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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“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”
“We do not presume to spread a Lex Singapura; only to defend our sovereign interests. Distinguished Singapore lawyers were involved in matters like drafting UNCLOS. However, we need to develop a new generation of international lawyers – who knows, one day a Singaporean might sit on the World Court or International Law Commission. How can we best channel resources to develop local international law expertise? I raise a few points for the Minister to consider. First, IAD officers may be better placed to cultivate specialist knowledge by being assigned to divisions handling specific issues, like trade or boundaries. Second, international legal information could be made more accessible, promoting transparency. Like legislation, treaties concluded with other states could be made available online for free, through a regularly updated database. Third, we should promote continuing international legal education. The Law Society now has an International Law Committee, demonstrating growing interest within the profession. Aside from holding expert seminars, international lawyers could be trained by facilitating internships in international organisations. Fourth, academia has a role to play; subjects like banking law are affected by international anti-terrorist measures; legal education is thus deficient, without some international law knowledge. Today, our law schools offer a menu of specialist international law subjects. Symbiotic linkages between practitioners and academics could be explored, to ensure that practical and aspirational mindsets engage. IAD could conduct student workshops on topics like obstacles in negotiating FTAs, providing real world insight and career inspiration.”
“Madam, the international law has been seen as a faraway, mysterious institution, an unessential boutique subject. As an international law professor, I have borne collegial jibes of teaching "international non-law", in the face of realpolitik. However, international law is part of our law; not an alien thing. The public saw its relevance in our dispute with Malaysia over Pedra Branca. While neither panacea nor myth, international law is one tool for forging a saner international order, through inter-state cooperation. Government lawyers advise on international law issues relating to the UN, APEC or our many FTAs. As we sign more international instruments, we could be involved in more related disputes. The apparent trend is: Singapore will be increasingly engaged in international law matters. How does the Minister see the place of international law within our legal infrastructure? Are there sufficient local lawyers to handle international law matters? A superficial comparison shows that Malaysia's International Affairs Department has 50 federal counsels, while Singapore has 15. Apparently, our FTA activity exceeds Malaysia's. Are sufficient resources allocated to supply enough advisors for periodic FTA reviews? Today, an elite Euro-American tribe of international lawyers monopolise litigation and arbitration. In the long term, we must avoid over-reliance on expensive foreign counsel. Originally, international law was Euro-centric, serving the colonial agenda; in today's plural world, it must serve the interests of all, not the few. As a clear majority in multilateral forums like the UN, small states have a voice in shaping a just international order. Singapore must have her piece of the pie.”
“It is also important to socialise or enable the relevant actors to become familiar with this new statutory regime and their responsibilities thereunder. Sir, while our Constitution may not contain a right to health, the Government is solicitous towards the healthcare concerns of Singaporeans. Rather than through the mechanism of rights, the Government prefers to formulate and execute programmes to promote this important aspect of human welfare. Consistent with the Government's ethos of pragmatism, a former Foreign Minister once said in 1993 that the Government justified itself to Singaporeans "not by abstract theories" but "by the more vigorous test of practical success". The proof of the pudding is in the eating, as it were. It is heartening to know that the Government is taking a proactive approach towards anticipating the dimen- sions of future public health problems, to ensure the healthcare needs of Singaporeans are met, to plan for sufficient medical personnel, securing financing for this and identifying priority areas and trends. Sir, I support that idea of having a National Diseases Registry. It will provide information which will contribute towards the making of sound public health policies. This should promote public welfare and benefit the community at large 4.30 pm”
“Discretion has to be exercised within the framework and legitimate objectives of the statute. It is important in shaping the scope of Ministerial discretion, to set out the purposes or the basis upon which this discretion is to be exercised, to avoid conferring "blank cheque" powers. Can the Minister further clarify the kind of scenarios where such a broad power may be necessary as set out in clause 21, which would justify bypassing the judicious balance struck by the Bill between patient confidentiality concerns and the community's interest in sound public health policies? Would an unreasonable use of Ministerial discretion be subject to judicial review? Further, rather than providing for a general exemption, would it not be better to have specific exceptions tied to a particular provision or section in the Act? It would be helpful to understand the various rationales behind a decision to exempt a person from the operation of different parts of the proposed statute. For example, the justification for waiving confidentiality requirements in some instances may be quite distinct from reasons not to apply the enforcement provisions of the Act. Conclusion Sir, in conclusion, this Bill is designed to facilitate and to optimise long-term public policy-making in relation to public health issues. An incremental and targeted approach has been pursued which allows the scheme to hit the ground running. At present, only cancer is listed in the Schedule of reported diseases. This is for reasons of gravity and practicality. Gravity, because cancer is responsible for the highest rates of death in Singapore, and practicality, because data collection processes in this respect are the most established.”
“This is a general exemption clause under which the Minister may, either permanently or for a certain period, "exempt any person or class of persons from any or all of the provisions of this Act". For example, by publishing an order in the Gazette, the Minister could waive any requirement of confidentiality the Bill otherwise imposes. Sir, this is an extremely broad power, effectively providing carte blanche for the Minister in his discretion to allow someone to be given blanket immunity from the statutory regime, almost like a "get out of jail free" card. A basic principle of administrative law and good governance is that Parliament confers discretion with the intent it should be used to promote the policy and object of the Act. The determination of what the statutory purpose is has always been a question of law which courts may review. As formulated, the discretion on the Minister by clause 21(1) lacks clear criteria to guide its exercise, compared to the four conditions set out in clause 10 which guide the Director in deciding whether to disclose information in relation to relevant public health programmes. The danger, in relation to clause 21, is that the general exemption might be given for a reason not related to the purpose of the Bill. For example, taking a worse case scenario, a person could be given a blanket exemption as a matter of a personal favour. I am sure that this cannot be the intent of the drafters of this legislation. Unfettered discretion would undermine the rule of law as discretion should never be absolute but constrained by specific criteria. This is to prevent arbitrariness and to ensure the legal and regular exercise of public powers. Power may be absolute, but law never is.”
“If they are not, and since they may be handling sensitive information under clause 10 in running public programmes, will the Minister clarify whether a duty of confidentiality will be imposed on such persons under clause 10(2), perhaps through subsidiary legislation? This relates to putting into place measures under the national public health programme to protect individually-identifiable information from unauthorised disclosure. This is important because clause 10 does not require that a patient with a reportable disease must first give consent before the Registrar, with the Director's approval, can release individually-identifiable information to a person conducting a relevant public health programme. This is distinct from clauses 11 and 12(1) where the requisite consent of the patient is needed before traceable information is released to a medical practitioner treating that patient or to a researcher conducting relevant public health research. The requirement of consent gives the patient some safeguard towards protecting his personal identity or the identity of the healthcare institution where he was treated; he has some say in the matter at least. A researcher will be subject to certain penalties if he misuses the information for a purpose not specified by the Registrar or disregards the conditions governing the release of traceable information. As we can see, the Bill sets out quite an elaborate scheme of statutory duties of reporting, rules designed to guard patient confidentiality and penalties for acts done in dereliction of statutory duty. Part of the rule of law is the principle of having clarity and apportioning obligations and liabilities and guiding conduct. This is why clause 21 causes me some concern.”
“The general principle under clause 8(2) is that the Registrar or its agent or indeed "any other person" acting under the direction of the Director or Registrar "for any purpose related to the Registry" is duty-bound not to disclose what is in the Register or any individually-identifiable information he came across in performing his office. They are under an obligation of confidentiality, a breach of which attracts legal sanctions under clause 8(3). There are instances where the Registrar, with the Director's approval, may disclose individually-identifiable information to a public officer or "any other person"; however, clause 10 confines this to the purposes of conducting national public health programmes concerning a reportable disease. This is consistent with the general objectives of the Bill. Clause 10(3) indicates that individually-identifiable information is not to be readily granted. The Director must be satisfied that the national public health programme could not be carried out with anonymised information before approving any such disclosure. The clause expressly lists factors which the Director must consider in deciding whether to approve the disclosure and what conditions to attach to a grant of approval. Sir, I would like to raise an issue which I hope the Minister can clarify. Under clause 10(2), before the Director approves the disclosure of traceable information, he must consider the identity of the public officer or persons involved in the relevant national health programme. I am wondering whether these persons fall within the scope of clause 8(2) which imposes a duty of confidentiality on any person acting under the direction of the Director or Registrar for "any purpose related to the Registry".”
“The Bill distinguishes between two kinds of categories of information: one which is traceable to the patient and one which is not. One category of information, which is non-traceable, is termed "anonymised" information. I believe this Bill has created a new word in the English language! Clause 2 defines this as information relating to an individual whose identity is concealed, protected or "cannot be readily discovered" from that information. Clause 9 provides that where the Director so requests, the Registrar may disclose such information "on a request by any person" after paying a fee and subject to any conditions that the Registrar may impose. It does not stipulate what sort of purposes "any person" may request the information for, but presumably, this must fall within the purposes of the Act, that is, to formulate public health policies or for related studies. Could the Minister please clarify if this is the case? The second category of traceable information is termed "individually-identifiable information" as it will identify each person diagnosed and treated for cancer in Singapore. Clause 5 provides that the register containing this information is private and not open to public inspection. To further protect the privacy of the individual, clause 8 states that an officer or agent of the Registry or one acting under the direction of the Director of Medical Services cannot be compelled to give evidence before a court with respect to any individually-identifiable information obtained under the Bill. The only exception is where the case concerns the prosecution of an offence under the Bill.”
“I understand that hospitals have different policies in relation to information collected from the patients as well as towards the degrees of confidentiality afforded to patients. For example, is the information to be collected just the details of the type of cancer or would it include the details of the treatment, its outcome, and the personal traits of patients such as their age, gender, sexual history, socio-economic status, occupation, religion, marital status and other associated risk factors? I understand these are standard questions cancer patients have to answer in setting out patient histories, which may vary between healthcare institutions. A judicious balance? Sir, the information collected should not go beyond what is needed to serve the objectives of the Bill. Obviously, this raises the issues of privacy and data confidentiality. Related concerns were raised during the public consultation process, which, incidentally, promotes the democratic value of participation and policy-making. What is the final product? Is the legal framework provided by the Bill clear and does it strike a judicious balance between the community's right to know and to enjoy good public health policies based on this knowledge and the individual's right of privacy? How do the administrative rules set out in the Bill address the interests, expectations and duties of the relevant actors involved? The Bill provides sanctions for the way information is handled or mishandled, as where there is a failure to discharge a duty of notification or an unauthorised disclosure of information. How are the interests of patients protected? This is closely tied in to how the Registrar handles information on reportable diseases which he receives.”
“From voluntary to mandatory reporting regime The National Registry of Diseases Bill is designed to contribute to this. It seeks to formalise or place on a legal basis the existing practice where healthcare institutions voluntarily report certain diseases to the Ministry of Health, or MOH, as a matter of goodwill. Good practice becomes law under clause 6, which imposes a mandatory legal duty on managers of healthcare institutions in both the public and private sector to notify the Registrar of reportable diseases. They are to fill out a prescribed form and to submit it within a stipulated time, presumably to be set out under subsidiary legislation, as clause 23(2)(e) of the Bill provides. This information will be given to the Registrar without need for the consent of the patient. This will ensure a more complete and comprehensive database by broadening the net of reporting resources. This will enhance the accuracy, reliability and utility of the database. To provide some teeth to enforcing this duty, the Bill states that the failure to notify the Registrar without "reasonable excuse" or furnishing false information is a punishable offence. Presumably, recourse to the courts is available as to whether an excuse is reasonable, since the Bill contains no clause ousting applications for judicial review. Indeed, clause 17 protects public officers associated with the Registry from legal proceedings for any act done in good faith during the course of discharging their statutory functions - which leaves open the door for judicial action in relation to acts done in bad faith. What kind of information is to be collected? What kind of information must be provided in relation to this notification duty?”
“Sir, the Government takes a multi-pronged approach towards public health and disease management. Whilst existing laws like the Infectious Disease Act relate to communicable diseases, the National Registry of Diseases Bill before us today relates only to non-communicable diseases. These account for more than 60% of deaths in Singapore and draw heavily from the national coffers in terms of health expenditure. The Bill seeks to establish a Registry of Diseases and also sets up an administrative framework which deals with the powers, duties and liabilities of the various actors involved. It seeks to regulate information flows. It requires that the Registrar be notified of reportable diseases. It outlines to whom, in what form and for which purposes such information may be supplied to other parties. It seeks to facilitate data collection while providing safeguards to protect the interests of patients in data security. It also imposes penalties in the form of fines and imprisonment to defer breaches of various newly created statutory duties. The purposes of this Registry are set out in clause 4. Broadly, these relate to the collection and collation of information on "reportable diseases" with a view to publishing relevant statistics as well as the supply of this information to serve two purposes. First, to support health services provided by healthcare institutions to patients suffering from such diseases. Second, to support national public health policies and programmes as well as "related studies" or research into such diseases. The cornerstone of sound public health policies is a comprehensive informational base on the incidence of reported diseases which bear national significance, such as cancer, which is the first disease listed in the Schedule.”
“Thank you. I speak at the risk of being burned at the stake by militant activists. But if we do not stand for something, we will fall for anything. I was raised to believe in speaking out for what is right, good and true, no matter the cost. It is important in life not only to have a brain, but a spine. One of my favourite speeches by PM Lee, which I force my students to read, is his Harvard Club speech two years ago where he urged citizens not to be "passive bystanders" in their own fate but to debate issues with reason and conviction. I took this to heart. To forge good policy, we need to do our homework and engage in honest debate on the issues. Let us also speak with civility, which cannot be legislated, but draws deep from our character and upbringing. Before government can govern man, man must be able to govern himself. Sir, let speaking in the public square with reason, passion, honesty, civility, even grace, be the mark of a Citizen of Singapore. [Applause.] 7.20 pm”
“One of my colleagues, a young professor, suffered these vicious tactics when the Straits Times published an article this May where Yvonne Lee argued against repealing 377A. This well-researched, cogent article so incensed homosexual activists that they flooded her with a torrent of abusive, lewd emails and wrote to her Department Head calling for her to be removed from her job. This appeared to be a coordinated campaign. We academics are used to disagreement, but why write to her employer and threaten her livelihood? Why vilify someone and seek to assassinate their personal and professional reputation? I hope this House joins me in deploring these malicious attacks which also assault academic freedom. She is owed an apology. I would be ashamed to belong to any academic institution that cravenly bowed down to such disgraceful bully-boy tactics. This August, I had my own personal, unpleasant experience with this sort of hysterical attack. I received an email from someone I never met, full of vile and obscene invective which I shall not repeat, accusing me of hatemongering. It cursed me and expressed the wish to defile my grave on the day 377A was repealed. I believe in free debate but this oversteps the line. I was distressed, disgusted, upset enough to file a Police report. Does a normal person with a conscience to filter impulses, go up to a stranger to express such irrational hatred? Smear tactics indicate the poor quality of debate and, also, of character. Let us have rational debate, not diatribe and deception, free from abusive rhetoric and childish tantrums. As Singapore approaches her Jubilee, my hope for the post-65 generation is that we will not become an uncivil civil society born from an immature culture of vulgarity which celebrates the base, not the noble.”
“As fellow citizens, homosexuals are entitled to expect decent treatment from the rest of us; but they have no right to insist we surrender our fundamental moral beliefs so they can feel comfortable about their sexual behaviour. We should not be subject to the tyranny of the undemocratic minority who want to violate our consciences, trample cherished moral virtues and threaten our collective welfare by imposing homosexual dogma on right-thinking people. Keep 377A. Sir, we Singaporeans will continue to debate and disagree over controversial moral issues as they arise. We should make substantive arguments and not think about our feelings; the media should present both sides fairly, without bias. However, I have noted a disturbing phenomenon over the 377A debate - the argument by insult. Instead of reasoning, some have resorted to name-calling to intimidate and silence their opponents. People with principled moral objections to the homosexual agenda are tarred and feathered "homophobes", "bigots", to shut them up. This strategy is unoriginally imported from foreign gay activists, which stifles creative thinking and intellectual enquiry. When you shout and call your opponents nasty names, this terminates public debate. No one wants to be called a bigot. But think about it - if I oppose incest, am I an incestophobe? If I oppose alcoholism, am I a winophobe? If having an opinion means you are a bigot, then we are all bigots! What is your phobia? Where certain liberals accuse their opponents of being intolerant, they demonstrate their own intolerance towards their opponents! They are hoist on their own petard, guilty of everything they accuse their detractors of! Full of sound and fury, signifying nothing.”
“Legalising sodomy would set a bad example; by signalling approval, it may change both attitude and conduct; coupled with sexual hedonism, it makes a mockery of strong family values. Section 377A helps to protect against this harm. Academic supporters of the homosexual agenda, like my colleague Michael Hor, argued online that even if section 377A was not enforced, discriminatory policies against homosexuals could be built on the logic of its existence. But taking his logic, repealing section 377A would mean the Government would be less able to resist claims for homosexual marriage or for promoting homosexuality as a desirable lifestyle in schools, as this would be "discriminatory". These foreign developments warn us that the advance of the homosexual agenda here is not remote. To slouch back to Sodom is to return to the Bad Old Days in ancient Greece or even China where sex was utterly wild and unrestrained, and homosexuality was considered superior to man-women relations. Women's groups should note that when homosexuality was celebrated, women were relegated to low social roles; when homosexuality was idealised in Greece, women were objects not partners, who ran homes and bore babies. Back then, whether a man had sex with another man, woman or child was a matter of indifference, like one's eating preferences. The only relevant category was penetrator and penetrated; sex was not seen as interactive intimacy, but a doing of something to someone. How degrading. It was only when marriage was invented by the Jewish Torah that the genie of sexual impulses was forced into the marital bottle, so that sex no longer dominated society - this discipline provided the social base for the development of western civilisation. Family is also the building block of our society.”
“Should we judge paedophilia or be relativist and promote "anything goes" sexual experimentation? Sir, to protect homosexuals, some countries have criminalised not sodomy, but opposition to sodomy, making it a "hate crime" to criticise homosexuality. This violates freedom of speech and religion; will sacred texts that declare homosexuality morally-deviant, like the Bible and Quran, be criminalised? Social unrest beckons. Such assaults on constitutional liberties cannot be tolerated. Steps 4 and 5 relate to legalising same-sex marriage and child adoption rights. This subverts both marriage and family, which are institutions homosexuals seek to redefine beyond recognition. Will MOE then commission a book copying the American, "Heather has 2 mummies" called "Ah Beng has 2 daddies"? What if parents disagree with their kids studying homosexual propaganda? Is legalising same-sex marriage progressive? It is, if you want a genderless planet where "husband" and "wife" are considered discriminatory terms, to be replaced by "spouse". We want to be able to say, Majulah Singapura, not Mundur Singapura! Repealing 377A will further batter the institution of "marriage" which we must bolster! This is because the arguments raised to challenge a distinction between heterosexual and homosexual sodomy, equally apply to challenge legal distinctions between lawful heterosexual marriage between man and wife and unlawful homosexual unions. To reinforce the moral foundations of a pro-family policy that permits only heterosexuals to marry, it is permissible to differentiate between heterosexual and homosexual sodomy. To say that section 377A discriminates is effectively to say that marriage laws discriminate and are unconstitutional.”
“Indeed, many citizens see keeping 377A as evidence the Government is defending the right moral values, which lends legitimacy. Sir, it is true that not all moral wrongs, such as adultery, are criminalised; yet they retain their stigma. But adulterers know they have done wrong and do not lobby for toleration of adultery as a sexual- orientation right. Conversely, homosexual activists lobby hard for a radical sexual revolution, waging a liberal fundamentalist crusade against traditional morality. They adopt a step-by-step approach to hide how radical the agenda is. Liberals never ask: what happens next if you repeal 377A? Responsible legislators must see the big picture. Pro-gay academics identify five main steps in this agenda in foreign country studies. Step 1: repeal laws criminalising homosexual sex. They consider this pivotal to advancing the homosexual agenda. Why? Without this, they cannot advance in the public sphere or push for government funding and support for special programmes, such as the New York Gay High School. Governments do not promote criminal activities. You need to change the criminal law before changing civil law. But decriminalising sodomy is only "bing shan yi jiao ", the tip of the iceberg, 12% of an ice mass. We must see what lies beneath the water to avoid a Titanic fate. Step 2 is to equalise the age of consent for heterosexual and homosexual sex; in some countries, this is as low as 13. Do we want to expose Secondary 1 boys to adult sexual predators? To be sexually creative? Step 3 is to prohibit discrimination based on "sexual orientation". But would this not include all sexual behaviour? "Sex before 8 or else it's too late", is the motto of the North American Man Boy Love Association.”
“The argument from consent ultimately celebrates sexual libertine values, the fruit of which is sexual licentiousness, a culture of lust, which takes, rather than love, which gives. This social decline will provoke more headlines like a 2004 Her World article called: "Gay guy confesses: I slept with 100 men, one of them could be your hubby." What about the broken-hearted involved? If you argue from consent, how can you condemn any form of sexual self-expression, no matter how selfish or hurtful? No man is an island. Ideas, embodied in laws, have consequences. Do not send the wrong message. Clearly, the issues raised in the Petition fall apart on rigorous analysis. Sir, Government policy is not to pro-actively enforce 377A. Some argue that just keeping this law on the books will erode the rule of law. I disagree. It is not turning a blind eye on the existence of homosexuals here; it is refusing to celebrate homosexuality while allowing gays to live quiet lives. This is prudent, as enforcing "bedroom" offences is difficult and such powers must be used judiciously. We have other hard-to-police laws which embody communal standards of decency, such as laws against nudity visible to the public eye, even if you are at home. Law is a moral teacher and makes a moral statement; six years ago, Singapore symbolically blocked access to 100 Internet porn sites, as a "statement of our values." We value our values, while remaining realistic. A non pro-active policy does not mean 377A will never be enforced, who knows what another season may require? Policies can change. Sir, citizens are not just concerned with the rule of law but with the rule of good law. Laws which violate core moral values will alienate many and bring the system into disrepute.”
“377A serves public morality; the argument from community reminds us we share a way of life which gives legal expression to the moral repugnancy of homosexuality. Heterosexual sodomy, unlike homosexual sodomy, does not undermine the understanding of heterosexuality as the preferred social norm. To those who say that 377A penalises only gays, not lesbians, note there have been calls to criminalise lesbianism too. Public sexual morality must buttress strong families based on faithful union between man and wife, the best model for raising children. The state should not promote promiscuity nor condone sexual exploitation. New section 376D criminalises the organisation of child-sex tours. Bravo! The "argument from consent" says the State should keep out of the bedroom, to safeguard "sexual autonomy". While we cherish racial and religious diversity, sexual diversity is a different kettle of fish. Diversity is not licence for perversity. This radical liberal argument from consent is pernicious, a leftist philosophy based on radical individualism and radical egalitarianism. It is unworkable because every viable moral theory has limits to consent. Radical individualism would demand decriminalising consensual adult incest; but the Penal Code is not based on consent as section 376F reflects. The State has always retained an interest in regulating conduct in the bedroom - the issue is, which type? Radical egalitarianism applied to sexual morality says the State should not morally distinguish between types of consensual sex. It exudes a false neutrality but actually sneaks in a substantive philosophy: hedonism which breeds narcissism. This extols satisfying desire without restraint as a matter of autonomy. But some desires are undesirable, harming self and society.”
“Consent to harmful acts is no defence, otherwise, our strong anti-drug laws must fall as it cannot co-exist with letting in recreational drugs as a matter of personal lifestyle choice. Opposite-sex sodomy is harmful, but medical studies indicate that same-sex sodomy carries a higher price tag for society because of higher promiscuity and frequency levels. The New York Times reported that even informed homosexuals return to unsafe practices like bare-backing and bug-chasing after a health crisis wanes. A British Study showed that the legalisation of homosexual sodomy correlated with an upsurge of STDs among gays. Common sense tells us that with more acceptance, any form of consensual sexual behaviour increases. Sodomy laws have some deterrent effect. It is rational for the state to target the most acute aspect of a problem. The legal issue is not whether the state should be concerned with heterosexual sodomy but it is reasonable to believe same-sex sodomy poses a distinct problem. Medical literature indicates that gays have disproportionately higher STD rates, which puts them in a different category from the general public, warranting different treatment. The onus rests on opponents of 377A to negate every conceivable basis for treating homosexual and heterosexual sodomy differently. They cannot, because classifications do not need to be perfect and can be under-inclusive; valid classifications only need to 'go some way' to serve the legislative goal, which 377A clearly does. Sir, the power to legislate morality is not limited to preventing demonstrable harm. The Penal Code now criminalises the wounding of both religious and racial feelings.”
“While all human persons are of equal worth, not all human behaviour is equally worthy. We separate the actor from the act. In criminalising acts, we consider their wrongfulness, the harmfulness and consequences on society. Parliament has the power to classify; this involves a choice, like distinguishing murder and manslaughter. Classifications which satisfy the constitutional test of validity are called "differentiation"; only invalid classifications are called "discrimination". Criminalising same-sex sodomy but not opposite-sex sodomy is valid "differentiation". 377A does not target any specific actor; it would cover a heterosexual male experimenting with male sodomy. Valid classifications must have a clear basis and be rationally related to a legitimate purpose. In serving public health and public morality, 377A passes constitutional muster with flying colours. Sir, public health and safety is a legitimate purpose served by the 377A ban on homosexual anal and oral sex. Both these practices are efficient methods of transmitting sexual diseases and AIDs/HIV which are public health problems. These are not victimless crimes as the whole community has to foot the costs of these diseases. Anal-penetrative sex is inherently damaging to the body and a misuse of organs, like shoving a straw up your nose to drink. The anus is designed to expel waste; when something is forcibly inserted into it, the muscles contract and cause tearing; fecal waste, viruses carried by sperm and blood thus congregate, with adverse health implications like "gay bowel syndrome", anal cancer. "Acts of gross indecency" under 377A also covers unhygienic practices like "rimming" where the mouth comes into contact with the anus.”
“Activists repeat the slogan "sexual minority" ad nausem as a deceptive political ploy to get sympathy from people who don't think through issues carefully. Repetition does not cure fallacy. Science has become so politicised that the issue of whether gays are "born that way" depends on which scientist you ask. You cannot base sound public philosophy on poor politicised pseudo "science". Homosexuality is a gender identity disorder; there are numerous examples of former homosexuals successfully dealing with this. They claim a right of sexual reorientation. Just this year, two high profile US activists left the homosexual lifestyle, the publisher of Venus, a lesbian magazine, and an editor of Young Gay America. Their stories are available online. An article by an ex-gay in the New Statesmen this July identified the roots of his emotional hurts, like a distant father, overbearing mother and sexual abuse by a family friend; after working through his pain, his unwanted same-sex attractions left. While difficult, change is possible and a compassionate society would help those wanting to fulfill their heterosexual potential. There is hope. Singapore law only recognises racial and religious minorities. Special protection is reserved for the poor and disadvantaged; the average homosexual person in Singapore is both well educated, with higher income, that is why upscale condo developers target them! Homosexuals do not deserve special rights, just the rights we all have. "Sexual minorities" and "sexual orientation" are vague terms covering anything from homosexuality, bestiality, incest, paedophilia. Do all these minority sexual practices merit protection? Third, 377A does not breach the Article 12 guarantee of equality.”
“Such issues divide other societies as well! A group of Canadians were grieved enough to issue an online apology to the world "for harm done through Canada's legalisation of homosexual marriage", urging us not to repeat their mistakes. These debates are not closed locally or globally. Singapore is an independent state, we can decide our own laws; we have no need of foreign or neo-colonial moral imperialism in matters of fundamental morality. Sir, there are no constitutional objections to retaining 377A while de-criminalising heterosexual oral and anal sex. Three legal points are worth making. First, there is no constitutional right to homosexual sodomy. It is not a facet of personal liberty under Article 9. Nor is there a human right to homosexual sodomy though some like to slip this in under the umbrella of "privacy." Human rights are universal, like prohibitions against genocide. Demands for "homosexual rights" are the political claims of a narrow interest group masquerading as legal entitlements. Homosexual activists often try to infiltrate and hijack human rights initiatives to serve their political agenda, discrediting an otherwise noble cause to protect the weak and poor. You cannot make a human wrong a human right. Second, while homosexuals are a numerical minority as a social fact, there is at law no such thing as "sexual minorities". Activists have coined this term to draw a beguiling but fallacious association between homosexuals and legally recognised minorities like racial groups. Race is a fixed trait. It remains controversial whether homosexual orientation is genetic or environmental, perhaps both. There are no ex-Blacks but there are ex-gays. The analogy between race and sexual orientation or preferred sexual preferences, is false.”
“But "harm" can be both physical and intangible; victims include both the immediate parties and third parties. What is done in "private" can have public repercussions. Fourth, legislators are urged to be "open-minded" and decriminalise sodomy. However, like an open mouth, an open mind must eventually close on something solid. Legislators are urged to be "objective" and to leave their personal subjective beliefs at home, especially if they hold religious views that homosexuality is abhorrent. This demand for objectivity is intellectually disingenuous, as there is no neutral ground, no "Switzerland of ambivalence" when we consider the moral issues related to section 377A, which require moral judgment of what is right and wrong - not to take a stand, is to take a stand! As all law has a moral basis, we must consider which morality to legislate. Neither the majority or minority is always right, but there are fundamental values beyond fashion and politics which serve the common good. Religious views are part of our common morality. We separate "religion" from "politics", but not "religion" from "public policy". That would be undemocratic. All citizens may propose views in public debate, whether influenced by religious or secular convictions or both; only the Government can impose a view by law. By the way, one does not have to be religious to consider homosexuality contrary to biological design and immoral; secular philosopher Immanuel Kant considered homosexuality "immoral acts against our animal nature", which did not preserve the species and dishonoured humanity. The issues surrounding section 377A are about morality, not modernity or being cosmopolitan. What will foreigners think if we retain 377A? Depends on which foreigner you ask. Many would applaud us!”
“Sir, the arguments to retain section 377A are overwhelmingly compelling and should be fully articulated, to enable legislators to make informed decisions and not be bewitched by the empty rhetoric and emotional sloganeering employed by many radical liberals, which generate more heat than light. The real question today is not "if" we should repeal section 377A now, or wait until people are ready to move. This assumes too much, as though we need an adjustment period before the inevitable. The real question is not "if" but "should" we ever repeal section 377A. It is not inevitable; it is not desirable to repeal it in any event. Not only is retaining section 377A sound public policy, it is legally and constitutionally beyond reproach. Responsible legislators must grapple with the facts, figures and principles involved; they cannot discount the noxious social consequences repeal will bring. Debate must be based on substance and not sound-bites. Let me red-flag four red herrings. First, to say a law is archaic is merely chronological snobbery. Second, we cannot say a law is "regressive" unless we first identify our ultimate goal. If we seek to ape the sexual libertine ethos of the wild wild West, then repealing section 377A is progressive. But that is not our final destination. The onus is on those seeking repeal to prove this will not harm society. Third, to say a law which criminalises homosexual acts because many find it offensive is merely imposing a "prejudice" or "bias", boldly assumes that no reasonable contrary view exists. This evades debate. The liberal argument which says sodomy is a personal choice, private matter and "victimless crime" merely asserts this. It rests precariously on an idiosyncratic notion of "harm".”
“Sir, two camps championing two distinct criminal law philosophies are polarised over whether to retain or repeal section 377A, which criminalises public or private acts of gross indecency between two men, such as sodomy. The "liberal" camp wants section 377A repealed. They offer an "argument from consent", "Government should not police the private sexual behaviour of consenting adults." They opine that this violates their liberty or "privacy". They ask, "Why criminalise something which does not "harm" anyone; if homosexuals are born that way, isn't it unkind to "discriminate" against their sexual practices?" These flawed arguments are marinated with distracting fallacies which obscure what is at stake. Repealing section 377A is the first step of a radical, political agenda which will subvert social morality, the common good and undermine our liberties. The "communitarian" camp argues from "community values". These social conservatives want section 377A retained, to protect public health, morality, decency and order. A "Keep 377A" online petition attracted over 15,000 signatures after a few days. Like many, I applaud the Government's wisdom in keeping section 377A which conserves what upholds the national interest. "Conservative" here is not a dirty word connoting backwardness; environmental conservation protects our habitat; the moral ecology must be conserved to protect what is precious and sustains a dynamic, free and good society. The welfare of future generations depends on basing law on sound public philosophy. We should reject the "argument from consent", as its philosophy is intellectually deficient and morally bankrupt.”
“Given that the idea of human rights beyond a core of rights like the prohibition against torture or genocide remains controversial, we still need to have a meaningful standard. We must ensure that the human rights standards in this new proposed mechanism will not be diluted. I would like to ask whether or not there are any plans to peg it to something like the Universal Declaration of Human Rights or whether guidance would be taken from those UN Human Rights Treaties that I believe all ASEAN states have already signed.”
“Previously, two important constitutional actors, the President and Prime Minister, the Head of State and Head of Government respectively, did not have a direct role in determining the composition of the Legal Service Commission. This will change with the Amendment Bill. However, it is heartening that a series of checks and balances have been incorporated into the scheme, consonant with the constitutional design of existing institutions. Thus, the power of the Prime Minister or other appointing authorities is subject to the moderating influence of the requirement that the President's concurrence is needed to confirm the appointment. The need for checks and balances harks back to the perennial twin problem of power: the need to empower Government to govern effectively, and the need to restrain power to curb abusive excesses to ensure Government is conducted fairly, while avoiding institutional gridlock and paralysis. The function of Constitutions and the institutions and processes they establish is to channel power. As James Madison stated in The Federalist No. 51, governments are the greatest reflection of human nature. He said, "If men were angels, no government would be necessary." Checks and balances are not needed if governors are wise, benevolent and angelic; but it would be the height of folly to assume this to be a permanent fixture in human affairs. History and prudence teach us the need to have precautions set in place to deal with worst-case scenarios. As this Constitutional Amendment Bill indicates, its framers are aware of the need to emplace checks and balances in our constitutional order - they do exist; the task ahead, as in all constitutional orders, is to ensure that such institutional safeguards work effectively for our common good. 3.58 pm”
“The new Article 111(d) will provide that the concurrence of the President, with the advice of the Prime Minister, Chief Justice or PSC Chair, as the case may be, in nominating his candidates is necessary to finalise the appointment. The direct involvement of the President as a countervailing check in the exercise of the appointing power in relation to the LSC members is also a new development, but it is consistent with the President's constitutional mandate in relation to key civil service appointments. Currently, members of the Public Service Commission are appointed by the President, provided the President, in his personal discretion, concurs with the Prime Minister's advice. That institutional set-up is now brought into play with respect to the composition of the Legal Service Commission. Thus, there is an official process under which the President can bring his wisdom to bear on the subject and can utilise the power of non-concurrence to influence the process and to even thwart a nomination. This can be a valuable safeguard. So, in formal terms, while a politicised element is included into the selection process for LSC members by giving the Prime Minister a direct power and ability to influence the composition of the LSC, the pool of candidates he may choose from must formally have no political links, which is a de-politicising measure. This realignment of power which these amendments will bring about in relation to the selection process for LSC members is a manifestation of the principle of checks and balances and shows the separation of powers and operation.”
“This is because the LSC has jurisdiction over the appointment, transfer and dismissal of legal officers, including Subordinate Court Judges, who do not enjoy tenure under law. In all likelihood, the probability of such an occurrence may perhaps be remote but the possibility remains. One would however have to presume rather a lot of things to so conclude, including the assumption that the Prime Minister's nominees will not act independently of him but will do his bidding. Such possibilities may perhaps take up residence in the fertile imaginings of conspiracy theorists, but are unlikely to take root elsewhere. Nonetheless, from the perspective of constructing a system for the administration of justice, perceptions do count. However, I would hasten to add that this new power of the Prime Minister must be appreciated in context. The Prime Minister's discretion in relation to composing the LSC is not absolute. Three factors are worth considering. Firstly, it is shared with the Chief Justice and PSC Chairman - he does not monopolise it. Secondly, this discretion is, in fact, limited by the constitutionally enumerated criteria defining the eligible pool of candidates which is designed to ensure that the LSC members have no formal political affiliations. As mentioned, MPs, trade unionists or other persons who might have political affiliations or formal links to the Prime Minister or a political party are expressly excluded from the selection pool. Lastly, the Prime Minister's power is itself subject to the checks of another organ of the Executive - the President.”
“Thus, the clear intent is that the process for nominating LSC members should, as far as is humanly possible, be freed from politics or that political influence is at least minimised. The primary change is the vesting of powers to nominate LSC members in a new constitutional office, that of the Prime Minister, who is added to the current slate of appointing authorities alongside the Chief Justice and PSC Chairman. Under this amendment, the Prime Minister will have the power, for the first time, to appoint up to two persons to sit in the LSC. This denotes a slight shift in political philosophy because the principle of de-politicisation, designed to shield a constitutional actor from what can be the gale-force of political influence, is somewhat modified. Under the current system, the influence of the Prime Minister over the composition of the LSC is, in formal terms at least, indirect. Any influence has to be traced to the fact that the Prime Minister has a role in selecting various constitutional officers who sit in the LSC, as stipulated under Article 111, that is, the Attorney-General, Chief Justice and the PSC Chairman. Under the amendment, the Prime Minister will be able to directly influence the composition of the LSC through exercising his new powers of nomination. In what sense does this development represent a shift in principle? Conferring upon the Prime Minister for the first time a formal role in directly selecting LSC members does import in some degree of political influence since the Prime Minister holds an elected office and heads the parliamentary Executive or Cabinet Ministers as the first among equals. This might raise the concern, as it has done in the past, that it may be possible for the Executive to interfere with the subordinate Judiciary.”
“The Chief Justice under the new scheme will have an increased power to nominate up to a maximum of two persons. The nominees are not required to be Supreme Court Judges. The PSC Chairman continues to have the power to nominate up to two persons, but there is no longer any requirement that they be PSC members. The general rule governing this refashioned nominating power is that either the Chief Justice or PSC Chairman nominates two persons, at least one must be a qualified person under section 2(1) of the Legal Profession Act for a minimum 10-year period. This indicates that while the membership of the LSC should be dominated by those with legal training and experience, this should not be an exclusively legal affair. Furthermore, consonant with the principle of de-politicisation, new Article 111(2B) seeks to preclude or minimise the politicised composition of the LSC. This Article is modelled on Article 106 of the Constitution which sets out the disqualifications for membership in the PSC. This principle is also applied to members of the soon-to-be created Personnel Boards of the Singapore Legal Service under the proposed new Article 111AA(7). Article 111(2B) seeks to institutionally de-link LSC members from political influence, whether actual or perceptual. Article 111(2B) attempts to do so by precluding various categories of persons from becoming LSC members - thus, MPs, trade union members, office holders in political associations and employees of corporations, incorporated under existing laws, other than the Companies Act, such as an employee in a statutory body, are disqualified from LSC membership.”
“Secondly, it vests the power to nominate candidates to be appointed to sit in the LSC in a new constitutional actor. This is a substantive change and appears to mark a shift in principle or policy. The principle of de-politicisation buttresses the existing system regulating the selection process and composition of the LSC. This seeks to keep political influence out of this matter or, at least, to minimise such influence. Presumably, this is to secure the institutional values of objectivity, impartiality and fairness in the management of public servants by the PSC, in general, and the appointment, transfer, discipline and dismissal of legal officers under the jurisdiction of the LSC or its Personnel Boards. Otherwise, the weight of politics may exert undue influence or bias into the process, compelling civil servants to comply with the will of their political masters. Some degree of separation or de-politicisation is desirable to preserve the virtues of the rule of law. Under the existing regime laid out in Article 111(2) of the Constitution, three members of the LSC are pre-selected in the sense they are drawn from the holders of three stipulated constitutional officers - the Chief Justice, Attorney-General and Chairman of PSC. The Chief Justice and Attorney-General enjoy tenure until ages 65 and 60 respectively, which is designed to insulate these officers from unwarranted political influence. The Chief Justice appoints the Supreme Court Judge, while the PSC Chairman may nominate up to two PSC members, to make the full complement of LSC members. Under the proposed new Article 111(2A), the three stipulated officers continue to be LSC members. The point of departure is in the modification of appointing powers and criteria for LSC membership.”
“Clearly, the Chairman cannot wear two hats, that is, the mantle of the presidency and the garb of adviser to the President. There must be some separation of functions or powers. This is perhaps necessitated because the original proposal to have a Vice-President was eventually rejected. Meeting the contingency of a vacated office always should be provided for, to prevent disruptions to the running of Government. So, too, constitutionally established organs should always be fully staffed and able to function effectively. By providing for alternate members, the new Article 37C seeks to ensure the Council of Presidential Advisers is always fully manned. Just as the power to appoint these advisers is not monopolised by any one Government branch but shared between the President, Prime Minister, Chief Justice and PSC Chairman, the power to appoint alternate advisers under the new Article 37C is parcelled out. The President appoints one and the other is appointed by the Prime Minister, in consultation with the Chief Justice and PSC Chairman. The 'checks and balances' interplay of political, administrative and legal constitutional officers in this decision-making process moderates the exercise of power. Article 111 is also being amended and the change is quite substantive. Article 111 relates to another non-elected institution, the Legal Service Commission, or LSC, how its members are selected and by which constitutional actor. In addition to enlarging the size of the LSC, the new amendments bring about alterations in two significant aspects. Firstly, it changes the criteria governing who may be appointed to sit in the LSC; the criteria have been modified and broadened.”
“This affirms that we aspire and subscribe to a government of law and not the arbitrary rule of man. The bedrock of wisdom offered by the ideal of constitutionalism is that "ambition must be made to counteract ambition". Since public power may be abused, one method of addressing this classic problem of power is to diffuse political power and share it out among the various Government branches, to prevent an over-concentration of power in one hand. The adoption of checks and balances is an application of the separation of powers principle which espouses the wisdom and prudence of adopting institutional and procedural barriers to hinder potential abuses of power. Our institutions are designed on these principles. When amending the Constitution to refine existing institutions or to create new ones, it is important that this should be done with an eye to ensuring consistency with basic constitutional principles and coherence with the existing constitutional framework of powers. This is indeed reflected in some of the amendments. For example, the principle governing the selection of members of the non-elected Council of Presidential Advisers, as set out in Article 37B, is faithfully adhered to in the proposed amendment to Article 37C. This provides for the appointment of alternate members to the Council. This is important to ensure that this advisory organ to the President is fully staffed, should a member fall ill. It also caters to the scenario where the presidency becomes vacant or the President is unable to discharge his functions because he is ill or out of Singapore. In these cases, the Chairman of the Council of Presidential Advisers steps in as Acting President.”
“The existing check on the Cabinet today operates through the vehicle of a presidential veto - as it is casually known - or discretion not to concur with the Cabinet's choice of candidates for certain offices, such as the Accountant-General or Chairman of the Public Service Commission. The President exercises personal discretion in this manner. When the presidency was purely ceremonial prior to 1991, the President was constitutionally obliged to act 'on the advice of the Cabinet', which is basically a formality, a rubber-stamping function. The presidential veto now applies to a new category of civil servants created by the proposed new Article 111AA of the amendment Bill. These are members of the newly-created Personnel Boards of the Singapore Legal Service which will exercise certain devolved functions formerly wielded by the Legal Service Commission, excluding the powers to dismiss and discipline legal officers of a certain rank, which the Legal Service Commission retains. The President can refuse to concur with the advice of the Legal Service Commission in relation to who to appoint to these Personnel Boards. The fact that these Personnel Boards fall within the scheme of the President's veto is a recognition of the important public function they play, justifying this extra layer of checks. It also applies in the appointment of Personnel Boards of the PSC under the current legal framework. The end goal of this institutional setup of having the Elected President check the Cabinet in limited matters is to ensure good, transparent and accountable Government. This is part of the political philosophy underlying our Constitution which establishes the rule of law as a fundamental constitutional principle.”
“Mr Speaker, Sir, this constitutional amendment Bill is, I believe, the 37th such Bill since Independence was gained in 1965. Given the present composition of Parliament in our dominant party State, it will clearly be adopted and its effect will be to further modify our flexible Constitution, the highest law of the land. This latest Bill will not be the last one to shape the contours of Singapore's still evolving, often innovative, constitutional experiment. After more than 40 years of statehood, the Constitution remains a work-in-progress, as the Government continues to work out our constitutional salvation. While our constitutional order traces its roots to the Westminster parliamentary system, a colonial legacy, this legal transplant has undergone local modifications through the creation of home-grown institutions, such as the Elected Presidency. This has produced a unique hybrid which realigns the institutional scheme of checks and balances. In the amendment Bill before us today, we see the out-working of having an Elected President rather than a purely ceremonial head of state. The President is constitutionally vested with limited negative or reactive executive powers designed to check the Cabinet in exercising its proactive or initiatory powers in relation to specified matters. The powers of the presidency are implicated, as various proposed amendments in this Bill relate to the selection process concerning key civil servants. One of the chief functions of the Elected President, since it was constitutionally entrenched in 1991, is to check nepotism and corruption from creeping into how key civil servants are appointed. Previously, the Cabinet had unrestricted discretion in this matter.”
“I hope these considerations will be taken into account, if not for this Act, for future laws which confer regulatory powers on the administrative state which affect the lives and interests of citizens and foreign nationals dwelling within our borders. Such procedural safeguards will enhance the construction of good administrative procedure, promote good governance, protect interest and fortify the rule of law. Other than the reservations expressed, I support the amendments in general. 4.40 pm”
“We should be careful not to depart too readily from the constitutional law principle that administrative action should generally be subject to the legal control of the courts through judicial review, rather than relying on non-judicial methods of control, such as ministerial appeals. Both of course can co-exist. In fact, this would enhance the prospect of ensuring fair dealing between the individual and administrative state. My final point is a suggestion on how to strengthen the statutory remedy of appealing to the Minister in relation to section 7 decisions. By analogy, judges are required to furnish reasons for their judgements which enable counsel to decide whether there are sufficient grounds for appeal. So, too, an aggrieved applicant under the EFWA needs to know, for example, why the Controller decided to revoke a work pass or to debar a person from applying for a work pass for a fixed period. This would help the applicant to evaluate whether or not to make an appeal. In certain Commonwealth jurisdictions, the common law has evolved the duty requiring administrative actors to give reasons for their decision. Of course, an administrator may informally choose to give reasons. However, it would be prudent to follow the best administrative law practices abroad where the duty to give adequate reasons has been codified by statute. Giving reasons is one of the fundamentals of good, open and rational administration. Further, telling a person why his application was rejected is to treat him with dignity, rather than impersonally as a member of a faceless mass of people.”
“Such laws substantially curtail due process rights, placing the state above rather than under law. However, this derogation from the rule of law is justified on grounds of necessity of national security. Of course, national security must not be lightly invoked as the justification for limiting basic rights, as this must relate to an exceptional rather than an ordinary state of affairs. Many countries grapple with striking the appropriate balance between liberty and security, not just Singapore. In this process, it is argued that judicial review should be limited as judges are not security experts and should stick to questions of law, not politics or security. Indeed, such matters should be entrusted to the Minister who is expected to act in a politically responsible manner. Secondly, the Constitution is the supreme law and under that, Article 149 gives Parliament extraordinary legislative powers to enact anti-subversion laws. The ISA was enacted and legitimated under this constitutionally mandated special power, even though the ISA clashes with other constitutional provisions as it limits judicial review and suspends the enjoyment of certain fundamental liberties. I am concerned that section 7(6) of the Employment of Foreign Workers (Amendment) Bill does not stem from this sort of extraordinary legislative powers stemming from Article 149 of the Constitution. While the Employment of Foreign Workers (Amendment) Bill is designed to serve the national interest of Singapore, it is surely not a matter of national security. I wonder if the Minister could elaborate on why it is necessary to limit judicial review in respect of decisions taken by the rele vant administrative actors under section 7 of the amended Act.”
“If substantive judicial review is ousted under section 7(6), one might imagine a worst case scenario where there may not be a judicial remedy for a double dereliction of duty. Hypothetically, what would happen if the Controller acts in bad faith or acts irrationally in cancelling a work pass because the applicant has frizzy hair which he personally dislikes. Allegations of bad faith or irrationality are substantive errors and cannot be reviewed under the Act which only allows judicial review for procedural errors. Further, what happens if an aggrieved applicant appeals to the Minister who does not apply his mind to the matter and just agrees with the Controller's decision without carefully re-examining the case. The Minister could be acting unlawfully by failing to use his discretion but, again, would be exempted from judicial review, as this is a matter for substantive review. What other remedies are then available? Limitation clauses which curtail judicial review may be found in other statutes. One that springs to mind is the Internal Security Act. Under section 8(b)(2) of the ISA, no judicial review lies against decisions of the President or Minister except for questions relating to compliance with any procedural requirements set out in the ISA. The proposed new section 7(6) bears a strong resemblance to this clause. Here, again, the reduced scope of judicial review qualifies the rule of law. However, a stronger case for limiting judicial review under the ISA compared to other Acts on at least two grounds can be made. First, ISA is an extraordinary law whose chief goal is to deal with acts undermining state security. Many states today have enacted laws permitting detention without trial to deal with terrorist threats.”
“New section 7(6) limits judicial review by precluding the substantive review of section 7 decisions. Only limited review is allowed to ensure procedural requirements are complied with. Effectively, the two arrows of substantive reviews are not available and only one arrow remains to challenge the decision for non-compliance with procedural requirements. I wonder what these procedural requirements might be and hope that the Minister can clarify this. At any rate, an aggrieved applicant under section 7(6) may only apply for limited judicial review. If the rule of law postulates that the court should generally have the final say in determining the limits of legal power, then section 7(6), to some extent, departs from this principle. So it is understood. The reason why courts are usually the final arbiter on questions of law flows from the constitutional principle of the separation of powers. In Singapore, where the Cabinet effectively controls Parliament, the Legislature and Parliamentary Executive are fused, rather than separated. Thus, the exercise of judicial review by an independent judiciary to control the Executive branch assumes greater importance. By limiting the role of judicial review in controlling administrative action, the rule of law is qualified in so far as it seeks to ensure meaningful legal restraints on the exercise of political or administrative power. This does not mean that administrative actors like the Controller are not subject to checks. It just means that faith is primarily placed in the hands of non-judicial bodies like the Minister to control the Controller and secondarily to the courts. The presence of political rather than legal checks is quite typical of countries where Parliament is supreme. But, in Singapore, the Constitution is supreme.”
“In sum, under the existing Act, it was unclear whether an aggrieved person could bypass the section 7(4) procedure of appealing to the Minister and go straight to court to ask for judicial review on any of the three grounds as described. Singapore's case law is, I think, not conclusive on this matter. Under the new statutory regime, the old section 7(4) is substantially retained and recast as the new section 7(5). Persons may still appeal to the Minister from an adverse decision of the Controller, and the Minister's decision shall be final. In addition, a new provision amending section 7(6) is introduced. This provides that judicial review in a court of law does not lie against any decision of the Minister or Controller except for questions relating to compliance with any procedural requirement of this Act governing such decision. What is the effect of this new provision? Two points are worth mentioning. Firstly, if my reading is correct, it seems that this provision clarifies the problem of whether section 7 decisions made by the Controller and Minister concerning Work Pass applications are subject to judicial review. It appears that the answer is yes. Therefore, there are two remedies for section 7 decisions made by the Controller where an existing work permit is revoked. Firstly, an appeal to the Minister and also applying for judicial review. Secondly, the new section 7(6) is a limitation clause. While it allows the judicial review of the Minister's and Controller's decision under section 7, it also truncates or limits the scope of judicial review and therefore weakens this check on administrative action. As stated, there are generally two heads of substantive review and one head of procedural review.”
“Or under section 7(4), did Parliament intend only the Minister could correct a defective decision made by the Controller? If so, the aggrieved individual would hit a dead end in terms of remedies if the Ministerial appeal fails, and there would be no significant judicial role in controlling the bureaucracy. This sensitivity arises as case law from other jurisdictions suggests that while there is a presumption that the aggrieved individual should first use an available statutory remedy rather than go for judicial review, that individual can apply for judicial review after unsuccessfully exhausting a statutory remedy. So, if the Controller does not grant a work permit and if the Minister upholds the Controller's decision, the aggrieved individual can then take the matter to court. Indeed, there are Commonwealth cases which have allowed individuals in appropriate cases to proceed directly to courts without even using an available non-judicial remedy, such as appealing to a Minister. If the Controller's decision under the terms of the Employment of Foreign Workers Act is subject to judicial review, what are the grounds on which a decision may be challenged? There are conventionally three grounds of judicial review or three arrows which an individual can shoot in challenging the making of a decision. There are two substantive grounds of review - illegality and irrationality - and one procedural ground of review, that of procedural impropriety which concerns procedural fairness. A decision found to be illegal, irrational or procedurally improper is ultra vires or unlawful.”
“The Controller has the power to grant or refuse to issue these permits or to vary the conditions. Although there is no constitutional or statutory right to be given a work permit, this still represents an important interest or privilege at public law, as the grant or refusal of a work permit implicates livelihood issues. The Controller cannot wield absolute power in handling work permit applications and must be accountable for how power is exercised. It usually falls to the court as the independent and impartial branch of the Government to determine when administrative actors, like the Controller, are acting within the four corners of their statutory powers as a matter of administrative law. The court will seek to ensure that the decision-making process satisfies common law test of rationality and fairness. Indeed, this is a facet of the rule of law, as the Court of Appeal stated, in the case of Chang Suan Su versus Minister for Home Affairs, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the court should be able to examine the exercise of discretionary power. Under the current Act, if, for example, the Controller refuses to issue a work permit, section 7(4) provides an aggrieved employer a statutory remedy of appealing to the Minister. The Minister's decision is said to be final and cannot be questioned by any court. If this finality clause is literally interpreted, it would seem that the buck stops with the Minister, as part of the Executive branch. As the statute is silent, it is unclear whether an aggrieved applicant could still go to the courts to apply for a judicial review of the Controller's decision.”
“It allows an administrative official a legitimate margin of autonomy to apply his professional expertise to a case to ensure a good decision. Nevertheless, in a rule of law state, the need for checks and balances must be appreciated as discretionary power may be misused. This harks back to the old conundrum of the problem of power, which raises two issues. First, governments must be empowered to govern effectively. Second, governmental power must be restrained to prevent abuses. As James Madison, the father of the US Constitution, noted, "If men were angels, no government would be necessary." How ever, men are not angels. While citizens may hope for the best to be ruled by a wise and benevolent platonic philosopher king or Confucian jun zi, prudence requires precautionary measures. Law and legal institutions must be constructed to deal with worst-case scenarios - to leash the leviathan or absolute sovereign state that Thomas Hobbes wrote about, which wields formidable power that may be a precipice deployed. How then shall we bind the leviathan? One way to prevent the arbitrary abuse of discretion is to set conditions identifying when discretion may be legitimately or unlawfully exercised. A popular conception of discretion must be compatible with the rule of law, and must appropriately balance the values of fairness and efficiency. A statute can provide clear guidelines in this respect, as in new sections 21A, B and C. For example, handcuffs can only be used for specified purposes, excluding punishment. Further, to be lawful, the power to arrest and to search arrested persons must be exercised with strict regard to decency. I raise my reservations chiefly in relation to the amended section 7 which governs work pass applications.”
“The Act was designed to deal with the problems caused by employers seeking to evade regulatory measures, like the foreign worker levy, by illegally employing foreign workers without work passes or overstayers. The current amendments under scrutiny pay some attention to issues of enforcement. The new section 22 introduces new offences involving active deception in the sale, forgery or unlawful alteration of a work pass. Aside from heavier fines and lengthy imprisonment terms, the amendments also confer extensive powers upon administrative officials to arrest without warrant. Under the old section 21, a police officer or employment inspector may arrest without warrant any person reasonably believed to be employed in Singapore while not in possession of a valid work permit. The amendment to section 21 extends this power of arrest without warrant beyond illegal workers, to include employers hiring foreigners without work permits, or who flout existing work permit conditions. It adopts a more holistic approach of targeting all culpable actors. The power to arrest without warrant is far reaching as it affects personal liberty through bodily restraint or physical incarceration. Personal liberty is a fundamental liberty guaranteed to citizens and non-citizens under Article 9 of the Singapore Constitution. This requires that in depriving a person of personal liberty, this must be done in accordance with law. Laws must satisfy a constitutional standard of fairness. This sort of broad discretionary power conferred by the Employment of Foreign Workers Act reflects the general expansion of centralised powers wielded by the administrative state. Discretion is essential to any regulatory regime.”
“Mdm Deputy Speaker, I rise to support the Bill in general, although I have concerns about certain amendments which relate to how administrative actors under the Employment of Foreign Workers Act are held accountable in the exercise of their statutory powers. My major concerns are with the amended section 7. The current Government policy is to encourage both highly skilled and unskilled foreign workers to come and work in Singapore to meet the labour shortfall. Laws must be lined up with the objectives behind labour policies for this to be successfully realised. As a major labour importing country in Asia, Singapore should recognise and honour the contributions made by foreign workers to our economic growth. These include those employed in low-paying jobs as domestic workers and workers in the construction industry who often face hazardous work conditions. As a nation and aspiring civil and civil rights society, we must ensure that aliens and strangers who come to work in our midst are not oppressed or mistreated as disposable commodities. Indeed, the need to address issues of migration and migrant labour is a global one. Closer to home, Singapore and other ASEAN states adopted the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers in January 2007. The Declaration acknowledges the need to promote the dignity of migrant workers, to redress abuses and recruitment malpractices they are vulnerable to and to ensure they enjoy decent working and living conditions. In translating these aspirations into reality, we have promises to keep and miles to go before we sleep. The Employment of Foreign Workers Act underpins the regulatory environment for managing foreign workers.”
“Sir, I would like to ask the Minister of State whether her Ministry actually receives any complaints from Singapore women who feel that their rights under CEDAW have been violated and, if so, what kind of action is taken.”