The Houngang by-election case - The decision to grant leave

Justice Philip Pillai has given his written reasons for the decision to grant leave for judicial review in the case of Vellama d/o Marie Muthu v AG.

Having read the court's reasoning, what I can gather is that the judge has stated that he is satisfied that the 'low threshold' for granting leave has been crossed. Exactly why the Court is satisfied as such is not stated (or at least I can't find it.

In his conclusion, the judge states:

"Based on what was presented and submitted to me for the purposes of the leave application, without making any comment or decision on the merits or the substantive legal issues, I granted leave for a judicial review hearing as I was of the view that the very low threshold for leave has been met."

I suspect that this might be a problem during the appeal. What was the judge's reason for coming to the 'view that the very low threshold for leave has been met?

Paragraphs 1 to 3 of the decision set out the orders sought by Applicant (Ms Vellama) and the fact that the Court granted leave for judicial review on 2nd April 2012.

Paragraphs 4 to 8 set out the factual background to the application.

Paragraphs 9 to 13 set out the law relating to the threshold to be crossed for the granting of leave for judicial review. The law here is uncontroversial and it is as follows:
(i) the matter complained of is susceptible to judicial review;
(ii) the applicant has sufficient interest in the matter; and
(iii) the material before the court discloses an arguable or prima facie case of reasonable suspicion in favour of granting leave.

Points No.(i) and (ii) were not disputed. The issue before the court was, therefore, whether there's a "prima facie case of reasonable suspicion"

Paragraphs 14 to 16 deal with the relationship between Order 53 and Order 15 Rule 16. This relates to the question of whether leave for judicial review is required for declaratory orders (as opposed to mandatory orders for which leave is clearly required). (A declaratory order is one that is in the form of a clarification of the legal position without ordering any government body to do anything. A mandatory order requires the government body to comply with the court's direction to carry out a particular act.)

The discussion in these paragraphs did not relate to the issue of whether there was a "prima facie case of reasonable suspicion." It was more on the question of whether leave was required in the first place for the declaratory orders.

Paragraphs 19 to 23 involve a narration by the judge of the arguments put forward by the respective lawyers on the mandatory order sought by the applicant. The judge did not express his opinion on these arguments.

Paragraphs 24 to 27 involve a narration of the arguments by the parties on the declarations requested by the applicant. The judge states the following:

"Counsel for the applicant earlier informed the AG’s counsel and the court that he would if necessary immediately apply under O 15 r 16 for the First and Second Declarations to be considered as standalone declarations for which the leave of court is not required. In light of this, the question of whether the quite separate requirements for standalone declarations have been
met would have to be determined at a substantive hearing, which this O 53 leave hearing is not."

The judge therefore appears to have taken the view that the issue of leave requirement for the declaratory orders did not need to be addressed.

Finally, at paragraph 29, the Judge concludes:

"Based on what was presented and submitted to me for the purposes of the leave application, without making any comment or decision on the merits or the substantive legal issues, I granted leave for a judicial review hearing as I was of the view that the very low threshold for leave has been met."

I am unable to ascertain from the decision the specific reason that led to his assessment that the "low threshold for leave has been met" apart from his assertion that the threshold has been met (Unless, one is to assume that he accepted the arguments put forward by the Counsel for the appellant and that constituted his reason for stating that the low threshold had been met.)

I hope that the Court of Appeal does not find this problematic. To be fair, the judge has no duty to examine the substantive merits of the application. But, I would have expected that something was stated as to why he made the finding that the threshold had been met.

Shimun Lai - What's her crime?

What did Shimun Lai say that has gotten so many people riled up? Indians upset over her remark; non-Indian netizens upset over it in a show of solidarity; other netizens upset that people are upset with Shimun....

Something is not right with this picture. Let's just face it. Racial stereotyping is a common feature in every society. In just about every country I've been to, racial comments, racial jokes, insensitive racial stereotyping is part of the ordinary social landscape. Singapore is no different.

From the time that I was in Primary school, I can remember comments and jokes about my dark skin. Sometimes kids would shun me because the darkness of the skin equates with being dirty and I used to get those comments thrown straight at my face. I have heard people characterise Indians as slimy, fork-tongued, liars. Even as a practising lawyer, I used to get back-handed compliments about why so many Indians make good lawyers (because we are good at twisting things around).

There are racial stereotypes about Malays. There are those that relate to Chinese. Let's be honest. Even those of us that try to live life with a sense of universal brotherhood, have the weakness of resorting to the base instinct of classifying certain mannerisms and behaviour as being peculiar or predominant in a particular race, nationality or culture. The difference is often about whether we are prepared to allow our entire thought pattern to be dominated by these classifications or we are willing to rise above these base instincts.

It comes as no surprise to me that Shimun felt that Indians are smelly. All throughout the time that I was growing and a long period throughout my 20s, I have experienced situations where some aunty in a bus or train would cover her nose or move to another seat if an Indian sits next to her. It is a perception that does exist. Some netizens in Shimun's defence have said that she was referring to Indians from India. There are others that have enjoined the debate by saying that many foreigners (especially PRC and Indians from India) are noisy and smelly. Somehow, foreigner bashing is seen as being not racist and therefore pardonable in comparison with bashing a Singapore Indian.

I think we are all getting quite mixed up about this whole episode.

Firstly, as an Indian let me just say that my instinctive reaction when I read about Shimun was to chuckle. Was she racist? Well there is some element of that in all of us. It is just a question as to where we target that emotion. For some it is merely in the thoughts racing through their minds. For others, it exhibits itself in the words that they casually use. Yet others, hurl it out as insults. These people are harmless when we compare them with those that would deny a person his socio-economic opportunities in life. Some people refuse to employ a person or to promote a person on account of his race. That is more vile, insidious and worthy of condemnation than some young girl that went crazy with her words.

When I was much younger, I used to get all worked up by racial remarks. But, over the years I have learned to ignore nasty comments. The human animal is rather strange. The very person that is capable of making racially insensitive comments is often capable of forming friendships with persons from such other races. It is not the remarks that make a person racist. It is the actions of that person that make him racist.

Take a deep breath. Give each other some space. There are more pressing concerns than the hasty comments of a 19-year old.

Register of Electors to be updated

The following notice has been issued in the Government Gazette at 5pm yesterday (26 March 2012). As the updating of the Register would take place on 13th April, there is a realistic possibility that the announcement of the by-election date for Hougang would be made sometime at the beginning of May 2011. (Just speculating)

"In accordance with section 13(5) of the Parliamentary Elections Act, notice is
hereby given that the Registration Officer intends to do the following on 13th April
2012 pursuant to section 13(4) and (4A), respectively of the Act:

(a) to remove from any register of elector the name of any person where
the Registration Officer has reason to believe that the address of that
person as shown in the register has on or before 19th March 2012 ceased
to exist or to be used as his place of residence or his contact address; and

(b) to transfer the name of any person to the appropriate register of electors
where the person has on or before 19th March 2012 notified the
Commissioner of National Registration in writing of his change of
address or contact address.

The list of the names of persons removed from any register of electors under
section 13(4) of the Act, and the list of the names of persons transferred from
a register of electors to another register of electors under section 13(4A) of the Act,
will be available for inspection at the office of the Registration Officer at 11 Prinsep
Link, Singapore 187949 from 27th March 2012 to 9th April 2012 during the
following hours:

(a) between 8.30 a.m. and 1 p.m. and between 2 p.m. and 6 p.m. daily on
Mondays to Fridays (except public holidays);
(b) between 8.30 a.m. and 1 p.m. on Saturdays (except public holidays)."

George Yeo: Many had "lost faith in the government"

As reported in the media, Mr George Yeo has pretty much acknowleged that last year's poor showing (relatively speaking) in the general elections, indicates that many people had lost faith in the government.

It is good to see that with the burden of the Ministerial post off his shoulders and the lack of a Parlimanetary seat, George Yeo is able to speak his mind and admit the reality on the ground. I wonder if the extent of the populuation's loss of faith has filtered through to the leadership.

I believe that the only reason why PAP did not suffer further losses in the last GE was because there were still a sizeable number that believed that change was possible from within the Party. It was clear from the Presidential Elections that many PAP voters had voted for Dr Tan Cheng Bock instead of Dr Tony Tan (the preferred PAP candidate). This was undeniably the soft option for voters wishing to express their discontent. They got their PAP government at the General Elections but they had the possibility of a non-endorsed and yet ex-PAP member (and old-school grassroots savy PAP MP) as an option for President. In one sense, a vote against Tony Tan by those that voted for the PAP at the GE was a clear message of the displeasure felt even by that segment of the population that had supported the PAP.

The extent of the displeasure is not limited to the 40% that voted for the opposition in the GE. I believe that the Presidential Elections last year constituted a form of an opinion poll on the loss of faith felt by Singaporeans. Yes, the 1,372,847 Singaporeans that did not vote for Tony Tan indicated in various shades that the current government needs to get its act together. That was effectively 64.8% of the electorate.

I appreciate George Yeo's suggestion that we have to set aside political differences and work together as a nation. I believe that these are the tentative signs of us maturing as a nation. There is still too much bitterness in the conversations carried out across party lines. A political history of repression of alternative voices has led to too much suspicion and lack of a willingness to listen (applicable to the ruling party and the opposition supporters). We need to recognise that it is perfectly fine to have strong political views and it is healthy to engage in virulent debate. In the midst of all that we must not forget that we are friends, family, Singaporeans.

My favourite Parliamentary speech made by LKY

The following speech made by MR Lee Kuan Yew on 21st September 1955 as an opposition member of Parliament was part of the Second Reading of the Preservation of Public Security Bill. The then Chief Minister, Mr David Marshall, had explained his reasons for supporting the new legislation permitting arbitrary arrest and detention when he had, not too long before, called for the repeal of the previous Emergency Regulations providing for arbitrary arrest and detention. After several short speeches by other MPs and also a passionate speech by PAP's Lim Chin Siong, Mr Lee Kuan Yew rose to speak on this issue.

One has to admire the skill and dexterity of this young opposition MP.

Amongst the justifications put forward by Mr David Marshall for the repressive legislation was the Hock Lee Bus riots. It is interesting that the post-independance PAP government has employed the Hock Lee bus riots as part of the national narrative justifying the uniquely repressive approach of our democracy. In the context of this, I thought that LKY's response to the Chief Minister's reference to Hock Lee bus riots was interesting.

The events of the 1950s and 1960s are unfortunately presented to us today as a particularly politicised history. I wonder what really transpired and wonder if we will ever get to know the real story.

Mr Lee Kuan Yew: Mr Speaker, Sir, it seems that this House wishes to deny the People's Action Party time to consider the Chief Minister's very calculated remarks. I never like to speak in haste and to regret things at some later date.

Since the House wishes me to meet the ferocious attack by the Chief Minister on the People's Action Party straightaway, may I first congratulate him? I have always been an admirer of his tactics in Court, for he is the supreme advocate of the strategy of attack when you are on the defensive. If there is one person in this Assembly who today feels a sense of guilt - if he is the sensitive and honest politician that I have always believed him to be - he must also feel a sense of shame, because he has not had the courage to put his powerful and persuasive arguments before the people who gave him the mandate to come to this House to repeal the Emergency Regulations.

One of the basic political tenets of democracy is that a Party is elected on its election platform. Of course, if one wishes to avoid the inconvenience of having to go back to the people after going back on an election pledge one could say, in a moment of flamboyance, "I would break a promise if it were in the interests of the country." To commit that heresy would make a mockery of democracy.

The whole attack that the Chief Minister has skilfully directed does not explain why, if he honestly and sincerely believes that he is right in changing his mind, he should not take the people into his confidence, and put these facts before them. Let him ask for a mandate for this most important of all the Labour Front's election platforms - a mandate for the Emergency Regulations to be attired, not in a policeman's uniform, but in the Chief Minister's bush jacket.

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Everyone knows that the Public Security Bill is but an alias for the Emergency Regulations. There are some modifications and some amendments. For example, from a Review Committee to an Appeal Tribunal; from one Judge with a panel of laymen, to three Judges; from a Judge who could only recommend, to three Judges who could order. But none of these things can explain away the fact that what the Labour Front is seeking to do today is something quite contrary to what they told the people they were going to do. That is the most serious political mistake that any political Party can make in this part of the world. There is one thing which we must prize above everything else. If we condemn the Communists for being hypocrites, for being thugs, for being rogues who intimidate other people, then let us be honest Democrats. Let us face the world and face the music, if we find out that we have made a mistake, as the Chief Minister has said he has.

If I were a good actor like the Hon. the Chief Minister, I could feign surprise and righteous indignation at this blatant attempt by his colleagues and himself to cloud this very important constitutional principle by launching into a tirade against Members of my Party, and reciting a slanted account of the now familiar events of the Hock Lee riots and the general strike. If I were David Marshall, Sir, which I am not, I would have thought that the honest thing to do would have been to go back to the people and say, "When we drafted this election platform, I was away learning Socialism in England. My colleagues in Singapore, even more political innocents than myself, were trying to outbid the People's Action Party. They wrote in their platform that they would repeal the whole of the Emergency Regulations when the People's Action Party, with care, circumspection and deliberation, said they would repeal the Emergency Regulations which provide for arrest and detention without trial, freedom of speech, freedom of assembly and freedom of publication." If the Chief Minister today accurately represents the feelings, the temper and the views of the people, then, no doubt, he

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and his colleagues would be returned with greater strength and greater confidence. They would have a mandate to go through with this legislation; and I and my Party, if we were also returned by our constituents, would have less reason to doubt the political integrity, if not the sagacity, of the hon. Members on the other side of the House.

Not long ago, the Chief Minister himself let one of the biggest cats out of the political bag when, in a moment of anger and bitterness, he recounted how a colonial Governor tried to inveigle him into a conspiracy to cheat the people. The colonial Governor invited him to repeal the Emergency Regulations. Then they, the colonial government, would re-impose them under the Governor's reserved powers. The Chief Minister, his sense of decency rebelling at this indecent suggestion, said he would not cheat the world in such a way as to make it believe that he was an honest democrat, and the Governor was - if I may quote the words of another publication which we have all received this morning, a memorandum which the Chief Minister has referred to in slighting terms - "the vicious and repugnant" instrument of oppression.

But we are now being asked to elevate rules and orders under the Emergency Regulations, from the lowly status of Emergency Regulations to the resplendent status of being part of the normal law of the land. The reason advanced is that this is necessary to combat Communist terrorism and subversion. Sir, no one denies that there is Communist terrorism or subversion. When any "ism", be it Communism or Fascism, resorts to violence or terror, it must be resisted. But we are at the same time being asked to believe in democracy. We say we believe in democracy because it is a more liberal and a more civilised way of life. We say we dislike Communism because, under that form of government, they have arbitrary powers of arrest and detention without trial. They have, what we fortunately so far have not got here, arbitrary powers of physical liquidation without trial. So we are told that the democratic way of life is far superior. Yet, for

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over eight years now the British and their friends have gradually worked themselves into a frame of mind when, in the name of democracy, they can introduce every rule and every order which is a complete denial of the basic tenets and beliefs of democracy. That I think is the greatest psychological defeat suffered by the British in this battle between the two fanaticisms - Communism and anti-Communism. We, in this part of the world, I think, could profitably avoid being implicated in this clash of fanaticisms, for as long as it is possible. There are other people in Asia, far more knowledgeable in these matters than colonial officials like the Chief Secretary, who believe in dynamic neutralism -

The Chief Minister: The countries in Asia have not got this law.

Mr Speaker: Order, please.

Mr Lee Kuan Yew: Sir, when the Indian Government in 1950 passed their Act, they had a mandate from the people - and that is a great difference.

The Chief Minister: Ha!

Mr Lee Kuan Yew: Is it not?

The Chief Minister: A colony cannot legislate against rape and murder! Only the free countries can!

Mr Speaker: Mr Chief Minister, order, please.

Mr Lee Kuan Yew: The Chief Minister has a colourful inclination towards colourful metaphors. We are not saying one should not legislate against rape and murder. In fact, the Chief Minister would have the support of the People's Action Party if he decided to bring further penalties against rape and murder, if it were found to be too prevalent in this part of the world. But -

The Chief Minister: Not for public security!

Mr Lee Kuan Yew: - But, Mr Speaker, Sir, what the Chief Minister does not realise is that an independent

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government, which has the freedom to decide its own destiny, has the right, through its elected representatives, to choose any way of life - any rule of law under which they should live. But in a Colony where the circumstances are different, where the people have never been given the power and their elected representatives the right to decide their own destiny, I say it is morally wrong to do what the Chief Minister now seeks to do. What he is seeking to do in the name of democracy is to curtail a fundamental liberty and the most fundamental of them all - freedom from arrest and punishment without having violated a specific provision of the law and being convicted for it. Of course, the Chief Minister could quibble and say, "After all, it is not punishment; it is not imprisonment; it is detention under the most benign and kind conditions." But no man should be deprived of his liberty. It may be that such a liberal way of life does not and cannot exist in conditions in South-East Asia. But if that is so, then let the Chief Minister at least have the courage to go back to the people and tell them so, and seek a mandate to do what he wants to do. I am sure he will understand that it is better done that way now than deferred for three years.

The most important observation which the Chief Minister has allowed to drop from his lips is that, after eight years of the Emergency, we are faced with a problem as grave and as acute as when it began. It is the most conclusive proof that the Emergency Regulations are not the answer either to Communist terrorism or Communist subversion. The Emergency Regulations have not destroyed Communism, but it may well destroy democracy. It has not completely frightened the Communists, but it may act as a dampening restraint on the nationalists. Of course the Chief Minister has not given his assurance to me personally that I would not suffer under these Regulations - but we all believe, at least we all should believe, that as long as his Government

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is in control, conscientiously, scrupulously, and honestly working these rules and regulations, no one will be penalised or made to suffer who does not deserve to be penalised or made to suffer. But he has not said what would happen if, in fact, these special powers were not used with the same scrupulous care and regard for human values as they are -

The Chief Minister: Three Judges!

Mr Lee Kuan Yew: Three Judges! Great play has been made of three Judges! But I should have thought that purely counting by numbers it does not get us very far! One good judge is as good as three. If you have one good judge and you put in two bad ones, I should have thought you would have lowered the mean average! But what does it all prove? It only proves that three Judges can order a man's release against the wishes of the Governor. It is an advance, I am not denying that. It is better than what it was before, when one Judge could not order but could only recommend a man's release. There will be three Judges who sit and receive evidence in the absence of the person against whom the evidence is being given, and in the absence of his counsel. I think the Chief Minister will be the first to admit that it does not, in any way, approximate to the protection which a trial by confrontation -

The Chief Minister: Never pretend to!

Mr Lee Kuan Yew: I am not saying the Chief Minister pretended, Sir. The Chief Minister pretended a lot of things this morning, but I am not accusing him of this. I am pointing out to him now that it nowhere approximates to the same protection which he, as a criminal advocate, must know is of vital importance.

If, after eight years of these Regulations, we are faced with the same conditions - and we are now asked to be more realistic and incorporate these Regulations in a more permanent form for another three years - we wonder whether it is because the Chief Minister and his colleagues expect the danger to exist for another three years, or that only the Bill will exist for another three

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years. If the Bill is designed against Communist subversion, and will be maintained so long as Communist subversion is present, then I say this Bill will outlive this Legislature and many Legislatures to come, for Communism is not a passing fashion or a passing craze. It is and it has become the way of life of nearly half of Asia and a large part of Europe and we must understand the basic causes of it -

An hon. Member: Fight it!

Mr Lee Kuan Yew: Before you fight it, you must understand what you are fighting. It is no use saying that they are evil men out to wreck, out to create chaos, out to stir up disorder, or out to make the poor worker suffer, when you do not understand, or attempt to understand, why it is that they, and they alone, can work this passion: first, for freedom; second, for their own political beliefs.

The Chief Minister: They do not win such allies!

Mr Lee Kuan Yew: They do not what?

Mr Speaker: Order, please.

Mr Lee Kuan Yew: It is a significant point, and the Chief Minister should think more of it: that nowhere in SouthEast Asia is Communism more successful than in colonial Indo-China and colonial Malaya. I am not saying that India, Burma, Pakistan and Indonesia have not got their own Communist problems. Communism, as I understand it, and not only from textbooks, is a product of social and economic frustration and discontent. When you have this social and economic discontent and it is exacerbated by the irritants of colonial control, then you have a situation growing into cancerous proportions. I am not suggesting that if we are free tomorrow of the eminent members of the civil and legal services who sit with us here as of right under the constitution, we should be free from all our troubles. But I do say that we have a much better chance of resolving the internal social and economic discontent than we ever can have now. To me, Sir, it is an act of faith. If it does not work, then

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what can work? Violent military suppression of Communism? It has little chance of succeeding. It might succeed in South America because it is so far away and it is such a different world, where dictators come and go. But Asia in revolt, Asia on the march, is a very different proposition.

The Chief Minister, with his flair for colourful metaphor, will appreciate this when I say that the problem of Communist subversion and terrorism has become a cancer in our body politic. These Emergency Regulations at best can only be barbiturates. They numb the pain. They lull one into a sense of security, into an illusion that perhaps, after all, the thing that causes the pain is not there. But I myself would prefer a bold cure. I would take one bold step to freedom. Then I say we have a fighting chance to resolve our own social and economic problems when they are reduced to the proportions which they naturally assume in any part of the world, for anywhere social and economic discontent inevitably leads to industrial and social unrest.

I would say that such a free government, speaking for the people, deciding its destiny absolutely and unreservedly, could drastically repeal those parts of the Emergency Regulations which militate against the fundamental rights of human beings anywhere in the world. This would not lead to Communism if such a step were accompanied by an equally bold and drastic economic and social reform. To shrug and doubt is to admit defeat. You may stifle political discontent, but it will come out at some subsequent date in a much more virulent form. If we take our chance now, I say Malaya can succeed as an independent and free democracy.

The Emergency as a violent struggle is very probably going through a decline, and a new phase of bitter political struggle is opening up. If we do not relax these Emergency Regulations with a relaxing of this violence, then we are admitting to ourselves that we are irrevocably wedded to what I am sure the Chief Minister will agree is a totalitarian method of government.

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An hon. Member: Nonsense!

Mr Lee Kuan Yew: "Nonsense", Sir, covers up a lot of ignorance of many, many things. If it is not totalitarian to arrest a man and detain him when you cannot charge him with any offence against any written law - if that is not what we have always cried out against in Fascist States - then what is it? I am sure the Minister for Communications will be the first to say that that is what is wrong with Communist States. Then what is done in the name of democracy is right. When it is done in some other name, it is wrong. But these are fundamental beliefs. They may or may not work in Asia, that no one can say. But one can say this:one must have the courage to make it work, to try it; for if it cannot work, then the alternative is one of constant suppression the end of which no one knows.

I believe that for seven years now we have developed an Emergency mentality. Many people believe that the only way to keep down any form of agitation, which anybody may have exploited for their own personal or political ends, is by the use of repressive laws, more policemen, and more arrests. But this has been proved false after seven years. I hate to think that after another three or four years, or whenever it may be when the Chief Minister decides to go back to the people, that it is again to be proved false. It is such a futile answer to the Communist challenge. If we are to survive as a free democracy, then we must be prepared, in principle, to concede to our enemies - even those who do not subscribe to our views - as much constitutional right as you concede yourself. My plea - to quote from sonic-one in another context - is that the time has come in Malaya for an agonising reappraisal of strategy and strength. To go on blindly in the hope that somehow or the other suppression can prevent latent social, economic and political discontents from manifesting themselves and disrupting the structure of society is a piece of folly to which my Party does not subscribe.

I ask the Chief Minister, before he launches into another furious tirade

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against me and my Party, to think of the political implications it has, first, on himself and his Party, and, second, on Singapore and Malaya. My Party believes, passionately, that the only solution is a hard one, where a great deal of social adjustments may have to be suffered in order that a more stable and a just society could emerge in the non-Communist world in South-East Asia.

A picture speaks a thousand ironies

What a priceless picture! I can't get over the depth of irony that hangs in air.

At the height of repression by the Burmese military junta and throughout the period that Aung San Suu Kyi was subject to house arrest, the Singapore government, together with ASEAN, has taken a concilliatory stance towards the Burmese government. The officially stated position has always been that engagement with the regime would be more likely to bear fruit and that isolation through boycotts and trade embargoes would not be of any real benefit to the Burmese people.

Whilst one can argue endlessly about the merits of such a foreign policy approach, it is nevertheless true that Singapore maintain trade links with the Burmese government. Our government has never denied trading with Burma. But, there have been other allegations that have been made in the past pertaining to the export of arms from Singapore to Burma and the rather controversial allegation that we turn a blind eye to the drug related activities of members of the military junta. (The allegation about the drug related activities of the military junta has been circulating on the internet. But, the sources are not easily verifiable and it is the same few sites that have repeated the allegation. So, I will leave it at that - mere allegations.)

Whatever may be the extent of the trade and investment between the 2 countries, it is an openly stated position of the Singapore government (specifically during the period that George Yeo was the Foreign Minister) that engagement with the military junta is necessary.

Given the context of the Singapore-Myanmar relationship, I couldn't help but note the irony of the above picture that BG George Yeo shared on his facebook page. It would be fascinating to find out what went through their minds.

Is an unrestrained discretion compatible with the Rule of Law?

The official position in Singapore has always been that we respect the Rule of Law. When attempts by human rights organisations or foreign governments were made to run us down, our government has stood firm and insisted that we do respect the Rule of Law.

But, what does the Rule of Law entail?

A basic premise is the view that all exercise of power is subject to the law. I, as an individual, have no right to exert power over you in such a way that I might harm your property, your person or your life. Where I may attempt to do so, laws may legitimately be in place to prevent me from so harming you. This is reflected in a variety of criminal offences and civil liability. Equally, the state has no right to exert power over any of us except as it might have been lawfully authorised to do so.

At this juncture, we can take this in two directions. Firstly, the state is justfied in punishing us by depriving us of our life, liberty or property if we have breached a law that has been clearly stipulated. Secondly, the state is justified in exercising a general power of decision making in a way that affects our rights or activities so long as the same is done in accordance with the law.

The key here is the fact that the law is used as an objective and neutral intermediary between the state and the citizen. The state seeks justification for its actions in the law as predefined. The citizen demands that the state's power be exercised solely within the ambit of the predefined law.

This is all well and fine if the predefined law is in fact clearly defined. What if the law is vague? What if the law provides an area of discretion? What if the area of discretion is so wide as to render the law redundant?

Example 1:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held and towards this end a Writ of Election shall be issued by the President within 3 months of the date that the seat fell vacant.

Example 2:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held and towards this end a Writ of Election shall be issued by the President within a reasonable time.

Example 3:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held.

Example 4:
In the event that a Parliamentary seat shall fall vacant, the seat shall be filled by election.
In exercising his power to issue a writ of election, the President shall act on the advise of the PM.

All of the above examples contain discretion. The first example is restrictive and binds the President to issue a Writ of Election within 3 months. The second one restricts the exercise of discretion to a reasonable time. The third example doesn't stipulate a restriction. But, by requiring a by-election to be held, it does not leave it too vague to allow for an interpretation that might result in the election being postponed till the next general election. The fourth example appears to give a broad discretion for the seat to be filled and for this to be done in accordance with the PM's advise.

The broadest way of interpreting the 4th example is to say that the law provides that it is the absolute and unfettered discretion of the PM to determine when he would call for the by-election. Being an unfettered discretion as to timing, it might even be postponed all the way to the end of the Parliamentary term.

Although the 4th example is not on the exact terms as our Constitutional arrangement for by-elections, it is nevertheless similar. Our Constitutional arrangement is something that I blogged about here: http://article14.blogspot.com/2012/02/by-election-when-not-whether.html"

I beleive that the extent of discretion provided in the Constitution does not go as far as to permit the PM to decide whether a by-election should be held. But, it is however broad enough to be interpreted as giving him a broad discretion to decide when the by-election should be held. This is where the problem comes in. A discretion that is unrestrained and so broad is one that renders the rule nugatory. Unrestrained discretion is ultimately an afront to the Rule of Law.

Assuming that I am the King of this country and I were to declare that I will govern according to law, the expectation would be that my discretion would no longer be the basis of exercise of power. Power will now be exercised in accordance with law. But, what if I have a law that says: "Whatever the King determines to be the appropriate tax to be levied upon the people from time to time in his absolute discretion shall be the lawful tax." Such a law gives so broad a discretion to me that the law may as well not exist. The law negates itself.

Some of the broad interpretations of our Constitution as proposed by PAP leaders provide for such a possibility that the Constitutional guarantee of Parliamentary representation is rendered nugatory. Where possible, in upholding the Rule of Law, those that interprete the law (i.e. the judiciary) must adopt a restrictive interpretation on the exercise of discretion. Thankfully, in Singapore we have the Interpretation Act to assist us in relation to issues of timing. So, I believe that the PM's discretion to decide on the timing of the by-election should be restricted both by having regard to the Interpretation Act as well as by having regard to nothing less than the foundational and organizing principle of any rule-based society: the Rule of Law.

Who got the facts wrong? Kenneth Jeyaretnam or the MICA Press Secretary?

I did a double take when I read the rebuttal letter written by Mr Peer M Akbar to the Wall Street Journal. Firstly, a little bit of context: On 7th March 2012, a letter written by Kenneth Jeyaretnam to the Wall Street Journal was published. "Challenging Singapore’s Defamation Laws" In that letter, Mr Jeyaretnam made reference to his father's bankruptcy. The relevant part of the letter is as follows:

"As The Wall Street Journal is aware, my father, Reform Party founder Joshua Benjamin Jeyaretnam, was sued numerous times for defamation, culminating in being bankrupted over a few words in an article published in the Workers’ Party newspaper that he did not write and in a language (Tamil) whose written form he did not understand. This resulted in him losing his seat in Parliament and not being able to stand again before he died..."

My observation: KJ makes no reference to the timing of the defamation suit involving that article in the "Hammer" which was written in Tamil. He states that JBJ's bankruptcy resulted from a suit arising out of the Tamil article in the "Hammer". This bankruptcy resulted in him losing the seat in Parliament. I don't remember the events very accurately. But, I have a vague recollection that JBJ was in Parliament when he was declared bankrupt and that resulted in his disqualification. I also remember that there was a suit by some members of the Indian community against JBJ and one of the chaps was a lawyer. I used to hear a fair amount of Bar room talk about that lawyer being instrumental in JBJ's bankruptcy. So, Kenneth Jeyaretnam's letter did not shock me or surprise me. On 12 March 2012, Peer Akbur (the Press Secretary to the Minister for Information, Communications and the Arts) attempted a rebuttal of KJ's letter. The full letter is as follows:

Defending Singapore’s Defamation Laws 12 March 2012 Mr. Kenneth Jeyaretnam’s Mar. 7 letter to the editor, “Challenging Singapore’s Defamation Laws,” misrepresents basic facts. The article that he referred to was published in the August 1995 issue of the Workers’ Party publication The Hammer. J.B. Jeyaretnam was then the secretary-general of the party. The author of the article, the editor of The Hammer, and the Executive Council of the Workers’ Party (of which J.B. Jeyaretnam was a member) acknowledged that the article was “completely false and baseless” and accepted responsibility for it. They published an unqualified apology in The Straits Times on Nov. 23, 1995 and agreed to pay costs and damages. Contrary to Mr. Kenneth Jeyaratnam’s claim, this episode did not cause J.B. Jeyaretnam to lose his seat in parliament—he was not even a member of parliament at that time. Nor did it prevent J.B. Jeyaretnam from contesting the subsequent general elections in 1997, and being selected as a non-constituency member of parliament. Singapore holds its public officials to the highest standards of probity and integrity. Ministers and officials who have committed offences have been charged and jailed. Court judgments in all these cases are published, and fully open to scrutiny. At the same time, ministers who are defamed will sue to clear their name and take the stand to be cross examined. The right of individuals to protect their reputation is as important as free speech. In a healthy democracy, vigorous political debate does not involve defamatory attacks. In Singapore’s 2011 general elections, the same Workers’ Party that J.B. Jeyaretnam once led achieved its best performance since independence, with several MPs elected into parliament. It faced no lawsuits. Mr. Kenneth Jeyaretnam and his party also contested the general elections, albeit less successfully. . Peer M. Akbur Press Secretary to the Minister for Information, Communications and the Arts

This article caused me to question my own memory. On the face of it, everything appeared to be factually accurate. A quick check on the net showed that in 1995 JBJ was not in Parliament. He entered Parliament again in 1997 as a Non-Constituency MP via Cheng San GRC. So, MICA's assertion appeared to be accurate and KJ appeared to have got his facts mixed up. But, I was confused. I still carried a vague memory of the bankruptcy resulting from that particular claim. Thank God for the internet, I have proof postive that I have my memory and sanity intact. Firstly, this is a Reuters article reproduced by "Singapore-Window": Secondly, in 2009 the Ministry of Law had responded to a White Paper on Repression of Political Freedoms in Singapore by Amsterdam and Peroff. In that response, under Annex 2 the following assertions were made by the Ministry:

Mr Jeyaretnam’s bankruptcy in 2001 had nothing to do with the Government. It arose from a defamation action brought against Mr Jeyaretnam by the Organising Committee for the 1995 Tamil Language Week, the majority of whom were not politicians. They had argued that Mr Jeyaretnam had committed a very serious libel when he alleged that the Committee was seeking political gains by “nakedly prostituting itself”. Mr Jeyaretnam refused to withdraw or apologise when sued. The court found against him and ordered him to pay damages, but he was unable to pay. Mr Jeyaretnam also had other outstanding debts. Arising from the bankruptcy, Mr Jeyaretnam’s expulsion from Parliament followed due process as provided for under Article 46(2) of the Singapore Constitution. As a bankrupt, Mr Jeyaretnam would have been disqualified from practicing as a solicitor; however, he had not renewed his practicing certificate and had ceased to practise law at the point of his bankruptcy.

So, the facts as the turn out.... KJ was not wrong in his assertion about the defamatory article that led to his father's bankruptcy. Peer Akbur is wrong to state that the episode did not result in JBJ losing his seat in Parliament. It did result in the loss of the Parliamentary seat. In fact, I would have expected the MICA response to play the safe tune that MinLaw played which was to state that the bankruptcy was not brought on by a defamation suit by the PAP leaders but rather by members of the Organising Committee for the Tamil Language Week. Mr Peer Akbur. You have to do better fact checking than that when you are trying to represent the Ministry's position. It's ok. It is not too late to come forward and say that you stand corrected. :-)

PM: I intend to call a by-election. I have not decided on the timing.

The PM has given his official response to the Hougang by-election issue. The following is the relevant part of his statement in Parliament:

"The Hougang Single Member Constituency (SMC) seat is vacant after the Workers’ Party expelled Mr Yaw Shin Leong, following several weeks of media reports on Mr Yaw’s personal indiscretions. I intend to call a by-election in Hougang to fill this vacancy. However, I have not yet decided on the timing of the by-election. In deciding on the timing, I will take into account all relevant factors, including the well being of Hougang residents, issues on the national agenda, as well as the international backdrop which affects our prosperity and security."

This is the proper response that we expect from our Prime Minister. I believe that if this was the first reponse from him when the news of the vacancy in Hougang broke, there would have been very little noise from the public. For sure, there would have been pressure for the by-election to be held sooner rather than later. But, the kind of loss of political capital that the PAP has arguably experienced as a result of brandishing technical arguments through semantics could have been avoided.

It is simple. The Constitution mandates a by-election. There is no 3 month time limit. It is the PM's discretion. He just needs to exercise it within a reasonable time. The PM has pretty much stated that this is the legal position and I have no qualms with that. All those people that were arguing about whether the PM can refuse to hold a by-election can crawl back into the woodwork. The PM has clearly acknowledged that he has to call for a by-election. It is a question of when.

PM Lee:

"Article 49 of the Constitution states that when a seat falls vacant it shall be filled by election. In an SMC, a seat falls vacant when the MP vacates his office, for example when he is expelled from his political party, resigns his seat, or passes away. The timing of the by-election is at the discretion of the Prime Minister. The Prime Minister is not obliged to call a by-election within any fixed timeframe."

And now we wait. My guess is May/June.

860K for assisting the Review Committee?

The report on a Written Answer provided by DPM Teo in response to a question tabled by WP MP Pritam Singh nearly made me fall off my chair..

A sum of 860,000 dollars was paid to a human resource company (Mercer) for its work in assisting the Ministerial Salaries Review Committee by providing its technical expertise on human resource and remuneration issues.

Immediately, questions started racing through my head.... Here they are in random order....

Why was there a need to get an external consultancy to provide assistance? Wasn't the Salaries Review Committee itself possessed with sufficient skills for the job? If they were not sufficiently skilled, why not appoint persons to the committee that had the necessary skills?

Was the Committee specifically authorised by subsidiary legislation to call for consultancies from the private sector to bid for the project? The Committee itself performed delegated functions and accordingly could not have delegated this function to 3rd parties unless there was lawful authorisation. What was the lawful authorisation given to the Committee to obtain the assistance of a private company?

Assuming that such authorisation existed, what was/were the terms of reference given to Mercer? What was in Mercer's report to the Committee? Did Mercer make any recommendations for the reduction of salaries and if so, how much of a reduction. To what extent was the Committee's findings based on or influenced by the recommendations of Mercer? Why was there no indication previously about the existence this outsourcing arrangement?

Let's forget about what has happened, Can the report by Mercer be released to the public now? The 860,000 is taxpayers' money. We deserve to know what was in the report by Mercer. If it cannot be released or the politicians deem it undesirable to be released, what is the reason or justification for not releasing the Mercer report?

So many questions... what are the answers?

New Normal 101: How to react to a vacant Parliamentary seat?

There is general consensus that Singapore citizens have evolved. The old unquestioning attitude is still there in many quarters. But, a significant part of the population is questioning, demanding answers (often vociferously) and refusing to back down. Given the fact that the opposition vote in the 2011 Genereal Elections was slightly over 800,000 and that even amongst many PAP supporters there is a certain amount of disillusionment (that was partly reflected in the significantly small percentage of votes received by the "endorsed" candidate for the Presidential Elections), many commentators have boldly painted the picture of Singapore walking into a new era of politics.

There is no doubt that many citizens today have little tolerance for the politics of yesterday. 'More of the same' is no longer an option for the PAP. For a time after the General Elections last year, I started believing in the serious possibility that there might be a change of style in the way that PAP governs and seeks to govern in the future. But, recent events (threatened legal actions for defamation and refusal to call for a by-election in Hougang) appear to be an indication that it is difficult to teach an old dog new tricks. (For the avoidance of doubt, that is a figure of speech and not an insult in the vein of that PRC student's 'dog' remark.)

After the Yaw Shin Leong saga, I thought that the PM would play the game 'new-normal' style and affirm the Hougang residents' constitutional right. Instead, the knee-jerk reaction was to give an answer that was pretty much in keeping with the old approach. This has led me to ponder on how the PM could have reacted to the announcement of the Parliamentary vacancy. If I was the PM, this is how I would make a press statement:

"What has happened in Hougang is most unfortunate. Not only do we expect persons taking up public office to be of high competence and calibre but also to be possessed of good moral fibre. We do not know whether the rumours surrounding Mr Yaw were true. It appears now that when confronted by his own Party colleagues, he has failed to account to them on the truth or otherwise of these rumours.

Whatever may have happened, we do not seek to judge. The Parliamentary seat is vacant and the residents of Hougang have been deprived of representation in Parliament. This government is committed to the democratic franchise and the residents of Hougang have my assurance that a by-election will be held. I have not, as yet, made any decision as to the timing of the by-election. But, I will not stand in the way of the Constitutional rights of the citizens of this country. A by-election will be called expeditiously and a public announcement will be made in due course."

What has the PM got to lose by making the above statement? Nothing. The reality is that Hougang is a constituency that is not going to revert back to the PAP in a hurry. If the next General Elections are held in 2016, the PAP is bound to lose in Hougang barring some unforeseen developments. There is absolutely nothing to be gained in indefinitely postponing by-elections or in totally refusing to hold one. On the contrary, refusing to hold a by-election by relying on semantics does nothing more than alienate even the moderate voters.

How do you win political capital in a losing battle such as this? You change. You change your own operational philosophy. You recognise that political office is a privilege accorded to you by the electorate. You recognise that the right to vote and the right to have a representative in Parliament is too fundamental to be argued away. You internalise this concept more than any other partisan interests that you might have. Once you have done that, the words will come out naturally. People will notice the difference. People will begin to believe that change has not only taken root in the minds of the electorate but also in the minds of the political leaders. With that believe will come a willingness to engage in dialogue. With such dialogue, the groundwork for winning back votes can be laid.

You can't win back votes through perception management. You can do so if you change your thinking about democracy and the Constitution.

By-election: When? not Whether!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bye Yaw, and now for the By-Election

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

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

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

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

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

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

The Politics of Affairs

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

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

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

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

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

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

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

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

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

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

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

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

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

Did the Workers' Party let down its voters?

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

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

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

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

A Humourous footnote

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

Burma moves forward

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

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

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

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

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

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

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Death by prosecutorial discretion

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

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

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

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

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

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

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

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

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

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Who should I vote for?

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

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

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

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

Still undecided.

PA or PAP?

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

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

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

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

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

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

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

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

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

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

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

Please don't insult our intelligence.

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

Non-Partisan? My ***.

Three Tans and The TAN

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

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

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

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

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

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

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

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

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

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

BLACK SUNDAY MOVEMENT – Take 2

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

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

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

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

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

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

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

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

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

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