By-election: When? not Whether!

Anyone that states that a by-election in Hougang is not mandated by law is talking stark nonsense. The only issue that is open for debate is the timing of the by-election.

The existence of a discretion as to the timing of a by-election cannot be converted into a discretion as to whether a by-election is to be held. I hope that the politicians that engage in this debate do not hijack the Constitution and that they acknowledge that the filling of the vacancy of a Parliamentary seat is a requirement. The discretion that the PM has is only with regard to the most appropriate time to hold a by-election.

So, let's get the law right first. The starting point is Article 49 of the Constitution:
49. —(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force

To determine what happens next, we have to look at the Parliamentary Elections Act (Cap 218)
Section 24. —(1) For the purposes of every general election of Members of Parliament, and for the purposes of the election of Members to supply vacancies caused by death, resignation or otherwise, the President shall issue writs under the public seal, addressed to the Returning Officer.

It is commonly accepted in judicial interpretation that the word 'shall' is to be construed as mandatory whenever it appears in a legislation. Therefore, when a seat falls vacant, the vacancy must be filled. For the purpose of filling that vacancy, the President must issue the Writ of election.

Whilst the elections have to be called by the President, the exercise of his functions are subject to the constitution.

Article 21(1) of the Constitution is as follows:

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.

The function of the President under the Parliamentary Elections act is therefore one that has to be exercised in accordance with the advice of the Cabinet. The fact that the President has to act in accordance with the Cabinet's advice does not mean that the Cabinet can disregard the law or that it can disregard the Constitutional stipulation that a vacant seat shall be filled.

I hope that the public debate on this issue moves beyond the question of whether a by-election should be held to the question of when it should be held. It is the Constitutional right of Hougang voters that a by-election be held. The cardinal principle is 'One man. One vote. One value.' It is nothing less than the demand of reason that not only is every adult given the right to vote but also that every vote carries the same value. Whilst the rest of the Singaporean voters are represented in Parliament, 25,000 voters in Hougang are disenfranchised.

An MP is not merely a postman that that listens to a constituent's complaint and forwards it to a government department. An MP is not merely a manager of housing estates. An MP is meant to be the powerful voice of the people in the loftiest forum in the land. He is a Member of Parliament and not merely a Mouthpiece of a Party. Party affiliation often nudges one to take particular political positions. I am not surprised by that nor do I expect that to be non-existent. But, the primary responsibility of the MP is to be the voice of the voiceless; to speak on behalf of those that silently suffer; to question the Executive in relation to the issues (local and national) that affect his constituents.

25,000 voters do not have a voice in parliament. Sure. This was brought on by Yaw Shin Leong. But, those voters are innocent. They have every right to have a representative in Parliament.

How soon must a by-election be held? Definitely not in 2015 or 2014. None in their right mind would suggest that as a reasonably expeditious timeframe within which to call a by-election. I would venture that even a period of 6 months enters the realm of unreasonable delay.

In fact, if we think very carefully about the constitutional role of an MP and the importance of the MP-constituent link for the workings of Parliamentary democracy, we would appreciate that every day that Parliament sits constitutes a day that the Hougang residents are deprived of representation. Every day that motions are raised, debated or passed constitutes a day that the Hougang residents did not have a say in that motion. Every day that statutes are debated, scrutinised, amended or passed constitutes a day that the Hougang residents have been deprived of a chance to shape a law through their representative.

There is, therefore, a strong case that can be made in favour of filling the vacancy before too many days, too many motions and too many laws are allowed to pass in Parliament whilst Hougang residents remain disenfranchised.

As Professor Eugene Tan of SMU rightly pointed out, Section 52 of the Interpretation Act states: "Where no time is prescribed or allowed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises."

All convenient speed. That is what Hougang residents expect and that is their legal right.

Bye Yaw, and now for the By-Election

Anson was a long time ago. CV Devan Nair vacated his seat in Parliament before his elevation to the position of President. J B Jeyaretnam participated in the by-election for the Anson constituency and recorded that historic win against the PAP. 1981 seems like a distant memory now. The PAP stranglehold on Parliament had been punctured. There was a lone voice catapulted into the legislature willing to champion the cause of the people against the mammoth PAP government.
We had not progressed that much from then. At the very best (before 2011), the opposition managed 4 seats in Parliament. But, for the most part, it was just 2 seats. It was, therefore, fitting that last year (being the 30th anniversary of the Anson victory) another milestone was crossed in Singapore's electoral history. The fall of a GRC was a big psychological boost for the opposition and its supporters. It has also ushered in an unprecedented boldness and a willingness express views fearlessly.

The GRC itself was one of the methods by which the ruling party managed to keep the opposition at bay. There is no doubt in my mind that if the GRC system had never been introduced, the PAP would have lost more seats in earlier elections. (My views on the mechanics of domination exercised through the GRC..... http://article14.blogspot.com/2009/06/uniquely-singapore-papmandering.html )

Throughout this period from the 1980s to the present, the PAP has also been careful to avoid by-elections. To me, the most disappointing moment was when the Bukit Batok MP, Ong Chit Chung, passed away. There was a conflict between the Constitution and a statutory provision and in my view the Constitution ought to prevail. They made no Constitutional amendment and they just gave elaborate excuses and convinced the masses that no by-election was necessary. (I had blogged about this before.... http://article14.blogspot.com/search/label/Bukit%20Batok ) In the end, Bukit Batok went without a member of parliament for nearly 3 years (July 2008 to May 2011).

And now, we have an opposition MP that has vacated his seat. A by-election has to be called. The problem is that our laws are silent as to the time limit for calling a by-election. Pursuant to the Constitution, when an MP is sacked by his Party, the MP's seat falls vacant. Under the Parliamentary Elections Act, the President has to issue a Writ of Election. No time limit is set for this. Under the Constitution, this is one of those powers of the President that does not come within his discretion and it is for the Cabinet to advise him. The problem now is the PM seems to think that there are pressing national issues and so he seems to suggest that a by-election is not within him immediate focus.

This is an area that has to be legislated. I hope that this issue is not left as a mere discretion and a certain timeline be set for by elections in the future. We could do it by legislation or if our politicians are mature enough a multi-party code can be devised where political parties can agree to hold by elections within a fixed time frame when there is a casual vacancy.

It is totally untenable to leave the question of a by-election hanging in the air and in fact it is irresponsible to let Hougang residents hanging in there without a member of parliament.

The Politics of Affairs

When the issue of Yaw Shin Leong's affair first surfaced, I treated it the same way that I treat all gossipy tales of sordid affairs of the rich, famous or powerful. Stories like that deserve to be consigned to the thrash can. I don't really care if a celebrity has an affair. Nor do I care if a politician has an affair.

These indiscretions and their consequences have to be dealt with by the parties involved.In the case of a politician, my only concern is about the way in which he discharges his duties and functions. I want my MP to be an effective voice in Parliament. I want him to question the policy position of the executive. I want him to scrutinise legislation effectively. I want him to be mindful of the needs of the constituents and to represent these needs to the relevant persons and bodies so as to achieve the desired outcome.

I don't want my MP to be a passive observer in Parliament. I don't want him to be a 'Yes' man with nothing to contribute by way of policy scrutiny. I don't want him to rubber stamp every legislation that comes before Parliament.

If in the course of his position as an MP or Minister, a politician has an affair or he has had an affair in the past before coming into politics, none of this is of concern to me. I apply this principle equally to PAP MPs and Ministers as I would to opposition MPs. I remember hearing rumours about a certain PAP MP having an affair a long time ago. It was a rumour that had heavy circulation within the legal profession. I wanted no part of it as it was of no concern to me. There was understandably no news of the rumour in the media. But, the 135th press, living up to its low rating, sprung into action the minute there were rumours circulating about Yaw Shin Leong's affair.

As far as I am concerned, I would treat both issues in the same way. They are rumours and I don't really care about rumours. If there was truth in the allegations, again I don't care about the fact that a politician had an affair so long as he is able to discharge his functions. On that basis, there is no need for Yaw Shin Leong to resign or to be sacked by the party.

As we subscribe to the Westminister model of government, it might be useful to have reference to the constitutional conventions in UK with regard to personal misconduct. There is no specific convention relating to sexual misconduct by an individual MP. However, there is a convention pertaining to Ministerial Responsibility and there have been occasions involving ministerial resignation resulting from extra-marital affairs. Constitutional scholars in the UK are mostly of the view that a Minister's personal conduct involving sexual indiscretion does not trigger the convention of ministerial responsibility. The John Profumo scandal that led to the resignation of the minister involved an affair by the minister. However, the actual reason for which he resigned (and rightly so) was that he misled Parliament. It wasn't the affair. It was the lie.

However, there have been other ministers that have resigned as a result of being exposed as having an affair. These have been a result of public and Parliamenaty pressure rather than because of any Constitutional Convention. Quite apart from my own views that I do not expect my politicians to be saints, there is also no constitutional basis for insisting that a politician is answerable to the people for an affair that he had.

He has a lot of explaining to do to his wife and kids, of course. (And yes, kids. That is one good reason why I hate gossips about affairs. The more prevalent and public the gossip campaign, the more likely that the kids will come to know of it. It is not justifiable to expose young children to such 'news' of their parent. This is a matter that should be resolved within the family and if unresolvable, then I would expect the parties would end up in a divorce.)

Is the Worker's Party's move to expel YSL proper?

My initial view of the proper step to be taken by a political party is that an extra-marital affair should not be the basis on which the party member is expelled. I believe that the WP leaders must have initially taken that stance and concluded that it was not necessary for them to take any steps in relation to their MP? However, the very public witchhunt has pushed the hands of the Party to at first remove Yaw SL from his position in the Executive Committee and then to expell him.

The public explanation is that he has failed to give any adequate explanantion in relation to the alleged affair. This is one instance where the right to remain silent works completely against you. “No comment” is not the comment to make. The expectation that the party leaders would have had is that, at the very least, Yaw SL would give them an explanation. If it was indeed the case that Yaw SL did not explain himself to the WP, then the WP was entitled to take disciplinary action against him.

But, I wonder. Perhaps, it was a case of the WP leaders calculating that the fallout from the scandal could be too damaging for the party. Standing by a party member that had in fact committed adultery might sully the party's name. If more damning information were to emerge in public and it were to be clearly shown that YSL had an affair, then the political fallout for the WP could be too great. It is quite likely that sacking YSL was a form of damage control. It was probably an attempt to appear 'whiter than white.'

From a purely tactical standpoint, the WP move to sack YSL was probably the wisest thing that could have been done under the circumstances.

Did the Workers' Party let down its voters?

What can we say about the PAP? I didn't expect the rather opportunistic comments made by Mr Khaw Boon Wan. I kind of like the man. In a way, I didn't expect him to enter the fray. He claims that the WP may have misled the voters. PM Lee has gone further to say that WP has let the people down. How could that be? If a political party decided to climb the high moral ground, and demanded high standards from its MPs, it is something to be welcome.

The party has moved swiftly to assure Hougang residents. It has wasted no time in urging the PM to call for elections. It is imperative that a by-election be held so that the constitutents can have an MP representing them in Parliament. I remember the PAP conveniently avoided having by-elections in the past by an interpretation of the Constitution and the Parliamentary Elections Act in such a way that by-elections were unnecessary in a GRC when one seat became vacant. Creative? yes. Responsible? no.

I have no issues with the fact that having made the decision to demand an explanation from their MP, WP leaders being unsatisfied with his non-response had eventually taken the step to expel him. The most responsible thing to then do is to call for elections asap.

Having said all of that, I still stand by my original position that an extra marital affair is a non-issue. I am concerned about whether my MP can do his job. I am not concerned about whether he got himself a blow job.

A Humourous footnote

A rather funny by-product of the Yaw saga is the letter of demand from Mr Shanmugam's lawyers to the author of the Yawning Bread blog. They effectively demanded that a certain comment made by a 3rd party be deleted from the blog. They went on to demand that their letter be published in full. Alex Au (the blogger behind Yawning Bread) complied with both requests. The net effect of that is that the scandalous comments thrown in by some 'scroobal' has become the subject of further rumour mongering.Sometimes, the wisest thing to do is just walk away.

Burma moves forward

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

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

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

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

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

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

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Death by prosecutorial discretion

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

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

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

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

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

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

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

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

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

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Who should I vote for?

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

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

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

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

Still undecided.

PA or PAP?

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

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

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

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

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

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

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

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

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

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

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

Please don't insult our intelligence.

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

Non-Partisan? My ***.

Three Tans and The TAN

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

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

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

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

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

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

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

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

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

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

BLACK SUNDAY MOVEMENT – Take 2

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

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

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

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

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

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

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

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

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

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

COE FOR THE PRESIDENT

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

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

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

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

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

Would the 3 Tans qualify for the COE?

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

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

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

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


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

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

Dr Tony Tan: The 'approved' candidate?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am speculating. Who knows what the future holds?

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

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

We the people can make our President speak

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

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

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

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

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

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

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

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

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

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

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

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

Reshaping the Presidency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who wants to be a millionaire? oops, President

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

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

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

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

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

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

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

Maybe.

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

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

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

The following article appeared in Channelnewsasia today:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

More transparency needed in our Town Councils

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

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

The following article has appeared in Todayonline:

MPs: No conflict of interest ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

The Town Council formerly known as Hong Kah

The more one digs the more finds…..

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

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

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

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

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

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

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

Jurong Town Council - Esmaco Services

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

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

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

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

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


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