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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Every one of 214 lines we hold for Thio Li-ann, in date order, each linked to its source. Free to read, in full, without an account. Page 3 of 5.
“I am happy to report that schemes protecting the rights of minorities to participate effectively in public life and in national and local decision-making accord with best international practices, as set out in the 1992 UN Declaration on the Right of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities. Nonetheless, the GRC scheme further complicates the idea of representative democracy in Singapore. Who does an MP represent? This is no longer self-evident. Traditionally, one would assume that an MP represents his constituency. However, this is not entirely accurate, given the loyalty MPs owe to their political parties. The ruling party's view of representation is that an MP is no mere delegate who simply mouths his constituents’ views. An MP is chosen for his "mature judgment" and "enlightened conscience." This view is commonly associated with Edmund Burke, the great British MP and philosopher. He considered that while an MP should serve with "industry" and exercise personal "judgment", that MP should maintain the "closest correspondence" with his constituents and give their concerns close attention. Prime Minister Lee apparently is of the same mind as Burke. In 2001, he described the Singapore brand of democracy as one "in which the people elect the Government and the Government ... governs as it judges wise and best" and stands up to defend its judgment. An elected MP has to represent his constituents in tending to municipal affairs; as an MP of Singapore, he must be concerned with national affairs; as a party member, he must toe the party line. Now, if this MP happens to be the minority MP, he has to carry the concerns of his particular minority community as well. All these have to be balanced.”
“That is why Constitutions place certain things like entrenched individual rights beyond the reach of majority will. Our Constitution was amended to guarantee minority legislative representation, to ensure all colours of the CMIO rainbow were present in Parliament. This appreciates that democracy must be something more than two wolves and one lamb voting on what to have for dinner even though government authority depends on retaining the confidence of the majority of MPs. The GRC scheme would give racial minorities access to political influence, which the Westminster model of “one man one vote” did not. The thinking behind the GRC scheme was that race played a part in politics and affected voter preference, that younger voters were unaware of the need “to return a racially balanced slate of candidates”. The GRC scheme would correct minority under-representation through constitutionally entrenching the right for all communities to always be represented in Parliament. To run GRC teams, political parties have to practise a moderate multi-racial brand of politics. Race thus became an overt factor in structuring the electoral process, to ensure a multi-racial Parliament. One can agree that the principle of minority protection to guarantee minority MPs is essential, while differing over the best means of implementing the principle. I might add that, as a doctoral student at Cambridge, I spent many wearying hours huddled over dusty legal tomes with a comforting chocolate croissant and instant Nescafe coffee mix, studying how minorities were protected, from the Middle Ages to our Modern Age.”
“Race accentuates division and thus was to be muted to advance the goal of fashioning society on the basis of a multi-racial, secular state where none could say "satu bangsa, satu bahasa, satu ugama." Times have changed. The GRC scheme makes "race" an explicit component in the architectural design of the electoral system. Minorities do not merely want equal treatment or to be assimilated into mainstream society; they want their distinct identity protected. The task became to allow them space to live separate lives while sharing in the common life of the nation. As mindsets shifted in late-1980 Singapore, similar rumblings were apparent on the international scene in the post-Berlin Wall era, when the end of the Cold War inaugurated the flurry of many small hot wars. Cautionary tales were drawn from the phenomenon of “balkanisation”, postmodern tribalism and resurgent ethnic conflict. Ethnicity could no longer be ignored, and the new imperative was to protect not only individuals rights but the rights of ethnic groups by adopting special measures for their distinct needs. Democracy is often equated with majority rule, but Singapore has moved away from an unqualified majoritarian democracy based on the first-past-the-post system of legislative representation: this is the “winner takes it all the loser has to fall” model: it is simple and it is plain, why should we complain? Well, because the idea of democracy as majority rule is a “counting heads” model which is a limited decision-making model. For example, moral questions cannot be solved by mathematics. In addition, if majorities oppress minorities, social conflict beckons.”
“He endorsed the Commission’s view that "in a democracy, there can be no distinction between majority rights and minority rights", only the "equality of rights, the same rights for all". He thought it was "short-sighted and suicidal" for minorities to clamour for special rights as majorities might make similar claims. Minorities should "stop thinking of themselves as minorities" and "stop acting politically as minorities". Success would be achieved when "a minority is no longer conscious of the fact that it is a minority". The only minority-specific proposal the Government adopted then was the Presidential Council of Minority Rights which was supposed to vet legislation to prevent differentiating measures. This mainly provided psychological assurance that no group was excluded from the top institutions of power. The Government then specifically rejected early proposals for the legislative representation of minorities. These included schemes to allow minorities to directly elect minority representatives to a second chamber and proportional representation. The fear was that these schemes would accentuate communalism by promoting race-based voting and would produce weak coalition governments. In a proportional representation system, race-based groups were almost certain to get some seats in Parliament, if indeed race-based voting was in fact practised. The Government preferred to stick with the first-past-the-post system organised around Single Member Constituencies. The key point was that race was not to be a factor which shaped the law governing elections. The electoral system would be "non-racial" or colour-blind.”
“The Commission’s philosophical approach towards minorities stands in stark contrast with the rationale underlying the GRC scheme which marks a paradigm shift, a "sea-change into something rich and strange". Philosophy is not the exclusive language of the Ivory Tower as ideas have consequences and philosophy shapes both law and politics. Philosophy has a more practical dialect and, in Singapore then, the philosophy towards minorities actually paralleled the prevalent approach in international human rights law in the 1960s. This focused on the rights of individuals and not group rights, as there was a fear that groups would start demanding greater rights and autonomy and threaten state unity. The memory of Hitler inciting the German minority in North Czechoslovakia to claim maltreatment before the League of Nations, allowing Hitler to sweep in as saviour of oppressed Germans abroad, was still fresh. When the late Minister for Foreign Affairs S Rajaratnam debated the Commission report in this House in March 1967, he spoke from the stream of this philosophy: that if the rights of all individuals are protected, the rights of all members of minority groups would be protected, ergo, the interests of minority groups would be secured, without needing minority rights. This was influenced by the melting pot theory, that different races would eventually assimilate and adopt a homogenous civic identity as citizens united by shared political ideals, rather than divided by primordial blood-ties of race or language. Mr Rajaratnam noted that the Commission made "very little reference" to specific minorities' questions. Indeed, the bulk of the 86 paragraphs in the 37-page Report related to the fundamental freedoms of citizens in general.”
“Article 39A(1) of the Constitution states that the GRC scheme was designed “to ensure the representation in Parliament” of members of the minority communities. No specific numbers are stipulated, but section 8(3) of the Parliamentary Elections Act provides for approximate race ratios reflecting the factual sizes of minority communities, ie, 60% of the number of minority GRC MPs must be persons belonging to the Malay community while the remaining 40% must belong to "the Indian or other minority communities." Gandhi once said, "A country should be judged on the basis of how it treats its minorities." Sir, Article 152 of the Constitution identifies "racial and religious minorities" as those groups which the Government is obliged to care for, in addition to recognising the indigenous status of Malays. Singapore has adopted an interesting approach to protecting minorities who, by dint of their numbers, might find themselves perpetually in a numerical minority and shut off from the corridors of power and representation. Sir, I have just completed a book project celebrating 40 Years of the Singapore Constitution and sent off a manuscript entitled The Evolution of a Revolution to my publishers in England. In my research, I was struck by how solicitous we have been over the question of minorities since Independence. Indeed, in the throes of young nationhood, the Prime Minister considered it important enough in December 1965 to appoint Chief Justice Wee Chong Jin to head a constitutional commission. This was tasked with addressing long-standing minority concerns and to consider "how the rights of the racial, linguistic and religious minorities can be adequately safeguarded in the Constitution".”
“To be fair rather than expedient, law must consider and address these hypothetical issues on a principled basis. The current rationale for not holding by-elections within definite time periods when a GRC team loses a member, caters to the concern of GRC MPs not to lose their seats. This is lop-sided. A more balanced approach would consider both the concerns of MPs and voters. After all, voters in electing GRC teams forgo some degree of choice as they might like five out of six MPs while disliking one who fails to represent their views. However, they cannot pick and choose, as it is a set menu rather than a la carte. So, it is a question of give and take, and both sides should share the load. Rather than the "all stand together all fall together" approach to GRCs and by-elections, a more calibrated approach is proposed. By-elections should be called within three months only when half or more GRC MPs vacate their seats, that is, two for a four-man team, and three for a five- and six-man team. The working assumption is that a team at half-strength cannot adequately manage a GRC, which hurts the voters’ interests. To prevent voter alienation, they are given some say in having a new, full GRC team. As Thomas Jefferson noted, “The government is the strongest of which every man feels himself a part.” By-elections can strengthen a sense of stake-holding in matters of government. The third situation is where the GRC team MP who vacates his parliamentary seat happens to be the designated minority MP. Sir, if by-elections are not held within a time certain, or not at all, which is now legally permissible, this would defeat the constitutional purpose for having GRCs in the first place.”
“Life is a fragile thing, no one knows for sure how many days we have left; what if there is a tragic plane crash or something and our six-member GRC loses two, three, up to five members within a short timeframe? Under current law, no GRC by-elections may be called unless all members vacate their seat. Technically, could this not encompass a situation where a six-person GRC is manned only by one or two MPs, without legal need to call a by-election? If the last man standing does not resign, a by-election writ cannot be issued. Something is awry. This cannot be the original intent, or is it? The current system is unbalanced because the primary reason for not mandating by-elections when a GRC team is minus one, or minus some, is that GRC members should not be held hostage when a dissenting member in their ranks threatens to vacate his seat and provoke a by-election. This only looks at the perspective of GRC MPs in one particular situation. Let me offer another problematic hypothetical: let us say, an opposition party wins a GRC and then loses a team member. What if that opposition party wants a by-election because it desires to have a full team of MPs to serve constituents and to occupy their parliamentary seats but the Government declines to call one? Should they have absolute power in this case? Further, the failure to call by-elections when a GRC team loses a member may be to discount the wishes of the electorate to live in a ward serviced by a full team of MPs, even if the remaining MPs willingly shoulder the additional workload. What if a GRC team wins marginally, performs badly and then some team members quit? Having a by-election requirement is one way of giving the people the opportunity to oust an incompetent team, rather than suffer them until general elections.”
“Sir, from my short sojourn in Parliament, I have come to better appreciate what hard work it is to be an MP; elected MPs have to tend to their constituents' concerns, tussle the bureaucrats, scrutinise the Bills, sit on the Committees, attend public functions; this involves a great sacrifice of time, effort and privacy. Diligent MPs embody the finest ideals of public service. MPs have punishing schedules. Although the Constitution provides for unelected NCMPs and NMPs, the primacy of the elected MP remains. They play an important role beyond just making up the numbers to form the Government. Real power resides in elected MPs, unlike unelected MPs. Elected MPs have the power to vote on the Supply Bills or motions of no confidence which can end a government. In 1997, when the Government decided to terminate legislative assistant allowances for NMPs and NCMPs, the reason was, I quote, "because their duties are not as heavy and onerous as those of an elected MP. They have no constituencies to look after and they do not represent any constituent." Given the onerous burden of MPs and the importance of their constitutional role, do we really want them to take on more work and add to their many serious responsibilities? Five MPs may be able to carry the work of six, but there will be a strain rather than peak performance; I do not doubt their dedication, but we are all mortal and finite beings, and fatigue will set in at some stage. I am sure we all agree that Singapore citizens deserve the best of their representatives, with a full house and all hands on deck. Furthermore, what if more than one GRC MP vacates his seat?”
“This is an important consideration as the reason for increasing GRC team sizes from three to four and later six. This has nothing to do with the constitutional reason of guaranteeing minority representation. Instead, it was argued that flexibility was needed to deal with GRCs with growing populations; the intent was to keep the GRC intact rather than breaking it up into smaller wards, while allowing it to be adequately serviced by an additional MP and, also, to reap greater economies of scale in town council management. The size of a constituency is proportional to the MP's ability to effectively represent his constituents; size matters, geography and demography count. If a GRC becomes too large, an MP or group of MPs may not be able to effectively represent and administer it. In a nutshell, expanding GRC team sizes was rationalised on the basis that more MPs were needed to serve larger wards with greater number of constituents, to ensure optimal service and sufficient human resources. If you need larger teams to run larger GRCs, it is inconsistent not to require by-elections within a set period where a vacancy depletes team strength. When a GRC team loses a member, the current practice is for the remaining GRC MPs to cover the duties of their former colleague. This increases their burden. The preference is for stability, rather than holding by-elections, to give voters a chance to exercise their democratic rights, to reaffirm the incumbent team, or to choose another one; at any rate, not holding by-elections may compromise the right of GRC residents to be represented by a full slate of MPs.”
“The rationale was that this was to be fair to other MPs in the GRC, to prevent them from being held to ransom by an MP who might threaten to resign for whatever reason. Should such a situation arise, this would denote a breakdown in party discipline. A maverick MP faces the sanction of being dropped from the team come the next elections, which promotes fidelity to the party. Nonetheless, if a GRC team MP threatens to resign his seat, let him. By-elections will allow that team to replace that MP with a team player. Some may argue that as a "package deal", GRC MPs stand together and should fall together as a team. Thus, when a GRC loses one or more members, a by-election should be called; since a GRC MP enjoys the security in numbers when contesting elections as a team, he should take the risk of losing his seat when the team is no more. A practical counter-reason may be that a six-man GRC can still function minus a member. The voters elected that team, minus one, and that team can still function by the remaining members taking on a heavier load. However, when does a team stop being a team? When does teamwork become unacceptably impaired owing to reduced numbers? If you went to see a Beatles concert, it might be bearable if Ringo was missing from the line-up, but would it be the Beatles if John or Paul were absent? One of my favourite rock groups is the Bangles, the female version of the Beatles. I had occasion to see them in concert down under but only three of the original four Bangles were touring, three out of four were good, but four out of four would have been excellent. Since service excellence is a Singapore aspiration, voters from a GRC ward should be served by a fully-staffed rather than short-handed team.”
“If a PAP MP from a SMC vacates his seat, perhaps the PAP MP in the neighbouring ward can take over his functions, so, no need to call by-elections, if practicalities are our sole consideration. However, this would not be the case for Hougang or Potong Pasir. Should an opposition ward suddenly find itself without its MP, the law does not require the Government to call by-elections until the next general elections. As a matter of basic fairness, the law should not favour one political reality. It should provide for all contingencies, to ensure that voters in a ward do not suffer "MP-lessness" by being denied parliamentary representation. In proportional representation or "party list" systems, by-elections are redundant as the next person on the "list" sharing the same party affiliation as the vacating MP becomes the new MP. But this is not our system. Formally, we vote for the person, not the party. Therefore, the PEA should be amended to require holding by-elections within three months after a SMC seat is vacated. This is fair to both sides and promotes certainty. The second situation relates to Multi-Member Constituencies, or GRCs, which are contested as teams, even though team members act individually and do not vote as a bloc within Parliament. Of course, MPs are subject to party discipline via the Whip. The motion recommends that where half or more of GRC MPs vacate their seats, by-elections should be called within three months. In explaining why no by-election was to be held in Jalan Besar in 1999, the official reply was that it was not a legal requirement to hold a by-election when one team member resigns.”
“Even if the Government loses a by-election, this is not a total loss; by-elections are a good barometer for grassroots sentiment and can be a wake-up call, an important feedback mechanism; but unlike the meet-the-people sessions or REACH, by-elections pack a punch in calling MPs to account. This strengthens representative democracy. The Government can take responsive steps to "sweeten" the ground before general elections. It is healthy to have a variety of channels, including by-elections, for the accurate communication of local public opinion. Sir, let me turn to the three situations the motion identifies and explain the logic behind why by-elections should be called in these instances. First, in relation to Single Member Constituencies, or SMCs. In times past, the electoral system was exclusively based on SMCs, contested on a first-past-the-post system. When GRCs were introduced in 1988, only 50% of the total number of MPs could come from GRC wards. There were 42 SMCs to ensure that opposition parties unable to field multi-racial teams would not be shut out from electoral contests. In 1988, there were 13 three-member GRC teams, yielding 39 MPs. In 1991, the law reduced the number of SMCs to 21 and, today, the Parliamentary Elections Act only requires a minimum of eight SMC seats to ensure SMCs do not go the way of the dinosaur. Voters pick candidates whom they feel can represent their interests. If a SMC seat is vacated – it leaves that ward without representation. There is no one to "take over" the MP's functions, not only as representative of constituents but as town council Chairman, I believe. This is a clear lacuna in the law.”
“Sir, while elections are free, we eventually pay in the results. As by-elections differ from general elections in having little influence on general governance, voters may feel freer to vote against the ruling government and to give the incumbent a bloody nose for whatever political reasons. However, a bloody nose is not a broken back. If the government lost a by-election today, its formal status would not be affected. However, the second psychological effect of the government losing a GRC might parallel the significance of Mr J B Jeyaretnam winning the 1981 Anson by-election and breaching the PAP's parliamentary monopoly. Many a keyboard would be furiously pounded in speculating about future voting trends. Critics have argued that the GRC scheme and expanding team sizes are a strategy to "fix" the opposition unable to muster sufficient troops to contest GRC wards. In October 1996, then Prime Minister Mr Goh Chok Tong responded by pointing out that GRCs were "objectively", even "scientifically neutral". The issue was who could produce a better team, whether for singles or doubles badminton. Should an opposition party win a GRC, whether in a general or by-election, it would prove Mr Goh's thesis that the GRC scheme is neutral and, indeed, a double-edged sword as six seats may be lost in one fell swoop. Voters may either punish or reward the party in power in by-elections, which is their prerogative. They should be trusted to vote responsibly, as befits a maturing democracy. We need to look at the principle of the thing, which is that it would be undemocratic to deny voters their voice through their representative in Parliament. Why not allow a team of sitting MPs to replenish their numbers and, also, to earn a mid-term mandate?”
“Sir, Thomas Jefferson once stated that each generation should have a "revolution", not in the sense of a violent break from the past, as we may understand it, but a thoughtful recurrence to fundamental principles of government, to ratify what is good and to modify what needs change. In this spirit, I hope the Government will seriously, rather than summarily, revisit the issues raised in this motion. Sir, I am sensible of the irony of having two unelected MPs sponsor a motion concerning elected MPs, as public interest over by-elections has been sparked following the loss of a Jurong GRC MP last month. Politically speaking, what can be more fundamental to democracy than ensuring effective representation? Dr Loo and I believe the law regulating by-elections is important to Singaporeans and that this national issue should be debated before this august Chamber, this August. After all, elections have come to symbolise "democracy" and voting is the periodic exercise of that slice of sovereignty a citizen wields, to remind governors they hold power on trust and to dissuade authoritarian hubris. It is appropriate for non-partisan MPs to bring this motion, as a partisan MP wanting to debate by-elections law might be accused of political opportunism. This matter should transcend party politics. In some jurisdictions, winning a by-election can be the first step in the long march to high political office; in others, losing a by-election in a safe seat can trigger off a motion of no confidence in the government. There is no such risk in Singapore today, given the Government's strong electoral mandate. As general elections are far off, the matter can be discussed with sober rationality, with a view to the long-term good rather than short-term partisan gain.”
“Some argue that by-elections are a waste of time and cost, a distraction or luxury we can ill afford; in multi-member constituencies especially, other team members can stand in or 'cover' for their erstwhile colleague. However, in single member wards, a glaring gap is evident when a parliamentary seat is vacated. Without by-elections, electors are left without representation in Parliament. This is undesirable. In addition, we are thankfully not a poor country. I do not think cost can be said to be an issue, as far poorer countries regularly hold by-elections. Sir, it is important for Parliament, in debating by-elections legislation, to examine the spirit behind the law, otherwise we might miss the wood for the trees if the purpose of rules are glossed over. As Russian Nobel Prize laureate Alexander Solzhenitsyn stated in his 1978 address at Harvard University: "A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society." Thus, legalism begets "an atmosphere of moral mediocrity, paralysing man's noblest impulses”. In other words, law and justice have to be in conversation with each other, because, alone, one may be too harsh; and the other, too redolent of utopian naivete. I note that Mr Charles Chong, in an interview with Today, considered it "worthwhile" to go through the arguments again, since many had forgotten them or a younger generation would be unfamiliar with reasons given sometime in the last century. However, I hope this debate transcends the mere rehearsal of old arguments.”
“Would it be unwise to trust in the audacity of hoping politicians will resist political temptations and that fair play will triumph? I fear it may, I fear it might, I hope we can put things to right. I think the best legal tool, is to adopt a clear rule. Sir, in urging the Parliamentary Elections Act be amended to provide a time-frame for calling by-elections, I am not calling for an absence of discretion but the regulation of discretion, consistent with a rule of law based state. Absolute discretion too easily degenerates into arbitrary abuse without oversight. The rule of law is served where there are known precise rules able to guide future conduct. A political party able to unilaterally decide when to have an election is advantaged; clear rules help level the electoral playing field. In suggesting that by-elections be called within three months, Singapore would be following best practices, to ensure citizens do not have to wait too long to choose their representatives. However, if a seat becomes vacant when general elections are due within six months, the recommendation is that no by-election need be called, to avoid having two elections within a short time period. In our legal system, the rule of law is pivotal to sustaining a sound commercial environment. It seems incongruent not to have a precise rule regulating the calling of by-elections which can shape the composition of this very House, within a fixed period, to promote certainty. It may be expedient not to have such a requirement, but does this not allow pragmatism to trump principle, just once too often? Our Court of Appeal in defining the rule of law declared that "all power has legal limits". Time limits are a form of legal limits.”
“This may range from six months (Canada) to four months (Antigua) to three months (Zambia and Gambia) to two months (Kenya and Malaysia) to 21 days (New Zealand). Other Constitutions like the Bahamas do not specify time limits but call for election writs be issued "as soon as is practicable". Expediency alone cannot excuse the failure to hold by-elections. Elsewhere, a political convention drawn from past practice provides guidance in the absence of legal rules. In the United Kingdom, a writ of election will usually be executed within three months. In the Australian Commonwealth, the guiding principle is that by-elections should be held "as early as possible", so electors are not left without representation any longer than necessary. Sir, there is no discernible consistent convention from an examination of Singapore practice. The last by-election was called in 1992 for Marine Parade and the ostensible reason was to bring in new talent. Varied reasons for not calling by-elections included the promise to call early general elections, the need to focus on economic recovery, or to await pending laws on town councils. Sir, I believe Mr Chiam See Tong in 1986 argued that by-elections should be held before a reasonable time had elapsed; the ministerial reply was that this was a question of government discretion. Should principle or convenience determine whether and when by-elections are called? Sir, the question before us is whether the calling of by-elections should be governed by a rules-based regime, or left to unconditioned discretion. Should we continue to confide absolute discretion to our political leaders, trusting in their perspicacity, their sagacity?”
“In 1961-1962, the PAP only had a majority of one in the legislative assembly; in 1962-1963, one PAP member died, resulting in a tie between 25 PAP and 25 Opposition assemblymen. In such situations, by-election results can determine the fortunes of a political party, for good or ill. Sir, under the current legal framework – there is no constitutional or statutory requirement to call by-elections within a specified time period, or at all, when a parliamentary seat of any elected MP is vacated. The regulating statute, the Parliamentary Elections Act (or PEA) was adopted pursuant to Article 49(1) of the Constitution. Section 24(1) of the PEA provides that the President shall issue writs of election, when he thinks it "expedient". In actual fact, following Westminster convention which Article 21(1) of the Constitution codifies, the President is acting on the advice of Cabinet in this matter. Thus, the Cabinet alone decides whether to call or not to call a by-election. If desired, the Cabinet can keep a vacant seat vacant until the next General Elections. This is clear law. The motion, then, is not about the correct interpretation of the law. The law is clear – but we should not succumb to bare legalism and stop here. Rather, this motion calls for a reexamination of the content of the law, to see if any legal gaps need filling or to explore ways of strengthening existing processes to better vindicate the practice of representative democracy. Comparatively, parliamentary systems have adopted various approaches towards regulating by-elections. Some constitutions require by-elections to be held within a specified time period after a parliamentary seat is determined vacated.”
“As first Prime Minister Lee observed when debating the NCMP scheme in 1984, the Chinese Emperor’s mandate to rule did not rest on the "counting of heads" but "on the chopping of heads". Thankfully, we have disavowed this cultural model. From this Republic's inception, democracy was endorsed as a principle of government, a safeguard against communism. Our Constitution today, based on the Westminster model of parliamentary government, is a foreign export with home-grown modifications, such as multi-member constituencies and unelected, non-partisan MPs. Sir, this motion draws attention to when by-elections must be held, to fill vacant parliamentary seats between general elections. Historically speaking, Singapore used to have a by-elections clause in its Constitution, the genesis of which dates back to the time we were part of the Malaysian Federation. The Malaysian government required that the federal constitutional clause on by-elections be incorporated into the Singapore State Constitution, to harmonise Singapore law with that of the other federal states. Singapore protested, to no avail. After our traumatic exodus from the Federation, Parliament amended the Constitution, revoked the Malaysian provision on by-elections and reverted back to the previous state of affairs under the 1958 State Constitution which "did not contain an injunction of holding a by-election within three months". Prime Minister Lee then stated that given Singapore's experience of elections and government, the limitation imposed by the Malaysian clause should no longer apply. Undoubtedly, this view was shaped by the PAP government's tenuous hold on power then.”
“Today, this is a modern city. Ten years from now, this will be a metropolis. Never fear." Sir, he made good on this prophetic promise; this Government has delivered the socio-economic goods. We, the Beneficiaries, are grateful. Law and the finest constitutional devices that mind of man can conceive of and hand of man can create have their limits. We cannot legislate honest, capable governors into existence. As a political system, democracy alone cannot engender social resilience and economic success. It is not an ultimate value. Indeed, Winston Churchill famously quipped, "Democracy is the worst form of government, except for all the others." However, democracy is better than autocracy, where the people cannot remove a despotic, corrupt and inefficient government. A functioning democracy has "the capacity for self-correction". Karl Popper in The Open Society and its Enemies said: "In a democracy, the rulers can be dismissed by the ruled without bloodshed." Despite its occidental roots, we value the role democracy plays in good government; article 2 of the ASEAN Charter espouses the promotion of human rights, social justice, rule of law, good governance and "the principles of democracy and constitutional government". The 1991 shared values White Paper states that "not everything Asian is good, just as not everything Western is bad"; among the "Western" values Singapore adopted are "parliamentary democracy and the rule of law". This approach to foreign models is sensible – they may provide useful models to emulate or to reject. We must be discerning: what counts is not the origins of an idea but its merits.”
“Sir, the theory and practice of democracy in Singapore will shape how we think through the question of what type of rules should regulate by-elections. Today, democracy has the quality of an almost sacred creed whose central tenet is that government authority is based on the will of the people, as article 21 of the Universal Declaration of Human Rights declares. Elections as a method for choosing government are a sacred ritual although democracy is not exhausted by elections; the participation of citizens in public policy-making in between elections is also an important democratic indicator. Democracy as ideology is easy enough to grasp although it does not prescribe a uniform 'off the rack' solution in terms of implementation; the institutional expression of democracy must be tailor-made to suit the relevant local conditions of a country; you must put on the trousers that fit you. However, there are universal core democratic principles like popular accountability, effective representation and legitimacy, which we should take to heart. For example, when we tailor-make a suit, we should ask: who wears the suit? In a democracy, this must be the people, as the ultimate source of political authority. The People's representatives derive their authority and legitimacy from voters and are accountable to them. However, democracy is not a panacea for all social ills or a blueprint for surefire economic success. Economic development is not born of pretty speeches. This needs both principles of good government as well as good governors. Providentially, Singapore has enjoyed good governance. On 12th September 1965, when newborn Singapore was barely out of her swaddling clothes, Prime Minister Lee Kuan Yew said: "Over 100 years ago, this was a mud-flat, swamp.”
“Mr Speaker, Sir, I beg to move, That this House affirms the importance of representative democracy and calls on the Government to fine-tune the electoral system by introducing amendments to the Parliamentary Elections Act such that (a) a writ for by-election shall be issued in the event (i) a Member of a Group Representation Constituency (GRC) belonging to a minority community within the terms of section 8A(1) of the Act vacates his or her seat for any reason; (ii) half or more of the Members elected on a group basis in relation to a GRC vacate their seats for any reason; or (iii) a Member of a single member constituency vacates his or her seat for any reason; and (b) all by-elections shall be called within three months from the date of vacancy unless the parliamentary term is due to expire within six months from the date of vacancy. Sir, I am recently come out of Africa where I attended a conference on "Constitutional Democracy in Africa in the 21st century". The Kenyan President and Prime Minister graced the opening ceremony. Aside from the spirited dancing and ululating by a native choir, I was struck by the lyrics of the official conference theme song. Voices rose and filled the towering Kenyatta International Conference Centre, singing for "prosperity, peace and unity", the goal of many former colonies in Africa and Asia, an aspiration not always realised. The chorus arrested my attention, as it spoke to the very heart of today's motion which addresses the law governing by-elections in Singapore. The choir chimed repeatedly, "We must, we must, embrace democracy and the rule of law." Charming lyrics I thought, perhaps the Government can commission a national song along these lines celebrating shared political values.”
“However, this obligation to take reasonable precautions during sexual activity is not imposed on a person who has AIDS or HIV and knows this! If the intention of the proposed amendment to section 23 is to prevent the spread of AIDS/HIV, should not the obligation to take reasonable precautions during sexual activity also be imposed on persons known to be infected with AIDS/HIV? Sir, under section 24(2), a person who knows he has AIDS/HIV infection and commits certain acts, such as donating blood at a blood bank in Singapore, will be subject to more severe penalties. This is correct as such an Act would be the height of both callousness and narcissistic irresponsibility. Imprisonment has been increased from two to 10 years. A person is deemed to know he has AIDS if the positive medical test results have been communicated to him. Sir, what about during the period between taking the tests and awaiting the results - does any penalty apply to a person if he donates blood or performs any act likely to transmit or spread AIDS/HIV during the interim period? It would be consistent for the law to require responsible conduct during this period as well, given the paramount importance of ensuring the safety and integrity of blood stocks for the good of the entire community. Sir, I hope the Minister can address these queries and concerns. With that, I support the Bill. 3.18 pm”
“If the conditions for section 23(2)(b) are satisfied, if an "at risk" person ascertains he does not have AIDS/HIV, does this person have to adhere to the section 23(2)(a) requirement to notify and obtain the consent of his sexual partner? In addition, are sections 23(2)(a) and 23(2)(c) to be read disjunctively or together? In other words, if a person duly notifies his sexual partner of the relevant risk under section 23(2)(a), is that person still obliged to take reasonable precautions during sexual activity as section 23(2)(c) requires? In short, could the Minister clarify whether all three requirements in section 23(2)(a), (b) and (c) must be met or just two of these conditions and in which combination? In relation to section 23(7), "Sexual activity" is defined in clauses (a) and (b). Would it not be prudent, rather than to use the phrase "sexual activity means" to re-word it to "sexual activity" includes the acts described in clauses (a) and (b)? This is because clauses (a) and (b) may be under-inclusive in failing to capture other forms of sexual activity which conduces to transmitting infectious diseases. Sir, if my reading is correct, there appears to be differentiated duties imposed on persons who know they have AIDS/HIV and those who reasonably believe they potentially have AIDS/HIV. A person under section 23(2)(c), who reasonably believes he is at risk of contracting AIDS/HIV, is obliged to inform his sexual partner of the risk of contracting AIDS/ HIV from him prior to the sexual activity taking place; also, during the sexual activity, he must take reasonable precautions to ensure his partner is not exposed to the risk of contracting AIDS/ HIV from him.”
“We certainly would not do so in relation to SARS, given the recent memory of the heavy toll it exacted from our country just a few years ago. Sir, section 23(1) provides that if an infected person informs his potential sexual partner of the possibilities of contracting AIDS/HIV from him, and if the informed person accepts this risk, the infected person cannot be charged with a section 23 offence. In other words, the volitional assent of the other person to this risk would mean the elements of the offence cannot be made out. It is not a strict liability offence. The question is, what kind of evidence will be accepted to show whether the other person has, without duress and with due consideration, voluntarily accepted the risk? What if both parties present conflicting evidential accounts? In addition, what if a person who knows he has AIDS only represents to the other person that he might have AIDS? Does the voluntary acceptance of risk turn on the nature and accuracy of the information given - it may be less risky to engage in sexual activity with someone who might have AIDS as opposed to someone who definitely has AIDS. How will such misrepresentation be treated? Section 23(2)(a) requires someone at risk of contracting AIDS to inform and obtain consent from his partner prior to sexual activity. Section 23(2)(b) provides that if a "at risk" person has medically ascertained he does not have AIDS/HIV at the time of the sexual activity, he commits no offence by engaging in sexual activity. This is, presumably, because he will now have an objective basis to know he does not have AIDS/HIV, assuming the accuracy of medical tests and their ability to effectively detect the virus, which may take some time to fully manifest.”
“Those who protest otherwise are more interested in protecting lifestyle than life. Could the Minister clarify whether using prophylactics alone would constitute a reasonable precaution? The regulation of risky sexual behaviour and the dangers of sexually-transmitted diseases and AIDS must go hand in hand with educative measures by the Government and social groups to discourage such irresponsible behaviour; promiscuity should never be socially affirmed. The only effective protection against such diseases is abstinence or monogamy, fidelity within marriages, though this will be mocked as unrealistic or repressive in today's declining moral climate. As free moral agents, we bear the consequences of our actions, whether wise or foolish. This Act is realistic in assigning duties to infected or 'at risk' persons to notify their sexual partners and allow them to decline to engage in risky sexual activity. Sir, this law imposes sanctions for lying about being healthy or not taking necessary measures to ascertain one's health status. It sanctions HIV-positive individuals who intentionally or recklessly do not inform their partners about their health status. The Government has an obligation to punish criminal behaviour; in the case of a promiscuous person with AIDS having multiple sex partners, the perpetrator may be responsible for the eventual deaths of dozens, if not more, men and women. Justice will not be served, if efforts are not taken to deter such deplorably irresponsible, anti-social behaviour. We should not place the privacy concerns of the infected individual who acts irresponsibly or recklessly, above the rights of the partners he might infect or give the equivalent of a death sentence to.”
“In addition, the net of culpability has been widened in section 23(2) to include a person who does not know he has AIDS or HIV but who has "reason to believe" he has been exposed to a "significant risk" of contracting AIDS/HIV. A "reason to believe" must rest on an objective state of affairs, for example, engaging with multiple sex partners regularly or at any one occasion. Promiscuity has its costs in terms of health risks to the participant but, obviously, the community at large also suffers the greater prospects of infectious disease transmission. The final impact of this undesirable behaviour could be geometric. A person who consciously engages in high-risk behaviour should be held to a high standard of responsibility; he owes a duty of care to protect sexual partners or, at least, give them the choice to opt out of risky sexual activity. However, the Act correctly recognises that the sexual activity of persons with AIDs/ HIV is a public health issue involving third parties. Given the seriousness of the problem, any claims to confidentiality must be trumped by the duty to protect sexual partners and the community's right of self-defense against the grave risk posed by deadly infectious diseases. Under section 23(2)(b), this duty is discharged if the person who reasonably believes he might have contracted AIDS undergoes the relevant medical tests to ascertain he does not, in fact, have AIDS/ HIV at the time of sexual activity. Alternatively, the person at risk must take "reasonable precautions" under section 23(2)(c) to ensure the other person is not exposed to the risk of contracting AIDS/HIV. Presumably, this means using a prophylactic; however, there is no scientific consensus that external contraceptives are 100% effective.”
“It entails the voluntary taking of a risk. This implies that a person needs to know about the risk, such as consenting to undergo risky surgery. Section 23(1) is a partner-notification measure; it requires a person who knows he has AIDS or HIV, not to engage in sexual activity with another person unless two conditions are met: First, the other person must be informed of the risk of contracting AIDS/HIV from the infected person; Second, that person voluntarily agrees to accept that risk. Section 23(5) provides that a person is deemed to know he has AIDS/HIV if the positive results of a serological or other relevant test have been communicated to him. I read a Wall Street Journal article entitled "The Charge is Murder, the Weapon, AIDS". It described how prosecutors in various jurisdictions struggled to apply legal codes authored before Gay-Related Immune Deficiency or GRID, as AIDS was originally known, existed. For example, a New York county district attorney wanted to charge a certain person who knew he carried the AIDS virus with attempted murder, as he claims to have slept with 50-75 women after he knew he was infected. However, the difficulty lay in the need to prove the carrier intended to kill. AIDS is deadly. The amendment to section 23(3) to enhance the penalty for failing to inform another person of the risk of contracting AIDS from a known carrier before sexual activity correctly reflects the gravity of the matter. Offenders may now be fined a maximum of $50,000, up from $10,000; the maximum period of imprisonment has been raised from two to 10 years. This reflects the seriousness with which knowingly exposing others to the risk of AIDS/HIV is viewed. This is compounded by the fact that a potentially large pool of victims may be involved.”
“The Minister must be satisfied there is an outbreak or imminent outbreak of an infectious disease which poses a "substantial risk" of causing a significant number of human deaths or incidents of serious disability in Singapore. It is worth noting that the drafting of section 17A reflects the intent that this power should not be lightly used, such as if a 'trigger happy' Minister invokes this power where an outbreak is merely speculative and the risk of human deaths is relatively minor. This would presumably be an abuse of discretion. Under section 17A, the Minister may regulate the entry and stay of persons within the Restricted Zone and prohibit public meetings - this will limit associational rights and the freedom of citizens to move freely throughout Singapore under Articles 14 and 13 of the Constitution. Such rights are not absolute, as the Constitution recognises. But neither are ministerial powers, absolute powers - section 17A orders have time limits; they expire every 14 days and are renewable for 14-day periods. As the rule of law requires that laws be known so that people can direct their behaviour accordingly, section 17A(5) requires such orders to be brought to the notice of all persons who, in the Minister's opinion, ought to have such notice. Such orders take effect without publication in the Gazette, which is a form of constructive notice, even though the average man on the Yishun MRT does not read the Gazette. Can the Minister speak to what practical steps will be taken to ensure that affected persons will receive actual notice of such orders? Sir, the amended section 23(1) embodies the ancient Latin maxim of volenti non fit iniuria, which means that if you consent to a risky venture, you cannot complain when the risk materialises.”
“If a person was suffering from encephalitis (which causes brain inflammation), would the "body samples" include a part of his brain? Or a spinal tap? Would that person be guilty of an offence under section 8 if he submitted to routine medical examinations, like X rays and blood tests, but refused to submit to more invasive 'examinations' such as removing part of an organ? Sir, the defence of "reasonable excuse" applies for offences committed under various sections, including sections 7, 8 and 15. Under section 8(4), non-submission by a suspected person to a medical examination without reasonable excuse is an offence. What might the content of this defence be? Could the Minister elaborate on what might constitute a reasonable excuse or identify factors relevant to assessing the reasonableness of an excuse? For example, what if a person from a high risk group refuses to go for AIDS testing, because of the stigma, and claims a putative right to privacy in that respect? Would this be a reasonable excuse, given the compelling public health issue involved? What kind of "reasonable excuse" can be offered under section 15 where a suspected carrier of an infectious disease like SARS refuses to comply with the Director's quarantine order that he be detained and isolated in a hospital, given the clear and present danger to the community's health in epidemic situations? It would be helpful if the Minister could provide some examples as guidelines, either from experience or study, which will help in interpreting these provisions. Sir, the power under section 17A to declare a public health emergency and to declare all or part of Singapore to be a restricted zone to secure public health and safety is an intrusive and extensive one.”
“This relates to the unwritten but fundamental rules of honour, decency and responsibility which make our common life possible, form the backdrop to our laws and shape how we understand the rights and duties of citizenship. I would suggest that the duty to act reasonably cuts both ways. The Director would also be expected to act with reasonable grounds but the current section 8(1) does not legally oblige him to do so. While we may expect someone entrusted with high public responsibility to act reasonably, the law should provide for worst case scenarios. This could be addressed by amending section 8(1) to read: "The Director may require any person who is reasonably suspected to be ...". The reference to reasonable suspicion would underscore the importance of having an objective evidential basis to justify the making of orders. Discretion must never be unfettered; legislators can facilitate the principled exercise of discretionary powers by identifying clear guidelines that condition how administrative actors deploy such powers. This would strengthen the rule of law. My second comment relates to section 8(2). This gives examples of what may be taken from a person's body during a medical examination such as blood or "other body samples" for testing and analysis. This is an intrusive procedure, though justifiable on public health grounds. To clarify that what should be taken should be no more or no less than what is necessary for testing and analysis, it may be prudent to insert the words "as is necessary", to prevent the gratuitous extraction of blood or body samples. I would appreciate it if the Minister could clarify what "other body samples" might include - tissue samples for example?”
“Sir, the spread of infectious diseases such as SARS, Avian influenza and AIDS, has global, national and personal implications. Containing infectious disease, through precautionary and control measures, is a pressing public health priority. In moving these amendments to the Infectious Diseases Act, the Government seeks to discharge its obligations to its citizens as trustee of the common good of public health, while managing concerns about confidentiality concerns and other individual interests. Section 59A, for example, requires the anonymisation of information or human samples provided in relation to national public health research. Conversely, compelling public health imperatives may outweigh confidentiality interests. Section 57A(1)(b) authorises the Director of Medical Services to disclose information to the World Health Organisation in order to comply with Singapore's international obligations. Clearly, infectious diseases are transnational in nature, as viruses are no respecters of physical borders. Sir, the proposed new section 8 details what "medical examination" of a person "who is or is suspected to be" a "case or carrier or contact" of an infectious disease might entail. Section 8(2) states this may include X-rays, taking blood samples and "other body samples for testing and analysis." No consent is needed. I have two comments. First, a person is guilty of a section 8 offence if he fails to undergo a compulsory medical examination, where the Director so requires, "without reasonable excuse". This places a legal obligation on the individual to act reasonably or be penalised; acting reasonably is a defence for non-compliance with the Director's orders. Beyond law, this duty to act reasonably is also part of our unwritten social constitution.”
“Two seconds, two minutes, two hours? In practical terms, in what manner must the information be disclosed – should a person simply tell the first police officer he comes across, regardless of rank, or lodge a first information report? Could the Minister elaborate? Lastly, while dealing with serious criminal offences, I note that the Bill does not include a Fair Treatment clause, such as that contained in article 9 of the Convention. The treaty clause requires that any apprehended person being dealt with in connection with a relevant crime "shall be guaranteed fair treatment at all stages of the proceedings.” While the efficient and effective prosecution of terrorists and others of similar ilk who commit crimes against diplomats and other IPPs is an important objective, the rule of law demands the observance of due process to safeguard the rights of the alleged offender from the moment he is found and his presence secured, until a final decision is taken on the case. Is there any particular reason why a Fair Treatment clause was not included in this Bill? Surely incorporating the relevant 'Fair Treatment treaty clause' would underscore our existing commitment to fair play in the administration of criminal justice? With that, Sir, I support the Bill. 5.05 pm”
“While a head of state or government, like a visiting President or Prime Minister may be well-known public figures, it is worth noting that the definition of “internationally protected persons” is very broad and includes their accompanying family members. Is it fair to presume that an accused person would know that the accompanying family member fell within the category of 'internationally protected persons', if such people are relatively unknown to the public? Second, section 9 imposes a duty upon "every person in Singapore" to disclose information which that person has, and which he knows or believes may be of material assistance, to prevent the commission of a relevant offence or to facilitate the arrest of a relevant offender who is in Singapore. This duty to inform reflects the grave nature of offences against IPPs under this Bill. Section 9(1) imposes this duty on "Every person in Singapore who has information which he knows or believes may be of material assistance.” How would such knowledge or belief be proven? Is section 9 based on a person having actual knowledge or belief of this information, or may the possession of such knowledge be inferred from the surrounding circumstances? If so, it may be prudent to amend section 9(1) to read "Every person in Singapore who has information which he knows or has reasonable grounds to believe may be of material assistance." Section 9(1) requires that the person with information must disclose this "immediately" to a police officer or face a maximum term of five years' imprisonment or a $50,000 fine, which seems pretty steep. What is the basis for these punishments? What benchmark was used? Furthermore, what does the failure to disclose information "immediately" as section 9(1) requires, entail?”
“Since this would be a Second Schedule offence if committed in Singapore, the Englishman may be dealt with as if that offence had been committed in Singapore, even though it was committed on Malaysian soil against a French diplomat. This assertion of broad jurisdiction is justified on the basis of the interest Singapore shares with the international community, in protecting IPPs. After attaining lawful custody of the alleged offender, if Singapore chooses not to try the offender, it is then duty-bound to extradite the offender to another state to face criminal prosecution. Conversely, if Singapore should decide to prosecute the alleged offender, where there is no link to Singapore based on territory or nationality, this raises some issues of practical concern. Where an offence is committed abroad, problems and difficulties with evidence-gathering inevitably arise; this may hinder the conduct of a successful prosecution. Further, I note that the express consent of the Public Prosecutor is required under section 12, before any prosecutions may be instituted. Does the Government have in mind a policy which will provide guidance as to when a case will actually be prosecuted in Singapore? Sir, I have three further points. First, section 8 provides for a presumption of knowledge whereby a person committing a section 4 or 5 offence is presumed to know that the victim in question was an IPP or that the relevant premises or vehicle would be used by an IPP. This is important as sections 4 and 5 offences require that the perpetrator must act in the knowledge that the victim is an IPP – knowledge is part of the mens rea or mental element of the offences.”
“Under international law, a state's criminal jurisdiction generally rests on the existence of a nexus between the crime and the state seeking to enforce criminal law. Such a nexus exists where the crime took place within the state, based on the principle of territorial jurisdiction. A state can also assume jurisdiction where the offender is its citizen, under the nationality principle. In other words, Singapore would seek to assert jurisdiction over crimes committed in Singapore or by Singaporeans abroad. In some cases, a state may also exercise jurisdiction over crimes where the victim is its citizen, based on the passive personality principle. There are certain crimes of such a heinous nature, like piracy or genocide, which attract international concern, even from states without obvious connections to the place of the crime, the criminal or the victims. Under the principle of universal jurisdiction, states may assert extensive extra-territorial jurisdiction over such crimes, to vindicate their shared interest in preserving the international public order. The Convention in question seeks to establish a system of quasi-universal jurisdiction, as reflected in sections 4 and 5 of the Bill which relates to acts committed outside Singapore by "any person". Such crimes may bear no immediate nexus to Singapore in not involving Singaporeans. Thus, sections 4 and 5 provide for a very broad exercise of extra-territorial jurisdiction. For example, an Englishman commits a crime by cutting the car brakes of a French diplomat based in Malaysia, causing a fatal accident; that Englishman subsequently flees across the Causeway to Singapore. Under the proposed Act, that Englishman may be tried and punished in Singapore.”
“Section 3(1)(d) also covers members of the family forming part of the household of a person falling into this category of state or IGO officials. What guidance is available in defining "part of the person's household" - would this include spouse, children, parents, second or third cousins? Where and how is the line drawn? Furthermore, must the presence of this family member, such as a child of school-going age, be connected with the presence of the relevant official with IPP status, in the state where that official is posted? What if a crime is committed against a visiting relative? Notably, under the terms of the Convention and this Bill, officials of non-governmental international organisations such as major humanitarian bodies like the Red Cross, are not included and do not enjoy special protection. Given the vulnerability of NGO personnel who travel extensively to handle disaster relief or humanitarian aid in situations of civil strife, I hope that Singapore and other countries would consider extending protection to such important actors; admittedly, this is beyond the purview of the Convention in question. Sir, the Convention and this implementing Bill seeks to allow states to cooperate and render mutual assistance in relation to preventing and suppressing relevant criminal activities, as section 10 provides for. The Convention also provides the jurisdictional basis for state parties to assume jurisdiction over criminal offenders who commit acts outside the territory of a state party. Before such offenders can be prosecuted or extradited, it is essential to first establish lawful jurisdiction over these criminal offences and lawful custody of the criminal offender.”
“A certain category of specifically identified IPPs who enjoy special protection are senior government officials like the heads of state or heads of government and Foreign Affairs Ministers, as section 3(1)(a) provides for. The head of state symbolically embodies the state while government leaders wield the reins of executive power in their constitutional orders; Foreign Affairs Ministers have to travel frequently in discharging their portfolio - it is evident why these officials enjoy IPP status. Notably, family members who accompany these senior officials are also IPPs under section 3(1)(b). Section 3(1)(c) also extends IPP status to officials of a state or IGO in certain circumstances. This category of officials must, "at the time and place of the alleged offence", be entitled under international law to special protection against attacks on their person, freedom or dignity. This could include special envoys, diplomats or even judges and officials of bodies like the International Criminal Court. The beneficiaries of this category of IPPs may not be that easy to identify. For example, would a diplomat, who normally is entitled to special protection in the host or receiving state, be entitled to special protection and recognition as an IPP, if she is kidnapped while on private vacation, incognito, in a third state? Could the Minister confirm whether, in determining the class of beneficiaries to whom "international law" affords diplomatic protection, the cue will be taken from the standards contained in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations? I understand that Singapore acceded to these treaties in April 2005 without reservations.”
“Sir, the Convention allows state parties to refer to domestic criminal law to flesh out the crime of attacking the person or liberty of an IPP or committing a "violent attack" against the IPP's official premises, or her transportation services, so as to endanger her person or liberty. Thus, Offences against Internationally Protected Persons and against Premises or Vehicles are set out in the First and Second Schedules to the Bill respectively. The First Schedule refers to various offences under statutes like the Explosive Substances Act, Kidnapping Act and Penal Code. This includes offences relating to rape, murder, causing grievous hurt, kidnapping, abduction, wrongful confinement, and interestingly "outraging modesty in certain circumstances" under section 354A of the Penal Code. Sir, I am uncertain about whether it is appropriate to include a crime like outraging modesty, even in aggravated circumstances, in the category of crimes against IPPs. At first blush, it appears not to rise to the same level of gravity as crimes like homicide, kidnapping or terrorist acts. A primary aim of the Convention is to require state parties to criminalise acts which threaten the safety of diplomatic agents and other IPPs in a manner which also threatens the maintenance of normal, friendly international relations between states and international organisations or IGOs. In relation to including the crime of "outraging modesty" as a crime against IPPs, could the Minister shed light on what precedent this was based on? Sir, section 3 of the Bill largely follows the definition of "internationally protected person" in Article 1 of the Convention.”
“Sir, under international law, states are not subject to a general obligation to extradite a person to another state to stand trial for committing a crime. However, this is a widespread practice among states, often regulated by bilateral treaties. Where an alleged criminal falls into the custodial hands of a state which is party to the Convention, that state party must follow one of two courses of action: either to prosecute or to extradite the offender to another country for trial. The intent behind this obligation to 'prosecute or extradite' is to forge an international order where criminal offenders cannot find a safe haven where they may escape the clutches of justice. In giving effect to this Convention, Singapore is stepping up to the plate, as a responsible member of the family of nations, to play its part in enforcing international law against those who commit offences against IPPs, which includes transnational terrorist activities. Extradition is essential to ensure respect for the international rule of law. If there was no legal procedure to facilitate the extradition of criminal offenders to states where they could be tried for their crimes, they would enjoy impunity for their anti-social or terrorist acts, which makes a mockery of law. Extradition procedures seek to ensure that while criminals can run, they cannot hide from the reach of the law. Section 11 of the Bill addresses the issue. Offences against IPPs are deemed extraditable crimes. Section 11(3) effectively makes the Convention the legal basis for extradition between state parties, in the absence of an existing extradition treaty. If vigorously enforced, extradition may deter the commission of criminal or terrorist acts. This enhances the security and safety of IPPs.”
“Sir, the Internationally Protected Persons Bill seeks to give domestic effect to the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons. This is one of a series of UN-sponsored multi-lateral counter-terrorism instruments. The UN General Assembly adopted this treaty in December 1973 at a time when the international community was becoming painfully aware of threats to diplomats and individuals who were being taken hostage by terrorist groups. Indeed, a principal catalyst for the treaty was the kidnapping and murders of a US ambassador and a Belgian diplomat, by Palestinian terrorists, in Khartoum, Sudan, in March 1973. States share a common interest in ensuring that internationally protected persons or 'IPPs', including senior government officials and diplomats, are protected against assaults, assassination, bombing and other forms of violence. These actors are part of the networks designed to promote peace, communication and cooperation between states and peoples. The Convention contains legal rules designed to reinforce the atmosphere of personal security, to allow IPPs to perform their functions fearlessly and effectively. The Convention identifies certain acts as criminal offences. It facilitates the extradition of accused offenders to other states to stand trial. It covers actors directly involved or complicit in relation to actual or threatened murder, kidnapping, attacks on the person or liberty of IPPs, their official premises, private residence or means of transport. The Convention obliges states to criminalise such offences and also to establish jurisdiction over these offences and their perpetrators.”
“Are there well-known formal avenues for citizens to raise concerns? Last month, the Straits Times published an online letter by Mr Benny Cheok who expressed concern about a Channel 5 TV show screened at 8.00 am on Sunday and said, "depicted a gay married couple with their young adopted son as a family nucleus." This screening breaches the code's guideline on public morals and social values. It undermines the family's importance as a basic social unit, signalling that same sex parenting is acceptable. This contradicts our family values and conception of family where a man and woman marrying and having children is normative. Further, the code requires that themes concerning lifestyles like homosexuality be cautiously treated and not glamourised or endorsed. The show was screened during prime viewing time, breaching guidelines on family viewing. Mr Cheok noted that young viewers would be left eroded by the absence of the opposite gender in the family nucleus. What steps has MDA taken to investigate and remedy Mr Cheok's complaint? Could the Minister elaborate on how to prevent similar future breaches and how to ensure industry players make greater use of consumer advice in airing sensitive content? Dialects on TV and Radio”
“As regulator and licensor of the Internet communications space within its borders, should the state facilitate such online harassment? The Internet can promote robust political debate. However, free speech is but the means to serve the ends of truth and democracy, rights entail responsibilities. If private parties misuse the Internet to destroy people whose views they dislike, this will kill free speech. Our shared commitment to democracy will be eroded if abusive online content goes unregulated. Such online views lacking social content or value may incite hatred or violence against the speaker. Such intimidation thwarts democratic debate. This is the Internet's dark side. I hope the Minister will consider the need to deter such anti-social attacks to prevent harassing malicious public online speech from undermining the Internet as a free and fair communications medium. Regulating Old Media: TV My next cut, Sir. The Government has an interest in upholding public morality and decency in broadcasting, which shapes social values for good or ill. Old media, like free-to-air TV, attract more stringent safeguards to ensure programmes do not stray from accepted community norms given its broad reach into almost all homes. MDA's free-to-air TV programme code manifests concern with safeguarding community morality. Social resilience and democracy depends on this. With globalisation, correct common norms of decency are needed to ensure we remain discerning and not blindly embrace libertine values in the name of being cosmopolitan. How are breaches of TV programme codes handled? How does this differ from the light-touch approach to regulating new media? Does MDA actively monitor the content of TV programmes or merely react to third party complaints?”
“Sir, as Media Development Authority licencees, all Internet service and content providers must use best efforts to ensure prohibited material under the Internet Code of Practice is not broadcast to Singapore consumers. As licensor and industry regulator, MDA is indirectly responsible for its licencees' online content. MDA advocates industry self-regulation, or not a hands-on monitor, MDA's light-touch approach cannot mean it is hands-off. If MDA's policy is to react to complaints about suspect content, are there well-known complaints channels individuals can use? What action is taken concerning code violations? Is the complainant kept informed? With MDA's assistance, the police deals with online statements which cause public harm and violate criminal law, like sedition. Conversely, online defamation may be considered a private matter although MDA, as gate-keeper, may bear complicity as licensor, owing a duty of care to protect individual reputation. 1.45 pm While applicable Singapore law is violated, will MDA assist defamed persons by helping to identify the relevant ISP to research registry? There is a grey area or twilight zone between public and private law where online speech, not being criminal or recognise tort, wants legal regulation. Let us say a blogger angered by a controversial newspaper article written by an academic blog about this, calling the academic an idiot. Such name calling is just crass rude opinion. However, what if that blogger starts a website campaign urging others to flood the academic with abusive emails, and to write to the academic's employers calling for that person's dismissal? Is this not a conspiracy to incite harassment against an individual, a form of intentional cyber-nuisance?”
“Since the Charter does not identify any human rights standards, will Singapore seek a meaningful minimum, perhaps pegged to the UDHR or those UN treaties most ASEAN members are party to? In terms of structure, realists are not expecting the sun and the moon in the form of a human rights court with compulsory jurisdiction, after the European model. However, would the Minister agree that the eventual body must not duplicate the UN state reporting process and must be something beyond a promotional talk-shop or think-tank? Is it important that the body should have a protective function, perhaps allowing states and/or individuals a channel through which to raise concerns about alleged abuses before a supranational body, whether in public or private? In 1993, Minister Wong Kan Seng said that "pragmatism and realism does not mean abdication." I hope not. The ASEAN Charter promises a human rights mechanism, but there is a gap between making and keeping promises. I am reminded of a line from a Robert Frost Poem: "the woods are lovely dark and deep. But I have promises to keep and miles to go before I sleep, and miles to go before I sleep." We look forward to the next step of ASEAN states to advance human rights and promote civilised governance, and we hope Singapore will take a leading role in this enterprise.”
“While accepting the concept of human rights, Singapore has disputed the interpretation and content of rights. For example, Minister Wong Kan Seng said at a 1993 UN human rights conference that Singaporeans did not accept pornography as free speech. A national body can help clarify the contours of rights by in-depth and contextualised consideration. Calling something a 'human right' does not make it so; an expert body can help develop guidelines to distinguish universal legal rights from narrow political claims, made in the name of human rights. Singapore considers the amorphous right to development "fundamental". It could take the lead through a national expert body to concretise this right and make it "measurable", by developing indicia to determine whether socio-economic rights or welfare has been violated or realised. In so doing, it could underscore that this right goes beyond increasing GDP; individual welfare must be secured. The human right to development incorporates the need to ensure political participation in decision-making and equitable wealth distribution - these human rights standards help us evaluate the quality of the consultative process and Government policy in relation to social safety nets, as reflected in our public assistance schemes, Workfare, ComCare. Lastly, at the regional level, will Singapore take a leading or back-seat role in fleshing out the terse Charter provision which provides for the establishment of an ASEAN human rights body, without stipulating its form or nature? To ensure something value-added, beyond lip service? As the Charter aims to be people-centric, will non-Government bodies be involved in this process?”
“Malaysia has done so, giving effect to its CEDAW obligations. While I realise signing a treaty or enacting anti-discrimination legislation may be more pious platitude than practical, let us not discount the role of the symbolic and how legal norms can accelerate positive social change. We need a clear benchmark to ground human rights policy. I suggest recognising the Universal Declaration of Human Rights as a minimal standard. The UDHR was drafted in response to European Barbarism after World War Two; its drafters included experts drawn from the Confucian, Islamic, Hindu, Christian and Marxist tradition. It is holistic, and includes the three generations of civil-political, socio-economic and 'solidarity' rights. It is not a charter for radical individualism and recognises rights are limited by duties and the common good. This year is the Declaration's 60th anniversary. Perhaps we should embrace and celebrate its standards, through school programmes and public education measures. This would be a positive way of domesticating human rights Sir, one way to localise and develop global standards is through a national human rights institution, staffed by Singaporeans familiar with local conditions. Malaysia, Indonesia, Thailand and the Philippines have adopted such institutions. Do we need a dedicated rights-oriented institution, where the current preference is to deal with rights issues informally or ad hoc, through petitioning MPs or Ministries? Without discounting the importance of having good governors, certain points may be considered. First, institutions are permanent and provide a systematic focal point for citizens to resort to, which enhances accountability. Second, a national body can help us take ownership by carving out our vision of human rights.”
“This would clarify the ambit of what it considers the 'hard core' of universally accepted human rights. The Government once stated that substance was more important than form when asked whether it would sign the Convention on the Elimination of Racial Discrimination (CERD), pointing to our good race relations track record. However, we cannot discount the effect of signing treaties, as a statement of principle to ourselves and the world. Let our pragmatism not be idealism-free. Signing CERD would underscore our commitment to racial equality and allow us to showcase our model of multi-racial harmony to the world, to lead by example. Nor does the Government have to wait until our domestic law perfectly aligns with international standards. Certain human rights provide goals which countries realise progressively, not immediately. For example, CEDAW requires states to take measures to eliminate discrimination of women in political life; its oversight Committee recommends that women's participation in politics should reach a critical mass of 30-35% to have a real impact on political decision-making; 20% of our elected MPs are women after the last General Elections (up from 12%); the 35% target provides us with a human rights benchmark worth working towards. Our foreign policy is driven by trade and security concerns. Perhaps some attention could be directed to the possibility of signing human rights treaties concerning race discrimination, disabled peoples' rights and socio-economic rights. On the domestic front, one way we can go global is by going 'local', through embodying global standards in local laws or "glocalisation". For example, Article 12 of the Constitution could be amended to explicitly prohibit discrimination against women, rather than to leave it implicit.”
“Mr Chairman, since 1967, security, trade, and economic development have been ASEAN priorities, while human rights have been marginalised as internal state matters. The explicit incorporation of human rights in the ASEAN Charter is momentous. It accepts that human rights are the common heritage of mankind, rather than to be viewed suspiciously as a politicised imposition of foreign standards by the so-called 'West'. Previously, ASEAN has approached social welfare and poverty alleviation as a matter of 'human development' rather than "human rights", which are enforceable claims against the state, leashing state power. Human development focuses on government duties to run programmes to meet social needs like housing, education, health. However, who enforces such duties where the government fails in this task? Singapore adopts a "human development" approach towards securing human welfare. Government leaders have argued that excessive emphasis on individual rights over community interests can be destabilising and retard development. Critics have called this an apology for power. The counter retort may be: would Singaporeans prefer a right to housing, or a house? Times have changed. Minister Raymond Lim has said we are not allergic to human rights. But much remains to be done before rhetoric becomes reality and to ensure legitimate cultural differences do not undermine universal standards. I hope the Minister will consider the following points in developing human rights policy at the international, domestic and regional level. At the international level, is the Government considering signing other treaties in addition to the ones on Genocide, Children and Women, which we signed in 1995?”