Clemency and the Constitution

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?

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

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

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

  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!

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

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

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

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

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?

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?

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

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

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?

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

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

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

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

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

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.