Simon S C Tay
Singapore
“Sir, it is a question that the Minister may have missed. This is a simple question that while I give the benefit of the doubt to the Government's assessment of security, I would like to ask the Minister whether any other changes will be made to security at our overseas embassies, such as the holding of large receptions.”
“Looking further ahead, may I ask the Minister whether we should not look towards secured electronic voting for overseas Singaporeans. Can we not use this time between this coming GE and the next to look into this possibility? This should be good for the ease and security of voting.”
“Sir, may I ask the Minister three questions. The first is, while I commend these extra efforts, may I enquire how much this would cost. The second question is: are there targets? How effective do we hope to be in creating the number of jobs that we hope to create or match?”
“What I am hoping, Sir, is that we should move towards not just allowing political parties and their sites to have a free and fair debate but rather elections must be about people, voters and their opinions, and that these regulations, if anything, must err on the side of freedom in order to give people their say.”
“And if they can establish free trade zones in various parts of the archipelago and create conditions which assure businessmen of stability, I think they can take off. And I was cheered that the US, the EU, Japan, the IMF, have all come up with strong statements in support of President Megawati. We would do our part, but we are small.”
“Sir, I appreciate the Minister of State doing his back-of-envelope work. 10%-20%, if it excludes the very large projects like reclamation, seems a little low, if I may say. Is there any inclination to push it up higher? Is the private sector up to the job? Historically, the Government has had reasons to doubt the private sector.”
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“Competition between political parties in free and fair elections is what validates the PAP's continued return to Government. Because of this, a PAP victory must be recognised not only by those who support the present Government but all those who have contested or voted in the election. It is a question of legitimacy. Conversely, an unfair or unfree election makes victory hollow. For free and fair elections, the maximum width for political speech should be allowed. Political free speech has a value. It is the way in which good ideas are recognised and adopted while bad ideas are rejected. Article 14 of our Constitution recognises this. It enshrines that each citizen should enjoy freedom of speech. In practice, I believe this Government has always believed in rational and robust debate. Yes, there are recognised limits for statements that would jeopardise public order, incite racial hatred, falsehoods, or statements that damage individual reputation. But these exceptions should be just that - exceptions. And that is the first reason I am against this Bill's ban on party political films. The ban does not restrict itself to films that threaten this sense of public order, racial harmony or other common good. It is much more broadly stated, too broadly stated in my opinion. Even an innocuous statement such as, "Vote for me and I will upgrade housing." - this if said by a political party would be subject to a ban. It seems to me that the Bill is so widely drawn that even the usual party political broadcasts during the election would be potentially subject to the ban. These are telecasts by TCS. Of course, broadcasting itself is accepted under the proposed section 2(2)(b).”
“Sir, I agree to the measures on the amendment on the obscene films. I think they are a step in the right direction. I applaud the Minister for the good and increased use of citizen panels in judging what films should be treated as obscene. Let me then turn to my points of concern. This relates to the fact that the Bill intends to ban advertisements by any political party or films directed towards political end, such as attempts to affect voting in an election. Sir, I am well aware that I am not a politician, nor an elected Member of this House. I speak as a citizen, as a voter and I have been a commentator at the last general elections as a member of the Roundtable. As a background to what I am saying, Sir, may I briefly refer to the comment by the NCMP in the last meeting of the House where he said that one of the NMPs was taking up cudgels for the Government. My view in making these comments is that Nominated Members of Parliament such as myself are neither for the Government nor against it, neither pro-PAP nor anti-PAP. We try, at least I try, to look at the merits of what is proposed in a non-partisan way, and today I have tried to consider the Minister's arguments very seriously. I do see his point that there are other avenues of debate available. But my conviction is that I must stand against this Bill in respect of the amendments concerning these prohibitions against party political films, especially in section 29D as proposed. My objection is both on principles and on the particulars of the amendments. Let me turn first to the principles. Sir, free and fair elections should be one of the great hallmarks of Singapore's politics. It is something we can and should be proud about as much as our GNP per capita or Changi Airport.”
“Protecting our children against the fear of crime and from becoming victims of crime must be a national priority.' He then went on to point out that the marvellous advances in computer and telecommunications technology "that allow our children to reach out to new sources of knowledge and cultural experiences" are also exposing them to exploitation and harm. I would therefore most earnestly urge the Minister to review the existing and proposed legislation, with the following considerations in mind. First, there should be a distinction made between child pornography and other types, with enhanced penalties for the former. Second, there should be no distinction made between pornography in films, in publications and in broadcasting. Third, there should perhaps be a refining of the definitions used in the legislation. Sir, I support the Bill subject to what I have said above.”
“The person who makes the film or who procures the young person to make such a film will face a minimum of a $20,000 fine, with the possibility of a $80,000 fine ceiling, and two years in prison. Another takes a set of obscene photographs involving the same person is liable to a fine under this Bill not exceeding $10,000 or two years jail or both. In the days before photo-realistic images can be produced on the computer or camera, it may be justifiable to distinguish between film and publication. But now the distinction, I submit, appears to be spurious. I would urge the Minister to take this point into account. Where a distinction is not spurious, but where it is not drawn in the Bill, is in the case of child pornography. The new Bill does not make this distinction. The Films (Amendment) Bill makes such a distinction. What is the reason for the difference in approach? It cannot be that a pornographer who exploits a young person by taking photographs is morally less reprehensible than his counterpart who makes a film. In many jurisdictions, child pornography has been singled out as a particular evil requiring special sanctions. In the US alone, about 15 states have enacted special provisions to tackle this problem. We should do the same, as we have done in the case of films. I should like to quote the statement of Louis Freeh, Director of the Federal Bureau of Investigation, giving evidence before the Senate Appropriations Committee last year. There he said, and I quote: `Our children are our nation's most valuable asset. They represent the bright future of our country and hold our hopes for a better nation. Our children are also some of the most vulnerable members of society.”
“This means that there can be both obscene films and publications, but no "objectionable films". It is not clear why this is the case. Another concern that I have is the somewhat wide meaning of "objectionable". For example, in the new section 2B(1)(a), it is stated that: `a publication is objectionable if ... it ... describes, depicts, expresses or otherwise deals with ... matters such as sex, horror, crime, cruelty, violence or the consumption of drugs ... in such a manner that the availability of the publication is likely to be injurious to the public good;' The controllers appointed by the Minister are the guardians of the public good, as it is their opinions that count in the Bill. In forming their views, they need not take evidence. It is said that whether a matter is objectionable or not is a matter for expert judgment. It is by no means certain how one can acquire training and expertise to determine whether a publication is likely to be injurious to the public good, or what level of injury is required before a publication is declared to be objectionable. Further, new subsection 2B(3) is unclear as to who should provide these experts with the evidence which they are under a duty to consider, if available. All in all, it seems to be an open-ended provision that may be difficult to apply, and even more difficult to challenge. I should like to know whether this is actually intended. The second issue I wish to raise is that the Bill does not purport to deal with the different types of obscene publications. In the new Films (Amendment) Bill, there is a special provision on aggravated offences where a child or young person is involved. A simple illustration will be sufficient to expose the anomaly in the proposed laws. An obscene film is made using a young person.”
“Again, I understand this is the informal practice under section 10 of the existing Act. However, it is sometimes after mass imports have already been made. My suggestion would reduce uncertainty and risks for distributors. My third suggestion is that the public should have greater access to the list of objectionable publications. Of course, not the objectionable publications themselves but the list. The new section 2B of the Bill provides that the Chief Controller shall keep and maintain a register of objectionable publications. The list serves to inform people. However, there is no provision that the register should be made known. As such, my suggestion is that it is preferable to have the objectionable publications gazetted and, moreover, for practical public access, the register should be listed on Internet and copies of the register made available for inspection perhaps at main reference libraries. With that, I support the Bill. Assoc. Prof. Chin Tet Yung: Sir, the Undesirable Publications (Amendment) Bill is intended to restrict obscene and other objectionable publications, taking into account the technological developments in Singapore. It also raises penalties. The Bill, however, does not cover "films" which are covered by the Films Act. This Bill is to be welcomed as it seeks to take into account the gaps in the law which have arisen through technological developments, especially electronic publications. The definition of "publications" now includes computer-generated or stored graphics and sounds, and the definition of "supply" also covers the transmission of such publications through computers. The definition of "obscene" is the same as that used in the new Films Bill, though the latter does not contain a definition of "objectionable".”
“Today, such texts are studied in University or even at `O' levels without controversy. So, as the Minister has recognised and this Bill recognises, standards change. However, given this dimension of change over time and the reference to society's changing mores, and given the expanded criterion, can the Chief Controller alone or Controllers within the Administrative Service by themselves decide what is objectionable? This then comes to my suggestion. The decision-making on what is objectionable should include both specialists and representatives of the community at large. They would assist and advise the Chief Controller. I understand that the Ministry has done this informally already. The process should be formalized and publicized. This can be an area of growth for civil society, by which I mean that civil society, the citizens of Singapore, should progress towards greater self-responsibility and self-regulation. I move on to my second suggestion. This is that distributors of publications be allowed on a voluntary basis to make prior submissions to the Ministry. Sir, the Bill and the Act, as they exist, are largely reactive. After a publication is imported, the Controller can decide and require certain actions to be taken. However, import and distribution of publications for sale are a business. Business requires certainty and proper planning. Powers under the Bill should then be proactive and pro-business. My suggestion in core and in sum is that distributors have the option to submit on a voluntary basis a sample copy to the Controller to have his permission for import. There should be a time limit given to the Controller to give a decision, favourable or otherwise, and then if favourable, the books can proceed en masse.”
“Mr Speaker, Sir, I stand in support of the Bill. The amendments are commendable. The policy of differentiation the Minister has explained is a progressive step. In deciding what is objectionable, the Bill will take into account different audiences and media and also allow the recognition of merit on scientific, artistic and other grounds. I believe this follows the Report of Prof. Tommy Koh's Censorship Review Committee 1992. I think this is something we should all support. I, however, wish to seek one assurance from the Government and to offer three suggestions. The assurance I seek is with respect to the meaning of "obscene". The Bill gives a new definition of the word. This definition needs to be clear as regards other laws which use the same word. There is a degree of overlap with section 292 of the Penal Code which provides sanctions for the sale of obscene goods. As such, the assurance I seek from the Minister is that there will be a consistent interpretation and application of what is obscene under the different laws. Let me move on to my three suggestions. My first suggestion is in respect of panels to assist the Chief Controller. The Bill defines "objectionable" to take into account the impact of the medium, artistic, scientific, educational and other merits, and standards of morality generally accepted by reasonable members of the community. This is commendable. Past Malaysian and Singaporean cases have not taken such criterion into consideration. In the past, we have seen books as the Tropic of Cancer by Henry Miller be the subject of criminal prosecution. Similarly, in England and other societies, there had been controversies surrounding D.H Lawrence's Lady Chatterley's Lover.”
“May I ask the Minister of State, of these so-called instances which people have heard of, what are the reasons which the property owners, minority interest, have refused to sell for commercial reasons? Assoc. Prof. Ho Peng Kee: Sir, I think the reasons for holding out are very variable. Some could be because of price, some could be because they have recently renovated their flats, and therefore they feel they should get a higher price. Some might have bought the flat more recently, compared to the others who bought a long time ago, and therefore feel that, based on the formula of distributing the proceeds, they ought to get a higher price. Some may just want to live in that area for a longer time. Some who are retirees may be very used to living in the area. The approach is that we want to provide a mechanism so that these concerns can be addressed. But the way to address it, at least the best way that we feel we should take as an approach, is that the Strata Titles Board will look at objective criteria. Basically it will look at factors such as the sale price and the relationship of the parties. I think that is important because we want to prevent collusion and therefore ganging up by the majority on the minority who may be in cahoots with the developer, and also this question of distribution of proceeds. These factors will be taken into consideration by the Strata Titles Board in deciding whether or not to intervene. But if there should be non-price factors, other points that I have mentioned - 1.30 pm”
“May I ask the Minister of State how many sales have been aborted because of such a small minority? In other words, how many sales would otherwise have gone through if the new law was already in place? Assoc. Prof. Ho Peng Kee: We really cannot say. We do not have a fix on that. But certainly we can look at the reports that come from the ground, in the press, and I think many of our Members here would also have contacts with people who have had sales which have been thwarted because one or two owners have refused to go along, and this can be big developments. So the current law really is a situation where there is tyranny of the minority and for whatever reason, if one or two owners hold out, then the rest of the owners' wishes to redevelop the property cannot be realised.”
“What then can the Singaporean individual or the Singapore Government do beyond hoping that the Indonesian government will fulfil their obligations?”
“In view that companies may use land clearing by fire as a cheaper means while other companies use more expensive means, would it not be fair to reward the companies which use more expensive and non-pollutive means by awarding them a Green Label to recognise their good efforts towards reducing the haze problem, rather than lumping them together with environmentally harmful companies?”
“Would the Minister like to elaborate how it is different in favouring an environmentally friendly product from disfavouring an environmentally unfriendly product?”
“When we monitor the Indonesian government's prosecution and if they fail to prosecute either Indonesian or Singapore companies, will the Minister reconsider the position?”
“Would the Minister not agree that the haze actually comes into Singapore airspace? Like the oil spill, can the polluters also not be prosecuted under Singapore law?”
“Though the haze originates from elsewhere, it does come into Singapore airspace. Will the Minister actually consider local prosecution by the Singapore Government, rather than depend on Indonesia?”
“Sir, may I ask the Minister if there are active investigations by the authorities of Singapore companies involved in such activities?”
“Sir, the plan has no mechanism for supervision and the Minister mentioned that they will meet regularly. May I ask whether the Singapore Government's representatives could seek further details at each meeting and update the Singapore public?”
“" These situations take a lot of time and I think in this case, everyone can see that time was of the essence to restore confidence to Indonesia and the region and for our foreign relations. What then has happened now, and this is an important step for Singapore, is that there will be full transparency and discussion of both the substance of the decision and the process of decision. I think finally we must come to this point. That Article 100 of the Constitution, which is created by the Executive, was to give the right to refer matters on Constitutional questions to one person - the President, not to me, not to Mr Jeyaretnam, not to any Member of this House. Article 100 says the President has the power to refer the matter to a Constitutional Tribunal. And the President has chosen, in this case, to remain, to allow it, at least, by silence. I think I should stop here because my understanding of Standing Order No. 48(8) is that the conduct of the President shall not be open to discussion in this House.”
“We must also recognise that our nation would also benefit from a Judiciary that is given and continues to be given its full constitutional measure of power and responsibility. The exception that I have mentioned, as regards the ISA, must be just that - an exception. In the vast majority of laws in Singapore, the Judiciary is the final arbiter, not the Executive nor this House. Let it remain so. The Executive and this House must be encouraged to ensure it remains so. On these grounds, I regret that I cannot support the present motion. As regards the specifics that Mr Jeyaretnam has brought up, I will confine my comments to basically his contention as regards Article 144 of the Constitution and the role of the Executive as regards seeking the concurrence of Parliament and the Presidency. I think there has been some public talk, coffee shop talk, if you will, that if the President is to be the second key to our reserves, where was the second key in this instance? But I think the clarifications that the Government has brought up upon questions in Parliament have assuaged people. The question of reserves has been emphasized, as Article 148G rather than Article 144. I have not had the time to peruse the detailed opinion given by the Attorney-General, but I believe this, and I agree with the Minister of State on this point: the Government cannot doubt itself. It has an opinion from its Legal Counsel. There is an urgent situation. There is a need, therefore, to move forward. No government ever in the world, when faced with such exigencies, will give pause and say, "Well, even though I think, and my legal advisers think we should move on, perhaps for safety's sake, we should hold a constitutional conference or referendum.”
“What then must be done is to restrict the exception, and not to allow it ever to become the rule. It of course remains the right of the Executive to appeal the decision of a judge to a higher court. It is also within the power of this House to amend the laws, and given the large majority enjoyed by the party in power, the Constitution as well. But I, as an NMP, hope that this power to make and amend laws in the face of Judicial decisions will be exercised sparingly. The process of making and amending laws needs a sea change, I believe. This House should override judicial decisions by amending laws or making new ones only with compelling reasons and after a thorough discussion, both in this Chamber, and by such means as Select Committees. This hope extends to the recent instances I have mentioned in which courts have given decisions that the Executive may disagree with. I humbly submit in that sense, that the question facing us in this House in such situations is not: Can this House amend the laws? Of course, we can. The question is not: Will the Executive be able to act more efficiently if we change the law and exclude judicial review? It almost certainly will be. The question should be: Has the court acted within its powers? If it has, this House should recognise this is the constitutional scheme of things and give serious pause before overriding that decision by amendment of new laws and limiting judicial review. There is no doubt in my mind that Singapore has enjoyed good Government, and benefited from an Executive and bureaucracy that has been largely efficient, non-corrupt, effective and lawful. Singaporeans recognise this.”
“Then all Singaporeans can join in refuting the scandalous claims others have put forward that our Judiciary is somehow compliant. This brings me to the second step that I think is needed to safeguard the Constitutional position and the public standing that our Judiciary already enjoys. This is that the House and the Executive should best serve the Constitution and this country by conducting ourselves in ways that give due recognition to the Judiciary's role. Specifically, I caution against amendments to the law designed to override interpretations and decisions given by the judges. This House makes the law. But the Judiciary interprets it. There may therefore be occasion on which we pass the law thinking it will have this meaning and this effect, only to have the judges tell us that it does not, it has a different effect, or that it cannot be given effect. When that happens, the temptation will be to amend the laws, or even the Constitution, abruptly. This has happened before. There have been notable amendments to the Internal Security Act in the late 1980s. This followed the Judiciary's decision in the landmark case of Chng Suan Tze, that decisions taken by the Executive should be subject to judicial review on substantive grounds. This House reacted then by amending the law and the Constitution to remove substantive judicial review and limit the courts to the review of procedure only. The amendments removed the ISA from full judicial scrutiny. It made the Executive the arbiter over the substance of ISA cases. But even as we recognise that fact, we must also recognise that this is a very narrow exception. For the vast majority of laws, which Singaporeans live under every day, the Judiciary remains the final arbiter, not the Executive.”
“First, in the decision of PP v Bridges, the courts held that the courts should be the final arbiter of what is or what is not a secret under the Official Secrets Act, not the Executive. Second, and even more recently, in the case of former GIC manager, Eddie Taw, the court refused to uphold his conviction on charges of corruption. According to newspaper reports, the Judge held that part of the Prevention of Corruption Act is unconstitutional insofar as it provides an unequal burden on Singaporeans. I am not dealing with the substance of these cases, but I think the principle must be clear to everyone that our courts are independent and these examples that I illustrate are not to shore up our bureaucracy or Executive but to show that, when necessary, our courts are strong and bold enough to put right what they see as wrong. I think the Executive has demonstrated in these cases that they have followed the decisions. Sir, I think sometimes we in Singapore tend to view disagreement as something to be avoided; something distasteful or inefficient or even "unAsian". But when we consider the role of the Judiciary, an equal role, we must give allowance for such disagreement between the Judiciary and the Executive, or the Judiciary and this House. The authority of the courts to administer justice to the ordinary citizen is built on the authority of the courts to do so with all, even if it means being in disagreement with the highest office in the land. When we recognise this, we can recognise the power that the Judiciary wields in the name of justice. Only with such knowledge, will the confidence in our judicial system increase. Only this will send the message that our courts have acted and will act independently of the Government.”
“One thing that has not been said in Parliament today is that our Constitution provides that the Judges of our Supreme Court have security of tenure in office. With very narrow exceptions such as unsoundness of mind, body or misbehaviour, the Judges of our Supreme Court cannot be summarily dismissed nor can their salaries or powers be reduced. This is important. This is an important protection against improper influence and fear from the Executive or from others. The courts also have the powers to punish people who speak or act in contempt of court. And so in this way, the Singapore system gives Judges as much protection as the law can give. Is there more that can be done? Sir, I wish to speak on one general principle that I wish to introduce to this House before turning to specifics that Mr Jeyaretnam has raised. The first step, I believe, to make the situation even better is that all Singaporeans must recognise and respect that the Judiciary can, and often will, review and strike down laws passed by this House or actions taken by the Executive. In Singapore's legal history, though brief, there have been cases in which the court has disagreed with Government agencies and statutory bodies such as the Housing and Development Board and the Registry of Companies. These are not small and petty bureaucracies. These were serious decisions taken by the court in favour of individual Singaporeans against powerful Government bodies. In this past year itself, we have seen the courts significantly reduce the amount of damages sought by Government leaders in their personal capacities against their political opponents for defamation. In two major cases, the courts have ruled against the Executive.”
“Mr Deputy Speaker, it is not apparent to me what specifically Mr Jeyaretnam had in mind when he moved this motion. Allow me therefore to begin with some general observations on the motion before dealing with the specifics of what I have just heard him and the Minister of State for Law, Assoc. Prof. Ho, say. I think it is apparent to all of us that Singapore has a written Constitution that sets out the respective roles of three main and equal institutions - Parliament, the Executive and the Judiciary. It is also very clear that the Constitution gives judicial power to the Judges. "Judicial power", what does it mean? I tend to agree with the NCMP that it is to interpret the law. But then, I think, in principle, any first-year law student would agree with the same. The question then becomes: in practice, has this Executive government observed that rule of law? The allegation, first, must be taken seriously. Because, if it is true, then there are very serious consequences. Many states in history have let slip the rule of law and there have been tales in which judges, after giving a decision against the Executive, had found themselves removed or, worse, confronted by armed men and tanks. I am glad to know that we have a trained defence force in Singapore and mobilisation exercises. I believe none of us, including the NCMP, would want to see that kind of mobilisation exercise carried out. So it is a serious matter and political, social and economic consequences would be very high for Singapore. What then must be done, Mr Deputy Speaker, to prevent the possibility of force overwhelming the rule of law or subtler means in which the rule of the Judiciary might be usurped?”