Following the recent charge by the Attorney General's Chamber against Mr Li Shengwu, grandson of late Lee Kuan Yew for Contempt on Judiciary, and the on-going coverage of Mdm Halimah Yacob who has expressed intention to stand in the upcoming Presidential Election, one might recall the introduction and passing of the Administration of Justice (Protection) bill in August which Mdm Halimah presided over last year.
Since 7 August, Mdm Halimah has resigned from her position as Speaker of Parliament and her party to stand in the PE2017 as required by the Constitution to qualify as a candidate who is not a member with any political party on the date of nomination.
The point of having the President being not affiliated with any political party, is pretty straight forward, which is to ensure that the President is impartial and unbiased towards political parties and their agendas. However, one might question one's independence if the resignation takes place just a few weeks before an election is to take place or one is to be "elected" as a President.
As Speaker of Parliament, one must remain impartial and fair to all MPs in carrying out the duties in the House. However, Mdm Halimah interrupted the Members of Parliament from the Workers' Party on various occasions during the Parliamentary debate for the Administration of Justice (Protection) bill and one might wonder if the interrupts were justified.
MPs from the Workers’ Party had opposed the Administration of Justice (Protection) Act as there are several areas that continue to be of grave concern. In the speeches and follow -up questions made by the MPs, the party rejected the government’s characterisation of the new Act as business as usual, and its claim that no significant changes were made to existing common law by this Bill.
Keeping clarifications short
Arguing that the Minister of Law, Mr K Shanmugam was not exactly right when he said that the proposed Bill has no changes to the powers of the Government via the Bill and that the Government are not protected under the new law, Ms Sylvia Lim stood and said:
Thank you, Madam. Madam, I have some clarifications for the Minister concerning clause 3(4) and the Lau Swee Soong case, as well as on the aspect of Police.
First of all, on clause 3(4) itself, I do think the Minister is wrong in that my reading of the clause is that it actually increases the power of the Government viz-a-viz public interest, and if I may clarify why I say so. The Minister keeps saying that the Court is still the final arbiter of whether the Government has exercised its powers within the clause. But, really, when you look at the phrasing of the clause, the operative words are "the Government believes it is necessary". Would the Minister agree with me that that introduces a subjective element to the test, that it is the Government's opinion that counts and the Court cannot substitute its own opinion as to whether it is necessary? That is the first point.
Secondly, I believe the Minister has actually touched on what is now the actual effect of the clause, and, that is, that the only way that a Minister's or a Government's decision can be challenged is if bad faith is shown. And we all know that this is very difficult to prove. So, I would like the Minister to confirm that this is actually a significant scoping down of the Courts' power to review the Government's assessment of what is necessary.
Next, on a related point, Madam, on the Lau Swee Soong case, I do not think it is anywhere stated in the judgment that bad faith is the only reason for the Court to intervene to curtail Ministers from speaking too much and to be in contempt. We quoted from the judgment of Justice Choor Singh. It is true that Justice Choor Singh mentioned that if a Minister's statement is calculated to prejudice a fair trial, then he would not escape being punished for contempt. And as far as I understand the word "calculated", it does not need the Minister to intend the outcome. But so long as the statement is likely in the circumstances to prejudice a fair trial, then it already will become a potential contentious statement.
So, we have a conflict here between, on the one hand, the new clause which says that the Government's belief is what counts and, on the other hand, Lau Swee Soongdoes not really say that bad faith is the only way in which the Court can supervise the Minister's assessment.
Next, the Minister, on a connected note, keeps saying that, the Lau Swee Soong case made reference to the fact that—
At this point, Mdm Halimah interrupted Ms Lim and said, " Ms Lim, can you keep your clarifications short?"
Ms Sylvia Lim: Madam, this is very important because I do not agree with the Minister's analysis of the case and I—
Mdm Speaker: Okay, but keep it short.
Putting in context what Ms Lim is addressing, the Law Minister had earlier said:
Mr Low also said that the Government can say whatever it likes and the courts cannot do anything. Completely untrue. Under our system of law, the courts are the final arbiters of any provision of the law. The Government has got to act in accordance with the law. Mr Kok, Ms Kuik, Assoc Prof Mahdev Mohan and others asked me. I confirm that. What Justice Choor Singh said - If a Minister stands up and speaks about a particular case in a manner calculated to prejudice the proceedings and if he does it in bad faith, then I think he will committing contempt, and the Attorney-General will be entitled to commence proceedings.
It is puzzling that Mdm Halimah would find it appropriate to interrupt Ms Lim's clarification when she is addressing a pertinent point about the Bill. Given that by now, we know that the Attorney General is/was Prime Minister's personal lawyer and that the deputy AG is People's Action Party's former Member of Parliament, what the Law Minister gave as reassurance that the powers given upon the Government will not be abused is hardly believable at this point.
"Going round in circles"
Mdm Speaker : Last clarification, Mr Low Thia Khiang.
Mr Low Thia Khiang: Thank you, Madam. Minister earlier said that the Bill has the support of the majority of the population. I would like to ask him on what basis he makes a judgement that the majority of our population supports this Bill.
Mr K Shanmugam: I am glad that you asked that. We did a scientifically valid statistical survey and a very substantial majority – the thing is I do not have the survey with me right now – supported it. And I do not want to quote the figures because I cannot remember the figures but it was a survey conducted by us and the results of the survey were that we had substantial support.
Mdm Speaker: Ms Lim, are you making the same clarification because —
Ms Sylvia Lim: Madam, I am on the same one.
Mdm Speaker: Please keep it short because we are going round in circles.
After Mr Low Thia Khiang sought clarifications from the Law Minister about the claimed support of the proposed bill during the debate, and Ms Lim raised her hand to make a clarification with the Law Minister, Mdm Halimah asked Ms Lim to keep her clarification short because the debate was going in circles. However, if one were to read the debate and the Law Minister's answers to the questions posed, it would probably seem that questions were not answered straight. An example would be the following answer given by the law minister.
Ms Sylvia Lim: Yes. The only thing I want to ask the Minister is he said that there was a survey done and the majority of the people support it. Can he confirm whether the draft Bill was actually shown to these people and were they just asked some general questions about protecting the integrity of our Courts?
Mr K Shanmugam: My understanding – and I do not want to misstate it - my understanding is that the questions related to putting in statutory form the law of contempt and if you look at it, we are now setting it out in writing. So, that was the context. I think there was majority support.
At this point, Ms Lim and others put their hands up in the air again to indicate that they had follow-up questions to be asked, however, Mdm Halimah promptly called out for the Bill to be read a second time without looking at the Parliamentarians.
Though the matter that was debated in parliament is of utmost importance for Singapore's democracy, but Mdm Halimah seem to adopt a position that the Bill should be hastily debated upon and passed in Parliament on that very day. (Bills in Singapore passed on the same day of debate and are rarely amended even with serious concerns raised by MPs from political parties. A fact that Singaporeans are largely unaware of.)
Not inclined to call for a division
Mr Low Thia Khiang: Mdm Speaker, I call for a Division on the Bill.
Mdm Speaker: Instead of a Division, Mr Low, would you —
Mr Low Thia Khiang: Madam, I call for a Division.
Mdm Speaker: Will Members who support the Division, please rise in your places. We have five Members, as required. Clerk, please ring the Division bells.
So according to Hansard, that was what happened at the Parliament. That Mr Low had called for a division and was allowed.
But as I was there during the sitting, I note that Mdm Halimah had already said, "The Ayes have it, the Ayes have it" when Mr Low had been raising his hands up in the air all the while. Mr Low had to walk all the way over to the podium to make his intention to call for a division clear through the microphone as Mdm Halimah hesitated to respond to him and tried to dissuade him from calling for a division.
Subsequently after the Bill was considered in Committee and reported without amendment within a few minutes. Mdm Halimah called for the the Bill to be read a third time.
That was when Mr Low Thia Khiang stood up and said,"Madam, I call for a Division."
Mdm Halimah replied Mr Low by saying, "The Third Reading has already begun." However, Mr Low retorted by saying that the bill has yet be agreed to.
Mdm Halimah, though seen not pleased with Mr Low's request, replied, "So, you now want to call for a Division for the Third Reading? We shall go through the same process. Can all those Members who are supporting the Division, please stand up? There are more than five of you. Please sit down. Clerk, please ring the Division bells."
So looking at the above examples in just one parliamentary sitting, just how prudent or independent would Mdm Halimah be when it comes to decisions to be made on crucial matters such as safeguarding the reserves, signing orders for people to have their detention extended under the Internal Security Act without trial or to scrutinize appointments of public officers in cases after her appointment as President, such as appointment of one's personal lawyer to the position of Attorney General?