Making sense of the legislative framework underlying MDA's move

When I blogged on Tuesday about MDA's decision to bring ten news sites under licensing conditions, there was no subsidiary legislation yet on the matter.  http://article14.blogspot.sg/2013/05/from-licensing-to-regulation-of-content.html

On 29 May 2013, the MDA has gone ahead to issue a subsidiary legislation:  The Broadcasting (Class Licence) (Amendment) Notification 2013.  This Notification amends the earlier Broadcasting (Class Licence) Notification.  The amendment that has been made will cause Paragraph 3 to appear as follows:

"3. The provision of the following licensable broadcasting services are subject to a class licence except a computer on-line service provided on or after such date as the Authority specifies in a notice given to the provider of the service under paragraph 3A:

(a) audiotext services;

(b) videotext services;

(c) teletext services;

(d) broadcast data services;

(e) VAN computer on-line services; and

(f) computer on-line services that are provided by Internet Content Providers and Internet Service Providers."

 

The words in 'bold' represent the amendment. 

 

What has happened is that whereas in the past all sites were automatically licenced, the new legal position is that MDA can exclude a web site from the class licence.  The precondition for excluding a website from class licence is stipulated in a new paragraph 3A.  It is in this paragraph 3A that the now notorious stipulation of a reach of 50,000 unique IP addresses and at least 1 article per week is set out.  So, news sites excluded under the class licence would have to be registered under s.8 of the Broadcasting Act. 

 

Interestingly, even before the current development, websites and content providers that came within the class license were required to abide by the Class License Conditions and the Internet Code of Practice.  The change is that MDA will now designate certain sites as requiring licences.  These will be removed from the automatic licensing.  As a condition of specific licensing MDA can then require that a bond is furnished.  Using Yahoo News as an example.  YahooNews was already subject to the Class Licence.  Now it is going to be required to obtain a licence specically.  The news, if deemed to be objectionable, can be objected to and pulled out by MDA. 

 

So, the real issue is not about whether a site such as YahooNews should be subject to liecensing.  The issue is whether stipulating the requirement of a $50,000 performance bond will operate as a bar to many independant and alternative news sites in the future if these sites were forced to get themselves licensed.  Given the fact that moving a site from class licensing to specific licensing facilitates the State's ability muzzle articles, it is difficult to avoid the conclusion that this exercise is targetted at unfavourable alternative news sites. 

 

If the concern was about racist statements or such other offensive words, other laws already adequately address them.  There is no need to fool around with the automatic licensing regime.  The irresistable conclusion that one has to reach is that MDA wants to be able to force the removal of content through the threat of forfeiture of the performance bond. 

 

 

 

From licensing to regulation of content

It has started.  After much discussion about a Code of Conduct for online content providers, bloggers, news sites, etc. (and after much resistance to that idea from the online community), the government has decided to institute a modest measure in controlling/regulating/muzzling the online community. 

The salvo has come from the Media Development Authority.  The MDA has, today, made the following announcement:

"From 1 June 2013, online news sites that report regularly on issues relating to Singapore and have significant reach among readers here will require an individual licence from the Media Development Authority (MDA). This will place them on a more consistent regulatory framework with traditional news platforms which are already individually licensed."

I did a quick check on the Government Gazette.  There is no Gazette notification as yet on this.  Under S.8 of the Broadcasting Act (cap 28), the MDA has the Authority to grant licences for broadcasting. Chances are, MDA will be invoking this statutory provision in regulating the first ten internet sites that they have identified.  I don't see any subsidiary legislation yet.   The targetted sites are:
http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/Documents/Annex.pdf

 

1. asiaone.com
2. businesstimes.com.sg
3. channelnewsasia.com
4. omy.sg
5. sg.news.yahoo.com
6. stomp.com.sg
7. straitstimes.com
8. tnp.sg
9. todayonline.com
10. zaobao.com

From the list, it is quite clear that the only site that can be deemed to be independant of the government is YahooNews.  The initial reaction on social network sites has been to conclude that the target of this initial licensing exercise is YahooNews.  Of course, many of us are aware of the often critical views expressed on Yahoo.  (In particular, posts by Andrew Loh on YahooNews could be quite irksome to the powers that be.)  The other nine sites are unlikely to be bothered or significantly affected by the licensing requirement.  It is obvious that YahooNews may have to start being mindful of that non-legal OB marker nonsense. 

What is MDA's criteria for licensing?  The only source right now for this is MDA's press statement:

"online news sites will be individually licensed if they (i) report an average of at least one article per week on Singapore’s news and current affairs over a period of two months, and (ii) are visited by at least 50,000 unique IP addresses from Singapore each month over a period of two months."

"A “Singapore news programme” is any programme (whether or not the programme is presenter-based and whether or not the programme is provided by a third party) containing any news, intelligence, report of occurrence, or any matter of public interest, about any social, economic, political, cultural, artistic, sporting, scientific or any other aspect of Singapore in any language (whether paid or free and whether at regular interval or otherwise) but does not include any programme produced by or on behalf of the Government."

What is the implication for the online news site if it is to be licensed?

1.   The news site must not put out 'prohibited content' as defined under the Internet Code of Practice

2.   Within 24 hours of being notified, the news site must take down an article found to be in breach of content standards.

3.   The news site must put up a $50,000 performance bond that can be forfeited in the event of breach. 

To be fair, at this stage, there is unlikely to be any adverse effect on YahooNews in terms of its reporting.  The 'prohibited content' in the Internet Code of Practice is "material that is objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited by applicable Singapore laws."   This is, arguably, broad enough to include news that is unflattering to the PAP government.  In considering what is prohibited material, the MDA will be taking into account 7 factors.  Five of the factors deal with content of a sexual nature.  One deals with extreme violence or cruelty.  The last factor is stated as follows:

"the material glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance"

Thus far, I have not seen anything on YahooNews that is capable of crossing the red line in this regard.  The only matter of concern is the fact that comments posted by readers could give rise to adverse action from MDA against the licensed site. 

The one area that we should all be uncomfortable about is that the broad statutory mandate of the MDA under s.8 of the Broadcasting Act, raises the possibility of further tweaking and tightening of content restrictions.  Moving forward, there is nothing to prevent MDA from prohibiting content that is deemed to be politically undesirable.  There remains the possibility that other news sites might be on MDA's radar.  The Online Citizen and Temasek Review Emeritus come to mind. 

If either TOC or TRE has a reach of 50,000 (unique visitors) every month (over a 2 month period), they are likely to be subject to the licensing regime.  Both sites churn out more than 1 article per week.  So, it is really about their reach.  It is not unlikely that the two sites have such a reach.  Of course, bloggers like myself are nowhere near that figure.  So, we can safely blog on.

If the tracks are laid carefully now, the state will have enough time to lay the groundwork for managing the content within these sites by the time the next General Elections come by.  Prohibited content could be extended  to include 'party political news', 'partisan reporting', 'opinion on election campaigning', etc.  TOC or TRE could be licensed sites that could face financial penalties.

But, the internet is a monster that even our highly efficient surveillance state can't manage.  Content could be provided from out of our jurisdiction.  New sites can be started.  Bloggers and online news sites can engage in assymetrical warfare and there is little that the state can do except for an outright clampdown.  I don't think the present leadership of the PAP has any intention to go down the route of a total clampdown on alternative views.  They seem to be going for more subtle techniques of content management.  

Phase 1 of content management has started.  But, it is unlikely to have a muzzling effect on alternative news sites and bloggers in general.




 

Much ado about Nordin

I've been awfully busy and have taken some time off blogging.  But, some pretty interesting things have been going on that warrant some commentary:  the questioning of a local cartoonist by the police, the judgment in one of the two s.377A cases and the General Elections in Malaysia, just to name a few. 

But, I figured that I'd get back to blogging by dealing with the 'gang-rape' analogy in relation to democracy that has raisede quite a storm.  PAP MP Nordin posted on his Facebook page a quotation from Terry Goodkind that kind of riled up the online community.  This kind of took me by surprise.  The more I read the quote, the more puzzled I became.  Why such an adverse reaction?

I first came across this issue when I saw a Facebook posting by "Rice Bowl" (Kenneth Jeyaretnam's alter ego):

"PAP Member of Parliament for Bishan-Toa Payoh GRC Zainudin Nordin appears to be using his Facebook page to promote the view that democracy is akin to gang rape. Quote:

“People use democracy as a free-floating abstraction disconnected from reality. Democracy in and of itself is not necessarily good. Gang rape, after all, is democracy in action."

When questioned to rebut the opinion - which is ...presented as a quote by author Terry Goodkind - the MP clearly declined and deleted the relevant comment.

The Rice Bowl believes strongly in democracy and the rule of law. As such we reject the opinion published in the strongest terms possible. Primarily since rape is obviously illegal in all democratic countries, the stated opinion cannot possibly stand. Furthermore, by the rule of law, a supposedly "democratic" move to violate fundamental personal and human rights could never succeed as a free and independent judiciary would inevitably strike out such an effort. In fact the constitution of Singapore itself states that Singapore is a democracy - in light of this one wonders how the MP reconciles such a negative view of democracy with his own standing as an elected member of parliament.

Finally, the intent of democracy is such that the result of a free vote in a secret ballot will tend to reflect the opinion of a majority of participants. To us it seems obvious that citizens are wise and compassionate enough to ensure that a free vote to inflict suffering and harm on a minority would be rejected in a landslide. One wonders if Mr Zainudin agrees."

Even without reading the context of the quotation from Terry Goodkind, I didn't think that there was anything radical that was being stated in that quotation.  Democracy, if it is understood to be majority rule and majority based decision making, does involve at its base level the rule by a lynch mob.  Much would depend on how we seek to define democracy.  I decided to look at MP Nordin's Facebook page.  This is the context of the quotation: 

 

 

“People use democracy as a free-floating abstraction disconnected from reality. Democracy in and of itself is not necessarily good. Gang rape, after all, is democracy in action.

All men have the right to live their own life. Democracy must be rooted in a rational philosophy that first and foremost recognizes the right of an individual. A few million Imperial Order men screaming for the lives of a... much smaller number of people in the New World may win a democratic vote, but it does not give them the right to those lives, or make their calls for such killing right.

Democracy is not a synonym for justice or for freedom. Democracy is not a sacred right sanctifying mob rule. Democracy is a principle that is subordinate to the inalienable rights of the individual.”
― Terry Goodkind

Meanwhile, the "gang-rape" part of the quote was going viral and Nordin had to face the online lynch mob. 
 

Rather comically SPP's Lina Chiam put up a statement on the Facebook:

 

"In Singapore, we aspire to be a nation that is free to consider and tolerate different opinions in business, academic, political and to some extent religious spheres. However we clearly need to avoid outrageously chauvinistic statements tha...t condone rape culture. This is not a tall order, and our leaders should observe this.

I therefore regret that the MP for Bishan-Toa Payoh Mr Zainudin Nordin has reproduced on his Facebook page an abhorent quotation which characterises gang rape as 'democracy in action'. As a woman and an advocate of democracy, I urge Mr Zainudin to retract his statement and apologise to women in Singapore."


I guess that we have come to expect that a PAP MP is bound to speak disparagingly or in a less than flattering manner about democracy.  There has been a consistent pattern of PAP leaders speaking in favour of a model of government based on some degree of control and speaking against the wholesale import of Western-style democracy.  The messiness, the inefficiency and the chaotic tendencies of so-called liberal democracies is usually cited as a reason why Singapore's 'nannycracy' is a better model. 

I do, therefore, understand the reason why there was a knee-jerk reaction amongst many in assuming that Nordin had made an anti-democratic statement.  By posting a quote that referred to democracy as 'gang-rape in action', the MP appeared to many to be presenting democracy in a bad light. 

But, what does the quotation actually say.  What did Terry Goodkind intend to convey?  Making the right sense out of the quote would involve us understanding that the crudest form of a democracy is based on majority rule.  If one were to accept such a model of democracy, the will of the majority can be imposed on the minority.  If a majority of citizens in a country favour genocide, then genocide can be justified in such a version of democracy.  The Holocaust in Germany was, after all, carried out by a democratically elected government.  It is in this context that Goodkind referred to democracy as "gang-rape in action"

It is pretty obvious that the author intended to convey the view that rights of individuals must be allowed to trump the collective communal goals of society.  Majority rule must always be subject to the enlightened protection of the rights of the minority.  An individual is a minority of one.

The Terry Goodkind quotation presents Nordin as a liberal.  It presents him as someone that would advocate that whilst the majority of the country may demand a particular course of action, he would seek to ensure that the rights of individuals are not trampled upon.  I guess, that is the part that doesn't gell. 

I suspect that Nordin was going for another effect.  He probably found the quotation appealing for a different reason.  The PAP has been insisting for some time now that good leaders must resist adopting a populist approach to leadership.  The government should not pander to the demands of the crowd and it must be willing to take bold and unpopular decisions.  PAP's insistence on not going down the populist road is not based on a desire to uphold the rights of individual citizens.  In fact, often the PAP government's justification for compromising on individual rights is based on the importance of the community's collective goals.  The gang-rape version of democracy is what we get when majority moral sentiment is used as a basis for the rentention of laws that infringe upon the rights of individuals.  Communitarian goals trump rights in the gang-rape version of democracy. 

Nordin probably threw that quotation in because it appeared to justify the need to avoid populism.  But, Goodkind was in fact championing the rights of the individual.  That (championing individual rights), based on historical record, has not been the operating philosophy of Nordin's party. 

In the end, was there a need for Nordin to apologise for the quotation?  This is one incident that, I would unequivocally state, did not warrant an apology.  The quotation is against a majoritarian approach and is in favour of protecting individual rights.  I don't mind, and I approve of, this kind of infiltration into the mind of a PAP MP. 

(As for those that seek to read mysogyny into the 'gang rape' reference, please get a dictionary and look up the meaning of the word 'analogy')

 

ICIJ's Offshore Files: The Singapore Link?

In 2010, the US Diplomatic Cable leaks caught the public's attention in a big way with the global media going on a frenzy of reporting about all the 'juicy' information emerging from leaked US Embassy cables. 

I just glanced through the website of the International Consortium of Investigative Journalists and it didn't take me long to realise that the information released by them on 3rd April 2013 about the network of global offshore money is potentially far more explosive that the Diplomatic Cable leaks.  ICIJ claims that its director Gerard Ryle managed to obtain a hard drive containing 2.5 million files of corporate data that points to a web of hidden financial interests alluding to a possibility of tax evasion and money laundering.  Packed with information about 120,000 offshore companies and 130,000 individuals worldwide, this hard drive and the investigative story emerging out of it is going to adversely affect many reputations (at the very least).  The story is slowly emerging as ICIJ releases information gradually.  It has been the result of a 15 month research project representing a global collaboration of 86 journalists from 46 countries.

What got me interested in the story was an email from the Center for Public Integrity (whose newsletters I subscribe to).  I clicked through to the website of the ICIJ and found this story: http://www.icij.org/offshore/how-icijs-project-team-analyzed-offshore-files
This line caught my attention:  "Analysis by ICIJ’s data experts showed that the data originated in 10 offshore jurisdictions, including the British Virgin Islands, the Cook Islands and Singapore."

I looked through the site for information involving Singapore and found these two stories:
"Deutsche Bank Helped Customers maintain hundreds of offshore entities"
http://www.icij.org/offshore/deutsche-bank-helped-customers-maintain-hundreds-offshore-entities
and
"Ferdinand Marcos' daughter tied to Offshore Trust in the Caribbean"
http://www.icij.org/offshore/ferdinand-marcos-daughter-tied-offshore-trust-caribbean

The story on Deutsche Bank alleges that more than 100 customer consultants at Deutsche Bank Singapore helped to create or manage 309 offshore entities for its clients.  Germans attempting to move their funds in Swiss Bank accounts to Singapore or to other tax havens through Singapore is not entirely news.  In October 2012, the German and Singapore governments agreed on a deal to tackle this problem.  The Singapore government agreed to designate tax crimes as "predicate offences" for money laundering.  As reported by the Financial Times:  "Under the deal between Singapore and Germany, the two counties could exchange information for the enforcement of domestic tax laws “of the requesting country”, expanding this to all types of tax, not only taxes on income and on capital. Nor will the exchange depend on the taxpayer being resident in either country."

Interestingly enough, the Monetary Authority of Singapore has just published on 28 March 2013 a Response to the Feedback Received on the Consultation Paper to designate Tax Crimes as Money Laundering Predicate Offences.  The target date for implementation is 1 July 2013.  The ICIJ report on offshore money implicating Singapore as one of the destinations has come at just about the right time.  It will be interesting to see how banks and financial institutions are taken to task by our authorities. 

Apart from the German story, the story about Ferdinand Marcos' daughter throws up a Singapore link.  Imee Marcos is allegedly one of the beneficiaries of Sintra Trust, formed in the British Virgin Islands in 2002.  She is also allegedly a financial adviser to Sintra Trust.  One document found apparantly shows a United Overseas Bank account.  The regulatory authorities in Philippines have indicated interest in the revelations and there could be explosive consequences for Imee Marcos' political career. (As a lawmaker, she is duty bound to disclose her financial interests.  As the daughter of the former dictator, there will be much speculation as to whether the funds are part of her father's corrupt gains.)

Singapore readers will find the following extract from the ICIJ article to be of particular interest:

The Sintra Trust was created in June 2002 with the help of a Singapore-based offshore services firm called Portcullis TrustNet.


The documents indicate that in her role of financial advisor, Imee Marcos had powers to direct the investment of trust assets held by banks and other financial institutions.

The so-called “settlor,” “trust protector,” and “master client” listed in the documents is Mark Chua, a Singapore-based businessman said to be Imee’s new boyfriend. The settlor refers to the person who creates the trust by transferring a certain asset that he or she owns to the trustee, who then assumes legal ownership of the assets on behalf of the beneficiaries.

Chua has not replied to PCIJ’s questions on his role in Sintra Trust.

In June 2005, Imee was named investment adviser of the Sintra Trust, according to a document uncovered by ICIJ. As investment adviser, she can direct any financial institution in the purchase, sale, liquidation and investment of the trust assets. Chua also became an investment advisor for the trust in 2006.

Although the Sintra Trust is located in the British Virgin Islands, another PCGG official – the commission tasked with recovering the Marcoses’ assets – said he does not find it surprising that its servicing company, Portcullis TrustNet, is based in Singapore, which has one of the toughest financial secrecy regulations in the world. It ranked No. 6 in the 2011 Financial Secrecy Index of the Tax Justice Network, a London-based group that campaigns against tax havens.

“We’ve had a hard time getting cooperation from Singapore in our requests for international mutual assistance on criminal matters,” said the PCGG official, who asked not to be identified because of the confidential nature of his work for the agency.

http://www.icij.org/offshore/ferdinand-marcos-daughter-tied-offshore-trust-caribbean(PCGG stands for the 'Presidential Commission on Good Government' and PCIJ stands for the 'Philippine Center for Investigative Journalism')

The following update is posted on the website of Portcullis TrustNet:

"Portcullis TrustNet Group is aware of media reports with information on our Group. We take a serious view of unauthorised disclosure of any confidential information. We are looking into the matter. Meanwhile, controls and safeguards are in place to protect client confidentiality. We are confident that our business activities and client services are legitimate and conducted in compliance with laws and regulations in the jurisdictions in which we operate."

  The Philippine government has, in the meantime, commenced a probe into the Sintra Trust.  http://www.philstar.com/headlines/2013/04/06/927491/pcgg-forms-probe-team-offshore-trust-funds   As ICIJ releases more details over the next few days and weeks, thinks could get pretty nasty for some big names in the world.  In the meantime, it would be interesting to see how much of these funds have moved through Singapore without our detection.  I am sure that MAS will now turn on the heat.  A statement from our authorities on this developing story would be useful. 
UPDATE: 
As I search around further within the ICIJ website, the Singapore Link is beginning to throw up many other individuals.  The common feature is the involvement of Portcullis Trustnet.  ICIJ has done a piece on Trustnet:
http://www.icij.org/offshore/trusted-service-provider-blends-invisible-offshore-world

Why Pay in the first place?

In this post, I have decided to address something personal instead of the usual socio-political and legal stuff.  But, I guess in a way the personal is political.

Levy
Amongst the sugary stuff that is being thrown at us peasants (so that the real details of government expenditure can continue to enjoy opacity) is a reduction in the levy payable for the employment of Foreign Domestic Workers in households that have young children or elderly dependants.  I have a young child and an elderly dependant.  I am currently paying $170 for the levy.  From 1st March 2013, this amount will be reduced to $120.  The Straits Times dutifully reports that this represents savings of $600 a year. 

Let's see... The street bully has been extorting $100 a month and now he has decided to take $50 a month.  I am supposed to be happy that I am enjoying a saving of $600 a year.  What I want to know is why has the street bully been extorting all along?

Why do we have a maid levy?  Originally, it was seen as a measure to discourage families from hiring domestic workers.  The levy system has not reduced the demand for nor the actual employment of foreign domestic workers.  It is a practical reality that many Singaporean families face.  Recognising that where both the husband and wife are working, hiring a caregiver is inevitable in situations where there are young children or elderly dependants, the government has had a system of lower levy payments of $170.  This $170 is being reduced to $120. 

But, why should an employer be made to pay a levy to the state under circumstances where the employer is trying to raise children?  Shouldn't we be incentivised?  By imposing a levy, the state is adding to the financial burdens that a couple faces when raising children.  Similarly, where we seek to look after our elderly in our own homes and employ a domestic worker for this purpose, we are being penalised by the state.  Under the new system, the levy payable in a year is $1440.  The net effect of this system is that we are being (and we have been) taxed for providing for the care of our children and the elderly. 

Quite apart from the fact that the state is generating revenue out of concerned families that seek to cater for elderly parents and young children, the payment of a levy for all domestic workers is itself questionable.  If the idea is to make it costly for employers to employ a domestic worker and thereby to discourage such employment, then instead of the state turning this into a revenue generating exercise, a minimum wage for domestic workers could be implemented.  I'd rather pay the amount represented by the levy to my helper instead of to the state.  So, instead of paying for example $450 to the domestic worker and $265 (or $170)for the levy, I'd prefer to pay $715 directly to her. 

With minimum salary requirements already in place for domestic workers, there is no harm in absorbing the levy payment as part of the minimum wage.  I believe that, moving forward, we should scrap the levy system and institute a minimum wage for domestic workers. 

GST
My mother-in-law had a fall last year and the resulting fracture saw her being hospitalised for about a month and being moved to a nursing home for step down care.  She has been at the nursing home for about 3 1/2 months and we just brought her back home.  The total nursing home charges have come up to $13,510.  This is inclusive of the GST charged.  The GST works out to be slightly more than $880.  Why am I paying this tax to the state?

One problem with the GST system is that the imposition of this tax is universal without regard to the nature of the goods and services being rendered.  Why do we need to pay a tax in relation the receiving medical services?  So that the state can continually generate revenue at the expense of citizens' misfortune?

I guess, in the end this is not exactly a personal rant.  The personal is political.

Fear Factor - Elections in Singapore

For too long, too many Singaporeans have lived in fear of voting for the opposition.  This is not the kind of fear that involves wondering if an opposition candidate can run a Town Council or if the opposition can form the government.  This is the kind of fear that involves an irrational belief that one might lose his/her job or business deals, that one would not receive priority treatment in school admissions, licensing applications or any variety of activities that require government approval. 

The reason why I am blogging about this now is that I just had a conversation with a person that openly stated that he is afraid to vote against the PAP.  He is fearful that 'they' will find out and his rice bowl will be affected.  After GE 2011, one would think that most Singaporeans would have risen above such fears.  But, it looks like such fears still persist. 

So, this is a public service announcement for all voters in Punggol East. Your vote is secret.  They can't find out for whom you voted.  Even if it is not secret, grow a spine! 803,482 of your countrymen have done just that in 2011.  Voting against the PAP has not cost them anything.  There are many civil servants amongst them that are openly vocal as well.  Nothing has happened to them.  Cast away your fear.  Vote for more checks and balances.  Vote for a healthy democracy.  Vote wisely (without fear). 

http://wp.sg/your-vote-is-secret/

http://maruah.org/2011/05/03/votewithoutfear/

If I were a Punggol East resident...

Firstly, I am not a Punggol East resident.  But, the dynamics of this by-election is quite different from the Hougang by-election and I was wondering how I would vote if I were a Punggol East resident. 

I have voted in three general elections so far and each time my vote was an anti-PAP vote rather than a genuine vote for the opposition party itself.  It is probably true to say that most Singaporean voters that vote for the opposition do so as a direct result of the need to keep the PAP's unbridled power under check. 

Judging from the online discussions, it is clear that this by-election is turning out to be as much about a vote in favour of an opposition party as it is about a vote against the PAP.  A developing issue of WP's performance in Parliament since the 2011 GE is capable of turning out to be the decider for some voters.  The issues as raised during the hustings have focused on PAP's policies, WP's performance in Parliament and the question of what SDA and RP might bring to the table if elected. 

PAP has clearly benefitted from this four-cornered fight as there has been (arguably) more discussion (amongst opposition supporters) about which opposition candidate to vote for rather than about the PAP's policies.  There is a possibility that enough disarray has been created within the opposition ranks to secure a PAP win even if the PAP polls less than 50% of the votes. 

If I were a Punggol East resident, I'd be worried about how my vote might affect the outcome.  All Singaporeans have experienced the effect of vote splitting in the First Past the Post system.  The Presidential Election in 2011 was a painful lesson for many of us.  Clearly, in a two-horse race, the non-PAP endorsed candidate would have won.  A resident in Punggol East voting for the opposition would be very wary about voting for either SDA or RP.  In the 2011 GE, WP had already picked up a sizeable chunk of the opposition vote in that ward with SDA's candidate losing his deposit. 

The only reason why a voter that voted for WP might vote otherwise in this by-election is because of the repeated noise in the mainstream media as well as online about the poor performance of WP in Parliament.  Much has been made about how they backed away from issues and failed to be combative or to provide ideas and about the fact that they have not tabled any motions for debate and have been satisfied with tabling Parliamentary questions.  (I have my reservations about some of the anti-WP rhetoric that is floating around on the net and although WP's performance can be improved, it is not as bad as it is made out to be.)

Some postings online (especially by individuals claiming to be Punggol East residents) seem to indicate that there's a possibility that SDA or RP would pick up some votes at the expense of the WP and also that there may be an increase in spoilt votes.  An increase in spoilt votes is a distinct possibility.  I was talking to a taxi driver yesterday and he was complaining about WP's performance and said that if he could vote, he would spoil his vote as a protest.  I chided him for his attitude and gave him a lecture about the importance of the vote.  We complain so much about the PAP.  But, when it comes to exercising the right to vote, we cop out.  That might have been just one taxi driver.  But, I think that it is indicative of a certain disenchantment that some voters are feeling about the WP. 

So, how would I vote?  Gaining opposition seats in Parliament as quickly as possible is of paramount importance if we are to claw back the PAP's total grip on power.  The magic number is 30 opposition seats to deprive PAP of its 2/3 majority.  Realistically, this should be the short-term goal (to be achieved by next GE or the one after that).  Every seat that is capable of turning opposition must be made to count.  Punggol East was close in the last GE.  PAP received 16,994.  The combined opposition vote was 14,164.  In terms of absolute numbers, that is a small difference to make up.  If every opposition vote goes to the WP, there is a realistic chance of displacing the PAP. 

Amongst the candidates fielded, I have to admit that Kenneth Jeyaratnam from the RP would be a very useful addition to Parliament.  (I was initially upset to see a multi-cornered fight developing and like many Singaporeans I considered RP, SDA and SDP as spoilers before changing my view on that http://www.article14.blogspot.sg/2013/01/punggol-east-opposition-win.html)   Given his background and with the budget debates coming up, one can expect some serious questions to be asked about our Executive's spending.  Personally, I'd like to have someone with finance background from the opposition to be in Parliament.  But, clearly, it is unlikely that RP would garner sufficient votes.  (Sometimes I feel that KJ needs some PR guidance.)  WP and PAP would be the frontrunners.  So, as a natural progression in the first past the post system, there will be a tendency to vote tactically.  That, in fact, is what I will do.  http://www.youtube.com/watch?v=s7tWHJfhiyo


I'd go for WP, not because I am thoroughly convinced that their candidate is the best, but because they have the most realistic chance of winning the seat.  Tactical voting.  (In any event, they do have a down-to-earth, likeable candidate.)

In the end, if Punggol East were to turn against White, it would be because of a significant amount of tactical voting that turned the vote blue. 

What do I expect to see on Saturday?  There will be a swing against the PAP.  The question is as to how much of a swing it would be.  There might be an increase in the number of spoilt votes.  Who's going to win?  That is anybody's guess.  But, I'd be rooting for the Hammer.

A poll during the blackout period? What was ST thinking?

Fact:   Straits Times published on 10 June 2013, the results of a poll it claimed to have conducted amongst Punggol East residents after the Writ of Election had been issued.  The best part about it was that ST openly stated that the poll was 'after' the Writ of Election. 

Fact:   It is an offence under the Parliamentary Elections Act to publish the results of a survey during the 'blackout period' (from Writ of Election to polling day).  The relevant statutory provision is:

78C. —(1) No person shall publish or permit or cause to be published the results of any election survey during the period beginning with the day the writ of election is issued for an election and ending with the close of all polling stations on polling day at the election.

(3) In this section, “election survey” means an opinion survey of how electors will vote at an election or of the preferences of electors respecting any candidate or group of candidates or any political party or issue with which an identifiable candidate or group of candidates is associated at an election.


Having been exposed by some netizens, the ST's article is now being investigated by the police. Today ran an article on 13 Jan 2013: http://www.todayonline.com/Singapore/EDC130113-0000046/Police-looking-into-ST-publication-of-by-election-poll.  Warren Fernandez's response is classic:

In response to TODAY, Editor of The Straits Times Warren Fernandez said: "Our reporters spoke with residents in Punggol East to get their comments and a sense of the ground for our election reports. This was not a full-scale survey, or scientific poll, by any means.

"The headline for our story overstated the significance of the information gathered by calling it a poll. We are sorry for this lapse. We will, of course, co-operate with the Police for any investigation," he said.



The editor of ST has inspired me to come up with some pseudo-reasons for not prosecuting ST.  By the way, if you think any of this sounds impossible, you haven't come across the case of the parachuting candidates.

Argument No. 1

The Parliamentary Elections Act deals with election offences committed by individuals and not corporations.  Though ordinarily the word 'person' is often associated in other areas of the law with both 'legal persons' (e.g. companies) as well as 'natural persons' (you and I), it is specifically a reference to 'natural persons' for the purpose of electoral law. 

SPH is a company.  It is not a natural person.  The offence refers a 'person' that publishes election surveys.  SPH published the survey.  But, SPH is not a 'person' for the purposes of the Act. 

It is not an offence to conduct a survey.  The reporters conducted the survey.  Publishing is an offence.  Conducting the survey is not. 

Causing or permitting the publication of an election survey is an offence.  Arguably, Mr Warren Fernandez could be stated to have caused or permitted the publication.  But, at all material times, Mr Fernandez was acting in his capacity as the servant or agent of SPH.  Any act of 'causing' or 'permiting' was done by Fernandez as agent of the principal, SPH.  The causing & permitting was by SPH.  SPH is a company and therefore a legal person as opposed to a natural person.  Therefore, SPH cannot be charged as reasoned out earlier. 

The reporters did not commit any offence.  Mr Fernandez did not commit any offence.  SPH did not commit offence. 

Alternatively Argument No. 2

SPH published the results of a poll.  It did not publish the results of a survey.  'Election survey' is referred to in the statute as an 'opinion survey of how electors would vote'.  According to the freeonline dictionary a 'survey' is a 'detailed inspection or investigation'.

SPH did not carry out a detailed inspection or investigation.  It did a straw poll in a haphazzard manner.  A survey is not a poll.  It is not an offence to publish the results of a poll.  It is only an offence to publish the results of a survey.  Since what was done was not a survey, the publication of the information stated in the ST article was not an offence. 

Alternatively Argument No. 3

SPH lied.  A survey was conducted.  It didn't suit SPH to publish the results of the survey.  So, SPH published 'fake' results of the survey.  It is true that SPH published the results of a supposed survey. .  But, SPH did not publish the results of the actual survey that had been conducted.  In order for an offence to be committed, the results published must be accurate results.  Otherwise, they do not qualify as results of a survey. 

Alternatively Argument No. 4

SPH lied.  No survey was conducted.  If no survey was conducted, no results could be published.  The publication of results of a fake survey is not an offence.  It is a lie but since when is lying an offence?  In fact, since SPH's detractors are so into free speech, lying is a form of free speech.  Check out this American case and you will realise that we are not wrong:  http://www.projectcensored.org/top-stories/articles/11-the-media-can-legally-lie/


Alternatively Argument No. 5

It was an honest mistake.  We are sorry.  Let's move on. 


(Note:  Nothing referred to herein by way of an argument or the suggestion of an argument is to be construed as being logically and/or legally tenable.) 

Punggol East: An opposition win?

Let me first declare that I am a Son of Bukit Ho Swee (or maybe Son of Kandang Kerbau), whatever relevance that might have to my credibility, credentials or character.  http://www.todayonline.com/Hotnews/EDC130110-0000082/PAP-unveils-son-of-Punggol-Koh-as-Punggol-East-by-election-candidate

The Prime Minister has decided to call for a by-election at Punggol East and I think instead of criticising him, we should all welcome this move.  Given the fact that in the Mdm Vellamma case (Hougang by-election) the High Court has ruled that it is the PM's absolute discretion to decide on whether to call for a by-election, it is heartening that the PM is exercising his discretion in a fair manner by calling for a by-election early on. (I disagree with the legal reasoning in the Hougang by-election case.  My analysis is set out here: http://www.article14.blogspot.sg/2012/12/the-hougang-by-election-case-belated.html) 

I have read some nasty comments online about how this decision by the PM is a sudden move.  So what if it is sudden?  It would have been sudden anyway if it happened after Chinese New Year or after the budget debate or for that matter if it happened later in the year.  In fact, the earlier that the vacancy is filled, the better.  I am glad that it only took the PM 3 weeks to make a decisive move on this one. 

So, whilst we are quick to criticise when there is a flaw, let's be quick to give the man a pat on the back when he does the right thing. 

WHAT ARE THE CHANCES OF AN OPPOSITION WIN IN PUNGGOL EAST?

On the assumption that it is a straight fight between PAP and WP.

The first observation that must be made is that if this was a General Election, there would be very little movement of votes away from the PAP to the WP.  A 5% swing in less than 2 years would be difficult to accomplish.  One could safely bet that Punggol East would remain with the PAP. 

This is a by-election and we have to consider one important factor that often influences a not-too-insignificant proportion of the Singaporean electorate.  Nationwide, I would guess that about 20% to 25% of voters belong to a category that is unhappy with the current government's policies and yet wouldn't want the PAP government to be replaced.  Note that in the Presidential Election (PE) in 2011 barely a few months after the General Elections (GE), only 35% voted for the PAP 'endorsed' candidate.  25% of the electorate had switched from voting for PAP in the GE to voting for an alternative candidate in the PE.  Given the fact that the issue of whether the PAP would form the government was not at stake, many voters chose an alternative candidate in the PE. 

Would the entire 25% be a potential vote bank for the opposition parties?  I don't think so.  During the PE, one attraction away from the PAP endorsed candidate was the existence of an ex-PAP MP (a highly likeable doctor and one that has the reputation of playing the role of an opposing voice within the ruling party) in the form of Dr Tan Cheng Bock.  I do not think that all of the 25% would have been persuaded by an outright opposition candidate.  Perhaps, we could take it that between a third to half of these voters would be open to voting for a credible opposition candidate if they were sure that PAP's rule was not going to be terminated. 

These voters would be prepared to vote in an opposition candidate to voice their concerns without the potential 'threat' that PAP would go out of power.  This is the potential voter base that can be persuaded to vote for the opposition in a by-election.  By working on the assumption that the nationwide voter behaviour is more or less similar, we can conservatively estimate this category of voters to be about 10% in Punggol East (making allowance for potential variation from the norm in that ward.)  There is, to my mind, a realistic possibility of a more than 5% swing against the PAP.  If the issues are pitched in the right way and if recent failures are highlighted appropriately and frequently, there are enough votes up for grabs in Punggol East to turn the seat 'blue'. 

In a previous blog post, I estimated a vote swing of about 2% to 3% without factoring in the by-election effect.  I am revising this now after taking into account the above factors.  http://article14.blogspot.sg/2012/12/by-election-in-punggol-east.html

On the assumption that it is a multi-cornered fight

There will be an inevitable split of the opposition vote.  Voters do not disuss amongst themselves, collaborate or guide each other in voting.  Whatever opposition votes that may be up for grabs would inevitably be split.  This is where the PAP probably stands to gain. 

Firstly, opposition disunity may put off some of the potentially persuadable voters.  If we work on the assumption of 10% being persuadable, there is bound to be a significant proportion of those voters being put off by a multi-cornered battle in the constituency.  On the assumption that half of them swing over to the opposition, it is still difficult to predict whether they would all head in the direction of the same opposition party. 

The two strongest contenders would be WP and SDP.  Each have their relative merits and, of course, much will depend on the candidates that they field.  (WP has arguably a better branding and SDP has  more charismatic and vocal candidates.) Out of a potential 51% that might vote for the opposition in the by-election, there is bound to be a split in the votes.  That would hand the seat back to the PAP.  If there is an overall swing of 10% to the opposition, a split in the opposition vote may narrowly hand the seat to an opposition candidate.  This candidate is more likely to be the WP candidate.  The result could be 46% for WP, 9% for SDP (and others) and 45% for PAP. 

A three-conered or multi-cornered fight could theoretically end in a WP victory.  Considering the way that most people seem to think, there seems to be an entitlement mentality about contesting this by-election.  Many people seem to think of Punggol East as WP turf.  I wouldn't be surprised (given the impossibility of collusion) voters planning to vote for the opposition would err on the side of caution and vote for the WP.  In fact, the other opposition parties might not even garner more than 2% to 3% of the vote.  Against this logic, the only reason why an opposition voter in Punggol East would vote for a non-WP candidate would be because the alternative candidate is a charismatic individual holding the promise of being a genuine vocal element in Parliament (e.g. Vincent Wijeysingha). 

It is quite probable that between WP's strong branding and SDP's potentially charismatic candidate, the votes could be split in such a way that the PAP still wins the seat with about 45% of the votes. 

My preference

Personally, I'd like to see another seat fall into the hands of the opposition.  By-elections represent the golden opportunity to reduce PAP's almost total dominance of Parliament.  My knee-jerk reaction to the possibility of a by-election in Punggol was to feel that the opposition should cooperate to ensure a straight fight instead of a multi-cornered fight.  Like many, I too felt instinctively that the other opposition parties should yield to the WP as they contested Punggol East in the GE. 

But, the more I think about it, the more i realise that there is no inherent logic behind the argument that somehow that constituency has become WP's turf.  Ideally, the opposition parties should come to an agreement as to the fielding of a single opposition candidate.  This candidate should be one that is intelligent, articulate and passionate.  This candidate should be one that is vocal enough to ask the tough questions. 

If the ideal situation cannot be accomplished, then there is no real loss in a multi-cornered fight.  Perhaps, this is the best opportunity that we have for a free contest of ideas to be staged for voters and for opposition parties to test the level of support that they have in such a multi-cornered fight.  We are transitioning from a one-party state.  WP has managed to build itself into the largest opposition party.  SDP is arguably a close competitor even though it does not hold on to any Parliamentary seat.  It is clear that SDP attracts a particular type of audience.  WP is seen in some circles as PAP-lite.  The other politcal parties may take offence at the fact that I have not even mentioned them.  But, let's be realistic about the perception at the national level.  It is SDP and WP that have a realistic chance of picking up the larger share of opposition votes. 

In a multi-cornered fight that eventually delivers the seat to the PAP, there is nothing that would be lost.  Many lessons could be learned about voter preferences.  So, if there is going to be a multi-cornered fight in Punggol East, I'd say, "Bring it on!"

(I wouldn't be surprised if part of the PM's calculation in terms of the timing of the by-election would have involved the fact that very little time should be given to the opposition parties to work out a deal.  By announcing the by-election within 3 weeks of the vacancy of the seat, he has caught the opposition flat-footed.  If the by-election were to be called after the Budget, the opposition parties would have had enough time to do their posturing and walkabouts and eventually work out some kind of collaboration.  With the 16th of Jan being Nomination Day, any likelihood of an opposition agreement to ensure a straight fight is remote.)

2012: Constitutionally speaking

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

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

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

THE HOUGANG BY-ELECTION CASE

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

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

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

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

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


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

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

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

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

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

THE IMF LOAN CASE

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

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

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

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

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

THE GAY RIGHTS CASE

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

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


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

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

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


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

There is much to watch out for in 2013. 

Happy new year. 

Not profiteering. But politicking?

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

Based on information that is so far available:

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

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

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

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

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

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

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

 

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

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

What a way to end the year!

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

I read the following article online:

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

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

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

As I read further, I came across the following:

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

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

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

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

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

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

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

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

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

By-election in Punggol East?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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