我不喜欢霸凌人民的恶霸

I DON'T LIKE BULLIES
by Teo Soh Lung

On 8 October 2021, the state media informed us that 8 individuals and one Facebook page, Wake up Singapore received letters from MHA demanding that they apologise for misrepresenting what the Minister of Law and Home Affairs, K Shanmugam said in parliament. Apparently, he was in a hurry to extract apologies. One of 8 individuals said that she was given just one hour to comply with the demand or face the consequences. All nine parties are reported to have complied even though one of them maintained that she only clarified and did not apologise.

The nine had shared Mothership's article on the minister's convoluted and somewhat contradictory speech in parliament when it debated on FICA or Foreign Interference Countermeasures Act.

In his long speech, the minister tried to impress us that he was a disciple of the late Senior Minister, Lee Kuan Yew. While it is true that Lee loved to give long lectures off his cuff, I am afraid the minister is no way near Lee's eloquence and clarity of thought. Lee could go on for hours and mesmerise his audience in his younger days. He was a convincing speaker and parliament was alive when he took the floor. This is not to say that he was the only orator. There were many in those day.

In Lee's later years, his skill as a debater declined. He was more a bully and a bad loser when he failed to win a debate. It was understandable why he lost his skill. Too long in a one party government wiped out real debates. I do not think anyone dares to oppose him in cabinet meetings. We see his deteriorating skill in the 1986 debate with Francis Seow, Harry Elias and Warren Khoo at the Select Committee hearing on the Amendment to the Legal Profession Act. He was angry when he lost an argument and took his revenge subsequently.

Mr K Shanmugam became a member of parliament in 1989, just one year before Lee stepped down as prime minister. While it is true that the minister can learn to be like Lee from reading Hansard and all the books that he had written, I don't think it will be the same. You can watch the minister's debating skill when he questioned Dr P J Thum in the select committee hearing on POFMA or Protection of Falsehoods and Manipulation Act. Here is a short extract if you don't have the patience to spend six hours listening to him https://youtu.be/wY_Wrh1UnnM?t=6.

Let me go back to the minister's speech which in my opinion, was correctly understood and stated in the article in Mothership and shared by the nine parties. You can read the transcript by Lynn Lee here https://tinyurl.com/ykds6mpk I just want to pick out the minister's salient words and give you my understanding of his words.

MINISTER: In 1989, I was a lawyer, four years out of law school, or four years after being called, and like many other lawyers, my assumption was, every problem, the solution is in the courts. AND JUST LIKE MR SINGH AND OTHERS, I ALSO TAKE SEPARATION OF POWERS VERY SERIOUSLY. (emphasis in uppercase mine)

When I read the above sentences, especially the sentence in uppercase, I had the impression that the minister's belief in the separation of powers as he was taught in law school has changed over the past 30 odd years.

By way of example of how his belief has changed, he talked about the Maintenance of Religious Harmony Act (MRHA) which was enacted in 1990. He said he was uncomfortable with it and spoke about it within limits as a backbencher. The MRHA gives absolute power to the minister to silence any religious person or persons in authority from any acts which he deems unlawful under the law. This I must say is the power of Lee Kuan Yew. He could convince people who are guided by non-human beings to agree that such a law was necessary. He then went on to say:

MINISTER: Now, what has changed, what has made me change my mind? If a man looks at facts, the real world, and refuses to change his mind, he is either stupid, or he is ideological. I am neither, I think.

Don't these statements lead us to the natural conclusion that the minister has changed his belief from the time he was a law student and a young lawyer to today? He went on to give examples of why he has changed his mind about the rule of law.

MINISTER: You see the issues around the world, where lip service is paid to all these grand concepts, but the societies live in utter misery, where rule of law is a concept for lawyers, but it doesn't operate in the real world.

Isn't this clear that what the minister is saying is that the rule of law does not operate in the real world and that it is only a concept for lawyers! He went on.

MINISTER: And then I began to understand the meaning of his [Lee Kuan Yew's] original speech to the Law Society, when he said, law and order – I reverse it, order first before law.

... If you can't have the CLTPA [Criminal Law (Temporary Provisions) Act] and arrest the gangsters, how are you going to have law?

The CLTPA is a law that allows detention without trial which is totally against the rule of law. He knows that. Arrest first and let the poor fella scream his innocence later. So the CLTPA must authorise someone (in this case, the minister) to order arrest and detention without trial.

I don't think I am wrong to say that the minister had openly agreed that he does not believe in the rule of law in certain laws like the CLTPA. These are to him necessary exceptions to the rule of law. But he cannot openly say this. Neither did his mentor or any other minister before him say that. Our judges agree that there can be deviations from our Constitution which is supposed to guarantee an open trial for every person. But make no mistake, such laws are against the rule of law which demands there be an open trial where real evidence are produced and a person is convicted only when he is found guilty based on the evidence before a judge.

The minister rambled on and got himself entangled.

He said: “So I began to understand why we have a strong commitment to rule of law, strong commitment to separation of powers, AND AT THE SAME TIME, OVER TIME, IN SPECIFIC AREAS – FOR EXAMPLE, I SAID, LAND ACQUISITION ACT.”

The minister wants to believe in the rule of law. At the same time, he wants exceptions to be made where the rule of law does not apply. He cited the Land Acquisition Act as an example.

MINISTER: Would we in Singapore be where we are if we had taken the Indian approach? Every matter goes up to Supreme Court on land acquisition and it takes years to deal with it? SO I SAW THE GENIUS IN THE ADAPTATIONS THAT OUR SYSTEM HAS MADE, OR THE FOUNDING GENERATION HAS MADE.

The minister was enlightened by the founding generation who enacted the Land Acquisition Act soon after independence. That law vests the power to acquire land for public purposes in the president who of course acts on the advice of the cabinet. Compulsory land acquisition by the government had enabled it to acquire huge parcels of land at below market prices for decades. It was the Robin Hood law but it cannot boast of compliance with the rule of law. It is indeed an exception to the rule of law and the minister is very proud of its achievement.

The minister then went on to insult former British colonies. He said:

“You look at all the countries in the post-colonial world. They inherited the institutions from the British. A civil service, a judiciary, laws, schools, education. What have they done with it? Most of them have gone down the tube while their grand rhetoric”...

It is clear from the minister's speech that he does not believe in the separation of powers or the rule of law. But he cannot admit this because he is a lawyer and a law minister in a developed country. Following his master's voice, he therefore enacts laws which he calls exceptions to the rule of law. These laws are easily enacted as the PAP has a super majority in parliament.

In 2019, POFMA (Protection from Online Falsehoods and Manipulation Act) was his first attempt. But he soon realised that it didn't go far enough for the affected party could still proceed to the High Court and the Court of Appeal by way of judicial review. That was what happened to his POFMA directions to the Singapore Democratic Party and The Online Citizen. Was it his oversight or was he testing the waters in 2019?

FICA or Foreign Interference (Countermeasures) Act takes a bolder step. The minister restricts appeals against his orders to be made to a Review Tribunal which is appointed by the president on the advice of the cabinet. The law prohibits appeals to the High Court except on procedural matters. So judicial oversight is removed unless an affected party has the money and time to take it to the Supreme Court to test out the effectiveness of the law.

The minister tells us that the Review Tribunal is a respectable and independent tribunal because it is presided by a High Court judge. That may be so but he does not tell us that the term of each person in the tribunal is for a period of 3 years and they are not bound by procedures. While it is true that each term of 3 years can be renewed, the tribunal does not have the tenure, status or respect of a real High Court judge. I do not think any respectable judge takes it as an honour to sit in such a tribunal. Having personally appeared before the Advisory Board chaired by a High Court judge when I was an ISA detainee, I do not have a good opinion of the Board.

The minister then tried to be very clear. He said:

MINISTER: All of this [judiciary, civil service, SAF etc] is built up with the foundations of bringing order first, and making sure the law, commitment to rule of law, is there. BUT MAKING THE EXCEPTIONS WHERE NECESSARY. AND I TOOK YOU THROUGH THE EXCEPTIONS. And to me, the best example of how this operated in practice, is when I saw how the Americans were struggling with it.

From the two sentences in uppercase, the minister is telling us that laws such as CLTPA and ISA are exceptions to the rule of law i.e. rule of law does not operate in such laws BUT he cannot admit this. Neither can the late Mr Lee or any of the ministers before him.

The minister then went on to talk about Guantanamo and how the Americans set up this living hell in a territory that is not within the United States and therefore not subject to due process and the rule of law.

MINISTER: Let's that's why I said let's get out of this colonisation of our minds. Let's look at what works, what is fundamental. Checks and balances are important, but what is wrong with the checks and balances we've built in here? So yes, I'm not embarrassed to say that I had certain views, straight out of law school, the first four years. The only mistake is I shouldn't have become an MP when I was 29. I should have waited a bit longer. BUT I'M NOT EMBARRASSED TO SAY THOSE WERE MY VIEWS, AND THOSE VIEWS HAVE CHANGED BECAUSE OF THE REALITIES OF LIFE. NOT BECAUSE I BECAME A MINISTER BUT BECAUSE OVER TIME, LONG BEFORE I BECAME A MINISTER I SAW HOW LAWS ARE MEANT TO OPERATE AND WHERE THE EXCEPTIONS HAVE TO BE MADE.

Wow, “colonisation of our minds!” I like this phrase. But doesn't this make it crystal clear that the minister has changed from his youthful idealistic self to a hard core practical minister who is intent on bringing order before allowing the law to take its course? He has like his mentor, taken short cuts, putting away “trouble makers” who disagree with his hardline policies. By doing this, it will reap benefits for his party for it can do whatever it wants. But is he doing terrible damage to our country and its people especially the young who will survive him and his generation of hardline politicians.

The minister finally returns to FICA from his reminiscence of his past. He said:

MINISTER: I saw how laws are meant to operate and where the exceptions have to be made. So as I sit, sat with my officers and drafted this, and the AGC, yes, there were parts that I wished were different. But the threat we face, as I said, are people armed with bazookas. And I describe this legislation as a toy gun.

I don't understand what he had in mind when he talked about people being armed with bazookas and FICA being just a toy gun. What is the use of a toy gun if the threat of bazookas is real? Why not use the army against those who are armed with bazookas? Why make exceptions to the law or rather to the rule of law by having toy gun legislations?

The PAP is not new to using “foreign interference” as an excuse to enact tough laws which give ministers power to do anything they want in the name of “public interest”. In the name of public interest, the ministers are free to issue orders and are not bound by the rule of law.

In this rambling speech, the minister has finally made it clear that laws such as FICA are exceptions to the rule of law. I give him credit for this admission as no one else has done so in the past. He may not have ruled out the rule of law in all cases, but he certainly admits that the rule of law does not apply to legislations such as FICA. That said, FICA enables the minister to bully small people like you and me. The judiciary cannot help us. I would not encourage any person to take the matter relating to FICA to the High Court and the Court of Appeal. I have tried that in relation to the ISA and failed.