The debts of Chee Soon Juan that were not provable in his bankruptcy

It is good to hear that Dr Chee Soon Juan has managed to raise the $30,000 that he had offered by way of settlement to his creditors (which offer had been acknowledged by the OA as has having been accepted by LKY and GCT). 

Perhaps, it is prudent at this stage to be somewhat cautious.  As far the law is concerned, when a person is discharged from bankruptcy, all the debts that are provable in bankruptcy get wiped out.  Creditors will not be able to go after the bankrupt person after his discharge.  However, this does not apply to debts that were not provable in the bankruptcy in the first place.  When a person is made bankrupt, apart from the creditors that made him bankrupt, other creditors will come forward to file their proof of debts.  The OA will not accept all of these claims as debts provable (claimable) in the bankruptcy.  Such creditors may be genuine creditors with genuine cases.  But, they will have to wait.  They can, however, make a claim against the discharged person soon after the bankruptcy is lifted. 

In the email addressed to CSJ, the OA indicates the existence of a claim by DBS bank that the OA had rejected as a debt not provable in bankruptcy.  Such a debt can still be the basis of a fresh claim against CSJ once he is discharged.  I hope that this is a small amount and CSJ has no difficulty in paying off.  If the sum is substantial, we might be dealing with another attempt at applying for bankruptcy by DBS bank this time.  CSJ may not be out of the woods yest. 

OA's email:

7 September 2012

Dear Dr Chee

We refer to your email of 5 September 2012.

2. Please be informed that the Official Assignee ("OA”) conveyedyour offer of composition of $30,000, on 17 August 2012 (the same daywe replied to your email of 8 August 2012) to all your creditors,namely, Mr Lee Kuan Yew, Mr Goh Chok Tong and the Attorney-General’s Chambers. We invited them to respond with their views on your offerand their counter-proposals (if any) by 7 September 2012.

3. You may wish to note that the OA has rejected DBS Bank Ltd’s claimfiled against your estate in bankruptcy, as the debt claimed wasincurred after the making of the Bankruptcy Order against you and istherefore not provable in your current bankruptcy.

4. Your three creditors have since replied on 30 August 2012 and 3 September 2012, informing us that they have no objection to youroffer of composition of $30,000. Please let us know when you will beremitting the sum of $30,000 to our office. Upon receipt of the sum,we will need to ask your creditors to formally vote on the offer. Once they have voted their acceptance of your offer, the OA willprocess the necessary paperwork to effect the annulment of yourbankruptcy.

5. Please note that a certificate of annulment issued under section 95A(1) of the Bankruptcy Act will be binding on your creditorsinsofar as it relates to any debts due to them which are provable inthis bankruptcy.

Yours faithfully
Lydia Loh
For OFFICIAL ASSIGNEE

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

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

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

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

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

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

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

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

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

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

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

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

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

Is this some kind of tennis match?

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.
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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?

Judging those who judge the judiciary

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