Davinder Singh
Singapore
“As a result not many Singaporeans plan for the future. It is very important that the Government lay out the facts so that Singaporeans understand what is in store for them when they retire.”
“Resolved, That the following Address in reply to the Speech of the President be agreed to:- "We, the Parliament of the Republic of Singapore, express our thanks to the President for the Speech which he delivered on behalf of the Government at the Opening of the Second Session of this Parliament."”
“In October last year, the Minister informed the House that the Law Reform Committee and the Law Society would be putting up a proposal to the Attorney-General's Chambers and the Ministry of Law on the question of corporatisation of the legal profession.”
“Therefore, I think it is crucial that the Ministry consider extending the time during which students have to engage in community service. I would also ask the Minister to consider not paying too much emphasis on work with the RCs or peer tutoring.”
“Because then, you are deploying all your forces all over the place. It is like in defence of a locality. You do not spread them all over the place. You target them in places of vulnerability and that is the current approach. I think the approach is right.”
“Those applications sometimes make things quite cumbersome. We want to promote ourselves as an attractive place to do business from. We should rationalise all these incentive schemes to make matters simple for the investors.”
The complete record
Every one of 243 lines we hold for Davinder Singh, in date order, each linked to its source. Free to read, in full, without an account. Page 5 of 5.
“Mr Speaker, Sir, I am all for the Bill for the reason that I would support any system which encourages the expression of non-partisan views on Government policy. I would ask my fellow Backbenchers not to be too concerned with the fact that these views will be expressed in Parliament and not elsewhere. In the context of what is being proposed, this is, to me, a matter of form more than it is a matter of substance. Realistically, speeches in Parliament enjoy more media coverage than debates in any other forum. We should recognise that and we should take advantage of it. Concerns were expressed by some of my fellow Backbenchers yesterday about the principles underlying this Bill. It was said that it would be a sad day for parliamentary democracy. I would urge this House to reconsider that. How is it that with the passage of this amendment it would be a sad day for parliamentary democracy in Singapore? It is an essential ingredient of democracy that there be free, unrestricted, responsible, credible debate on our policies and on our future. We have said so on many occasions that we are here to encourage debate. We want alternative fresh views. If these views are given and if the mechanism is created for these views to be given, how can democracy in Singapore be affected? If these views are ultimately not credible, if the nominees who come up and express these views are perceived to be Government stooges, the net result of the exercise is that the amendment does not work. But how is democracy affected? Will the man-in-the-street be affected by the failure of that amendment? The PAP's prestige will be hurt. But that does not affect the development of parliamentary democracy. How is it a sad day for our democracy?”
“Mr Speaker, Sir, what my colleague, Mr Shanmugam, has said has much force in it. I share his views and his concern in relation to the applicability of the Act to our modern day conditions in Singapore. I also share his concern in connection with whether the Act ought to continue in its present form or ought to be watered down and if structural reforms ought to be made. Sir, I would, however, take a different stand from him for one reason, and one reason only which, I suggest, is justification for the continuation at least, in the first instance, for five years of this Act, and that is, the liberalization in the policy of admitting foreigners to Singapore. Sir, secret society activities and drug trafficking are not home-grown activities. One, generally speaking, is imported from the east, the other from the west. Singaporeans now understand that they should not mess with these activities. It does not serve us any good and so we keep away from them. We are changing our rules though. In the next five years, we are going to see thousands of foreigners coming into Singapore from different countries, from different backgrounds, social, cultural, legal. They may not share our values in terms of how we view such activities. It would be, in my view, very silly if having done such a good job with Singaporeans we suddenly change the rules for foreigners and allow them to operate in a different environment. I would suggest that, with more foreigners coming into Singapore, there is a greater risk, a risk greater perhaps than existed in the last l0 years in Singapore, of proliferation of such activities. We have got to make the rules plain and if the CLTPA would serve that purpose, Sir, I would support the move to continue it for five years at least.”
“If he returns with more than half, then he pays a flat rate. If he returns with less than half, there is no need to impose any duty on him. And it is an honest system. You do not have to check every car against every declaration, just one declaration. People driving off will know that there is a possibility that their declarations will be checked against the tank when they come back. And the risks of non-compliance are minimal. The advantage with this system is that only those who leave with less than half a tank and come back with more than half a tank pay a duty, and that duty is a flat rate. I would ask the Minister to consider that.”
“Sir, what I intend to say has already been covered. So I will be extremely brief. It appears to me that if one makes an economic choice in the purchase of goods which are not illegal, the consequences must be economic. But in this Bill, we have gone beyond that. We are making it an offence to purchase products, the purchase of which is not illegal, if that purchase is not made where and when the Government dictates. Where I buy my petrol is my business. If I make that choice by buying cheaper petrol outside Singapore, then I must bear the consequences for it, which is, the payment of duty. If I evade that duty, then I must bear the consequences of the evasion, which is, I must pay a fine or go to prison for tax evasion. But to turn into potential offenders everyone who drives out in a motor vehicle but who has no intention to purchase petrol outside Singapore is something which I am concerned with. Offences are created to deal with behaviour which is socially and morally wrong. At this stage of our development in Singapore, I do not believe that the purchase of petrol in Malaysia can be considered to be morally reprehensible. But if one goes beyond that and evades duty, then it is wrong and there ought to be an offence for that as there is. In this regard, I have reservations even on the suggestion that a levy be introduced because it does not distinguish between those who do actually purchase and those who do not. In those circumstances, may I recommend a system which may entail some administrative hassle, may I recommend a system of one declaration. That means upon every car leaving Singapore, the person makes a declaration that he either has in his tank less than half or more than half. If he makes a false declaration, it is proper to make that an offence.”
“Through the Minister then, Sir. And with your and his leave. As I was saying before Mr Chiam stood up, in England there are numerous occasions when a Court of Appeal decide and in the reports you have three judgments. This is no criticism. But to direct the three judges write does not make a difference because what you will have, as has often happened in England, is one major judgment and the other two judges appear in the report with two lines saying, "I have read the illuminating reasons of my Learned Brother and I entirely concur." And that is a judgment, Sir. So if you direct that all three judges will write, this is a possibility, and really it does not make any sense.”
“I am grateful, Sir. I am only trying to assist this House and I know that I have been impeded in that regard. But in any case ---”
“Sir, if I might just repond to something that Dr Lee said. He asked whether it is desirable to direct the judges sitting on the Court of Appeal to write three judgments. Sir, in England it often happens that the Court of Appeal decides and you have the ---”
“Minister has said, we get the benefit of the legal knowledge that the Privy Council has acquired all these years in commercial matters and it helps us to keep abreast of developments in the banking, shipping and corporate fields. I would therefore urge the Minister to consider these concerns in the light of the amendments.”
“Therefore, there is a likelihood that the lawyer may go wrong. The client gives up a right of appeal to the Privy Council purely on the basis of that advice. What are the consequences? Lawyers will protect themselves by getting QC's opinions. The cost will go up. Even QCs cannot be sure. Therefore, is it right that parties' avenue of appeal to the Privy Council should be determined by whether they get good or bad advice? And if they get bad advice, there is a possibility that because an avenue of appeal is closed to them on account of that advice, they can then commence legal proceedings against the lawyer for negligence. The third concern I have is in relation to the development of the law. Take the case of a complex commercial matter where the Court of Appeal rules by a majority. In other words, two Judges go one way and the third the other. When this law comes into force, it will be within the power of one party to decide or to stop an appeal to the Privy Council. The question I have is: is this in the interest of the development of the law? Is it in the public interest that it should be within the power of one party to stop an appeal to the Privy Council on what may be a very complex commercial issue which calls for an affirmative ruling? I would therefore respectfully suggest that appeals for commercial cases where the sums involved exceed $100,000 not be affected. Because in relation to these appeals, the local circumstance, our cultural background, our historical background, is not such a relevant factor in cutting off appeals. Also, as the Hon.”
“So if you have pending hearings before the Court of Appeal today, there is no way for you to agree that you will go up to the Privy Council, and that option is therefore foreclosed. I would respectfully suggest that the rules not be changed mid-stream, that we should not affect rights of parties who are already engaged in legal battle. Parties may have chosen the Singapore forum for a number of reasons, but one reason may have been the avenue of appeal to the Privy Council under the present law. If we change that now, it is going to pose some difficulties to these parties, especially in complex commercial cases where one party may feel that it is appropriate to go all the way to the Privy Council for a definitive ruling. I would therefore suggest that the rules be changed prospectively, that there be a time lag between now and when the Act comes into force, so that institutions or any contracting parties have the opportunity of putting that clause into their agreement and so that the Act only applies to proceedings commenced after a particular date. Therefore, existing rights, existing avenue, are not affected. The other concern I have is the impact of such legislation on lawyers and parties generally. Let me paint this scenario. Round 1 (at the High Court), one party wins; the losing party then writes to the other party (the winning party) to say, "Look, would you agree, we'll go to the Privy Council." The winning party is obviously going to go to his lawyer and he is going to say, "Look, should I agree or not? I would only agree if I will lose in the Court of Appeal (round 2)." The lawyer looks at it. There is no way that the lawyer can be sure what the Court of Appeal is going to decide and how it is going to rule.”
“Mr Speaker, Sir, coming in the wake of speculation that all appeals to the Privy Council will be abolished, this Bill comes as a pleasant surprise. However, it is not without difficulties and I would like to highlight some concerns about problems which might arise from the operation of this Bill when it comes into law. I appreciate that the purpose of the Bill is to give contracting parties the option to agree to go all the way up to the Privy Council. But that is not an option which is available to all parties because, as it is proposed, it does not cover a certain segment of contesting parties who are presently parties to legal proceedings in the High Court. It is too late for them to come to any form of an agreement which usually comes into effect before proceedings are commenced. And if the matter has not come up before the Court of Appeal, it is not a case of simply coming to terms on going to the Privy Council. It becomes a tactical move. One party looks at the other party, determines how Round 1 went, and then decides whether it will agree to give its consent or not. It can be a very risky business because if one party decides against consenting and then loses at Round 2, he does not get a chance to go to Round 3 (the Privy Council), and he may lose a very valuable right. In addition, there are other parties, and in this regard I would like to declare my interest, who are already before the Court of Appeal and decisions have not been made. It is too late for them to agree because by the wording of the Act, the agreement must be given before the commencement of the hearing before the Court of Appeal.”
“I beg leave to withdraw, Sir. Amendment, by leave, withdrawn.”
“Presently, the task of overseeing liquidations and bankruptcies falls mainly on the shoulders of the office of Official Assignee and Public Trustee (OA's Office). With increasing numbers of liquidations and bankruptcies and only 7 legal officers, the task is becoming heavier. And it is becoming more difficult to conduct in-depth investigations into each case of wrongful conduct on the part of bankrupts or directors who have siphoned moneys or spirited off assets of the company away. To reduce the workload and to ensure an effective investigation, I wonder whether the Minister would consider legitimizing a regime whereby the Official Assignee be empowered to employ professionals to conduct investigations and pursue debtors on the basis of a contingency fee arrangement. In other words, they would recover a percentage of what is recovered and nothing if nothing is recovered. The advantage is that there will be vigorous investigation. There will be incentives for vigorous investigations. The workload of the Official Assignee's Office will be reduced. Creditors who trade and lend money in good faith will benefit. And generally, directors and bankrupts who are responsible for wrongful conduct will not be able to get away with murder, as it were. Mr Speaker, Sir, in England, a Green Paper has been presented to Parliament in relation to certain proposed changes to the English legal system. One such change is the introduction of the contingency fee arrangement for lawyers. We have yet to move in that direction. I was wondering whether the Minister would consider that this is a good ground to test the contingency fee arrangement in view of the fact that it only has limited scope.”
“Mr Chairman, Sir, I beg to move, That the total sum to be allocated for Head S of the Main Estimates be reduced by $100. Sir, I would like to declare my interest as a solicitor. I would urge the Hon. Minister for Law to consider, first, a study into whether the insolvency laws of Singapore ought not to be revised in line with the English Insolvency Act 1986 which is the result of a comprehensive review in England of the insolvency laws there. And secondly, an interim amendment to prevent directors from using companies as shields from personal liability in circumstances where they are responsible for what has been described in the Insolvency Act of England as "wrongful trading". Presently, the burden on creditors who wish to attribute personal liability to directors is very heavy. Wrongful trading briefly occurs when directors become aware that an insolvent liquidation is in prospect, but fail to do everything possible to minimize losses to creditors. Financial institutions in Singapore would be assured if this amendment is legislated for the reason that it will prevent unscrupulous directors from siphoning moneys out of companies to their advantage. At the same time, it would, in cases of proper conduct, leave intact the concept of limited liability of companies. In this regard, I would also recommend that liability extend not only to directors but shadow directors as well. And that various presumptions be created in relation to the legality or, as the case may be, illegality of transactions between affected companies and companies related to these affected companies, as well as to persons related to the directors of such affected companies.”
“The first group, senior lawyers who are qualified to be appointed as High Court Judges but who are not ready to take on that commitment or who do not want to foreclose the option of not being able to practice in the High Court again. One suggestion, Sir, is for Senior Counsels, who will be appointed in due course, to consider taking up yearly appointments as a form of public service. The second group, lawyers who are desirous of becoming judges but who lack the qualifications. For example, they may fall short of the 10-year constitutional requirement or may lack all the necessary practical experience, eg, senior academics. And the third group, as I mentioned earlier, may be retired Queen's Counsel or senior lawyers from Common Law jurisdictions who are not so much in active practice and who can be persuaded to come away to Singapore to spend a year or two here to assist the High Court in dealing with commercial cases so that the backlog problem will be solved. Sir, if a sufficient number of persons can be found to act as Official Referees, quite apart from the speedier disposal of cases, it might just enable the creation of the Permanent Court of Appeal because senior High Court Judges, because of the shift in work, may be released from their routine High Court duties to undertake appellate duties only in the Court of Appeal. Ultimately, Sir, the aim must be to enhance our role as a financial centre. If members of the financial community know that Singapore is a place where we can have commercial disputes resolved expeditiously and competently, it is very likely that they will opt for Singapore law to govern their relationship, therefore bringing more transactions onshore as well as opting for Singapore as the forum for dispute resolution. I would ask the hon.”
“This helps expedite the process of resolution of disputes. The office and title of Official Referee has been abolished in England since 1972. But the Lord Chancellor there does from time to time appoint or nominate circuit Judges to deal with Official Referee's business. Proceedings in the High Court of England which were once considered as Official Referee's business include actions relating to building and related claims, claims against professionals, claims relating to the supply of goods or services and claims in relation to the taking of accounts. Sir, in Singapore, we may call them Official Referees or any other name if appointed, and they can assist Judges in the disposal of commercial cases. The term "commercial" can be defined to include amongst those cases or actions which I have referred to earlier, building related claims or insurance claims. Depending on the number of appointments, this will result in the alleviation of the backlog of cases in the High Court. Sir, it will also serve as an excellent training ground for those who aspire to the Bench or for those who have the talent but not necessarily all the necessary requirements for elevation. Also, expatriates may be appointed as Official Referees. There is some concern or there is a feeling that we should not have expatriate judges on the Bench. This may well be the right compromise to tap their talent without necessarily having to elevate them to the post of Judgeship or as Judicial Commissioners. As a member of the legal profession and I declare my interest as one, it is my opinion that there is a pool of persons from which we can draw such judicial officers. Briefly, there are three general groups.”
“Mr Speaker, Sir, the Judiciary in Singapore has been receiving a fair bit of attention. There is some concern that it is not growing at an acceptable rate. Two reasons have been offered. One is the lack of suitable candidates and the other is the disinclination of those who are considered suitable to get on to the Bench. Sir, coupled with the increase in general terms of the number of cases which go to the High Court and, in particular, of complex commercial disputes, the result is a considerable wait for trial. Our aim is to enhance Singapore's reputation as an international financial centre. To do this, the financial community has to be offered a package of services which are not easily available or conveniently available elsewhere. One such service is the existence of a forum which will ensure that commercial disputes are resolved expeditiously. If we can do this, I am confident that contracting parties, local and international, will opt for Singapore law as the law to govern the relationship as well as Singapore as the forum to resolve any disputes arising from that relationship. Today, a commercial matter takes about four years to reach trial. To some parties, this may be unacceptable for financial or for legal reasons. Monies may be tied up for too long a stretch. Definitive rulings are required as a guide for future transactions. The High Court Judges are doing everything possible to get things moving but they need assistance. One possible solution is the appointment of judicial officers in Singapore akin to the Official Referees. The office of Official Referee was created in England in the 19th century to enable persons to deal with or inquire into complicated and technical matters on the direction of Judges.”
“You may suggest, if you were before a court of 3 judges and if you are convinced that the conviction is bad, that notwithstanding the statutory amendment, because there is such a risk of injustice, do not strike me off, do not suspend me, censure me. So the door is not completely shut. Sir, one goes back to the original question: whether with this amendment there is a serious risk of grave injustice and, if so, whether the benefits which will flow from re-defining the tasks and the burdens on the Inquiry Committee would outweigh any prejudice which a solicitor might claim to suffer as a result of the amendment? It is my view, and here I go back to the issue again, that in fairness to the members of the Inquiry Committee, the amendment should stand because the benefits which flow it far outweigh any prejudice which might result. I support the Bill. 3.14 pm”
“He can say that in any event it does not imply a defect of character. Or even if it does, it does not render him unfit for his profession. What is significant is that the amendment may not, contrary to some views, totally detract from the right of a solicitor to challenge the conviction in all instances. There is in law a process called Revision. It is a procedure whereby petitions are filed to the High Court for the High Court to consider the manner in which the Subordinate Courts conducted themselves. If there has been a miscarriage of justice, the High Court can intervene, quite apart from whether this amendment exists or not. And the guideline applicable in the exercise of discretion in Revisionary circumstances is "in the interest of justice", which is a far wider discretion than that which applies in disciplinary hearings because, according to the Privy Council, the courts can only intervene in "exceptional circumstances". Whereas in Revisionary proceedings they may do so "in the interest of justice". I venture to suggest that a court confronted with a potential risk of injustice will be quite amenable to an appropriate adjournment for a petition for a Revision to be filed and heard before disciplinary proceedings go on. I accept that a Revision is not available in all cases. But even in those very, very few cases where a Revision is not available, it is always possible for a solicitor up on a conviction charge before a disciplinary committee or a court of 3 judges, to go behind the conviction, not for the purposes of showing that it is flawed, but for the purposes of sentence. In other words, in mitigation.”
“The answer to that must be that there must be one standard, which the committees can safely and properly act upon, knowing with certainty that it is that same standard which will apply before a court of 3 judges. Consider the wastage and resources, time and effort, if arguments which are not admissible before the two-stage committee inquiry procedure, are then admissible in court only to have the entire procedure rendered futile. I would like to add at this point that what I say about the difficulties inherent in going behind a conviction apply to all professions where disciplinary proceedings are instituted. Laymen sitting on committees, by whatever name called, are in my respectful view unable, not competent, to consider whether convictions are flawed and whether they ought to be overturned. And therefore if similar problems exist or may arise in other professions, I would urge the Government to extend the same principle of making convictions final and conclusive to all such professions. The second question I have had to consider is the effect of the amendment on solicitors. A conviction is only one of the many grounds upon which a solicitor may be brought up for disciplinary proceedings. There are 10 other grounds. The relevant provision provides that a solicitor shall be liable to be struck off, suspended or censured, if he has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession. There is therefore a 3-stage inquiry. (1) There must be a conviction. (2) It must imply a defect of character. (3) It must render him unfit for his profession. Today a solicitor can attack a charge which is based on a conviction at all three levels. He can say that the conviction is flawed.”
“A non-lawyer sitting on these committees, confronted with a charge based on a conviction, is being asked, if the conviction is attacked at that stage, to re-assess the entire evidence, study the submissions of law, understand the reasons for the decision, and then come to a conclusion, either identical or different. Anyone having read the decision of the Privy Council in its recent ruling would have immediately realized that this is no simple process and it is not something which a lawyer or any lawyer, leave alone a layman, can embark on. According to the Law Society's Annual Report for the year ending 31st August 1988, the Law Society had to deal with 103 complaints. Of these, 91 were completed and 20 were referred to the Disciplinary Committee; 11 were dealt with by the imposition of a penalty and 60 were dismissed. The Member for Potong Pasir has categorized the issue before this House as one of justice. That is a fair way of saying that that is the issue provided that you are only looking to the interest of solicitors. There are other people involved. These are the people who sit on the committees, especially the laymen. Therefore, with respect, really the issue is, is it fair? And not whether the solicitor is treated in a just manner. Is it fair that the laymen on these committees with their workload and bearing in mind the constraints of time within which they have to work, is it fair to ask them to re-assess the evidence which might have been led in a 20-day trial, a 30-day trial, look at the submissions of law, analyse the decisions of the judge and go behind it? However, one might then argue for making a conviction final and conclusive before the Committees since laymen sit on it, but not before a court of 3 judges, since you have experienced judges on it.”
“Mr Speaker, Sir, as a member of the legal profession, I have an immediate and direct interest in the provisions of this Bill. One of the proposed amendments deals with the status of convictions in disciplinary proceedings which may be instituted against a solicitor. I am referring to the amendment to section 80 of the Act which is in the following terms: 'In any proceedings instituted under this Part against an advocate and solicitor consequent upon his conviction for a criminal offence, an Inquiry Committee, a Disciplinary Committee appointed under section 87 and a Court of 3 judges referred to in section 95 shall accept his conviction as final and conclusive.' This has provoked comment from the Law Society which, in a circular to MPs, has opposed the amendment on the ground that any attempt to place constraints on the inherent jurisdiction of the courts will affect the fair and proper administration of justice. In deciding my stand on this issue, I have had to consider whether the benefits which would flow from the amendment would outweigh any prejudice which a solicitor might suffer as a result of it. In my view this depends on the answers to two questions: (1) What does the amendment seek to achieve? (2) What practical effect the amendment would have on a convicted solicitor up on a disciplinary charge? Before a solicitor is dealt with by a court of 3 judges, there is a two-tier investigative process. He goes through an Inquiry Committee and then a Disciplinary Committee. The important thing to note about this is that both committees include lay persons. I ask: is it fair to ask members of these committees, especially the lay persons, to embark on an inquiry as to whether a conviction is flawed? Are they competent to do so? Think about it.”
“If the number of offences increase or at least do not subside, then maybe mandatory caning may then be justified.”
“I have heard the Senior Minister of State in his opening statement in regard to the burden that is being imposed by these illegal immigrants, in particular the time that they spend in prison, the amount of money that they spend in upkeeping them when they are there. But, Sir, mandatory caning will not encourage offenders to surrender themselves or to plead guilty for they will have nothing to lose. If they have an option and if they know that they are going to face the cane, no matter what happens if they are found guilty, whether it is a first or a second offence, they will choose to claim trial and in the normal course of events it will take many months before the trial comes up for hearing. For two reasons. One is that the court schedule is such that trial dates are not available as early as can be obtained. The second reason is that counsel can, if they want, postpone or adjourn the hearing dates on the basis that they are taking instructions, on the basis that they are not otherwise prepared to go on for trial. In the meantime and pending trial, these offenders will have to be detained. So what we have is a situation whether the detention continues for an extended period even more than the original six months, thereby increasing the social burden. The other option, of course, is discretionary caning. An offender knowing that if he gives himself up and pleads guilty, these would constitute mitigatory factors which can be put before the court to persuade the court that caning may not be the appropriate punishment, especially if it is a first offence. In the circumstances, I would urge the Senior Minister of State to consider the vesting of this discretion in the courts at least for a trial period and to monitor the results.”
“Mr Speaker, Sir, as I understand it, corporal punishment is usually imposed on offences which involve violence, brutality or direct damage. It is a very serious form of punishment and extending it to immigration cases may well open the flood gates. If this is the first time that caning is being imposed for non-violent, non-damage-inflicting offences, then I respectfully urge the Senior Minister of State to reconsider the position to determine whether it is appropriate just because it is an effective deterrent. It is true that unwelcome visitors impose a financial and social burden. But there should be one standard applicable both to Singaporeans and to foreigners. We should not treat foreigners any different from Singaporeans in the types of punishment that are meted out for offences which do not involve violence or an imminent threat to violence or damage. We certainly would not appreciate the difference in treatment if the roles were reversed. I respectfully urge the Senior Minister of State to consider, as alternatives to mandatory caning, first, as the Members have earlier suggested, either discretionary caning, ie, discretion to be vested in the courts or, second, caning only for second and subsequent offenders; the reason being that there is a real risk that first-time offenders, either illegal entrants or first-time overstayers for a period exceeding 90 days, may not be as culpable as the persons who are actually responsible, ie, the perpetrators, the masterminds. This ought to be taken into account. Sir, I would recommend that the first alternative, ie, the vesting of discretion in the courts be adopted.”
“Sir, I beg to move, In page 2, lines 25 and 26, to leave out "Notwithstanding the provisions of subsection (1), there" and insert "There". This proposed amendment to section 8B(2) is consequential on the insertion of the words "Subject to the provisions of subsection (2)" in subsection 8B(1) which was the subject of the earlier amendment. In view of the insertion of those words which has received the sanction of this House the words "Notwithstanding the provisions of subsection (1)" become redundant. Amendment agreed to. Clause 2, as amended, agreed to stand part of the Bill. Bill reported with amendments; read a Third time and passed. ADJOURNMENT Resolved, "That Parliament do now adjourn." - [Mr Wong Kan Seng]. Adjourned accordingly at Seven Minutes to Six o'clock pm.”
“The latter part of the amendment, ie, "and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply" reinforces the object of ousting all other views of the law before, on or after that date anywhere else in the Commonwealth.”
“" The purpose of this subsection and therefore of these words is to reintroduce the law as stated in Lee Mau Seng which was declared on the 13th day of July 1971 and to make it clear that nothing else in the way of pronouncements of the law before or after that date in Singapore or before, on or after that date anywhere else in the Commonwealth relating to judicial review shall apply. The present wording may, however, not lend itself to this construction for the following reasons. It may be open to a party making an application to court to argue that the law which was applicable in Singapore prior to the introduction in Singapore since 13th July 1971 of any part of the law of England or any other country in the Commonwealth relating to judicial review was the law as declared by the Court of Appeal on 8th December 1988. This is because of the theory that the courts merely declare what has all along been the common law. In other words, the law has always been the same. The Court of Appeal has only recently discovered this law and that therefore even as at 13th of July 1971 the applicable law is that stated on 8th December 1988. Alternatively, Sir, even if this argument is not accepted by the courts, it may be argued that the law prior to the introduction in Singapore since 13th July 1971 of any of the law of England or of any other country in the Commonwealth relating to judicial review is that declared by the Privy Council in 1951 in a decision called Nakuda Ali which also rejected the subjective test. I respectfully suggest, Sir, that the insertion of the words "and declared in Singapore on the 13th day of July 1971" make it plain that Parliament's intention is that the applicable law is that enunciated in Singapore by the High Court on that day, ie, in Lee Mau Seng.”
“Sir, I beg to move, In page 2, line 16, to leave out from "(1)" to the end of line 24 and insert -- "Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply." There are two limbs to this proposed amendment. First, I propose that the words "Subject to the provisions of subsection (2)" be inserted at the beginning of section 8B(1) to make the structure of the amendments clearer. The aim is for section 8B(2) to be the dominant provision. The words "subject to" in my view, are more apt to describe this relationship between section 8B(1) and 8B(2). Subsection (1) is not to be disregarded as the word "notwithstanding" in subsection (1) ought to, might suggest. It is meant to be subservient and to be operative outside subsection (2) and irrespective of whether subsection (2) stands or is struck down by the courts. Sir, the second limb of my proposed amendment addresses itself to that portion of section 8B(1) beginning with the words "prior to the introduction into Singapore since the 13th day of July 1971 of any part of the law of England or of any country in the Commonwealth relating to judicial review.”
“It is my respectful view, Sir, that the use of the word "includes" in place of "means" would take care of these possibilities and developments.”
“Mr Speaker, Sir, I beg to move, In page 2, line 3, to leave out "means" and insert "includes". Sir, these introductory comments apply to all three amendments which I propose. The amendments are of form and not of substance. They are designed, in my respectful view, to clarify our intention behind the proposed legislation. I have heard the Minister's speech as to the rationale behind the proposed amendments. I have read the Long Title of the Bill which provides that one of the purposes of the Bill is to restate the law applicable to judicial review of the decisions made and done under the ISA, and I have read the explanatory statement to the Bill which makes it clear that the purpose of the new section 8B is to reaffirm the law as laid down in the decision in Lee Mau Seng and Karam Singh. Sir, a court construing legislation does not have the benefit of the explanatory statement and therefore it is all the more necessary for us to be as plain as possible in our intention because in interpreting a statute what the court is concerned with is not what the legislators meant to say but to ascertain what they have said. Sir, in relation to the first amendment, I would respectfully propose that the word "means" in page 2, line 3, be deleted and the word "includes" be inserted for the reason that, as presently worded, the phrase "judicial review" as defined in section 8A is limited only to the proceedings set out and explained in sub-paragraphs (a) to (d) of section 8A. It is a distinct possibility, Sir, that judicial review may either be described in other Commonwealth countries otherwise than has been described in sub-paragraphs (a) to (d) or that there might come a time when new labels may be attached to proceedings begun by way of judicial review.”
“My point, Sir, is that the legislation, if amended, must take into account one factor and, that is, accountability. It has been held by the Court of Appeal and if I may quote from the decision in relation to accountability to Parliament, this is a comment of Lord Diplock: '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 function. 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.' I support the reaffirmation of the subjective test. But I would also urge the Government, and in fact the ground has somewhat been cut from under my feet by the earlier statements (the First Deputy Prime Minister) to establish or institutionalize a mechanism somewhere between the judiciary and Parliament which would ensure accountability will assure that whatever actions are done, are done in good faith and that there is no abuse of power. And until that happens, I would urge the Government to continue what it has been doing, ie, to put itself up before the press, defend and substantiate everything which is being done, open everything up for scrutiny, because the majority of the people in Singapore have come away with the view, I believe, that such actions have been done in good faith and in the interest of Singapore.”
“Sir, I am sorry that I have to go through this technical analysis only because I think it is necessary to address the point, which is a very serious point, that the Chief Justice has been acting ultra vires. Dr Lee also refers implicitly to Article 95(3) to support his argument that the position and the discharge of duties was outside the Constitution. Article 95(3) says: 'This Article shall apply to the designation of a person to sit as a Judge of the Supreme Court under clause (3) of Article 94 and to the appointment of a Judicial Commissioner of the Supreme Court under clause (4) of Article 94 as it applies to the appointment of a Judge of that Court other than the Chief Justice.' Sir, for the record, that Article only makes it plain that when it comes to the appointment of a Judge after his office is terminated, then the same procedural requirements which apply when he is first appointed remain the same. In other words, in the first instance, when a Judge is to be appointed, he shall be appointed by the President on the advice of the Prime Minister after consulting the Chief Justice. But when the term of the Chief Justice is to be extended, it makes sense that there is no need to consult the Chief Justice. The Prime Minister would advise the President. My third point is this. The Chairman of the GPC for Law has earlier today affirmed the GPC's support for the amendment. I am a member of that GPC and I likewise affirm my support. The issue today is not whether the ISA is necessary or not. The issue today is whether the amendment ought to be in place and the amendment deals with one point whether the established law up till 8th December 1988 should continue to apply notwithstanding the decision of the Court of Appeal?”
“The relationship between the two is this. Article 94 is the substantive provision for appointment and Article 95 is the procedural Article in that it sets out the manner in which appointments are made. The issue therefore is: what is the meaning of the word "Judge" in Article 94(3)? Do we have to insert the words "Chief Justice" in Article 94(3) and my submission, Sir, is that we do not have to. The word "Judge" includes in the context of Part VIII of the Constitution the Chief Justice unless it is expressly provided otherwise and this is plain from reading a number of these Articles. Article 94(1) says: 'The Supreme Court shall consist of a Chief Justice and such other Judges as may, from time to time, be appointed.' "Chief Justice and such other Judges" in other words, the Chief Justice is one Judge and then there are such other Judges. Article 95(1) says: 'The Chief Justice and the other Judges of the Supreme Court shall be appointed by the President, acting on the advice of the Prime Minister.' Once again, "the Chief Justice and the other Judges". However, if it is necessary to draw a distinction between the two, the Constitution addresses it in this manner. Article 95(2) says: 'Before tendering his advice as to the appointment under clause (1) of a Judge, other than the Chief Justice, the Prime Minister shall consult the Chief Justice.' Sir, we have a situation where if it is intended to draw a distinction between a Judge and the Chief Justice, he Constitution would say, "a Judge other than the Chief Justice". Article 94(3) does not make this distinction. It is plain that a person or the Judge referred to in Article 94(3) includes, for the purposes of construction, the Chief Justice.”
“Sir, this is no light matter. It is very serious because I stand before this House today and I say that it is my view that this offer, if consummated by an acceptance, would be tantamount to an illegal contract which would be struck out by the courts and will not be upheld even if an attempt is made to enforce it. The other point. There is a significant distinction in law between the Government's offer to the detainee to sign an undertaking and a third party stepping in as a guarantor to say, "Forget that undertaking and in view of it, I will be guarantor." That distinction cannot be overlooked. Now, Sir, if I may be allowed to proceed to the second point which I indicated I would like to respond to, and that is, Dr Lee Siew-Choh's point about the proposed amendment to the Constitution, in particular, Article 94(3). As I understand his argument, he rejects the Minister's point that the proposed amendment is inserted purely for the avoidance of doubt. I support that argument and that this Article is merely inserted, to use the Minister's words, for the avoidance of doubt, the point being that the Chief Justice has not acted ultra vires at any time. Sir, Members may not have copies of the relevant Articles in the Constitution before them but if I may take Members through the Articles. Article 94(3) states: 'A person qualified for appointment as a Judge of the Supreme Court or a person who has ceased to hold the office of a Judge of the Supreme Court may sit as a Judge of that Court, if designated for the purpose ... in accordance with Article 95, and such person shall hold office for such period or periods as the President acting on the advice of the Prime Minister, shall direct.' And Article 95 sets out the means by which the appointment is made.”
“Sir, I am not the legal adviser to the Government. But if I may offer some gratuitous advice. I would respectfully suggest that no consideration be given to this document purely because it is an offer to engage in illegal transaction and it runs contrary to this Government's position for years.”
“Mr Speaker, Sir, I would like to respond, if I may, to a couple of points, the first made by the Member for Potong Pasir. In his address to this House, the Member produced an undertaking which reads: 'I, Chiam See Tong, MP for Potong Pasir, in consideration of the Government of Singapore releasing Chia Thye Poh ...' goes on to agree to: 'act as his guarantor that Chia Thye Poh will not participate in any violent activity calculated to overthrow the legitimate government of Singapore' and the gist of it is that if he should do so, if he should breach that undertaking, then he would vacate his seat. I speak purely from a legal angle. Whatever may be the policy decision of the Executive in response to this document, it is couched as a contract. The words "in consideration" and "as guarantor" are used specifically so that if it has any force, it purports to have force as a binding and valid agreement. Sir, there is a principle at common law that the courts will not uphold and, in fact, will strike down contracts which are illegal. There are a number of heads under which contracts may be illegal. A contract to commit a crime is illegal. A contract which is against public morals is illegal and a contract which is against public policy is illegal. What we have here is an offer to the Government to commit an illegal act. The deal is this. You abdicate your responsibility, you forget everything that you have said for the past 20 years about this man, you forget your convictions that he is a threat to Singapore, in return for my undertaking and my guarantee, you release him in the hope or the expectancy that the undertaking might be breached and therefore you would have a House where all elected MPs would be of the PAP Party only.”
“They will feel alienated or claim to be disenchanted. They will not give their support to the Ideology. And without their support, it becomes impossible to transmit the values down the generations. And ultimately, the National Ideology would be offered as a reason, valid or otherwise, to migrate, to say that "Singapore is not the place for me." I urge the Government, therefore, to continue to assure the younger Singaporeans that we are sincere in our objective of encouraging participation, of creating more opportunities for Singaporeans to actively participate in shaping their own future; that subject to present limitations only, there will be unrestricted flow of information because that is consistent with what we are trying to achieve. As we build on the superstructure, as we aim to be up there with the best, we have to make sure that our foundations are reinforced so that short of a devastating earthquake, we will still be around when others might have crumbled. Mr Speaker, Sir, I support the motion.”
“The young generations will ask the following questions: (1) In the context of communitarianism and respect for authority, does this mean that exposure to western ideas and influences would be narrowed? (2) For respect for authority to mean anything, does this mean that dissent, debate or disagreement would be frowned upon and unquestioning obedience encouraged? These questions must be addressed or otherwise our detractors will take advantage of any doubts which may exist. I am delighted that these questions are in the process of being addressed and today the Minister for Trade and Industry has further clarified the position and gotten rid of the misconception that the National Ideology is inconsistent with our goal, which is a lively, vibrant nation full of ideas and creativity, a goal which is encapsulated in the Agenda for Action. Simultaneously, with such clarifications, I would urge the Government in its policy declarations to avoid running the risk of misinterpretation for the skeptical amongst the young may read way too much into it. For example, in the Addendum of the Ministry of Communications and Information to the President's Address, it is stated that as far as information and broadcasting is concerned, the aim is to help "understand national issues, Government policies and play a role in nation building." SBC, on its part, will "broadcast more community based news stories and interviews to clarify policies." Without clarification, eyebrows will be raised. If the youth, who will continue to want to have their say and as much access as is possible to unrestricted information, sense a hint of tighter censorship or greater control generally, they are then going to feel that their aspirations cannot be attained in Singapore.”
“We have reached a stage in our development where the younger Singaporean enjoys a range of liberties and it is quite clear in his or her mind that the trend ought to be towards greater liberalization, towards an unrestricted flow of information. One illustration is the recent heated debate in the Forum Page in the Straits Times in connection with the censorship of religious or quasi-religious works. The young also feel that they must be consulted and convinced before policies are implemented; that there must be deliberation; that there must be a visible interplay of contending forces for the best ideas to take root and to grow, and for the best policies to take shape. However, because we are looking for traditional Asian values, the chances are that the elders, and not the youth, will be the major contributors to the National Ideology. By its nature, the National Ideology must draw from our experienced citizens who because of their age and maturity are in a better position to say what should be preserved, what ought to be discarded and how and why such values as are retained will better glue us together. Therefore, the young feel that this is a possible scenario: a National Ideology whose content is not determined by the youth being introduced in a society where the young have strong and fixed views and ideas about their goals, aspirations and aims. If one were to assume that the National Ideology will take 20 to 30 years to take root, one then goes on to the assumption that (and which is necessary) for it to be effective, these values will have to be continuously imparted and practised. Outlooks and attitudes will have to be shaped.”
“Mr Speaker, Sir, I would like, if I may, to focus the attention of this House on one issue which I believe needs to be addressed immediately, and that is, the impact of the National Ideology on the youth of Singapore and on their aims and aspirations. I say this because I believe that it is now time to disabuse the young Singaporean of the misconception that the formulation and implementation of the National Ideology will result in a less open and participatory style of government and in greater censorship in the flow of information. If that wrong perception is not addressed and corrected, the skeptical amongst the young may give less than their wholehearted support to the National Ideology. There is no disputing that the National Ideology is necessary. The object is the creation of a society which is communitarian, hardworking, pragmatic and capable of moving as one, and in the same direction. The ultimate objective is a Nation of Excellence. There are on-going discussions in relation to the content of the National Ideology. A number of values have been identified. Two which stand out are the communitarian concept of putting the interest of society above those of the individual and filial piety which, loosely speaking, is synonymous with respect for authority. It is very likely that because these values are highly regarded by the people who have seen the value of the ideals that they will find their way into the National Ideology, as they should. However, the younger generation is concerned more with what happens next. How, in practical terms, is the Ideology going to work and how will it impact on their aims and their aspirations?”
“It is interesting to note, Sir, that this point is raised only today, months after the elections when the issue was hot and when, if there was genuine belief that that was an issue which would carry the people, it ought to have been raised. But it was not.”
“Sir, I would support the hon. Member Mr Chandra Das and ask that this House reject the proposed amendment. In relation to the point raised by Mr Das, I would add that quite apart from the fact that a constitutional position has been created for someone who does not have the mandate of the people, it has been created for someone to come to this House and take a swipe at this Government. That, I suppose, is the basis for saying that this is an intolerant government. Sir, I would like to cite, if I may, a couple more illustrations. He cites the Member for Fengshan as an example for the absence of consensus in this House. He suggests that when the Member for Fengshan stood up and said that there was not enough consensus, that was sufficient justification for him to prove his point. Sir, we all saw Dr Arthur Beng go for the jugular. And would he have been able to do that in an intolerant state? Sir, in relation to Dr Lee's point about National Ideology, he started by saying, of course, the National Ideology is now required and that is because of the ill-effects of our educational policies. Half-way through his submission, he then said, but why is it required? We have the pledge, we have the national flag, and they are institutionalized in our education programme. This is a dilemma which I cannot understand. If the pledge is sufficient, then there are no ill-effects of the educational policies. If the pledge is not sufficient, then there is certainly a need for the Ideology to be introduced at this point. Finally, Sir, on the question of the ISA. Criticism has been levelled with regard to the alleged unjustified detention of certain persons.”