A sizeable opposition now is an insurance policy for the future

An English friend of mine once remarked that there is a close link between the free market economy and the free marketplace of ideas. Just as the former is reliant on the unfettered exchange of goods and services and the natural forces of competition so is the latter reliant on competing viewpoints seeking attention and acceptance with the most rational or the most socially relevant (given the particular age and location) being pushed to the fore.

It is a case of survival of the fittest idea.

The quality of debate hasn't been stellar in Singapore (with the exception of signs of intelligence emerging via blogosphere). Insofar as Parliament is concerned, MPs haven't been accustomed to vigourous debate and I guess the sedate Parliamentary air can seep into the cells through some kind of osmosis and affect the logical faculties.

The Worker's Party leader Low Thia Khiang, made on Monday what I thought was a rather uncontroversial and straightforward observation about the need for greater opposition presence in Parliament to act as a check and balance on the PAP-led government. He was making the point that people would have no recourse if the ruling party were to abuse its power, trample on people's rights and become corrupt.

In response to Mr Low's assertion PAP MPs are reported to have raised some arguments. From Channelnewsasia:

"Indranee Rajah, Deputy Speaker and MP for Tanjong Pagar GRC, replied that the citizens of Singapore have the right to vote against the PAP, and said Mr Low's suggestion is unsound.

She said: "If that day ever comes, then the people are at liberty to vote out the PAP government and should do so in that situation.

"The premise of Mr Low's suggestion is flawed. He's really saying just in case PAP becomes corrupt in the future, then people had better vote for the opposition now.

"But if you apply the same logic, then the argument can also be made that if you vote in the opposition, then they may become corrupt in the future, so in order to avoid that, you might as well vote for PAP now." "

Ms Rajah's assertion (that when the PAP government does become corrupt in the future, the people of Singapore are at liberty to vote out the PAP) is rather surprising. Let us assume that we have the same power balance in Parliament in about 20 years time. Let us assume that there emerges clear evidence of corruption amongst a number of Cabinet Ministers of that future date. The people of Singapore decide to vote the PAP out of power. But, guess what. The opposition parties are weak and crippled by political impediments that currently exist and presumably would continue to exist at that later date. They are unable to field enough candidates and on nomination day the PAP gets a majority. Alternatively, the opposition parties manage to cobble together enough candidates and manage to deny PAP its majority and a coalition of opposition parties comes to power after the election. From a mere 2 MPs in Parliament, the coalition of opposition parties suddenly has let's say 50 MPs. These fresh Parliamentary faces would now have to figure out governance of the nation from scratch.

The problem with Ms Rajah's argument is that she expects to have a change in government the minute the PAP is corrupt. The presence of a sufficiently viable opposition in Parliament is so that if the existing government should become corrupt, the people have the choice of turning to an alternative that is waiting the wings and is ready and competent to govern. It is an insurance policy for the citizenry.

The reason why democratic elections present a better alternative to autocratic systems is because they allow citizens the opportunity to alter the persons exercising authority when the need arises through a stable process instead of causing a shock to the system. If a country had no elections to begin with, the only way that the citizens could alter the corrupt leadership is by popular revolution and other such drastic means. In a country that has an electoral process, the people are afforded the opportunity to replace their leaders peacefully and without placing undue stresses on the machinery of government. But, merely having the right to vote out the leaders is not going to ensure that there is no shock to the system. A key component of a viable and mature democracy is the presence of a competent and sizeable opposition in Parliament: an alternative that is waiting in the wings; one that can not only deliver peaceful change in leadership but can also govern from Day 1 (instead of coming in suddenly like a revolutionary government with popular backing but little experience and hence still constituting a shock to the system)

Ultimately, it is about having a system in place that will ensure peaceful and smooth transitions inspite of the individuals that pass through the halls of power. If citizens are to refrain from having any opposition in Parliament until something goes wrong with the PAP government, then it would be too late to attempt a complete overhaul. Such an attempt at overhaul would be equivalent to producing a revolutionary government with all the attendant potential problem that an inexperienced leadership could bring.

If in the next few elections, the opposition gets a foothold in Parliament, then in the long run they would be able to present that viable alternative to that hypothetically corrupt PAP 20 years down the road.

There is one other point to the presence of a visible and viable opposition. On the assumption that the ruling party becomes corrupt, who is to raise the issue in Parliament? Who is to exercise independant oversight? Of course, I can imagine that the retort would be that 1 opposition MP is sufficient for this purpose. Now that the PM has announced that there would be 9 opposition MPs (elected MPs and NCMPs), one could argue that these 9 could act as a check. The problem with this is that a small group of MPs would be ineffective in exposing corruption compared to a critical mass of opposition MPs.

Above all, a truly virulent Parliament that acts as the voice of the people is only possible through the diversity of views, ideas and arguments presented in public and debated vigourously. The weaker arguments will be exposed for the people to see and the more cogent ideas will come to the fore.

James Madison in the Federalist Papers once warned that when giving out political power we must bear in mind that 'enlightened statesmen will not always be at the helm'.

A Good read from the foreword to Francis Seow's book

Only "objective" and "factual" political films please, we're Singaporeans: Lee's Betrayal of PAP and Singapore : Devan Nair

The Marxist Conspiracy of 1987 - revisiting a legal footnote

Five young activists have organized a gathering at Hong Lim Park to commemorate 21st May 1987. I’m glad to see that there are still many who recall the alleged ‘Marxist Conspiracy' of that era. I was 19 at that time and watched incredulously as a parade of tales emanated from the available media outlets.

There are so many things that we could recollect in relation to those days. Where were we? How did the news unfold? The general skepticism amongst many of us. I’d like to use this occasion to commemorate the day that our judiciary stood tall in the context of the rather limited legal role that it has in the review of executive action.

Chng Suan Tse v Minister for Home Affairs (1998) SLR 132
The case involved Operation Spectrum and the primary issue was over the court’s ability to review the Executive’s decision to detain under the Internal Security Act. It proved to be a landmark decision as the Court of Appeal chose to apply an objective test in assessing the discretion of the Executive instead of applying a purely subjective test as the courts had done in the past. Prior to this case, the position of the courts was to adopt a subjective approach as in the case of Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137.

What was the implication of the Chng Suan Tse decision? The Internal Security Act demands that the as a precondition to detention, the President be ‘satisfied’ as to certain matters. If the test was purely subjective as it was in Lee Mau Seng, there was little that a detainee could do to question the exercise of discretion. If the test was objective as propounded by the Court of Appeal in Chng Suan Tse, then it was possible for the court to assess at least whether objectively the President was ‘satisfied’.

The then Chief Justice, Wee Chong Jin stated in the judgment:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so.”

“It must be clear therefore that the boundaries of the decisionmaker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. There is also, as counsel for the appellant has pointed out, no ouster clause in respect of s 8 or 10 of the ISA. Adopting the objective test in respect of ss 8 and 10 of the ISA would also be consistent with arts 9(2) and 93 of the Constitution. Further, it is, in our view, no answer to refer to accountability to Parliament as an alternative safeguard. As Lord Diplock put it in R v IRC, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 644:
It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge


The Court went on to rule that:

"the President’s satisfaction under s 8 of the ISA and the minister’s satisfaction under s 10 of the ISA are both reviewable by a court of law as:
(1) the subjective test adopted in Karam Singh [1969] 2 MLJ 129 and its progeny can no longer be supported and the objective test is applicable upon a judicial review of the exercise of these discretions; and
(2) although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations; similarly, although the court will not question whether detention was necessary for the purpose specified in s 8(1), the courts can examine whether the matters relied on by the executive fall within the scope of those specified purposes"


Of course, the story did not end there. Parliament duly amended the Internal Security Act in 1989 to nullify the effect of this case in relation to detentions under the ISA. By virtue of s.8B, the law on judicial review with regard to the ISA detentions was brought back to the position in 1971 and by virtue of s.8D the legislative change was to have effect in relation to any proceedings whether commenced before or after the amendment.

Law applicable to judicial review.
8B. —(1) Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply.
(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.
- Act 2/89 wef 30.1.89.

Commencement provision.8D. Sections 8A and 8B shall apply to any proceedings instituted by way of judicial review of any decision made or act done under the provisions of this Act, whether such proceedings have been instituted before or after the commencement of the Internal Security (Amendment) Act 1989.
- Act 2/89wef30.1.89.

Israelis Look to Obama for peace

It is often the case that one perceives a monolithic Israeli perspective as presented by AIPAC and other pro-Israel lobby groups in the United States. What is particularly ironic is that the press in Israel itself represents a broad spectrum of views and perspectives that one does not usually get to see through the filter of the global mainstream media.

I found the following article rather interesting for its analysis of the liberal perspective of the Israeli press.

Israelis Look For Hope In Washington
Mark Leon Goldberg - May 18, 2009 - 11:25am

Diplomacy
As it happens, I am in Israel this week. And in Israel, all eyes are on Washington, D.C. as Prime Minister Benjamin Netanyahu visits the Obama White House for the first time. The meeting, however, has the potential to be somewhat awkward the Israeli Prime Minister has yet to endorse the "two state" solution.

Scanning the Israeli press today it is stricking to see the degree to which Israelis are depending on Obama to press Netanyahu to once and for all endorse a two-state solution. For a good chunk of the Israeli body politic, all hope lies with Obama. Ha'aretz has a three-fer of editorials today which all reinforce this same point.

The lead editorial in Ha'Aretz advises Bibi to "say 'yes' to Obama:"

Now Netanyahu must show he can set aside his ideological opposition to dividing the country and support for expanding settlements and, for the good of the state, strengthen relations with the United States and advance the peace process with the Palestinians and the Arab states.

The Israeli public expects him to adjust his political stances to international reality.

Gideon Levy calls for a "political U-turn by the prime minister," and see's the American president as Israel's "final hope."

Obama is the final hope: Only if he throws his entire weight into the process will anything in the Middle East start moving. Any American president could have long ago brought about substantial progress, first and foremost ending the intolerable Israeli occupation. But Obama's predecessors shrank from the task, preferring to yield to the Jewish and Christian lobbies and to engage in masquerades of negotiations leading nowhere.

And Zvi Bar'el says an endorsement of a two state solution


As Prime Minister Benjamin Netanyahu lands in Washington Sunday, he brings a valuable gift for U.S. President Barack Obama: new U.S. legitimacy in the Middle East. If Netanyahu says the right password at the White House gates - "two states for two peoples" - Obama will have his first Israeli political achievement. Then there will be no escaping attributing this ideological compromise to American pressure on Israel.

Bottom line: A nation turns its lonely eyes to you, President Obama

Dendrobium Thein Sein (as amended by the Public Order Act)

tall and proud;
an assembly of one and more
on a stalk.

Dendrobium Thein Sein

Tall and proud;
A gathering of more than five
On a stalk.

Two shoes and a Bush

Reactions from CNN panel as they witness history

Restoration of America

I posted the following on the Soulcast blog on 18 August 2006 and it was titled: "Why I admire America". Today with the historic election of Barack Obama as President, I feel compelled to repost it here:

I am not an American. I am probably one of millions of people around this planet seething with anger about American foreign policy and what it has done and what it is doing to the rest of the world. I express negative views about the Bush administration's policies. I oppose the so-called "war on terror" used as a cover for domination of oil resources in the middle east. etc. etc. etc.

An American listening to me might easily assume that I have a lot of disdain for the USA and Americans. But, I'll let you in on a secret.

I love all the great and glorious ideals of freedom and liberty that America stands for... those ideals that are enshrined in its constitution. As someone living in a country where freedom of speech, freedom expression and freedom of assembly have been practically wiped off the public domain (driving most of us into the last frontier of the internet), I have always admired Americans and their ideals. And I guess, that is why it has pained me to witness the gradual erosion of those rights and ideals in the USA since 9/11. If the PATRITOT ACT, guantanamo, domestic surveillance under inherent executive powers and such other assortment of legal and extra-legal measures are utilised to destroy rights in the very place that I looked up to as the beacon of liberty, then what can we say about the future for the rest of us living in repressive societies of varying degrees.

Like the rats migrating to America believing that there are no cats in America (a la American Tail), those of us in other parts of the world have lived under the impression that America is truly a land of the free. The post-9/11 USA looks terrifyingly like an Orwellian nightmare.

But, amidst all of the gloom of the last few years, here is again another reason why I love America......

A Federal Judge has ruled that the NSA wiretapping authorised by the President under supposedly inherent powers is illegal. This is what she said:
“We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all ‘inherent power’ must derive from that Constitution.” “The Government appears to argue here that …. because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.”

Ultimately, even when the Executive appears to assume excessive powers, there is enough sanity and independance within the Judiciary to ensure that the Constitution and the rule of law are not usurped.

Thank God for the sane voices. Long live liberty.

That was posted two years ago as I saw a glimmer of hope in the Supreme Court repudiation of the Bush enchroachment on civil liberties. Today, I hope that the Obama Presidency would usher in a return to America's core constitutional values and by doing so restore that great nation to its rightful status as the beacon of liberty.

The 44th President of the United States of America

The scenes are euphoric. The moment is historic. A man of partial African origin has become the President-elect of the most powerful nation on this planet. At this point I think the following words of Martin Luther King are apt:

From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!

Thank God Almighty, we are free at last!³

Ultraman can protest at Hong Lim: Superheroes have saved the Singapore Constitution

Approximately a year ago the following article appeared on Reuters:

Singapore anime figurine protesters meet real police
SINGAPORE, Sept 7 (Reuters) - A protest action by a group of Singaporeans with Japanese anime figurines such as the 5-inch tall Ultramen, robots and monsters with placards met some real-life police in the city-state.
A handful of fans of Japanese anime had turned up at a Singapore public park on August 25 with armfuls of the toys to protest against a clampdown on Internet downloading of anime material by Singapore animation distributor Odex.
The incident was not reported in the local press, but pictures and accounts have started circulating on many blogs and political Web sites. (http://textfiend.net/zerohero/?p=454).
"The police didn't stop us from what we wanted to do. But their being there was enough to intimidate," the event's organiser -- who only wanted to be known by his online moniker Zer0 -- told Reuters by telephone.
He added that police -- who had four anti-riot vans at the scene -- also took down the anime fans' particulars and that they were filmed by plainclothes policemen. A police spokeswoman said she could not immediately comment.
Public protests are rare in Singapore, where outdoor demonstrations are banned and any public gathering of more than four people requires a permit.

What a long way we have come. At the National Day Rally last week, the PM announced that Singaporeans can now protest peacefully at Speakers’ Corner without a permit. It seems that this can be done from 1st September onwards. Civil Disobedience has worked! Singaporeans may have remained a little fearful of entering into the political fray. But, Ultraman and gang are superheroes with supercourageous hearts and not to mention deadly powers, skills, etc. They have done an excellent job in getting the authorities to relent a little. None of the superheroes were arrested or charged. Now, a year later, it is perfectly legal for all Singaporeans to gather and protest at Hong Lim.

So, it is with great pleasure that I commemorate the anniversary of the Anime protest today. :-)

A note to Ultraman: You still cannot protest at the Youth Park.

errrrrr..p - Who wrote the rally speech?

National Day Rally speeches are not intended to be funny. I am sure, however, that any good speaker would throw in a joke or two in the speech just to hold on to the attention of the audience. So, how is this for a joke:

'When ERP was increased, we also reduced road tax and improved public transport. As a result, many more Singaporeans can now own cars. With more cars on the road, we need to increase ERP to keep traffic flowing.' - PM Lee Hsien Loong, National Day Rally 2008

ERP was intended to reduce traffic.
COE system was also intended to reduce traffic.

According to the Straits Times report today (18 Aug 2008): 'He said that since 2000, the Government has been making it easier for many more Singaporeans to own cars. Vehicle-related taxes have been progressively reduced and more Certificates of Entitlement (COEs), which one must have before purchasing a car, have been released.'

This has made vehicle ownership easier and put more cars on the road.
This has increased traffic.

Solution: Increase the ERP.

And then, when it starts doing its job, implement more policies to put more cars on the road. When when traffic gets worse, increase ERP.

A never-ending spiral of ever-escalating costs. A money tree that really grows. Wow! That's brilliant.

To be fair, I merely read the quote in the Straits Times article online. Something could have been lost in the translation. Perhaps there is some nuance to the words that may be better apprehended if one watches the speech. Perhaps it was a candid admission of a flaw in the policy of making car-ownership easier since 2000 and that something would be done to fix it once and for all and that it would not be turned into a cash-squeezing spiral.

General Elections in 2009?

The PAP prepares for its elections early. There is nothing unusual in that. I think there are some early signs that the ground is being prepared for the next GE. I know. We had the last one in 2006. But, a GE after 3 years is not unusual in Singapore. I predict that there might be one towards the end of next year.

Recently, MM Lee warned Singaporeans about a freak election wiping out all that has been achieved in 5 years. SM Goh spoke virulently about winning Hougang back and urged members of grassroots organisations (who ought to be non-partisan) to question fiscal capabilities of opposition run town councils. We have seen a series of articles about the Singapore brand of governance, always intended to differentiate ourselves from Western-style liberal democracies and to defend our pragmatic bread and butter theory of governance. (A certain someone said 2000 years ago that men shall not live by bread alone.)

On 21st July 2008, the Parliamentary Elections (Amendment) Bill was tabled in Parliament for the First Reading. Of course, I wondered if they were going to change the electoral system a little bit here and a little bit there. A cursory glance of the Bill reveals that the amendments are directed at overseas voters.

In today’s Straits Times I read that MM Lee has again warned Singaporeans against voting for the opposition. The latest assessment is the Singapore miracle could disappear within 3 to 4 years; not 5 years. In an earlier post, I have addressed this issue of a ‘freak’ election. What I find interesting about the statement in today’s paper is that to placate our desire for more opposition voices, the system might make some accommodations.
'We know that Singapore wants opposition to check the PAP. We'll find a way to have more voices inside the assembly, but not at the risk of voting in a Division 2 or 3 Government.' - MM Lee

I wonder if there are now plans for more Nominated MPs. Maybe, elected Nominated MPs. MPs nominated by a Parliamentary Committee and presented to the people for an island-wide election where the best vote winners get seats. Who knows… I better not give them funny ideas.

I digress… Coming back to my original point, it appears that there is some talk in the air about elections. Not talk of the obvious kind. That would commence when the Straits Times comes out with some opinion piece or other about elections or electoral boundanries. (wait a minute - didn't they recently discuss the GRC system in ST?)
At a time when we are facing inflation and there is a segment of the population that has not experienced wage increases for the last 10 years, some would say it would be foolish for a ruling party to start talking about elections. But, the PAP is very well experienced. They are not going to call for elections the minute talk about elections has been put around. Eventually, they will wait for the 3-year mark to be crossed. The current global economic climate is somewhat uncertain. We will feel some of the effects and it is possible that this would be status quo for the next few years. So, the best strategy would be to get the people to look ahead long term, bite the bullet and stay the course. If this rhetoric of freak elections, our brand of democracy (that we ought presumably be xenophobically proud of), alternative ‘voices’ (not votes) in parliament, economic fragility, etc is maintained for about a year, it will sink into the collective psyche and form part of the overall narrative for the citizenry to accept more PAP years.

But, if the ground is not sweet towards the end of next year, I wouldn’t be surprised if the GE will be held off until a sweet spot opens up. So, since I’m not really a betting man, I’m not making any predictions. :-)

A peek under the carpet

I saw this on Diary of a Singapore Mind. But, I think it is important enough to be re-posted. So, here it is - the combined effect of inflation and wage freeze. Not all of us are similary squeezed. But, there is a sizeable part of our population that is suffering. I find it painful to watch old people queue up for food. These are our nation builders. They should be enjoying their retirement.

Is the Constitution redundant?

Dr Ong Chit Chung was the MP for my former constituency, Bukit Batok. I felt that as a mark of respect I should refrain from discussing the issue of a by-election until after the passing of a week. I have met the man on two occasions. Once at a meet-the-people session and once when he made a house visit as part of gathering support for the lift upgrading programme. My condolences to his family.

Now that his seat is vacant, should a by-election be held? What is the legal position?

According to the Today paper, Halimah Yacob (Jurong GRC MP) said that the constitution “does not require a by-election”.

Based on an earlier report from the Today paper, Dr Thio Li-Ann is supposed to have expressed the following views:

No by-elections need to held “until there’s no one left in the GRC”. But while there was no legal requirement, she was of the view that “when you elect a team, you elect a whole team; so since this is not the team anymore, you should see if people want a new team.” – Today, July 14 2008

Let us see what the Constitution says:

Article 49 of the Constitution of the Republic of Singapore
Filling of Vacancies
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.
(2) The Legislature may by law provide for —
(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;
(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.


Therefore, if a seat is vacant and it is not because Parliament has been dissolved (i.e. this is not a general election) then the vacancy shall be filled by election.
The Constitution requires that the vacancy be filled by an election. Therefore, when an MP has passed away and there is a vacancy, a by-election must be held.

What is the manner in which the election is to be held? Article 49 states that the election will be in the manner provided by any law relating to Parliamentary elections.

There is a law relating to Parliamentary elections in Singapore. That is the Parliamentary Elections Act (cap 218). The relevant provision of the PEA is as follows:

Writ of election
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.
(2) Every such writ shall be in Form 1 in the First Schedule and shall specify the date or dates (referred to in this Act as the day of nomination) not being less than 5 days nor more than one month after the date of the writ and the place or places of nomination (referred to in this Act as the place of nomination).
(2A) In respect of any group representation constituency, no writ shall be issued under subsection (1) for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.


Section 24 deals with the issuance of a Writ of Election. During a General Election or when a by-election is called, the President issues a Writ of Election. Section 24, Subsection 2A, states that no writ of election shall be issued for a GRC unless all MPs in that GRC have vacated their seats.

On a surface reading of s.24 of the PEA, one would get the impression that there is no necessity to have a by-election. But, isn’t this inconsistent with the Constitution?

Article 49 is clear that the vacancy ought to be filled by election. At most it merely makes allowance for the election to be held in accordance with a procedure prescribed for Parliamentary Elections. The PEA is a statute that prescribes the procedures for parliamentary elections. However, the PEA attempts to assert that no Writ of Election shall be issued in the case of a vacancy of a seat in a GRC. This is clearly inconsistent with the Constitution.

The Constitution does not allow Parliament the discretion to pass a law that would negate a by-election. It allows Parliament to pass laws that would prescribe procedures for the conduct of elections. The words in the Constitution are very clear: “in the manner provided by or under any law”. It does not say that Parliament is permitted to pass laws that prevent the filling of vacancies. It says that vacancies must be filled. The manner in which they are filled can be provided under the law. However, the PEA seeks to exclude a by-election altogether. By providing that the President shall not issue a Writ of Election, the PEA has effectively overridden the Constitutional provision that an election shall be held.

Hence, s.24(2A) of the Parliamentary Elections Act is unconstitutional.

Article 4 of the Constitution:
This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.


So, my question to those who claim that the Constitution does not require a by-election or those who try to adopt a ‘practical’ approach to the question of looking after the constituency is this: Have you read the Constitution? If not, please do so. If yes,please explain how the s.24(2A) of the Parliamentary Elections Act could be consistent with Article 49 of the Constitution.

Of Word Games and Human Rights, democracy, rule of law and all that Jazz (Part 2)

In continuation of my earlier blog entry where i was analysing the Ministry of Law's response to the IBA report, I was planning to do an analysis of paragraphs 7 & 8. These are the relevant paragraphs:

7. The human rights allegations in the Report also have no substance. Singapore had responded in detail to them in our 9 April response to the draft report. Singapore, like nearly all countries, subscribes to the Universal Declaration of Human Rights. Human rights are interpreted and implemented according to the specific histories, cultures and circumstances of each country. Every society must find and decide the appropriate balance between rights and responsibilities for themselves. Human rights groups in IBAHRI have closed ranks with other Western human rights NGOs to prescribe for Singapore and all new countries, especially China, Western norms of liberal democracy as the only way to bring stability and prosperity. They believe that free market policies cannot succeed without Western liberal democracy, and it is their mission to make other societies adopt the Western model.
8. No NGO has greater interest and understanding of Singapore's history and internal balance than Singapore's leaders, to be able to set norms that will work for Singapore. Whatever the shortcomings of the Singapore government, from our record no one has doubted that our overriding objective has been to get Singaporeans better educated, to understand and be exposed to the globalised world we are now in. So we adjust our laws and systems to maximise the benefits from global forces to make Singapore a thriving cosmopolitan city, where Singaporeans and foreigners live and work in a peaceful, safe and open environment. We listen carefully to all advice and then decide the right balance for ourselves. So far we have not done badly.


I find it difficult to digest the idea that IBA is closing ranks with other NGOs or that it doesn't have a right to render a friendly advice. Before I could formulate my thoughts coherently and write about those two paragraphs, I have read the following from Michael Backman in The Age, 17 July 2008:

As you read through the measured paragraphs of the IBA report, you can almost feel the pleading; the advice to a friend: "you're wealthy, you're educated, you're like us now. Take that final step — join us — the community of civil, prosperous societies. Do it, before you embarrass yourself more." But this friend is too proud to listen.

The full article is at http://business.theage.com.au/business/uniqueness-of-perfection-that-sits-to-our-north-20080716-3gdz.html

Whilst I don't agree with every aspect of Backman's article, his characterisation of the IBAHRI report as an advice of a friend is very apt. We have reached a level of development where we can safely cross over to the other side. There is no point in our government repeatedly asserting that given our unique cultural, social, historical, etc. background, we have to chisel a system that works best for us. There is surely a system that worked for us in the economic developmental phase of nation-builidng. But, we must remember that we are building a nation and not a company. The next step is the emotional fulfilment of being Singaporean; of having a sense of belonging; of having a sense of civic responsibility; of having a stake in the decision-making process; of having a say in relation to government policies; of being able to critique the political goings-on without the constant fear (imagined or otherwise) of reprisal lurking next to every thought that we wish to express.

We are more educated. We are economically more well off. But, why must freedom languish in the abyss. Let us lift ourselves and march confidently. Criticisms sharpen our perspectives, broaden our understanding and ensure enlightened governance.

nkosi sikeleli mandela

Happy Birthday to Nelson Mandela.

As a teen, I was greatly inspired by the South African struggle against apartheid. What a colossal struggle and what an amazing feat against all odds. Mandela is an inspiring icon of our times.
What I most appreciate about South African story is the Truth and Reconciliation Commission set up to heal the wounds of the people. Instead of allowing a cycle of violence to be perpetuated; instead of calling for retribution; instead of unleashing a lynch-mob, the post apartheid leaders embarked on the path of forgiveness and healing. An Amazing stroke of political genius.

Happy 90th Birthday, Nelson Mandela.

The following is a list of quotations from Mandela:

Let freedom reign. The sun never set on so glorious a human achievement.


For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others.


A good head and a good heart are always a formidable combination.


The greatest glory in living lies not in never falling, but in rising every time we fall.


Education is the most powerful weapon which you can use to change the world.


I detest racialism, because I regard it as a barbaric thing, whether it comes from a black man or a white man.


I learned that courage was not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear.


If there are dreams about a beautiful South Africa, there are also roads that lead to their goal. Two of these roads could be named Goodness and Forgiveness.


If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.


If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.


In my country we go to prison first and then become President.


It always seems impossible until its done.


It is better to lead from behind and to put others in front, especially when you celebrate victory when nice things occur. You take the front line when there is danger. Then people will appreciate your leadership.


Let there be work, bread, water and salt for all.


Money won't create success, the freedom to make it will.


There can be no keener revelation of a society's soul than the way in which it treats its children.


There is no easy walk to freedom anywhere, and many of us will have to pass through the valley of the shadow of death again and again before we reach the mountaintop of our desires.


There is no passion to be found playing small - in settling for a life that is less than the one you are capable of living.


There is no such thing as part freedom.


There is nothing like returning to a place that remains unchanged to find the ways in which you yourself have altered.


We must use time wisely and forever realize that the time is always ripe to do right.


And finally, a quote from his trial in 1964:

'I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.'

Inflation may lead to wage increase but there is no evidence the other way around

What was Mr Tharman talking about?

My layman brain is throbbing with a big, fat headache. Are there any economists out there that can explain?

Our Finance Minister says that wage increases will fuel a second round of inflation. I have been trying to work out the dynamics in my mind as rationally as I can. I have tried speaking to people to see if anyone can shed light on the relationship between wages and inflation. Looks like it can be argued both ways (for and against the Minister’s proposition). After doing a bit of google-searching, I have discovered this excellent policy discussion paper:

“Does Wage Inflation Cause Price Inflation?” by Gregory D. Hess and Mark E. Schweltzer (Policy Discussion Paper, Number 10, April 2000), Federal Reserve Bank of Cleveland

Gregory D. Hess is the Danforth-Lewis Professor of Economics at Oberlin College and an academic consultant to the Federal Reserve Bank of Cleveland.

Mark E. Schweitzer is an economist at the Federal Reserve Bank of Cleveland.

The Abstract of the discussion paper says it all:
“Recent attention has turned from unemployment levels to wage growth as an indicator of imminent inflation. But, is there any evidence to support the assumption that increased wages cause inflation? This study updates and expands earlier research into this question and finds little support for the view that higher wages cause higher prices. On the contrary, the authors find more evidence that higher prices lead to wage growth”


The conclusion that they reach at the end is:
“There is little systematic evidence that wages (either conventionally measured by compensation or adjusted through productivity and converted to unit labour costs) are helpful for predicting inflation. In fact, there is more evidence that inflation helps predict wages. The current emphasis on using changes in wage rates to forecast short-term inflation pressure would therefore appear to be unwarranted. The policy conclusion to be drawn is that inflation can appear regardless of recent wage trends.”

The policy paper can be accessed online:
http://65.89.19.70/research/POLICYDIS/pd1.PDF


On a related note, the European Central Bank recently warned against wage increases and alleged that wage increases would lead to another round of inflation. But, the European Trade Union Confederation has rebutted that. The following is an extract from a Reuters article dated 1 July 2008:


BRUSSELS, July 1 (Reuters) - Trade unions in the European Union chided the European Central Bank on Tuesday for urging caps on wage growth and reiterated their opposition to any interest rate increase.
The European Trade Union Confederation said ongoing wage bargaining or expected wage trends would trigger no second-round inflationary effects -- the feed-through of high energy and food prices into the wider economy -- as feared by the ECB.
"The ECB's concerns on wages are unfounded and dangerous. The ETUC calls upon the ECB to stop using wages as an alibi to hike interest rates," ETUC General Secretary John Monks said in a statement.

So, how did our trade unions respond? In fact, our Finance Minister was speaking directly to one of our trade unions. He was at a dinner organised by the Singapore Industrial and Services Employees’ Union. Mr Philip Lee, the Deputy President of the Union is reported to have said that his union would not push for higher wages. Incidentally, Mr Tharman is the Chairman of the Union’s Council of Advisors. Looks like the Union would be taking the Chairman’s suggestion to heart.

Of word games and human rights, democracy, rule of law and all that jazz

The International Bar Association has released a report entitled, ‘Prosperity versus Individual Rights? Human Rights, Democracy and the rule of law in Singapore.’ The Ministry of Law has responded swiftly to the report. Let’s see what the Ministry has to say.

From para 2 of MinLaw’s response:“2. From a quick perusal of the Executive Summary, we note that IBAHRI has not taken into account our comments on their draft report, sent on 9 April 2008. We release a copy of our comments previously given to the Chairman of the IBAHRI on the draft report, for your reference.”

It is MinLaw’s assertion that IBAHRI had not taken into account their comments. This is a reference to a letter dated 9 April 2008 from Mark Jayaratnam, Deputy Director of the Legal Policy Division of the Ministry of Law. I went through the IBAHRI report and for good measure I used the ‘search’ tool available for pdf files. Mark Jayaratnam’s letter is referenced by the report 19 times. They have ‘taken into account’ the comments. Although, it is clear that it does not necessarily agree with the comments, IBAHRI has, where appropriate, quoted from the letter to illustrate the Singapore Government’s viewpoint.

The moral of the story… don’t jump to conclusions based on a quick perusal of the Executive Summary. Surely, the Executive Summary is not going to exhibit the government’s comments. I suspect that when MinLaw asserts that IBAHRI did not take into account the comments, what they really had in the mind was that IBAHRI did not agree with their comments. One can take into account an opposing thesis and then disagree. The fact that one disagrees does not mean that one has not taken into account the opposing thesis.

From para 3 of MinLaw’s response:
“3. The IBAHRI Report questions the independence of the Singapore Judiciary. This is contradicted by Mr Fernando Pombo, President of the IBA, who stated in his opening speech at the IBA Conference in Singapore last October that lawyers the world over were coming to Singapore because:
"this country has an outstanding legal profession, an outstanding judiciary, an outstanding academical world in relation to the law".”

It is quite clear from the IBAHRI Report that the allegations directed at the issue of the independence of the judiciary are muted and qualified. IBAHRI does not go all out to claim that the judiciary is not independent. They have acknowledged the high standards maintained by the judiciary and the high standards within our legal system. But, they have sought to address the nagging doubt that is raised by some of the ‘political’ cases that have appeared before the courts. The criticism is measured and I believe it is not inconsistent with the IBA President’s comments at the IBA Conference last year.

“The judiciary in Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases that do not involve the interests of PAP members or their associates. However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient. In addition, it appears that some of the objective characteristics of judicial independence, including security of tenure, separation from the executive branch and administrative independence may be absent from the Singapore judicial system.”

IBAHRI’s comments and their findings do not assert an actual executive interference in judicial affairs. In fact, they are suggesting that there is room for improvement. After all, justice must not only be done, but must be seen to be done.

From Para 4 of MinLaw’s response:
“4. Other independent observers agree. The Political and Economic Risk Consultancy (PERC), which rates Asian countries on their business and legal environments, regularly rates the Singapore judiciary highly. PERC's Asian Intelligence Report 2006 explained that this was because the Singapore judiciary demonstrated three essential elements of judicial independence. First, the courts and individual judges within the system are publicly perceived to be impartial in their decisions. Second, judicial decisions are accepted by contesting parties and the larger public. Third, judges are perceived to be free from undue interference from other branches of government. The IBAHRI Report failed to acknowledge these facts.”

IBAHRI does refer to the PERC Asian Intelligence Report of 2006. In the section D of the Report under the heading ‘Singapore’s International Rankings’, IBAHRI has outline a number of rankings that rate Singapore very highly and some that rank Singapore poorly. Specifically in relation to the judiciary, this is what they say:

“In the judicial and legal system rankings, Singapore has also performed well in international assessments. In Transparency International’s Corruption Perceptions Index 2006, which measures the degree to which corruption is perceived to exist among public officials and politicians, Singapore ranked fifth in the word. Similarly, in an Asian-only based report, the Political & Economic Risk Consultancy’s Asian Intelligence Report 2006, strong commendation of Singapore’s judicial system was made, stating: ‘Within Asia, Hong Kong and Singapore are the only two systems with judiciaries that rate on a par with those in developed Western societies…’

So, the bone of contention for MinLaw is that IBAHRI did not acknowledge all of the accolades given by PERC. Clearly, if IBAHRI intended to carry out an independent study, it would take into account the findings of multiple sources and draw its own conclusions. We can’t expect IBAHRI to rubber stamp PERC’s findings. All that this indicates is that there is a variety of opinion out there about our judiciary. In any event, the point that IBAHRI seems to make is not so much that our judiciary is not independent but rather that there is a perception of lack of independence.



From Para 5 of MinLaw’s response5. The IBAHRI Report did acknowledge that "Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases", but it alleged that for cases that involve "the interests of PAP members or their associates", there were "concerns about an actual or apparent lack of impartiality and/or independence". Instead of substantiating this grave allegation with evidence, the Report argued that "regardless of any actual interference, the reasonable suspicion of interference is sufficient". This is a feeble justification.

Oh my God! Feeble justification. A very important principle of procedural justice is a ‘feeble justification’. Justice must not only be done but must be seen to be done. This principle is basic. The point is best illustrated through using the process of adjudication. If I judge a civil dispute involving my son as the Plaintiff and some other person as the Defendant, I might still be able to do the honourable thing and adjudicate impartially. I might assure the defendant that I will adjudicate based on the law and the evidence before me and that the Plaintiff will be treated as just any other person. It is not inconceivable that a true man of conscience with a deep sense of justice would be able to perform this separation of reason and emotion.

There is a story about a Chola king in Tamil Nadu that has passed into legend and it is eulogised in classical Tamil literature. Manu-needi Cholan had a son who killed a calf by riding his chariot over it. The king had a petition-bell outside the palace. Any person who felt aggrieved may ring the bell and seek justice. The mother of the calf was ringing the bell violently. The king eventually discovered through his aides the full story pertaining to the killing of the calf. He then ordered that his son be punished for the crime that he committed.
This story is always presented as an indication of how an honourable king would behave when adjudicating a dispute. The unstated fact is that impartiality in adjudication is not a norm and is usually an exception. Surely the norm is that a king would have difficulties in being impartial when his own son is involved. So, it is important that the king does not place himself in a position of a judge when his own son is the object of the complaint. However, that old Tamil story seeks to instill the value of impartiality within the ruler rather than to insist that a system of impartiality be created to distance the king from the adjudicative process so that we can guard against the human frailty (which is a norm rather than an exception).

In English law, which we have inherited, there is a deep sense of impartiality in decision-making that has been implanted within civil and criminal proceedings. In fact, instead of taking chances with the ability of fallible human beings in performing the mental gymnastics of separating their personal emotions (fear, favour, vested interests) from the rational processes, there is a principle of natural justice that no man shall be a judge in his own cause. If a judge is faced with a Plaintiff or a Defendant in a case and there is a personal financial or non-financial interest that the judge has in the case, he must not hear the case. The principle extends beyond actual bias and deals with apparent bias as well. Our own courts have in many cases held the principle to be of application in Singapore. Of course, this is a principle that is utilised in the course of judicial proceedings. So, a judgment can be quashed not only where actual bias is proven but also on the basis of apparent bias.

Therefore, in the context of judicial impartiality and/or independence, there is no reason why the standard of apparent lack of impartiality and/or independence should not be applied.

IBAHRI’s assertion is as follows:

“However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient.”

Note that the report does not state that there is no impartiality or independence. It states that there are ‘concerns’ about the ‘actual’ ‘or’ ‘apparent’ lack of impartiality and/or independence. In fact, they were at pains to point out that they were breaking ranks with other NGOs that go overboard in criticising the judiciary in Singapore.
This, however, is the allegedly ‘feeble’ point that they are trying to make: “regardless of any actual interference, the reasonable suspicion of interference is sufficient.”
The point is that it is not enough for a government to assert that there is no interference. Efforts must be made to ensure that the system is not capable of being abused. Efforts must be made to ensure that the system does not allow for the possibility of interference. Efforts must be made to ensure that there can be no reasonable perception of interference. In its report, IBAHRI uses the examples of Judge Michael Khoo, the trend in defamation suits and the Jeyaratnam case that went up to the Privy Council to illustrate the perception of interference. It is clear from the report that there is no actual evidence of interference.

When IBAHRI states that reasonable suspicion of interference is sufficient, they mean that a modern state such as Singapore should strive for a higher governance standard. We can no longer be judged like a third world country. We have first world standards in so many aspects of our life. Is there anything wrong in seeking to have a system of governance that excludes the possibility of executive interference in the judiciary?

From para 6 of MinLaw’s response
6. The cases brought by PAP members usually relate to scurrilous and completely untrue allegations of corruption made against them. Providing clean and efficient governance is a longstanding cornerstone of the PAP Government's policy. Thus defamatory allegations cannot be allowed to rest. The accuser has to prove his allegations. The decisions of the Courts in these cases are matters of public record, and can be analysed. Anyone questioning these verdicts should try to do so by examining these decisions properly, rather than making vague unsubstantiated allegations. What the western media continually criticise is that Singapore does not adopt Western, i.e. American, defamation laws that give the media freedom to report libellous untruths without liability to pay damages. It is also absurd to suggest that honourable and upright judges in commercial cases become compliant and dishonourable when dealing with defamation cases involving government ministers.
I will be fair to our judiciary in those defamation suits. The decisions have remained within the rational limits of the English law of defamation that we have inherited. Using defamation suits alone as a basis for alleging the perception of lack of judicial independence would be insufficient. IBAHRI does not rely on the defamation suits alone. In fact in relation to defamation suits, the bone of contention appears to be that statistically, PAP litigants have received much higher damages compared to non-PAP litigants. Incidentally, the IBAHRI statistics are a bit outdated. They end at 1999. IBAHRI also takes issue with the Summary Judgment procedure that is available under our Rules of Court for defamation suits. When a matter is disposed via Summary Judgment, the matter is not heard in open court. In suits involving politicians, this can run counter to the need for the public to view the proceedings so that they can form their own opinion and so that no allegations of executive interference can be made in the judicial process. It is from this perspective that IBAHRI have made their observations vis a vis he defamation suits.


Para 7 and para 8 of MinLaw’s response deserves a separate comment which I will attempt to do in a separate blog.

The Wisdom of a 15 year old

This is definitely the quotation of the week (maybe, it might even be the quotation of the year):
Jarret Huang (Secondary 3 student from Raffles Institution): "The sense of persecution is not a reactive measure in my situation but rather it is a pre-emptive measure taken such that certain things which are deemed incorrect cannot be said in certain situations.”

The red-herring that is often thrown at us if we directly question a minister about the curtailment of the freedom of expression is that we have false perceptions of persecution/restricions/etc. The restrictions that exist are purely in the interest of public order and safety and also national security. The restrictions do not prevent legitimate criticism.

Jarret Huang's response to Dr Vivian Balakrishnan's question about whether he feels persecuted hits the mark perfectly.

There is a political climate that has been carefully constructed and repeatedly reinforced that ensures that we practice self-censorship most of the time. It is not persecution but the fear of possible persecution that drives the self-imposed silence that many of us are guilty of.

Once in a while, a little boy would stand up and tell the Emperor that he is not wearing any clothes. :-)