Err why must S’poreans prove anything, Managing Editor of SPH?

On 24th February, SunT’s headline on its regular column by SPH’s Managing Editor* screamed: “Who’s out of touch – our leaders or people?”. In slightly smaller lettering,” S’poreans have to also prove that they are not a mollycoddled lot who have forgotten the realities of making a living in this competitive world and how this country made it against the odds.”

It irritated me for three reasons. The obvious one is that S’poreans already know “the realities of making a living in this competitive world”: in the last few years, they have had to put up with minimal increases in real income, escalating property prices** and inflation caused in part by the government’s very liberal immigration policies, amidst  turbulent economic conditions. The immigration policies that only now are being revised: not to reverse the situation, mind you, just  to slow the growth of FTs from the cattle-truck load to a lorry-load. I didn’t say this, Grace Fu said this when she blasted WP’s plans to limit FTs.

The second reason is that he seems to have forgotten that the govt had already admitted that ordinary S’poreans neede income rises: the issue was how to achieve it. On 25 February, Tharman announced the Budget and he said later, “And if you can’t raise incomes for the average person, for the median household and for those at the lower end of the wage ladder, your society frays.”

The third reason, it irritated me is is the unspoken assumption (which he may not even realise he made) that S’poreans are not sovereign: we have to answer to a higher authority. And this authority grades us to see whether our views are acceptable or not. If not acceptable, go get locked up under ISA, is it Mr Managing Editor?

This assumption is best explained by Alex Au in this and Dr Jothie Rajah (the first wife of our Law Minister, according to Kum Hong)

It is here that Rajah brings up a novel point. Very often, the PAP in its defence alludes to how Singapore’s legal and political system is descended from Britain. This is used as yet another bullet point in support of ‘rule of law’ legitimacy. But she points out that in many ways, our laws are not descended from Britain. They are instead descended from colonial rule, and colonial rule is inherently illiberal. Colonial governments did not rule over citizens; they ruled over subjects. Colonial governors did not submit themselves to election nor permit much political contestation; they enacted laws such as the Internal Security Act and the Sedition Act meant to control rebellion, and they saw themselves as the enlightened and civilised few sent here to protect the natives who could not be trusted to see their own best interests, grasp the facts or even understand the complex issues of the day.

The examples she studied and presented in her book all have a similar character. She thus argues that

The nation-state has adopted the colonial legal regime in a manner that renders the nation-state a neo-colonising entity, subordinating and infantilising citizen-subjects.

Coming back to Mr Managing Editor: with an ally like this, the PAP and PM must be wondering, “Who needs enemies?”

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*His picture reminds me of one of Philip K Dick’s Unusuals in “Our Friends from Frolix 8″. The Ususuals ruled the solar system.

**Mah Bow Tan even ensured that property prices flew in a recession.http://atans1.wordpress.com/2009/12/15/property-prices-mm-lee-is-too-modest/

The Hougang by-election judgement

Remember the Hougang by-election case? The bloggers have moved on, disappointed with the judgement*.

As I’ve juz heard that the petitioner, a part-time cleaner who resides in Hougang will not appeal the judgement that the PM is not obliged to call a by-election because the constitution does not require a by-election to be called if there is a vacancy, I tot this would be a gd opportunity to post on the judgement: raising points not raised by other bloggers.

First, let me commend the judge for not dismissing the case on technicalities, and on his diligence: 53 pages!

His judgement that the PM is not obliged to call a by-election because the constitution does not require a by-election to be called if there is a vacancy – surprised the legal academics and one Siow Kum Hong who the media had been regularly quoting on the case, and netizens.  But should the academics and Siow have been surprised?

In this , I had asked: I wonder why no-one had petitioned the court to get the government to call a by-election until this year? Surely there were lawyers* at that time who are as smart and brave as Ravi** ? As Chiam was an MP on two of the above instances, perhaps someone should ask him why he never bothered to bring a case? Does he agree that the PM has an unfettered discretion on whether to call a by-election or not to fill a vacancy?

*There was JBJ who although, not very smart, was brave. And there was Francis Seow, a former Solictor-General, a good litigator with the brain of an intellectual, and the heart of a lion. He is still alive though not in practice. He is a Harvard Fellow, wanted by the S’pore government on some tax charge. He was detained under the ISA for a short while in the late 1980s.

It could explain why the WP (its MP lawyers were called “cow dung” by the petitioner’s lawyer, Ravi, for not lending WP’s weight to his client’s case) did not raise the issue in parly or in the courts. The three MP lawyers may have advised that a court petition to compel the PM to call a by-election would not succeed.

One grumble that I hear the academics quietly muttering against the judgement is that it was a formalistic interpretation of the constitution, not taking into account the intention of the constitution. (Siow has said on Facebook that it is formalistic.)

Well, have they ever tot that the drafters of the constitution were men of their time? At that time, the dominant view among the English and other British judges was that the executive could be trusted because ministers were “our kind of chaps”, and that because the executive had the mandate of the voters (which could be lost if the voters were angry with it), it could and should have largely unfettered discretion: the courts should only intervene when it was clear on the face of it that something was wrong. It should never question the motives of the executive unless there was blindly obvious evidence that shumething was wrong.

Witness, the slew of cases that allowed detention without trial on the say so of the minister, and the refusal of the courts to question the executive’s motives even in the UK. Times have changed. 

Our constitution had to be amended because the Court of Appeal here ruled that it could judicially review the reasons behind an ISA detention, over-ruling a long-established local ruling. I once heard the senior state counsel in that case explain that the judges were influenced by changes in judicial thinking in other Commonwealth countries. My take is that our judges wanted to be part of the “in” crowd of judges. They wanted to continue being invited to the lunches and dinners of the ang moh judges.

Penultimately, going by the media reports, it seems the judge never asked the lawyers to argue the point on which he decided the case. When I was studying law in London, we had the benefit of hearing eminent judges talk on their decision-making process. One thing they insisted on: they would only decide on the points argued before them. If they had any original ideas, they would put it before opposing counsel and ask them to argue the point. Seems this was not done here. Reminds me of a defamation case brought against JBJ by some ministers. The judge found against JBJ on a point neither side had raised, nor had the judge asked the lawyers to argue the point. Never ever heard of that principle invoked ever again. Can’t even remember what it was.

Finally, by deciding the issue on the grounds he did, it is unlikely that the petitioner would have to pay the AG’s cost which would have been substantial, especially as AG used a Senior Counsel in private practice. Guess who pays? We the tax payer. SIGH.

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*Their restraint in commenting on the case could be due to their fear of being ”forced” to retract their comments by the Attorney-General, like one Alex Au was “forced” to do as regards on the decision in the Wally Woffle’s case. He subsequently “repented” of his act of removing the offending post (bit like Peter denying that he knew Jesus and then feeling upset with himself). Actually, as a trained lawyer, I agreed with AG. Wonder if AG repented of being nice to Alex Au?

Seriously, perhaps the NSP, with a lawyer as its VP, could conduct a seminar for bloggers on how to criticise judges’ decisions without running foul of the AG.

Err do judges read TOC, TRE etc?

I was pleasantly surprised to read that a High Court judge on Tuesday dismissed the attorney-general’s arguments to have an application dismissed. The application had asked the court to determine the prime minister’s discretionary powers in calling by-elections in Singapore.

What this means is that the Court is satisfied that there is an arguable case and that the courts recognise the need for clarification on the constitutional questions raised in the application. It does not mean that the court has made a decision against the prime minister on the merits of the application.

As a trained lawyer, I tot that the court would strike out the application on the grounds as argued by the attorney-general’s representative in court that the application was “wholly misconceived”, “legally unsustainable and unarguable in law and fact”.

I tot that the application was made too early*. The lady who sought it should have waited until July (about six months after the seat was deemed vacated) before trying her luck.

I tot the only issues would be whether the AG would ask for punitive costs to deter future “frivolous” applications by cleaners and other “lesser mortals”, and whether the court would do agree to do so.

But never mind, it’s gd that the court is prepared to hear the application, and not rely on a technicality to dismiss it.

Which brings me to the point of this posting.

I believe that a famous American judge once said that the American Supreme Court judges read the newspapers, implying that they are aware of political and social trends. When I was a law student in England, the English judges had a reputation for claiming not to follow social or political developments. They often even claimed ignorance of daily life. When I was back in S’pore, I was sure that the local  judges didn’t read the constructive, nation-building local newspapers. And who can blame them?

But going by this result, I’m sure that one judge, at least, even if he doesn’t read the local newspapers, must read some of the sociopolitical blogs. So Ravi, you may have done some good at TOC. And Richard, keep on plugging away, legal threats, trolls, flamers and unhappy family members.

Update at 6.30pm on $ AApril 2012: Juz read The attorney-general is dissatisfied with the decision of judge Philip Pillai and has filed a Notice of Appeal against the decision by the Honourable Judge and they have filed a Summons application for the Appeal to be heard on an urgent basis.

Sore loser. Let justice be seen to be done. And not hide under behind technicalties.

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*The Prime Minister had already announced in Parliament on 9 March that he “intend[s] to call a by-election in Hougang”, and that the court has no jurisdiction in compelling the Prime Minister to call one within any specific time frames. It also argued that  “a court’s power to intervene in an act of the Executive is premised… on there being a controversy requiring such intervention … is no such controversy in the present case … the Prime Minister has not refused to exercise his discretion, there is no executive decision that could legitimately be the subject of a judicial review.” (Yahoo! report).