the power of the people's voice was strong enough to effect change, this is it. The push-back by the people against the PAP was loud and clear in May 2011. The PAP (to its credit) did not react with a heavy hand. It is responding through a reassessment of itself.
This displays that there is an important threshold that the PAP leaders are themselves prepared to cross. Criticism need not be crushed. It can be the basis of constructive analysis instead of building a culture of group-think.

I firmly believe that if there is sufficient public support for a vocal presidency, the winning candidate may carry with him a powerful electoral backing with which he can re-shape the office.

The current Cabinet ministers may possess sufficient wisdom to permit a slightly expanded role for the President. Who knows?

In a country where we are accustomed to the rules of the game being changed by the PAP, it is about time that the people play a part in changing the rules.

Summarising my previous blog post and the current post, my premise for an expanded role is this:
a) There are powers that the President can exercise discretion on
b) There are powers that the President is required to exercise in accordance with the advise of the Cabinet
c) There are no limitations or constraints on the President’s ability to publicly express his opinion
d) Public expression of opinion rendered in a gentlemanly fashion would at most piss off the government of the day but it would not result in a constitutional crisis
e) Dissenting views are a healthy aspect of a mature democracy (and we are on the way to maturing as a democracy)
f) By expressing his views, the President is not going to emerge as another power centre as his functions are still clearly demarcated

Reshaping the Presidency

2011-06-09T09:40:00.000-07:00

Prior to the creation of the Elected presidency, the President of Singapore was pretty much a carbon copy of the British monarch. His constitutional role as the Head of State was largely ceremonial.

However, the introduction of constitutional amendments in relation to the office of the President culminated in the adoption of a hybrid version of a Head of State. Is out President identical to the Head of State in the British system? My answer is: no. And of course, at the other end of the spectrum, our President is not at all like the American President whose executive powers are enormous. The Prime Minister and the Cabinet continue to be wielders of executive power in Singapore.

I was reading a couple of blog posts on the nature of the President's powers.
"Many things a President cannot do." from the blog: Thoughts of a Cynical Investor
http://atans1.wordpress.com/2011/06/08/many-things-president-cannot-do/
and
"Will a President that speaks up cause a SIngapore Constitutional crisis?" from the blog: Thoughts of a Singapore statistician
http://singstatistician.blogspot.com/2011/06/will-president-that-speaks-up-cause.html

Cynical Investor makes the assertion that the office of the President is so limited in terms of its constitutional role that there is not much that any Elected President can really do. His contention is that the President cannot, without provoking a constitutional crisis, address the many policy issues that some of us expect to be aired.

To be fair, the office of the Elected President was introduced as a safeguard primarily in relation to the reserves. So, many of the express powers given to the President involve some direct or indirect control over the use of the reserves. Cynical Investor is not off the mark when he states:

So, if for example Tan Kin Lian becomes president, he cannot speak out on of the need for a minimum wage, on the honesty and integrity of financial advisers, or whether lawyers, doctors and architects overcharge for certain services. He definitely cannot publicly ask the AG to look into prosecuting financial institutions or land bank businesses for “cheating” the public.

But, a small correction is in order... Article 22G of the Constitution provides for the President to direct the CPIB to carry out investigations despite the refusal of the Prime Minister. This can, turn out, in appropriate circumstances to be a potent power.

22G. Notwithstanding that the Prime Minister has refused to give his consent to the Director of the Corrupt Practices Investigation Bureau to make any inquiries or to carry out any investigations into any information received by the Director touching upon the conduct of any person or any allegation or complaint made against any person, the Director may make such inquiries or carry out investigations into such information, allegation or complaint if the President, acting in his discretion, concurs therewith.

Singapore Statistician contends that there is Constitutional space for the President to be independent and vocal despite the appearance of a limited function under the Constitution.

I shall now throw my 2 cents' worth into this conversation.

Firstly, what exactly does the Constitution provide? What can the President do? And what are the things that he cannot do?

The COnstitution provides for certain powers that are discretionary and others that the President exercises on the advise of the Cabinet. Many of us would remember the arguments in the Yong Vui Kong case as to the power of the President to grant clemency. The judiciary has interpreted that the President ought to act on the advise of the Cabinet and not exercise his discretion as he deems fit. In my view, this was not a clear-cut issue as some commentators had made it out to be. It was always open to interpretation and Yong Vui kong's case now settles the interpretation (at least for the time being). (I had expressed my view on this issue here: http://article14.blogspot.com/2010/08/clemency-and-constitution.html )

Let's leave the non-discretionary powers of the President aside. There would be something of a constitutional 'crisis' if the President acts against the advise of the Cabinet in relation to, for example, clemency.

If we focus on the areas of Presidential discretion we would notice that there is plenty of room for an individual President to stamp his personal style in the decision-making process. There is nothing preventing a President from expressing his views on policy and legislation in a firm, vocal and open manner.

Let's consider the granting of the Presidential Assent in relation to certain Bills passed by Parliament. I want to draw a quick comparison with the British monarch. She has legal power based on her Royal Prerogative to refuse to grant the Royal Assent. Yet, by convention (political practice) she always grants the Royal Assent. Our President has, under the Constitution an effective veto against certain Bills. Is there any political rule or practise that is capable of restraining our President from exercising his discretion? The British monarch is an unelected person and a hereditary title holder. She and her predecessors had for a long time acknowledged the superiority of the Parliamentary will. Today, we speak of the will of Parliament as the will of the electorate. Therefore, in the context of the UK the unelected monarch must give way (for want of political legitimacy) to the will of Parliament (the Lower House being an elected body).

In Singapore, the position of our President is constitutionaly different. Considering only the discretionary powers of the President, we can make out a cogent case for a vocal Presidency. This case is based solely on the enhanced legitimacy of our Head of State as an elected individual. Where both parliament and the President are elected, both can claim legitimacy by virtue of an electoral mandate. The constitutional provisions envisage the possibility that the President in the exercise of his discretion may pave the way for a deadlock. Any potential constitutional deadlock is untangled through a number of procedures one of which is a 2/3 majority resolution by Parliament.

When the President either grants or refuses to grant the Assent, there is a strong case for the contention that the President ought to make his reasoned arguments available for Public scrutiny.

It is a facet of (and even a strong expection in) modern governance, that laws ought to be made publicly and debated and reasoned out in an open manner. Our Parliament has been doing this from its inception. The Elected President is, arguably, in a position of political accountability towards the electorate. Therefore, apart from those occasions where he is exercising a discretion, it would be constitutionally useful for an assertive President to explain the reasons for his actions or even to express his disagreement even though a constitutional provision may provide him with no discretion.

Moving forward, a future elected President can choose to make his decisions and the attendant reasons public so that the process of law-making or executive decision-making is entirely transparent. Presidential candidates in this election can propose this as a change in the Presidential style. Note that this would not merely be a change in style but one with real substance.

By reshaping the Presidency into an office that explains its actions, the future President can use the opportunity to express his disagreement. Whether the Cabinet, Parliament or the President presents the clearer moral argument for a particular matter can ultimately be judged by the people. Of course, the reality is that whoever becomes the President and however much he may shout at the top of his voice and exercise his discretion, the current government can override the President's views and actions.

Realistically speaking, given the current composition of Parliament, there may be nothing concrete that can be accomplished by the President.

But, I firmly believe that what we are setting out to do now as a nation is to lay the foundation for a different kind of Presidency. The trend has to be set for future Presidents. Apart from exercising the Constitutionally prescribed function, the President can legitimately seek to be another voice against any potential abuse by the executive.

How far are the candidates willing to go to commit themselves to reshaping the Presidency? I am not calling for them to act unconstitutionally. But, working within the ambit of the Constitution, a President can actively and vocally exercise his discretion (sometimes agreeing, sometimes disagreeing) in a transparent fashion and give life to the potent power invested in him by the electorate.

I do not believe that an Elected President should wait for marching orders from the Constitution to open his mouth and speak up on policy issues. There is, after all, no gagging order imposed upon the President.

Who wants to be a millionaire? oops, President

2011-06-03T05:26:00.000-07:00

Mr Ooi Boon Ewe, Dr Tan Cheng Bock, Mr Tan Kin Lian, Mr Geoarge Yeo.

The line-up is not quite set. Mr Ooi and Dr Tan have collected the application form. Mr Tan Kin Lian's friend has collected his application form for him although it appears that Mr Tan is undecided due to concerns that his wife has about him running for President. (Maybe, he should remind her that she might get to have her photograph hung on the wall of every government office/building. :-) )
George Yeo is mulling over contesting.

Mr Ooi would almost certainly be rejected as not qualifying under the stringent requirements set for the candidacy as President. Dr Tan, Mr Tan and Mr George Yeo may be the only serious contenders if all of them throw in their applications.

So far, the only thing that seems certain is that Dr Tan will be submitting his application.

Where is the PAP-'approved' candidate? This is surely what all of us are wondering. It shouldn't be the case that we are expecting an officially sanctioned pro-ruling party candidate for the Presidential election. But, given the history of the office, Singaporeans have come to expect that there will be an officially approved candidate.

Just before the General Elections, many of us expected that Abdullah Tarmugi may be presenting himself as a Presidential candidate. He stepped down as the Speaker of Parliament. Right now, there is no indication that he might put himself forward as a candidate.

Maybe, just maybe, the PM and the Cabinet have decided that we really need a revolutionary change in our politics. Maybe, they decided that this time around no officially 'approved' candidate would be put forward. Maybe, just maybe, we might be in for a Presidential Election involving truly independent candidates.

Maybe.

But, of course, many would question how independent would George Yeo or Dr Tan Cheng Bock be considering their long track record as PAP men. Perhaps Dr Tan might fit the bill of a free spirit. He was willing to publicly lock horns with the PAP leaders.

Whether the President is going to be a free spirit or a yes man is the difference between whether he is going to cut the budget or just cut ribbons.

The Potong Pasir Town Council Saga & the broader issue of transparency

2011-06-02T09:42:00.000-07:00

The following article appeared in Channelnewsasia today:

http://www.channelnewsasia.com/stories/singaporelocalnews/view/1132707/1/.html

It appears that the SPP has alleged that the newly elected PAP MP for Potong Pasir had promised to retain the services of all 16 employees of the Potong Pasir Town Council.

It appears that only 3 employees were retained at Potong Pasir TC and the remaining staff have been served with termination notices with an offer of re-employment with EM Services.

EM Services is the newly appointed managing agent of the Potong Pasir Town Council. I find the following aspect of the news report disturbing:

When contacted on Wednesday, Mr Sitoh refuted SPP's claims.

"At that time, I didn't know the inside workings of the town council and how many staff there were, so my exact words to her, "Since you asked, I'll try my best to see what I can do"," he said.

"And I think I've kept to my word: I negotiated with EM Services and I must give credit to EM Services. They said, "Don't worry, we'll take the staff"."

As for his decision not to keep most of the town council employees at Potong Pasir, Mr Sitoh said he could not keep everybody, as he has to abide by EM Services' regulations.

"It has its own way of doing things that is developed over the years, which is why I adopt this system. My paramount interest is the Potong Pasir residents, so EM Services has to bring in its own people. I can't compromise on standards of services I deliver to residents."

He added that EM Services will probably have to train some of the Potong Pasir town council employees under its own training programme.

Town council employees whom MediaCorp spoke to expressed concern about the situation, especially after they were told that when re-employed, they would be put on a six-month probation under EM Service's terms and conditions. When asked about the probation period, Mr Sitoh said this was standard human resource policy for all EM Services staff. He added: "If they're good performers, what's the worry?"

Firstly, it appears that the appointment of EM Services was one which involved a personal choice and exercise of discretion by Mr Sitoh. The process of appointment of Managing Agents is totally unsatisfactory. In the end, these Managing Agents are going to be paid under their contract by the Town Council. The Town Council funds are coming from the residents ultimately. Where is the accountability if one person exercising his personal discretion could negotiate with and appoint EM Services as the Managing Agent. I have in an earlier blog post addressed the issue of PAP members being part of EM Services including, of course, the Chief Operating Officer of EM Services who is an ex-MP. With such close party based links, it would have been more prudent for Mr Sitoh to have taken over the Town Council and then to set out, through an open and transparent manner, to find an appropriate Managing Agent. The fact is that PAP run Town Councils have become comfortable with the delegation of estate management functions to these companies such as EM Services, Esmaco & CPG Facilities. This has led to the newly elected MP for Potong Pasir to speedily appoint EM Services without first considering if the process itself should be transparent.

In an article on Today that appeared on 30th May 2011, Mdm Halimah of Jurong Town Council noted as follows:
"We have a transparent and rigorous system in place where all tenders, including the appointment of the managing agent, are evaluated by the Tenders and Contracts Committee comprising Councillors. This committee's recommendations are then reviewed by the full Council,"

If this is in fact the practice in Jurong Town Council, it Is to be welcomed. The appointment of the managing agent itself is one that is evaluated by the Tenders and Contracts Committee.

In Potong Pasir it remains a question mark as to whether any rigorous or transparent process was followed.

Secondly, this issue of what Mr Sitoh promised should not descend into a war of words between the SPP and Mr Sitoh over who said what. But, at this point that is the way it is coming out. SPP alleges one thing and Mr Sitoh disputes it. Let’s assume for a moment that Mr Sitoh is telling the truth that he said he would try his best. His final remark in that Channelnewsasia article is not at all indicative of someone who tried his best or someone who cares.

In relation to the 6-month probation period for the terminated Town Council employees, Mr Sitoh stated “if they are good performers, what’s the worry.” This is precisely the EQ problem that we have been encountering with many PAP MPs lately. One would have thought that the chorus of discontent that grew louder and louder during the elections would have helped to soften these MPs. It doesn’t appear to have affected some of them.

You win the election. You take over the Town Council. You unceremoniously terminate the employment of Town Council employees without so much as an offer of compensation. The best you could negotiate for these employees was an offer of employment at EM Services and your response to the 6 month probation period can at best be described as scornful. I expect more than that from you Mr Sitoh.

Thirdly, what is there to stop EM Services from claiming after the end of the probation period that the staff cannot be confirmed because they were below par. With the kind of political links that EM Services has, doubts may arise as to the true reason for the termination of the employees if they get dropped after six months. Many doubts have already been cast at the termination of services encountered by an employee of Esmaco serving at Jurong Town Council. The General Manager of the town council, Mr Ho had allegedly terminated the services of one of staff that happened to take part in campaign activities in support of the National Solidarity Party. Mr Ho, as it turned out, is, apart from being a director UGL Premas (the holding company that owns Esmaco), the Branch secretary of the PAP’s Bukit Batok Branch.

The line between Town Council, Managing Agent and the political party tend to be blurred in such situations. I can only hope that things would be more transparent.

In the meantime, the SPP’s letter to Mr Sitoh is available here: http://www.spp.org.sg/wp-content/uploads/2011/06/request-for-mr-sitoh-to-retain-employment-of-potong-pasir-town-council-staff.pdf

How does a Town Council decide on awarding a contract to a Managing Agent?

2011-05-31T05:31:00.000-07:00

Just as I thought that the muddle over conflict of interest was beginning to clear up a little because of the clarification from MND and from Madam Halimah, I have come across news (rather belatedly noticed by me) that Potong Pasir Town Council has appointed EM Services as the Managing Agent.

On 21st May 2011, it was still being reported that the newly elected PAP MP Mr Sitoh Yi Pin was hoping to take over the management of the Town Council by the end of the month. It has been reported on 27th May that the Town Council has appointed EM Services.

The following is from an article appearing on Channelnewsasia on 27 May 2011:
Potong Pasir Town Council staff to be offered jobs by EM Services
SINGAPORE: The Potong Pasir Town Council has engaged EM Services to be its managing agent.

Town council Chairman and MP for the area, Sitoh Yih Pin, said there are currently 16 staff in the town council under its previous Chairman, Mr Chiam See Tong.

And EM Services has accepted Mr Sitoh’s request to re—hire all of them from the town council.

Mr Sitoh said he wants to take over the operations smoothly with minimal inconvenience to the staff.

EM Services has distributed human resource forms for the staff to complete and they would likely be re—hired in other town councils.

Mr Sitoh added that he is also in discussions with EM Services to place three of the staff in Potong Pasir as they live in the division.

The choice of the next general manager of the Potong Pasir Town Council would also be left to EM Services to decide.

It is clear that EM Services has been engaged by the Town Council to be its managing agent. Did they go through a tender process? On the 21st of May, Mr Sitoh had not taken control of the Town Council yet. On the 27th of May, he is already able to confirm that EM Services has been appointed as the Managing Agent.

So, is it a case of the Town Council Chairman having full discretion to invite any company to be the Managing Agent of a Town Council? Is this the manner in which other Managing Agents are appointed in other Town Councils? EM Services currently manages 8 Town Councils. How was the company appointed? Was there a tender process? In the interest of transparency, I hope that there was a tender process through which EM Servies was appointed as the Managing Agent.

Potong Pasir residents should write to their Town Council to find out the process by which EM Services was chosen to be the Managing Agent of the Town Council. Don't forget that EM Services currently manges Sembawang Town Council (where questions have arisen over how there was easy access to the water tank where a corpse had been disposed).
Of course, it also does not help that Mr Ang Mong Seng is the chief operating officer of EM Services. As I always insist, conflict of interest is not merely an issue of whether there was an actual conflict but also an issue of whether the appearance of conflict could exist. This has to be avoided to bring governance to a higher standard.

More transparency needed in our Town Councils

2011-05-30T05:16:00.000-07:00

Over the last week, this has become something of a pet issue for me.

Is there or is there not any conflict of interest in the management of our Town Councils?

The following article has appeared in Todayonline:

MPs: No conflict of interest ...

by Cheow Xin Yi 04:46 AM May 30, 2011SINGAPORE -
They are general managers accountable for the day-to-day administrative functions of town councils. Some of them are also employees of managing agents who win contracts from the town councils to service the estate.

This arrangement - known to occur in at least four town councils in Singapore - has raised the issue of conflict of interest in town council management.

At Aljunied and Jurong town councils, the respective GMs, Mr Jeffrey Chua and Mr Ho Thian Poh, in fact also hold the position of managing directors at CPG Facilities Management and UGL Premas.

CPG is currently the managing agent of Aljunied Town Council, although it is not clear if the agreement will continue following the Workers' Party taking over of Aljunied and the subsequent merger to form Aljunied-Hougang Town Council .

UGL Premas, meanwhile, is the parent company of Emasco Township management, the managing agent of Jurong Town Council.

To National University of Singapore business school associate professor Mak Yuen Teen, the first issue to establish is how the GMs of town councils are appointed. "Are they appointed after the facilities management company has been selected? If so, there would not be a conflict in terms of someone being put in a position to recommend or award a contract to his own firm," he said.

"There will, of course, still be the issue of who evaluates the performance of the facilities management company - it certainly should not be the GM of the town council if they are related parties," he added.

When contacted, former chairman of Jurong Town Council Halimah Yacob confirmed that was the case: Mr Ho was only appointed GM after the town council contracted Emasco as the managing agent. His salary is also paid by Emasco.

"The Council pays the managing agent the fee agreed upon under the contract which the managing agent uses to cover its costs of providing service to the council including staff salaries," she said.

Mr Ho is also not authorised to approve any tender, said Mdm Halimah, who is a Member of Parliament in Jurong Group Representation Constituency.

"We have a transparent and rigorous system in place where all tenders, including the appointment of the managing agent, are evaluated by the Tenders and Contracts Committee comprising Councillors. This committee's recommendations are then reviewed by the full Council," she said.

At Holland-Bukit Panjang Town Council, its secretary Albert Teng is also an employee of its managing agent, EM Services. Bukit Panjang MP Teo Ho Pin, who has been the coordinating chairman among PAP town councils, reiterated: "We must comply with the Ministry of National Development (MND) guidelines if there is a conflict of interest among our councillors or staff when tendering for contracts."

Still, given the close working proximity between the GM and the councillors, isn't there the chance of the committee favouring contractors of their own working partners?

An ex-town councillor at a town council, who declined to be named, said the possibility is mitigated by the diverse groups of people making decisions on the tenders.

At his town council for instance, where the general manager is in fact an employee of the managing agent, there would be at least 10 councillors in subcommittees making recommendations for particular contracts for a total panel of more than 40 councillors to approve.

Weighing in on the issue, the MND said there are safeguards within town council financial rules to prevent a conflict of interest, even as the ministry stressed that it monitors the award of tenders to ensure they comply with the financial provisions.

If a managing agent intends to participate in a tender for works or services called by the town council, the managing agent is required to declare its interest to the town council and is prohibited from participating in the evaluation of the tenders received, said a MND spokesperson, adding that the independent tender committee must ensure that the" tender specifications do not favour any particular tenderer."

Firstly, I am glad that the Ministry of National Development has clarified that there are safeguards within town council financial rules and it is indeed to be lauded that the Ministry monitors the award of tenders to ensure that they comply with the financial provisions.

To be fair, as I have maintained from the very beginning, the mere fact that the General Manager of a Town Council is also the director of the company that provides services as a managing agent does not amount to conflict of interest.

Based on information that has been forthcoming thus far, there is no obvious case of a conflict.

Secondly, the above article indicates that there are 4 town councils with the potential conflict situation. But, the article has mentioned 3 town councils: Jurong, Aljunied & Holland-Bukit Timah. I had speculated about Holland-Bukit Timah in an earlier blog post on the basis of a listing on the website of the Association of Facilities and Property Managers that names Teng Ann Boon, Albert as an employee of EM Services. Today’s Todayonline article confirms this fact. I wonder which the 4th Town Council is.

Thirdly, this issue of potential conflict of interest is one that should be examined at the level of individual Town Councils rather than at a national level. The Ministry of National development should at best be expected to devise a policy guideline for Town Councils to follow and monitor whether or not structural devices are in place in Town Councils to ensure that conflicts do not arise. Town Councils collect conservancy charges from residents and these TCs should be answerable to residents if there happens to be any conflict of interest.

Fourthly, I wonder about the situation involving Mr Ang Mong Seng (the former MP for Bukit Gombak & former chairman of Hong Kah Town Council). He is the Chief Operating Officer of EM Services. The explanation given by Mdm Halimah of Jurong Town Council is, to me, satisfactory in assuring that there is no conflict of interest in relation to Mr Ho Thian Poh. Her explanation is that Mr Ho was appointed as the General Manager after Esmaco was awarded the contract to manage the estate and that Mr Ho was under the payroll of Esmaco. Provided that the award of other projects and contracts and the monitoring of Esmaco’s services is carried out by other persons/committees, prima facie there is no reason to assert that there could be a conflict of interest.

In relation to Mr Ang Mong Seng, the situation is not very clear. When was he appointed as the Chief Operating Officer of EM Services? He was the Chairman of Hong Kah Town Council at a time when EM Services was bidding for projects. The Town Council has a tender committee and it is clear that Mr Ang was not a member of that committee. But, what measures did the Town Council have in place to ensure that conflicts do not arise? Would Committee members feel obliged (through no coercion or influence) to award a contract to EM Services? The reason why we try to come up with measures against conflict of interest is that we want to battle against human weaknesses.

Shouldn’t there simply be an absolute no-conflict rule for those who serve as town councillors or Chairmen/Vice-Chairmen of TCs? This would mean that if they are in an executive position in a company that bids for a Town Council project, then the company would be automatically disqualified from making such a bid. This would be the better way to go in the future. So, for instance, EM Services should not have been permitted to bid for projects in Hong Kah.

Fifthly, I agree with the MND spokesperson that the tender committee should ensure that the tender specifications do not favour any particular tenderer. This is one area worth exploring and monitoring. Are the specifications drafted in a manner that might favour any single company? It is one thing to say that there is a tender committee but it is a wholly different issue of the tender process is hijacked by rigging. Again, as observed earlier, residents could play an active role in keeping the committees and town councillors on their toes.

Another thing I want to add…. Keeping them honest and keeping them transparent should apply equally to PAP as well as WP wards. WP in Aljunied should heed this and build a transparent system there that residents can readily scrutinise.

All Town Councils should implement an internet-based disclosure regime for the tendering of all projects. (Incidentally, I got some of the information relating to Hong Kah Town Council because they have uploaded their tender results on their website. This is useful and a step in the right direction.)

‘Conflict of interest’ raises important ethical and moral issues in governance and we shouldn’t treat it as a frivolous matter.

The Town Council formerly known as Hong Kah

2011-05-27T01:43:00.000-07:00

The more one digs the more finds…..

Mr Ang Mong Seng, the former MP for Hong Kah GRC (Bukit Gombak) is named at the following website of United Fibre Systems Ltd as one of its Independent Directors. That is perfectly fine.
http://www.ufs.com.sg/corp_team.html

The write-up on that website says this about Mr Ang.

"Mr. Ang is a Member of Parliament for Hong Kah GRC (Bukit Gombak). He has almost 30 years of experience in estate management. He is the Chief Operating Officer of EM Services Pte Ltd, Chairman of Hong Kah Town Council and Vice Chairman of South- West Community Development Council."

He didn’t seek re-election this time around. So, the site is obviously not updated yet. But, note that he is referred to as the Chief Operating Officer of EM Services Pte Ltd. To be fair, the estate management of Hong Kah Town Council is provided by Esmaco Pte Ltd and not by EM Services Ltd. EM Services provides its services for the following Town Councils:

East Coast Town Council
Holland-Bukit Panjang Town Council
Jalan Besar Town Council
Pasir Ris-Punggol Town Council
Sembawang Town Council
Tampines Town Council
Tanjong Pagar Town Council

So, there’s no direct conflict of interest there. He is not involved in the management of those town councils. Ideally, being the MP for Bukit Gombak and therefore being involved in the Town Council management of Hong Kah Town Council, he should have avoided retaining the position of COO in EM Services. The problem is that EM Services has tendered for estate management in many Town Councils and has also tendered for projects in Hong Kah.

In fact, on 7th August 2009, a term contract for the servicing and maintenance of Senior Citizens’ fitness equipment was awarded to EM Services for the period of 1 Dec 2009 to 30th Nov 2011 by the Hong Kah Town Council. Again, to be fair, Mr Ang was not sitting in the Tenders Committee of the Town Council. Although, there may not in fact have been any interference and the entire process may have been above board, it is sometimes not enough for office bearers to merely insist that everything was clean and above board. It is necessary for them to be seen to be above board as well. The best way to do it is to remove yourself from those companies that may potentially bid for such contracts or to cause those companies not to tender for the contracts in the first place.

Jurong Town Council - Esmaco Services

2011-05-26T09:46:00.000-07:00

Based on reading an article in Temasek Review on 15th May 2011, I was under the impression that Esmaco is a company based in Australia and probably originating from there.
http://www.temasekreview.com/2011/05/15/jurong-town-council-in-the-spotlight/

I managed to find out the following about Esmaco. Esmaco was originally owned by HDB Corporation Pte Ltd which then sold off its interest in Esmaco to Premas International Ltd. Premas International Ltd was a subsidiary of CapitaLand Ltd. CapitaLand had in 2005 sold Premas to United Group Limited (an Australian company).

So, today... UGL Premas is the holding company and Esmaco is its subsidiary. It is likely that many of the staff and management in UGL Premas and Esmaco would have been the same chaps that were around prior to the divestment by CapitaLand. Mr Ho Thian Poh may well have been holding on to his position in Premas even before the acquisition by the Australian company and quite possibly he may have been the General MAnager of the Jurong Town Council from before the 2005 acquisition of Premas by UGL.

I'm not making any insinuations here or alleging any wrongdoing. Just trying to give a more accurate picture of the status of Esmaco.

http://www.capitaland.com/en/files/CLPress29042005.pdf

There is still the unanswered question as to how the Managing Director of Premas could also be the General Manager of Jurong Town Council and avoid any possible conflict of interest.

Where do we go now?

2011-05-25T09:40:00.000-07:00

For the last 20 to 25 years, I have had this feeling that our country had lost its soul. I might even add that maybe we didn’t really develop a soul after independence in 1965. We had become mere digits in a giant GDP focused machine.

Many of my friends and some of my relatives have gone away to work overseas or have relocated and given up their citizenship. If you were to ask most of them what the reason for leaving was, one inevitable reason would be that our country was missing a soul. Some would talk about it in terms of the politics here. Others would lament the lack of a balanced lifestyle. Still others may speak of the lack of a creative environment.

To me, these are all interrelated reasons. Our politics has stifled our cultural environment. The ruling party’s overriding focus on economic growth at the expense of everything else has stunted our development as a nation. After all these years of independence, why are we still not a nation yet? (Mr Lee Kuan Yew asserted as much in 2009 when he insisted that we are still not a nation.)

The answer lies in the fact that for too long the PAP has relied on a top-down model of governance that has stifled the voice of the people. Whilst you are trying to lead a whole community, the voice of the people might feel like a cacophony that distracts you from your primary purpose. But, within that cacophony is a yearning for ownership. Each individual wants to have the dignity of being the creator of his own destiny. This collective yearning to be creators, and therefore co-creators of the community’s destiny, should not be shut out. But, this is what the PAP has done in all these years of governing this country.

The PAP leaders have acquired a ‘we know best’ persona and have refused to hear or accommodate dissenting voices or views. This has manifested itself in a range of ways. Letters written to the forum pages of the state media may not readily be published if they are overly critical of the government. Responses from government departments or ministers have adopted a ‘trust-us-this-is-good-for-you’ approach rather than to suggest that they would consider the complaints and look into how things could be improved. This may sound trivial. But, psychologically this is something valuable for the people. We can feel that we have expressed our frustrations and that these frustrations have not only been heard but that they may possibly be the basis on which policy decisions are made.

At the extreme end of the spectrum, too many Singaporeans have grown up with a sense of fear as to what could happen to them if they voiced their views in public. Detentions under the Internal Security Act had caused many of us to fear a government that we saw increasingly as being bent on retaining its grip on power through whatever means possible. The 1987 detentions under Operation Spectrum were pretty unconvincing in terms of the reasons supplied by the state. Roman Catholic church members, social workers and lawyers: these are hardly the kind of people that we consider to be dangerous communist insurgents. But, the government through the state media tried to sell that story to us. Some of us bought it. Many didn’t. But, amongst the many that didn’t buy into the reasons, we certainly got entangled in the state of fear that the arrests induced.

Singapore society fell silent. Social activists fell silent. The Law Society fell silent. We knew that it was not prudent to criticize the ruling party or to speak in support of opposition parties. I remember for a long period of time that any conversation critical of the PAP or its leaders had to be conducted within the privacy of our homes or if in a public place, with hushed tones so as not to attract the attention of some ISD operative. You could be in a coffee shop and the conversation could veer into politics and friends would uneasily glance over at other tables especially if there is a lone individual sipping his coffee for an endless period of time.

As a concurrent development in the 1980s, the youth of that time were displaying dissent at the ballot box. (Presumably it was the youth as LKY was pretty upset with the younger generation at that time.) At its peak the opposition managed to get 4 seats in Parliament and had reduced the PAP’s popular vote to 61%. That was in 1991. Since then the PAP has been effective through redrawing of boundaries and the extensive usage of the GRC system to effectively neuter the opposition and limit them to Hougang and Potong Pasir.

By the time we stepped into the 1990s, it was becoming clear that voicing your views against the PAP was not a prudent thing to do. In the 1990s, we moved from ISA detentions to defamation suits. In a country where the pursuit of wealth or at least economic survival is of penultimate importance, the threat of defamation suits was a powerful weapon against dissent.

But, the last five years have been different in many ways. Little by little people were voicing out their views and getting away with it (with the exception of the law extending its arm now and then to show who’s the boss). The internet gave us two things: an avenue for alternative news and an avenue for venting our frustrations. The 2011 general elections saw online criticism of the PAP reach fever pitch with some really nasty and heated comments being dished out by disgruntled individuals. For the first time in a general election we had policy issues to grumble about and the discussions were not merely about checks and balances in Parliament. (But, arguably the a sizeable percentage of voters have matured enough to realize that the best way to effect policy changes is to have an effective system of checks and balances in Parliament)

Ironically, the government’s decision to adopt a light-touch approach to the internet as well as the decision to allow the internet to be used as a campaign platform became a sword against the PAP. The opposition parties do not have the organizational strength of the PAP nor the kind of structural reach into the population through grassroots organizations. But, through the internet and the internet-savy youth, they penetrated well into the hearts and minds of a frustrated population. Alternative news could not be ignored. The mainstream media could not ignore the online chatter. The PAP leaders could not ignore the sheer anger that was being displayed by the population during the campaign period. All that led to that historic day of ministerial apologies and we felt that Goliath, whilst not slain, was made to have a good hard look at himself (even if he may find it difficult to really alter himself).

Polling day came. More than 800,000 people made their roar audible. A GRC fell. Several GRCs were close. A warning has been served.

We stand now at the threshold of a new dawn. This is liberation day all over again. Not liberation from a colonial power but liberation from the fear that had gripped our nation. Suddenly, we realize that there is nothing to fear. The mighty PAP is fallible. The present leaders are not going to come down on us with the ISA. They appear willing to let us have our say and not quash us or our views.

During the election campaign period, many volunteered their services for the opposition parties. To do this in Singapore takes tremendous courage and a sense of self-sacrifice. Many had to battle disapproval from family members or colleagues or superiors. After the elections were over, many came forward to volunteer their services. I know of many (usually younger than me) who have voiced the intention to serve on the ground with opposition parties either as members or simply as grassroots volunteers.

One thing is clear: Anyone who volunteers in this manner to serve opposition parties is not trying to gain some kind of benefit for himself. The unfortunate fact about most people who join existing grassroots organizations is that they seek some kind of benefit for themselves. I have a relative who urged me a long time ago to join the grassroots as I am bound to benefit through contacts and I could get better clients that way. When I first moved to Choa Chu Kang, a court clerk that I knew bumped into me and suggested that I join the RC in my zone (in which he was a member). His rallying cry was also about the benefits that I could get as a result of being a RC member. I know of many parents who volunteer their services to grassroots organizations in the hope that they will get preference for the primary school where they intend to send their kids. There is only one thing to say about this. It is pure selfishness and self-interest at play. There will surely be some who join purely out of a sense of service and I am not going to lump them up in this generalization.

Unlike the grassroots organizations from which the PAP draws its strength where sycophancy is often the order of the day, the volunteers that are now coming forward to help the opposition cause carry a serious message through their actions. They want change. They want to live their lives with a sense of purpose. This purpose is not in fulfilling their own narrow interests but in pursuing the greater good of Singapore. The political stranglehold that the PAP has had in our country has sucked out almost the last drop of the idealism and hope that we were born with. But now, something has changed. Something magical has happened.

People are rising up. There is a momentum created during the days of the campaign period that has not gone away. Many are carrying this flame in their hearts and surely more and more capable and passionate people will step forward to join the opposition parties. The next general elections will see the opposition fielding very strong candidates with tremendous passion. This is something the PAP is going to be lacking: passion. It already lacks this and it is failing to attract passionate individuals. Neutered unionists, technocrats and individuals climbing up the PAP-engineered meritocratic ladder are the types that the PAP can churn out. Individuals with a passion for the people are inevitably going to cross over the line and towards the opposition.

What do we do now? There is an important political milestone to be reached in our country. We have to prevent the PAP from amending the constitution whenever it deems it fit. Constitutional amendments must be done only when there is a cross-party support for such measures. To ensure this, the opposition must obtain sufficient seats in Parliament to prevent the PAP from having a 2/3 majority.

30 seats in Parliament for the opposition and the PAP’s stranglehold will be broken. That is the target.

This is achievable even by the next election. Those of us that are committed to building an active democracy must do our part. We could volunteer to assist in the grassroots activities of opposition parties. We could monitor the state media and expose any propaganda. We could continue to highlight the policy failures of the government and socio-economic issues encountered by Singaporeans. We could continue to campaign for the reform of the law and our legal system.

We want a just society. We want an equal society. We want a democratic society.

This is not too much to ask or too much to seek to accomplish. It is nothing more than what we have been pledging to do all those years in our school days. For once, the pledge can mean something. We now have a chance to cease to be hypocrites and really do what we have been pledging to do.

“We, the Citizens of Singapore, pledge ourselves as one united people, regardless of race, language or religion, to build a democratic society based on justice and equality, so as to achieve happiness, prosperity and progress for our nation.”

Town Councils - conflict of interest?

2011-05-23T04:47:00.000-07:00

A couple of interesting revelations have arisen after the general elections in Singapore this year. These are worth pursuing in the interest of transparency. In the end, I suspect that there may not be anything to be concerned about. But, prima facie, there appears to be a potential for conflict of interest in the management of some town councils.

I am not prepared to jump the gun and declare that there has been an obvious case of conflict. There are so many details that are missing that it is impossible to state with any degree of certainty whether conflict might exist.

Soon after the elections, information surfaced that the General Manager of Aljunied GRC was also the Managing Director of CPG Facilites Management Pte Ltd. This is the company that was awarded the town management contract at Aljunied Town Council. Now that Aljunied has fallen to the opposition Workers Party, there will be a handover of the Town Council management pretty soon.

In an article in the Straits Times on 12th May 2011 regarding the handover of the Aljunied Town Council, the following was stated:

“Aljunied Town Council is now managed by CPG Facilities Management, with whom the town council signed a three-year contract last year. CPG managing director Jeffrey Chua is the town council’s general manager. As the town council managing agent, CPG engages the services of other companies for services such as cleaning, maintenance and lift rescue.”

On the surface, the idea that the same person is the General Manager of the Town Council as well as the Managing Director of CPG appears to be a conflict of interest.

Not too long after this, there emerged news that an employee of Esmaco Pte Ltd working at Jurong Town Council had been sacked. There were allegations about her being sacked because of her election campaign activities when she was supporting the National Solidarity Party. This was denied by her employers. In the midst of this, it has turned out that Mr Ho Thian Poh is both the General Manager of the Jurong Town Council and the Managing Director of UGL Premas Ltd. Esmaco Pte Ltd, which is the managing agent of Jurong Town Council, is in fact a subsidiary UGL Premas Ltd.

So, we now have a situation where the GM position in two Town Councils has been occupied by individuals in a directorial capacity in the companies that have been awarded the contract to be managing agents.

I did a quick check on the names of all the General Managers or Secretaries in the various Town Councils. They are as follows. (I have also included the companies that are carrying out the estate management in these estates):

Aljunied Town Council Jeffrey CHUA Leong Chuan
CPG Facilities Management Pte Ltd.

Ang Mo Kio - Yio Chu Kang Town Council WAN Chong Hock
CPG Facilities Management Pte Ltd.

Bishan-Toa Payoh Town Council LING Ming Chuan

East Coast Town Council S Sasidharan NAIR
EM Services Pte Ltd

Holland-Bukit Panjang Town Council TENG Ann Boon, Albert
EM Services Pte Ltd

Hong Kah Town Council Ms Christina GOH
Esmaco Pte Ltd

Hougang Town Council Ms HOW Weng Fan

Jalan Besar Town Council LIM Kee Ee
EM Services Pte Ltd

Jurong Town Council HO Thian Poh
Esmaco Pte Ltd

Marine Parade Town Council Ms PNG Chiew Hoon
Esmaco Pte Ltd

Pasir Ris-Punggol Town Council Ms KWOK Wei Kin
EM Services Pte Ltd

Potong Pasir Town Council

Sembawang Town Council SOON Min Sin
EM Services Pte Ltd

Tampines Town Council LEONG Shee Wing
EM Services Pte Ltd

Tanjong Pagar Town Council Simon KOH Tee Chuan
EM Services Pte Ltd

West Coast Town Council TAY Eng Hwa
Esmaco Pte Ltd & EM Services Pte Ltd

http://apfm.org.sg/apfm/sub/members.html
The Association of Property and Facilities Managers lists Teng Ann Boon, Albert as being from EM Services Ltd. He is the General Manager at the Holland - Bukit Panjang Town Council.

A google search on Christina Goh throws up a ‘Linkedin’ profile with a past employment at UGL Premas. There is no way of verifying whether this is the same Christina Goh at Hong Kah Town Council.

The bottom line is that a simple search on the internet does not throw up any web of connections. More digging is needed to get to the bottom of this… if at all there is anything to be uncovered.

Assuming a person is a General Manager of a town council, is there necessarily a conflict of interest if he is also a director of the company that is appointed as a managing agent of the town council? Much will depend on the nature of the GM’s role. If the arrangement is that the town council awards the contract to a company like Esmaco and as part of that contract Esmaco appoints it employee or director to be the GM of the town council, then this arrangement would not on its own amount to a conflict. Presumably, the town council could still call the shots in terms of the contractual obligations of Esmaco and could still hold Esmaco accountable for any breach of service standards. The GM would effectively be an employee of Esmaco and he would be in charge of fulfilling Esmaco’s contractual obligations to the town council.

There would be an unpardonable conflict of interest if a person is at first appointed as a GM of the town council and then he is in charge of procuring the estate management contract and he proceeds to procure the services of Esmaco where he is a director or he is a director of Esmaco’s parent company. I doubt that this was the nature of the arrangement between the town council and Esmaco. It is more likely that Esmaco was appointed to manage the estate and the GM was appointed as Esmaco’s representative under the contract. He is probably under the payroll of Esmaco as well.

There are other issues that can potentially arise out of the way these town councils are managed. If the GM was involved in the process of awarding specific contracts for instance for tiling works or building covered walkways, how is the process managed in the town council. Does the town council leave Esmaco and its representative to decide on the contracts to be awarded and accordingly the pricing involved or does the town council exercise direct control over the process or at least some oversight. Given that estate management in PAP wards is being contracted out to private companies, the important question to be asked is the level of oversight that is being exercised over the way in which these companies operate.

If we look at the CPG Facilities Management website, we can see that as part of the township management services they perform, they carry out fund management and investment as well. http://www.cpgfm.com.sg/township.shtml

It is not clear whether all private companies carrying out estate management services in fact engage in investment on behalf of the town councils. If they do, this is another area to be concerned about in terms of the extent of oversight and control exercised by the town council itself.

But of course, if contrary to my conservative opinion, it turns out that there is something more to the position held by these GMs, then let the proverbial shit hit the fan.

Change: My wish list (non-exhaustive)

2011-05-19T10:37:00.000-07:00

PAP is singing the tune of change... As for myself, I would love to see the following changes. But, I already suspect that none of these would transpire until more opposition voices enter Parliament. (or the PAP is voted out of power)

1. Abolish detention without trial
2. Repeal the mandatory death penalty
3. Repeal s.377A of the Penal Code
4. Amend laws that reverse the burden of proof and place the same on the defendant. (e.g. Misuse of Drugs Act)
5. relinquish control over the local media by repealing the Newspapers and Printing Presses Act
6. Politicians should cease to institute defamation suits
7. Lay bare the accounts of Temasek Holdings and GIC and specifically set out the salaries of office bearers
8. Reveal the details of our national reserve
9. reveal the per unit cost of construction of HDB flats
10. what component of CPF monies are invested by the state and what are the returns on the investment
11. Amend the Films Act to make it compliant with the Constitution
12. Amend the Public Order Act to allow for peaceful assemblies
13. Abolish the GRC system and revert back to the single member constituency system
14. move the elections department out of the PM’s Office and create an independent Electoral Commission to administer elections
15. Legally constrain the Boundary Committee to redraw electoral boundaries only for the purpose of reflecting demographic changes and restrict such changes to once every 15 years
16. Remove restrictions on the arts scene

Change from within?

2011-05-18T10:36:00.001-07:00

The catchword for GE 2011 has become ‘change’. Whatever else may or may not have happened and whatever change may be due to take place, the political landscape in Singapore has changed irrevocably in a noticeably powerful way. Our collective fear of the PAP has been smashed in a dramatic fashion. I know that a significant number of people still experience that fear. However, thanks to the social media, for many of us this general election campaign has enabled us to find a voice and a very loud one at that.

All of this noise making has, it appears, forced the PAP leadership to re-examine itself. It is too early to tell if the PAP leaders would in fact change their policies and modify their authoritarian style of government. I am still skeptical. We have heard before about the supposed change in the style of government. But, past actions do not bear out any real attempt at fulfilling those promises.

As it stands right now, it appears to me still that the leadership is engaged in perception management more than anything else. I am not convinced that they are really going to look at their policies to see how they may be changed. I suspect that they may try to explain their policies in a more palatable fashion.

The following is an article that appeared in the Today paper on 13th May 2011 entitled “I wondered how leaders would react: Tan Chuan-Jin”:

BG Tan said what needs to be done is to change the perception that the PAP is a long—time ruling party that is quick to look past public views — even though it has made policy decisions with the best of intentions.
"It’s sometimes hard to pinpoint what exactly sparked that perception. But perception is reality and it’s important because if that perception is widespread, it will erode that sense of support ... and the mandate where the people trust you to make long—term strategic decisions," he said.

My worry is that in the end, the next five years becomes an endless exercise in underlining the official narratives that continue to keep the majority of Singaporeans convinced that this country cannot survive without the PAP. We are a small island with no natural resources. We are surrounded by hostile or potentially hostile neighbours. Our economic progress was solely due to the enlightened economic policies of the PAP. That such economic progress is not compatible with ‘confrontational’ politics. That our society is so fragile that it is just poised to break into chaos if freedoms are given to Singaporeans. That the past track record of a previous generation of leaders is indicative of the present and future performance of PAP leaders. I could go on.

The election campaign on the last day and the subsequent comments by the PAP leaders as well as forum page letters in the Straits Times all indicate a trend where:
a) the PAP leadership has realised that the level of unhappiness on the ground borders on anger and hatred;
b) they have decided that an apology and a promise to change would be the best way to limit the fallout;
c) they don’t appear thoroughly or even mildly convinced that their policies are wrong or may be wrong;
d) they seem to have a sense that Singaporeans have not fully understood government policies and explanations and that there is a breakdown in the communication

What I worry the most is that the campaign of perception management that the PAP leadership may engage in over the next few years might achieve the objective of pulling back the popular vote in PAP’s favour without any real change that the some of us desire; i.e. a change in failed policies, greater accountability for policy decisions and transparency through an effective system of Parliamentary checks and balances.

GRCs – where do we go from here?

2011-05-12T11:05:00.000-07:00

The Group Representation Constituency system was introduced in the 1988 elections ostensibly for the purpose of ensuring minority representation in Parliament. In the 2011 general elections, the PAP has lost 2 of its ministers through the loss of Aljunied GRC. The Workers’ Party raised the stakes by placing its best candidates in Aljunied knowing that the closet election battle in the last election was fought in this GRC. They won the bet.

Now, more than ever before, there is an urgent need to talk about the GRC system. There is an urgency to deal with this system whilst PAP supporters themselves are bitter with the loss of George Yeo. For a long time, opposition supporters have maintained that the GRC system unfairly disadvantages opposition parties and favours the incumbent. Well, it is equally dangerous for the PAP: the loss of a GRC means the loss of at least one or two ministers depending on the particular GRC.

Let us examine the stated rationale for the GRC system and whether it has any merits:

Minority representation

The official reason for the introduction of the GRC system in 1988 was to ensure that candidates from minority races can still be represented in Parliament. Was Singapore in danger of voting along racial lines back then in the 1980s? The evidence shows that PAP candidates of Indian and Malay origin had little difficulty in defeating Chinese opponents from opposition parties. Equally true is the fact that the first opposition MP to enter into Parliament was JB Jeyaretnam of the Workers’ Party in a constituency where the majority of residents were Chinese. The truth is that Singaporeans had not been voting along racial lines as at 1998 and it remains true that Singaporeans have not been voting along racial lines since then.

Indeed, one would be hard pressed to find a Singaporean who would vote along racial lines. Most Singaporeans can be classified into pro-PAP, anti-PAP, pro-a-particular-opposition party or just simply apathetic or unconcerned.

People vote along racial lines? Here in Singapore? We don’t buy that.
We may be told to rewind the clock back to the 1950s and 1960s. We may be told that racial divisions were real and were about to tear our society apart. We may be told that even though we notice such divisions today, they are still there below the surface waiting to blow up in our face at the slightest instigation.
If we are to believe that, then we must accept that 4 decades of nation building has been a failure; 4 decades of talking about racial harmony has been a failure; 4 decades of attempting to build a Singaporean identity has been a failure. But, I find that hard to accept.

Sure. There are racists in Singapore. There is racial discrimination here and there. Singaporeans have racial stereotypes about each other. But, to the credit of the Chinese majority in Singapore, they have never derided their politicians because of their race. Many minority race candidates from the PAP and the opposition have been received well by the Chinese majority. We are not in danger of slipping into a race based voting pattern. I know of so many Chinese friends who speak adoringly of JBJ and have a lot of contempt for LKY. Race has not been a factor in the way that the majority race votes in Singapore and with the high degree of tolerance and integration that we have amongst Singaporeans, it is unlikely that race will become a factor in the foreseeable.

So, the need to ensure minority race protection is nothing more than a hypothetical argument. In 1988, the PAP government was trying to ‘solve’ a hypothetical problem. Now, let us assume for a moment that minority race representation in Parliament is an issue to be catered for. Is the GRC system necessarily the best way to deal with it? Can’t such protection be ensured through a minimum quota of seats in Parliament? Under the present system, there are 15 GRCs. That translates into a reservation of 15 minority race seats in Parliament. If minority race representation is the true reason for introducing the GRC system, I suggest that a better system of ensuring minority race representation would be to reserve 15 constituencies as minority race seats. Any political party fielding candidates in those constituencies must field a person from a minority race. (I am personally opposed to this idea of creating a quota. But, playing ball with the PAP’s officially stated rationale, an alternative and better approach to the GRC would be a SMC system with a fixed quota for minorities)

What the GRC system really does is that it shields weaker candidates from electoral defeat. Back in 2009 I had blogged about manipulation of the electoral system and in that context the following analysis of Eunos GRC is something stand by still:

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

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

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

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

The fact is that through the GRC system PAP had managed in the early years of its introduction to avoid losing seats in Parliament to candidates that would have posed a serious threat in Parliament such as Francis Seow and Tang Liang Hong. Single member constituencies that were too hot for the PAP to handle such as Bukit Batok, Bukit Gombak and Ulu Pandan (amongst others) were quickly obsorbed into GRCs. The GRCs started growing in size from the original 3 member groups to 5 and 6 member groups. Over time, it has also become evident that the GRC system is a useful way by which the PAP is able to regenerate itself and to train newbies. Every new candidate introduced in a general election by the PAP is shielded by a Minister or two in a GRC. People would generally not dare to vote out a minister and the new candidate would effectively be protected that way. This rationale has been evident in the PAP rhetoric in the last two elections and in fact it was elevated to a new level in this election this year.

PAP ministers have been repeating the warning that a Minister could be lost if voters went against the PAP in a GRC. In the 2006 election, much was made about George Yeo’s experience and credentials as a Foreign Minister. In the 2011 election, we have seen again how the PAP made much ado about the possibility of losing a Minister if Aljunied GRC were to be lost.

So, it has come to pass. Aljunied has been lost to the Workers’ Party. The residents of Aljunied have rejected the PAP’s arguments. The desire for a voice in Parliament has been so overwhelming that the WP team in Aljunied pulled off a vote swing of 10% in a GRC where precincts were moved out into Ang Mo Kio GRC and precincts were brought in from Marine Parade in an attempt by the incumbent to dilute pro-opposition votes.

Low Thia Khiang said on nomination day that it is time to teach the PAP a lesson. Well, the lesson has been delivered. But, has the PAP learnt anything?

And there is one more thing. This election has really exposed the GRC system in a big way. Tin Pei Ling can become an MP. Half a dozen faceless individuals in the PAP ranks can become MPs. But, George Yeo, Tan Jee Say, Vincent Wijeysinha and several other credible individuals can be left out of Parliament. The net effect: the GRC system is inherently inefficient in delivering the best outcome. The most credible candidates would enter Parliament in a straight one to one contest. But, in a system that shields the incompetent, Parliament suffers in quality.

To summarise:
1. I don’t buy the argument that GRCs protect minorities.
2. If we really want to protect minorities, we could have a fixed quota of SMCs for that purpose.
3. GRCs have favoured the PAP because of the all-or-nothing effect that they produce
4. GRCs permit less than competent candidates to enter Parliament through the presence of Ministers
5. When a GRC is lost due to backlash, a good PAP candidate can be lost along with the whole team

There is one more point that I did not make above. The first past the post system that we have inherited from the British is not representative of the votes of the people. The GRC system amplifies this problem and our Parliament has become dramatically unrepresentative. 6 seats out of 87 seats as representation for 40% of the population that voted for the opposition? That is atrocious.

Change?

2011-05-10T08:32:00.000-07:00

The 7th of May has come and gone. Many of us were harping on the message of change. For some, it was as grandiose as a defeat of the PAP and the formation of a coalition government. For others, it was about denying the PAP a 2/3 majority. But, I believe, for most it was about making a breakthrough in a GRC.

In the heat of the campaigning, it was becoming increasingly clear from all the noise-making on social media platforms such as Facebook and from all the conversations that we were having with friends and relatives that something was happening. There was a shift against the PAP. A wave of anger. This was made worse by the almost arrogant insistence by Ministers that there would be no policy shifts and the veiled and direct threats that were made to the electorate generally and to voters in Aljunied in particular.

For a while, some of us sensed that Holland-Bukit Timah might fall to SDP in addition to a victory for the Workers’ Party in Aljunied. As more and more of us raised our voice in whatever way possible, we became more and more hopeful that something exceptional was going to happen on 7th May 2011. My own rational wish on cooling off day was that WP must take Aljunied and the votes must swing against the PAP to bring their majority to 60%. On polling day, both wishes came true. But, I felt a little empty because of so many close fights and of course the hyped up expectation of a totally surprising result. The surprise didn’t materialize.

With the heat of the election battle cooling off, and after rationally analyzing the opposition performance, I must say that there has been a significant change in this election. This is the highest number of opposition MPs in post-independence Singapore. This is the lowest percentage of popular votes garnered by the PAP.

More significantly, more than 800,000 Singaporeans voted for the opposition. During the campaign period, fear was rapidly disappearing from the minds of Singaporeans. We were saying stuff on our blogs. We were tweeting bold messages. Our Facebook updates were becoming ever more daring. We were publicly discussing politics with our friends, colleagues and relatives. We were not shy or fearful of discussing the topic in public places. Fear: a powerful tool in the hands of the PAP was now disappearing from our minds. I know of friends who had voted for the PAP previously out of fear or had spoilt their votes previously for that reason, who had decided in this election to cast away that fear. (Reality check – I also know of some who did not manage to do it and at the last minute succumbed to the fear of some backlash)

Of all the things that we can say about GE 2011 (be it the quality of opposition candidates, the disciplined messaging of WP and SDP, the off-message statements of PAP candidates, the sideshow involving Tin Pei Ling and Nicole Seah, the unprecedented apologies of Ministers, the swelling crowds at opposition rallies, the unrestricted usage of new media and the shameless lies of the New Paper), the one undeniable thing that has stood out for me is the lifting of the fear factor from the minds of so many Singaporeans.

Change has come.

Now, we have more work to do.

http://www.facebook.com/update_security_info.php?wizard=1#!/video/video.php?v=1753951563382&comments

Ministerial Responsibility, the PAP and the General Elections

2011-04-30T10:43:00.000-07:00

We are in a rather curious position in Singapore whereby the General Elections this year could become a referendum on the performance of individual Ministers.

There exists in Commonwealth countries and more particularly in the United Kingdom, the convention of Ministerial Responsibility. The basic premise of the convention is that Ministers are individually accountable to Parliament for their personal conduct, the policies they device and the failures of their respective Ministries. This accountability manifests itself in the form of Parliamentary scrutiny and questioning and often calls for Ministers to demonstrate such responsibility and accountability by resigning from their posts. This would often depend on the severiity of the Ministerial failing.

Three ministers in Singapore could be said to be in line to be held accountable for policy failings or mismanagement: Wong Kan Seng, Mah Bow Tan and Vivian Balakrishnan. Their respective failings in terms of the Mas Selamat escape, the Housing issue and the YOG budget could have been occasions for some blood-letting in countries like the UK. Ministerial resignations may have been in order based on the constitutional concept of Ministerial responsibility.

In Singapore, the 3 Ministers have escaped unscathed. Given that the PAP has an overwhelming majority in Parliament, it is virtually impossible to operate some sort of Ministerial responsibility convention in Singapore. But, Ministerial responsibility in countries like the United Kingdom is a practice that evovled from political pressures rather than a rule that was created for deliberate and consistent enforcement. Given that we are following the Westminster model of government in Singapore, one might expect the convention to apply here as well. However, the political reality of one party dominance has meant that Ministerial responsibility is not a concept that is alive and well.

But, given the way that the election battles are shaping up and the way that opposition teams in the GRCs are angling their arguements, I wouldn't be surprised if Bishan-Toa Payoh GRC, Tampines GRC and Holland-Bukit Timah GRC results represent a form of referendum on the performance of the Ministers. The opposition parties have not been pushing on such an agenda. Nevertheless, it is clear that in many of the rally speeches, the YOG budget, the Mas Selamat escape and the affordability of housing has become a constant refrain.

Assuming the voters are listening carefully and getting the relevant access to information, the aforesaid three GRCs could be turned into a battleground to assess and deliver verdicts on the performance of the 3 ministers. I don't see such a concerted strategy to raise direct Ministerial accountability to the electorate as a GE issue. Some speakers have called upon Ministers to answer for their failings. This is being used as a method of highlighting the fact that the high and mighty PAP has its own flaws and failings. But, the opposition parties could convert the general election agenda into an opportunity for the voters to judge the performance of individual ministers.

Afterall, the PAP has been using the GRC system to scare voters that if they vote out a GRC team, they would lose a Minister. Well, there is nothing stopping us then from considering the election as an opportunity to carry out a performance appraisal of the Minister concerned and throw him out if he has underperformed or made mistakes or his ministry has committed grave errors. The GRC is won on the strength of a Minister. On the strength of a Minister, unknown, untested, inexperienced individuals enter into Parliament. Why can't we then sack the entire GRC team if the Minister has failed in his functions?

Ministerial Responsibility can be ensured by a voter backlash. The opposition parties could ramp it up over the next few days and turn the election in those three GRCs into a referendum. That would be interesting.

Graduating from a Spare tyre to a co-driver to a slap on the face!

2011-04-29T01:15:00.000-07:00

I must say that Low Thia Khiang is really good with his imagery. His driving analogy started sheepishly by likening the opposition to a spare tyre. But, the truth is that in political terms an opposition should not merely be a spare tyre. I would characterise the parts of the vehicle as procedural safeguards in the system of governance.

Shanmugam was quick to pick up on the analogy and pointed out that in fact what the opposition wants to do is to become the co-driver. But, the analogy came unstuck. He suggested that the co-driver would tussle for the wheel. Wouldn’t that be unsafe for both the driver and the co-driver? Why would the opposition want the country to crash? That would be suicidal.

So, Low Thia Khiang’s rebuttal at last night’s rally using the same analogy was simply brilliant and to really add sting to it he threw in a slap.

"Bear in mind that just putting on a safety belt and hope that the driver will drive you to your destination is not enough. A co-driver is essential, especially as road gets tougher to navigate. The co-driver is there to slap the driver when he drives off course or when he falls asleep or drives dangerously," said Low Thia Khiang reminding us that we are all in the car together.

As the analogy has progressed from a spare tyre to a co-driver, I find that correspondingly more and more people that I speak to are not merely unhappy with the PAP. Many are willing to put their votes where their mouths are. Come the 7th of May 2011, the PAP could be in for a rude shock.

Could the co-driver become the driver?  Wishful thinking.

Low in Aljunied: Masterstroke or Fatal Mistake?

2011-04-28T11:40:00.000-07:00

Low Thia Khiang, looking like a brilliant general, gave a press conference after filing his nomination papers at Aljunied GRC. Nobody expected him to venture out of Hougang SMC. That’s his fortress. That’s where he has built up loyal support. His decision to cross over to Aljunied GRC has caught everyone by surprise.

This decision could turn out to be his masterstroke in what many of us are expecting to be a watershed election for the opposition in Singapore. If we assume Potong Pasir to be a safe zone and Hougang to similarly be a safe zone for the opposition, this huge gamble by him to cross over into Aljunied could finally win a GRC for the opposition. That would be 4 seats from Aljunied for a minimum of 6 opposition MPs in Parliament. It would inflict a major defeat on the PAP even though, to be honest, it in no way breaks PAP’s overwhelming control of Parliament. We would perceive this to be a major defeat because losing that GRC would involve the loss of two Cabinet Ministers. In the words of Low Thia Khiang, it would teach the PAP a lesson.

But, everything could go awfully wrong for the opposition. Chiam See Tong did not do particularly well in the last election at Potong Pasir. The margin of victory is one that the PAP could easily overhaul if Potong Pasir residents don’t view Mrs Chiam to be as dependable as her husband. Similarly, if the Hougang voters were more captured by Mr Low’s charisma than the Workers’ Party’s agenda, then Hougang could be lost too.

Aljuneid GRC was the most closely fought battleground in the last election in 2006. In its previous incarnations as Eunos GRC and Cheng San GRC, that part of Singapore has been a breeding ground for strong opposition support but always falling short. At every election, the boundaries have been redrawn for that region and any serious assault by the opposition has been neutralized. The closest outcome was 49.11% for the WP in the 1988 election when it was Eunos GRC. In the last election, the WP obtained 43.91% of the valid votes cast.

Based on the boundaries as redrawn for this election it is clear that 7 precincts have been moved out from Aljuneid to Ang Mo Kio GRC. These could have been areas with large opposition support. 6 precincts from Marine Parade GRC have been moved into Aljuneid GRC. This could neutralize opposition support. In the end, it could be a close fight and the WP could end up losing.

Such a scenario is not improbable and our Parliament might go back to where it was 30 years ago when all seats were occupied by the PAP before JBJ broke into Parliament in the 1981 Anson by-election. That is the doomsday scenario for the opposition. But, it is a scenario that does not bode well for the future of our country. It is extremely unhealthy for so much of pent up frustration to exist on the street and have no voice in Parliament. (And for God’s sake, NCMPs don’t count as a voice when they lack the powers of an elected MP.) It is quite likely that there would be a sizeable swing against the PAP of anywhere between 5% to 7% of the popular vote. Such a swing could translate into 40% of the popular vote in the country to the opposition. That, arguably would be 40% of the citizen population being disenfranchised.

The Workers’ Party gamble could go awfully wrong for the opposition as a whole. Although I hear a great deal of chatter online and on the ground that appears to express dissatisfaction, I do not think that we are going to see a massive swing in the popular vote of about 10% to 15%. Based on the previous election in 2006, the opposition only managed to get about 30% to 35% in most of the constituencies. They had a good showing in Aljunied. But, that was it. So, barring a huge electoral swing, one would not imagine the opposition scoring a win in any other GRC. Perhaps the single member constituencies could throw up some new opposition members. Perhaps not.

That’s my nightmare scenario. Let’s try the slightly more probable outcome.

Due to prevalent voter dissatisfaction, there is a 5% to 7% swing in the overall popular vote. Potong PAsir and Hougang remain with the opposition. Aljunied falls to the WP. Another 2 or 3 SMCs fall to the opposition. Likely candidates for that: Yuhua SMC, Whampoa SMC and Mounbatten SMC. So, there could be 10 opposition MPs in Parliament.

The best case scenario for the opposition would be that they capture Choa Chu Kang GRC, West Coast GRC, Bishan-Toa Payoh GRC, Aljunied GRC, Tampines GRC, Holland-Bukit Timah… That would be 29 seats from GRCs alone. To me, that would be the ideal result to get a sudden leap into a first world parliament. That number would prevent unilateral constitutional amendments.

Well… Let’s see how things unfold. There are plenty of first time voters and plenty of young voters. This election is not going to be easy to predict.

Gridlock? In the Singapore Parliament? – That’s a red herring

2011-04-24T11:17:00.000-07:00

Ms Indranee Rajah made a rather curious assertion in the course of her attack on the WP’s slogan to create a First World Parliament. She wants to convey the impression that with a strong opposition in parliament, policies may be blocked. This is echoed by the Law minister Mr Shanmugam as well. He says that what WP really wants to do is ‘to block constitutional amendments. They will also block other policies they disagree with.”

I’ll leave aside the main bone of contention in the to-and-fro between the WP and the PAP over WP’s slogan. But, an impression being given to the electorate is that a first world parliament as envisaged by the WP would involve the opposition effectively blocking government policies.

Let’s get this clear. If the PAP won 50 seats in this election and the opposition gets the remaining 37 seats, then any Bill tabled by the PAP will still get passed because it has the simple majority. No policy proposal is going to be blocked as the PAP has a majority. The gridlock scenario in the US is unlikely to happen here as our system is modeled on the Westminster Parliament.

Any government of the day is only formed because it has a majority in Parliament. Even in the event that there is a hung Parliament, a minority government or a coalition government must demonstrate the support of the majority in Parliament. Therefore, during any Parliamentary term where the ruling party has a majority, it is always able to implement all its policies. In fact, in the UK context it has even been asserted that the near complete fusion of the Executive and Legislature is the efficient secret of the British Constitution. The efficiency is a result of the fact that a government elected through a Parliamentary majority has the legitimate expectation of implementing its policies and in fact has the sufficient numbers in Parliament to be able to do so.

So, on the assumption of my earlier example of PAP winning 50 seats and the opposition getting a sizeable 37 seats, the opposition will not be able to cause the kind of gridlock that arose in the US. What the opposition will be able to do is to prevent Constitutional amendments from taking place. With 50 seats in Parliament, the PAP would not have a 2/3 majority and they would need opposition consent before amending the constitution. What is wrong with that? It is good to have an effective check in Parliament to prevent frivolous, partisan, imprudent, negligent or self-serving constitutional amendments from taking place.

So, if any PAP minister or candidate were to raise the gridlock issue if there is a sizeable opposition in Parliament is either naïve about the constitutional matters or is ‘throwing smoke’.

Singapore GE 2011: 7 May

2011-04-19T05:25:00.000-07:00

So, here we are. Parliament has been dissolved. Polling day is on May 7.
5 years on from the last elections, there is something in the air. The country is stirring in a way that is unusual. There is more coverage about the elections in the mainstream media. The MSM is not exactly neutral but it is definitely not taking as harsh a stance as it used to in relation to the opposition. There is still the indication of partiality in the way newspaper and television reports are slanted. PN Balaji noted recently that there seems to be a certain openness in the MSM. He used the term Orchid Evolution. It is kind of catchy. I wonder if it would catch on.

People seem restless. The number of people defending PAP fiercely seems to have dwindled. More people appear to express unhappiness. The single biggest grouse appears to be immigration. Ironically, whilst I am happy about the anti-PAP sentiment that seems to be growing I am not exactly thrilled about immigration as the reason for this backlash.

These foreigners who work amongst us and live amongst us are trying to make a living and to support their families either living back home or living here. The lax immigration policy can possibly be blamed for causing wages to be depressed. But, I hope that it is not an anti-foreigner mentality that is driving much of the anti-PAP sentiment. The last thing we need is an opportunistic xenophobic campaign by the opposition to be the basis of a serious assault on Parliamentary seats.

If we were to vote for candidates to have a broader representation in Parliament, so be it. If we were to vote for candidates to break PAP’s almost complete dominance of Parliament, so be it. If we were to vote for candidates because we believe that they propose better policies than the PAP, so be it. If we were to vote for candidates to pave the way eventually for a viable alternative government, so be it. But, to vote for opposition simply because of an anti-foreigner sentiment reeks of xenophobia and is all the more ridiculous in a nation made up almost entirely of the descendants of immigrants.

That said, I must admit that many of my friends and relatives seem genuinely excited at the chance to vote. For some it is the first time since the 1980s. For some it is the first time ever. But, with the growing chorus of anti-PAP sentiment and the interesting accumulation of talent by the opposition parties, I can’t help but feel that our expectations of an election upset is growing tremendously. I just hope that on the day after polling day we don’t come crashing down to the ground with a resoundingly disappointing outcome.

Singaporeans have complained before. Singaporeans have been vocal before. But, too often they have been cowed to submission by the irrational fear that their vote is not secret or the threat of losing material benefits in their housing estates.

Your vote is secret. Cast away that fear. Vote in the long term interest of the nation and set aside your narrow selfish interests and greed. The time seems right. Vote wisely.

Clemency and the Constitution

2010-08-20T01:38:00.000-07:00

I didn’t think that there was much hope for Vui Kong in the recent application before the High Court. Even if the Court had decided that the President may exercise his discretion, it would not have won Vui Kong a reprieve. But, the decision appears to have aroused a primal cry from netizens and armed critics with another weapon with which to mock the highly paid and allegedly powerless ‘Elected President’.

Many decry the legal confirmation of the President as a figurehead. Some have taken the Court ruling to mean that the President has no legal authority at all under the Constitution and that he is nothing more than a puppet. At the other end of the spectrum, there are lawyers and legally trained persons who are puzzled as to why M Ravi attempted this outrageous application when a ‘plain’ reading of Article 21 and Article 22P of the Constitution is supposed to reveal that the President does not have discretion in the matter of the Pardon.

I think that it is important to understand the Constitutional position.

1) Is the President a powerless figurehead under the Constitution?

No. By virtue of Art 21(2), the President has a number of discretionary powers.

Art 21(2) is as follows:
(2) The President may act in his discretion in the performance of the following functions:
(a) the appointment of the Prime Minister in accordance with Article 25;
(b) the withholding of consent to a request for a dissolution of Parliament;
(c) the withholding of assent to any Bill under Article *5A, 22E, 22H, 144 (2) or 148A;
(d) the withholding of concurrence under Article 144 to any guarantee or loan to be given or raised by the Government;
(e) the withholding of concurrence and approval to the appointments and budgets of the statutory boards and Government companies to which Articles 22A and 22C, respectively, apply;
(f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G;
(g) the withholding of concurrence under Article 151 (4) in relation to the detention or further detention of any person under any law or ordinance made or promulgated in pursuance of Part XII;
(h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony Act (Cap. 167A); and
(i) any other function the performance of which the President is authorised by this Constitution to act in his discretion.

Some netizens have gone overboard in making remarks that the High Court’s decision confirms what everyone privately feared… that the President is just an expensive rubber stamp. I find this to be an extreme response to the Court’s decision. The judge was examining one of the President’s powers and made a ruling that this power was constrained and the President had to act in accordance with the Cabinet’s advice.
Activists have to act with care not to make the assertion that the President is a rubber stamp (period). On the question of the pardon, the President is required to rubber stamp the Cabinet’s decision and not in relation to all functions.

2) Did the Court get it obviously wrong in deciding that the President had no discretion in the granting of the pardon?

No. There is a strong and irresistible conclusion that one can arrive at in reading the Constitution plainly that the President has no discretion in the use of the Art 22P power.

Arguments have been brandished (without reading the Constitution properly, I believe) that Art 22P states that the President ‘may on the advise of the Cabinet’ grant a pardon. Art 22P read in isolation leads one to conclude that the President has full discretion in the grant of the pardon.

Art 22P is as follows:
22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet —
(a) grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;
(b) grant to any offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence pronounced on such offender; or
(c) remit the whole or any part of such sentence or of any penalty or forfeiture imposed by law.
(2) Where any offender has been condemned to death by the sentence of any court and in the event of an appeal such sentence has been confirmed by the appellate court, the President shall cause the reports which are made to him by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General with instructions that, after the Attorney-General has given his opinion thereon, the reports shall be sent, together with the Attorney-General’s opinion, to the Cabinet so that the Cabinet may advise the President on the exercise of the power conferred on him by clause (1).

I understand perfectly well that the plain reading of this provision indicates that when the clemency issue arises, the President will call for reports from the judges to be sent to the AG who will send these reports together with his opinion to the Cabinet for the Cabinet to advise the President. The provision appears to leave the exercise of discretion by the President hanging ambiguously in the background.
Many lawyers and even law students will point out quickly that interpretive problem can be easily unravelled by reading Art 21.

21. —(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.

So, Art 22P confers on the President the function of granting the Presidential Pardon. Art 21 states that in the exercise of this and other functions, the President ‘shall’ act in accordance with the advice of the Cabinet. The use of the word ‘shall’ is mandatory and affords no discretion in the matter.

Art 21(2) lists out the different powers that are given to the President and that can be exercised with full discretion contrary to what is stated in Art 21(1). The list of these powers has been reproduced above. Art 22P is not listed nor is the granting of pardon referred to expressly. Therefore, quite justifiably there is a camp of lawyers who would assert boldly that the President has no discretion in clemency matters.

3) Did M Ravi miss the obvious and get his arguments wildly off the mark?

No. He raises an equally viable argument vis a vis Art 22P.

I have seen some comments posted by some individuals questioning M Ravi’s failure to see the obvious: i.e. the Constitution is clear and unambiguous in Art 21(1) and 21(2). But, I think they have failed to see the thrust of Ravi’s submissions to the Court. The interpretation that he proposed of Art 22P is a plausible reading of Art 21(1), Art 21(2)(i) and Art 22P.

Art 21(1) suggests that the President shall act in accordance with the Cabinet’s advice.

Art 21(2) provides for exceptions where the President can exercise his discretion.

One of the exceptions is as follows:
Art 21(2)(i) - any other function the performance of which the President is authorised by this Constitution to act in his discretion.

‘authorised… to act in his discretion’
Whilst Ravi’s argument is not the most obvious way to read the Constitution, it presents a perfectly valid legal argument that stands in competition with the simplistic reading of the Constitution as requiring the President to exercise no discretion in the granting of the pardon. Ravi claims that the function of granting pardons falls within the kind of functions referred to at Art 21(2)(i) (any other function the performance of which the President is authorised by this Constitution to act in his discretion).

The Constitution spells out the President’s powers in a number of ways. I have selected 3 provisions to illustrate the different approaches:

Article 25. —(1) The President shall appoint as Prime Minister a Member of Parliament who in his judgment is likely to command the confidence of the majority of the Members of Parliament, and shall, acting in accordance with the advice of the Prime Minister, appoint other Ministers from among the Members of Parliament

Article 22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet — (a) grant a pardon………..

Article 22A. —(1) Notwithstanding any other provision of this Constitution — (a) where the President is authorised by any written law to appoint the chairman, member or chief executive officer of any statutory board to which this Article applies, the President, acting in his discretion, may refuse to make any such appointment or to revoke such appointment if he does not concur with the advice or recommendation of the authority on whose advice or recommendation he is required to act…

The salient parts of the 3 provisions can be set out in the following way:
(1). The President shall, acting in accordance with the advice of the PM, ……
(2). The President may on the advice of the Cabinet…
(3). The President, acting in his discretion, may…

There are two ways of dealing with these three phrases. The first argument would be that the word ‘shall’ is a prescription to the President to do something and that it affords no discretion to him. The word ‘may’ presents an option to the President so that he now has discretion and the advise of the Cabinet that he considers goes towards the exercise of his discretion. Therefore, (1) is a provision that gives no discretion and (2) and (3) confer a discretion on the President. Interpreted in this manner Art 22P (the granting of the pardon) is arguably within the ambit of Art 21(2)(i) and therefore, Vui Kong’s counsel has a valid point in stating that the President has discretion.

The second way of dealing with the 3 phrases is to assert that only those provisions that state specifically that the President is ‘acting in his discretion’ would qualify under the proviso in Art 21(2)(i). Eventually, it appears that the Court has interpreted the Constitution in this manner. There are a number of provision that state ‘the President, acting in his discretion, may”. These provisions were contrasted from Art 22P which states that the ‘President may on the advice of the Cabinet’ grant the pardon. The Court, therefore, concluded that Art 22P does not provide for the President to act in his discretion.

The short of the long story?

The power under Article 22P was open to interpretation. The High Court has interpreted it. Let us see how the Court of Appeal views the provision and whether it is declared that the President does or does not have discretion in the grant of the pardon.

What did Shadrake really say?

2010-08-05T02:19:00.000-07:00

What did Shadrake really say?

I haven’t read the book. So, I think it would be really premature to judge on the contempt of court charges.

I have previously written about my views on criminal defamation. Looks like things are moving slowly on that front. But, it is really contempt of court where the action is at. As the law stands right now and as it has been interpreted by the Courts so far, contempt law would be based on English Common Law as it existed at the time that our Constitution was adopted.

If Shadrake avoided any allegation against the judiciary or if he refrained from imputing any wrongdoing or partiality on the part of the judiciary, the contempt charge may be difficult to make out. But, this is not entirely clear to me right now. It is entirely possible that the author might have taken a wild swing at the judiciary. That would be quite consistent with sensationalistic writing that some ‘investigative journalists’ are prone to and quite legitimately some of us would suspect that even Shadrake might have been guilty of. (Again, without reading the book I am really speculating here.)

For Shadrake to be on safe ground, the book must have referred to the cases in a factual reporting style and any allegation of unequal treatment under the law must have avoided allegations against the judiciary. Such a method of writing could have been accomplished without difficulty in relation the drug cases that Shadrake has reportedly addressed in his book. Based on Alex Au’s review of the book in his Yawning Bread blog, the following cases have been examined:

Vignes Mourthi case: The issue here appears to be evidence that was unavailable at the trial. Apparently, a key prosecution witness was involved in some impropriety and evidence of credibility of this witness was not available at the trial of Vigness Mourthi. I wouldn’t lay any blame on the judiciary. From my reading of the review by Alex Au, it doesn’t appear that Shadrake was blaming the judiciary.

Amara Tochi case: This case is more of an indictment of the reversal of the burden of proof in the Misuse of Drugs Act rather than an indictment of the judiciary. This is what opponents of the mandatory death penalty have been saying all along. The judge’s hands are tied. Once the presumption in the statute kicks in, it is virtually impossible for the Defendant to prove his position. Again, on the face of it, this case cannot possibly be an indictment of the judiciary.

Julia Bohl case: This is a trafficker against whom CNB appears to have had a good deal of evidence. However, in what is allegedly a deal between the German government and the Singapore government, the charge against Julia Bohl described a quantity of cannabis that was below the statutory presumption. Now, this is definitely a scandalous allegation. But, in any event, this is also not an allegation leveled against the judiciary. What has allegedly transpired could not be a stain on the judiciary.

I am not going into, and I should not go into (given the fact that I have not read the book), each of the other examples raised by Alex Au in his review of the book. A quick glance of each of the instances mentioned reveals that there may not have been any imputation against the judiciary to begin with in the book. This is something that I can ascertain for myself only if I read the book.

If the content of the book had the ‘inherent tendency’ to create prejudice, the contempt offence could be made out. The inherent tendency test is satisfied if a statement "conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function." Whether any allegations were true is not an issue that can be raised as a defence. If Shadrake had merely dealt with individual cases by highlighting that different offenders were charged differently and this resulted in the inconsistent application of the death penalty, I don’t see how the contempt charge could be made out. It is, at most, an indictment of the law enforcement end of the system and in no way impugns the judiciary or its integrity.

Of course, the sneaking suspicion that I have is that somewhere along the way Shadrake might have made a sweeping statement that might have tied the judiciary to the inconsistency in the application of the death penalty. If he had done that, the contempt charge would be made out easily. This, I would not know until I have read the book.

I am left wondering…. What, exactly, did Shadrake say?

S.35 of the Films Act is Unconstitutional

2010-07-28T06:09:00.000-07:00

I am sure that constitutional scholars would agree with me when I assert that a strong case can be made for the view that Section 35 of the Films Act is unconstitutional.

This is the provision under which the video recording of Dr Lim Hock Siew’s speech was prohibited recently.

The relevant part of Article 14 of our Constitution that deals, inter alia, with Freedom of Speech is as follows:

“14. —(1) Subject to clauses (2) and (3) —
(a) every citizen of Singapore has the right to freedom of speech and expression;
……………
(2) Parliament may by law impose —
(a) on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;
………………. “

Section 35 of the Films Act reads as follows:
35. —(1) Notwithstanding the provisions of this Act if the Minister is of the opinion that the possession or distribution of any film would be contrary to the public interest, he may, in his discretion, by order published in the Gazette prohibit the possession or distribution of that film by any person.

S.35 is a blanket provision giving the Minister discretion to prohibit any film that he considers to be contrary to public interest. One ought to ask the rather important question whether s.35 is unconstitutional in the first place. The Constitution protects freedom of speech. The permissible reasons for limiting free speech is spelled out in Art 14(2)(a):
- security of Singapore
- friendly relations with other countries
- public order
- morality
- parliamentary privilege
- contempt of court
- defamation
- incitement to any offence

‘Public Interest’ is not on the list of reasons that the Constitution prescribes. The Films Act is, prima facie, in contravention of Art 14 of the Constitution by placing limits on Freedom of Speech and Expression in a manner that was not permitted. Of course, if the validity of s.35 were called into question in a court of law, an argument could be made out that ‘public interest’ in that provision was intended by Parliament to be a reference to the ‘security of Singapore’ or ‘public order’ or ‘morality’ or for that matter (whilst we are at it) an argument could be advanced that ‘public interest’ should be construed (though it would be an extremely strained construction) as any matter that would be in consonance with the grounds for restriction spelled out in the Constitution.

There is one possibility that a Court of law might consider s.35 to be a blatant infringement of the Constitutional right of Freedom of Speech and Expression. Equally, there is the other possibility that ‘public interest’ can be read to be consistent with the Constitution if one construes that Parliament intended public interest to include the grounds set out in Art 14(2)(a) of the Constitution.

I am in favour of the first option. Any restriction enacted by Parliament in relation to the Freedoms expressly provided for in the Constitution must be screened with suspicion by the Courts. The clear role of the Courts in the interpretation of laws is to err on the side of the Constitution. However, I understand that it is equally possible to adopt the argument that the s.35 of the Films Act is valid if one construes ‘public interest’ narrowly as being in consonance with the grounds in Art 14(2)(a) of the Films Act and not too broadly defined.

Working on the 2nd assumption that the Films Act can be construed to be valid (if ‘public interest’ is restrictively interpreted), then the power conferred on the Minister by s.35 cannot be utilised too broadly with unfettered discretion. S.35 permits the Minister to prohibit a film if it is in the public interest to do so. ‘Public interest’, construed restrictively, in order not to fall foul of the Constitution must relate to the matters set out at Art 14(2)(a).

- security of Singapore – Dr Lim was not exhorting any riot, uprising or terrorist action

- friendly relations with other countries – I don’t see anything in the speech that traverses this ground

- public order – hmm… again, no dramatic call to arms or instigation to riot or stuff like that. In fact, some might even say that the speech was monotonous and likely to be sleep inducing.

- Morality – Was Dr Lim doing a striptease? I must have missed that part.

- Parliamentary privilege – nothing that he said could be impinging on the privileges of parliament

- Contempt of Court – a remote case can be constructed around this limb. Dr Lim makes a reference to appearing before an Advisory Board headed by Judge Winslow. He comments as follows: “You see, the whole thing is a judicial farce. I mean, it's incredible that anyone has to face this kind of mockery, this kind of so-called justice, and the fact that a High court judge is being put as the chairman of this Advisory Board gives the public an illusion that there is judgement, there is justice. And I told him that if I were a High court judge, I would not lend credence to this mockery by my presence.” One could argue that this is a Contempt of Court. It appears that at that Advisory Board hearing Dr Lim was threatened with Contempt. Then, according to Dr Lim, Judge Winslow said: "No, no, let the doctor have his say, there's no question of contempt of court." In any event, it cannot be the case that every tribunal formed and constituted under the law could claim the ‘contempt’ jurisdiction. It may be that the High Court might claim contempt. Surely, the Advisory Board constituted under the ISA could not similarly claim a contempt jurisdiction.

- Defamation – There are some allegations relating to Lee Kuan Yew that could be construed as being defamatory. This is going to be a tricky one. Firstly, we have to construe ‘public interest’ as being inclusive of defamation. Whilst public interest could be moulded to be ‘national security’, ‘public order’, etc., it would be quite a stretch to say that ‘public interest’ in the Films Act was a reference to restrictions providing for ‘defamation’. Laws relating to defamation, invariably, protect private reputations. I would not lean towards the argument that there is a public interest in this though I can imagine that some would argue as such. Secondly, even if defamation can be a limb covered by ‘public interest’ in the Films Act, did the Minister in the exercise of his discretion consider ‘defamation’ as the basis of his decision? No.

- Incitement to commit an offence – I don’t see any instance of this in the speech.

One fact, observed by several bloggers, is that Dr Lim’s speech has not been banned. Dr Lim is not accused of any offence nor has he been sued. Instead, the video recording of the speech has been banned. This might be an unspoken acknowledgement of the legality of the speech. The Films (Prohibited Film) Order 2010 states:

. The Minister, being of the opinion that the possession or distribution of the following film would be contrary to the public interest, hereby prohibits the possession and distribution of that film by any person:
Title: “Dr Lim Hock Siew”
Director: See Tong Ming
Year of production: 2009

Rest assured that if any one of the 8 grounds stipulated in the Constitution were fulfilled, Dr Lim himself would be facing some legal consequences and his speech would similarly have been restricted, banned or subject to an injunction. The Prohibition Order itself does not set out the reason that constitutes ‘public interest’. The reason is set out in the Press Release from MICA dated 12 July 2010:

“The film gives a distorted and misleading portrayal of Dr Lim’s arrests and detention under the Internal Security Act (ISA) in 1963. The Singapore Government will not allow individuals who have posed a security threat to Singapore’s interests in the past, to use media platforms such as films to make baseless accusations against the authorities, give a false portrayal of their previous activities in order to exculpate their guilt, and undermine public confidence in the Government in the process.”

‘making baseless accusations’, ‘giving a false portrayal of activities’ & ‘undermine public confidence in the Government’ in the process. That’s the key. Not any one of the Constitutional reasons for limiting the exercise of Free Speech. But, these reasons provided in the media release from MICA.

That, in my humble opinion, is unconstitutional.

The Minister cannot claim unrestricted and total discretionary power. The statute grants him the discretion under s.35. The discretion must be exercised within clear constitutional parameters.

I believe that either s.35 of the Films Act is itself unconstitutional or if a court were to construe that provision to be consistent with the Constitution, then the act of prohibiting the video recording on the basis of the grounds revealed would be a contravention fo the Constitution. One cannot assert that just because the statute provides for ‘public interest’ as a ground, any assertion of a broadly defined public interest would suffice as a basis for the Prohibition Order.

As an aside, I felt that readers might benefit from reading the following extracts from Parliamentary reports of the 2nd reading of the Films (Amendment) Bill last year. Note that the amendment being debated was about the relaxation of the prohibition on party political films (s.33). But, MPs also addressed the catch-all nature of s.35.

A few interesting points: Siew Kum Hong and Thio Li An raised the constitutional point early in both their speeches. The constitutional issue was brushed aside by the Minister and the PAP MP without too much of a bother.
s.35 was pointed out as being too broad and as being an avenue to circumvent s.33. But, the Minister dismisses that with a rather puzzling stance.

Senior Minister of State for Information, Communications and the Arts (RAdm [NS] Lui Tuck Yew: during the 2nd reading of FILMS (AMENDMENT) BILL on 23 March 2009

“We should not prevent people from recording video clips of political events held in accordance with the law or from making factual documentary videos of political issues and events. But we must continue to have limits against undesirable political materials, for example, fictionalised accounts or political commercials, even though it may not be possible to enforce these limits completely. “

“With the amendments, the following will no longer be considered as party political films:

(i) Live recordings of events held in accordance with the law;
(ii) Anniversary and commemorative videos of political parties;
(iii) Factual documentaries, biographies or autobiographies;
(iv) Manifestoes of political parties produced by or on behalf of a political party; and
(v) Candidate's declaration of policies or ideology produced by or on behalf of the candidate.”

Thio Li An questioned the minister on section 35:

“Sir, I note that Section 35 which empowers the Minister to prohibit the possession or distribution of any film considered contrary to the public interest still applies. This is a catch-all clause, wide enough to catch party political films which the Board of Film Censors considers has passed the test of being non-partisan and unbiased. It is a very broad power. Will further guidelines be provided to limit the Minister's discretion in this respect, to prevent section 35 from being a backdoor way to ban films which are found to escape the jaws of section 33?”

Siew Kum Hong questioned minister on section 35:

The final point I would make on this Bill, is that it does not amend section 35, as recommended by AIMS. Section 35 allows the Minister to ban any film that he considers to be “against the public interest”, without giving any reason. AIMS had recommended that the permissible reasons for banning films under section 35 be spelt out clearly, that an independent advisory panel be formed to advise the Minister before a film is banned under Section 35, and that the Minister be obliged to give reasons for the ban. All three proposals have been rejected.

Ms Irene Ng Phek Hoong on the constitutional point raised by Thio Li An and Siew Kum Hong about the freedom of speech:

“I hear Prof. Thio Li-ann and Mr Siew Kum Hong talk in terms of freedom of speech. I think that is a worthy topic but I would urge the Members to perhaps move a separate motion on freedom of speech and deal with it holistically to do with publications, films and all other media, and not use that argument for the Films Act which is one aspect of freedom of speech.
And I think it is, in a way, confusing the debate to bring in what you call "a constitutional right" to freedom of speech. All of us value the freedom of speech. The question is: What serves society? And it is up to this society to decide what limits we place, what we think is valuable. I think it merits a deeper and wider debate.”

Minister RAdm Lui Tuck Yew’s response to the constitutional point:

Prof. Thio Li-ann had also queried about the Bill vis-a-vis article 14(2) of the Constitution and I know that Ms Irene Ng had suggested to her and others to table a proper motion to debate this. I am not a constitutional expert but my take on this is that I am fairly sure that this must have been deliberated quite extensively by our predecessors when the Bill was first moved in 1998. But, again, back to the fundamentals and principles which are to keep our political debates rational, non-emotive and serious to preserve the integrity of the election process, I think disallowing certain types of films does not affect the overall freedom of political debate in Singapore. My take is that there are sufficient avenues for political parties and individuals to get their views and manifestos across to the public. They can rely on the mainstream media. They can publish magazines, print newspapers if they are licensed to do so, host web pages online as well as debate about such issues in Parliament.

Minister RAdm Lui Tuck Yew’s response to the issue of using s.35 to circumvent s.33:

Again, same members have raised their issues and comments on section 35. Let me clarify a misconception that this is a so-called backdoor way to catch the rest of the films that would otherwise have passed, because section 35 is not against PPFs; it is not to be used against party political films. PPFs, unless they fall under the exceptions, will already be banned from the onset, and there is no need to apply section 35 to such films. Section 35 is meant and reserved for serious situations where due to the circumstances of the day, the possession or distribution of the film would actually be contrary to public interest - presenting a threat to national security, danger to racial or religious harmony, and perhaps affecting even the very fabric of our multi-racial, multi-cultural society. Members have noted that so far, we have only used section 35 once and that was on "Zahari's 17 Years", and the Minister had come up with a press statement to fully explain why he issued the ban. We did not want to impose on the Minister the need to make such a press statement or to have to explain every time he exercises the jurisdiction to impose such a ban. But, where possible, he will indeed do so. But for those who have forgotten what "Zahari's 17 Years " was all about, the film was a revisionist attempt to have a distorted and misleading portrayal of Zahari's arrest and detention. It was an attempt to exculpate himself from his involvement in communist activities against the interest of Singapore. He had posed a security threat for which he was detained under the ISA, and he now wanted to exploit the use of film to project false and distorted picture of his past actions, and that is why the ban was made. It was not a political film.

Res Ipsa Loquitur - The thing speaks for itself!

The Shadrake Affair

2010-07-21T04:08:00.000-07:00

The Shadrake Affair

“If they do anything, it’ll just draw more attention to it all, and they have no defence,” – This is what Allan Shadrake had reportedly said on the day before he was arrested. Well, Shadrake has thrown down the gauntlet and our authorities have taken up the challenge. It would be interesting to see how this plays out.

From the information that has emerged thus far from official sources and from international news reports, the following is clear:
a) The basis of the arrest was criminal defamation which is an offence under s,488 of the Penal Code which reads as follows:

Section 499 of the Penal Code: Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

b) The AG’s chambers is proceeding with a Contempt of Court application against Shadrake because statements in the book are alleged to impugn the impartiality, integrity and independence of the judiciary
c) Shadrake has been released on bail and his passport has been impounded
d) The contempt of Court matter has been fixed to be heard on July 30

A Home Ministry spokesman has reportedly stated:
"His anti-death-penalty views are not the issue in these investigations; it is his violation of the laws of Singapore which are.” "Anyone, Singaporean or otherwise, who breaks the law regardless of the cause he touts, will be taken to task. Shadrake is no exception."

According to the Today newspaper:

In court documents obtained by MediaCorp yesterday, the AGC is alleging that several passages in Shadrake's book contain allegations and insinuations that the Singapore Judiciary "in determining whether to sentence an accused person to death, succumbs to political and economic pressures" and therefore "lacks independence".

Shadrake also insinuated that the Judiciary "has been facilitating the suppression of political dissent and criticism in Singapore through the award of heavy damages in defamation actions brought without legal basis by the People's Action Party", the AGC says.

According to the Telegraph, a British newspaper, Allan Shadrake has spoken after his release and he has said the following:
"I have to stay in Singapore, I can't leave till the trial," "I've been awake almost the entire time since they dragged me out of bed at 6 a.m. Sunday morning. I've had a few hours sleep on a very hard floor. I've been sitting at a desk being interrogated all day long explaining all the chapters of the book, going into the history of the book, my research, why I did the book."

With very little facts out and having no access to the book, I can’t make any useful assessment of the issues at hand.

However, I do believe that this ‘criminal defamation’ offence is worth some discussion. As with many of our Penal Code provisions, this particular offence was created by the British. The origins of the offence can be traced back to the 17th century. The Star Chamber dealt with any form of libel critical of the state as a breach of peace. The common law courts subsequently adopted the tests formulated by the Star Chamber for criminal defamation. Prosecution for criminal defamation disappeared in the UK in the 20th century. Last year, the UK parliament abolished the offence. Defamation today raises the possibility of civil liability only and not criminal liability.

In the course of the discussion surrounding the abolition of the offence, some views expressed by academics, jurists, parliamentarians and NGOs are instructive:

Lord Lester (member of the House of Lords and also a leading QC) of Herne Hill said:

"Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere …..”

Jonathan Heawood, director of ‘English PEN’ (a British charity involved in protection of literature and human rights):

“We are delighted that the government accepts our case for abolition. This news will be of comfort to the hundreds of writers around the world who have been persecuted for criticising their governments. Time and again, we have found that sedition laws in the UK provide a convenient excuse for regimes around the world to retain their own oppressive laws. Abolition in the UK removes that excuse, and is a great symbolic victory for our shared human right to freedom of expression.”

One can see that criminal defamation had become a redundant law in the UK and there had been no known prosecution in the 20th century. As such, the debate in the UK last year was largely about setting an example rather than about the rationale for the law. It is true that sometimes it is convenient for countries to assert that the UK has such-and-such law and therefore we are justified in having it. Clearly, the repeal of criminal defamation in UK removes that argument from the picture. But, equally an argument might be advanced that we don’t have to follow what the English do; we ought to adapt our laws to suit our unique socio-cultural circumstances.

Well, in the local context, our Attorney General has intervened to prevent a party from proceeding with criminal defamation in the not too distant past. The AG’s explanation is as follows:
“The law of criminal defamation is not to be resorted to lightly. A person who feels
that he has been defamed may institute a civil action against the alleged defendant. If his claim is well-founded, the court will award the appropriate damages and costs. Should his claim fail, however, he will be liable to pay the legal costs of the defendant. The prospect of payment of costs ensures that defamation suits are not instituted lightly.

No such limiting mechanism exists in respect of criminal defamation. Although the courts have power to award costs in criminal proceedings, this is uncommon; and unlike in civil proceedings, costs do not automatically follow the event. Moreover, it is only in the most serious cases that a person who has allegedly defamed another should face the prospect of a jail sentence.”
- Media Background Brief dated 16th October 2009

My view on criminal defamation is that it is an offence that relates to reputational damage. If a person’s reputation is affected or a corporate entity’s reputation is affected, it is appropriate for that person or body to commence proceedings to safeguard its reputation and to seek damages. The state ought to have no vested interest in safeguarding the reputation of persons (natural or legal). It is a waste of state resources to prosecute a person for the offence of criminal defamation. Such resources are better utilised in protecting the general community from harm.

Reputational damage should be subject solely to a regime of civil remedies. Criminal law should have no part to play in protecting a person’s reputation.

To put it another way: If I am defamed, I’ll sue. But, I don’t expect the taxpayer to cover my legal costs.

Obama's Drone Blitz: : Information Clearing House - ICH

2010-05-24T01:13:00.000-07:00

Obama's Drone Blitz: : Information Clearing House - ICH

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

2009-12-02T03:59:00.000-08:00

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

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

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

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

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

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

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

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

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

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

Public Interest - Not a sufficient reason to disclose information

2009-08-19T04:37:00.000-07:00

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

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

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

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

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

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

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

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

It can go on and on and on.

8:22 - The Hypocritical Oath

2009-08-13T05:38:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

TAMIFLU, Pharmaceutical companies and their profits

2009-08-07T00:24:00.000-07:00

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

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

The following article from The Independent is instructive:

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

Celebrating National Day

2009-08-04T03:55:00.000-07:00

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

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

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

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

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

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

2009-07-25T00:00:00.000-07:00

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

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

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

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

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

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

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

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

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

Pork Barrel Politics: Good or Bad?

2009-07-15T04:26:00.000-07:00

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

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

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

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

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

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

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

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

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

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

Human Rights for Some Humans

2009-07-14T05:14:00.000-07:00

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

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

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

Let us consider the following hypothetical situations:

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

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

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

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

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

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

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

There is an individual posting the following comment anonymously:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I can see where you are coming from Mr Shanmugam

2009-07-09T02:41:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

2009-07-07T22:02:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

Uniquely Singapore: Papmandering

2009-06-22T20:21:00.001-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tiananmen

2009-06-06T00:10:00.001-07:00

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

Song of Tiananmen Square

2009-06-03T04:28:00.000-07:00

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

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

Dazi Bao: Posters from Tiananmen Square - 1989

2009-06-02T22:16:00.000-07:00

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

Small Questions

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

Child: What gift?
Mother: Freedom.

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

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

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

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

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

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

Child: Am I that child?
Mother: Yes.

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

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

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

2009-06-02T03:12:00.000-07:00

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

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

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

Tiananmen: The Tragedy of the Crops that Stood Up

2009-06-02T02:19:00.000-07:00

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

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

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

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

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

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

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

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

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

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

Secularism - recycling an old article for the page 73 girl

2009-06-01T12:10:00.000-07:00

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

The Works of James Madison

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

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

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

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

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

Tiananmen

2009-06-01T05:04:00.000-07:00

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

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

A sizeable opposition now is an insurance policy for the future

2009-05-28T04:30:00.000-07:00

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

It is a case of survival of the fittest idea.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2009-05-21T05:54:00.000-07:00

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

The Marxist Conspiracy of 1987 - revisiting a legal footnote

2009-05-21T05:13:00.000-07:00

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

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

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

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

The then Chief Justice, Wee Chong Jin stated in the judgment:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so.”

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

The Court went on to rule that:

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

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

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

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

Israelis Look to Obama for peace

2009-05-18T21:42:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

Dendrobium Thein Sein (as amended by the Public Order Act)

2009-03-25T06:15:00.000-07:00

tall and proud;
an assembly of one and more
on a stalk.

Dendrobium Thein Sein

2009-03-25T05:16:00.000-07:00

Tall and proud;
A gathering of more than five
On a stalk.

Two shoes and a Bush

2008-12-15T22:06:00.000-08:00

Reactions from CNN panel as they witness history

2008-11-05T10:55:00.000-08:00

Restoration of America

2008-11-04T23:30:00.000-08:00

I posted the following on the Soulcast blog on 18 August 2006 and it was titled: "Why I admire America". Today with the historic election of Barack Obama as President, I feel compelled to repost it here:

I am not an American. I am probably one of millions of people around this planet seething with anger about American foreign policy and what it has done and what it is doing to the rest of the world. I express negative views about the Bush administration's policies. I oppose the so-called "war on terror" used as a cover for domination of oil resources in the middle east. etc. etc. etc.

An American listening to me might easily assume that I have a lot of disdain for the USA and Americans. But, I'll let you in on a secret.

I love all the great and glorious ideals of freedom and liberty that America stands for... those ideals that are enshrined in its constitution. As someone living in a country where freedom of speech, freedom expression and freedom of assembly have been practically wiped off the public domain (driving most of us into the last frontier of the internet), I have always admired Americans and their ideals. And I guess, that is why it has pained me to witness the gradual erosion of those rights and ideals in the USA since 9/11. If the PATRITOT ACT, guantanamo, domestic surveillance under inherent executive powers and such other assortment of legal and extra-legal measures are utilised to destroy rights in the very place that I looked up to as the beacon of liberty, then what can we say about the future for the rest of us living in repressive societies of varying degrees.

Like the rats migrating to America believing that there are no cats in America (a la American Tail), those of us in other parts of the world have lived under the impression that America is truly a land of the free. The post-9/11 USA looks terrifyingly like an Orwellian nightmare.

But, amidst all of the gloom of the last few years, here is again another reason why I love America......

A Federal Judge has ruled that the NSA wiretapping authorised by the President under supposedly inherent powers is illegal. This is what she said:
“We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all ‘inherent power’ must derive from that Constitution.” “The Government appears to argue here that …. because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.”

Ultimately, even when the Executive appears to assume excessive powers, there is enough sanity and independance within the Judiciary to ensure that the Constitution and the rule of law are not usurped.

Thank God for the sane voices. Long live liberty.

That was posted two years ago as I saw a glimmer of hope in the Supreme Court repudiation of the Bush enchroachment on civil liberties. Today, I hope that the Obama Presidency would usher in a return to America's core constitutional values and by doing so restore that great nation to its rightful status as the beacon of liberty.

The 44th President of the United States of America

2008-11-04T22:55:00.000-08:00

The scenes are euphoric. The moment is historic. A man of partial African origin has become the President-elect of the most powerful nation on this planet. At this point I think the following words of Martin Luther King are apt:

From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!

Thank God Almighty, we are free at last!³

Ultraman can protest at Hong Lim: Superheroes have saved the Singapore Constitution

2008-08-25T05:40:00.000-07:00

Approximately a year ago the following article appeared on Reuters:

Singapore anime figurine protesters meet real police
SINGAPORE, Sept 7 (Reuters) - A protest action by a group of Singaporeans with Japanese anime figurines such as the 5-inch tall Ultramen, robots and monsters with placards met some real-life police in the city-state.
A handful of fans of Japanese anime had turned up at a Singapore public park on August 25 with armfuls of the toys to protest against a clampdown on Internet downloading of anime material by Singapore animation distributor Odex.
The incident was not reported in the local press, but pictures and accounts have started circulating on many blogs and political Web sites. (http://textfiend.net/zerohero/?p=454).
"The police didn't stop us from what we wanted to do. But their being there was enough to intimidate," the event's organiser -- who only wanted to be known by his online moniker Zer0 -- told Reuters by telephone.
He added that police -- who had four anti-riot vans at the scene -- also took down the anime fans' particulars and that they were filmed by plainclothes policemen. A police spokeswoman said she could not immediately comment.
Public protests are rare in Singapore, where outdoor demonstrations are banned and any public gathering of more than four people requires a permit.

What a long way we have come. At the National Day Rally last week, the PM announced that Singaporeans can now protest peacefully at Speakers’ Corner without a permit. It seems that this can be done from 1st September onwards. Civil Disobedience has worked! Singaporeans may have remained a little fearful of entering into the political fray. But, Ultraman and gang are superheroes with supercourageous hearts and not to mention deadly powers, skills, etc. They have done an excellent job in getting the authorities to relent a little. None of the superheroes were arrested or charged. Now, a year later, it is perfectly legal for all Singaporeans to gather and protest at Hong Lim.

So, it is with great pleasure that I commemorate the anniversary of the Anime protest today. :-)

A note to Ultraman: You still cannot protest at the Youth Park.

errrrrr..p - Who wrote the rally speech?

2008-08-17T22:19:00.000-07:00

National Day Rally speeches are not intended to be funny. I am sure, however, that any good speaker would throw in a joke or two in the speech just to hold on to the attention of the audience. So, how is this for a joke:

'When ERP was increased, we also reduced road tax and improved public transport. As a result, many more Singaporeans can now own cars. With more cars on the road, we need to increase ERP to keep traffic flowing.' - PM Lee Hsien Loong, National Day Rally 2008

ERP was intended to reduce traffic.
COE system was also intended to reduce traffic.

According to the Straits Times report today (18 Aug 2008): 'He said that since 2000, the Government has been making it easier for many more Singaporeans to own cars. Vehicle-related taxes have been progressively reduced and more Certificates of Entitlement (COEs), which one must have before purchasing a car, have been released.'

This has made vehicle ownership easier and put more cars on the road.
This has increased traffic.

Solution: Increase the ERP.

And then, when it starts doing its job, implement more policies to put more cars on the road. When when traffic gets worse, increase ERP.

A never-ending spiral of ever-escalating costs. A money tree that really grows. Wow! That's brilliant.

To be fair, I merely read the quote in the Straits Times article online. Something could have been lost in the translation. Perhaps there is some nuance to the words that may be better apprehended if one watches the speech. Perhaps it was a candid admission of a flaw in the policy of making car-ownership easier since 2000 and that something would be done to fix it once and for all and that it would not be turned into a cash-squeezing spiral.

General Elections in 2009?

2008-08-14T05:35:00.000-07:00

The PAP prepares for its elections early. There is nothing unusual in that. I think there are some early signs that the ground is being prepared for the next GE. I know. We had the last one in 2006. But, a GE after 3 years is not unusual in Singapore. I predict that there might be one towards the end of next year.

Recently, MM Lee warned Singaporeans about a freak election wiping out all that has been achieved in 5 years. SM Goh spoke virulently about winning Hougang back and urged members of grassroots organisations (who ought to be non-partisan) to question fiscal capabilities of opposition run town councils. We have seen a series of articles about the Singapore brand of governance, always intended to differentiate ourselves from Western-style liberal democracies and to defend our pragmatic bread and butter theory of governance. (A certain someone said 2000 years ago that men shall not live by bread alone.)

On 21st July 2008, the Parliamentary Elections (Amendment) Bill was tabled in Parliament for the First Reading. Of course, I wondered if they were going to change the electoral system a little bit here and a little bit there. A cursory glance of the Bill reveals that the amendments are directed at overseas voters.

In today’s Straits Times I read that MM Lee has again warned Singaporeans against voting for the opposition. The latest assessment is the Singapore miracle could disappear within 3 to 4 years; not 5 years. In an earlier post, I have addressed this issue of a ‘freak’ election. What I find interesting about the statement in today’s paper is that to placate our desire for more opposition voices, the system might make some accommodations.
'We know that Singapore wants opposition to check the PAP. We'll find a way to have more voices inside the assembly, but not at the risk of voting in a Division 2 or 3 Government.' - MM Lee

I wonder if there are now plans for more Nominated MPs. Maybe, elected Nominated MPs. MPs nominated by a Parliamentary Committee and presented to the people for an island-wide election where the best vote winners get seats. Who knows… I better not give them funny ideas.

I digress… Coming back to my original point, it appears that there is some talk in the air about elections. Not talk of the obvious kind. That would commence when the Straits Times comes out with some opinion piece or other about elections or electoral boundanries. (wait a minute - didn't they recently discuss the GRC system in ST?)
At a time when we are facing inflation and there is a segment of the population that has not experienced wage increases for the last 10 years, some would say it would be foolish for a ruling party to start talking about elections. But, the PAP is very well experienced. They are not going to call for elections the minute talk about elections has been put around. Eventually, they will wait for the 3-year mark to be crossed. The current global economic climate is somewhat uncertain. We will feel some of the effects and it is possible that this would be status quo for the next few years. So, the best strategy would be to get the people to look ahead long term, bite the bullet and stay the course. If this rhetoric of freak elections, our brand of democracy (that we ought presumably be xenophobically proud of), alternative ‘voices’ (not votes) in parliament, economic fragility, etc is maintained for about a year, it will sink into the collective psyche and form part of the overall narrative for the citizenry to accept more PAP years.

But, if the ground is not sweet towards the end of next year, I wouldn’t be surprised if the GE will be held off until a sweet spot opens up. So, since I’m not really a betting man, I’m not making any predictions. :-)

A peek under the carpet

2008-08-01T00:25:00.000-07:00

I saw this on Diary of a Singapore Mind. But, I think it is important enough to be re-posted. So, here it is - the combined effect of inflation and wage freeze. Not all of us are similary squeezed. But, there is a sizeable part of our population that is suffering. I find it painful to watch old people queue up for food. These are our nation builders. They should be enjoying their retirement.

Is the Constitution redundant?

2008-07-24T06:39:00.000-07:00

Dr Ong Chit Chung was the MP for my former constituency, Bukit Batok. I felt that as a mark of respect I should refrain from discussing the issue of a by-election until after the passing of a week. I have met the man on two occasions. Once at a meet-the-people session and once when he made a house visit as part of gathering support for the lift upgrading programme. My condolences to his family.

Now that his seat is vacant, should a by-election be held? What is the legal position?

According to the Today paper, Halimah Yacob (Jurong GRC MP) said that the constitution “does not require a by-election”.

Based on an earlier report from the Today paper, Dr Thio Li-Ann is supposed to have expressed the following views:

No by-elections need to held “until there’s no one left in the GRC”. But while there was no legal requirement, she was of the view that “when you elect a team, you elect a whole team; so since this is not the team anymore, you should see if people want a new team.” – Today, July 14 2008

Let us see what the Constitution says:

Article 49 of the Constitution of the Republic of Singapore
Filling of Vacancies
49. —(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force.
(2) The Legislature may by law provide for —
(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;
(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.

Therefore, if a seat is vacant and it is not because Parliament has been dissolved (i.e. this is not a general election) then the vacancy shall be filled by election.
The Constitution requires that the vacancy be filled by an election. Therefore, when an MP has passed away and there is a vacancy, a by-election must be held.

What is the manner in which the election is to be held? Article 49 states that the election will be in the manner provided by any law relating to Parliamentary elections.

There is a law relating to Parliamentary elections in Singapore. That is the Parliamentary Elections Act (cap 218). The relevant provision of the PEA is as follows:

Writ of election
24. —(1) For the purposes of every general election of Members of Parliament, and for the purposes of the election of Members to supply vacancies caused by death, resignation or otherwise, the President shall issue writs under the public seal, addressed to the Returning Officer.
(2) Every such writ shall be in Form 1 in the First Schedule and shall specify the date or dates (referred to in this Act as the day of nomination) not being less than 5 days nor more than one month after the date of the writ and the place or places of nomination (referred to in this Act as the place of nomination).
(2A) In respect of any group representation constituency, no writ shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.

Section 24 deals with the issuance of a Writ of Election. During a General Election or when a by-election is called, the President issues a Writ of Election. Section 24, Subsection 2A, states that no writ of election shall be issued for a GRC unless all MPs in that GRC have vacated their seats.

On a surface reading of s.24 of the PEA, one would get the impression that there is no necessity to have a by-election. But, isn’t this inconsistent with the Constitution?

Article 49 is clear that the vacancy ought to be filled by election. At most it merely makes allowance for the election to be held in accordance with a procedure prescribed for Parliamentary Elections. The PEA is a statute that prescribes the procedures for parliamentary elections. However, the PEA attempts to assert that no Writ of Election shall be issued in the case of a vacancy of a seat in a GRC. This is clearly inconsistent with the Constitution.

The Constitution does not allow Parliament the discretion to pass a law that would negate a by-election. It allows Parliament to pass laws that would prescribe procedures for the conduct of elections. The words in the Constitution are very clear: “in the manner provided by or under any law”. It does not say that Parliament is permitted to pass laws that prevent the filling of vacancies. It says that vacancies must be filled. The manner in which they are filled can be provided under the law. However, the PEA seeks to exclude a by-election altogether. By providing that the President shall not issue a Writ of Election, the PEA has effectively overridden the Constitutional provision that an election shall be held.

Hence, s.24(2A) of the Parliamentary Elections Act is unconstitutional.

Article 4 of the Constitution:
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.

So, my question to those who claim that the Constitution does not require a by-election or those who try to adopt a ‘practical’ approach to the question of looking after the constituency is this: Have you read the Constitution? If not, please do so. If yes,please explain how the s.24(2A) of the Parliamentary Elections Act could be consistent with Article 49 of the Constitution.

Of Word Games and Human Rights, democracy, rule of law and all that Jazz (Part 2)

2008-07-18T01:06:00.000-07:00

In continuation of my earlier blog entry where i was analysing the Ministry of Law's response to the IBA report, I was planning to do an analysis of paragraphs 7 & 8. These are the relevant paragraphs:

7. The human rights allegations in the Report also have no substance. Singapore had responded in detail to them in our 9 April response to the draft report. Singapore, like nearly all countries, subscribes to the Universal Declaration of Human Rights. Human rights are interpreted and implemented according to the specific histories, cultures and circumstances of each country. Every society must find and decide the appropriate balance between rights and responsibilities for themselves. Human rights groups in IBAHRI have closed ranks with other Western human rights NGOs to prescribe for Singapore and all new countries, especially China, Western norms of liberal democracy as the only way to bring stability and prosperity. They believe that free market policies cannot succeed without Western liberal democracy, and it is their mission to make other societies adopt the Western model.
8. No NGO has greater interest and understanding of Singapore's history and internal balance than Singapore's leaders, to be able to set norms that will work for Singapore. Whatever the shortcomings of the Singapore government, from our record no one has doubted that our overriding objective has been to get Singaporeans better educated, to understand and be exposed to the globalised world we are now in. So we adjust our laws and systems to maximise the benefits from global forces to make Singapore a thriving cosmopolitan city, where Singaporeans and foreigners live and work in a peaceful, safe and open environment. We listen carefully to all advice and then decide the right balance for ourselves. So far we have not done badly.

I find it difficult to digest the idea that IBA is closing ranks with other NGOs or that it doesn't have a right to render a friendly advice. Before I could formulate my thoughts coherently and write about those two paragraphs, I have read the following from Michael Backman in The Age, 17 July 2008:

As you read through the measured paragraphs of the IBA report, you can almost feel the pleading; the advice to a friend: "you're wealthy, you're educated, you're like us now. Take that final step — join us — the community of civil, prosperous societies. Do it, before you embarrass yourself more." But this friend is too proud to listen.

The full article is at http://business.theage.com.au/business/uniqueness-of-perfection-that-sits-to-our-north-20080716-3gdz.html

Whilst I don't agree with every aspect of Backman's article, his characterisation of the IBAHRI report as an advice of a friend is very apt. We have reached a level of development where we can safely cross over to the other side. There is no point in our government repeatedly asserting that given our unique cultural, social, historical, etc. background, we have to chisel a system that works best for us. There is surely a system that worked for us in the economic developmental phase of nation-builidng. But, we must remember that we are building a nation and not a company. The next step is the emotional fulfilment of being Singaporean; of having a sense of belonging; of having a sense of civic responsibility; of having a stake in the decision-making process; of having a say in relation to government policies; of being able to critique the political goings-on without the constant fear (imagined or otherwise) of reprisal lurking next to every thought that we wish to express.

We are more educated. We are economically more well off. But, why must freedom languish in the abyss. Let us lift ourselves and march confidently. Criticisms sharpen our perspectives, broaden our understanding and ensure enlightened governance.

nkosi sikeleli mandela

2008-07-17T23:11:00.000-07:00

Happy Birthday to Nelson Mandela.

As a teen, I was greatly inspired by the South African struggle against apartheid. What a colossal struggle and what an amazing feat against all odds. Mandela is an inspiring icon of our times.
What I most appreciate about South African story is the Truth and Reconciliation Commission set up to heal the wounds of the people. Instead of allowing a cycle of violence to be perpetuated; instead of calling for retribution; instead of unleashing a lynch-mob, the post apartheid leaders embarked on the path of forgiveness and healing. An Amazing stroke of political genius.

Happy 90th Birthday, Nelson Mandela.

The following is a list of quotations from Mandela:

Let freedom reign. The sun never set on so glorious a human achievement.

For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others.

A good head and a good heart are always a formidable combination.

The greatest glory in living lies not in never falling, but in rising every time we fall.

Education is the most powerful weapon which you can use to change the world.

I detest racialism, because I regard it as a barbaric thing, whether it comes from a black man or a white man.

I learned that courage was not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear.

If there are dreams about a beautiful South Africa, there are also roads that lead to their goal. Two of these roads could be named Goodness and Forgiveness.

If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.

If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.

In my country we go to prison first and then become President.

It always seems impossible until its done.

It is better to lead from behind and to put others in front, especially when you celebrate victory when nice things occur. You take the front line when there is danger. Then people will appreciate your leadership.

Let there be work, bread, water and salt for all.

Money won't create success, the freedom to make it will.

There can be no keener revelation of a society's soul than the way in which it treats its children.

There is no easy walk to freedom anywhere, and many of us will have to pass through the valley of the shadow of death again and again before we reach the mountaintop of our desires.

There is no passion to be found playing small - in settling for a life that is less than the one you are capable of living.

There is no such thing as part freedom.

There is nothing like returning to a place that remains unchanged to find the ways in which you yourself have altered.

We must use time wisely and forever realize that the time is always ripe to do right.

And finally, a quote from his trial in 1964:

'I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.'

Inflation may lead to wage increase but there is no evidence the other way around

2008-07-14T04:26:00.000-07:00

What was Mr Tharman talking about?

My layman brain is throbbing with a big, fat headache. Are there any economists out there that can explain?

Our Finance Minister says that wage increases will fuel a second round of inflation. I have been trying to work out the dynamics in my mind as rationally as I can. I have tried speaking to people to see if anyone can shed light on the relationship between wages and inflation. Looks like it can be argued both ways (for and against the Minister’s proposition). After doing a bit of google-searching, I have discovered this excellent policy discussion paper:

“Does Wage Inflation Cause Price Inflation?” by Gregory D. Hess and Mark E. Schweltzer (Policy Discussion Paper, Number 10, April 2000), Federal Reserve Bank of Cleveland

Gregory D. Hess is the Danforth-Lewis Professor of Economics at Oberlin College and an academic consultant to the Federal Reserve Bank of Cleveland.

Mark E. Schweitzer is an economist at the Federal Reserve Bank of Cleveland.

The Abstract of the discussion paper says it all:
“Recent attention has turned from unemployment levels to wage growth as an indicator of imminent inflation. But, is there any evidence to support the assumption that increased wages cause inflation? This study updates and expands earlier research into this question and finds little support for the view that higher wages cause higher prices. On the contrary, the authors find more evidence that higher prices lead to wage growth”

The conclusion that they reach at the end is:
“There is little systematic evidence that wages (either conventionally measured by compensation or adjusted through productivity and converted to unit labour costs) are helpful for predicting inflation. In fact, there is more evidence that inflation helps predict wages. The current emphasis on using changes in wage rates to forecast short-term inflation pressure would therefore appear to be unwarranted. The policy conclusion to be drawn is that inflation can appear regardless of recent wage trends.”

The policy paper can be accessed online:
http://65.89.19.70/research/POLICYDIS/pd1.PDF

On a related note, the European Central Bank recently warned against wage increases and alleged that wage increases would lead to another round of inflation. But, the European Trade Union Confederation has rebutted that. The following is an extract from a Reuters article dated 1 July 2008:

BRUSSELS, July 1 (Reuters) - Trade unions in the European Union chided the European Central Bank on Tuesday for urging caps on wage growth and reiterated their opposition to any interest rate increase.
The European Trade Union Confederation said ongoing wage bargaining or expected wage trends would trigger no second-round inflationary effects -- the feed-through of high energy and food prices into the wider economy -- as feared by the ECB.
"The ECB's concerns on wages are unfounded and dangerous. The ETUC calls upon the ECB to stop using wages as an alibi to hike interest rates," ETUC General Secretary John Monks said in a statement.

So, how did our trade unions respond? In fact, our Finance Minister was speaking directly to one of our trade unions. He was at a dinner organised by the Singapore Industrial and Services Employees’ Union. Mr Philip Lee, the Deputy President of the Union is reported to have said that his union would not push for higher wages. Incidentally, Mr Tharman is the Chairman of the Union’s Council of Advisors. Looks like the Union would be taking the Chairman’s suggestion to heart.

Of word games and human rights, democracy, rule of law and all that jazz

2008-07-11T03:12:00.000-07:00

The International Bar Association has released a report entitled, ‘Prosperity versus Individual Rights? Human Rights, Democracy and the rule of law in Singapore.’ The Ministry of Law has responded swiftly to the report. Let’s see what the Ministry has to say.

From para 2 of MinLaw’s response:“2. From a quick perusal of the Executive Summary, we note that IBAHRI has not taken into account our comments on their draft report, sent on 9 April 2008. We release a copy of our comments previously given to the Chairman of the IBAHRI on the draft report, for your reference.”

It is MinLaw’s assertion that IBAHRI had not taken into account their comments. This is a reference to a letter dated 9 April 2008 from Mark Jayaratnam, Deputy Director of the Legal Policy Division of the Ministry of Law. I went through the IBAHRI report and for good measure I used the ‘search’ tool available for pdf files. Mark Jayaratnam’s letter is referenced by the report 19 times. They have ‘taken into account’ the comments. Although, it is clear that it does not necessarily agree with the comments, IBAHRI has, where appropriate, quoted from the letter to illustrate the Singapore Government’s viewpoint.

The moral of the story… don’t jump to conclusions based on a quick perusal of the Executive Summary. Surely, the Executive Summary is not going to exhibit the government’s comments. I suspect that when MinLaw asserts that IBAHRI did not take into account the comments, what they really had in the mind was that IBAHRI did not agree with their comments. One can take into account an opposing thesis and then disagree. The fact that one disagrees does not mean that one has not taken into account the opposing thesis.

From para 3 of MinLaw’s response:
“3. The IBAHRI Report questions the independence of the Singapore Judiciary. This is contradicted by Mr Fernando Pombo, President of the IBA, who stated in his opening speech at the IBA Conference in Singapore last October that lawyers the world over were coming to Singapore because:
"this country has an outstanding legal profession, an outstanding judiciary, an outstanding academical world in relation to the law".”

It is quite clear from the IBAHRI Report that the allegations directed at the issue of the independence of the judiciary are muted and qualified. IBAHRI does not go all out to claim that the judiciary is not independent. They have acknowledged the high standards maintained by the judiciary and the high standards within our legal system. But, they have sought to address the nagging doubt that is raised by some of the ‘political’ cases that have appeared before the courts. The criticism is measured and I believe it is not inconsistent with the IBA President’s comments at the IBA Conference last year.

“The judiciary in Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases that do not involve the interests of PAP members or their associates. However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient. In addition, it appears that some of the objective characteristics of judicial independence, including security of tenure, separation from the executive branch and administrative independence may be absent from the Singapore judicial system.”

IBAHRI’s comments and their findings do not assert an actual executive interference in judicial affairs. In fact, they are suggesting that there is room for improvement. After all, justice must not only be done, but must be seen to be done.

From Para 4 of MinLaw’s response:
“4. Other independent observers agree. The Political and Economic Risk Consultancy (PERC), which rates Asian countries on their business and legal environments, regularly rates the Singapore judiciary highly. PERC's Asian Intelligence Report 2006 explained that this was because the Singapore judiciary demonstrated three essential elements of judicial independence. First, the courts and individual judges within the system are publicly perceived to be impartial in their decisions. Second, judicial decisions are accepted by contesting parties and the larger public. Third, judges are perceived to be free from undue interference from other branches of government. The IBAHRI Report failed to acknowledge these facts.”

IBAHRI does refer to the PERC Asian Intelligence Report of 2006. In the section D of the Report under the heading ‘Singapore’s International Rankings’, IBAHRI has outline a number of rankings that rate Singapore very highly and some that rank Singapore poorly. Specifically in relation to the judiciary, this is what they say:

“In the judicial and legal system rankings, Singapore has also performed well in international assessments. In Transparency International’s Corruption Perceptions Index 2006, which measures the degree to which corruption is perceived to exist among public officials and politicians, Singapore ranked fifth in the word. Similarly, in an Asian-only based report, the Political & Economic Risk Consultancy’s Asian Intelligence Report 2006, strong commendation of Singapore’s judicial system was made, stating: ‘Within Asia, Hong Kong and Singapore are the only two systems with judiciaries that rate on a par with those in developed Western societies…’

So, the bone of contention for MinLaw is that IBAHRI did not acknowledge all of the accolades given by PERC. Clearly, if IBAHRI intended to carry out an independent study, it would take into account the findings of multiple sources and draw its own conclusions. We can’t expect IBAHRI to rubber stamp PERC’s findings. All that this indicates is that there is a variety of opinion out there about our judiciary. In any event, the point that IBAHRI seems to make is not so much that our judiciary is not independent but rather that there is a perception of lack of independence.

From Para 5 of MinLaw’s response5. The IBAHRI Report did acknowledge that "Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases", but it alleged that for cases that involve "the interests of PAP members or their associates", there were "concerns about an actual or apparent lack of impartiality and/or independence". Instead of substantiating this grave allegation with evidence, the Report argued that "regardless of any actual interference, the reasonable suspicion of interference is sufficient". This is a feeble justification.

Oh my God! Feeble justification. A very important principle of procedural justice is a ‘feeble justification’. Justice must not only be done but must be seen to be done. This principle is basic. The point is best illustrated through using the process of adjudication. If I judge a civil dispute involving my son as the Plaintiff and some other person as the Defendant, I might still be able to do the honourable thing and adjudicate impartially. I might assure the defendant that I will adjudicate based on the law and the evidence before me and that the Plaintiff will be treated as just any other person. It is not inconceivable that a true man of conscience with a deep sense of justice would be able to perform this separation of reason and emotion.

There is a story about a Chola king in Tamil Nadu that has passed into legend and it is eulogised in classical Tamil literature. Manu-needi Cholan had a son who killed a calf by riding his chariot over it. The king had a petition-bell outside the palace. Any person who felt aggrieved may ring the bell and seek justice. The mother of the calf was ringing the bell violently. The king eventually discovered through his aides the full story pertaining to the killing of the calf. He then ordered that his son be punished for the crime that he committed.
This story is always presented as an indication of how an honourable king would behave when adjudicating a dispute. The unstated fact is that impartiality in adjudication is not a norm and is usually an exception. Surely the norm is that a king would have difficulties in being impartial when his own son is involved. So, it is important that the king does not place himself in a position of a judge when his own son is the object of the complaint. However, that old Tamil story seeks to instill the value of impartiality within the ruler rather than to insist that a system of impartiality be created to distance the king from the adjudicative process so that we can guard against the human frailty (which is a norm rather than an exception).

In English law, which we have inherited, there is a deep sense of impartiality in decision-making that has been implanted within civil and criminal proceedings. In fact, instead of taking chances with the ability of fallible human beings in performing the mental gymnastics of separating their personal emotions (fear, favour, vested interests) from the rational processes, there is a principle of natural justice that no man shall be a judge in his own cause. If a judge is faced with a Plaintiff or a Defendant in a case and there is a personal financial or non-financial interest that the judge has in the case, he must not hear the case. The principle extends beyond actual bias and deals with apparent bias as well. Our own courts have in many cases held the principle to be of application in Singapore. Of course, this is a principle that is utilised in the course of judicial proceedings. So, a judgment can be quashed not only where actual bias is proven but also on the basis of apparent bias.

Therefore, in the context of judicial impartiality and/or independence, there is no reason why the standard of apparent lack of impartiality and/or independence should not be applied.

IBAHRI’s assertion is as follows:

“However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient.”

Note that the report does not state that there is no impartiality or independence. It states that there are ‘concerns’ about the ‘actual’ ‘or’ ‘apparent’ lack of impartiality and/or independence. In fact, they were at pains to point out that they were breaking ranks with other NGOs that go overboard in criticising the judiciary in Singapore.
This, however, is the allegedly ‘feeble’ point that they are trying to make: “regardless of any actual interference, the reasonable suspicion of interference is sufficient.”
The point is that it is not enough for a government to assert that there is no interference. Efforts must be made to ensure that the system is not capable of being abused. Efforts must be made to ensure that the system does not allow for the possibility of interference. Efforts must be made to ensure that there can be no reasonable perception of interference. In its report, IBAHRI uses the examples of Judge Michael Khoo, the trend in defamation suits and the Jeyaratnam case that went up to the Privy Council to illustrate the perception of interference. It is clear from the report that there is no actual evidence of interference.

When IBAHRI states that reasonable suspicion of interference is sufficient, they mean that a modern state such as Singapore should strive for a higher governance standard. We can no longer be judged like a third world country. We have first world standards in so many aspects of our life. Is there anything wrong in seeking to have a system of governance that excludes the possibility of executive interference in the judiciary?

From para 6 of MinLaw’s response
6. The cases brought by PAP members usually relate to scurrilous and completely untrue allegations of corruption made against them. Providing clean and efficient governance is a longstanding cornerstone of the PAP Government's policy. Thus defamatory allegations cannot be allowed to rest. The accuser has to prove his allegations. The decisions of the Courts in these cases are matters of public record, and can be analysed. Anyone questioning these verdicts should try to do so by examining these decisions properly, rather than making vague unsubstantiated allegations. What the western media continually criticise is that Singapore does not adopt Western, i.e. American, defamation laws that give the media freedom to report libellous untruths without liability to pay damages. It is also absurd to suggest that honourable and upright judges in commercial cases become compliant and dishonourable when dealing with defamation cases involving government ministers.
I will be fair to our judiciary in those defamation suits. The decisions have remained within the rational limits of the English law of defamation that we have inherited. Using defamation suits alone as a basis for alleging the perception of lack of judicial independence would be insufficient. IBAHRI does not rely on the defamation suits alone. In fact in relation to defamation suits, the bone of contention appears to be that statistically, PAP litigants have received much higher damages compared to non-PAP litigants. Incidentally, the IBAHRI statistics are a bit outdated. They end at 1999. IBAHRI also takes issue with the Summary Judgment procedure that is available under our Rules of Court for defamation suits. When a matter is disposed via Summary Judgment, the matter is not heard in open court. In suits involving politicians, this can run counter to the need for the public to view the proceedings so that they can form their own opinion and so that no allegations of executive interference can be made in the judicial process. It is from this perspective that IBAHRI have made their observations vis a vis he defamation suits.

Para 7 and para 8 of MinLaw’s response deserves a separate comment which I will attempt to do in a separate blog.

The Wisdom of a 15 year old

2008-07-04T02:13:00.000-07:00

This is definitely the quotation of the week (maybe, it might even be the quotation of the year):
Jarret Huang (Secondary 3 student from Raffles Institution): "The sense of persecution is not a reactive measure in my situation but rather it is a pre-emptive measure taken such that certain things which are deemed incorrect cannot be said in certain situations.”

The red-herring that is often thrown at us if we directly question a minister about the curtailment of the freedom of expression is that we have false perceptions of persecution/restricions/etc. The restrictions that exist are purely in the interest of public order and safety and also national security. The restrictions do not prevent legitimate criticism.

Jarret Huang's response to Dr Vivian Balakrishnan's question about whether he feels persecuted hits the mark perfectly.

There is a political climate that has been carefully constructed and repeatedly reinforced that ensures that we practice self-censorship most of the time. It is not persecution but the fear of possible persecution that drives the self-imposed silence that many of us are guilty of.

Once in a while, a little boy would stand up and tell the Emperor that he is not wearing any clothes. :-)

Is this some kind of tennis match?

2008-07-04T00:44:00.000-07:00

I was half-expecting a response along the lines of what Ms Yeong Yoon Ying has come up with. TODAYonline has received a letter from her explaining the “murderers, robbers, child molesters and rapists” allegation that she raised in her letter to the Wall Street Journal.

Firstly, the Wall Street Journal had attempted to report about the Lees v Chees defamation suit and they had made statements to the effect that Singapore is lacking in terms of political freedoms. In response to that article, Ms Yeong (MM Lee’s Press Secretary) wrote to the WSJ to set the record straight. In her letter she said:

The case had nothing to do with political freedom. It was for defamation arising from the Chees' false claims that Prime Minister Lee Hsien Loong and Lee Kuan Yew are criminals and corrupt. Despite being advised by a Queen's Counsel, they failed to produce any credible defence or evidence to back up their claims.
.
Having lost, Dr. Chee in open court then called the Singapore leaders "murderers, robbers, child molesters" and "rapists."

My initial reaction to the allegation that Dr Chee said that the Singapore leaders were murderers, etc was: No Way! It can’t be! He wouldn’t have said that. If he did, he must have been insane. Maybe he was taken out of context and he might have said something else altogether different.

Then came Chee Soon Juan’s assertion that the statement by Ms Yeong was untrue. In my mind I was wondering: Hmm.. If it is untrue, how did Ms Yeong bravely make such an assertion. Is there going to be some hanky panky with the transcript. Nothing as blatant as that would happen. Surely, it wouldn’t get that ugly.

Now, Ms Yeong has clarified by producing an extract of the court transcript. The Today paper wrote on 3rd July about this exchange between Ms Yeong and Dr Chee. Today, 4th July, the paper has published an article clarifying Ms Yeong’s position. The relevant part of the transcript is as follows and according to Ms Yeong reproduced from p.115 of the court transcript of the hearing on 28 May 2008:

Mr Davinder Singh: “ ... And to conclude on Dr Chee’s submissions, he says that he doesn’t wish Mr Lee Kuan Yew and Mr Lee Hsien Loong ill. In that same breath, he says he stands by The New Democrat article, which alleged that they are ‘criminals, corrupt, and covered up matters in the NKF’. And under his breath he’s now just said ‘murderers and robbers’.”

Dr Chee: “And rapists, too, you might as throw it in, you know, right? Child molesters”.

Mr Singh: “And this is the man who says “I don’t wish them ill”.

What’s wrong with this picture? Most readers would instantly realise that Dr Chee was being sarcastic. It is the kind of situation where a frustrated man sitting down listening to another person making allegations would remark sarcastically. Those words should not have been taken out of context and played out the way that MS Yeong has done. She says: “having lost, Dr Chee in open court then called the Singapore leaders ‘murderers, robbers, child molesters’ and ‘rapists’.” In the context of the transcript I find it difficult to come to the conclusion that Ms Yeong has come to.

I feel like I am witnessing a couple of kids engaged in a senseless quarrel and I just want to walk up to them and say: STOP IT! This is enough!

For his part Chee Soon Juan should not have responded to Ms Yeong’s letter in the manner that he did. This is what he said:
“The outrageousness of Madam Yeong's lie borders on the comedic. Mr Lee Kuan Yew, or his counsel, is in possession of court transcripts and audio-recordings that would show whether I had uttered those words. He must now produce the part of the transcript that quotes me saying those words or he risks destroying his own credibility.”

I’m sure he would have known that he used the words ‘rapists’ and ‘child molesters’ at least. Even if we assume that he did not say ‘murderers’ and ‘robbers’ and that this was stated by Dewinder Singh, then it is clear that he had at least said ‘rapists’ and ‘child molesters’. Instead of responding by challenging Ms Yeong to produce the transcripts, he should have just set out the context in which the words were used and clarified the issue. We don’t need this kind of back and forth between Ms Yeong and Dr Chee. This is like a tennis match now. But, I guess given the fact that it looks like the words were taken out of context, Ms Yeong has hit a rather week shot into Dr Chee’s side of the court. Will Dr Chee go in for the kill or will he slip before he hits the ball?

Uighurs are not enemy combatants

2008-07-01T20:05:00.000-07:00

Here's the story that doesn't make the news much. Amongst the detainees at Guantanamo are Uighurs (ethnic minority in Western China). These persons were living in Afghanistan due to persecution in China and were handed over to the Americans by the Pakistanis for a bounty. It is easy for politicians to use the broad brush of executive prerogative and mark a person out as an 'enemy combatant' or a 'terrorist'. After that these people languish indefinitely under sanity sapping conditions.

It is good to see that the US courts are making decisions here and there upholding habeas corpus and determining the issue of 'enemy combatants'.

The following article is from the Human Rights Watch:

Uighurs at Guantanamo
By Joanne Mariner, terrorism and counterterrorism director, published in FindLaw

June 30, 2008

In a ruling that is years late, but is nonetheless brave and important, a federal appellate court held last week that a prisoner at Guantanamo has been wrongly deemed an “enemy combatant.” Huzaifa Parhat, the prisoner whose fate was at issue in the case, has been in US custody at Guantanamo for over six years.

Parhat is an ethnic Uighur, part of a Muslim minority from western China. Like the 16 other Uighurs who remain in military detention at Guantanamo, Parhat claims that he was never a combatant and that he ended up in US custody by mistake. Parhat says that he was living with a group of other Uighurs in Afghanistan when the 2001 war started, that his group was led across the border to Pakistan, and that the Pakistanis sold them to the United States for a bounty.

US officials realized pretty quickly that the Uighurs were no threat. Indeed, Parhat and others were reportedly determined to be eligible for release from Guantanamo more than four years ago. The reason that they remained at Guantanamo was that they could not return to their home country, and no other country—including the United States—would agree to accept them.

Parhat and the other Uighurs would risk serious persecution if returned to China. Since their continued imprisonment at Guantanamo represents an unjustifiable wrong, and they have nowhere else to go, they should be paroled into the United States.

Chinese Fears of “Splittism”

Uighurs in China face imprisonment, torture, and even execution for what the Chinese government deems to be “separatism” or “splittism.” Having fled to Afghanistan under the rule of the Taliban would be sufficient, under the Chinese government’s standards, for the 17 Uighurs at Guantanamo to be viewed as a dangerous threat.

The Uighur population of western China is under tight Chinese control. Because the Chinese fear that ethnic Uighurs want independence for their region of the country, the government has taken draconian steps to repress Uighur nationalist sentiment. As Islam is perceived as underpinning Uighur ethnic identity, the government also represses most outward expressions of Islam.

For Uighurs to celebrate Muslim religious holidays, study religious texts, or show their religious identity through their personal appearance are acts that are strictly forbidden at state institutions, including schools. The Chinese government vets who can be a cleric, what version of the Koran is acceptable, where religious gatherings may be held, and what may be said at such gatherings.

Even the most peaceful Uighur activists, if they practice their religion in a way that the authorities deem inappropriate, face potential arrest and torture.

Whether to Return the Uighurs to the Chinese

US officials have made it clear that they will not send any of the Uighurs to China, but this option was once deemed within the range of possibility.

In a document that was released via a Freedom of Information Act (FOIA) request, an unnamed FBI official who worked at Guantanamo in late 2002/early 2003 mentioned the idea. “At the time of my TDY [temporary duty at Guantanamo],” he said, “US officials were considering whether to return the Uighurs to the Chinese, possibly to gain support for anticipated US action in the Middle East. The Uighur detainees at GTMO were convinced that they would be immediately executed if they were returned to China.” The next paragraph in the document was entirely censored.

In a document contained in an earlier FOIA release, an unnamed FBI official described an interview with a Uighur detainee, stating that “[CENSORED] advised that he still has faith and trust in America and please do not return him to [CENSORED].” The censor’s codes show that the first excision in the sentence was made to hide a person’s name, but that second excision was made because the information that would have been revealed—no doubt the word “China”—was considered classified. It is sad that US classification authority was used to protect the Chinese from embarrassment.

While no Uighurs were ever returned to China—and in fact the US managed to convince Albania to take five of them in 2006—the US did allow Chinese officials to visit Guantanamo at one point and interrogate the Uighur detainees.

“They didn’t treat me good,” one Uighur explained, when asked about the visit in a 2004 administrative proceeding. Saying that the Chinese officials made threats, he described how they photographed him and said that he and the other Uighurs were going to be sent back to China.

Walking in Circles

The appellate court’s opinion in Parhat’s case has not yet been released because it, too, contains classified information, but a redacted version is being prepared. Importantly, in the one-page order that has so far been released, the court told the government either to release or transfer Parhat, or—in what would be a pointless and agonizing exercise at this point—to hold a new set of administrative proceedings for him.

In the meantime, Parhat is living a life of useless tedium. He recently described his daily routine to his lawyer, who wrote:
Wake at 4:30 or 5:00. Pray. Go back to sleep. Walk in circles—north, south, east, west—around his 6-by-12 foot cell for an hour. Go back to sleep for another two or more hours. Wake up and read the Koran or look at a magazine (written in a language that he does not understand). Pray. Walk in circles once more. Eat lunch. Pray. Walk in circles. Pray. Walk in circles or look at a magazine (again, in a foreign language). Go back to sleep at 10:00 p.m.
Abdusemet, another Uighur at Guantanamo, has described days on end of doing nothing more than eating, praying, pacing, and sitting on his bed. “I am starting to hear voices, sometimes. There is no one to talk to all day in my cell and I hear these voices,” Abdusemet told his lawyer, worriedly.

“What did we do?” he asked. “Why do they hate us so much?”

PAP, The Opposition & the Resilience of Singapore

2008-06-27T00:52:00.000-07:00

PAP, The Opposition & the Resilience of Singapore

MM Lee’s latest warning about Singapore without the PAP is nothing new. It has always been the election scare tactic. Don’t vote for the opposition because you are bored, because you simply want to rebel, because you just want to voice your discontent over particular issues. You just might vote the PAP out of power and Singapore’s success is wholly attributable to the PAP and without them Singapore will be in ruins.

Firstly, this is intended to be a statement about the calibre of the current opposition. Singaporeans are not unintelligent. We know that the current opposition leaders and their party members do not have the same kind of political experience as the senior members of the PAP. But, a long time ago when the PAP was itself an opposition party, its leaders did not have the political experience of people like the late David Marshall. The point is that given Singapore’s political climate of single party dominance, I would not be able to honestly assert that the opposition members of parliament or the members of opposition parties that are not in parliament have the same experience as the current ministers.

Whilst opposition candidates may not have the experience of leading and running ministerial departments, I don’t think anyone can honestly deny the fact that they have their hearts in the right place. Being critical of the government is not easy in Singapore. Being concerned enough about our fellow citizens to the point of being openly critical of our government is also not easy. And where that concern for the fellow man leads a person to join an opposition party and stand for elections or to become an activist in pushing the envelope insofar as our freedoms are concerned, that person definitely has passion for the nation.

The figures that have arisen as opposition leaders in Singapore from 1981 till the present have taken upon themselves an unenviable task. They have done so and continue to do so despite the political and legal impediments facing them. Their courage must be applauded and as rational beings we must also ask ourselves where such courage could come from. Unless these were men and women of exceptional willpower and passion for the nation, they could not have displayed and could not continue to show such courage.

For the above reasons, I find it difficult to be dismissive about our opposition’s heart. There will be those who say that the heart alone is not sufficient when it comes to leadership, especially leadership of the nation. I will concede that experience counts for sure. But, passion is a precondition for effective leadership. We are not talking about corporate management here. We are talking about a country and its citizens; each one of whom is a living, breathing human being with dreams and hopes. Leaders must not be elitist, other-worldly technocrats. Leaders must connect with the deeper concerns of the common man.

Our First Cabinet was not composed of men of great experience. They were men of great passion and vision. MM Lee was one of them. His passion and the passion of his generation of leaders guided the passion of that generation of adults; the adults of the 60s and 70s who were instrumental in producing the Singapore miracle.

When we look for the next generation of leaders who would lead Singapore forward, I dare say that it would be such passion for the nation that would be of incalculable value.

Secondly, we all know that the PAP is not going to go out of power all of a sudden. As much as I am not frightened by such a prospect, I know that there are many Singaporeans who shudder at the thought of a ‘freak’ election victory for the opposition. (note: it is only freak from the PAP’s perspective. One has to be in power for a long time before formulating a view that the people’s verdict is somehow misguided in order for it to be labelled as ‘freak’) The opposition has for some time been adopting what has been termed as the bye-election strategy. They openly declared this as a strategy when they rightly assessed the feeling on the ground. Many people wanted to have their voices heard. But, they didn’t want the PAP to be out of power. By contesting less than half the seats in Parliament, the opposition has been delivering election victories to the PAP on nomination day. Election day was presented by the opposition as an opportunity for people to send more opposition MPs to Parliament.

That opposition strategy has been neutered in part by GRC system. Each GRC team is led by a minister. The loss of a team equates to the loss of a minister. The worries that voters may have had about change in government was effectively channelled towards a worry that a minister might be sacrificed if a GRC team was voted out. Even then voters fired brave salvos in the form of Eunos GRC and Cheng San GRC albeit unsuccessfully.

The point that I am getting at is that a ‘freak’ election victory for the opposition is not possible under the bye-election strategy. Even if the PAP had lost all the seats contested in the last elections, they would have still formed the government. There would have been a sizeable opposition in Parliament that would have been able to keep the Ministers on the toes. Other PAP MPs would replace those Ministers that had lost their parliamentary seats. I am sure the PAP is not going to say that their MPs don’t have that calibre. Such an argument would be counter-productive for the party.

When more and more opposition members gain a foothold in Parliament, they would have ample opportunity to gain political experience and their parties would be better able to build up a shadow government. A shadow government would be the ultimate step in building an effective alternative to the PAP. Having an effective alternative to the PAP is a priority for us as citizens. We cannot assume that good governance is a given. We cannot assume that good governance will always be a PAP trademark. What if the PAP slackens? What if there is complacency? What if there is negligent leadership? We will, in the end, blame ourselves for not having an effective alternative ready and able to take over from the PAP. We will blame ourselves for the mother of all complacencies: electoral complacency.

Voters need to be far-sighted and realise that the gradual rise of opposition MPs in Parliament will be better for Singapore’s future.

Thirdly, and this was clearly not intended by MM Lee, the warning unintentionally implies a lack of faith in our Civil Service. Imagine this scenario. Take away all our existing Ministers. Place all the opposition party leaders in Ministerial positions. The system is not going to grind to a halt. There is a reason why Civil Servants are expected to be neutral and non-partisan. Political parties may come and go. Ministers may come and go. But, the civil servants are always there. They are the ones that ensure the smooth transition of power from one government to the next. Ministers themselves don’t have insights into the workings of a Ministry without the input of their civil servants. To worry about a ‘freak’ election result is to worry about the resilience of our civil service. I believe it is robust enough to carry on functioning effectively whatever party may come to power. If the PAP’s worry is that policy shifts may harm the country’s prosperity, then this is an argument about the policies that are best for the country. These policies will vary from party to party and the policy issues raised by the different parties ought to be debated effectively and openly in public. If the PAP’s worry is about experience in leadership, then I would backtrack to my earlier comments.

The confluence of a robust, resilient and experienced Civil Service and an opposition with passion for the nation (minus the experience) would produce sufficient conditions for the continued positive evolution of our society and nation.

There is one further point that I want to make and I will draw it from a conversation a few days ago. My mother-in-law remarked whilst watching the news that we continue to be able to live with a roof over our heads because MM Lee is still alive. That might very easily be the view of her generation. I’m sure my parents would readily agree. I too, for my part, would not refute the contributions of MM Lee and his generation of leaders. But, too often, the meta-narrative of this nation tends to underplay the contributions of an entire generation of ordinary citizens: the adults of the 1960s and 1970s. The hardest work of nation-building was done by them. They are our unsung heroes.

In the history of any nation or society, its resilience is not dependant on its leaders. Its resilience is found in the collective will of its people. Leaders marshal that will. They don’t exist independent of that collective will.

Of Care and Complacency

2008-06-25T05:46:00.000-07:00

A couple of months ago I was returning from a trip to Hong Kong. I enjoy the convenience of going through the automated lane at the airport. Place your passport on the reader; make your way through; place your thumb on the second reader; you are cleared. Very efficient. Very fast. And foolproof.

On that occasion, there was a queue at the automated lane. But, I figured it would move fast and definitely faster than the manual lanes and besides that day there were long queues in all the lanes. So, I joined the automated lane. It was taking a while for each person to get through. A chap standing in front of me remarked to the officer who was trying to assist something along the following lines.... Wah! Nowadays the security is so tight ah? Singapore passport also the machine is taking so long to check.
Obviously it was a snide remark about the glitches in the device that did the scanning. It drew chuckles and smiles from the rest of us in the queue. The officer obviously treated it rather seriously. He said something to the following effect..... Singapore must be careful now. We cannot afford to make any more mistakes.

I'm not quoting verbatim. My memory is not that perfect. But, I must say that it is pretty ironic that all those claims of being careful gave way to a lapse. To be fair, the lapse took place at the budget terminal.
Budget terminal = budget service = budget security
:-)

Any lapse by any department in the Home Team is a failure which all in the Home Team family must bear

2008-06-25T05:07:00.000-07:00

I'm sure the Home Minister did not mean it when he said, 'Any lapse by any department in the Home Team is a failure which all in the Home Team family must bear'. If he did mean it and if this was not a rapidly and loosely drafted statement, then the following meanings are possible:

a) The 61 year old gentleman slipping through immigration (of all the places I would have thought this would be the most secure and in all honesty I have been complacent about the level of security there) using his son's passport was not a lapse;

or

b) The incident was a lapse but not a lapse by the ICA;

or

c) It was a lapse by the ICA but the department is not part of the Home Team

or

d) The ICA is part of the Home Team but the Home Minister is not as his is a political office and he is himself not a member of the civil service

or

e) The Home Minister is acknowledging that as a member of the Home Team family he is going to bear the responsibility for the lapse of a 'family member'.

Given the fact that the five possible interpretations are unlikely to constitute the intended consequence of what he said, I would venture that the Home Minister did not mean it when he said, "Any lapse by any department in the Home Team is a failure which all in the Home Team family must bear"
(Unless, of course there is a different sense in which he said it and my plebian brain is unable to logicaly process that meaning out of the statement). :-)

I don't envy the Home Minister. This has been his annus horribilis... and we are just reaching the halfway mark.

The Reality at the UN

2008-06-20T05:17:00.001-07:00

I found this great quote about the real work that the UN does... This couldn't be further from the truth... The UN is unfortunately a toothless organisation held hostage by the power of the veto at the Security Council and the behind-the-scenes dealings of powerful nations.

Carlos Romulo (former president of the General Assembly of the UN):

"If there is a problem between a weak nation and another weak nation and the UN takes action, the problem disappears. If there is a problem between a strong nation and a weak nation and the UN takes action, the weak nation disappears. If there is a problem between a strong nation and a strong nation and the UN takes action, the UN disappears."

Judging those who judge the judiciary

2008-06-20T04:46:00.000-07:00

Chee Soon Juan's strenuous and persistent questioning of witnesses whilst the court had disallowed those questions gave rise to a contempt conviction.
Gopalan Nair's vitriolic verbal assualt making reference to the judge who presided over the case has resulted in a charge under the Penal Code of insulting a public officer. Both of these cases give rise to the fact that there is an interest in protecting the integrity of the judicial system and an opposing public interest in being able to engage in free criticism of the judiciary and to subject them to scrutiny.

Here are some interesting quotes about insults leveled against the judiciary or contempt of court generally. It is quite a task to balance the need for an unimpugned judicial system as a cornerstone of constitutional governance and the need for free expression and free speech so that a little boy can still cry out that the emperor wears no clothes.

In Re S.Mulgaokar(1978) 3 SCC 339.
“The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment, because Judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection – for a wide discretion, range of circumspection and rainbow or public considerations benignantly guide that power” - Justice Krishna Iyer

Ambard v. Attorney General for Triandad and Tobago, 1936 AC 322.
"The path of criticism is a public way. The wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men." – Lord Atkin

In Re S.Mulgaokar(1978) 3 SCC 339.
“A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to public regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage – a delicate but sacred duty whose discharge demands tolerance and detachment of a higher order”. – Justice Krishna Iyer

Misreporting by Reporters Without Borders

2008-06-18T04:42:00.000-07:00

Reporters Without Borders – they have again got their facts wrong.

In an article entitled “US blogger Gopalan Nair still waiting the outcome of trial” dated 17th June 2008, Reporters Without Borders (RWB) makes the following assertions at two different parts of the article:

Firstly,
“This trial is a farce. Gopalan Nair appeared today before one of the plaintiffs herself”, the worldwide press freedom organisation said. (that’s a reference to RWB)

Secondly,
The case of “insulting” Belinda Ang Saw was heard today with the judge herself presiding over the hearing.

The second sentence is hyperlinked to an AFP article. The AFP article does not state that the matter was heard before Justice Belinda Ang. I believe that the writer of the RWB article must have misunderstood the AFP article. The following is the relevant extract from the AFP article:

In the blog, Gopalan Nair criticised a recent legal hearing at which Singapore founding father Lee Kuan Yew and his son, Prime Minister Lee Hsien Loong, testified in a defamation case they filed against an opposition party.
Nair, 58, is charged with insulting Justice Belinda Ang Saw Ean by saying she was "prostituting herself during the entire proceedings, by being nothing more than an employee of Mr Lee Kuan Yew and his son and carrying out their orders," a court document said.
Justice Ang presided over the hearing.

I believe that the AFP article was making the assertion that Justice Ang presided over the defamation hearing and not Mr Nair’s mention. According to Mr Chia Li Tik’s blog, the matter was mentioned at the subordinate courts on 16th June 2008 and the DPP had requested for the case to be transferred to the High Court. The case has now been fixed for further mention on 14th July 2008 at Court 26 presumably pending the fixing of a date for Pre-Trial Conference at the High Court.

RWB seems to have jumped the gun in their enthusiasm to paint a less than flattering picture. This kind of reporting does not, in any way, assist in promoting the truth.

Gopalan Nair’s original charge has been replaced (according to AFP).

2008-06-16T05:26:00.000-07:00

Judging from an AFP report on the net which is about 4 hours old, Gopalan Nair’s original charge of insulting a public officer via sending her an email has not been substituted. The new charge is apparently one of insulting via the blog contents and it is now under the Penal Code as opposed to the Miscellaneous Offences (Public Order and Nuisance) Act.

In my earlier blog entry, ‘From Folly to Freedom’ dated 5th June, I had said the following:

I’m a little curious as to the precise wording of the charge against him. If the charge was worded in exactly the same manner as indicated in parenthesis above in the AFP report, then there is a serious slip in the charge.
If the charge is eventually amended to one involving the contents in the blog and not the alleged email, then there is likely to be an interesting jurisdiction issue.

My reason for stating the above was that from multiple reports both on the net as well as in the papers, I got the impression that the charge probably stated the email sent by Gopalan Nair contained the words ‘prostituting herself’. I thought it odd that he would have sent an email to her and used the word ‘herself’ instead of ‘yourself’. I couldn’t help but wonder if the person drafting the charge had made a mistake of quoting from the blog instead of quoting from any alleged email. Of course, given Gopalan Nair’s assertion that he did not send the alleged email to the judge, there arose the possibility that there was in fact no such email to quote from and hence the blog became the source of the wording in the charge. The inevitable slip might have occurred.

Of course, there is the legitimate possibility that the charge did not attempt to quote verbatim from the alleged email and that it had paraphrased the email to write in the 3rd person as ‘herself’ instead of the alleged email content which may have been ‘yourself’. Who knows?

Anyway, the story emanating from AFP is that the original charge has now been replaced. So, it is safe to assume that he is now facing one charge in relation to his blog comments about Justice Belinda Ang and another charge in relation to an email sent to Justice Lai Siu Chiu 2 years ago.

On another note: Gopalan Nair neither admits nor denies sending an email to Justice Lai Siu Chiu. But, he has been quite unequivocal in his denial of sending an email to Justice Belinda Ang. The following is from his blog entry:

As far as the Email to Judge Lai Sui Chu, this was more than 2 years ago. I cannot remember if I sent that Email. Even if I did, I was not in Singapore at the time. I was physically in Fremont, Northern California. If I sent the Email, it was from Fremont Northern California. From 2006 March to present I had traveled to Singapore on at least one occasion on November 2006 without incident.

So, he is saying that he may or may not have sent the email. Memory is not perfect. I guess that is a possible explanation. But, of course, the inevitable gut feeling that one gets here is that since he did not deny the email outright, he is either conscious of the fact that he has sent such an email or of the fact that he had composed such an email that he was contemplating the possibility of sending and did not in the end send it out (or he can’t remember if he in fact sent it). Who knows?

Impeachment of Bush

2008-06-12T23:45:00.000-07:00

Dennis Kucinich tabled an impeachment motion in the House of Representatives. By a vote of 251-166, the House was pushed the impeachment motion aside to the Judiciary Committee. That is going to be equivalent to sweeping it under the carpet. The motion that he brought against Dick Cheney last year has still been languishing in the Judiciary Committee wihtout any semblance of motion.

What is disgusting is that the Republican dominated House was eager to impeach Clinton for a lie in relation to his sexual escapades but the current Democrat dominated House is unwilling to impeach Bush for lies that have resulted in the deaths of thousands of American soldiers and not to mention the unaccounted for civilian deaths in Iraq.

There are those who would argue that Bush is at the end of his term and it doesn't serve any useful purpose in impeaching him at this stage. But, it would serve a very useful purpose. It would send a clear message to all future Presidents that they cannot get away with the outright deception that the Bush administration practised.

Senate Intelligence Committee has itself recently concluded that the Bush administration had deliberately painted an inaccurate picture to justify launching the Iraq war.

Senator Jay Rockefeller (Chairman of the Committee): "In making the case for war, the administration repeatedly presented intelligence as fact when in reality it was unsubstantiated, contradicted, or even non-existent. As a result, the American people were led to believe that the threat from Iraq was much greater than actually existed." "There is no question we all relied on flawed intelligence. But, there is a fundamental difference between relying on incorrect intelligence and deliberately painting a picture to the American people that you know is not fully accurate."

Anyway, it looks like Kucinich's valiant attempt is going to remain just that: an attempt.

Here are the Articles of Impeachment that he tabled in the House:

Article I
Creating a Secret Propaganda Campaign to Manufacture a False Case for War Against Iraq
Article II
Falsely, Systematically, and with Criminal Intent Conflating the Attacks of September 11, 2001, With Misrepresentation of Iraq as a Security Threat as Part of Fraudulent Justification for a War of Aggression
Article III
Misleading the American People and Members of Congress to Believe Iraq Possessed Weapons of Mass Destruction, to Manufacture a False Case for War
Article IV
Misleading the American People and Members of Congress to Believe Iraq Posed an Imminent Threat to the United States
Article V
Illegally Misspending Funds to Secretly Begin a War of Aggression
Article VI
Invading Iraq in Violation of the Requirements of HJRes114
Article VII
Invading Iraq Absent a Declaration of War.
Article VIII
Invading Iraq, A Sovereign Nation, in Violation of the UN Charter
Article IX
Failing to Provide Troops With Body Armor and Vehicle Armor
Article X
Falsifying Accounts of US Troop Deaths and Injuries for Political Purposes
Article XI
Establishment of Permanent U.S. Military Bases in Iraq
Article XII
Initiating a War Against Iraq for Control of That Nation's Natural Resources
Article XIIII
Creating a Secret Task Force to Develop Energy and Military Policies With Respect to Iraq and Other Countries
Article XIV
Misprision of a Felony, Misuse and Exposure of Classified Information And Obstruction of Justice in the Matter of Valerie Plame Wilson, Clandestine Agent of the Central Intelligence Agency
Article XV
Providing Immunity from Prosecution for Criminal Contractors in Iraq
Article XVI
Reckless Misspending and Waste of U.S. Tax Dollars in Connection With Iraq and US Contractors
Article XVII
Illegal Detention: Detaining Indefinitely And Without Charge Persons Both U.S. Citizens and Foreign Captives
Article XVIII
Torture: Secretly Authorizing, and Encouraging the Use of Torture Against Captives in Afghanistan, Iraq, and Other Places, as a Matter of Official Policy
Article XIX
Rendition: Kidnapping People and Taking Them Against Their Will to " Black Sites" Located in Other Nations, Including Nations Known to Practice Torture
Article XX
Imprisoning Children
Article XXI
Misleading Congress and the American People About Threats from Iran, and Supporting Terrorist Organizations Within Iran, With the Goal of Overthrowing the Iranian Government
Article XXII
Creating Secret Laws
Article XXIII
Violation of the Posse Comitatus Act
Article XXIV
Spying on American Citizens, Without a Court-Ordered Warrant, in Violation of the Law and the Fourth Amendment
Article XXV
Directing Telecommunications Companies to Create an Illegal and Unconstitutional Database of the Private Telephone Numbers and Emails of American Citizens
Article XXVI
Announcing the Intent to Violate Laws with Signing Statements
Article XXVII
Failing to Comply with Congressional Subpoenas and Instructing Former Employees Not to Comply
Article XXVIII
Tampering with Free and Fair Elections, Corruption of the Administration of Justice
Article XXIX
Conspiracy to Violate the Voting Rights Act of 1965
Article XXX
Misleading Congress and the American People in an Attempt to Destroy Medicare
Article XXXI
Katrina: Failure to Plan for the Predicted Disaster of Hurricane Katrina, Failure to Respond to a Civil Emergency
Article XXXII
Misleading Congress and the American People, Systematically Undermining Efforts to Address Global Climate Change
Article XXXIII
Repeatedly Ignored and Failed to Respond to High Level Intelligence Warnings of Planned Terrorist Attacks in the US, Prior to 911.
Article XXXIV
Obstruction of the Investigation into the Attacks of September 11, 2001
Article XXXV
Endangering the Health of 911 First Responders

Ron Paul drops out of Republican race

2008-06-12T23:32:00.000-07:00

Ron Paul, the Libertarian leaning Republican, has officially dropped out of the Republican race. Although realistically he was not going to get the necessary delegates to vote for him at the Republican Convention later this year, Ron PAul kept the hopes of his supporters alive by keeping himself in the race.

There was a stage towards the end of last year and the beginning of this year when the net was abuzz with the Ron Paul Revolution. There appeared to be this new hope on the horizon. He was the most popular candidate on the internet. But, the MSM hardly gave him any credence. They won in the end. They succeeded in muzzling his voice and his message. He is, in my view, the person best suited to be President and the one person whose uncompromising and principled views would have done a great deal of good for America and the world.

Well, Ron PAul has announced that he will shift his focus now to maintain a long term campaign for liberty. I guess in the larger scheme of things the Presidential campaign is not the be all and end all.

2008-06-11T21:48:00.000-07:00

What can I say? (without being charged?)

2008-06-11T02:15:00.000-07:00

The Gopalan Nair saga (whatever the wisdom or lack of it that got it started) highlights another more important issue: The freedom to express one's views. How important is this right? What is the extent to which this right can be stretched?

Rights are the antidotes to power.

Often it has been stated that the freedom of speech cannot be unlimited; that freedom must be accompanied by responsibility. Whilst a person has the freedom to speak, he doesn’t have the freedom to hurt or harm. Instigating racial and religious hatred and creating social tensions in the name of free speech is a misguided use of the freedom. So far so good. I’m willing to concede.

What about the use of free speech against public officials?

Constitutional Rights are not rights operating in a vacuum. They are relational. The citizenry’s relationship with the state is spelled out in the form of rights. These are not weapons that we use against our fellow men nor are these empty propositions that we can claim as the badge of a free people. These rights are protections. Protections against potential abuse. Governance entails giving power to a few to administer the many. Societies are complex and governance of all by all is impracticable. So, for want of a better alternative, we confer authority upon those who govern to govern for out benefit. In recognition of the fragile and fallible nature of the human will, we have created systems. The objective and abstract system is intended to ensure that even if human fallibility were to creep into governance, the system would extract and terminate that virus. The Constitution is the anti-virus software running in the background and assisting us in isolating human failings as and when they crop up.

The Freedom of Speech is one such tool. This freedom’s purpose is not to enable an individual citizen to cause harm to others. Its purpose is, amongst others, to enable a citizen to call out and name officials who have allowed their personal frailties to compromise the responsibilities they bear as officials. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not an invitation for chaos to visit the nation. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role does not result in a riot. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not even a case of tiptoeing onto the slippery slope leading towards the ‘Hock Lee Bus Riots’ (the caricature of chaos within our nation’s collective meta-narrative).

The very purpose of the constitutional right to free speech is to question the actions of those who govern; if necessary, to question the integrity of individual officials. There is no higher purpose that this right serves than to enable the citizen to speak truth to power. Of course, just as the citizen has the right to allege, the official has the right to defend himself against such allegation. The defence against such allegations ought to be conducted in the public sphere through clarifications by the official of the position he adopts.

Criminalization of criticism of public officials runs counter to the fundamental purpose behind the freedom of speech. A threat of force or a threat to the safety of a public official is not a legitimate exercise of one’s freedom of speech. But, an insult is nothing more than a forceful expression of one’s disgust with an official or a system. The Freedom of speech bestowed upon the citizenry is a mechanism for dissent and criticism to be voiced and accommodated within a system of consensual governance. To criminalise the criticism is to nullify the freedom.

I am not trumpeting this freedom as a religion here. (Yes, that is a reference to the Attorney General’s recent comment.) I am merely asserting that it is a practical tool in the hands of the citizenry to make sure that the human failings of those who govern do not compromise the collective good. Often there is a tendency to argue that the freedom of speech is an individual right and that sometimes it has to be compromised in the interest of the greater good of society. But, when the freedom is exercised as a critique of those who govern, it is in fact acting as a tool furthering the collective interest. It is the suppression of criticism that tends to serve individual interests and as a consequence fails to advance the collective good.

Salus populi est suprema lex. Public welfare is the highest law.