Holding onto my hat

Holding onto my hat

Monday, June 19, 2017

THE FLAWED AGENDA OF THE OXLEY HOUSE MINISTERIAL COMMITTEE

I am troubled by the terms of reference for the Oxley House Ministerial Committee.  It looks to me that this Committee may be serving a personal vendetta instead of the public interest. Let me explain.

According to a Statement by Cabinet Secretary Mr Tan Kee Yong issued on 14 June 2017, this Committee was set up “to consider the options for 38 Oxley Road (the “House”), and the implications of those options. These included looking into various aspects, including the historical and heritage significance of the House, as well as to consider Mr Lee Kuan Yew’s thinking and wishes in relation to the House.”

Clause 7 of Mr Lee's Last Will
According to DPM Teo Chee Hean in his statement release on 17 June 2017, the Government has the responsibility to consider the public interest aspects of any property with heritage and historical significance, and that this applies to the House. - I have no problem with that statement.

But DPM Teo Chee Hean then went on to say: "The Committee has thus been looking at the options available for 38 Oxley Road while paying particular attention to respecting Mr Lee Kuan Yew’s wishes for his house."

What is the relevance of Mr Lee’s wishes for the House?

In considering the historical and heritage significance of the House, what is the relevance of Mr Lee Kuan Yew’s thinking and wishes for the House?

How are Singaporean interests served to find out whether Mr Lee Kuan Yew’s really wanted the House to be demolished or not?

Has it been the Government's policy when considering the "public interest aspects of any property with heritage and historical significance", to give weight to the wishes of the property's deceased owner?

On the contrary, my own impression is that the Government would place public interest over the personal wishes of any property owner, let alone the wishes of its deceased owner. 

The Oxley House saga is the first time I have heard our Government saying that it wants to understand and respect the wishes of the property's deceased occupant, even to the extent of disregarding the wishes of the property's current owner. Our present Government is so concerned with the fate of the House and the wishes of its deceased occupant, that it has formed a special Committee comprising four Ministers to look into those issues.

How is the public interest served by our top leaders spending their time to delve into one particular property and what its deceased's occupant wished for it? 

Granted that Mr Lee Kuan Yew is no ordinary Singaporean. But then again, how much time and effort is too much to spend on figuring out Mr Lee Kuan Yew’s wishes for the House.  How much a factor should Mr Lee Kuan Yew’s wishes bear on the Committee's decision?

What are public interests?

I would have thought that the more important questions for the Government to consider are:
  • How the public would benefit from retaining the House?
  • What national ethos or shared value(s) would be served or expressed by retaining the House?
  • Conversely, will it serve to express a shared national value to demolish Oxley House?
  • How much would it cost the Government to upkeep the House if it is retained?
  • Besides the direct maintenance costs, what are the opportunity, economic or other indirect financial costs if the House is retained?
  • What would Singaporeans lose if the House is demolished?
  • What other options are available to similarly serve the public interest or national values (e.g. preserving history, heritage) besides retaining the House?

Instead of considering such questions, the Committee looks to be conducting an inquest on who actually prepared Mr Lee Kuan Yew's Last Will and whether Mr Lee Kuan Yew really wanted his home to be demolished after his death. 

I would have thought that the question whether to retain or demolish the House (or to carry out any other intermediate end) should be decided primarily on the benefits which the public would reap from the ultimate solution. Effort should be made to articulate the value proposition to Singaporeans would be obtained for each scenario. Acquire (or gazette the House under the relevant statute) if it benefits Singaporeans. Leave the House alone if the benefits to Singaporeans are not sufficient to warrant denial and encroachment of the current owner's full property rights.

In the interest of serving the rule of law, the state should not interfere with the legal rights of property owners, unless justified by overriding public interests.  A heavy burden should lie on the state to justify encroaching on a citizen's property rights on the basis of public interests.

In my books, the interests of the public are in terms of jobs, security, education, elderly, housing, medical, cost of living and so forth. 
Old National Library Building

Since Independence, many Singaporeans have lost their properties and livelihoods [1]through compulsory acquisition laws to serve the national interests of providing affordable housing, amenities, public roads and infrastructure to Singaporeans.[2] Also, many iconic buildings and landmarks [3] have been demolished or are even now facing demolition[4] [5], in the process of meeting the needs of Singaporeans. Even century old graves have been exhumed to make way for housing development and public works.[6] But all of a sudden, we see a newfound interest in our Government to serve and preserve heritage and history when it comes to the House.


I am all for serving Singapore’s history and heritage. But it is not right to serve Singapore’s history and heritage only when it coincides with the political ends of the ruling party and to otherwise disregard artefacts from which no political mileage can be derived from preserving them. [7] Singapore’s history is much more than the political ascendency and achievements of the ruling party.  
18th century fort built by the British at Katong Park in Singapore
For this reason, when making recommendations or decisions on the fate of any building or property of potential historical significance, politicians should not be involved.  How can we tell if the politician is seeking to preserve an artefact that is closely linked to late leader in order to capitalise on its political significance on the pretext of serving the public interest?  It would be a huge disservice to Singaporeans to be given a distorted narrative of Singapore’s history.

The Oxley House saga is a family dispute between two opposing sets of siblings as to what should become of their parents' home. To serve their personal vendettas, the rival camps have appealed to the public to decide the outcome on the basis "What Mr Lee Kuan Yew would have wanted". 

Unfortunately, the narrative fed to us by the mainstream media may have led Singaporeans to conflate Mr Lee Kuan Yew's wishes with the Nation's Interests.  According to this false linkage, it is in the National Interest to follow Mr Lee Kuan Yew's wishes, so we need to know his wishes. 

Actually, Mr Lee Kuan Yew's wishes are personal to him, and so they are irrelevant in the consideration of public interests.   Public interests centre on the Government's responsibility to make our lives better.

The Committee has set off on a Hunt for the Author of Mr Lee Kuan Yew's Last Will and on the Quest to seek his True Wishes. Will the answers they find make the lives of us ordinary Singaporeans better?

Jeannette Chong-Aruldoss




[1] E.g. Sungei Road flea market will soon close http://www.asiaone.com/singapore/7-things-you-ought-know-about-sungei-road-market-it-disappears
[2] https://www.ura.gov.sg/uol/media-room/speeches/2013/sep/pr13-58.aspx
[3] E.g. the old national library building https://www.theonlinecitizen.com/2015/02/03/was-the-demolishing-of-the-old-national-library-a-well-thought-decision/
[4] E.g. Dakota Crescent flats http://jeannettechongaruldoss.blogspot.sg/2015/07/keep-dakota-crescent-vital-link-to-our.html
[5] E.g. http://www.asiaone.com/singapore/7-things-you-ought-know-about-sungei-road-market-it-disappears
[6] E.g. Bukit Brown cemetery https://www.theguardian.com/cities/2015/aug/07/land-starved-singapore-exhumes-its-cemeteries-to-build-roads-and-malls
[7] E.g. the buried fort at Katong Park http://jeannettechongaruldoss.blogspot.sg/2015/08/a-buried-fort-spirit-of-katong-awaits.html

Saturday, April 29, 2017

Ministries and the Ministers Responsible

MinLaw and MHA are both helmed by the same Cabinet Minister. Would it be better if each Ministry is headed by a different Cabinet Minister so that no Cabinet Minister heads more than one Ministry? Or is this a safeguard which has little or no practical relevance in the context of our One-Party System?

The Singapore Government is run by the Prime Minister's Office (PMO) and 15 Ministries. Each Ministry is led by either 1 or 2 Cabinet Ministers. There are 20 Cabinet Ministers; 2 more will shortly join the Cabinet to make the number 22.  

Of the 15 Ministries, MOE and MTI are helmed by two Cabinet Ministers. But MinLaw and MHA are both helmed by the same Cabinet Minister.

From 1 May 2017, another Cabinet Minister will become "Second Minister" for MHA. Being designated "Second Minister", I take it to mean she ranks below the "First Minister" and does not co-head MHA.

MinLaw and MHA exist as separate Ministries for good reason. For good governance, accountability and to avoid conflicts of interests, the same individual should not be made to hold concurrent roles, unless we are short of staff.
  • So, is staff shortage the reason for making one Cabinet Minister double up and head two Ministries?
  • Is it wise to converge the responsibilities - and powers - of two Ministries under one individual?
  • Is job of a Minister of Law a full-time position? Can the job of Minister for Home Affairs be adequately performed by a part-timer?   
  • Where a Minister holds more than one ministerial job title, how is he remunerated: per job title as a part-timer, whole-timer, or otherwise?
  • Would it be better if each Ministry is headed by a different Cabinet Minister so that no Cabinet Minister heads more than one Ministry? 
  • Or is this is a safeguard which has little or no practical relevance in the context of our One-Party System?
For the complete picture, here is a list of Ministries and the Ministers Responsible:

(1) MINISTRY OF COMMUNICATION AND INFORMATION (MCI) 
Ministers responsible: 1 Cabinet Minister; and 2 Senior Ministers of State

(2) MINISTRY OF CULTURE, COMMUNITY AND YOUTH (MCCY)
Ministers responsible: 1 Cabinet Minister; and 1 Senior Minister of State

(3) MINISTRY OF DEFENCE (MinDef)
Ministers responsible: 1 Cabinet Minister as 1st Minister, 1 Cabinet Minister as 2nd Minister; and 1 Senior Minister of State

(4) MINISTRY OF EDUCATION (MOE)
Ministers responsible: 2 Cabinet Ministers; and 1 Senior Minister of State

(5) MINISTRY OF THE ENVIRONMENT AND WATER RESOURCES (MEWR)
Ministers responsible: 1 Cabinet Minister; and 1 Senior Minister of State

(6) MINISTRY OF FINANCE
Ministers responsible: 1 Cabinet Minister as 1st Minister, 1 Cabinet Minister as 2nd Minister; and 1 Senior Minister of State

(7) MINISTRY OF FOREIGN AFFAIRS
Ministers responsible: 1 Cabinet Minister as 1st Minister, 1 Cabinet Minister as 2nd Minister; and 1 Senior Minister of State and 1 Minister of State

(8) MINISTRY OF HEALTH
Ministers responsible: 1 Cabinet Minister; and 3 Senior Ministers of State

(9) MINISTRY OF HOME AFFAIRS (MHA)
Ministers Responsible: 1 Cabinet Minister as 1st Minister and 1 Cabinet Minister as 2nd Minister 

(10) MINISTRY OF LAW (MINLAW) 
Ministers responsible: 1 Cabinet Minister; and 1 Senior Minister of State

(11) MINISTRY OF MANPOWER (MOM)
Ministers responsible: 1 Cabinet Minister as 1st Minister, 1 Cabinet Minister as 2nd Minister; and 1 Senior Minister of State

(12) MINISTRY OF NATIONAL DEVELOPMENT (MND)
Ministers responsible: 1 Cabinet Minister as 1st Minister, 1 Cabinet Minister as 2nd Minister; and 1 Senior Minister of State

(13) MINISTRY OF SOCIAL AND FAMILIY DEVELOPMENT (MSF)
Minister responsible: 1 Cabinet Minister 

(14) MINISTRY OF TRADE AND INDUSTRY (MTI)
Ministers responsible: 2 Cabinet Ministers; and 2 Senior Ministers of State

(15) MINISTRY OF TRANSPORT (MOT)
Ministers responsible: 1 Cabinet Minister as 1st Minister, 1 Cabinet Minister as 2nd Minister; and 1 Senior Minister of State

Source: http://www.pmo.gov.sg/newsroom/changes-cabinet-and-other-appointments-0#annex_a


Tuesday, August 23, 2016

NMPs are Believers in the System


Author's Note: I wrote this on 17 August 2016. On the night of 16 August 2016, I had an epiphany after watching a video of an NMP speaking in Parliament to earnestly explain the adverse implications of a Bill which was up for assent. The NMP would later vote in favour of the Bill. After I saw the video, I could not sleep. So I hit my keyboard to bang out my thoughts to share with my friends. Here you go.


Nominated Members of Parliament (NMPs) are Believers - they believe that the system is fundamentally sound but needs tweaking here and there, and that the Government is basically good though not perfect.

If one is a Believer, then words of assurance will suffice.

But not for one who is a Cynic, who sees the system as one designed to entrench incumbents and being constantly calibrated to ensure they continue to be in power.

Cynics will not see the attempt to introduce new laws that constrain civil liberties as mere "codification of existing laws", but will view such attempts in the context of the incumbents' continuing efforts to remain incumbent.

With Cynics in the House, citizens are assured that Bills will be suspiciously scrutinised and robustly debated upon. Schemes which serve the incumbents at the expense of citizens will be called out for what they are.

Without Cynics in the House, citizens are deprived of alternative choices and contrary views which are necessary for informed opinions.

While Believers may see themselves as playing the laudable public role with their reasoned speeches cautioning against the possible abuses, they may well be doing the citizenry more harm than good.

NMPs are identified to the citizenry as independent opinion-makers simply because they belong to no political party. But it is easy to forget that NMPs are selected.

I dare say that only Believers may be considered for NMPs and Cynics stand no chance to ever be one. So NMPs are not really "independent".

What do Believers bring to the table in a debate?

We have seen how NMPs have eloquently identified the pitfalls and flaws of Bills.

But when an NMP criticises a Bill yet expresses agreement with its basic aims, the net effect is an endorsement of the proposed new laws. The bell of endorsement is more sonorous when it is rung by an "independent". Being a Believer, the trust which an NMP has in the system and the Government will undergrid his entire speech, even one which is sharply critical. Beliefs are fully transferable, especially in the absence of Cynicism.

What Believers bring to the House is more confidence to the System. Thus, NMPs serve to entrench the incumbents.

So the more NMPs there are, the better it is for the incumbents.

Wednesday, August 3, 2016

An "Orientation" Escapee's Tale

To this day, whenever I see the word "Orientation", a sense of fear and anxiety would arise in my guts. I can never read "Orientation" without feeling discomfort.

The year was 1982. I was 19 and in the happy position of fielding two degree offers. One was a place at the local university to read political science and the other was a place in a UK university to read law.

Needless to say, my parents wanted me to be a lawyer. But I was a homebody and had no desire to leave the comfort of the familiar to go abroad to study.  I was eager to join my school and JC friends and to meet new friends at the local university.  As I had been very active at co-curricular activities in school, I managed to "win" a place at the university hostel, which added to my excitement to start at the local U.

However, the promise of a fun-filled hostel life turned quickly into dust on arriving at the Halls of Residence. I found myself the unwitting participant of the hostel's 3-week long "Orientation Program".

We were told at the onset by our superiors at the hostel that we were in for tough and challenging ride.  The Orientation Program was designed not only to foster bonding and camaraderie among the hostelites, but more importantly to "build character" for our own good.

We, the newcomers to the hostel, were "orientated" by being given a set of rules to abide by.  Firstly, we were all mandated to wear conspicuous badges by which we could be identified as the newcomers, and thereby differentiated from the hostel incumbents.  The badges had to be wore at all times whenever we were on hostel premises.  On meeting, or whenever summoned to the presence of, an incumbent, we were to address them by the multi-syllable honorific "Senior Gentleman" or "Senior Lady", as the case may be.  Incumbents were at liberty to speak to or summon newcomers at will, but not vice versa.

Every morning, we had to assemble in the open field for drills conducted by the Seniors.  We had to obey instructions and participate in whatever “games” or activities the Senior Gentlemen and Ladies had in store for us.

I cannot remember what those activities were. But I do remember a lot of shouting at us by the Seniors, including shouting at errant "recruits" at very close range (as in nearly touching the nose) for making mistakes or showing insufficient deference to Seniors.  As part of the assembly of recruits sweltering under the hot morning sun and bearing witness to the “punishments” meted out to errant newcomers, I clearly recall feeling fearful of making mistakes (by not following instructions properly) and dreading to be the one singled out for "punishment" i.e. humiliation by the powerful Seniors.

After the morning drills were done, we would spend the rest of the day attending our lectures and tutorials.  But when evening came, the Orientation Program resumed. There was no respite. Since we resided at the hostel, we were bound to cross paths with Seniors. We had constantly to be on our toes to ensure we remembered and followed the prescribed rules of protocol and engagement whenever we encountered Seniors.  Breach of protocol - whether by mistake, forgetfulness, cockiness or defiance - would render the felon liable to be shouted at and/or made to do something silly for the amusement of other Seniors.

I did not realise it but the relationship between the newcomers and the Seniors was that of captive and captors. I was afraid of the Seniors. They had power over me. I had to obey and defer to my Seniors.

It was not long before we captives began feeling the stress of our captivity and subjugation. Groups of us would huddle to encourage each other to soldier on and to bear with the "hardships" of our ordeal.  The Seniors were in fact looking out for us, we reasoned. They were trying to make us tougher and to build up our resilience and character. It was all for our own good.

Towards our end of the second week of "Orientation", my paternal uncle decided to drop by the hostel to look in on me.  While I was glad for his visit, I recall telling him that I could not talk to him long, as I "had to get back".  I cannot remember what else I said to my uncle, but I do recall feeling scared that I might be breaching some protocol by talking to my uncle "without permission" from my Seniors. I was furtive and uneasy. I was behaving like a prisoner.

Bless my uncle for his insight.  He said to me: "Jeannette, pack your things. I am taking you home."

I was stunned and bewildered.

For several minutes I could not process the fact that I could LEAVE the hostel and check out of the Orientation Program.

The realisation empowered my feet. I skipped up the stairs to my room to gather my belongings and to make my run to Freedom.

It was at this point that one of the most bizarre things in my life on this earth took place.

As I resolutely bundled my stuff into my bag, two girls who had their rooms next to mine (and who were fellow sufferers) came up to me with eyes aghast and the following dialogue ensured:

Well-meaning friends: "Jeannette! What are you doing?"

Me: "I am leaving!" 

Well-meaning friends: "Leave? But we are almost finishing our Orientation!  We have not long more to go!” 

Me: “You can stay, but I am going.”

Well-meaning friends (sitting me down): "You should not quit now. All this is a test of our character. When we finish the Orientation, we will become better people. Think about it."

I have to give it to these two girls. They tried their best to reason with me not to leave and to stay with the Program to the end. But I was not convinced.

Then one of the girls, in a final act of desperation, said this to me, which I will never forget:

"Why did God put you here if He didn't want you to go through this?"

(The 2 girls and I share the same faith.)

It was now my turn to look at her in utter and complete amazement.  Her "reasoning" gave me unequivocal proof that the Orientation Program was a sick game and all its participants deluded if not psychotic.

I walked away from those girls, the hostel and the Orientation Program.  I never saw those two well-meaning girls again.

No prizes for guessing that I subsequently dropped out of the local university and went to UK to read law. On arriving at the UK hostel at the start of my term, I read a notice on the wall about an "Orientation" event for new students. With some trepidation and suspicion, I asked some people what that event was. "Oh, it’s just tea and snacks to get to know each other."

And it turned out just so. But you know, I had to ask, just in case.      

Sunday, April 10, 2016

Of Best Friends, Bitter Foes and the Bane of sailing through a Fog

Dr Lee Wei Ling: "i will no longer write for SPH as the editors there do not allow me freedom of speech. in fact, that was the reason why i posted the article on LKY would not want to be hero-worshipped." (Facebook on 1 April 2016 at 1.07pm)
Janadas Devan: "Reading Wei Ling’s unedited writings was like sailing through a fog. The effort of turning her raw material into coherent articles — that’s what I remember most about editing Wei Ling." (Facebook on 4 April 2016 at 3.05pm and Straits Times on 5 April 2016)
Dr Lee Wei Ling is the daughter of Singapore's former Prime Minister, Lee Kuan Yew and Janadas Devan is the son of Singapore's third President, C.V. Devan Nair [1].
By now, many will be aware that following Dr Lee Wei Ling’s Facebook post on 1 April 2016, a public spat ensued between Dr Lee Wei Ling and Janadas Devan [2].  Reading their feisty online exchanges sparked off an interest in me to find out more about the relationship between their respective fathers, Lee Kuan Yew and Devan Nair.
For the most part of their lives, Lee and Nair [3] were political comrades.  But in their later years, they were bitterly suing each other in court.
Public records bear witness to a tragic tale of close cronies turning into feuding foes. When the People’s Action Party was formed on 21 November 1954, Lee and Nair were among its founding members. Nair is credited for helping to establish the Singapore National Trades Union Congress. On 23 October 1981, Nair was elected by Parliament as Singapore’s third President. 
Then on 28 March 1985, Nair resigned as President of Singapore without completing his term of office.  In 1988, Nair left Singapore for good and never came back. 
Singapore High Court: Lee Kuan Yew v Nair Devan (1988)
On 6 May 1988, Francis Seow was detained under the Internal Security Act (Cap. 143).   On 22 May 1988, Nair publicly spoke up for Francis Seow, questioning the basis for his detention without trial.  Lee, taking offence to certain parts of Nair's public statements, took swift action and sued Nair for defamation three days later on 25 May 1988.
Initially, Lee’s lawsuit cited two instances of alleged libel arising from Nair’s comments made to the media on 22 May 1988. Then on 7 April 1989, Lee added a third instance of alleged libel to his lawsuit against Nair, citing Nair’s alleged libellous comments as contained in an article written by a reporter published in The Straits Times on 23 May 1988. 
In response to this additional claim by Lee, Nair applied to Court to drag the newspaper into the fray to share the blame (if any) with him.  The newspaper protested vigorously, but the Court agreed with Nair, observing that the newspaper had made its own decision to republish Nair’s press statement. So Straits Times Press (1975) Ltd became a party to the lawsuit.  This meant that if the Court were to decide that Nair’s comments were libellous, the newspaper could be made to share liability with Nair to pay damages to Lee.
Lee’s 1988 lawsuit lasted over four years and spawned two reported interim court decisions, one on 3 September 1990 [4] and the other on 8 December 1992 [5].  As to the final outcome of that lawsuit, whether it was won, lost or discontinued, I do not know.  I have not been able to find out what happened to Lee’s 1988 lawsuit.   If anyone knows, do share.
Ontario Supreme Court: Lee v. Globe and Mail, Nair (1999)
On 29 March 1999, the Canadian newspaper, Globe and Mail published an article [6] entitled ‘Singapore Sage’ reporting on an interview with Nair.  In that article, Nair alleged that Lee had Singapore doctors slip hallucinatory drugs to Nair to make him appear befuddled.
In June 1999, Lee filed a lawsuit in Canada against Globe and Mail and Nair for defamation.
In response to Lee’s lawsuit, Globe and Mail filed their Statement of Defence, pleading the defences of justification, fair comment and qualified privilege.  Lee countered by applying to court to strike out certain parts of their Defence.  However, the Court decided [7] to dismiss Lee’s striking out application with costs.
As for Nair, he responded by filing a Counterclaim against Lee, seeking damages on the basis that Lee's lawsuit was an abuse of process. Nair argued that the real purpose of Lee's lawsuit was to silence, not only Nair, but all of Lee's critics and opposition in Singapore. According to Nair, Lee's action was part of a pattern of using the libel process to silence his critics and opposition and was "a mere stalking horse intended to further foster and continue a climate of fear and intimidation". [8]
In turn, Lee filed a Motion to have Nair's Counterclaim thrown out of court. As it turns out, the Canadian Court found merits in Nair's arguments and allowed Nair's Counterclaim to stand. Once again, Lee found his court application dismissed with costs. [9] 
Lee having failed to strike out certain parts of the newspaper’s Defence and to strike out Nair’s Counterclaim, the parties (Lee, Globe and Mail and Nair) were left to slug it out in Court in respect of Lee's defamation lawsuit, Globe and Mail’s Defence and Nair's Counterclaim.
But the legal case never got much further after that and was eventually discontinued. Nair’s mental health had overtaken him.
On 1 July 2004, Globe and Mail reported [10] that Nair had been diagnosed as suffering from early dementia that he was no longer able to give evidence in court proceedings. 
That terse report also stated that as to Nair’s allegation in the ‘Singapore Sage’ article that Lee had Singapore doctors slip hallucinatory drugs to Nair to make him appear befuddled, “Mr Nair's family has said that, having reviewed the record, there is no basis for this allegation.”
Nair passed away in Canada on 7 December 2005. He was 82.  Nair gave the best years of his life to public service in Singapore.  His final resting place is a grave in Hamilton, Canada.
by Jeannette Chong-Aruldoss
Photo by Dr Thum Ping Tjin, used here with his kind permission.

Photo by Dr Thum Ping Tjin, used here with his kind permission.




[1] http://www.istana.gov.sg/the-president/former-presidents/mr-devan-nair
[2] http://www.todayonline.com/singapore/dr-lee-made-serious-allegation-about-my-conduct-journalist-janadas-devan
[3] http://www.istana.gov.sg/the-president/former-presidents/mr-devan-nair
[4] Lee Kuan Yew v Nair Devan [1990] SGHC 59 (3 September 1990)
[5] Lee Kuan Yew v Nair Devan (Straits Times Press (1975) Ltd and another, third parties) [1992] SGHC 303
(8 December 1992)
[6] http://www.singapore-window.org/sw99/90329gm.htm
[7] Lee v. Globe and Mail, decision of Swinton J on 30 January 2001 at:
 http://caselaw.canada.globe24h.com/0/0/ontario/superior-court-of-justice/2001/01/30/lee-v-globe-and-mail-2001-28035-on-sc.shtml
[8] For a report on Nair’s counterclaim against Lee, see this link: https://web.archive.org/web/20061101004557/http://www.sgmlaw.com/PageFactory.aspx?PageID=252
[9] The Canadian Court's written judgment dated 7 January 2002 is at: https://web.archive.org/web/20061101024125/http://www.sgmlaw.com/AssetFactory.aspx?did=38
[10] http://www.singapore-window.org/sw04/040701gm.htm

Thursday, February 11, 2016

S$6,063 – the price of justice for Jolovan Wham

On 22 December 2015, the High Court handed down a judgment which clarified the legal effects of a police warning.  Wham Kwok Han Jolovan v AG [1] ("Jolovan's case") clarified that police warnings are merely expressions of opinion that the recipients had committed an offence, but do not otherwise have any legal effects on its recipients.

The judgment was the outcome of a Judicial Review application by Jolovan Wham to quash (i.e. void) a police warning administered to him.  As the Court held that there was no decision in the warning administered to Jolovan for the court to quash, the Court dismissed Jolovan's application with costs. 

On 1 February 2016, the High Court ordered Jolovan to pay S$6,063 in costs to the Attorney-General ("AG") for his failed court application. The amount was arrived at after discounting 20% off the amount sought by the AG, to take into account aspects of the process by which the warning was issued.

I am disappointed with the AG for seeking costs against Jolovan and with the Court's decision to order Jolovan to pay S$6,063 in costs to the AG.

Before Jolovan’s Case

The practice of issuing warnings in lieu of prosecution is not a creature of statute or regulated by legislation. Before the decision in Jolovan's case, the implication of receiving a police warning was mired with uncertainty. 

In a seminal article by lawyer Tan Hee Joek "Be Warned of the Stern Warning" published in the Law Gazette in 2013[2], the author said:

"... local cases have shown that a stern warning may still be relevant in judicial proceedings as a criminal antecedent for sentencing and for related civil claims". 

The author cited five reported cases in which the prosecution had brought the accused’s prior warnings to the attention of the sentencing judge.  One of those cases was PP v Tan Hiang Seng[3], which I shall say more about. The author concluded that the five cases showed that police warnings can have adverse effects for the recipients. 

PP v Tan Hiang Seng

Of the five cases cited by Tan Hee Joek in his 2013 article, three of them were referred to by Justice Woo Bih Li, the judge in Jolovan's case. 

Of the three cases, Justice Woo found that in two of them, the court did not actually take into account the previous warnings when sentencing the accused.  But Justice Woo agreed, and AG conceded, that in PP v Tan Hiang Seng, the court certainly did take into account a prior warning to the accused while considering the issue of sentence.  On this point, Justice Woo stated in his judgment that a court is not entitled to treat a warning as an antecedent or as an aggravating factor since it has no legal effect and is not binding on the recipient.

I looked up the case of PP v Tan Hiang Seng. In pressing for a custodial sentence, the prosecution in that case informed the court that the accused had been given a stern warning for taking his mother’s identity card without her permission. The judge in that case said in her grounds for sentencing: 

"... the accused had taken his mother’s identity card without her permission. This was itself an offence of theft. He was given a stern warning by the police for this. I considered this an aggravating factor."

The judge sentenced the accused to 4 weeks' imprisonment and a fine of $2,000.

PP v Tan Hiang Seng is a clear instance where the court when sentencing an accused, had considered the fact that the accused had been warned by the police to be an aggravating factor.

The AG can't run away from PP v Tan Hiang Seng.  Small wonder that in Jolovan's case, Justice Woo noted:

“… the AG submitted that it would be wrong for a court to take into account a prior warning, whether as an antecedent or not, for the purpose of sentencing and he stressed that the prosecution would not in future mention a prior warning to a court for the purpose of enhancing a sentence."

Hence, the AG admitted that the prosecution’s practice of informing the sentencing judge of prior warnings was wrong and that they would stop doing that in future. 

This means that the prosecution in PP v Tan Hiang Seng (and in each of the 4 other cases cited by Tan Jee Joek) erred by telling the court about the accused’s prior warning; and the judge in PP v Tan Hiang Seng erred in considering that factor when sentencing the accused in that case. 

Looks like poor Mr Tan Hiang Seng's sentence was unfairly enhanced. Now that Jolovan’s case has brought those mistakes out in the light, is there justice for Mr Tan Hiang Seng? Would the AG take the initiative to review Mr Tan Hiang Seng's sentencing? To right the wrong, to set the record straight? Or is all that water under the bridge?

S$6,063 to the AG

Mr Tan Hiang Seng's case is long over, but Jolovan's case is still live, as he has now been ordered to pay the AG the sum of S$6,063 for “failing" his court application.

As Tan Hee Joek’s article shows, before Jolovan's case, there were concerns that police warnings could have adverse implications for the recipients.  Given the prevailing legal opinion, we cannot fault Jolovan for being motivated to apply to Court to quash the police warning.  

Apart from uncertainty over the legal implications of police warnings, the circumstances faced by Jolovan make the cost order imposed him seem unfair.

Concerning Jolovan's visit to the police station on 25 March 2015, Justice Woo declared at paragraph 1 of his Judgment that "it was not even clear whether a warning was administered".  Jolovan asked for a copy of the Notice of Warning, but his request was denied. Justice Woo also criticized the wording of the Notice of Warning and called it "poorly drafted".

On 4 May 2015, Jolovan called the police to enquire about the outcome of the investigations against him. The police told Jolovan that a warning had been administered to him on 25 March 2015. When Jolovan tried to engage them further, he was stone-walled. On 9 May 2015, Jolovan wrote to the police and protested the issuance of a warning against him. He did not receive a reply. On 23 May 2015, he wrote to the Attorney-General’s Chambers to similarly protest the issuance of the warning against him.  Again, he did not receive a reply.  Jolovan then went ahead to file his application for judicial review.

Let's step into Jolovan's shoes.  How the police engaged Jolovan - the way he received his warning and how he was subsequently stone-walled - left much to be desired.  In Singapore, we do not have any independent commission or body which can bridge the gap between the police and civilians at the receiving end of police actions.  What else could someone in Jolovan's shoes have done?  Jolovan has no way to protest the issuance to him of the warning.  Jolovan's only recourse was to seek the Court's help by applying for Judicial Review.

Unfortunately, Jolovan has now been penalised with a cost order of S$6,063. The decision to impose the cost order sends the ominous signal that Justice is only available to those who can afford it.  Often, for someone aggrieved by a decision made by a state agency, application to Court for Judicial Review is the only recourse.  If he wants to apply to Court for Judicial Review, he had better make sure he has the requisite financial means to see the application through.  Jolovan's experience shows that applying to court for help carries the risk of having to pay costs to the AG.

Loser Pays

The legal basis for ordering costs against Jolovan is the principle "costs follow the event".  On this principle, the loser has to pay the winner's legal costs.  This principle works well most of the time. But there is a strong case to suspend this principle when the applicant is an aggrieved civilian seeking the Court's help against the heavy hand of state action.  Without protection from adverse cost orders, no one will dare to complain against state action, for fear of being slapped with cost orders in the event that the Court upholds the decision taken by the state agency.

In Jolovan's case, the Court regarded him as having lost his bid, and therefore he has to pay costs to the other side, which in his case, is the AG.  Had the AG decided not to seek a cost order against Jolovan, there will be no issue of costs to decide.  For Jolovan's case, the AG in their wisdom decided to seek costs from Jolovan.  As to why the AG so decided, I do not know, but they did.         

But did Jolovan really "lose"?  Jolovan's application was to quash the warning he received. In the end, the Court decided that since police warnings are not "decisions" but merely opinions, there was nothing to quash. The logic being that the Court cannot quash something which cannot be quashed. 

But wait - if there is nothing to quash, can it be said that Jolovan's application to quash the police warning has failed?  Jolovan’s case is not one in which the Court upheld a decision, but one in which there was no decision to affirm or quash.  But it seems that no decision to quash means that Jolovan’s application has failed and his case is lost.       

Public Interest

While Justice Woo has deemed Jolovan to have "lost" his case, Jolovan has won for the general public a much-needed clarification on the legal effects of police warnings.  Justice Woo razed 20% off the amount sought by AG, to take into account the AG’s various mis-steps.  Justice Woo should have given Jolovan a much higher discount to recognise the public interest elements in Jolovan's case.

The principle that the loser has to pay the winner's legal costs should be suspended for someone in Jolovan's shoes, a civilian who has no other avenue that to seek the court's help for his predicament.  Jolovan’s case is an application for Judicial Review by an individual who is aggrieved by a certain action taken by the police against him. Such cases have a strong element of public interest as they concern the interaction between individual rights and state powers.

In cases where there are strong public interest elements, the civilian applicant should be given protection from adverse cost orders. Such protective measures operate as safeguards against abuse of state powers.  Without protection from costs, aggrieved individuals on the receiving end of state actions, will be inhibited from bringing their grievances to court, for fear of cost implications.   

It should be noted that when an individual contends with the state, it is a David vs Goliath scenario.  The individual is handicapped by the limits of his personal resources. The state has the armada of the AGC to avail of.

Appeal?

Jolovan is entitled to appeal against the S$6,063 cost order.  But I can fully understand if Jolovan decides not to appeal.  For if Jolovan appeals, he risks being slapped with a further cost order in the event that the Court decides to uphold the S$6,063 costs order.  

S$6,063 is already a lot of money for an individual to fork out.  To take on further exposure to legal costs would be daunting.  It will certainly be safer for Jolovan to cough up the dough and be grateful for the clarification given by the court that the warning he received has no legal effect.    

Jolovan’s case is a cautionary tale that Justice comes with a price tag. 

Jeannette Chong-Aruldoss




[1] [2015] SGHC 324 at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf
[2] http://www.lawgazette.com.sg/2013-09/843.htm
[3] [2012] SGDC 484

Friday, January 15, 2016

David Bowie: In Life, Surreal - In Death, Immortal

There is a famous English saying which goes "There are no atheists in foxholes."  The saying meant to argue that when a person is staring at the face of death with no way out, he will believe in God.  
David Bowie's last Instagram photo posted on his birthday, 8 Jan 2016

10 January 2016 saw the passing of perhaps the greatest artist of our generation - David Bowie.

He amazed his audience by the iconoclastic way in which he negotiated with contradictions. From the onset of his artistic career, he spurned categorisation into any sort of normative box. His appearance was androgynous. His sexual orientation was ambivalent. His musical style was eclectic.  

Through the decades, he seemed to live out his life as a flamboyant international pop star. He pandered to the flashbulbs, dressed to the nines and married a famous supermodel.  But he was also intensely private, sharing very little details about his personal life to the public.  So he was accessible to the public, yet opaque and private.    

He donned multiple personnas - Major Tom, Starman, Ziggy Stardust, Aladdin Sane, Thin White Duke .... but which/who IS David Bowie? Were each or any of these personalities a fragment of Bowie himself? Or were they all complete inventions of his fertile imagination? We are not sure. His various personas were elaborately drawn, but Bowie himself remained enigmatic and elusive.

Alienation was recurring a theme of work. But the further he drifted out of earth's bounds, the stronger the tug he held at heartstrings and the more he resonated with his audience. So he was distant yet intimate.  

A singer becomes an artist when his performance become a canvas for communicating his perspectives of life, ideas and feelings.  His songs were not just tunes but a tapestry.  His lyrics were poetry hewn out from multi-layered introspection. 

In 1969 he captured the public’s attention with his now classic single “Space Oddity”. His repertoire through the 70s, 80s, 90s, and into the 21st century, was a fascinating exploration of futility and meaning, purpose and purposelessness, pride and pain.

"Look up here, I'm in heaven" goes the very first line of his latest single, 'Lazarus', released just three days before his death. (Click here for the video of 'Lazarus' and here for the full lyrics to 'Lazarus'.)  But the scene in which the line is expressed is far removed from heaven. We are shown a sick dying blindfolded man lying alone stuck on a hospital bed in a dreary room. 

Why does the blindfolded man lying down says "Look up here, I'm in heaven"?  We are confounded by the contradiction.  And at once you know that Bowie’s 'Lazarus' will deliver you with a heavy package of thoughts that will drive an arrow through your heart, mind and soul. 

That darkness portends epiphany is quintessential Bowie, and the darkest hour is hailed by the chime of Death at one’s door.

Transiting from life to lifelessness is the most personal of all journeys. Yet Bowie shares that last leg with us by allowing us to stand by his deathbed through this intensely intimate video.

As always, contradictions abound.  The Lazarus video is laced with religious as well as nihilistic imagery.  Euphoria ("I'm in heaven") is paired with fear ("I'm in danger"). Liberation ("I'll be free") is juxtaposed with constraints as the video shows him shuffling backwards into the confines of the armoire.

What truths did Bowie discover at the end of his journey through this world?  Did he look for God? Did he find God? Did he conclude there is no God?  With ‘Lazarus’, Bowie’s audience cannot help being drawn to wonder about his spiritual orientation.

Having been cornered into a "foxhole", did he embrace the existence of God and thereby proved true the adage that there are no atheists in foxholes? 

Or is ‘Lazarus’ Bowie’s way of telling us that he saw no God and no afterlife and was braving the reality as he saw it – that death is the absolute end?  

I don’t think that Bowie intends to deliver us any answers.  Instead, I surmise that Bowie is calling us to embark on our own personal journey of discovery.  So that instead of wondering about Bowie’s spiritual beliefs, perhaps we should instead be pondering about our own beliefs about truth and destiny.   

For me, a true artist is one whose artwork gives just enough clues to evoke and provoke us to ask the questions which are important to us - yet leaves sufficient gaps to allow us to import our own relevance and meaning into what we see on the canvas.  

I see Bowie as that true artist who helps us to plumb the depths of our own sorrows and misgivings – yet never imposes or prescribes the conclusions and resolutions which are for us to draw and find for ourselves.  

Bowie's body of work is an exhilarating journey. We have had the privilege of hitching a ride on his “tin can” which flouted the laws of gravity, time and space and floated across the universe of his imagination.  But where Bowie believed his journey ended, is only for him to know.  

But there is one truth which Bowie lets on and which we all can subscribe to. The man known as David Robert Jones born on 8 January 1947 passed away from this world on 10 January 2016. 

The icon known as David Bowie is still very much alive and it looks like he will be around for a while.  

David Robert Jones (8 January 1947 – 10 January 2016) RIP

David Bowie "Blackstar" (11 July 1969 – ) Lives on