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.

Where do we go now?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Town Councils - conflict of interest?

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

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

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

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

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

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

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

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

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

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

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

Bishan-Toa Payoh Town Council LING Ming Chuan

East Coast Town Council S Sasidharan NAIR
EM Services Pte Ltd

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

Hong Kah Town Council Ms Christina GOH
Esmaco Pte Ltd

Hougang Town Council Ms HOW Weng Fan

Jalan Besar Town Council LIM Kee Ee
EM Services Pte Ltd

Jurong Town Council HO Thian Poh
Esmaco Pte Ltd

Marine Parade Town Council Ms PNG Chiew Hoon
Esmaco Pte Ltd

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

Potong Pasir Town Council

Sembawang Town Council SOON Min Sin
EM Services Pte Ltd

Tampines Town Council LEONG Shee Wing
EM Services Pte Ltd

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

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



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

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

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

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

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

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

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

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

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

Change: My wish list (non-exhaustive)

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

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

Change from within?

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

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

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

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

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

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

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

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

GRCs – where do we go from here?

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

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

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

Minority representation

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Change?

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

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

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

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

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

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

Change has come.

Now, we have more work to do.

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

Ministerial Responsibility, the PAP and the General Elections

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Low in Aljunied: Masterstroke or Fatal Mistake?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Singapore GE 2011: 7 May

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

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

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

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

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

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

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

Clemency and the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The short of the long story?

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

What did Shadrake really say?

What did Shadrake really say?

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

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

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

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

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

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

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

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

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

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

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

S.35 of the Films Act is Unconstitutional

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

That, in my humble opinion, is unconstitutional.

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

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

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

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


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


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

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

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

Thio Li An questioned the minister on section 35:

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

Siew Kum Hong questioned minister on section 35:

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

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

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

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

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

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

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


Res Ipsa Loquitur - The thing speaks for itself!

The Shadrake Affair

The Shadrake Affair

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

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

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

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


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

According to the Today newspaper:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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