Thio Li-ann
Singapore
“Also, it appears that the existing Act and these amendments do not require the relevant decision makers, such as the Board of Film Censors and Committee of Appeal to give reasons for their decisions. Why not include a statutory duty to give reasons for their decisions, as a matter of good governance?”
“The question is this: there is a virtue in writing down rights. Though it is clear that the right to vote is a constitutional right, my suggestion was that if you write it into Part IV, you can get to the detail.”
“Given Singapore's high standing in the legal world, such a museum would be a worthy addition to our cultural space. Culture itself embodies an intangible or spiritual value from which the soul of a nation is forged.”
“And we should be very careful when we tinker with the Constitution. The multi-racial situation in Singapore is very fragile. I lived through the riots of 1963/1964 and I remember 13th May in 1968. Just for clarification, because I may be misunderstood.”
“Nothing can be achieved without people and nothing endures without institutions: good people and good institutions complement each other in building a constitutional state where a basic value is to remind those holding political power that they are public servants, not overlords.”
“Lastly, to broaden our perspectives as global citizens in a global city with a global hinterland, the IAD could promote public outreach by providing basic international law information on its website, such as what treaties are, and how treaties serve the national interest. Community Legal Clinics”
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“It is a small step rather than great leap in the right direction towards the liberalisation of forms of political speech as expressed through party political film on the Internet and beyond. It is progressive precisely because free expression serves the worthy goal of promoting democracy and political participation in at least two respects. First, permitting certain forms of political films is a step towards enhancing genuine viewpoint diversity by allowing different voices and perspectives to be heard through a relatively accessible platform for communication. Second, by opening the door to yet another source of informational flows distinct from the mainstream media, which works under certain constraints and predilections. To effectively participate in political discourse, citizens must be knowledgeable about public affairs. If relevant information is withheld, the danger is that the electorate can be manipulated or misled. And this is not conducive to a free society. By protecting political speech, a government is prevented from illegitimately silencing its own critics. Further, the free speech principle is a permanent challenge to the idea that some questions are beyond contention and thus a permanent challenge to authority. The problem today is not a dearth of information, frequently, but a deluge of information. This is a wake-up call to citizens to rise to the task of being responsible citizens, able to discriminate between substance and seductive but vacuous sound-bytes. It is unsound to base policy on sound-bytes. We must have the maturity to ferret out mendacity, the discernment to divide truth from dishonesty and deception.”
“However, we are not today dealing with the relatively easy case of pornography, a form of speech lacking value, like slander or invective; such expressions are unworthy of constitutional protection. Instead, we are dealing with valuable speech, with political speech, the lifeblood of a democracy. Political speech about political issues educates and enlightens us. It facilitates robust and informed debate which heavy-handed censorship can emasculate, to our common detriment. The ideal in a representative democracy is an engaged body of citizens who express competing views and then weigh competing viewpoints. Are we amending the Films Act out of an internalised commitment to strengthening the principle and practice of expressive freedoms in a democratic society, or are we merely capitulating to the external pressures of social realities and technological capacities? Since we cannot ban it, we may as well regulate it! In loosening control over political films, it would be sad if we missed this opportunity to reflect upon the important role free expression plays in a democratic society. In a real sense, speech is never free as it always takes place within a context of competing values, social mores and local realities. We apply a cost-benefits analysis to it, in deciding how to value speech and give it due weight where balanced against other important competing rights and interests, such as racial harmony. We must ask: what is good and bad speech, what is the social value of speech, rather than assume the relevant starting point is to begin with a principle of unregulated speech, which itself begs justification. Sir, this shift from a blanket ban on party political films to a regulated one is to be quietly applauded.”
“Sir, free expression is not an ultimate trump or value in Singapore, but it is an important value in serving truth in democratic debate. Which brings me to the question: why is the blanket ban on party political films being lifted? Is this being done because of a principled commitment to free speech or is it a pragmatic capitulation to the fact that technology has outstripped the state’s ability to police the section 33 ban on party political films? Sir, section 33 is easily circumvented. Anyone with a cell-phone can make a movie and distribute it on the Internet. Record, upload, download, view. Banned political films are easily located on YouTube and have not attracted Government intervention. The blanket ban has too many holes in it torn by Internet technology. Technology has outpaced regulatory capacity. However, in formulating laws, we need to distinguish between the desirability of enforcement and the capacity to enforce a legal norm. Laws which are hard to enforce may still fulfil an important social function and educative purpose. For example, the ban on obscene films or pornography signals to citizens what is normative, desirable and sociable. Just because Internet pornography is widely available does not mean we should hasten the deterioration of our moral ecology by lifting the ban and opening the door to mainstreaming pornography which degrades women through perpetuating sexual stereotypes. I urge the Government to retain the symbolic blocking of 100 Internet porn sites as a statement and reaffirmation of our values. Laws lacking a sound moral basis will breed disaffection among citizens and hemorrhage legitimacy.”
“Passion and intellect are not mutually exclusive. Politics speaks to the head and heart. It is true that film as a means of communication can be more visceral than cerebral in effect. Unlike the printed word, which requires more active participation and focus on the part of the consumer to determine meaning, we are more like passive recipients in watching film which feeds us with rich visual detail and is apt to sway populist emotions, engaging sensibility rather than sense. This is particularly so where a rousing soundtrack is added, with soaring strings, to complement stirring imagery, a billowing flag against which the protagonist stands, looking noble. Alternatively, poor lighting and ugly angles can communicate wordlessly that an antagonist is shady, oily, snakey, not to be trusted. I share the concern that public debate may become sensationalised and thereby trivialised. I share the concern that public debate may be thwarted through propaganda and misinformation where there is a lopsided presentation of views without a chance to rebut and reply. This degrades democracy and the quality of debate which should be conserved. Apart from free speech fundamentalists who prioritise speech to the neglect of other important competing values, most accept that free expression is not an ultimate value. Free speech has an intrinsic worth as a means of self-expression, but it draws its value from the argument that free speech and debate promotes truth and democracy. As the House of Lords said in a recent libel case, the freedom to communicate relates to the freedom to communicate information, not misinformation; misleading people does not serve the public interest and misinformation is in fact destructive of democratic society.”
“On this point, I would note that from past debates, Opposition politicians, like Mr Chiam See Tong and Mr Low Thia Khiang, forcefully pointed out that although the ban on party political films was neutral on the face of things, it was unequal in impact. All things considered holistically, equality of access to the Internet is not the sole factor to consider when the playing field is not level. For instance, Opposition parties have less access to mainstream media. This is a relevant factor when evaluating the importance of the Internet as a cheap, fast and effective method for getting out a political message to a broad spectrum of citizens. In this sense, the Internet, with its great communicative power, acts as the great leveller, in mitigating disparate access to mainstream media, or even the variable financial and manpower resources available to the various political parties. It has been called the "fifth estate" for its role in holding government, and even the press, to account. The Internet is a forum that politicians can no longer ignore; it has real world effects as a mobiliser and alternative information source. It shapes opinion and debate. Twenty-first century politicians must learn to negotiate this brave new terrain, its bright shiny cities of interactive dialogue and transparency and its dark lands of cyber-nuisance and online bullying. You cannot take online party political films out of the mix of alternative informational flows as this is a potent source of communication. Sir, rational debate over public issues is important, but we also want to debate with passion and conviction, without abandoning the faculty of reason and becoming emotionally charged. Sir, we are not vulcans, worshipping solely at the altar of logic.”
“So, by process of elimination, I would hazard to guess that the regulation of party political films must somehow be related to the category of "public order". From the 1998 parliamentary debates, it appears that the rationale for the prior blanket ban on party political films under section 33 was two-fold: Firstly, it was considered a bad or undesirable medium for the message because film is one-sided in presenting a message and ill-suited to effective rebuttal which diminishes the quality of political debate. Further, the medium of film was thought to sensationalise issues, reducing debate to a contest between advertising agencies, which carries the vice of being simplistic without the virtue of simplicity. This was also thought to trivialise serious debate by provoking the emotions rather than eliciting rational reflection. Sir, I find it hard to see how a concern that party political films might sensationalise and trivialise political debate qualifies as a public order exception, unless we adopt a rather capacious or expansive understanding of "public order". As a legal category, there must be a core set of criteria for identifying a public order issue – it cannot be a "fill in the blanks with whatever you like" category. As an exception to rights, it can easily eat up the norm if so broadly defined. Sir, are the regulations on party political films based on such a broad understanding of public order? I would appreciate it if the Minister could clarify if this is the case. Secondly, it was thought that sufficient outlets for expressing political views, like publishing actual or virtual newsletters, already existed.”
“One might infer from practice, such as the pronouncements in various Censorship Review Committee Reports, that censorship serves goals like preventing harm to the public by protecting the impressionable young from the pernicious influence of salacious and unedifying film and TV content. Personally, I support this worthy goal. Constitutionally speaking, I would infer that this reason falls within a constitutional category which permits legal restrictions on speech – the category being that of "public morality". However, I am more than a little perplexed with respect to the constitutional basis for the ban on "party political films". The current section 33 makes it an offence to make, distribute or exhibit the creature known as the "party political film". This current amendment removes the complete ban, which is a very restrictive form of prior restraint that pre-empts speech before it is even spoken, as opposed to imposing sanctions for speech after it is spoken. Which head under Article 14(2) does the regulation and restriction of party political films fall under? It must fall within one of these eight grounds to be a legitimate, constitutionally permissible restriction on speech and expression. Which ground is it? It cannot be public morality as party political films are a form of what might be called "political speech" which relates to political issues, however defined. The limits on political films cannot rest on public morality as political issues are not on the same level as pornography or obscenity, I hope. It is not a security issue, has nothing to do with friendly relations between states; I do not think party political films constitute an incitement to commit an offence.”
“Sir, films are a vehicle through which the right to free speech or expression is exercised and enjoyed. This right is entrenched in Article 14 of our Constitution, the supreme law of the land. This is not an unqualified right in any jurisdiction. The Films Act is one of a multitude of laws restricting the ambit of free expression in Singapore. Under the terms of Article 14(2) of the Constitution, there are eight exhaustive grounds upon which Parliament may legislate to restrict free speech, if it considers this necessary or expedient, such as to provide for laws on defamation or judicial contempt. Sir, I must ask a preliminary question which perhaps should have been asked more than 25 years ago in 1981 when the Films Act was born. Which of the eight permissible grounds upon which free speech may constitutionally be restricted does the Films Act rest on? I ask because this is not apparent on the face of the statute. Its preamble gives no indication of this. It merely states: the Act relates to "the possession, importation, making, distribution and exhibition of films." Perhaps this specific constitutional ground for derogating from free speech rights was clarified in past parliamentary debates which I may have missed, for which I beg the Minister’s indulgence. But then, as a matter of law, it is always better for the avoidance of doubt to state things expressly rather than leave things to implication or inference. This is particularly important where constitutional rights or limits on constitutional rights are at stake. When constitutional rights are involved and the law seeks to curtail the rights of citizens, the onus is upon the Government to prove that the restrictions are necessary to serve one of the eight stipulated purposes in Article 14(2).”
“The question is this: there is a virtue in writing down rights. Though it is clear that the right to vote is a constitutional right, my suggestion was that if you write it into Part IV, you can get to the detail. Because what is protected is the right to vote, but not necessarily the content of the right to vote, for example, is it universal, is it equal, is it secret? Last but not least, if you talk about the Constitution being a living document, it means that every generation has to appropriate it for itself. I am thinking of little kiddies in primary school. And if you want to educate them about our bill of rights, would it not be just more efficient and easier to have an express right to vote because you do not want 12-year-old kids to go into the intricacies of Westminster.”
“Of course, that is a special entrenchment procedure which signifies the importance of parliamentary democracy in Singapore. I know I have asked Prof. Jayakumar this before, but I am wondering if the Minister could give some indication of a timeframe. There may be other considerations because Article 5(2A) is a pretty comprehensive clause. But I am sure citizens would like to know when representative democracy will be constitutionally entrenched. So I would appreciate it if he could give some kind of indication. Fourthly, I am very well aware of the fact that we borrow our Constitution from the English, and we all know the English, they are very implied in how they respond. But we are not entirely English and the Minister is completely right, we are not in our salad days. We are Singaporeans, we have already moved past the first generation of leaders. And I know that while we have the fundamental superstructure of the Westminster constitution, we also have unique indigenous aspects to the Constitution which manifests certain degrees of legal autochthony. It is interesting that when you look at the Australian constitution, they imply in a right to free speech, because they do not have a bill of rights. And they said that this was necessary to realise representative democracy, whereas free speech in Singapore is protected under Article 14 of the Constitution.”
“I thank the Law Minister for his very comprehensive and considered response and his emphatic clarification that the right to vote in Singapore, in fact, has a status of an implied constitutional right. I have a couple of questions and clarifications. Given that we have now clearly affirmed the idea that there are implied rights in Singapore, I wonder, in the Minister's opinion, if he thinks this opens the door to further implied rights. I can think of a good example. He mentioned the Commission's Report – I am sure he is very well familiar with it – but one of the four rights which did not make its way to the Constitution was also the right to a judicial remedy. And I have argued, as the Minister well knows, that Article 93 might contain an implied right to a judicial remedy and that, I suppose, practice has confirmed it, judicial review and so on. I wonder whether he might give his opinion as to whether or not there is only one implied right or there is a possibility of further implied rights. A clarification as well – I am in complete agreement with the fact that a beautiful bill of rights, a list of citizens' rights in itself cannot bring about good government, but I do not see having a good bill of rights as mutually exclusive with good government. In fact, I would like to see a discourse where we take a holistic approach where not only do we have good rights and institutions and procedures but good governance as well. So, do not misunderstand me. Thirdly, I notice too that, as the Minister pointed out, and I actually have not thought about this, Articles 65 and 66 from which the implied right to vote is implied are going to be subject to Article 5(2A) procedure.”
“However, I would argue that this is basic, foundational, fundamental to our political order; it is a necessity, not a luxury. Ever conscious of the dominant pragmatic mindset, my plea is that in an Age of Democracy, this is the one issue where symbols ought to count. Constitutionally entrenching the right to vote as a citizen's right will more fully vindicate the ideal and reality of representative democracy. It will strongly indicate to Singaporeans that we are stakeholders in this nation, with all the responsibilities of ownership and upkeep, serving the common good. Expressly constitutionalising the right to vote has both symbolic and practical significance. We need to be very sure our fundamentals, whether economic, social or political in dimension, are sound. It is always good to shore up the foundations of the House, before the hurricane strikes. I trust the right to vote is considered fundamental. It is democracy's most potent symbol; it gives concrete, tangible expression to the democratic spirit upon which our constitutional order rests. In a democracy, the people are King or sovereign. Every citizen has a voice and her choice for governor is articulated through the vote as an empowering tool. This tool must be protected as a fundamental constitutional right. Sir, the hardware of providing for a fundamental right affects the heartware of the right-holder. As we approach our Jubilee in 2015, let us, the descendents of lion-hearted pioneers, move ahead as one united sovereign people, each carrying our little slice of sovereignty, our right to vote, the badge of our citizenship. And, Sir, affirming the constitutional status of this right or otherwise taking steps to ensure it, will not cost very much. Professional Qualifications”
“Article 66 embodies a constitutional commitment to representative democracy and obliges the Government to ensure that elections are held within the stipulated time-frame; from this, the citizen's right to vote is inferred. Article 66 is not formulated as an individual voting right. There is a difference between a state obligation and a fundamental liberty. While the Attorney-General's opinion is authoritative, it is not determinative under our system of separation of powers. The final say belongs to the courts. In the interests of clarity, would the Minister consider invoking the Article 100 process which allows for constitutional questions to be put to a tribunal to obtain an advisory opinion? Better still, to affirm and underscore the workings of our system of representative democracy, would the Minister consider taking the desirable step to amend the Constitution to expressly entrench the right to vote in the Fundamental Liberties Chapter? This would put its legal status beyond the shadow of a doubt and underscore who the right-holder is – we, the Citizens of Singapore. In addition, while the Constitution provides for regular elections, it does not guarantee direct elections, secret voting or universal equal suffrage. Such details are basic and should be succinctly expressed in a constitutional voting clause, not left to Statute. Such a clause could be accompanied by an associated duty to vote responsibly by exerting sober reason and conscience. Would the Minister consider amending the Constitution to include this important political right? Sir, some might consider this issue merely symbolic, a luxury we can ill-afford because of the current economic exigencies.”
“Courts in jurisdictions with Westminster based Constitutions have found implied basic rights to political communication, these were considered embedded in the Constitution which established government based on representative democracy. Our own local jurisprudence provides some support for the idea of unenumerated or implied rights. One could argue there is an implicit right to a judicial remedy embedded in Article 93, the judicial power clause. The courts have affirmed their role in declaring unconstitutional exercises of government power invalid. One might argue that implied voting rights may be derived from the system of parliamentary democracy the Constitution establishes, that this was a historical "given" in such political systems; further, that representative democracy remains a normatively desirable form of accountable government, compared to dictatorships and juntas. Indeed, the Attorney-General appeared to hold this opinion. When this House debated whether voting was a right or duty in May 2001, the AG's opinion was that the right to vote for elections was "implied within the structure of our Constitution". This frames our "parliamentary form of government". In providing for regular general elections, the Constitution established "representative democracy in Singapore", to which the right to vote was considered "fundamental". The Parliamentary Elections Act gave effect to this implied right. 6.30 pm Apparently, this indicates that the right to vote is an implied constitutional right, implemented by Statute. It was implied, of necessity, from Article 66 which requires the relevant actors to ensure General Elections are held within three months after Parliament is dissolved.”
“First, the High Court made an odd, fairly disturbing obiter statement in Taw Cheng Kong v PP [1998] 1 SLR 943 at 965. In contrasting fundamental liberties against carrot and stick privileges which the legislature may confer or withhold as a matter of political will, the judge seemed to indicate that these privileges included "subsidies or the right to vote." The term 'privilege' connotes a lesser interest which warrants less legal protection than a 'right'. This is alarming as one might interpret this as reading down the right to vote to a statutory interest, which any ordinary Act can repeal. Surely, our right to vote cannot depend upon legislative will? This would place something so basic on too tenuous a footing, for what Parliament gives, Parliament can take away. Secondly, as the Constitution contains no express right to vote, some might argue this right is contained in the Parliamentary Elections Act. If so, the right to vote is merely statutory, which does not afford it much protection. If so, the remedy would be to accord the right to vote constitutional status, to affirm its primary importance. However, I understand the Parliamentary Elections Act as not being a source of voting rights; this statute does not constitute or create the right to vote. Rather, it facilitates elections by identifying who the People are for voting purposes, in maintaining a register of electors, and by regulating the conduct of elections. It does not create an entitlement to vote, merely secures it. Could we argue that the Constitutional text is not exhaustive, that rights may be implied from it? Certainly, our courts have found and declared unwritten constitutional principles, such as the separation of powers and rule of law.”
“A right of fundamental importance should be recognised as a fundamental right and constitutionally entrenched. Only the most important rights or interests are constitutionalised and receive maximum legal protection as part of the supreme law. The right to vote is not an ancillary or new-fangled right; it is fundamental and long-established. In discussing fundamental rights, the 1966 Constitutional Commission specifically highlighted the right to vote: as one deserving to be cherished as an inalienable right. An inalienable right is not a boon from the state; instead, it inheres in the individual and the state is bound to secure it, to enable its realisation. The right to vote inheres in individuals living in a democratic state. Our courts have affirmed that fundamental liberties are recognised as inalienable rights "to the extent that the Constitution is supreme". Back in Singapore's salad days, the Constitutional Commission considered it "necessary and wise" to constitutionally entrench the right to vote, and to provide that this could only be removed by a two-thirds vote at a national referendum. This was to make it difficult to change. What is fundamental is not frequently amended. When something is given constitutional status, this has an educative effect as this status underscores the importance of the right or interest entrenched. It communicates fundamental values to the polity. Unfortunately, the Constitutional Commission's recommendation to entrench the right to vote apparently was not given explicit form. Expressly entrenching our right to vote would accentuate our responsibilities as citizens in choosing good governors. The legal status of the right to vote is unclear for two main reasons.”
“Sir, we live in unquiet times and need a sense of rootedness to steady us as we navigate the choppy waters ahead. In a crisis, do we respond with flight or fight? In a crisis, mercenaries follow the pull of lucre; patriots stay, because of their affection for intangible things. Sir, the right to vote is what makes the often abstract and intangible idea of democracy tangible to the citizen; it is something corporeal, which the citizen can hold on to. Voting rights are the hallmark of democracy; it is the Political Right of rights, a Super-Right necessary for democracy to function authentically. Individually and cumulatively, the right to vote affirms that government rests on popular choice; that the voice of every citizen counts. What are the ABCs of the vote? A, it is an Anchor which B, gives us a sense of Belonging which provides the Ballast for C, our Commitment and Care for our Country and Community. The vote underscores the stake each citizen has in the country, inspiring a sense of loyalty, stewardship and responsibility for Singapore. It reminds us of our vested interest in national affairs. After all, if we have no say, why care? The issue of the vote is not esoteric but fundamental to our polity; it is the cornerstone to our personal and corporate identity as citizens of the Republic. Voting allows the citizen to select the best political leaders for the job, those able to manage crisis effectively where required. This is a high stake decision and reminds us that rights carry responsibilities. Citizenship evokes both entitlement and duty. Sir, the legal status of the right to vote is unclear. Is this right a constitutional right and part of the fundamental law of the land, or merely a statutory right, regulated by ordinary law?”
“Given Singapore's high standing in the legal world, such a museum would be a worthy addition to our cultural space. Culture itself embodies an intangible or spiritual value from which the soul of a nation is forged. Museums represent a hope that we will endure and having something to pass on to the next generation and generations yet unborn. Whether in a time of feast or famine, museums, including a Singapore legal history museum, would be a valuable investment for any healthy society to make. Promoting Traditional Arts”
“Museums are incubators for a society's self reflection about from whence it has come, where it currently is and whither it will go. They speak to what was, what is and makes us meditate upon what is to come. Some concerned parties have pointed out their fear that without a legal history museum, many important documents and artifacts will be lost to time. For example, we have lost the valuable coroners' records that form the basic of classic books by historian, James Warren, such as "A People's History of Singapore 1880-1940". My own attempts to track down the original representations to the 1966 Constitutional Commission have also failed. Records and artifacts belonging to old law firms, lawyers and judges are now either lost or lying under appreciated in some dusty cupboard. This reminds me a little of a line from my favourite poem by Thomas Gray entitled "Elegy Written in a Country Churchyard": "Full many a gem of purest ray serene, The dark unfathomed caves of ocean bear; Full many a flower is born to blush unseen, And waste its sweetness on the desert air." As far as our legal history is concerned, we can act to remedy the situation to prevent the loss or under appreciation of valuable things, to bring what is hidden in the public eye for the enjoyment, enrichment and edification of the majority of people. We need to keep some landmarks in our fast-paced rapidly changing nation, as an anchor to the past helps us remember who we are and aspire to be, to aid our navigation to the waters of our own unquiet times. There are very few such museums elsewhere in the world. Economically speaking, in utilitarian or instrumental terms, a legal history museum can add to our menu of tourist attractions.”
“Preserving these buildings and making these three venues into Chambers for a museum of legal history will allow future generation of lawyers and Singaporeans to see how justice was administered as well as to enjoy something which is aesthetically worthy and artistically valuable. It will serve as a visual record of the past which helps us better interpret our present. 5.45 pm Museums have an intrinsic value. They preserve, collect and document items important to humanity, to our culture and heritage, from the mundane and common to the rare and unique. They are more than a knowledge archive. They contribute to building a sense of community, identity and belonging by serving as a conduit for cultural transmission and continuity. Singapore has a long and illustrious legal history dating back to colonial times. Memorable milestones include the 1872 Second Charter of Justice, which established our legal system based on the English common law, which espouses principles of common right, reason and humanity – the foundations of justice. Museums help us to remember, to see and understand the world around us. It is timely and appropriate to establish a legal history museum in this historic setting. Such a museum will not only allow Singapore to showcase its rich legal history or legacy that has made it into one of the world's best legal systems in many respects, but it will also give us the opportunity to honour the key personalities who have made the system what it is. Such a museum can feature both permanent and temporary exhibitions and will also act as a repository for materials relating to Singapore's legal past. This is a valuable aspect of continuing education which can stimulate intellectual creativity, exploration and dialogue.”
“Madam, I understand that there are plans to transform the former Supreme Court buildings – both Dorrington-Ward's 1939 Supreme Court and the former City Hall – into a Singapore National Arts Gallery. Would the Minister consider setting aside parts of the buildings to be used as a venue for a legal history museum or a museum of Singapore law? These buildings are already located in the right neighbourhood in Singapore's heritage and museum districts. In addition, such an initiative would have various advantages. Firstly, there is no better venue for having a legal history museum than the Supreme Court. The 1939 building is of particular significance as it was Singapore's Supreme Court for over 60 years, serving as a symbol of justice in our island nation. It was only the second purpose-built court house in Singapore. Many great cases had been heard within its four walls. Indeed, the public meetings held by our only post-independence Constitutional Commission were also held there. It is an instantly recognised world landmark identified with law and lawyers. Secondly, the architecture and furnishing of the building are of great historical and aesthetic value. Many members of the Legal Profession feel that it is important to retain the architecture and layout of three parts of the building. These are the Court of Appeal, Court No. 1 and Chambers, formerly used by the Chief Justice, and the former circular Library under the Dome. Madam, the local bar is maturing. As the legal profession grows, it is imperative to preserve its heritage and institutional memory.”
“I hope the learned Minister can help shed light on the issues raised, particularly, how, given the definitional ambiguities involved, the relevant actors can effectively discharge their respective constitutional functions. 5.23 pm”
“While the introduction of the Elected President might be considered revolutionary, in confiding more executive authority in this office than that customarily associated with a ceremonial Westminster Head of State, its development trajectory has been evolutionary. This is consonant with the brand of constitutional pragmatism extant in Singapore practice, where truth is located in experience and social realities rather than grand theories or lofty abstractions. After the passage of this Constitutional Amendment Bill, the likelihood is that the Government will want to have a 'trial run' period to test how it works. Would the Minister comment on when the Government is likely to entrench the elected presidency by bringing into force Article 5(2A), which would also give Singaporeans the long-awaited entrenchment of other constitutional provisions like Part IV, which safeguards our fundamental liberties? Sir, in principle, I support the Government’s move towards a more liberal spending policy on social services such as workfare and health care, as it is important for the heart of a society always to care for the poor and vulnerable. This amendment by affording greater access to more money from the reserves will facilitate this. More money will also be needed to support further expenditure on education and transport, which is integral to human development. Taxes alone may not be enough, particularly in economic downturn. Nevertheless, I find myself as a constitutional law professor somewhat befuddled with these complex Constitutional Amendments which, to me, would seem to be more at home in a statute on financial procedures and accounting practices.”
“Is judicial review available, to ascertain if the President or other actors have acted constitutionally? If it is, what standards will the courts or constitutional tribunal apply? What if judges disagree with the President or Finance Minister as to what long-term real rates of return are? We are not talking pin money or pocket change here! Will this matter be exempted from judicial determination, much like questions of security? Could the Minister kindly clarify? Are we faced with problems of definitional ambiguity, with terms not susceptible to precise evaluation? Will this hamper the operation of the proposed new regime? Lastly, could the Minister shed some light on whether the proposed Amendments will, based on existing figures, result in increased net returns for the Government’s current reserves and past reserves, as compared to the current NII mechanism? Sir, the system of financial checks associated with the elected presidency grafted by constitutional reform upon the inherited Westminster parliamentary system is still evolving, some 17 years after its inception. Despite its then novelty, the elected presidency was considered important enough to the scheme of limited government to warrant a unique entrenchment mechanism involving the possibility of a popular referendum under Article 5(2A) of the Constitution. This remains in abeyance. Indeed, if Article 5(2A) was in force, today’s amendment might necessitate a referendum insofar as it impinges on the President’s financial guardianship over past government reserves.”
“The proposed provisions in this Amendment Bill provide no guidance as to what the formulation "long-term real rates of return" entails. On what basis will the real rates of return be decided? Will further guidelines be provided? Can the Minister also clarify the accounting standards and methods concerning definitions of "real rate of return", "adjusted for change", "expenses arising from or incidental to investing and managing", set out in proposed clause 3(d)? Will these be spelt out in a code or regulation pursuant to the Financial Procedure Act or other appropriate legislation? In the alternative, will untethered flexibility be the order of the day in leaving the Auditor-General or Accountant-General absolute discretion to determine the meaning of these terms? Who will hold this process to account? Sir, my concern is this: there is a danger of extensive discretion inherent in putting vague public finance terms like "relevant assets", "realised capital gains" and "long-term real rates of return" into the Constitution, the supreme law of the land which is more suited to the articulation of broad principles rather than detailed regulations; such terms certainly do not bear self-evident meanings. Will not the vagueness in the formulation of these terms affect how the relevant constitutional actors will apprehend and apply these terms? All the President’s men in the Council of Presidential Advisers must be able to render sound financial advice on these complex fiscal matters, but will they have sufficient information to do so? Indeed, if the Council recommends or the President independently decides not to concur with the Finance Minister, what mechanism is available to break this potential deadlock?”
“This needs to be clarified, in the interests of transparency. If there is uncertainty with respect to "relevant assets", on what basis may the President in his discretion decide whether or not to concur with the Finance Minister on what long-term real rates of return are expected to be, and to ascertain that the spending limits for a financial year will not exceed 50% of the likely returns on the relevant assets? It is the President’s job not to allow more than 50% of the likely returns on relevant assets to be spent and the People who elected the President will want to know whether this task is discharged with due diligence. How is monitoring possible when it is hard if not impossible to measure what is meant to be monitored? Can the Minister clarify whether the definition of "relevant assets" applies to current and past reserves of the Government and the other actors mentioned in proposed clause 3(d) who hold relevant assets? Why are the assets managed by entities substantially owned by GIC, let us say owning at least a 50% share, not included in the computation of "relevant assets"? What is the rationale for using 100% ownership as a benchmark? Should the holders or managers of relevant assets include Fifth Schedule entities, particularly, Temasek and statutory bodies? Indeed, can the Minister confirm whether SBGCs have been restructured or privatised so as to warrant an updating of the Fifth Schedule list? Aside from the impenetrable imponderable of what "relevant assets" comprise of, another imponderable, particularly to those lacking public finance literacy, like myself, is the term: "long-term real rates of return". What exactly does this mean? I presume long-term means about 20 years?”
“If the President’s watchdog powers are triggered by potential encroachment on past reserves, this new provision apparently means that in identifying "past reserves", we are to exclude those reserves which the Finance Minister has certified as forming part of the amount to be spent for that financial year, not exceeding 50% of the total of all amounts determined by applying the expected long-term real rate of return under new Article 142(1A)(a). What might otherwise be counted as past reserves are not to be counted as past reserves. Is this so? Also, what is the rationale for the "not more than 50%" benchmark? Furthermore, in relation to proposed clause 3(c), and the Minister’s existing responsibility under Article 142(3) of the Constitution to certify to the President the amount of the NII of that financial year from past government reserves deemed to accrete to the past reserves, can the Minister clarify what, broadly, are the items comprised within the new insertion "past reserves of the Government not comprised in the relevant assets"? We need to know what relevant assets are before we can calculate long-term real rates of expected return. Clause 3 offers a definition or description of "relevant assets". However, this includes more unknowns. One component of "relevant assets" includes the net assets and certain moneys of MAS, and the total net assets managed by the GIC and its wholly owned subsidiaries. This is not generally accessible information; indeed, it is a well-known secret notwithstanding the recent report issued by GIC on the management of its portfolio! It is unclear what the scope of "relevant assets" is. How then is the long-term real rate of return calculated? Will more information be forthcoming, perhaps in another White Paper?”
“However, such information, particularly in relation to the Government’s investment holdings, is not disclosed on grounds of national interests. If the President does not know whether a proposed budget draws down on past reserves, how can he or she exercise discretion? Since the President’s watchdog duties are constitutional duties, this means, in principle, that whether these duties have been fearlessly and faithfully discharged should be subject to judicial scrutiny. On what basis will the Courts be able to determine whether the President has acted prudently or fulfilled his constitutional mandate? The proposed amendment further exacerbates existing complexities. It introduces the new term: "relevant assets". Under Article 21(3), the President is obliged to consult the Council of Presidential Advisers before performing certain functions such as withholding assent to a Supply Bill. Under clause 3 of the Amendment Bill, a new function is added. The President must, under the new Article 142(1A), consult with the Council before exercising his discretion to concur with the Finance Minister on the "long-term real rates of return" expected to be earned on the respective components of the relevant assets. The Finance Minister must then certify the spending limit for that financial year, which is capped at 50% of the total of all amounts ascertained by applying the "long-term real rates of return". Article 142(1A) goes on to provide that any reference to past reserves in this Part shall exclude those reserves equal to the amount so certified.”
“Article 148D provides this may be overridden, where the President rejects the advice of the Council of Presidential Advisers, by a two-thirds parliamentary resolution. If the President approves such a Supply Bill, his opinion must be published in the Gazette, which provides for some transparency. Past reserves comprise net financial assets and physical assets. While financial assets and liabilities of the Government are calculated on a cash accrual basis, Fifth Schedule SBGCs generally adopt an accrual basis. Apart from the difficulty in listing and valuating the assets, the determination of 'past reserves' at the start of and during any current term is fraught with uncertain variables. For example, one uncertain component of past reserves relates to (a) the excess of taxes over expenditure every financial year, and (b) earnings from investments of previous reserves. The difficulty in determining the investment earnings from previous reserves is that we need to know the Government’s exact investment portfolio in order to calculate whether profits are made, or losses sustained. We would need to precisely identify these two components of past reserves for the President to make an informed decision as to whether a government budget eats into past reserves and whether this should be supported. Article 142(4) of the Constitution provides that past reserves are not accumulated by the current Government and include accretions deemed to be part of the reserves. The first imponderable affecting the exercise of presidential discretion is: what is the extent of past reserves? We also need to know what the accumulations and accretions are. This cannot be known without knowledge of the extent of the Government’s holdings of financial and physical assets.”
“Indeed, this was one of the issues President Ong Teng Cheong raised at a 1999 press conference before leaving office. He expressed concern over not knowing what past reserves consisted of and his difficulty in obtaining relevant information. How could he safeguard something which could not be clearly identified? The problem of identification is compounded by the fact that past reserves are not static. They grow through accumulation of interest and dividends, and capital gains during the Years of Fat where budget surpluses are enjoyed. However, if market conditions are not favourable, during the Lean Years, past reserves can depreciate in value. The size of past reserves, and many other matters relating to the "long list" of problems President Ong raised was debated before this House in July 1999. This led to the adoption of a White Paper setting forth the Principles for determining and safeguarding the accumulated reserves of the Government and Fifth Schedule SBGCs. This was a form of non-binding 'soft constitutional law' setting out non-exhaustive guidelines to promote a 'harmonious working relationship' between the President and Government, ensuring that daily government operations were not unduly fettered. The goal was to prevent any "significant" draw down on past reserves by the Government without the President’s consent. Article 2(1) of the Constitution defines "reserves" in relation to the Government as "the excess of assets over liabilities of the Government". The White Paper identifies the relevant assets, that is, financial and physical assets, such as investments, loans, equities and buildings, as well as what constitute liabilities. Article 148A empowers the President to withhold assent to a Supply Bill likely to draw down on past reserves.”
“It seeks to refine or fine-tune existing provisions. While the 2004 amendment related more to the shifting of money between the Government and SBGCs, today’s amendment relates more to the counting of money, the computation of what must be saved, and what may be spent, to avoid over-spending and over-saving. Currently, our past reserves can be increased under the NII rule. In terms of the components of investment returns, today’s amendment provides a formula which casts a bigger net by providing three ways to increase past reserves: first, drew up to 50% of the long-term rates of return on investment of relevant assets; second, Net Investment Income and realised capital gains, directly attributable to relevant assets and received by the Government; and, third, a revised NII rule which excludes relevant assets in its computation. Including realised capital gains and real rates of return should increase what is available for spending on average, except for the years where there may be capital losses or large liabilities. However, the task of quantifying such terms is rendered more difficult by today’s unstable financial markets. For example, the real rate of return is difficult to predict, given the inherent volatility of price shifts due to inflation or deflation. To perform these calculations, one must presumably be able to precisely identify the value or amount of past reserves. Before we can ascertain the returns, however formulated, from past reserves, we need to determine the composition of past reserves, which may include financial assets such as investments and equities and physical assets such as buildings and land. The difficulty in calculating the NII from past reserves has been the lack of clarity regarding the size of our past reserves.”
“The rationale for creating the elected presidency was to provide a check against the untrammelled powers of cabinet government in a dominant party state. The Constitution was amended in 1991 to confer novel reactionary custodial powers of the executive genre upon the President to discharge a watchdog function over financial reserves. This pre-emptive strike sought to place shackles on a rogue government seeking short-term political gain by squandering the national coffers through giving vote-buying subsidies, precipitating financial ruination. The extremely onerous qualifications which presidential candidates must satisfy was meant to ensure that a President possesses both the competence and moral stature to oppose the Prime Minister’s decision in relation to transactions affecting past reserves. The removal of the President’s watchdog role over transactions described in Articles 22B, 22D and 148I was thus a fundamental change in the mechanisms of accountability; instead of the presidential checking function, transfers involving past reserves were to be protected by requiring the recipient body to give undertakings not to spend the transfers but to sequester this into its own pool of past reserves. Augmented past reserves could translate into augmented investment returns from past reserves which, in the case of SBGCs, would not be subject to the 50% cap on spending under the NII rule. This is quite a substantive change; I was surprised in studying Hansard to find that the 2004 Constitutional Amendments were not roundly debated. However, the Constitutional Amendment before us today is not a fundamental change to the constitutional rules regulating public spending. It does not entail the re-aligning of institutional checks.”
“It will not eat into the existing store of past Government reserves, but will affect the rate of how these past reserves will grow by determining the accretions to be added to the national kitty. The last Constitutional Amendment which affected our "past reserves" was adopted in 2004. This related to Articles 22B, 22D and 148I which effectively removed presidential oversight in relation to transfers from the Government or Fifth Schedule SBGCs to each other, which draw down on past reserves. Previously, the Elected President could withhold his assent or, to put it colloquially, "veto" these transactions. This power was removed, reducing the scope of presidential powers to safeguard past reserves. In 1994, a Constitutional Amendment also truncated the scope of presidential oversight over spending on defence and security measures which drew down on past reserves, under Article 151A. In relation to the 2004 amendments to Articles 22B, 22D and 148I, the presidential oversight was replaced by an alternative 'check'. For example, if a transferor statutory board proposes to transfer reserves to the Government or a government company, which draws down on its past reserves, the relevant Minister or Board of Directors must undertake in writing or by resolution not to spend this transfer; instead, they must add it to the past reserves of the Government or the transferee company. In this way, the past reserves of transferee Fifth Schedule SBGCs may be augmented by such transfers. Of course, the investment returns from the "past reserves" of Fifth Schedule SBGCs are not subject to the NII rule which only applies to the Government – these returns may be freely spent, subject only to the limits of prudence.”
“It effectively binds the Government’s hand through a system of mandated prudence and enforced savings; it restrains a profligate government while allowing a responsible one sufficient operational flexibility. I understand that over the past five years, an average of $2.8 billion from the NII was taken into the budget. Without this, the Government would have run a deficit. During the debate over the President’s Address in November 2006, the Prime Minister expressed the germ of the thinking behind this current Amendment to relax this rule of fiscal prudence. He highlighted that in years to come, there was a need to spend more to bolster the social safety net, while avoiding a dependent 'welfare state' mentality; this would address the growing income divide and the needs of a greying population. To ensure competitiveness and economic survivability, infrastructure investments needed to be funded. The public spending bill is going up and someone has to pay the piper. The NII rule sought to strike a balance between the legitimate claims of today’s generation with the need to steward resources for tomorrow’s generation of the unborn. The rule seeks to reconcile the exigencies of the current with the legacy, including the blessings of financial security, we hope to bestow upon future Singaporeans long after our earthly tenure. Fifty percent of NII is locked up to grow the past reserves for future benefit, while the Government may draw from the income stream of up to the other 50% of NII to fund contemporary needs. This current Amendment will not change this formula but it does redefine how to calculate the amount of investment returns which must be saved.”
“"Past reserves" are defined under Article 142(4) as those reserves which the Government does not accumulate during its current term of office. A minimum floor of 50% of the NII of each financial year derived from past government reserves will be ploughed back into the past reserves. This 'grows' or enlarges the past reserves, which are not static in size. This is a 'savings' rule which feeds the national piggy bank, kitty or nest-egg. Sir, the amendment before us relates to the Financial Provisions in Part XI, specifically Articles 142 and 144. In interpreting this section, one is not engaging in mere constitutional niceties but wading into constitutional complexities where constitutional lawyers fear to tread. Accountants and economists are more literate in adding up the numbers and making financial projections, and far better equipped to traverse this particular terrain. Nevertheless, this Amendment Bill does affect the Elected President’s constitutional duty to protect "past reserves" against wasteful fiscal expenditure. It will affect the rate at which past reserves will grow. I wish to raise a few concerns and points for clarifications in this respect. Sir, to set things in context, it is instructive to recall that prior to the introduction of the NII rule in 2001, there was no limit on what the Government could spend, in relation to investment income; it had a free hand in spending total investment returns both from past and current reserves. The NII rule was a rule of fiscal prudence or budgetary restraint, restraining the free hand of the Government in relation to investment income derived from past reserves.”
“Mr Deputy Speaker, Sir, this latest Constitutional Amendment Bill presented in the 43rd year of our nationhood is the 38th since Singapore attained Independence. It relates to the returns derived from the investment of our national reserves. In essence, it seeks to enable the Government to spend more in each year’s Budget on its various programmes. It does so by providing that the Government may spend a certain percentage of the total returns from "relevant assets" managed by the Government of Singapore Investment Corporation (GIC) and those assets owned by the Monetary Authority of Singapore (MAS), minus certain liabilities. This alters the formula currently set out under Article 142 of the Constitution, which relates to "Net Investment Income" or NII. Under the current legal framework established by Article 142(3), the Government is limited to spending only up to a ceiling of 50% of the NII of each financial year derived from the "past reserves" of Government. The current NII rule affects Government spending by placing a ceiling on what the Government may spend on two components of total investment returns on past reserves, namely, the investment income derived from interest and dividends paid out every year. It does not include other components like capital gains, for example. This Government expenditure limiting rule does not apply to "current reserves" of Government; neither does it extend to the past reserves of statutory boards or Government companies (SBGCs) listed in the Fifth Schedule of the Constitution such as the HDB and Temasek Holdings – their NII goes to their "current reserves" and may be freely spent.”
“Mr Deputy Speaker, Sir, I call for a division.”
“And we should be very careful when we tinker with the Constitution. The multi-racial situation in Singapore is very fragile. I lived through the riots of 1963/1964 and I remember 13th May in 1968. Just for clarification, because I may be misunderstood. Because of that, I am for the GRC system because I believe the GRC system is a system that will enshrine our multi-racial system in Singapore. I am not calling for GRC by-election in Jurong GRC and I believe the four Members, eminent Ministers and veteran backbenchers will serve the people well. Despite what the PM said –”
“We need to put aside all these, "Oh, here we are borrowing western models." We are not. Not all western models are good. I would be the first person to say that. But aside from that, as far as best practices are concerned, I think the debate has brought up something very useful. I was not aware that if, for example – God forbid – Hougang or Potong Pasir becomes vacant, that arrangements could be made to ensure that someone from the Workers' Party or the other party could take over from the Opposition MP, if his seat is vacated. If this is the policy, it is a good thing it was clarified, because that had me worried and concerned. I think I will just say that I do not think that the motion was extreme. I thought it was reasonable and, of course, in a democracy, the virtue of democracy is that everything is kept open-ended and there is always a hope that, even if your argument is rejected today, you might still accept it down the road. Sir, I think I will only say this: Mr Prime Minister, thank you. I was hoping that we would have a serious, rather than summary, argument, given your considered response, I am satisfied that you have actually addressed your mind very seriously to the issue. I may not agree with you and I do not yield on my arguments. But I will defer to the fact that you are an elected MP and you are the head of the Government. And, therefore, I thank you all for hearing this motion. I am sorry, I do not know the procedure for this. I would like to call for a division on the vote. I am not quite sure how to do it. But with that, thank you very much. Dr Loo Choon Yong : Sir, I would like to thank the PM for his very educational speech. I agree with him. We should use and do what works, and not just follow this and that.”
“Everybody was focused on Rwanda, everybody was ignoring Burundi. We both got along well probably because we went to the same university but he told me a lot of first-hand accounts of what he did. He was actually very undiplomatic as an Ambassador, because he spent all his weekends, risking his life, going to the countryside to dig up graves, to prove that there was, in fact, genocide going on. So, I am extremely realistic in appreciating the fact that, in multi-racial Singapore, we must constitutionally make provisions for minority MPs to be represented. As far as not following the practices of other countries, well, it is interesting that this is not entirely true. The way we construct any law, when you start drafting a new Bill, do you not look at foreign countries as a kind of model? I am not saying import it wholesale. I am totally against that. I think that models are either something to emulate or to reject because we do have to suit it to our local conditions and circumstances. If you look at the Malaysian model, for example, it actually provides for by-elections within 60 days, not three months. And we have, at times, adopted the Malaysian model. The clearest example was in 1995, when we were debating the Constitutional Tribunal. I remember the Prime Minister then said that the Malaysian model states that only the Cabinet can refer a constitutional question to the Constitutional Tribunal. One of the NMPs then had suggested that the President should have the right of initiation. Basically, he said, "Let us follow the Malaysian model." So, at the end of the day, when we look at any kind of model, we are trying to figure out what the merit of the argument is, we are not just borrowing things for the sake of borrowing.”
“You can dismiss the expertise, but the constitutional office is for me to do so. But anyway, the argument was this, and I think it was a little involved. But I suggested that the GRC scheme was potentially unconstitutional – potentially. I did not say it was, because it derogated from Article 12, the equal protection clause. I would say that, if you want to ensure minority legislative representation, that is a good enough reason to justify the exception to Article 12. But if you follow the logic of my argument, what I am then saying is because you have derogated from the fundamental liberties, when you construct your electoral system, it should comport with the principles. The principle is that of ensuring minority representation. So, my argument is that the GRC scheme is constitutional insofar as it serves the purposes of guaranteeing minority MPs. We may disagree as to how best to implement this but, clearly, I take the position that it is necessary. I disagree with the NCMP on this point. I think minority representation is important. I may not think it is implemented in the optimal fashion but seeing that Mdm Halimah brought up the story of Rwanda, that actually brought back memories for me. I remember I started teaching International Law and one of the first problems I had to deal with was genocide in Rwanda and the agony of International Law not working. We all know that if there is racism, it is just a few short steps to genocide. We have seen this in history time and time again. It is not historical, it is still current. So, I am pretty well versed with the fight between the Tutsis and Hutus. And actually in this recent trip to Africa, I met the American Ambassador, Bob Krueger, who was the Ambassador to Burundi.”
“I came across an interesting debate by the then Law Minister, E W Barker in 1967, and they were discussing referendums and elections in the context of arguing whether or not there should be a constitutional right to vote in our Constitution. And Mr Barker noted that after one referendum, the 1963 general elections, and the by-elections held after the Barisan Sosialis MPs had resigned, he said, "I feel that our people are a little tired and probably prefer to be left alone at least for several years." Again, I do not think that can be said of Singapore today. We have had debates about how, in a sense, a lot of electoral wards are won in an uncontested fashion and that something might be amiss in the system if all these seats are not regularly contested. Of course, it is not the Government's responsibility to ensure that opposition can fill the team, but it does indicate that we should be looking at the electoral system a little more closely. Now, aside from that, I was frankly astonished that two minority MPs had actually stood up and were not in support of what I thought was a way to ensure that the whole purpose of the GRC scheme would be secured, which is to ensure minority representation. I take the point that there is no specific quota. I take the point that if you lose one minority MP, you would still have a multi-racial Parliament. I might even concede the point that it would be highly unlikely to lose all of our minority MPs at one fell swoop. But I am not talking about Jurong GRC. I am talking about the long term. I am talking about the principles upon which we base our Constitution. Now, the argument I raised, yes, was a constitutional argument but you know that is my business, and it is my job. Why else am I in Parliament but to share my expertise?”
“I just do want to make certain points. In any of our suggestions, we were not suggesting the blind transposition of foreign models. I think Mr Hri Kumar said that. I think that was a cheap political shot because when we talked about it, I showed a range of models from 21 days to six months and, in a sense, we plumped for the moderate position. But aside from that, I do not see the relevance of his bringing up the US system, that is the Presidential system, I think it is entirely irrelevant. I think the three-month suggestion is a moderate compromise and the six-month suggestion is also fairly pragmatic. To the argument that by-elections might be an unwarranted cost, I do not think, and I still maintain that I do not think this is a valid consideration. It may have been in Singapore in the 1960s but, again, we have to look and see where Singapore is today, and I still maintain that we need to start focusing more on arguments based on principle. In 1966, when we were debating the Council of State, the proposed second Chamber, one of the arguments against it was that it would be far too expensive. In fact, one PAP MP said, "Our Republic, with its limited resources of income, cannot afford the luxury of a two-House system", and he estimated that if you have 21 counsellors and you pay them $500 per month allowance, that would be more than $100,000 a year. In the light of our debate on Ministerial salaries last year, I do not think this is problematical. So, I do not think costs should ever be an excuse for forgoing principle. Secondly, would it be a distraction? Well, again, let us look at things historically and get a sense of perspective.”
“I will not tell you how they did it but just to know that we tried to be engaged, we tried to be relevant, and not utopian. I remember too Dr Ng Eng Hen stood up and said it was a time bomb. And I thought to myself, "Oh, these politicians, they are having their wayang again", because I was not in the House yet and I was not used to politics, I suppose. So, in a sense, I tried to craft, together with Dr Loo, what we considered was a compromised solution – moderate. Mr Siew Kum Hong said it did not go as far as he liked. But I thought that, in a sense, if politics is the art of the possible, let us not try and reach too high. As far as the Constitution and electoral systems are concerned, I would be the first person to recognise that they themselves do not produce economic growth. My recent experience in Africa taught me one thing. Kenya and Singapore are about the same age. Kenya is 63, Singapore is 65. They are both former British colonies and, yet, when you go there, when you mention that you are a Singaporean, everybody's eyes light up. One Ethiopian said to me, "Oh, we are still on Earth. In terms of economic development, Singapore is on Mars.". So, there is a great sense of respect I find when I am in these overseas conferences. For Singapore, what it has accomplished, and I feel a sense of pride as a Singaporean as well. But if the whole purport of this motion was not just to rest on our laurels, not just to say good governors are enough, but to talk about good governors and good government – principles of government – as being in tandem, as, in a sense, producing as close a good system as possible. I do not propose to rehearse my arguments. I think they are there, they will be in Hansard, we can evaluate it.”
“Mr Deputy Speaker, Sir, I am not a utopian. I want to relate a little story. I was teaching a course on constitutional law in Asian societies two years ago in the University of Melbourne, I think it was 26th or 27th September 2006. On that day, I was talking about the Thai Constitution. How it was one of the most exemplary constitutions in the world, full of the most perfect checks and balances. That was in the AM. In the PM, through modern technology, someone sent me an SMS. What did it say, "Thai coup". I had to go in with egg on my face having praised the wonders of the latest 1997 Thai's people Constitution and it got me to thinking that, ultimately, no degree of constitutional perfectionism will bring about stability or economic growth, and I prefaced my entire speech with that point. But while I am not a utopian, I am not entirely without ideals. If you think about it, even the very moving of this motion, it must have been inspired by some degree of idealism. So I hope that even in my own growth, I am somewhat moderate in that sense. But I would also note that I have had said I hope that the debate would be conducted along non-partisan levels, and see what happens. The NCMP stands up. If you look at the constitutional office, it says that the office of the NCMP is to ensure, in perpetuity, that there is always an opposition voice in Parliament – a political partisan voice. And, so, she stands up and she calls for the dismantling of the GRCs. I have read the election manifesto of the Workers' Party. In fact, last year, we set it as the public law mid-term term essay. We wanted our public law students to analyse the Workers' Party's manifesto as a constitutional law examination.”
“Nothing can be achieved without people and nothing endures without institutions: good people and good institutions complement each other in building a constitutional state where a basic value is to remind those holding political power that they are public servants, not overlords. As the line dividing good and evil cuts through the heart of every human being, as Solzhenitsyn observed, we sometimes need rules to restrain our self-interest and worst excesses. Sir, I hope this House will support this motion. Question proposed. 3.52 pm”
“With filled rice bowls, and a Government ever-solicitous of our rice stockpile, the concern of citizens has shifted from needs to wants, from the tangible to intangible values. This situates today's motion of how to consolidate representative democracy in Singapore, by ensuring there are no gaps in representation, no democratic deficit. Democracy is not a mere institutional form, its success is predicated on a state of mind. Ideals, like constitutional democracy, must be written on the heart of governors and governed, if they are not to be paper tigers or parchment barriers. The reason and conscience of citizens need to be engaged on matters of state. We all hold shares in Singapore Incorporated and want it to do well and succeed but we also want the freedom to debate what success is, beyond economic indicators. All the more, as Singapore opens up, we should not abandon our bearings but be anchored by fundamental values of integrity, civility and decency as seek to realise the ideals of constitutional democracy and human rights. I hope the subject of the motion will not receive the "if it ain't broke, why fix it" response. Quite apart from the issue of who decides what is broken, I might say, if you can upgrade, if you have the will and wherewithal, why ever not? If there is a flaw in the institutional design, swift correction will inspire confidence in the responsive and responsible quality of government. We want not just a serviceable electoral system but one that resonates with our innate sense of justice. If this House decides that these proposed amendments are worth legislating, this would place the issue of by-elections beyond the shifting sands of political discretion upon solid rock of legally conditioned discretion. Politics is about power, Law tames power.”
“For example, if there are 20 minority MPs and some of these seats later became vacant, what quantitative threshold must be crossed before the situation becomes unacceptable? Say, if 25% of minority MP seats become vacated, leaving only 15 from the original 20. These things should not be left unspecified; the rule of law would be strengthened by specific legal rules. In addition, there is a related issue of the Constitution not specifying the number of minority MPs. If GRC team sizes keep ballooning upwards, from the prototypical three to the current ceiling of six, the net number of minority candidates that must be fielded falls. Something needs to be done to deal with this contingency. The law needs to be tightened up. Sir, the legal regulations by which we choose and legitimate our rulers is an issue of national importance, raised by Singaporeans, for Singaporeans to debate. We are a pragmatic, efficient and rational people, fluent in the language of "deliverables" and "KPIs"; but we are not devoid of soul nor higher ideals; "democracy" is not a foreign tongue to us in a cosmopolitan world. It is healthy to interrogate rationales for laws and processes at regular intervals, to test their cogency. This is part and parcel of authentic intellectual pluralism or viewpoint diversity and reflects the opening up of political space in Singapore, in the literal 'can hold demonstrations at Speakers' Corner' sense and a metaphorical 'dare to disagree' with political orthodoxy sense. Today's heresy can become tomorrow's orthodoxy. The Government holds no monopoly on wisdom while keeping its hand firmly on the rudder, it has shown a willingness to consult, hear and assess views and even slaughter sacred cows, if necessary.”
“It could be argued that the GRC, by providing for minority MPs, is a fulfilment of the Government's obligation under Article 152 to constantly care for the interests of racial and religious minorities. Because the GRC scheme under Article 39A serves a purpose under Article 152, read harmoniously, the GRC scheme in so far as it is tailored to serve the goal of minority representation is a justified exception to Article 12. The importance of the constitutional purpose of the GRC scheme is underscored by the fact that it is immunised from constitutional challenges by a notwithstanding clause, and there are only two notwithstanding clauses in the Constitution – the other one is found in Article 149(3) which exempts security laws like the ISA from a slew of fundamental constitutional liberties. And notwithstanding clauses should be rare, as they render constitutional provisions, which are presumptively the supreme law of the land, inoperative in specified instances. Given that the GRC scheme as a mechanism for guaranteeing minority representation is important enough to justify derogating from a fundamental liberty, how can there be no legal requirement to call a by-election to ensure that minorities in Parliament are at their maximum strength, where a minority GRC MP vacates his seat? Thus, the PEA should be amended to require by-elections when the GRC minority MP vacates his parliamentary seat. This is to ensure that the constitutional purpose, the raison d'etre for having GRCs, is not thwarted. It has been said before that the GRC scheme does not require a fixed number of minority MPs – this is too imprecise an arrangement.”
“Through the GRC scheme, what is made clear is that the voice of the minority representative should always be present at the parliamentary table, together with opposition and non-partisan voices in the form of the NCMP and NMP scheme. Representation in Singapore entails not ignoring minority concerns. Sir, the GRC scheme actually derogates from Article 12 of the Constitution which safeguards equality under the law. Section 42(1) of the PEA maintains the form of "one man one vote" while section 42(1A) states that a voter in a GRC “shall have one vote and may vote for any one group of candidates…”. While voters in GRCs and SMCs each get one vote, these differ in voting strength. The weight of your one vote depends on where you live, as your vote may potentially help elect one, four, five or six MPs. This is a form of discrimination based on geographical residence. Clearly, the disparity in individual voting power raises Article 12 equal protection concerns. The GRC scheme is, thus, prima facie unconstitutional. Indeed, its drafters recognised this by appending a notwithstanding clause embodied in Article 39A(3). This provides that even if the GRC scheme violates Article 12, it is exempt from its application and immunised from judicial challenge. A potentially unconstitutional scheme is thus rendered constitutional. Is this justifiable? Sir, equality is not an absolute value. All constitutional lawyers worth their salt know that, aside from the freedom of conscience, no liberty is absolute and can be qualified by compelling reasons. Indeed, Article 12(3) provides that the equality clause is restricted as it does not invalidate personal and religious laws.”