Rights come alive - Tan Eng Hong v AG

A couple of days ago I wrote a post on the legal significance of the Court of Appeal decision in Tan Eng Hong v AG (2012).  The point that I highlighted was on the interpretation of Article 4 of our Constitution.  This is a follow-up post.

There is another significant ruling made by the Court of Appeal in this case and it would have far reaching consequences for other Constitutional cases. 

The Court of Appeal has effectively stated that in some instances, the very existence of an unconstitutional law is sufficient to give rise to the violation of constitutional rights.  The AG was contending that there must be a present prosecution under the particular law before it can be asserted that there was a violation of constitutional rights.  The Court of Appeal has flatly rejected this:


 "At the same time, and for the avoidance of doubt, we state conclusively that we also reject the proposition that a subsisting prosecution under an allegedly unconstitutional law must be demonstrated in every case before a violation of constitutional rights can be shown. A law is either constitutional or it is not. The effects of a law can be felt without a prosecution, and to insist that an applicant needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues. Even though a violation of constitutional rights may be most clearly shown where there is a subsisting prosecution under an allegedly unconstitutional law, we find that a violation may also be established in the absence of a subsisting prosecution. In certain cases, the very existence of an allegedly unconstitutional law in the statute books may suffice to show a violation of an applicant’s constitutional rights."

Thus, if Parliament enacts a discriminatory criminal offence, a person can challenge the law even though he/she may not have been prosecuted for the offence.  This applies generally to all offences and not merely s.377A.  VK Rajah JA goes on to explain:

"We add that while there is no right not to be prosecuted, there is a right not to be prosecuted under an unconstitutional law. Persons who act in ways that may cause them to be liable under an allegedly unconstitutional law are in the unenviable position of waiting to see whether a prosecution will be brought against them despite the alleged unconstitutionality of the law. The waiting and the uncertainty in itself can be said to be a form of suffering, "

From gay rights to the rights of all Singaporeans

Tan Eng Hong v AG (2012) SGCA 45 is a case of immense significance and students of Constitutional Law will no doubt be referred to this case on the interpretation of Article 4 of our Constitution. 

As much as there has been much talk about the 'victory' for the gay community in getting past the first hurdle in this attempt to have s.377A of the Penal Code declared void,  the fact is that this Court of Appeal decision has already become a landmark in relation to Article 4.  Whether the proceedings eventually lead to a declaration that s.377A is void or not, is something that we will have to wait and see. 

The Article 4 issue

Interestingly, the specific issue of whether Art 4 can be relied on was not raised at the High Court and the AG raised this argument only on appeal at the Court of Appeal.  So, thanks to the AG's Chambers we now have an authoritative pronouncement on the application of Article 4. 

What does Article 4 say?

Article 4
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. 


The gist of the AG's argument was that if a legislation enacted after 1965 were to be inconsistent with the Constitution, then that unconstitutional legislation can be declared to be void.  But, where the offending legislation was already in existence before 1965, then Article 4 cannot be used to render the legislation void.   Section 377A of the Penal Code is a colonial invention and if the AG's argument was accepted, then all pre-independance laws will be immune from Constitutional challenge. 

The Court of Appeal rejected this argument and upheld the principle of the Supremacy of the Constitution:

"The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. Therefore, we find that the supremacy of the Constitution cannot be dependent on when a law was enacted: constitutional supremacy must apply equally both to laws which pre-date and laws which post-date the enactment of the Constitution "

A very literal reading of Article 4 of the Constitution would have led the Court of Appeal to a very different decision and the AG might have succeeded it immunising much of our laws from Cosntitutional control.  Given that there has been no previous case in Singapore on this issue, the Court of Appeal surveyed several Malaysian cases (not entirely consistent decisions) and arrived at the conclusion that Art 4 applied to both pre-independance and post-independance laws.  In the words of the Court:

"We thus find that the mere accident of vintage should not place an unconstitutional law which pre-dates the Constitution beyond the potency of Art 4"

Let us not underestimate the significance of what has happened.  Gay men may not have gained a victory yet.  Singaporeans, in general, definitely have. 

(I have simplified the analysis of the Court in an attempt to highlight the significance of the case.)

That Facebook post by Minister Shanmugam

After a series of incidents involving racist comments being circulated on the internet, I would have least expected the Law Minister to enter into the fray to share a racist email that he received from a resident.  It was also somewhat uncharacteristic of a PAP politician to point out a negative aspect of race relations in Singapore instead of emphasizing the positive aspects.

Perhaps, he was genuinely taken aback by the email (considering its racist content and considering Shanmugam is himself an Indian) and the audacity of the resident to threaten to vote against the PAP over this issue.  So taken aback that he couldn't help but post the comment on Facebook. 

Perhaps, he was subtly using this incident to build a narrative of how it is wrong for the government to formulate policy on the basis of popular views on the ground or on the basis of every individual complaint.  This incident is definitely a stark example of what politicians should not pander to.  A racist resident that has problems with his neighbours and demands that something be done about the neighbours, failing which he'd vote against the PAP.  No right minded citizen would consider that a Minister or MP should pander to such demands of a citizen. 

I attended a Singapore Legal Forum on Saturday, 18 August 2012.  There was a closed door discussion with the Law Minister and the request that was made was that none of the matters discussed that day should be reported outside.  So, I am not going to set out the issues verbatim.  But, one impression that the Minister sought to convey through an array of information and through some 'softball' questions thrown at him was about the need to avoid populist policy making.  Should the government feel so threatened by voter backlash that it resorts to populist policies?  Or should it be responsible and do the 'right' thing?

Presented in that fashion, the answer is a no-brainer.  Unreasonable, irrational and irresponsible demands of the majority of the electorate should not be the basis on which policies are formulated.  Policies ought to be formulated on the basis of what is for the greater good of Singaporean society. 

This example of racist comments by a resident coupled with a threat of using the vote fits into the overall narrative of irresponsible voter demands and the response of a responsible government.  Perhaps, the Law Minister was sharing this email as part of the overall narrative.  Eventually, that narrative would help to convince the 'rational' amongst us as to the merits of some of the unpopular PAP policies.  The subtle messaging is that 'unpopular' = 'rational and responsible' and 'popular' = 'irrational and irresponsible'.

Perhaps, I am reading too much into all of this.  Perhaps, the man was just (understandably) taken aback by the fact that some resident had the gall to send a racist email like that to him (and a few weeks after receiving the email he decided to post about it on Facebook).

"I received a complaint from one of my residents, a few weeks ago. He is Singaporean. He was upset that he had to "tolerate" his Indian neighbours. The resident protested at having to "smell thier Indian sweaty smell and unwashed bodies". He described the Indian family as living in squalor and complained about their poor social status. He then listed other Indians whom he found unpleasant - th...e Indian man smoking in the lift, the Indian woman with her dog, and his daughter's Indian neighbour who walks around in a sarong, and said that he didn't want his grandson growing up looking at Indian men in sarong.


The complaint about smoking in the lift is understandable.

The rest of the complaints taken together however, are quite disturbing. The resident actually sent me an email setting this out. The resident appears to see his neighbour's race as being the problem and the overt prejudice is quite troubling. Most Singaporeans would not agree with his perspective. We need to make sure that things stay positive between people of different races."

After some comments posted on his facebook page, the Minister made a clarification in a follow-up post:

"A number of ppl have asked for more details on my post on gentleman who complained to me about Indians. He is an elderly person ( I refer to his grandchildren in th post ). He is born n bred here. I blv all th ppl he is complaining about are also Sporeans. He sent th complaint via email. some have asked or implied - whether he is referring to me , dont think so (!) . Have helped him previously, so he started off his email by thanking me for th previous help. He ended off his email by telling me that if the problems are not taken care of, he will know which way to vote in th next elections."

Of course, all of this is still part of the overall messaging that we get from the PAP about the fragile state of race relations in Singapore and how we can descend into chaos at any point in time if we do not stay vigilant. 

My take on racism in Singapore is as follows:
1) racial stereotyping is pretty common in Singapore and all races are guilty of doing this
2) racist jokes and comments are common enough and many members of the minority communities have learned how to live with them even if it might hurt now and then
3) there are instances where racism has played a part in employment and promotion issues
4) on the whole, most Singaporeans are able to tolerate each others' habits and practices although we may not be a genuine melting pot.
5) on a personal level many Singaporeans are able to identify with each other as Singaporeans regardless of our race (and hence the obvious distinction drawn by many between foreigners and Singaporeans even if the foreigners might be of the same race). 
6) our state of race relations doesn't place us in a fragile state. 

These days I have stopped reacting angrily to racist remarks and I must say that the comments highlighted by the Law Minister did not instigate any emotional response in me.  Strange.  As I age, I must be turning less and less human.  :-)

In March, I wrote about my reaction to the comment by Shimun Lai. http://article14.blogspot.sg/2012/03/shimun-lai-whats-her-crime.html
There may be some difference between what Shimun Lai commented and what this resident has emailed.  But, in essence, I don't feel threatened by such views or comments. 
There are enough right-thinking individuals in this society and such comments are not going to undermine us.

The Death of a politician and the birth of a new politics

Christopher Neo Ting Wei, NSP candidate for Jurong GRC in the 2011 general elections, passed away on 14 August 2012 at the age of 49. 

Condolences have been expressed by various politicians from opposition parties.  I was pleasantly surprised to read DPM Tharman Shanmugaratnam's Facebook update a short while ago.

Paid last respects to Christopher Neo this morning, before the last rites. He left us early, at 49.


He led the NSP team in Jurong GRC in GE2011, and fought admirably. I regarded him well - he had an unassuming style, and was concerned for poorer citizens.

His wife Amy told me about the four wonderful kids he had left her with. They always helped each other. The eldest, do...ing her O-levels soon, helped the second girl; the second helped the third girl; the third played with the little boy aged 4. The girls were doing well in school.

His parents were elderly but sturdy. They were Chinese-educated, but spoke with me in English. Christopher left many siblings. His elder sister had been with him from his first GE in 1997 as his Election Agent, and we chatted about meeting at last year’s GE in Jurong. Christopher had taken after his father, who contested in the 1963 General Elections with the Singapore Alliance party, more than three decades earlier. Christopher contested in four GEs. He had stamina.

Every river, whichever its path, winds its way safe to sea.

Rest in peace, Christopher Neo.

It is good, and certainly refreshing, to see a PAP politician coming forward to express his condolences in this manner.  This may just be a small and tentative sign of change.  But, I see the possibility of political growth in this country.  Little by little, PAP politicians appear to be realising the need for a more concilliatory style. 

Recently, when Dr Lim Hock Siew passed away, Dr Vivian Balakrishnan gave a tribute on his facebook which was commendable:

I remember meeting him 24 years ago at a party hosted by my mentor Professor Arthur Lim. They were classmates in medical school and life long friends.


He introduced himself as “I am Lim Hock Siew, and just came out of prison a few years ago!”

We had a good chat and he freely shared his life experiences. I was struck by the absence of bitterness despite all his sacrifices. I think he knew in his heart that he was a patriot, and was proud that he never gave in.

I consulted him before I entered politics. He did not discourage me. On the contrary, he told me to focus on doing the right thing. He told me he did not bear any ill will to the current leaders. He reminded me that he was a founding member of the PAP.

We met from time to time socially. Whenever we discussed politics, it was obvious that he was still a conviction socialist. There were times, we agreed to disagree.

Singapore has lost another member of the founding generation. We must all be deeply grateful to him and his family for all their sacrifices. He was a good and honourable man.

Considering that Dr Lim Hock Siew was a political detainee, such words from a Man in White is commendable.  I hope that this kind of refined attitude amongst politicians continues.  My sincere wish for Singapore is that PAP politicians would stop treating opposition politicians as 'the enemy' and see these fellow Singaporeans for what they really are:  countrymen; patriots and concerned citizens committed enough to their principles to stand up for Singapore even when it might be unpopular or even dangerous. 

The Pledge

In 2009, I blogged about the NDP parade and the much touted 'universal pledge moment'.  Everyone was encouraged at a single point in time, 8.22pm, to take the pledge.  I questioned whether most Singaporeans that took the pledge understood the implications of the pledge and if so, how many of them were sincere about the pledge. 

The article is here:  http://article14.blogspot.sg/2009/08/822-hypocritical-oath.html

Between 2009 to now, the major political shift that has happened in Singapore is the 2011 General Election.  Due to the shock therapy given to the PAP by the voters, the government has been on a back foot for the last one year.  There is a growing hope that we would be able to make a genuine attempt at accomplishing the goals that we have outlined for ourselves in our national pledge.  The often ignored phrase "to build a democratic society, based on justice and equality" has to be resurrected in our collective psyche so that when we take the pledge we mean what we say. 

Too often, I have come across PAP apologists that preach to me about the demerits of democracy.  These chaps would enthusiastically participate in the farce of pledge taking.  But, when it comes to the crunch, they do not believe in some of the words that they are pledging.  Where does it leave a person if he pledges to build a democratic society whilst at the same time he believes that democracy is a nuisance that gets in the way of economic efficiency.  He is not going to act on his pledge.  That would make him a hypocrite. 

When the Hougang by-election case was in Court, there were many netizens that chided Mdm Vellamma for wasting resources and time in bringing the case to Court.  Though her application in Court was the most democratic (and responsibly patriotic) thing that a voter could do in the aftermath of the vacancy of the Hougang Parliamentary seat, there were those that wished that she would lose the case and bear the legal cost so that she would 'learn her lesson'.  The people that wished that upon her are not fit to take the pledge.  They'd be hypocrites if they did. 

As I dwell on the issue of Hougang by-election, another matter comes to mind.  Many of us, including Constitutional Law experts from NUS and SMU, reasoned that the vacancy of a Parliamentary seat in a single member constituency would give rise to an obligation on the part of the PM to call for an election with the limited exception that the timing of the by-election was within the PM's discretion. 

Last week, the High Court made a ruling that under our Constitution, the PM is not obliged to call for a by-election if there is a vacancy of a Parliamentary seat.  I have some reservations about the reasoning in the judgment.  Leaving that aside, the High Court decision represents a step in the wrong direction (a less democratic direction).  If a seat falls vacant (or for that matter in an extreme hypothetical example all the seats in Parliament fall vacant), the PM has full discretion as to whether to govern all the way till the next election without adequate Parliamentary representation.  This is a regressive step in our democracy and I don't see any reason to cheer the outcome. 

If we truly believe in the pledge that we take, we would be advocating a Constitutional amendment to impose a mandatory obligation on the PM to call for by elections whenever a seat falls vacant.  If we truly believe in the pledge that we take, we would be advocating for an end to the GRC system.  If we truly believe in the pledge that we take, we would oppose detention without trial.  I can go on and on.

There are many ways in which our political and legal system has to change in order to meet the requirement of the phrase in the pledge... "to build a democratic society based on justice and equality."  But, many of us would be reciting the pledge so blindly that we do not realise the significance of building a democratic society.  Many of us would understand what the pledge says and yet feel that the 'democratic society' bit is irrelevant and so go ahead hypocritically to take the pledge.

Maybe, this National Day, more of us would take the pledge with a greater degree of sincerity. 

Happy National Day.

Is he dead?

Rumours are going around that Mr Lee Kuan Yew has died.  There are other variations that he is seriously ill or that he is in a state of coma.  Twitter has been active over the last 24 hours with these rumours.  My Facebook friends have been relatively quiet.  I have spoken to several friends and one set of rumours is coming out of the legal fraternity. 

Such rumours are not new.  In all likelihood, there is no truth in it and the man will be at the NDP tomorrow.  But, in the event that it is true that the man has died, I hope that the government doesn't behave in a vile and vulgar manner by keeping the matter secret whilst the nation celebrates its birthday.  I have a lot of reservations about LKY and his style of government.  But, the fact remains that he was amongst the first Cabinet of ministers in Singapore that saw the country through two decades (mid-60s to the mid-80s) of rapid development.  I am sure that the government can afford to postpone the NDP and inform the people promptly so that an official state of mourning can be observed.  We do not need to behave like some third world dictatorship that has difficulty coming to terms with the illness or death of its leader and so postpones the announcement of ill-health or death. 

I hope that the culture of opacity fostered by successive PAP governments has not become so systemic that even information about the state of health (or death) of Singapore's first Prime Minister has to be stifled so that the NDP show can go on. 

We just need an official statement.  When rumours like these swirl around, it would be good for a statement dismissing these rumours or if they are true, then an acknowledgement.  Even if it is a case that he is seriously ill and is receiving treatment, I am sure that Singaporeans deserve to know.  It would be vulgar to have a wild party tomorrow if something has indeed happened to the man. 

If this rumour is untrue, I have this to say to those that started the rumour:  "Shame on you."

What's wrong with you Mr Wong?

During the time that I was practising (and even thereafter), I had not come across any instance where a Law Society representive turned up in a court to raise the issue of the competency of a lawyer to carry on with the proceedings.  As lawyers, we are hung up (more than anything else) on procedural rules.  Being mindful of procedure is second nature to lawyers.  It was, therefore, surprising to find out that Mr Wong Siew Hong (the head of the sub-committee for Member Care in the Law Society), turned up in court with a letter written by a medical professional.  (The propriety of that disclosure by the medical professional is a separate issue and ought to be properly examined by the Singapore Medical Council.  But, there might be justification based on a pre-existing direction for M Ravi to be examined by a medical professional in relation to his condition.)

What shocked me the most was the fact that whilst Mr Wong might be characterised as having had "good intentions" (as stated by the Law Society), it is unpardonable that after being rebuffed by Justice Pillai in the morning, he still proceeded to adopt the same method of interfering with proceedings in two other matters involving M Ravi's firm.  It does not help that the 3 cases that he attempted to intervene in were political cases.  Public perception of the Law Society is bound to get seriously damaged by these actions of Wong. 

The three attempted interventions (based on reports that have surfaced so far):

a)  The Hougang by-election case
b)  The SDP illegal assembly case
c)   The IMF loan judicial review case

Of course, it might have in all probability been a mere coincidence that on the day that Wong received information of M Ravi's condition, there were legal proceedings with political overtones going on.  But, the problem is that as a matter of public perception, Wong's real intention doesn't matter.  He should have addressed his mind to this and not acted hastily.  Fine.  He may have lapsed somewhat when he turned up before Justice Pillai.  He might have sincerely felt that he was duty bound to alert the court of Ravi's condition so as to protect the interest of the litigant.  But, after Justice Pillai had rightly pointed out that Ravi has a valid practising certificate and the Court would not enquire beyond that, Wong should have gotten back to the LS Council to take the proper procedural steps.  Instead, Wong attempted (reportedly) on two further occasions to intervene in Ravi's court proceedings. 

I am glad that the President of the Law Society has come forward to clarify that Wong acted on his own volition.  At this stage I do not expect the Law Society to publicly chastise Wong.  But, after thoroughly investigating this fiasco, the Law Society must in some way take Wong to task.  The legal profession does not look very good when a Law Society representative goes on a frolic of his own to intervene in court proceedings without making any formal application.  The fact that Wong did not cease in his intervention attempt despite a rebuff from Justice Pillai is unacceptable whichever way one might try to justify it as a case of  'good intentions'. 

The Law Society itself got its facts wrong initially (which was itself somewhat comedic).  But, I am willing to cut the Society some slack on that.  But, some action is needed to drive home the point that Wong's repeated attempts at intervention in Ravi's proceedings is not the kind of conduct that the Law Society is willing to condone.

Treating a person to induce him to attend an election rally is an offence

I know that for some time now, during election season, we have heard stories about residents being transported to PAP rallies and being given food and drinks.  There was even one youtube video (originating from the 2011 general elections) that appears to contain a "testimony" by a rally goer that she was asked to come to the rally and that food would be given to those that came. 

When the Hougang by-election campaign was going on, I blogged about whether something similar had taken place at the rallies.  Let me be clear on this.  My question is meant for both the PAP and the WP. http://article14.blogspot.sg/2012/05/any-food-drinks-or-vouchers-at-by.html

In my conversations with friends, and arising out of some comments that I have read online, it appears that many people consider 'treating' rally goers or voters as being underhanded and sometimes comically desperate.  Many people appear not to be aware of the fact that treating a person by providing food or drinks for the purpose of influencing that person's vote or inducing him to attend a rally is in fact an offence under s.58 of the Parliamentary Elections Act:

58. —(1) A person shall be guilty of treating if he corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving, any meat, drink, refreshment, cigarette, entertainment or other provision or thing or any money or ticket or other means or device to enable the procuring of any such meat, drink, refreshment, cigarette, entertainment or other provision or thing, to or for any person —

(a) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting;

(b) for the purpose of inducing that person to attend or remain at any election meeting;

(c) on account of any such person or any other person having voted or refrained from voting or being about to vote or refrain from voting at the election; or

(d) on account of any such person having attended an election meeting.

As required under the law, Desmond Choo and Png Eng Huat have filed their respective Returns on election expenses.  On 2nd July 2012, the Returning Officer issued a notice under s.75 of the Parlimentary Elections Act stating that the Returns are available for inspection. http://www.eld.gov.sg/gazette/G_ParE2012/2012-07-02%20Notice%20under%20section%2075.pdf

Ordinarily, I wouldn't have been too concerned or curious about the expenses.  But, my eyebrows were raised when I read a ChannelNewsAsia article: http://www.channelnewsasia.com/stories/singaporelocalnews/view/1210457/1/.html

There's a line in there that states: "Mr Choo said the main expenses incurred were for the rallies and meals."

Meals?  I hope that those were meals eaten by Mr Choo and his party workers that worked on the by-election campaign.  If these meal expenses went towards feeding rally goers, s.58 of the Parliamentary Elections Act could be triggered.  The Returns are available for inspection at the  Elections department for a 6 month period.  I might just pop down to take a look at the expenses if I can get away from work commitments.  (or some other blogger/reporter from TOC or TRE might do it. :-)  It would be interesting to see what sum of money was involved in relation to meals.  Similarly, it would be interesting to see if Png Eng Huat had expended such sums. 

Incidentally, for those that might be crying foul instantly and calling for the prosecution of Desmond Choo, take note of the fact that there is sufficient wriggle room in s.58 to argue that no offence was committed.  These phrases could afford some room for the benefit of doubt to be given:  "for the purpose of corruptly influencing", "for the purpose of inducing".  An individual could argue innocence on account of having provided the food or drink independant of the purposes in s.58(1)(a) or s.58(1)(b). 

Well, let us see what the explanation would be.

Pink Dot and the Penal Code

Whenever the Pink Dot event comes up or whenever the discussion of s.377A of our Penal Code arises (consensual sexual acts between men), I can't help but cast my eye on the other sexual offences in our Penal Code.  I can't help but feel that there is a certain 'moral' (using the word 'moral' in a loose 'state-citizen relationship' sense rather than in a traditional or 'religious' sense) inconsistency in the state's position. 

The primary objective of giving power to the state to criminalise human conduct is to maintain order in society.  There is an assumption that where an individual might cause harm to another, there is an inherent possibility of society disorder if there is no mechanism for the control of such behaviour through the machinery of the state.  Criminal laws serve the function of controling such harmful behaviour. 

S.377A of the Penal Code criminalises consensual sexual relations between 2 men even though no harm may be caused by one to the other. 

s.375 of the Penal Code exempts a man from liability where he has raped his wife.  Here, there is harm caused by an individual to another.  But, the state stands aside and exempts the offending individual from liability. 

I know that the debate over homosexual intercourse and marital rape has been clouded by too many arguments about traditional 'morality', religious perceptions and notions of the so-called traditional marital relations.  But, we are not talking about issues pertaining to morally acceptable behaviour when we deal with criminal offences.  We should be dealing with how the state should go about its job in maintining order.  If we acknowledge that the primary objective of criminal law is to prevent individuals from acting in a manner that would cause harm to others, then s.377A and s.375 are completely at odds with that primary objective.

John Stuart Mill in his essay, On Liberty, propounds on the 'harm' principle:
http://www.utilitarianism.com/ol/one.html

That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection.   That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

City Harvest saga - Satirists and Apologists

I am not going to waste any time blogging about whether Kong Hee and the 'gang of four' had indeed committed criminal breach of trust.  That matter is now clearly before the court.  If they are innocent, let them be cleared.  If they are guilty, let them be punished.  At this stage, without any indication of the extent of evidence at the Prosecution's disposal, it is hard to make any rational assessment of the strength of the Prosecution case. 

There is something about this saga that I find rather amusing:  the Pastor's wife and the "Crossover Project".  I know that sex sells and most marketing agencies will vouch for the effectiveness of sex appeal in advertising.  However, there is a certain incongruity when the conceptual underpinning in the "crossover project" is to appeal to baser instincts in man in order to spread the message of God. The claim being made by apologists of the Crossover Project is that the music career of Sun Ho is intended to reach out to a broader audience on behalf of the Church so that more could hear the message of Christ. 

I was totally amused by two articles that I read.  The first one appeared in New Nation (the self-proclaimed fake news site) and was presented as a letter from a member of the City Harvest Church.  The second is an article on The Online Citizen.  Although it is clear that the article in New Nation is meant to be a satire, it is both amusing and shocking to see how some comments from the faithful within the CHC appear to mirror the satirical piece.  I am, therefore, not suprised that some readers couldn't make out the fact that the New Nation piece is a satire.  Apologists sound just like satirists. 

The New Nation article:

Dear Editors,


I am deeply saddened by the reactions of netizens to the arrest of my dearest pastor Kong Hee. As a long time member of City Harvest Church, the public clearly does not understand the sacrifices he had to make in the name of God.

When I first received Sun Ho’s Chinese pop CD in 2003, I thought to myself: “what kind of devil’s music is this?” But as I listened more, it began to dawn on me that I was being overly prudish and she was actually spreading the word of God in the form of Satan-worshipping music to beat the devil at his own game.

Indeed, the more involved I became at the Church, the more I began to understand that I could not even begin to comprehend God’s plan and the plans pastor Kong had for me, and the church. You see, I am but mortal. Pastor Kong was the chosen one.

Without his light shining like a beacon of conscience, the gays, prostitutes, and the opposition would start to take over Singapore. Satan would then have a hub to take over the world.

So it was with deep love that I decided to dedicate 30% of my husband’s salary each month to help fund Sun Ho’s music career as part of the Crossover project.

As a good christian, I have an obligation to The Lord to spread his message: from Singapore to Malaysia, to Taiwan, China and even the town of sin, Hollywood.

It must have been extremely difficult for pastor Kong to see his wife in such disgusting states of undress in public, and for her to live in the heart of the most unholy places on earth, Beverly Hills. I’ve watched the TV series 90210 when I was younger. These people have no morals but like lepers, the Man and Woman of God must go to the sick to heal the sick.

People outside the church don’t understand us and are so quick to condemn when they haven’t experienced God through His music, sung to thumping beats and a negro man saying something intelligible at the beginning.

I do not understand how “China wine” or being a Geisha is related to God’s work, but as I said, I’m only mortal. God has a plan, even when I don’t understand. Even when it involves S$23 million. If pastor Kong was using that money, it must be God’s will.

Jesus preaches forgiveness, and therefore we must forgive even if we don’t want to.

So I forgive the government, and the public for misunderstanding and maligning the Church.

There’s a special place in hell for people who say nasty things about Kong Hee and an even worse one for those that framed God’s chosen workers.

I pray that it will be like Sodom and Gonorrhea.

Yours truly,



Conservative Nazi

The following is from TOC's site:
 

Mr Aries Zulkarnain, the Executive Pastor and a Founding Member of City Harvest Church (CHC) since its start 23 years ago says that the church stands with the members involved.


“The people currently in the news are pastors, trusted staff and leaders who have always put God and CHC first. As a church, we stand with them and I believe fully in their integrity. Pastor Kong is still our Senior Pastor.”

Mr Zulkarnain says that the Commissioner of Charities (CoC) has confirmed that Mr Kong Hee, the Senior Pastor, and Mr Tan Ye Peng, the Deputy Senior Pastor will continue to preach at the church.


He emphasises that church activities are not affected by the case. “CHC will continue to do its work. Our services and cell group meetings will carry on as usual. As a church we will continue to take care of our members and our community. We will not stop doing God’s work.”

With regard to the allegations, Mr Zulkarnain says, “It has been suggested that the church has been cheated of $50 million. This is not accurate. The $24 million, which went to investment bonds, was returned to the church in full, with interest. We didn’t lose $24 million, nor did we lose ‘another $26 million’ as alleged. The church did not lose any funds in the relevant transactions, and no personal profit was gained by the individuals concerned.”

Speaking on behalf of the Board, Bobby Chaw, the pastor in charge of missions at CHC, says that actions had been taken over the past two years in accordance with the MCYS’s code of governance.

“We replaced 50% of our Board with new members. We engaged RSM Chio Lim to do a full internal audit and we have been putting their recommendations into action, and will continue to do so,” says Mr Chaw. “We appreciate the need to maintain good corporate governance, and we are continuously working with MCYS to do so.”

However, Mr Chaw expressed his disappointment with some of the media’s coverage so far, particularly in relation to the CoC enquiry.

“In some instances, they seem to have pre-judged us. We will be dealing with this in due course,” he says.

He adds that the church was also surprised that CoC chose to implement the suspensions of the members involved without prior notice. “We have been co-operating with CoC for two years since the start of the case, so these sudden suspensions came as a surprise to us.”

CHC’s Advisory Pastor, Rev Dr Phil Pringle is in Singapore to stand by CHC. He is the Senior Pastor of C3 Church, Sydney, and the C3 Global Network of Churches. Dr Pringle expresses his support for the leadership.

“I have known CHC, Kong, Sun and Ye Peng for a long time. CHC is not just a local church in Singapore. It has 49 affiliated churches and 6 Bible Schools all across Asia. It has impact on international ground, and it has proven through many years that it serves the global community, both spiritually and practically through humanitarian works.”

Dr Pringle says he, along with CHC’s Advisory Chairman Dr A R Bernard, who is the Senior Pastor of Christian Cultural Center in Brooklyn, New York, fully believes in and endorses CHC’s Crossover Project as a mission to reach the world.

CHC states that the Crossover Project is not about one person’s singing career; it is a mission that is fundamental to the congregation of CHC. The Crossover Project is an outreach that uses Sun Ho’s singing and music to engage people and places that would never otherwise hear the Gospel. As a result of the Crossover Project, many churches have grown worldwide and the faith of many have been strengthened. Impact has been made on the needy in Haiti, disaster victims in China, the depressed and suicidal in Taiwan, and the sick children in Honduras, among others.

Dr Pringle says, “The Gospel is the Good News and Christians are meant to share it. CHC has done this through the Crossover Project, which lies at the very heart of our religious beliefs.”

The IMF Loan and the Office of the President

Much was debated during the Presidential Elections in 2011 about the power of the Elected President in Singapore.  There were those that argued for a fully intrusive and almost combative role for the President in scrutinising the executive arm of government.  There were those that argued that the Elected President's role was no more than that which is fulfilled by the Queen of England as the Head of State (with the exception of a constitutionally reserved discretion when it came to the use of our reserves).  Others (like myself) contended that where the constitution was silent, the President could take a pro-active role and that this may be politically necessitated by the fact that the President could carry the mandate of the electorate (giving rise to the evolution of a constitutional convention). 

Whatever the shades of argument, one thing was very clear: There was no dispute as to whether the President had discretionary powers in relation to the matters specifically stipulated in the Constitution. An example of such stipulations could be found in Article 144(1) of our Constitution.   

That brings us to the issue surrounding the IMF loan pledged by the Singapore government.  Firstly, this is not part of the current subscription payable to IMF.  It is clearly an additional loan.  Leaving aside the contentious issue of interpretation of whether or not a loan given by the government is required under Article 144(1) to be subject to the President's approval, it is clear that a circumstance that falls within the ambit of Article 144(1) triggers one of the discretionary powers of the President. 

When Kenneth Jeyaretnam recently wrote to the President to seek clarification as to whether his consent was sought, the President has reportedly responded by stating that his permission had not been sought. http://sonofadud.com/2012/06/21/the-truth-about-that-imf-loan/

Kenneth has also stated that the President has referred this matter to MAS.  I would have expected something more proactive from the President.  Several questions arise in my mind.  Was the President fully appraised of his powers under Article 144(1)?  What is the interpretation of that provision that the President himself subscribes to?  Does the President agree with the view expressed in 1997 by the AG that a loan received by the government has to be approved and that a loan given by the government does not need to be approved? (http://www.article14.blogspot.sg/2012/06/singapores-pledge-of-us-4-billion-to.html)  If he agrees with that interpretation, could he not have informed Kenneth Jeyaretnam that the Article 144(1) issue does not arise and that his consent was not necessary?  Did the President have any specific reaction to the government's decision to grant the loan to IMF?  Did he ponder about whether he had a role in the process?  Or was he only going to exercise the discretion to grant consent when consent was requested? 

This is an important point to ponder about when we consider the role of the President.  There is no doubt that Article 144(1) deals with an area of the President's discretionary power.  Since we do elect our President and since the bare minimum that we might expect him to do in relation to his responsibilities is the safeguarding of the reserves and since Article 144(1) deals with such express discretionary power, there should be a strong expectation on the part of the electorate that the President carry out his Constitutional duties actively.  So, I hope that President Tony Tan had a clear understanding of Article 144(1) and that he was aware of the potential for the IMF loan to fall foul of that Article and that he actively addressed his mind to it and then decided that his consent was not necessary as the issue did not fall within the ambit of the Article.  Nothing less than that will do. That is the minimum expectation that we as the electorate should have in relation to the Elected President. 

Punishment must fit the crime

The issue of whether punishment fits the crime has been the flavour of the week for me with two previous posts dealing with the question of corporal punishment for vandalism.

Hot on the heels of that we have Dr Woffles Wu being fined $1000 for abetting in providing misleading information to the police in relation to a traffic offence. The facts as reported in the newspapers seem to suggest that after Woffles Wu had commited speeding offences, his elderly employee had admitted to the commission of the offences.

When I first read that I assumed that Dr Wu would have been charged under the Penal Code. The obvious provision that I had in mind was s.182 of the Penal Code.

False information, with intent to cause a public servant to use his lawful power to the injury of another person

182. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

The other likely provision was s.204A of the PEnal Code:

204A. Whoever intentionally obstructs, prevents, perverts or defeats the course of justice shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

Giving false information to the police (and to some extent obstructing the course of justice) is ordinarily treated by the judiciary as being rather serious and in the past custodial sentences have been given for such offences. I was understandably surprised (and so were other friends of mine in the legal profession) that Woffles Wu did not get a custodial sentence.

I assumed that the mitigation plea by the counsel must have been really good. Of course, plenty of speculation arose as to whether he was treated leniently because of the fact that he was a well connected person. One blogger came up with a catchy line.... "In the land of the saggy, the man with the botox syringe is king." See: http://everythingalsocomplain.com/2012/06/13/woffles-wu-lying-to-the-police/
One PAP MP, Hri Kumar, joined in the fray by lamenting the inconsistency in our sentencing regime. I am very glad that he did. We seriously need to look at our criminal laws as a whole come up with a coherent approach to sentencing. In those areas where judges are given discretion, we need a clear and transparent sentencing policy for the courts.
http://hri-kumar.blogspot.sg/2012/06/crime-and-punishment.html

Something was not quite right with the sentence and I couldn't bring myself to believe that the court would have let Woffles Wu off so easily given existing sentencing precedent for similar offences. Charlie Lim Chau Lee was sentenced to imprisonment for 6 months for getting his friends to take the rap for a traffic offence committed by him. The difference in the sentencing is too stark to be dismissed as merely difference based on the facts of the individual cases.

The inevitable perception building up amongst the public is that the rich and the elite can get away with lighter punishment when compared to ordinary citizens. This is the general trend of commentary emerging on blogosphere right now. Up till this morning, I was having some difficulty reconciling the picture that was building up. I can't imagine that our judiciary will act so inconsistently that Woffles Wu could get away with a fine.

Finally, it dawned on me when I read the AG's Chamber's press statement as well as the Law Minister's comments that Woffles Wu was charged under S.81 of the Road Traffic Act and not the Penal Code. http://www.todayonline.com/Singapore/EDC120617-0000020/Law-Minister-explains-Woffles-Wu-sentencing

http://www.agc.gov.sg/documents/AGCPressRelease17Jun2012.pdf


So, it turns out that this is a case of prosecutorial discretion as opposed to judicial leniency. AGC explains in the press statement the reason for not charging Woffles Wu under s.204A. The provision was not enacted at the time that the offence had been committed. That is a valid legal position. But, of course, I can't help but wonder why he was not charged under s.182 of the Penal Code. That was, to me, the most obvious provision for an offence such as this.

The AGC in its press release has given its reason for not proceeding under s.182:

"The charge preferred against an accused person would be calibrated to reflect the seriousness of the criminal act and the fact situation, and whether the legislation in question provides a specific provision dealing with the criminal act or whether reliance has to be placed on general legislation such as the Penal Code. On the facts of this case, as there was no major accident or injury, it was considered appropriate to proceed under s 81(3) of the Road Traffic Act rather than invoke the general provisions of the Penal Code, such as s 182."

Firstly, I accept the AGC's position on s.204A. But, I find it hard to accept the position taken in relation to s.182. I am not convinced that the lack of injury should have been considered. The gravamen of the offence involving giving of false information is the falsity of the information and deliberately misleading public officials in their administration of justice. False information could have been given in relation to a littering offence. That does not detract from the seriousness of the fact that false information was given in the first place. The fact that there was no injury involved should not have been decisive in the decision not to prosecute under s.182 of the Penal Code.

I am pretty sure that if the charge was under s.182, the judge would have imposed a custodial sentence. I will cut some slack to the prosecution here though. Making a decision as to the offence to be charged is not an easy one and it is inevitable that tough decisions have to be made. It is unfortunate that the prosecution chose to charge Woffles Wu under the Road Traffic Act as it has sent a very wrong signal to the public. Too many people are now under the impression that the rich can get away with a light sentence. I am sure that this factor did not figure at all in the AGC's deliberation. But, this is the perception that has arisen.

Singapore YOG & London Olympics: A Tale of 2 Budgets

The UK Sports Minister Hugh Robertson has revealed that the expenses for the London Olympics would be within the budget allocated for the games. A budget of 9.3 billion pounds was set in 2007. Hugh Robertson has indicated that about 500 million pounds would be returned to the Treasury as they are within the budget.

This is how you come out smelling like a rose. Set a high budget with a huge contingency in the budget (2 billion pounds) and then keep your spending within the budget. You get lauded for your fiscal responsibility.

Compare that to the heat receieved by Singapore's former Minister for Community Development, Youth and Sports, Vivian Balakrishnan. The budget set for the Youth Olympic Games was $104 million and the spending went up to $387 million.

Although the Olympic Games cannot be compared with the Youth Olympic Games in terms of logistics and expenses, I am trying to draw a comparison with the way expectation management is done. The organising committee for the YOG grossly underestimated the expenses and set a budget that was too low. In the end, given the nature of the event, $387 million was probably a reasonable sum.

But, in Singapore, the public conversation saw a mishmash of issues colliding together to form an overall anti-PAP rhetoric. (Incidentally, despite my long-standing stance against the PAP's authoritarian style of government, I did not see the YOG budget as an issue. If anything, the problem was in the initial estimate of the organising committee. It was not a case of fiscal irresponsibility.) 2010 was the year of the "once-in-50-years" flood. Singaporeans were becoming increasingly conscious of the presence of large number of foreigners. The plight of senior citizens fending for themselves by scavanging for tin cans was becoming more evident. For many, the YOG expenses became indicative of a government that had the wrong priorities.

I can imagine that the organising committee of the YOG could have estimated the budget at $500 million and kept the spending to $387 million leaving a balance of $113 million. I suspect that not much of a complaint would have been raised (and Vivian Balakrishnan might have kept his previous portfolio instead of being sent to fight floods).

From a public relations standpoint, the UK Sports Minister has scored a respectable point by keeping the Olympic Games expenses within the budget by 500 million pounds.

The politics of caning

Whilst the sticker lady issue rages on, I think this is an appropriate time to reconsider our sentencing philosophy.

I blogged about this two days ago. In the course of reading the Parliamentary debates in relation to the Punishment for Vandalism Bill 1966, it is clear that one concern was playing itself out. It appears that there were widespread instances of vandalism in Singapore and it is also evident that political slogans (anti-colonial, anti-american and pro-vietcong) were surfacing. I did not live through that period and it is hard to say if the events were as widespread as alleged or if this was just exaggeration to gain leverage for insisting on caning as a punishment.

Unrelated to the debate on the Vandalism Bill, other debates in Parliament in 1965 to 1967 reveal references to acts of vandalism that are politically motivated. There are references to Barisan Socialis being responsible for instigating these 'anti-nationalist' actions.

However, in the debate on the Vandalism Bill, the focus is on a broad range of vandalism offences. Anything from hanging banners to painting and damaging property. The extreme measure of caning is recommended as a deterrent. The distinction drawn in order to justify the use of a severe punishment is on the basis of whether the vandal has left a delible mark. If it is indelible, caning is mandated. If it is delible, caning is not mandated for a first time offender.

Using traffic lights as an example, caning is mandated if you destroyed a traffic light. It is mandated if you painted on the traffic light. Caning is not mandated if you pasted removable stickers on it or hung slogans from it and you happen to be a first time offender. But, a second offence involving hanging a slogan from a traffic light would trigger caning.

To me, it is shocking to cane someone for the act of hanging a banner (although it is restricted to a repeat offender).

Though I did not live through those times, I can't help but walk away with the feeling that the Vandalism Act introduced caning for vandals primarily because of the politcal nature of the vandalism that was taking place rather than the fact that vandalism was taking place at all.

LKY's own comments about how these vandals would be prepared to go to jail and consider themselves martyrs is indicative of the fact that the government did not have in mind the ordinary vandal who might at most be a delinquent and wayward individual. Caning was seen as a way of deterring anyone thinking of turning himself into a political martyr.

I have extracted the PM's (LKY) speech from the 2nd reading of the Bill:

Mr Speaker, Sir, I would like to explain to the House what we are seeking to do by making this departure from what is normal criminal law legislation. One of the problems we face in running the British system of administration of justice is that the law is often being administered, particularly in recent years, by legally trained magistrates who do not have the advantage of the wider background of the problems of the society and of administering that society. So it is that by the time the offender of a particularly vicious social misdemeanour, like taking a pot of paint and going to every bus stand and chalking up anti-American or anti-British or pro-Vietcong slogans, is apprehended and brought to court, from the vicious petty slogan-shouting hooligan that he is outside, he converts himself into a meek, humble breadwinner of a large family who was doing no more than just giving vent to his political exuberance. And he gets off with a caution and sometimes a light fine. The net result is that this particularly vicious social misdemeanour is not capable of being checked, let alone stopped. It is difficult enough to apprehend these offenders. Under the section in the Minor Offences Ordinance which we have to operate, this is a non-seizable offence. So if you are not a police officer, or even if you are a member of the Vigilante Corps, you will be a very brave man to go and apprehend such a culprit. I do not think it is possible for us to go back to the old British practice where people who are administrators, having served a term in the business of running the government, then do a spell of two or more years on the Bench, and so there is a constant flow of fairly matter-of-fact gentlemen who understand the mechanics of how the system works and know the other side of the coin, not just what happens in the courtroom.

The Bill makes a clear distinction between what is considered a lesser offence, something which just dirties up the wall - which is delible - and where you deliberately seek to mess up the place from time to time with red paint, which is a very difficult substance to eradicate, on bus shelters and public buildings. Large sums of money are expended in order to remove the unsightly scars which they leave behind.

Recently the problem has been complicated by the ease of access to public property which, in the nature of things, is difficult to prevent. Thefts of fountain heads made of copper, copper tubes outside Housing and Development Board premises used for boilers and other things - and copper is in short supply because of the transportation problem of Rhodesian and Zambian copper - and thefts of valuable parts of non-ferrous metals have taken place, to be sold for a fraction of their actual cost. I do not think we can allow this to go on, and I know how strongly the profession and the penologists are against caning. But we have a society which, unfortunately, I think, understands only two things - the incentive and the deterrent. We intend to use both, the carrot and the stick. The carrot is good citizenship. It is a seizable offence to do any of these acts of vandalism, and any member of the Vigilante Corps, any member of the public, can apprehend. A reward will be given in order that these culprits will be apprehended and these crimes will stop.

On the other hand, a fine will not deter the type of criminal we are facing here. He is quite prepared to go to gaol, having defaced public buildings with red paint. Flaunting the values of his ideology, he is quite prepared to make a martyr of himself and go to gaol. He will not pay the fine and make a demonstration of his martyrdom. But if he knows he is going to get three of the best, I think he will lose a great deal of enthusiasm, because there is little glory attached to the rather humiliating experience of having to be caned.

I am not suggesting, Mr Speaker, Sir, that I am quite sure that this is going to solve our problem, but I am convinced that if we are not prepared to innovate, if we are just to stick to old formal channels of legislation or old forms and modes of social control, then these are areas of public behaviour over which society will have no control whatsoever. I hope that there will never be any cause, once these provisions are known, for them ever to be invoked. But I feel reasonably confident that if the offenders are apprehended - as I think they can be apprehended; these are seizable offences and there are enough people in the Vigilante Corps and public-spirited members of the ordinary public - and an example is made of a few, then we will not have the discomfiture of finding the electric power supply failing, because somebody risks blowing up a whole transformer substation for a few dollars' worth of public property which is not sufficiently guarded. If this is understood - and they have a tendency to understand very quickly once the word gets around -I am quite sure that there will be a healthier respect for community property. This happens all over the world. But in every society, values are different, and ours is a new and young one. We could take the other point of view - the Government could be purely negative and say, "Well, in that case, we should not have this community property. We should not have fountains. We should not have these parks. We should not have these amenities, because they are likely to be destroyed, mutilated and losses will be heavy." I think that is a defeatist attitude. By and large, I would say that the majority of the people are law- abiding and respect community property, and if we can check the misbehaviour of this minority, then we can move into wider fields of public amenities with greater confidence that, first, the expenditure will not be wasted, and, second, the maintenance will be what the planners estimate it to be and not what we subsequently find ourselves carrying.

I hope eventually that the remarks I have made here in this House will also be heeded not only by the offenders but also by those who participate in the administration of justice. I have a feeling that often in the younger ranks of the service, the administration of justice is believed to be the application of the law. It is because they believe that, that we are forced to take these measures. I think a wider grasp that administration of justice means the application of the letter of the law in such a spirit that society is able to protect itself, is fundamental. If we are able to implement these provisions with efficacy in the first few months, I am quite sure that this will be a dead letter in our statute book.

Parliament could have increased the fine and length of imprisonment for this offence instead of introducing corporal punishment. It is clear that when the PM in fact spoke of the deterrent effect, he referred specifically of those flaunting the values of their ideology. The ordinary vandal might well be deterred by imprisonment. The political slogan-shouter needed more than imprisonment to deter him.

The Law Minister E W Barker offers up another justification for caning:

"The punishment of caning has been introduced advisedly and after considerable thought. It has been found in practice that while many convicted persons will accept without demur a heavy fine or even a lengthy sentence of imprisonment, they tend to view with the greatest alarm and despondency any sentence which requires the infliction of caning. This is, of course, typical of the mentality of the bully and the coward and of those who choose to perpetrate their offences under cover of darkness, which is, in fact, the case with the majority of acts of this sort. Caning has accordingly been made mandatory upon conviction..."

I wonder whether the reference to "it has been found in practice" is based on purely anecdotal evidence or on extensive field research. I can imagine that on a personal subjective level caning would deter me more than a fine or imprisonment. That being the case, if we found that a particular crime is on the rise, it would be easy to use caning as a deterrent. That would lead us down a slippery slope. As littering seems to be on the rise compared to 10 years ago, why don't we just introduce caning as a deterrent, for instance. CWOs don't work as well as "3 of the best" (to use LKY's reference to caning). In the end, punishment must fit the crime.

A curious feature of the Parliamentary debate is the way that the justifications were not refuted except for a brief speech by Mr Tang See Chim that questioned whether caning would really have a deterrent effect:

I have the impression that the Government is taking the view that severity of punishment is a deterrent. Mr Speaker, Sir, severity of punishment may not, in fact, necessarily be a deterrent. The way to deter any crime, I submit, is to impress on the wrong-doer the certainty of his being found out if he commits one. Also I have the impression that as far as acts of vandalism are concerned, that is, excluding the anti-national elements, this Bill could only be an interim measure, because, as I see it, vandalism cannot be rooted out by the introduction of a Bill with very severe punishment. It can only be rooted out by educating our young to respect public property and to have a sense of pride in the public amenities provided by society.

Nothing more robust than that was raised. No issue was taken as to whether corporal punishment may be inappropriate for a property offence. No issue was taken as to whether corporal punishment may amount to a form of cruel and inhuman treatment. (But then again, thanks to the Barisan Socialis walkout from Parliament and the consequent PAP dominance, there were no opposition MPs on hand to question the introduction of caning for this offence.)

In the history of our post-independence legislature, deterrence as the logic for corporal punishment has led us on a downward spiral, resulting eventually in the imposition of caning for drug abusers (an offence that requires medical and psychological rehabilitation more than any other offence) and even for immigration offenders (overstaying by more than 90 days after the expiry of the visa). We need to revisit the question of whether corporal punishment is appropriate in the first place and if so, whether our sentencing regime is in accord of the principle that punishment ought to fit the crime.

The vandal on a pedestal and an incoherent sentencing philosphy

The sticker lady might get charged and eventually convicted under the Vandalism Act. But, one thing is for sure: She will not be subject to caning.

Whilst caning is provided for an offence under s.2 of the Vandalism Act, women are exempted from corporal punishment generally. Caning is not the norm for most offences in Singapore and it is reserved for very specific crimes.

Whether sticker lady (Samantha Lo) should be let off the hook or punished for vandalism is an issue that has been raging on blogosphere. There are those that take the view that this is a form of artistic expression and the state must give a little bit of leeway and that she should be let off with a warning. There are still others that take the view that a law has been infringed and there is good reason for having laws against vandalism and exceptions cannot be made (for fear of a descent into chaos.)

My view on this? As much as I believe that artistic expression needs to be spontaneous and not contrived and as much as I believe that there is value in the kind of expression that has an element of ‘here’s-me-spitting-in-the-face-of-authority-and-getting-away-with-it’ (the creative mind is inherently subversive), I also believe that there is role in society for rules regulating our behavior in the common space that we share. There is a role for laws proscribing conduct that may involve damage to or defacement of private and public property.

Let those that have an artistic impulse express themselves in a sometimes messy and socially (or even legally) unacceptable fashion and in the process let them be aware of the risks that they take. Equally, let the law take its course in providing for its important social function of maintaining public order. It could be a case of a band playing on a rooftop and attracting massive crowds that cause obstruction to traffic. The band takes the risk in the name of artistic expression. But, you can be sure that even in the freest societies, the authorities will try to shut down such activities that pose safety and public order problems.

It sounds almost schizophrenic for me to say this but I will. I cheer those that set the pace in society by pushing social and legal boundaries. I welcome their presence amongst us and sometimes quietly and self-flatteringly I like to believe that I have been such a person at certain stages of my life. I also believe in and support the need for order in society and I believe that such order is best secured by the enactment and enforcement of laws established to protect life, liberty and property. In the case of street art that involves damage to or defacement of property, the artist is to me a vandal on a pedestal. I’d brand her a vandal but I’d place her on a pedestal.

Having made these observations, I must express my misgivings about the Vandalism Act. The Act is a reflection of the lack of coherence in our sentencing policy. Corporal punishment is something that we inherited from the colonial days and it used to be reserved for serious crimes (e.g. attempted murder, culpable homicide or voluntarily causing grievous hurt).
When the Vandalism Act was passed in 1966, Parliamentarians were fully aware that corporal punishment was unusual and exceptional for a property offence. The following is from the footnotes to a paper entitled “Singapore’s Innovations to Due Process” presented by Prof Michael Hor of NUS:

The other famous example is the Vandalism Act (Cap 341) enacted in 1966 to deal with politically motivated graffiti in support of the communist insurgency. It was used a few years ago on the American teenager Michael Fay (Fay v PP [1994] 2 Singapore Law Reports 154) who was found guilty of spray-painting some motorcars, although he could hardly have been part of the insurgency which had died out a few years before that). This is an example of a “drift net law” gone wrong.

What Michael Hor was referring to in that article was the rationale for the punishment of caning in the Vandalism Act. The punishment was not motivated by a need to stop vandals but to prevent political graffiti from being widely displayed in Singapore. LKY explained the need for such punishment against political slogan writers because these people would simply glorify themselves as martyrs if they are fined or imprisoned. Caning, on the other hand, would presumably ‘rehabilitate’ the martyrdom out of them.

"... we have a society which, unfortunately, I think, understands only two things – the incentive and the deterrent. We intend to use both, the carrot and the stick. ... [A] fine will not deter the type of criminal we are facing here. He is quite prepared to go to goal, having defaced public buildings with red paint. Flaunting the values of his ideology, he is quite prepared to make a martyr of himself and go to gaol. He will not pay the fine and make a demonstration of his martyrdom. But if he knows he is going to get three of the best, I think he will lose a great deal of enthusiasm, because there is little glory attached to the rather humiliating experience of having to be caned." - Lee Kuan Yew, 1966

Essentially, the punishment of caning is extraordinary and the intention of the government in introducing this punishment in 1966 was to deter political slogans. LKY himself acknowledged during the Parliamentary debate that the punishment was a departure from the norm. My position is that we need a rational and coherent sentencing policy today in relation to the variety of criminal offences that exist in Singapore. The law must speak with a single coherent voice and not present itself as a muddled, inconsistent and arbitrary creature.

And on a light-hearted note, here is demon-cratic's take on the sticker lady saga:

That we may dream again: The commemoration of the 25th anniversary of Operation Spectrum at Hong Lim Park as I saw it

Fear. It cripples you. It makes you a lesser being than what you are capable of. It causes you to watch your step and avoid paths, though noble, are known to have contained traps in the past.

Fear. It envelopes your consciousness in ways that few human emotions are capable of. It operates unseen and seeks justification in the most rational of arguments that mind can conjure. (After all, don't we often claim close links between bravery and foolhardiness. Conversely, we never do really state that the so-called rational man is often a coward for he seeks to cover up his fear with the respectable cloak of reason.)

On 2nd June 2012, I did something which seemed simple enough. I turned up at Hong Lim to show my support to the cause of the ex-ISA detainees, their families and friends. I had work commitments that day and didn't think that I could make it. But since the event was scheduled to end at 7 pm and since I was able to rush out of the office at 5.30pm , I thought skipping over to Hong Lim was the logical thing to do.

Was there a crowd? Well, it is all quite relative really. If we try to compare this to an election rally, there is no need to bother. The number of people that were there did not constitute a crowd by comparison (unless we were to compare it to a PAP rally). At the time that I reached there, about 300 to 400 people were gathered (based on an unscientific estimation). After the event, varying estimates have been produced and it appears safe to state that throughout the day (3pm to 7pm) anywhere between 400 to 500 people must have viewed the exhibits and/or listened to the speeches.




The important thing to note about the numbers is that this was the commemoration of an event that very few Singaporeans relate to or care about and that there is undeniably an undercurrent of fear in our nation about the ISA. For most Singaporeans, economic issues and their own personal financial battles and struggles are far more important than the demand for justice advanced by some individuals that have suffered at the hands of the authorities more than two deacades ago. Amongst those Singaporeans that consider themselves to be vocal on other issues, there are many for whom the issue of detention without trial does not resonate as a pressing concern. Then, there is the fear that holds sway in our country. Many Singaporeans that privately objected to and continue to object to the detention of students, lawyers and church workers in 1987 & 1988, do not dare to publicly identify themselves with the cause. Given these facts, the number of people that turned up (despite limited channels of communication) is remarkable.

The exhibits set up at Hong Lim turned out to be part of a kind of alternative museum of Singapore's undocumented history. As someone that loves history, I commended myself for making the split second decision to rush down from the office though it was already pretty late. There were two items that were on display that caught my attention more than anything else. The first was a calendar that was in Teo Soh Lung's car with the date 20 May 1987 hauntingly halted. She was in the habit of tearing off each date when she headed off to work. But, on 21 May 1987, she did not head off to work as she was whisked away in the middle of the night by ISD officers.



What must it be like to hear that knock on the door and to be cut off so abruptly in the prime of your youth from the rest of society and to be accused of 'crimes' that you had no knowledge of. The thought itself is frightening. The experience must have been traumatic. It is not surprising that many decent Singaporeans still fear the possibility that if you spoke out too much you would be detained under the ISA, charged for sedition, sued for defamation, pursued by regulatory bodies for regulatory infringements, denied access to benefits, denied HDB grants, demoted or not given promotions (for civil servants), denied funding or simply deprived of, denied or prevented from obtaining anything that might be within the powers of the state to deprive, deny or prevent.

I have friends that do not think that it is safe for me to blog the way I do. "Be careful" - that is a common refrain. Just a few days ago, I was casually reminded on facebook that the authorities probably monitor bloggers and that there is still the Internal Security Act in this country. The muzzling of political opinion, where such opinion deviates from the accepted state narrative, has been accepted and internalised by the citizens of this country. It is taken for granted by many that 'big brother is watching you.' When the arrests took place in 1987, I was 19 yrs old. I still remember being conscious about what my friends and I discussed in public. I remember that many of us were hesitant to voice out anything that might be perceived as being anti-PAP. Whatever the government might have intended to flow from the 1987 detentions and whatever the impression they intended to create, it is undeniable that the message taken away by many citizens was that criticising the PAP's policies or the PAP leaders was a dangerous thing.

A second exhibit that caught my eye was the crucifix that gave Vincent Cheng much strength.


Being a man of faith, the darkest hours in detention must have still been made bearable for Vincent Cheng by the reminder of God's infinite love. On seeing the crucifix, I couldn't help but recollect the subtext in the Marxist conspiracy allegation. Whilst most of the detainees were members of the Catholic Church, part of the official story that initially emerged involved Tan Wah Piow as the mastermind of the plot and Vincent Cheng as the local ringleader. The story was that of a conspiracy by these individuals to set up a Marxist state. But, a subsequent gloss on the Marxist plot was the linkage with Liberation Theology.

So many questions still remain in my mind. Did liberation theology really have any impact on local Catholics? Were they even aware or or influenced by the moving ideas of Liberation Theology? If indeed Liberation Theology had influenced these conspirators, what was so bad about it? Oh yes, the detractors of Liberation Theology claim that it is Marxist in origin. That is itself a contentious assertion. A milder assertion against Liberation Theology is that it is the face of political Catholicism: placing importance on social justice and political upliftment of the poor as a manifestation and expansion of the ideals of Christ.

If indeed, Liberation Theology was based on Marxism or influenced by it, were these adherents advocating the overthrow of the capitalist state by force? Or was it a more innocent yearning for greater democracy? What was the experience in Latin America and Philipines? Were they not seeking more democracy?

If indeed, the 1987 conspirators were influenced by Liberation Theology, were these individuals even planning the violent overthrow of the state? Were these individuals not advocating social change through law reform and attitudinal change in society? What was so threatening about their actions or their plans that warranted the action taken against them?

I know what many of my generation suspected. The state was beginning to witness increased criticism. Opposition parties were making headway into Parliament. The PAP's popular vote was being reduced. (It must be remembered that some of the detainees were also active in the Workers' Party.) If one were to throw workers' rights into the mix and allow the rise of social activism, it would not have been long before, the Parliamentary dominance of the ruling party would be affected.

Amongst the detainees is a person that I know personally. I did not know him at that time but became acquainted with him during my days as a practising lawyer. Kevin de Souza was a law student at NUS at the time of his arrest in 1987. If he was not arrested, his career path would have followed that of any other law graduate: proceeding into legal practice and focusing solely on fattening one's wallet or if one was a little bit more idealistic, putting one's legal skills to good use by doing regular pro bono work and assisting in the law society's Criminal Legal Aid Scheme. As it turned out, after his release from detention, he ended up exactly the way he would have ended up if he was not arrested: becoming a legal practitioner actively contributing his services to worthy causes. Idealist, yes. Marxist, no.




Another exhibit that moved me was a simple ink painting of a black sky with a white moon. It wasn't the painting that was moving but the poem written by Lim Li Kok as an accompaniment to the painting that got under my skin.

WHITE MOON

woke up last night
from the chill of
thin shards of rain falling from the sky.
i raised my head
the sky was pitch black
while the half moon
remained white

The theme that runs throughout the works of those that have experienced unjust imprisonment anywhere is the presence of hope in the darkest hour. I guess that hope is the one thing that keeps us sane.



On a lighter note, I was thoroughly amused by the meme's done up to represent the different detainees. It was fun and in a certain way spoke of the lack of animosity or bitterness on the part of the detainees today. What they want today is just to set the record straight.

















AS I arrived at the event rather late, I missed most of the speeches and was in time to listen to part of Vincent Wijeysinha's speech.



I support the call for the abolition of the Internal Security Act. However, I can't agree with his suggestion of replacing it with a specific act targeting terrorists and presumably therefore permitting some form of preventive detention. The issue that I have with any form of detention without trial is that it becomes a tool in the hands of politicans that tempts them to abuse power. Detention without trial would deprive the person of any opportunity to present his case to an independent judiciary. The very problem that arose with Operation Coldstore and Operation Spectrum would arise in the context of persons alleged to be terrorists.

Amongst many people that support the cause of the 1987 detainees, there are a significant proportion that are convinced of the guilt of the JI detainees and the guilt of Mas Selamat. But, how do we so confidently assert that these men are guilty? How do we presume for ourselves the right to deny these men a fair trial before an open court. Let the state produce the evidence against a person alleged to be a terrorist in a court of law and let the court find him guilty. If the state did not have such evidence in the first place, then is mere suspicion and conjecture permissible as the basis for the arrest and indefinite detention of individuals?

Anyone calling for the repeal of the ISA on a principled basis must not be calling for some sort of preventive detention law targetted at alleged terrorists. Let those terrorists be charged and convicted in a court of law for the offences that they have committed and the offences that they are conspiring to commit. We cannot, simply on the basis that we have a gut feeling that the 1987 detainees were do-gooders, engage in a form of exceptionalism for persons that we deem to be political detainees and persons that we deem to be terrorists. That's just another label. How arbitrary is that?