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tag:blogger.com,1999:blog-239185392019-11-25T03:05:33.749-08:00Article 14"Proclaim the truth and do not be silent through fear." - St. Catherine of SienaSubrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-52481151345626319112014-08-05T06:59:00.002-07:002014-08-05T06:59:24.855-07:00I have movedThis blog has now been moved to wordpress.

You can access all the posts here: http://article14blog.wordpress.com/

Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-3586321615500994882014-06-05T10:09:00.000-07:002014-06-05T10:12:23.696-07:00A Right Roy-al Mess (Vandalism, Defamation, CPF and the demise of the PAP)
It's been a while since I last blogged. But, quite a few things have been going on in our little red dot and some of them have been pretty red hot.

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Two things seem to have converged together to give the impression that there is a state of rage right now in this country and that the PAP needs to take heed of this. Quite literally, the writing is on the wall. <o:p></o:p>

Vandalism<o:p></o:p>

We have seen the issue of vandalism hitting the media spotlight with the Sticker Lady (Samantha Lo) a couple of years ago. What she did had mild political overtones. But, otherwise it was the case of an individual pushing the boundaries of acceptable social behaviour (whilst at the same time crossing the legal boundaries). https://sg.news.yahoo.com/%E2%80%98sticker-lady%E2%80%99-samantha-lo-sentenced-to-240-hours-of-community-service-104618997.html<o:p></o:p>

The other famous instances of vandalism were the Michael Fay incident in 1993/1994 and Oliver Fricker's train vandalism in 2010. These had nothing to do with politics. http://eresources.nlb.gov.sg/infopedia/articles/SIP_1554_2009-08-06.html<o:p></o:p>

http://www.bloomberg.com/news/2010-08-18/swiss-man-s-vandalism-jail-sentence-in-singapore-extended-by-two-months.html<o:p></o:p>

When the Vandalism Act was passed in the 1960s, it included caning as a punishment. The reason was political. Even if we were to put aside the question of whether caning should be a form of punishment at all, it is plainly obvious that caning for a property offence is extremely disproportionate. It appears that in the 1960s slogan-writing by political opponents was a phenomenon the PAP government had to contend with. LKY and his fellow Parliamentarians seem to be aware that they were not dealing with mere juvenile delinquents. These were persons driven by ideological passion. In his cruel, brutish fashion, the old man seems to have felt that a few strokes of the cane would set right whatever political thinking there was in the minds of the slogan writers. <o:p></o:p>

I have blogged about this issue of the politics behind the Vandalism Act before… http://article14.blogspot.sg/2012/06/politics-of-caning.html<o:p></o:p>

I feel it is appropriate to quote from the man himself on the reason for corporal punishment:<o:p></o:p>

"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." - Lee Kuan Yew, 1966<o:p></o:p>

So we have now come full cycle. <o:p></o:p>

"Fuck the PAP".

That is not the first time that I have seen that phrase. There must be numerous public toilets in Singapore serving the function of being the canvas for the citizenry's frustrations. But, the display of that undercurrent of frustration on a wall on top of a HDB block is dramatic and audacious. Before the authorities could whitewash those words away (and they were swift in doing so), pictures of the graffiti got posted, re-posted and shared on numerous Facebook walls. To be honest, many of us cheered the figurative punch in the PAP face even if we may not condone vandalism. The local media (dutifully attempting to protect the image of their masters) carried a photograph with the words "fuck" and "PAP" blurred which prompted many mocking statements online about how the Straits Times seems to think that the latter is a vulgar word that deserves to be censored.

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The authorities moved in swiftly. The crime scene was whitewashed swiftly after police had inspected it. 5 kids were duly rounded up and have been charged and are out on bail. Guilty or not guilty? That is now for the court to determine. But, it is undeniable that the anti-PAP sentiment seems to be boiling over. <o:p></o:p>

We don't usually expect elderly persons to scribble graffiti. This seems to be an activity reserved for teens and young adults. So, when a 71 year old man was arrested for writing graffiti on bus stops, his age was itself a statement that spoke louder than the words that he scribbled: "We support CPF blogger. Return our CPF money…" In all, 11 bus stops were identified by the police to have been vandalized by the same individual.<o:p></o:p>

What would drive a 71 year old man to take the rather risky step of defacing public property when the state's intolerance of this kind of crime is well known? Obviously, a deep-seated hatred for the government's policies relating to CPF is sweeping the land. The older generation (including my parents) has been pretty loyal in its electoral support of the PAP. But, as many of them are struggling to make ends meet and as medical bills rise and as their children struggle to support them in their old age, they can't help but notice the woeful inadequacy of CPF as a retirement fund. <o:p></o:p>

The frustrations are real. I see many former PAP loyalists of that generation becoming openly critical of the PAP. Persons that I have known to be lifelong PAP supporters have been lamenting that the current leaders have become completely out of touch. The lack of transparency surrounding the GIC, Temasek and CPF has led many citizens to speculate about investment losses and even potential cronyism. Just as there is no evidence to suggest that there is no wrongdoing, the non-transparent approach adopted by the state results in a lack of evidence as to whether all is well in relation to the CPF monies of the people.<o:p></o:p>

On and off, there have been articles online speculating about Temasek Holdings and its financial health. None of them managed to fire the popular imagination. The usual opposition supporters would have been the likely readers of many of these articles. <o:p></o:p>

Roy and the Emperor's Opaque clothes<o:p></o:p>

Frustrations are such that very few people have the ability to intellectually dissect and try to understand and come to terms with the exact source. If I have been feeling frustrated about one issue, it can very easily be morphed over into being a frustration about another issue. For some time now, Singaporeans have been troubled by transportation woes, rising property prices, rising cost of living, depression of wages, overcrowding and of course many of these frustrations have been channeled into being a general resentment of the government's population policy. <o:p></o:p>

But there is a more fundamental sore point that haunts many Singaporeans. We don't often articulate it as the single biggest issue. When you come to think of it, the issue surrounding CPF savings and the ability of Singaporeans to retire has been something that has troubled us long before immigration and overcrowding became issues. <o:p></o:p>

Many Singaporeans have a legitimate concern about the viability of the CPF system as a retirement plan. Personally, I don't think I can retire comfortably with my CPF savings. I have to make other financial plans for retirement. If you are still in your 20s or 30s, you would be well advised to start early in saving and investing for your retirement. Don't put it off till you are in your 40s or 50s. I believe that for the average Singaporean, the CPF savings and the amounts in Medisave will be insufficient for their retirement and medical needs. <o:p></o:p>

For the elderly today it is already too late to do anything. My parents' retirement investment was their kids. That's the same with my wife's parents. I believe that for many Singaporeans in their 70s and 80s the common problem is that they have become entirely dependant on their children for medical as well as daily living expenses. Medical expenses can be a real killer. From my own experience, my wife's Medisave has been completely depleted after using substantial sums for her parents' medical expenses. My parents are presently dependant on me and my sisters for daily expenses as well medical expenses. My mother's medisave is depleted and my father's would be easily depleted if either one of them has a major hospitalization expense. It was not common during my parents' generation for them to have medical insurance. <o:p></o:p>

I am aware that many other elderly Singaporeans don't even have the luxury of depending on their kids. These are the Singaporeans that must be feeling that there is a certain breach of faith in the social contract. We have a generation of elderly Singaporeans that are not able to support themselves financially: A generation of Singaporeans that toiled really hard; a generation that did not have much by way of education but one that compensated for it through sheer hard work; a generation that was literally being abandoned by the government and the general society until the recently announced Pioneer package (which the cynical amongst us can't help but feel is nothing more than a desperate attempt to prevent further erosion of votes). <o:p></o:p>

We then have Singaporeans in their 50s and 60s that are experiencing immediate issues with the postponement of the retirement age and the increase of the minimum sum for the CPF. This, I believe, is a very angry group. If you were to speak to individuals from low income background (or even middle income) that are part of this age-group, you'd find that there is a general resentment at the CPF policies. The fact is that many people do not have any idea as to how the CPF rules work and there is of course the general dissatisfaction over the low interest payment of 2.5% that is paid into the CPF. <o:p></o:p>

Against the backdrop of this general dissatisfaction, we have Roy Ngerng blogging about the CPF issue. I have read Roy's blog on and off and he has done some good work on many socio political issues relevant to Singapore. Recently, when I came across the offending article that is the subject matter of the dispute between the PM and Roy, I was somewhat disappointed at the rather sensationalistic headline and layout of the article. When I saw the analogy drawn between City Harvest Church and the movement of CPF monies through Temasek and GIC, I couldn't help but feel that Roy was acting recklessly. When the PM's letter of demand was eventually made public, I wasn't surprised. <o:p></o:p>

There have been other instances in other local defamation cases when the words were on the borderline of being defamatory. But, in the case of Roy's article, I have to say that the legal requirements for defamation can be easily made out. <o:p></o:p>

I feel that the PM's decision to send a letter of demand with not just a request for apology but also for damages was a mistake. By doing so, he gave Roy no alternative. Apologise and pay damages? Fight, lose the case and pay damages? That's not much of a choice. When Roy did offer an apology and the sum of $5000, it was turned down. <o:p></o:p>

I expect that from a PR perspective this case is going to be pretty much a downhill affair for the PM. Already, the general public perception has been that this is a case of the big guy bullying the little guy. The swift online fund-raising campaign on behalf of Roy demonstrates that there are a significant number of people that are willing to put their money where their mouth is. Hitting $70,000 in collections in 4 days is undeniably a record. The contributing public is clearly not homogenous. Some see this as a battle to find out the truth about the CPF. There are others who hate the PAP and just want to help out Roy in his fight. There are contributors adopting a nuanced position on this whole saga: 'I don't agree with Roy's assertions but I defend his right to speak up fearlessly'. (I personally feel that way as well. It is for precisely this reason that I did not support the petition to close down STOMP.)<o:p></o:p>

What the PM needs to recognize is that this is not just another one of those old defamation cases pitting PAP Ministers against opposition politicians. For one, Roy is just an average citizen earning a meager income as a social worker. And secondly, the issue raised up by him is closely tied up with that very issue that is most Singaporeans' biggest sore point. Forget about immigration, the population white paper and the infrastructural squeeze. CPF strikes a raw nerve. <o:p></o:p>

It is quite likely that as the case against Roy proceeds, the issue of retirement funds will be kept high up in the priority list as far as voters are concerned. I am sure that the PM's lawyers will try their level best to ensure that they get a summary judgment in the case so that the matter will not go for trial. Once it doesn't go through the trial process, then there will be no embarrassing questions that can be asked about the CPF or Temasek or GIC. <o:p></o:p>

In all likelihood, they will succeed in obtaining a summary judgment and the matter will be concluded through a chamber hearing and members of the public will miss out on any juicy cross-examination in open court. Roy's rather public display of his admission means that he doesn't have any defence when the matter proceeds to court. His letter of apology states the following:<o:p></o:p>

"2. I recognise that the Article means and is understood to mean that Mr Lee Hsien Loong, the Prime Minister of Singapore and Chairman of GIC, is guilty of criminal misappropriation of the monies paid by Singaporeans to the Central Provident Fund.<o:p></o:p>

3. I admit and acknowledge that this allegation is false and completely without foundation."<o:p></o:p>

One of the defences to defamation is 'justification'. This is an assertion by the defendant that he is stating the truth. Some netizens that have expressed support for Roy seem to think that Roy should 'expose the truth' in court and prove that what he said is true. That statement in paragraph 3 of Roy's apology letter renders any such attempt an impossibility. If he tries to run the justification defence, the PM's lawyers will rely on Roy's admission that what he wrote was false and without foundation. <o:p></o:p>

If Roy had privately communicated through his lawyer and attempted to settle the matter through 'without prejudice' letters, the communication would have been 'privileged' and would not be referred to in Court. But, by making a public show of the apology letter, Roy has effectively waived the privilege. PM's lawyers will apply for summary judgment and there's a high probability that they will get it. <o:p></o:p>

The most likely consequence of this is that the matter will eventually be fixed for assessment of damages and it is at that hearing that M. Ravi (Roy's lawyer) will get to cross-examine the PM. However, any questions asked about the subject matter of the defamation will most likely be overruled by the judge as being irrelevant. The judge would only entertain questions pertaining to the issue of the damage to reputation. This may not go down very well with the general public.<o:p></o:p>

The irony of all this is that even through the law taking its ordinary course and the judiciary acting impartially and fairly in accordance with the law, the public is going to end up getting the impression that the proceedings are biased and unfair. Perception, not truth, is everything in politics. PAP politicians, more than any others should be aware of this. <o:p></o:p>

Pursuing this case all the way is going to be a serious PR disaster for the PM. <o:p></o:p>

Thanks to the increased publicity generated by Roy Ngerng's case, I have noticed that social media is abuzz with plenty of articles focusing on CPF, Temasek, GIC and transparency. (SG Daily carries links to most of these articles http://singaporedaily.net/2014/06/05/daily-sg-5-jun-2014/). If these issues are kept on the agenda consistently, it will turn more and more voters away from the PAP. I am not sure if the PM's PR people realize that they have stirred the hornet's nest. <o:p></o:p>

Saturday, 7th June 2014, Hong Lim Park will witness another protest. Turnout is likely to be strong. Many friends and acquaintances have expressed a desire to go for this protest. It would be interesting to see how many people feel concerned enough about the CPF issue to turn up for the protest. The protest is not about Roy Ngerng. But, the defamation suit has definitely coloured the event. <o:p></o:p>

There are some serious issues that need to be addressed in Singapore about what should be the ideal retirement plan that is feasible not only for the rich but also for the weakest amongst us. The "Return Our CPF" protest would hopefully help to get the ball rolling in terms of greater transparency in the system and in ensuring that we as a nation can work out a more viable retirement plan for our citizens. But of course, one can't help but feel cynical. <o:p></o:p>

Whatever your position might be on the Roy Ngerng saga, I feel that it is important to have a good showing on Saturday to send a clear message to the government that we are not happy with the way that the CPF system is being administered. <o:p></o:p>

https://www.facebook.com/events/540971529345418/<o:p></o:p>

Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-85318552979281396242014-04-11T21:11:00.001-07:002014-04-11T21:11:18.070-07:00THE PARABLE OF THE FISH TANK

I had a fish tank with not much fish inside. My father gave it to me. The fish had a lot of room to swim around and the tank was clean and beautiful. I didn't need to spend a great deal of time, effort or money to clean the tank. <o:p></o:p>

Over time, I decided to keep the tank dynamic and I introduced more fish into the tank. It became more colourful and more interesting and most of my friends that visited my place did not get bored as there was always something new in the fish tank for them to see. <o:p></o:p>

Three years ago, one of my friends pointed out that the fish were not happy. I thought it was absurd. How could he know how the fish felt? In any event, they were well fed. Why should they be unhappy? Do they have feelings in the first place? <o:p></o:p>

And then in May that year, some of the fish started jumping out of the water and some of them started crowding in one corner as if they were attempting to push the tank. (Silly fish! Structural things like that are too mighty for mere fish to deconstruct or destroy. Anyway, no tank = no fish.)<o:p></o:p>

I realised from their behaviour that something was wrong. I didn't know how to communicate with them nor did I understand what they were up to and so I got my friend who speaks to fish to converse with them. I know that whatever problems one perceives can easily be solved by persuading that person to see the wisdom of my point of view. Getting the fish to see my point of view shouldn't be too difficult as they are not too smart.<o:p></o:p>

The conversation was going well, I think. My friend told me that the fishes understand my position and they were just upset that foreign fish were allowed into the tank. I can't believe how narrow minded fish can be. I guess they don't have the intelligence of us humans. I explained to them, through my friend, that they too were foreign at one point in time when the tank was empty. They have to be grateful. Who put the water in? Who put the filters in? Who cleans the tank regularly? Who is feeding them? <o:p></o:p>

I need a whole variety of fish to keep the tank interesting. Those visiting my house have come to see the fish tank as the main attraction. If this variety of fish didn't exist, my visitors will go away. This is how I have been generating revenue. I charge the visitors a fee and through this revenue, I am able to feed my fish. I think some of what I was saying was beginning to filter into their pea-sized brains. <o:p></o:p>

And then it happened. My filter wasn't working properly and the pump broke down. Over the years I have outsourced all maintenance of the tank to a few different companies. It's an efficient way of maintaining the fish tank, you know. Besides, I wasn't too worried because all these companies were ultimately overseen by my wife. She's a very capable woman. She doesn't make mistakes. Even when she does, if you view it in the long run, they would not really be mistakes. But you need human brains to understand this. Fish brain is somewhat limited. As I now realize through my fish language interpreter that fish have feelings, I cannot tell the them that they are daft. They are daft as my papa has often pointed out. But I can't tell them that. <o:p></o:p>

Anyway, I digress. So, with the filters malfunctioning and the pumps not working, the fish started getting worked up. These days they have found a way of communicating with each other that is fast and effective. There is a wire mesh netting on the top of the fish tank that I installed. The fish have found a way to tap on the net to send messages to all parts of the tank. Their noise making can be incessant at times and the fish interpreter tells me that the dissident fish frequently pick up any mistake by the maintenance companies and DRUM out messages using the net. Over the last two years, the maintenance failures have increased and the noise from the tank has been increasing. <o:p></o:p>

Last year, I decided give the fish a reality check. I took a piece of white paper and I wrote the following on it: "You no make babies. Not enough fish. No visitors come. No money for me to buy food. You become hungry. You die. I bring new fish. Make tank colourful. More people come to visit. More revenue come in. You get more food." I am told that some of the fish have become clever and they can understand what I am saying. <o:p></o:p>

I put the white paper inside the tank. The fish went wild. They didn't like the fact that I was going to introduce more fish. Imbeciles! They don't understand that the tank will become unsustainable without the new fish. I don't know how to keep them happy. Over the last year, the filter and the pump have been having frequent problems and the tank has been getting dirty and… well…. crowded. <o:p></o:p>

The other day one reporter found out about the complaints of my fish and asked me about it and this is what I told him: "I succeeded more than I expected in building up a vibrant fish tank and so in terms of the infrastructure, I was not able to catch up – my pump, my filter. And I have paid a price. I have spent the last few years working hard to come back up to speed. I wish I had been able to foresee this outcome and I could have acted sooner. But, that is 20-20 hindsight."

<o:p></o:p>

The stupid fish are making fun of me. They think that I should have foreseen that if I introduced more fish, the tank will get crowded and there will not be enough space and that the tank's infrastructure cannot cope. I am fed up.

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-38331129213725402152013-08-26T03:41:00.000-07:002013-08-26T03:51:18.243-07:00offshore companies, business interests and the need for transparencyIn April this year the International Consortium of Investigative Journalists (ICIJ) announced that they have in their possession a database of offshore firms. I had blogged about this back then. http://article14.blogspot.sg/2013/04/icijs-offshore-files-singapore-link.html?showComment=1365318770280 A Singapore entity (Portcullis Trustnet) setting up trust companies was thrown up as a link by the ICIJ. Portcullis has officially taken the position that its operations are perfectly legitimate and that no laws have been infringed.

To be fair there are legitimate usages for offshore companies and one has to proceed carefully to avoid jumping to conclusions. In June this year, ICIJ released their database and made it available in a searchable format online. http://www.publicintegrity.org/2013/06/14/12833/icij-releases-offshore-leaks-database-revealing-names-behind-secret-companies

The link for the database is here:
http://offshoreleaks.icij.org/

Before I proceed further, here is a disclaimer by ICIJ:
"There are legitimate uses for offshore companies and trusts. We do not intend to suggest or imply that any persons, companies or other entities included in the ICIJ Offshore Leaks Database have broken the law or otherwise acted improperly."

There will be a tendency by many to assume that offshore firms are used for the purpose of money laundering and tax evasion. Whilst there is a possibility of such abuse, the truth is that the bulk of the companies are legitimate businesses using offshore firms for perfectly legitimate purposes.

For the fun of it I decided to run a few local personalities' names through the database. A random selection of our politicians (PAP and opposition) didn't throw up any information. I tried some local law firms' names and a number of firms cropped up in the database. It is likely that some of these lawyers were acting as nominees for their clients or that they were assisting in the setting up of offshore firms for these clients. Whilst I was searching law firms' names, I decided to start keying in individual lawyers' names. That was when I decided to try Mr K. Shanmugam's name.

This is what I got:

He had been a shareholder and director of Ever Fortune Management Limited from 10 October 2005 and the company became dormant in Nov 2008. The search reveals that there was another shareholder, Yao Mina, (not Yao Ming... although that is what I thought I saw :-) ) who was the sole shareholder and director from 24 Jan 2005. This person's directorship ended on 10 October 2005 although he continued as a shareholder. It is entirely possible that Mr Shanmugam's position is no more than just as a nominee director.

Before any wild speculation starts parading around the internet, let me be clear on this. The fact that he had shares in or directorship in an offshore entity does not in any way lead to the conclusion of any wrongdoing. Firstly, he could have occupied the role of a nominee. Secondly, he could have been running a legitimate business and using a BVI company could have just been a case of tax structuring (which is perfectly legal).

The point that I wish to raise is entirely different. We have a situation of our politicians having business interests. This, in itself, is not wrong and we do not expect our politicians to drop all business activities simply because they are now political office holders. But, it would certainly be good if there is some regular and transparant reporting of commercial interests by all Parliamentarians.

In the UK, Parliamentarians are required to report their financial interests in the Register of Members' Interests. This is now uploaded on the Parliament website and any person can freely browse through to see the kind of financial interests that politicians have. http://www.publications.parliament.uk/pa/cm/cmregmem.htm

Back in Singapore, every now and then we get surprising revelations about business interests. In December 2012, the discovery of the existence of a "PAP owned" company was shocking to many. (In reality, the ownership of AIM was by an ex-PAP MP and not the PAP itself.) More recently, in the height of the furore over the haze, there was an unfounded allegation of financial interests on the part of a Minister in a company that may have been involved in the slash-and-burn farming in Indonesia. http://www.channelnewsasia.com/news/singapore/shanmugam-clears-air-over/727594.html

I believe that it is about time that all elected representatives are made to commit themselves to making full and frank disclosure about all their financial interests so that citizens will have a clearer picture. Secrecy & opacity, unfortunately, fuels speculation. The following is from the introduction to the UK Register of Members interest and it sets out the purpose behind such disclosure:

"The purpose of the Register is to encourage transparency, and through transparency, accountability. It is "to provide information of any pecuniary interest or other material benefit which a Member receives which might reasonably be thought by others to influence his or her actions, speeches or votes in Parliament, or actions taken in the capacity of a Member of Parliament"."

I hope to see the development of such a disclosure mechanism in Singapore. Our Parliamentary disclosure requirement is found in S.32 of the Parliament (Privileges, Immunities & Powers) Act (Cap 217).

"32. A Member shall not in or before Parliament or any committee take part in the discussion of any matter in which he has a direct personal pecuniary interest without disclosing the extent of that interest and shall not in any circumstances vote upon any such matter."

In the Standing Orders of Parliament, there is a provision for the procedure when there is an issue of financial interests:

"65. – (1) Apart from the provisions of law requiring a Member to disclose the extent of any direct pecuniary interest, a Member shall not vote on any subject in which he has a direct personal pecuniary interest.
(2) A motion to disallow a Member's vote on this ground shall be made only as soon as the numbers of the Members voting on the question shall have been declared."
http://www.parliament.gov.sg/sites/default/files/Standing%20Orders%20%282010%29.pdf

It is clear that MPs cannot vote and cannot engage in discussion on an issue where they have some financial interest. But, how do we as citizens ascertain for ourselves what those financial interests are?
I have been searching the Parliament website to see if there is any publicly available information on the financial interests of MPs. I can't find anything. The Register of Members' Interests in UK is a publicly available document and anyone with internet access can easily view it at the Parliament website. I hope that we could have something similar.

In the immediate aftermath of the 2011 general elections, the Prime Minister issued an advisory to his fellow PAP MPs entitled "Rules of Prudence". http://sg.news.yahoo.com/blogs/singaporescene/pap-mps-told-rules-prudence-014542117.html

There is a direction in there to the PAP MPs to disclose Directorships to the Party Whip:

"Please inform the Whip of all the Directorships that you hold, and of the director's fees or benefits in kind e.g. stock options, which you receive. Include the name of the company, the position(s) held, the date of first appointment and the current Chairman of the Board....... by the end of January for the preceding calendar year..."

Can we now have public disclosure of all MPs' financial interests and make it easily and freely accessible online?

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-38707785318031432272013-06-11T02:20:00.002-07:002013-06-11T02:20:40.571-07:00The Broadcasting Act is fundamentally flawed We've had our blackout online protest. We have done our offline protest at Hong Lim Park. The blogging community has made a loud enough statement to be heard. But, as with many things in Singapore, though we might shout out loud, we may still not be heard.

I was at Speakers' Corner on Saturday, 8 June 2013. It was a remarkable job by the #FreeMyInternet chaps. They managed to get themselves organized within a short time frame and got the message out to enough people to gather a decent crowd on Saturday.

I know that the #FreeMyInternet movement made it very clear that their primary goal for the time being is the revocation of the MDA's latest licensing rules. But, I am sure their ultimate desire is also to see greater freedom in terms of the traditional media as well.

There is one thing that we need to be very clear about. The current licensing rules are set out in the Broadcasting (Class Licence) (Amendment) Notification 2013. By virtue of this notification, MDA can, at its discretion, remove any website from the Class Licence and require it to obtain a specific licence. The problem is not really a result of this subsidiary legislation. The problem is in the parent Act of Parliament itself. Parliament has drawn up a provision that is so broad that it has authorised lawlessness.

Under Section 8(2) of the Broadcasting Act,
"Every broadcasting licence, other than a class licence, granted by the Authority shall be in such form and for such period and may contain such terms and conditions as the Authority may determine"

This is equivalent to saying that the licence will be in 'x' form, for 'y' period and contain 'w' terms, where x, y and w will be determined by MDA.

As for Class licenses, section 9 deals states the following:

9(1) The Authority may, by notification published in the Gazette, determine a class licence, being a broadcasting licence, for the provision of such subscription broadcasting services and other licensable broadcasting services as the Authority may specify.

(2) The Authority may include in a class licence such conditions as it thinks fit.

MDA may issue any form of class licence and impose any conditions.

Sometimes when a legislative provision is vague and open to interpretation and there exists a danger that it could be interpreted too broadly, we might caricature that legislation by stating that Parliament could have simply given unfettered discretion to a public body to do as it pleases. The Broadcasting Act has been drafted in such a manner that it literally gives that unfettered power to the MDA.

In Chng Suan Tze v Minister of Home Affairs (1988), Wee CJ stated:

"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."

Ordinarily, the kind of case that the Courts would face involves a government body that exceeds the discretionary power that has been given to it by an Act of Parliament. Clearly, the Courts would restrain any government body that attempts to do so. But, the relationship between the Broadcasting Act and the MDA is such that the "four corners" that the Chief Justice referred to in the quotation above is missing from the legislation. The legislation literally states that the MDA can do whatever it wants. How did Parliament enact such a law in the first place?

For Parliament to make a law stating that the Executive arm of government may do as it pleases is as good as signing off on a blank cheque. The Broadcasting Act is MDA's blank cheque. It is the hallmark of the rule of law that a government must be subject to and act in accordance with the law. But, the Broadcasting Act makes a mockery of this principle. MDA can easily impose any kind of licensing conditions and still claim that it is acting in accordance with the law. A law that facilitates absolute discretion is only a law in form. It fails to fulfill its true role in restraining the arbitrary exercise of power.

In a kingdom, when a king wields absolute power and is not restrained in any way by the law we say that the king is the law, meaning that there is no rule of law in such a state. What if the king decides to subject himself to the law and he forms a Parliament that would make the law and that Parliament makes a law stating that the King may do as he pleases? Would we say that there is the rule of law in such a state? We wouldn't.

The Broadcasting Act must not facilitate discretion and the arbitrary exercise of power. It must restrict the MDA's power. Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-77941262517092370512013-06-07T08:23:00.000-07:002014-07-07T23:16:36.437-07:00It is not about the Internet alone. We need to free the media as a whole.Singapore has come some way since the days of near absolute information control and a pervasive climate of fear. As a teenager in the 1980s, I remember clearly the oppressive political environment within which alternative voices and opposition politicians were operating. Even when engaging in coffee shop conversation, there was a tendency amongst many of us to speak less audibly when it came to politics (or not at all) or to cast glances at possible undercover ISD officers. This was especially so in the wake of the arrests and detention of alleged Marxist conspirators in 1987. There were many that believed in the official version. There were many that didn't. But, one thing was for sure. We knew that Big Brother was watching.

From the time that JBJ broke through in the Anson by-election in 1981, there arose a certain excitement and expectation that more alternative voices would enter Parliament. In the years that followed, there was a growing interest in opposition politics and alternative news. Those days, with absolute control of the print media being exercised by the state, there was very little by way of alternative sources. Many of us read in between the lines to make up our minds. Newspapers that appeared to display an independent streak quickly disappeared. I managed to get much of my independant information from foreign publications or books available across the causeway.

Growing up in Singapore against the backdrop of constant propaganda and an undeniably constant climate of fear, the last ten years or so of online information availability has been a truly liberating experience. For those of us that crave for different perspectives in a debate, the internet has provided us with not only access to information but also an avenue to express our opinion. There was the often inevitable problem that letters to forum page of the main English daily that were too critical or against the national narrative would not see the light of day. Those amongst us that had alternative views or perspectives were effectively shut out from the 'national conversion' (to borrow the current national cliche) of the past.

Blogging has provided many articulate Singaporeans an avenue for free expression and other Singaporeans who crave for alternative news a source of information. Online content providers such as The Online Citizen have emerged as political game changers in many ways. I am sure that many Singaporeans were relying heavily on alternative online sources for information during the last General Elections in 2011. My blogs traffic increased tremendously during the GE and also the Presidential Elections. I can only imagine the kind of increase in traffic that sites like TOC would have experienced. Singaporeans have been increasingly consuming news online and let's be honest about it, many Singaporeans could well be influenced by the opinion and commentary that they read online.

When the MDA's new licensing regime was announced last week, I was a little hesitant to brand it immediately as a regressive step and to brand it as an attack on the larger blogging community. I wanted to read the wording of the regulations to understand whether legally it was possible for MDA to clamp down on alternative news sites. At first, based on the MDA press release I wrote speculatively about what the government might be trying to accomplish and how it might accomplish it from a legislative standpoint. http://www.article14.blogspot.sg/2013/05/from-licensing-to-regulation-of-content.html
Subsequently, when the MDA issued the Broadcasting (Class Licence) (Amendment) Notification 2013, the framework of MDA's action became much clearer and I blogged on this here: http://www.article14.blogspot.sg/2013/05/making-sense-of-legislative-framework.html

The way that I see it the new licensing regime is sufficiently vague to allow for future licensing notices to be directed at sites such as TOC. MDA has made assurances that the measure is not targetted at blogs. The issue for me is not so much as to who is targetted now. The question is whether alternative sites providing unfavourable content can be subject to licensing in the future. During the Talking Point show that was aired on ChannelNewsAsia, Minister Tan Chuan Jin did allude to the fact that blogs reporting news could come within the ambit of the licensing requirement. To be frank, TOC is a site that does not merely publish opinion and commentary on local events. Some of their activities does involve news reporting. During the last General Elections, we saw quite a fair bit of reporting from on the ground that was done by TOC.

Considering the fact that there are linguistic loopholes in the subsidiary legislation for the authorities to exploit, the blogging community has very little to go on except to hope that the PAP government will act in good faith. The main reason for the online uproar is that the past political record of the PAP hasn't been positive from the standpoint of freedom of speech and expression. Citizens are generally skeptical about the Ministerial assurances. (Perhaps, as citizens we might have to wonder whether we are unfairly forcing the current generation of PAP leaders to bear the historical burden of their party. I have reflected upon this often and tried my best to give the present PAP leaders a clean sheet to work from. But, the historical baggage is difficult to erase from memory.)

We don't know the real reason for the sudden announcement surrounding the introduction of the new licensing rules. We suspect a hidden agenda. We may or may not be right. But, one thing is for sure. If there had been a hidden agenda of gradually subjecting popular alternative sites to a regime of licensing (which involves financial constraints and take-down notices), then the uproar from the blogging community has certaintly acted as a persuasive force in preventing the MDA from taking such steps in the future. If anything, a concession has been forced in the form of a public statement that the licensing regime is not targeted at bloggers. It is a minor victory. But, a victory nevertheless.

If there was no hidden agenda, the bare mimimum that has been achieved this week is that the blogging community has sent a clear message that we value our limited space and are not willing to give it up easily. Some of my friends asked me about the point of participating in a 'blackout' (on 6 June 2013) and whether it was a futile and self-defeating exercise. My take on it is that if websites went on an indefinite blackout until the licensing regime is withdrawn, the blackout action would have been futile and stupid. What was done yesterday was, in my view, symbolic. It helped to demonstrate the broad cross-section of support that exists for the freedom of online space. It was not merely the socio-political bloggers that participated in the blackout.

Tomorrow, it is time to turn up at Hong Lim Park. I am going down to show support. I don't think that the task at hand is merely about reversing the licensing regime. The current regulations as framed and as explained (defensively) appear unlikely to prevent online discourse and debate. There are two broad tasks that we as a nation need to focus upon:

1. Firstly, we have to recognise that the Broadcasting Act enacted by Parliament grants to the MDA too broad a power to institute a licensing regime with any restrictive conditions of licensing whatsoever and all of this can be done without any need for Parliamentary debate. Just as MDA has introduced the current licensing regime, the MDA can replace it and introduce another licensing regime with entirely different conditions. The Broadcasting Act has given too much discretionary power to the MDA and discretionary power with improper or no legal contraints is always a dangerous tool in the hands of those that might be bent on abusing that power. To prevent such future abuse the Broadcasting Act must be amended to take away the general power of the MDA to set licensing conditions in a discretionary fashion.

2. Secondly, the traditional print media in Singapore has to be freed up. The Newspapers and Printing Presses Act has to be either amended or repealed. The key control mechanisms in this Act that prevent our mainstream media from acting in an independant fashion must be removed. I have previously blogged about the legal structures that limit the press: http://article14.blogspot.sg/2012/05/media-in-singapore-structural-problem.html
Minister Yacoob Ibrahim spoke about creating a parity of mainstream media and the online media. Rather than taking the regressive step of introducing controls upon the online media to bring it on par with our MSM, we should take the progressive step of removing the controls on our traditional media.

Anyone interested in understanding the mechanics of legal control in relation to the press should read this book by Francis Seow entitled "Media Enthralled"

In my reading of the current political situation I would not approach it with a sense of doom and gloom. I believe that the political awakening of our citizens that has been going on over the last few years will be met and matched by a gradual political rehabilitation of our politicians. As a country we have every reason to be optimistic since citizens are beginning to show a willingness to stand up for issues that affect the broader community instead of pursuing their own selfish goals. The juggernaut of the popular desire for greater freedom has started moving. Nothing can stop it now. Singapore in 2013 is very different from the Singapore of the 1960s or the 1980s.

We take our pledge seriously and believe in it entirely. We will strive towards a "democratic society based on justice and equality."

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-86799864975558545692013-05-30T12:03:00.000-07:002013-06-02T20:32:53.348-07:00Making sense of the legislative framework underlying MDA's moveWhen I blogged on Tuesday about MDA's decision to bring ten news sites under licensing conditions, there was no subsidiary legislation yet on the matter. http://article14.blogspot.sg/2013/05/from-licensing-to-regulation-of-content.html

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

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

(a) audiotext services;

(b) videotext services;

(c) teletext services;

(d) broadcast data services;

(e) VAN computer on-line services; and

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

The words in 'bold' represent the amendment.

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

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

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

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

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-53257138717617493672013-05-28T20:43:00.000-07:002013-05-28T20:43:02.858-07:00From licensing to regulation of contentIt has started. After much discussion about a Code of Conduct for online content providers, bloggers, news sites, etc. (and after much resistance to that idea from the online community), the government has decided to institute a modest measure in controlling/regulating/muzzling the online community.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-8657072478873775372013-05-16T06:13:00.001-07:002013-05-16T06:18:33.520-07:00Much ado about NordinI've been awfully busy and have taken some time off blogging. But, some pretty interesting things have been going on that warrant some commentary: the questioning of a local cartoonist by the police, the judgment in one of the two s.377A cases and the General Elections in Malaysia, just to name a few.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-90837752752018251862013-04-05T16:10:00.001-07:002013-04-05T22:07:22.685-07:00ICIJ's Offshore Files: The Singapore Link?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"We've had a hard time getting cooperation from Singapore in our requests for international mutual assistance on criminal matters," said the PCGG official, who asked not to be identified because of the confidential nature of his work for the agency.
http://www.icij.org/offshore/ferdinand-marcos-daughter-tied-offshore-trust-caribbean(PCGG stands for the 'Presidential Commission on Good Government' and PCIJ stands for the 'Philippine Center for Investigative Journalism')

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

"Portcullis TrustNet Group is aware of media reports with information on our Group. We take a serious view of unauthorised disclosure of any confidential information. We are looking into the matter. Meanwhile, controls and safeguards are in place to protect client confidentiality. We are confident that our business activities and client services are legitimate and conducted in compliance with laws and regulations in the jurisdictions in which we operate."
 The Philippine government has, in the meantime, commenced a probe into the Sintra Trust. http://www.philstar.com/headlines/2013/04/06/927491/pcgg-forms-probe-team-offshore-trust-funds As ICIJ releases more details over the next few days and weeks, thinks could get pretty nasty for some big names in the world. In the meantime, it would be interesting to see how much of these funds have moved through Singapore without our detection. I am sure that MAS will now turn on the heat. A statement from our authorities on this developing story would be useful.
UPDATE:
As I search around further within the ICIJ website, the Singapore Link is beginning to throw up many other individuals. The common feature is the involvement of Portcullis Trustnet. ICIJ has done a piece on Trustnet:
http://www.icij.org/offshore/trusted-service-provider-blends-invisible-offshore-world

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-25529447181042829662013-02-26T11:27:00.002-08:002013-02-26T11:27:57.851-08:00Why Pay in the first place?In this post, I have decided to address something personal instead of the usual socio-political and legal stuff. But, I guess in a way the personal is political.

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

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

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

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

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

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

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

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

I guess, in the end this is not exactly a personal rant. The personal is political.
Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-22508479182585424972013-01-24T05:03:00.000-08:002013-01-24T05:03:38.726-08:00Fear Factor - Elections in SingaporeFor too long, too many Singaporeans have lived in fear of voting for the opposition. This is not the kind of fear that involves wondering if an opposition candidate can run a Town Council or if the opposition can form the government. This is the kind of fear that involves an irrational belief that one might lose his/her job or business deals, that one would not receive priority treatment in school admissions, licensing applications or any variety of activities that require government approval.

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

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

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

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

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-79446476451815812312013-01-23T19:33:00.000-08:002013-01-23T19:50:26.969-08:00If I were a Punggol East resident... Firstly, I am not a Punggol East resident. But, the dynamics of this by-election is quite different from the Hougang by-election and I was wondering how I would vote if I were a Punggol East resident.

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

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

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

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

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

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

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

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

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

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

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

Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-28493495809516859192013-01-15T04:44:00.000-08:002013-01-15T07:20:37.456-08:00A poll during the blackout period? What was ST thinking?Fact: Straits Times published on 10 June 2013, the results of a poll it claimed to have conducted amongst Punggol East residents after the Writ of Election had been issued. The best part about it was that ST openly stated that the poll was 'after' the Writ of Election.

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

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

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

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

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

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

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

Argument No. 1

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

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

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

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

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

Alternatively Argument No. 2

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

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

Alternatively Argument No. 3

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

Alternatively Argument No. 4

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

Alternatively Argument No. 5

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

(Note: Nothing referred to herein by way of an argument or the suggestion of an argument is to be construed as being logically and/or legally tenable.) Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-62192550056328405582013-01-10T06:47:00.000-08:002013-01-10T06:47:29.619-08:00Punggol East: An opposition win? Let me first declare that I am a Son of Bukit Ho Swee (or maybe Son of Kandang Kerbau), whatever relevance that might have to my credibility, credentials or character. http://www.todayonline.com/Hotnews/EDC130110-0000082/PAP-unveils-son-of-Punggol-Koh-as-Punggol-East-by-election-candidate

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

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

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

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

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

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

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

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

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

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

On the assumption that it is a multi-cornered fight

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

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

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

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

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

My preference

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

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

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

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

(I wouldn't be surprised if part of the PM's calculation in terms of the timing of the by-election would have involved the fact that very little time should be given to the opposition parties to work out a deal. By announcing the by-election within 3 weeks of the vacancy of the seat, he has caught the opposition flat-footed. If the by-election were to be called after the Budget, the opposition parties would have had enough time to do their posturing and walkabouts and eventually work out some kind of collaboration. With the 16th of Jan being Nomination Day, any likelihood of an opposition agreement to ensure a straight fight is remote.) Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-56929385661092141232012-12-30T14:54:00.000-08:002013-01-01T18:21:54.916-08:002012: Constitutionally speaking

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

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

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

THE HOUGANG BY-ELECTION CASE

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

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

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

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

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

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

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

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

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

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

THE IMF LOAN CASE

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

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

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

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

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

THE GAY RIGHTS CASE

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

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

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

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

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

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

There is much to watch out for in 2013.

Happy new year. Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-74520836702877545302012-12-26T04:57:00.000-08:002012-12-26T04:57:34.851-08:00Not profiteering. But politicking?Social media has been abuzz with questions relating to the role of Action Information Management Pte Ltd in the leaseback agreement with 14 PAP Town Councils. There have been suggestions by some netizens that there should be a CPIB investigation and other suggestions that AIM is but an example of profiteering at the expense of citizens.

Based on information that is so far available:

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

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

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

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

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

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

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

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

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

What a way to end the year! Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-27056187341749827752012-12-18T06:09:00.000-08:002012-12-18T06:09:02.936-08:00Terminating Aljunied Town Council's Contract: What's their AIM?

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

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

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

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

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

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

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

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

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

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

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

<o:p> </o:p>

<o:p> </o:p>
Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-67789920654052587712012-12-17T00:08:00.000-08:002012-12-17T00:33:02.377-08:00Punggol East: 29 out of 30 residents feel that there should be a by-electionI read the following article online:

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

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

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

As I read further, I came across the following:

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

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

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

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

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

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

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

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

(To put an opposite spin the information: 96% of Punggol East residents want a by-election. :-) )Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-19282343241159461592012-12-12T02:32:00.000-08:002012-12-12T02:32:49.946-08:00By-election in Punggol East?The Speaker of Parliament and MP for Punggol East, Michael Palmer has resigned from his post as Speaker, his position as the member of Parliament and his membership in the PAP. It appears that he has had a relationship with a member of the Peoples' Association.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-12910958787395463442012-12-05T10:58:00.000-08:002012-12-05T10:58:17.749-08:00The Hougang By-Election case - A belated analysis of the High Court judgment

It has been quite some time since the High Court delivered its judgment in the Hougang by-election case. I haven't found adequate time to read through the judgment in order to write about it. Thanks to a couple of hours of waiting time at the Hong Kong airport last month, I penned down a few quick thoughts. Finally, I have added some finishing touches and here it is. Better late than never, I guess.

Firstly, let me recall what I stated about the Constitutional position on vacancy of seats in Parliament in an earlier blog post way back in February this year:

"Anyone that states that a by-election in Hougang is not mandated by law is talking stark nonsense." http://article14.blogspot.sg/2012/02/by-election-when-not-whether.html

Now that the High Court has decided that "there is no requirement in the Constitution to call elections to fill elected Member vacancies" and that whether "to call or not to call an election to fill an elected Member vacancy is a decision to be made by the Prime Minister", I have to withdraw my rather extreme assertion. :-) I can't say that the court is talking stark nonsense, can I? (I might just go the way of the kangaroo t-shirt wearers)

Having read the judgment, I have to admit that it sets out a well-argued position. In any event, I still hold a view contrary to that expressed by the judge and I will explain this along the way and summarise it towards the end of this post.

Firstly, how does the judgment proceed?

For those that might be put off by the length of the judgment, the good news is that the first 19 pages of the judgment deals with a procedural point relating to the type of relief that can be claimed under specific provisions in the Rules of Court in judicial review cases. This is not relevant for those interested in the issue of whether the Prime Minister has the sole and unfettered discretion in deciding whether to call a by-election.

The main issue: "shall be filled by election"

Article 49(1) of the Constitution refers to the situation where a seat becomes vacant and stipulates that the vacancy "shall be filled by election". The High Court judge has rightly decided to situate the phrase within the context of other usages in the Constitution as well as the historical context of its usage.

Firstly, the judge presents the possible interpretation of "shall be filled by election" as being a reference to a process on the one hand or alternatively a reference to the event, i.e. the holding of an election. He spells it out as follows:

The word "shall" ordinarily means that whatever it is referring to is mandatory. However, what is being mandated by the word "shall" in Article 49(1) is not immediately clear, because "election" can mean either: (a) an event, in the sense of, "to hold an election"; or (b) a process, in the sense of, "by the process of election".

Proceeding on the assumption that there are two possible interpretations of the phrase "shall be filled by election", the Court assesses the historical origins of the phrase in Art 49(1). It is here that I believe that the judgment took a wrong turn. Working with his interpretation of the 2 meanings of the phrase ('to hold an election' and 'by the process of election'), it is clear that the judge has decided two possible outcomes although he doesn't expressly state that at that stage of the judgment. But, the net effect of the court's assumption is that the phrase is capable of giving rise to only two possible outcomes:

a) 'to hold an election' - where there is a vacancy, an election must be held

b) 'by the process of election' - where there is a vacancy, it may or may not be filled. But, if it is filled, then it must be through the process of having an election instead of some other process such as nomination.

I take the view that if we were to consider "shall be filled by election" to contain multiple meanings, then the following meaning could also be attributed to the phrase:

a) where there is a vacany, it must be filled and the filling of that vacancy must be by the process of election instead of any other process.

The judge analysed that the mandatory word "shall" could relate to either "election" as an event or "election" as a process. By associating "shall" with "election", the specific mode of reasoning deployed by the court is possible. But, the word "shall" is more naturally associated with the word "filled". What is mandatory in my view is the filling of the vacancy.

Let me draw an analogy with another situation to illustrate this point about linguistic usage and interpretation. Let's assume that an instruction is communicated in the following form:

'If this glass becomes empty, it shall be filled'

The mandatory word 'shall' is associated with the filling of the glass. No multiple meanings are possible.

Let's try another form of this instruction:

'If this glass becomes empty, it shall be filled by dipping into a pot of water'

Based on the interpretive approach adopted by the High Court, we could arrive at two possible meanings:

a)If the glass becomes empty, the glass must be dipped into a pot of water

b)If the glass becomes empty, then the filling of the cup must be done by dipping into a pot of water and not by any other means (such as pouring water from a kettle).

In the first interpretation, the mandatory shall is associated with dipping into the pot as an event that must occur.

In the second interpretation, the mandatory shall is associated with the dipping into the pot as a process so that the process is mandatory if, and only if, a decision to fill the empty glass has been made in the first place.

I venture that there is a 3rd interpretation that is highly consistent with the statement 'if this glass becomes empty, it shall be filled by dipping into a pot of water.':

If the glass becomes empty, the glass must be filled and the filling of the glass must be by dipping into a pot. The word shall is to be both associated with the mandatory requirement of 'filling' as well as the mandatory nature of the 'process' of filling.

It is this third possible interpretation that the Court had failed to address in its judgment and one that I feel should be properly raised during the appeal.

Whilst reading paragraph 60 and 61 of the judgment, I formed a disagreement in my mind over the dualistic approach presented by the court. But, I decided to suspend judgment until I read through the historical context that the court presented. After all, there could have been something in the historical context that indicated that the filling of the vacancy was not mandatory and only the process by which the filling took place was mandatory.

Up to paragraph 80 of the judgment, the judge took some effort to demonstrate the different processes by which vacancies are to be filled for different types of members of Parliament. We have Nominated MPs, Non-Constituency MPs and elected MPs. The Court demonstrated that the Constitution provided for different processes for the filling of vacancy of each type of seat in Parliament. This led the judge to come to the conclusion that the mandatory "shall" in Art 49 referred to the process.

"It is abundantly clear that a nominated Member can only be appointed and not elected. It is also clear that non-constituency Members can only be declared elected under the Parliamentary Elections Act. Accordingly, elected Member vacancies are to be filled only by election. It must therefore follow that the phrase "shall be filled by election" in Article 49(1) refers to the process whereby the vacated seats of elected Members are to be filled."

I have to pause here again. I agree that the Constitution provides for different methods for the filling of a vacancy. But, the fact that there are different methods does not mean that the word "shall" in Art 49 related to process of filling the vacancy instead of the filling of the vacancy itself. Let me refer to section 4 of the Fourth Schedule to the Constitution:

4.—(1) Whenever the seat of a nominated Member has become vacant by reason of the expiry of his term of service, the vacancy shall, as soon as practicable, be filled by the President by making an appointment on the nomination of the Special Select Committee referred to in section 1.

(2) Whenever the seat of a nominated Member has become vacant for any reason other than a dissolution of Parliament or the expiry of his term of service, the Special Select Committee may, if it thinks fit, nominate a person for the President to appoint as a nominated Member to fill the vacancy.

I have highlighted the words 'shall' and 'may' in sections 4(1) and 4(2) respectively. This provision deals with the NMP position.

Firstly:

When the NMP's term of service expires, the President is required to fill it and in filling it the stipulated process is by nomination from the Special Select Committee and appointment by the President

Secondly:

When the NMP's seat is vacant for some other reason (e.g. death), the President is not required to fill the vacancy. Instead, it is stated that the Committee may nominate a person for the President to appoint as NMP. Clearly, the absence of the words 'shall be filled' indicates that there is no mandatory requirement for the filling of the vacancy and only that there is a discretion as to whether or not it is filled and if it is to be filled the process of nomination by the Committee is to be followed.

It is clear from these provisions that the Constitution draws not only distinctions in terms of the process of filling a vacancy but also distinctions in terms of whether the filling should be done.

Where it is an NMP whose term has expired, the vacancy must be filled and the process of filling is stipulated as being by way of nomination.

Where it is an NMP whose seat has become vacant for other reasons, the filling of the vacancy is discretionary and if it is to be filled, then the process is provided for.

Where it is an elected MP whose seat has become vacant, then the vacancy must be filled and the process of filling that seat is by way of election.

I do not agree that the Constitutional provisions on the filling of Parliamentary vacancies lend credence to an interpretation that the mandatory 'shall' in Art 49 is to be associated only with the process of filling the vacancy. "Shall" has been used in the Schedule to the Constitution in relation to NMPs to indicate that the 'filling' is mandatory. Where the 'filling' is not mandatory, the word 'may' has been used. This structure lends more credence to an interpretation that wherever the word 'shall' has been used in relation to the filling of a vacancy, the filling as well as the process of filling would be mandatory.

The historical origins of Art 49

During the colonial period, our Legislative Assembly progressed from being Nominated House to a partially Nominated and partially Elected House. The High Court looked at this progression and referred to the Singapore Colony Order of 1955. I quote from the Judgment:

"95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled.

96 Section 51 of the 1955 Order is the original source of Article 49(1) of the current Constitution. The exact wording of section 51 of the 1955 Order is crucial as it brings into clear light the meaning of Article 49(1) of the Constitution."

The 1955 Order:
Filling of vacancies

51.—(1) Whenever the seat of a Nominated Member of the Assembly becomes vacant, the vacancy shall be filled by appointment by the Governor in accordance with the provisions of this Order.
(2) Whenever the seat of an Elected Member of the Assembly becomes vacant, the vacancy shall be filled by election in accordance with the provisions of this Order.

The Judge added:

"97 It is immediately apparent that the expression "shall be filled by election" is common to both section 51(2) of the 1955 Order and the current Article 49(1) of the Constitution. Yet, there was no ambiguity in the meaning of the expression "shall be filled by election" in section 51(2) of the 1955 Order, because section 51(1) used the contrasting expression "shall be filled by appointment by the Governor". Such an expression clearly meant that "election" in section 51(2) referred to a process and not an event, and the word "shall" in sections 51(1) and 51(2) of the 1955 Order mandated the process of filling the seat. In other words, under section 51(2) of the 1955 Order, whenever the seat of an Elected Member of the Assembly became vacant, the only process that could be used to fill that seat was by election and not by appointment. Subsequent constitutional provisions that originated from section 51(2) of the 1955 Order and containing the same expression have the same meaning unless the text was intentionally changed.

98 The expression "shall be filled by election" in Article 49(1) of the Constitution subsequently became obscure because the distinction between the processes of appointment and election in the 1955 Order was lost in subsequent Orders in Council and later, the Constitution. It is therefore important to follow the precise chain of events in our history to understand how and why this distinction became obscure."
The Judge then went on to explain how our legislature eventually became a fully elected body and the distinction in the two processes of filling vacancies became lost and "shall be filled by election" became obscure.

I beg to differ with the Court's reasoning. The transition from from 1946 to 1955 was not merely a change in the composition of the legislative body and the method of replacing vacancies but also a transition from the discretionary 'may' to the mandatory 'shall'. Whereas the 1946 order gave discretion to the Governor as to whether the vacancy was to be filled, the 1955 order stipulated that the vacancy 'shall' be filled (i.e. must be filled). Leaving aside the way in which Elected Members were to be dealt with, the clear difference in the way Nominated Members were to be treated is evident for all to see.

In the 1946 order, the Governor had an option to decide whether to fill the vacancy of any member. In the 1955 order, the Governor had to fill the vacancy (and in so doing was to use the process of appointment). Insofar as the Elected Members were concerned, the vacancy had to be filled and the process of filling was by way of election. This new provision used the mandatory 'shall'. It is clear to me (especially with the contrast made with the 1946 Order) that the 1955 Order was intended to cause the filling of the vacancy to be mandatory as well as the process to be mandatory. In the case of Nominated Members, any vacancy had to be filled. In the case of Elected members, any vacancy had to be filled. For Nominated Members, the filling was by appointment and for Elected Members, the filling was by election.

Eventually, when our Parliament became a fully elected House, the distinction between Nominated and Elected MPs disappeared. However, that disappearance doesn't obscure the meaning of the Article 49 of the Constitution. Article 49 still echoes the transition made from discretionary filling of a vacancy to the mandatory filling of the vacancy.

I'd like to go back to paragraph 95 of the Judgment:

"95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled."

If I were to modify this to reflect my interpretation, then my modification of it would be as follows:

'Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer gave the Governor discretion to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out that each respective vacancy had to be filled and in doing so the process of filling was by appointment for the former and by election for the latter.'

What transpires is that instead of assisting the Court's reasoning in seeing Art 49 of the Constitution as presenting a discretion in the filling of a vacancy, the legislative history indicates that Art 49's origins lay in the transition from a discretionary filling of vacancies to a mandatory filling of vacancies. The irresistable conclusion that should be arrived at is that Art 49 removes discretion from the Executive in the filling of the vacancy and the manner of filling the vacancy. What is left is the discretion to decide on the timing of the filling of the vacancy.

The Judge also traced the development from 1958 through our merger with Malaysia to the eventual split and in the process discussed the temporary insertion of the 3 month limit during merger and the removal of the limit after independence. This removal was debated in Parliament and was justified by the legislature. To me the fact that the 3-month limit for the filling of the vacancy was removed does not equate with introducing a discretion as to whether the vacancy should be filled. It merely introduces a discretion as to timing of the filling of the vacancy. The vacancy must be filled. It must be filled by election. But, the timing of the election is not fixed and is therefore discretionary. This would then give rise to the question of what is a reasonable period of time within which a by-election should be called.

Summary:

Contrary to the Court's interpretation that there are two possible meanings to the phrase "shall be filled by election" in Art 49 of the Constitution, I am of the opinion that if we were to get into the process of seeking multiple meanings in that phrase, then a comprehensive approach would be to accept that there are three possible interpretations:

a) an election must be held (event of 'election' must happen)

b) if the vacancy is to filled then it must be by way of election (process of filling must be by way of election).

c) the vacancy must be filled and filling must be by way of election. (event and process)

The 3rd interpretation is not only the linguistically most natural interpretation, it is also consistent with the arrangement of the provisions in the Constitution (where the word 'may' instead of the word 'shall' is used for the filling of NMP seats and should be contrasted with the word 'shall' for the filling of elected MP seats – the difference is not merely related to the process but to the very 'filling' of the vacancy itself). The 3rd interpretation is also consistent with the historical development of the elected members' seats in Parliament. The 1955 Order moved away from discretionary filling of vacancies to the mandatory filling of vacancies.

The "shall" in the 1955 Order as well as Art 49 of the current Constitution is in relation to the "filling" of the vacancy as well as the process of filling that vacancy.

The Vellama case has already become a Constitutional milestone by virtue of the High Court's decision to not order costs against her in view of the strong public interest that exists in the interpretation and application of Art 49. The most fundamental of all rights in a democracy is the right to vote. The case is now proceeding to the Court of Appeal. Hopefully, the Court of Appeal would create another milestone by interpreting the Constitutional provision in a restrictive manner to prevent the Executive from exercising excessive discretion.

It is an important feature of the rule of law that wherever possible governmental action must be governed by law. Where discretion exists, then it ought to be the duty of the Courts to apply the law restrictively so that the area of discretion is limited and the manner in which discretion is exercised is subject to scrutiny and oversight. The 3rd interpretation not only has (a) the merit of consistency with the arrangement of provisions in the current Constitution and (b) is historically traceable to the development of the 1955 Order, it is also (c) compatible with adopting a restrictive interpretation to prevent excessive discretion from being conferred on the Executive arm. Besides, it is also linguistically the most natural meaning of the phrase.

Whilst I agree that the interpretation adopted by the Court is not impossible, I suggest that it is less probable than what I have proposed as the 3rd interpretation. In any event, it is going to come down to interpretation and which way the Court of Appeal is likely to go is not going to be easy to predict.

If the Court of Appeal upholds the High Court's decision, then this issue has to be resolved through Constitutional amendment by Parliament. The opposition parties have to seriously consider whether they would want to make the issue of this Constitutional amendment a part of their manifesto in the next elections as the right to vote is too fundamental to be given away simply because of a lack of clarity in the provision.

Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-32404025862453947072012-11-29T20:57:00.000-08:002012-11-29T20:57:01.989-08:00Strike: A 'four' letter word in SingaporeWe are creatures of PAP's social engineering.

I used to think that we have become cowards in being afraid to question authority. The last general elections in 2011 successfully lifted the fear out of the hearts of many Singaporeans. It has been gratifying to witness the transformation of Singaporeans from a once fearful population into a group of people that question the rationale of government policies. But, I have to admit I was stumped when I read the reaction of many Singaporeans (online and offline) to the strike by the SMRT bus drivers.

Many Singaporeans were calling for tough action. Some were ridiculing the media (and the mainstream media deserves the ridicule) for failing to identify the action of the bus drivers as a strike. Much of this ridicule of the failure to use the word 'strike' was with the subtext of how foreigners were getting away with the breaking of our laws. Many were calling for these foreigners to be punished. Perhaps, it was just the hatred of persons from China. Perhaps, it was just the need to use any negative news against the ruling party (and thereby questioning the failure to act in a strict fashion against foreigners when locals are handled harshly).

Or perhaps, we have just become so accustomed to the PAP constructed reality that we think that a strike is necessarily a bad thing. Some of the posts seem to indicate as such (referring to the social harmony that we have worked hard to build). Well, a couple of hundred transport workers going on strike would not bring our nation to its knees or result in widespread chaos and disarray. But, judging from the reaction of some Singaporeans, one would get the impression that a 'strike' is, in its very nature, destablising.

I remember thumbing through my niece's primary school textbook where references to the Hock Lee Bus riots are made. At the end of that chapter, there is a kind of self-assessment question about what the student understands a strike to be. I asked my niece what she thinks is a strike. Her reply was that it would involve breaking shop windows and burning things. It is entirely possible that this is the general impression that runs through the minds of many people. Of course, there are many that do understand that a strike is just stoppage of work.

There also appears to be another variant whereby strikes are recognised for what they are. But, it is viewed that the consequences of a strike must necessarily be economically debilitating. It is true that strikes worldwide have had a crippling effect for a short period of time and as a result inconvenienced many people. However, these instances have been sufficiently spread out and prudently and responsibly managed by trade unions to avoid long-term destabilisation of the economy. (Singapore's own zero strike approach ends up on the other end of the spectrum where workers' rights can be effectively trampled upon as these are sacrificed and offered up on the altar of corporate profits.)

I wonder if the hesitation of the journalists from mainstream media to label the actions of the bus drivers as a strike had anything to do with this extreme conditioning of our society whereby a strike is always associated with something that is chaotic and destabilising. All the other words that they used in substitution of the word 'strike' still described what would constitute a strike. So, why did they avoid the word in the first place? Maybe it was just plain ignorance of the meaning of that word. Maybe it was a hesitation that was born out of knowing that 'strike' came within the ambit of things that were beyond the OB markers. Maybe, being a mouthpiece for the government, they were waiting for the 'green light' from the authorities before using this 'sensitive' word. (Rather comically, an article by Teo Xuan Wei in Todayonline explained the reason for the media's avoidance of the word 'strike' by referring to the explanation given by the Minister for Manpower http://www.todayonline.com/Hotnews/EDC121128-0000063/Why-the-word-strike-was-not-used-initially )

In the end, we must not forget that a strike is essentially an 'economic' offence. Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-73088182524985407902012-11-05T09:57:00.000-08:002012-11-05T10:43:03.234-08:00The end of another judicial eraWith the retirement of Chief Justice Chan Sek Keong, another era in Singapore's judicial history ends. Every CJ has left some indelible mark in our legal history and it has to be acknowledged that the outgoing CJ definitely left his.

The accolade from the new Chief Justice Sundaresh Menon is as follows:

"We know him as a lawyer with a peerless love and devotion to the law. If law is the foundation of society and judges are its servants, then we know that the Chief is among its most ardent and loyal servants, passionately committed to doing justice in accordance with the law and seeking, like Dworkin's Hercules, to always get it right. I know that history will vindicate these assessments; but more than that, with the benefit of time, I believe history will judge the Chief as the greatest jurist this country has ever produced. And in time, we will each fully realise just how privileged we have been to have shared at least some part of that ride with him."

CJ Chan was reportedly described (by CJ Sundaresh Menon) as "a world-class jurist, with a clear and principled judicial philosophy and an unmatched grasp of the foundational principles that underlie the law." The Channelnewsasia article reporting his retirement and book launch is here: http://www.channelnewsasia.com/stories/singaporelocalnews/view/1235377/1/.html

I definitely appreciate the clarity and consistency found in the judgments of CJ Chan in comparison with his immediate predecessor. In fact, a classic moment in our legal history was when CJ Yong (sitting as a single judge in the High Court) made a clear error of law in increasing a defendant's sentence beyond the maximum permitted under the law (PP v Gilbert Louis) and it was the then AG Chan Sek Keong that had to bring a Criminal Reference to the Court of Appeal against CJ Yong's decision in order to get the defendant's sentence reduced and to set the law right. In my recollection, that stands out as CJ Chan's finest moment. http://lwb.lawnet.com.sg/legal/lgl/rss/landmark/[2003]_SGCA_33.html

And, it is interesting that the other event that immediately crops up in my mind as his least noble moment was also when he was the AG. In 1997, Goh Chok Tong, Dr Tony Tan and Lee Hsien Loong were within a polling station. The Workers' Party had lodged a complaint against them for violations of the Parliamentary Elections Act. No action was taken. The following opinion of the Attorney General (Chan Sek Keong) was made available to the public by the then Law Minister:

PRESENCE OF UNAUTHORISED PERSONS INSIDE POLLING STATIONS

1. On 14 July l997, THE Workers' Party issued a press release expressing "amazement" that the public prosecutor had advised police that no offence was disclosed in the reports made by it leaders against the prime minister, the two deputy prime ministers and Dr S Vasoo that they had been present inside polling stations when they were not candidates for the relevant constituencies. The Workers' Party queried why such conduct was not an offence under paragraph (d) or (e) of section 82(1) of the Parliamentary Elections Act.

2. On 15 July 1997, the Singapore Democratic Party also called on the attorney general to explain his "truly befuddling" decision and to state clearly if it was an offence for unauthorised persons to enter polling stations.

3. You have asked me for my formal opinion on the question raised in these two statements. My opinion is set out below.

Opinion

4. The question is whether it is an offence under the Parliamentary Elections Act for an unauthorised person to enter and be present in a polling station.

5. For this purpose, the authorised persons are the candidates, the polling agent or agents of each candidate, the Returning Officer, and persons authorised in writing by the returning officer, the police officers on duty and other persons officially employed at the polling station; see section 39 (4) of the Act (quoted below)

Activities Outside Polling Stations

6. The relevant sections of the Parliamentary Elections Act to be considered are sections 82 (1)(d) and 82 (1)(e). These provisions were enacted m 1959 pursuant to the Report of the Commission of Inquiry into Corrupt, Illegal or Undesirable Practices at Elections, Cmd 7 of 1968 (hereinafter called "the Elias Report)"

7. Section 82 (1)(d) provides that - "No person shall wait outside any polling station on polling day, except for the purpose of gaining entry to the polling station to cast his vote".

8. Plainly, persons found waiting inside the polling stations do not come within the ambit of this section. Similarly, those who enter or have entered the polling station cannot be said to be waiting outside it. Only those who wait outside the polling station commit an offence under this section unless they are waiting to enter the polling station to cast their votes.

9. Section 82 (1)(e) provides that -
"No person shall loiter in any street or public place within a radius of 200 metres of any polling station on polling day."

10. The relevant question is whether any person who is inside a polling station can be sad to be "within a radius of 200 metres of any polling station". The answer to this question will also answer any question on loitering inside a polling station.

11. Plainly, a person inside a polling station cannot be said to be within a radius of 200 metres of a polling station. A polling station must have adequate space for the voting to be carried out. Any space has a perimeter. The words "within a radius of 200 metres" ' therefore mean "200 metres from the perimeter of" any polling station. This point is illustrated in the diagrams in the Appendix. (Editor's note: Diagrams not available).

12. The above interpretation is fortified by the context of the provision. The polling station, as a place, is distinguished from a street or public place. It is not a street or a public place. Hence, being inside a polling station cannot amount to being in a street or in a public place. By parity of reasoning, loitering in a street or public place cannot possibly include loitering in the polling station itself and vice versa.

13. There is no ambiguity in section 82 (1)(e). If the legislature had intended to make it an offence for unauthorised persons to wait or loiter inside a polling station, it could have easily provided for it. It did not. The mischief that section 82 (1)(e) is intended to address is found in paragraph 99 of the Elias Report. It reads:

"In order to prevent voters being made subject to my form of undue influence or harassment at the approaches to polling stations, we recommend that it should be made an offence for any person to establish any desk or table near the entrance to any polling station, or to wait outside any polling station on polling day except for the purpose of gaining entry into the polling station to cast his vote; and that it should be an offence for any person to loiter in any street or public place within a radius of 200 yards of any polling station on polling day ."

14 . Paragraph 99 of the Elias Report appears under the heading "Activity OUTSIDE POLLING STATIONS". The Commission of Inquiry was addressing the possibility of voters being subject to undue influence and harassment as they approach the polling stations. There is therefore no doubt whatever that this provision was never intended to cover any activity inside the polling station as there would be officials and election agents in attendance.

15. The legislative history makes the provision so clear that it is not even necessary to consider the application of an established principle of interpretation that any ambiguity in a penal provision should, whenever possible, be resolved favour of the accused.

Activities Inside Polling Stations

16 Activities inside polling stations were made subject to a different regime under the Act. Section 39(4) provides that -

"the presiding officer shall keep order in his station and shall regulate the number of voters to be admitted a time, and shall exclude all other persons except the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station."

17. Under section 39(7), any person who misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer may be removed from the polling station by a police officer acting under the orders of the presiding officer. If an unauthorised person refuses to leave the polling station when told to do so by the public officer, he commits an offence under section 186 of the Penal Code for obstructing a public servant in the discharge of his duty.

18. There is a consistency in the rationales of the regulatory schemes governing activities inside and those outside polling stations on election day. Waiting outside a polling station is made an offence because it gives rise to opportunities to influence or intimidate voters: see paragraph 99 of the Elias Report. Hence, the Act has provided a safety zone which stretches outwards for 200 metres from the polling station. In contrast, the possibility of a person inside a polling station influencing or intimidating voters in the presence of the presiding officer and his officials, the polling agents etc was considered so remote that it was discounted by the Act.

19. I therefore confirm my opinion that the Parliamentary Elections Act does not provide for any offence of unauthorised entry into or presence within a polling station. Accordingly, those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act.

20. You are at liberty to publish this opinion

 I still remember reading this a long time ago in 1997. I could imagine the PAP candidates dropping into the polling station using parachutes. :-)

Anyway, when all in said and done, he has definitely had an impact on the bench. Under the previous CJ, the concentration was on administrative efficiency. It used to be next to impossible to get an acquittal. With CJ Chan, there was a discernible difference. Many criminal lawyers will vouch for the fact that CJ Chan brought about a significant attitudinal change in the criminal justice system. At least, CJ Chan will be remembered as a legal technician and not a 'banker'.

In his first speech as the Chief Justice he said this:

It is therefore not surprising that Professor Michael Hor, who teaches criminal law and justice in the Law Faculty of the National University of Singapore, expects me "to re-focus on the law and its internal values – rather than on its management and measurement by external criteria – with an increased attention to the quality of decisions, a fine tuning of the balance between fairness and efficiency."

My response to this expectation is: "Yes, the fearsome backlog of cases which was the driving force behind the relentless waves of court reforms has been eliminated more than 10 years ago. Efficiency is vital in court administration but it should not be pursued to the point when it starts to yield diminishing returns in the dispensation of justice. The Judiciary must always give priority to upholding the fundamental values of the legal system, such as due process or procedural fairness, equal protection of the law, consistency and proportionality in sentencing, and rationality in decision-making. We should now be confident enough to give greater emphasis to the basics of judicial decision-making without the recurrent fear of a resurgent backlog."

Many practising lawyers saw in that speech the indication of a shift away from what used to be perceived as 'efficiency at the expense of justice' under the tenure of the previous CJ.

Subrahttp://firstname.lastname@example.com:blogger.com,1999:blog-23918539.post-36885574696310034112012-10-23T06:45:00.000-07:002012-10-23T06:49:26.179-07:00The day the Constitution died (again)

To begin with, we don't have much of a Constitution to speak of. Ours is not a liberal Constitution peppered with extensive safeguards against the abuse of power. Our Constitution does attempt to limit the exercise of power and there are many restrictions on what the respective organs of state may or may not do. But, there are enough provisions that allow the state to claim expansive powers and enough provisions to allow for the restriction of citizens rights.

But, whatever we might say about our (amendment-ravaged) Constitution, the fact remains that it is a document that is a starting point for any discussion in law about the extent of the state's power and the extent of the citizen's rights. There are 'silences' in many provisions that enable legroom for a pro-citizen instead of a pro-state interpretation. (Just realised that 'pro-state' unhyphenated is prostate. There is an accidental link between intellectual alignment with the powers that be and a part of the anatomy near the testicular region. Sorry about this unnecessary and irrelevant digression. :-) )

That brings me to the IMF loan case. Kenneth Jeyaretnam, the leader of the Reform Party, brought an application to the High Court for the Court to rule on the legality of the Singapore government's decision to pledge a loan to the IMF. I wasn't surprised by the decision of the Court. The Court has ruled as follows:

"Art 144(1) was obviously intended to apply to the raising of loans and not the giving of loans. It follows that the approval of Parliament and the concurrence of the President are not required for the Loan. As such, the present application did not disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought and it could not be said that there appeared to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed. On this ground alone, the application for leave must be dismissed."

At issue in the case was the question of whether the government required Presidential/Parliamentary approval for the raising and giving of loans. Kenneth contended that approval is needed for both. The government contended that approval is only needed for the raising of a loan and not the giving of a loan. The reason for the contention is the mode of interpretation to be employed. Kenneth's Counsel argued for a literal interpretation of the Constitution relying on the ordinary dictionary meaning of the words employed. The government relied on a purposive interpretation. (This is a technique of statutory interpretation where a law is interpreted on the basis of the objectives of Parliament in enacting the provision; i.e. looking at the 'purpose' behind the provision.)

The Court has obviously accepted the purposive interpretation. The actual provision in question is:

"Article 144.
—(1) No guarantee or loan shall be given or raised by the Government —
(a)except under the authority of any resolution of Parliament with which the President concurs"

The Court is of the view that Article 144 prohibits the giving of a guarantee and the raising of a loan and not the other way around. I have blogged about this earlier and have mentioned that this is a technical legal possibility. http://www.article14.blogspot.sg/2012/06/singapores-pledge-of-us-4-billion-to.html

So, no surprises as to the result. If so, why do I say that the Constitution has died. Well, there is another concern that I have about the High Court decision. This is a far more serious matter with far-reaching consequences. The Court has decided that Kenneth Jeyaretnam does not have the locus standi to make a claim. (locus standi - the standing of the party. the question as to whether the person has the right to make a particular claim in court.)

Ordinarily, if the case is one involving a private interest, there is little difficulty in establishing locus standi. But, if the issue is one of public interest, the law hasn't been clear in Singapore. The English Courts (from whom we adopt this concept) have moved ahead to give a broad application for locus standi in public interest cases. Tan Lee Meng J stated the following at paragraph 42 of the judgment:

"The English position on locus standi in relation to the enforcement of public rights has become more liberal. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] 1 AC 617, Lord Diplock stated (at 644) as follows:

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 judge went on to look at the Malaysian position in Government of Malaysia v Lim Kit Siang. In the end, the decision of the Court was to decide along the lines of the Malaysian case. (In any event, the Malaysian case appears to have been given a nod to by our Court of Appeal in PP v Tan Eng Hong recently.)

On that basis, the High Court has now decided that Kenneth does not have the locus standi to pursue this case:

"an applicant in a case involving a public right should certainly be required to show that he had suffered special damage as a result of the public act being challenged and that he had a genuine private interest to protect or further."

The impact of this decision is that in future, any judicial review case involving a public interest will require special damage to be suffered by a citizen before it can be brought before the Court. And so, one possible avenue of ensuring Constitutional governance is closed. And so too, our Constitution has died.

Of course, one might just as well cynically conclude that it was not a living document to begin with. To be alive, the Constitution must not merely be a bunch of words on a piece of paper. To be alive, the Constitution must be imbued with the spirit of a people and the values of a nation. With so much to question about whether we have a coherent set of values or that there is a certain Singapore spirit and in fact, with so much to question as to whether we are even a coherent collection of individuals capable of being collectively referred to as a 'people' and even so much to question whether we are a 'nation', the question of a living Constitution probably doesn't arise. If something is not alive, it can't die, can it?

Subrahttp://email@example.com:blogger.com,1999:blog-23918539.post-15336107807235314052012-10-16T10:49:00.001-07:002012-10-16T10:53:12.953-07:00Minister spoke to Archbishop

In Parliament on Monday, 15 October 2012, DPM Teo confirmed that he had a meeting with Archbishop Nicolas Chia on 30 May 2012. There had been some speculation over the past few weeks as to whether the Home Ministry or the ISD had visited the Archbishop and exericsed their persuasive skills on the latter.

I have blogged on this issue before and the brief background can be found here:
http://article14.blogspot.sg/2012/09/mha-walks-into-minefield-when-didnt.html
http://article14.blogspot.sg/2012/09/and-mine-explodes.html

We now know for a fact that after the Archbishop's first letter to Function 8 (presumably with sympathetic words for the Speakers' Corner event on the call for the abolition of the ISA), there was a meeting between the Archbishop and the DPM. On the same day as the meeting, the Archbishop changed his mind and sent a letter to Function 8 retracting his earlier letter.

I have reproduced the Minister's answer to the Supplementary question in Parliament:

Response to Supplementary Question on Keeping Politics and Religion Separate

Response by Mr Teo Chee Hean, Deputy Prime Minister, Coordinating Minister for National Security & Minister for Home Affairs to Mr Hri Kumar's supplementary question in Parliament (15 October 2012) on whether there a meeting between the DPM and the Archbishop of the Catholic Church Nicholas Chia regarding a letter that the Archbishop had written to the organisers of the F8 function at Speakers' Corner on 2 Jun 2012.

Mr Speaker, Sir, I'll be happy to do so. As I have explained in my earlier reply to Mr Laurence Lien, Government leaders meet religious leaders regularly to build mutual understanding and trust. I have met Archbishop Nicholas Chia from time to time over the years, and several times since I was appointed as the Minister for Home Affairs last May.

2. Last year, I hosted him and a small group of Catholic leaders to lunch, so that I could understand better the issues that concern the Catholic community in Singapore. I also visited the Archbishop in hospital when he unfortunately fractured his leg last August. There was no publicity or fanfare for these meetings. The Archbishop knows that any time he needs to discuss any sensitive issue with me, he can see me in private. Likewise, I would have no hesitation to share my concerns honestly and openly with him if I felt the need to do so.

3. Sir, it was in this spirit that I asked to meet Archbishop Nicholas Chia on 30 May 2012 together with the Chairman of the Presidential Council for Religious Harmony (PCRH), Mr Goh Joon Seng. I wanted to understand better the context to the Archbishop's letter to the organisers of an organisation which calls itself F8, which was going to stage a political event scheduled for 2 Jun at Speakers' Corner. I was anxious to avoid any misunderstanding between the Government and the Catholic Church. When we met, I explained my concerns to Archbishop Chia. The Archbishop stated very clearly that the Catholic Church has always maintained the position that it does not wish to be involved in political activities, and that the Church wants to work closely with the Government and does not wish to set itself on a collision path with the Government.

4. I was greatly reassured by the Archbishop's comments, as they were consistent with his record of service throughout his 11-year tenure as leader of the Catholic Church in Singapore. He has consistently shown that he values religious harmony and appreciates the importance of separating religion from politics in our local context.

He has also worked hard to forge inter-religious understanding and harmony, reflecting his strong belief in this fundamental basis of our social harmony.

5. It also became clear from the discussion that firstly, the Archbishop had intended the letter as a private communication to the F8 organisers; and secondly, on reflection, the Archbishop felt that the letter did not accurately reflect his views on the subject, and if used in a manner he did not intend, might inadvertently harm our social harmony. Archbishop Chia then decided on the same day to send a second letter to the F8 organisers to withdraw his earlier letter. The F8 organisers acknowledged the Archbishop's request and according to the Archbishop, returned him his original letter.

6. Sir, those who know well Archbishop Chia, the type of person he is, and his contributions to Singapore over the decades, will certainly know that he is not one who would endanger social harmony in Singapore. The position he took, in withdrawing the letter, was consistent with his words and deeds throughout his leadership of the Catholic Church and as a respected religious leader in Singapore.

7. Mr Goh Joon Seng, who was at the meeting in his capacity as Chairman of the Presidential Council for Religious Harmony, is a retired Supreme Court judge who knows the Archbishop professionally and personally. They have served together on the Presidential Council for Religious Harmony for the 10 years, and have been friends, I'm told, for some 50 years. Mr Goh is a Catholic himself, and he knew that it was not in character for Archbishop Chia to do anything that would entangle the Church in politics.

8. Although I may not know the Archbishop as well as Mr Goh, I have had interactions with him on several occasions. Through my conversations with the Archbishop, we have established mutual understanding and share the desire to respect the religious beliefs of the various communities in Singapore while upholding the wider interest of all Singaporeans and of Singapore.

The Minister states that the purpose of the meeting was for him to understand the context of the Archbishop's letter to Function 8. So, the Minister had known about this private letter sent by the Archbishop to Function 8 before he arranged for the meeting. If he had known about it, was his Ministry or the ISD in the first place conducting surveillance on Function 8? If there was surveillance conducted on the activities of a civil society group, on what basis was such surveillance conducted? What national security threat did Function 8 pose? If the threat was merely one of political embarrassment for the ruling party, on what basis is the resources of the security services deployed for such purposes?

Of course, that is a lot of 'If's. :-)

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