Lawful Lawlessness or Legal Opportunism

cantonment-police-complexby Teo Soh Lung

Singapore is unique in many things, including lawlessness committed by the very people who are supposed to ensure public safety and security.

It is now 257 days since the police seized my mobile phone and computers. I do not know what pleasure they gain from retaining my properties.

Seizing properties from citizens is quite a recent phenomenon. The law allowing the police to seize properties under certain circumstances was sneaked into the Criminal Procedure Code (CPC) when the old code was repealed and the new CPC incorporating major amendments was introduced in parliament in 2010.

Rather innocuously, Minister for Law K Shanmugam said of the power of the police to seize properties:

“Clause 35 [presently section 34] of the Bill builds upon the existing powers of the Police to seize property under certain circumstances, by expanding the powers to three specific classes of property:

(1) Property in respect of which an offence is suspected to have been committed;

(2) Property suspected to have been used or intended to be used to commit an offence – for example, dangerous weapons used to commit gang robbery, and

(3) property suspected to constitute evidence of an offence, for example, bits of clothing found at a crime scene.

Property falling within the first and second classes will include not only the original property, but also any property that it has been converted into. So, for example, if a suspected watch thief has sold the stolen watch and used the proceeds to buy a computer, the Police may seize the computer instead.”

I suspect no one in the house anticipated the powers of the police to be expanded to what the police do today. They were probably misled by the opening statement of the minister that the clause “builds upon the existing powers of the Police to seize property …” The clause widens the power of the police to an extent which I will term as “lawful lawlessness”. I do not think anyone in the house anticipated computers and mobile phones of law abiding people to be seized by the police. No member of the house objected or even sought clarification of the new clause. I suspect only the minister knew what he was going to do with the new power.

It was also in 2010 that the phrase “arrestable offence” replaced “seizable offence” in the definition section of the Code.

lianain-filmsThe new law came into effect on 2 Jan 2011. Two years later, we saw the use or rather abuse of this law on its first victim, Lynn Lee, a filmmaker and then on Leslie Chew, a cartoonist.

The police went knocking on the door of Lynn Lee one morning, pretending to seek information from her about allegations of intimidation and assault on two bus drivers. In her blog, http://www.lianainfilms.com/…/in-which-lim-makes-me-kopi-a…/ she gave an account of how she was harassed in the early hours of the morning in Feb 2013 and then at the police headquarters at Irrawaddy Road. The police did not seize her computers and mobile phone then but clearly, the hard disks were cloned in her presence and her computers damaged beyond repair. She was detained for more than nine hours without dinner and would not have been released had it not been for her friends who gathered outside the gate of the police headquarters after 10 pm.

Two months later, Leslie Chew was the next victim. He was given worse treatment including a taste of the police lockup at the notorious Police Cantonment Complex for nearly 48 hours, the maximum period the police are allowed to detain a person without a charge. He had just returned from abroad and they could not wait arrest and seize his computers the minute he arrived at his parents’ home. They seized his computers and threw him into the police lockup at midnight. They could not wait for daylight because they wanted to give him the maximum shock effect.

Leslie Chew was never charged in court though they tortured him by allowing him to be on a $10,000 bail bond and having to report on weekly and then monthly basis for god knows how long. It took the police several months before his properties were returned.

I do not know how many people have been subjected to the treatment meted out to Lynn Lee and Leslie Chew. In May 2016 however, the police came for Roy Ngerng and me. We learnt from journalists that the police were investigating us for Cooling Off Day offences. At 9.30 pm the next night, a letter from the police was slipped under my door. I was invited for an interview at the Police Cantonment Complex. The next morning, a Sunday, the police was again at my door just to make sure that I received the letter.

Roy and I were interrogated by the police on 31 May 2016. Following that, we were driven home and our mobile phones and computers etc were seized even though we have never denied the allegations made against us i.e. that we posted on our personal facebooks, opinions and news, both old and new on Cooling Off Day. Our defence was that it was our constitutional right to do so. Till today, the police have not returned our properties. None of us has been charged in court.

There is no doubt that Singapore has reached a state of lawful lawlessness or what Function 8 calls “legal opportunism”. Here is their statement:

https://fn8org.wordpress.com/…/function-8-condemns-legal-o…/

1 June 2016

Statement from Function 8

Function 8 deplores the intimidation of Roy Ngerng and Teo Soh Lung and the unnecessary seizure of their mobile phones and computers on 31 May 2016. This follows their interviews with the Singapore police at the Police Cantonment Complex pertaining to an investigation into facebook postings on cooling off day on 6 May 2016. The police have clearly abused their power of investigation as both Roy and Soh Lung had never denied, and indeed confirmed at the interview, that they had commented on, and shared postings on Facebook which had been made by others.

Function 8 deeply regrets the actions of the police in this unnecessary seizure which is an invasion of privacy and an act of intimidation against Roy and Soh Lung. In our view, it is part of a chain of recent incidents that encroach upon the work of civil society which contribute to the legitimate exercise of good citizenship.

We, at Function 8, condemn the use of governmental powers against sincere individual citizens and civil society groups that are striving to make our nation a more inclusive, and a more caring one, accountable for the welfare of our fellow human beings. This is truly an act of legal opportunism.

Function 8 Ltd

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Tyranny of the majority

By Teo Soh Lung

select-committee

“… the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” – John Stuart Mill

The PAP government is fond of telling us that it has the mandate of the people and is free to carry out whatever it thinks is “good for the people”. Indeed, the government does get away with a lot of unjust policies which in any first world country would never have seen the light of day. The philosopher’s words are irrelevant to the PAP but his warning in the essay that there could be “tyranny of the majority” can often be seen in Singapore. Take the case of Francis Seow. He was elected by an overwhelming majority of his peers to be a member of the Council of the Law Society of Singapore in 1985. The majority of members in Council subsequently elected him to be the president for a term of two years. But what did the then prime minister, Lee Kuan Yew together with two other ministers, Mr E W Barker and Prof S Jayakumar and five members of parliament, Dr Yeoh Ghim Seng (who was the chairman), Messrs Bernard Chen, Chua Sian Chin, Tang See Chim and Dr Tan Cheng Bok did to him shortly after in a televised parliamentary select committee hearing? They approved a bill that allowed the removal of Seow as the president of the law society. Incidentally, five of the eight members of the committee were lawyers.

Swiftly, and by an overwhelming majority of PAP members in parliament, the bill was passed and Francis Seow was unceremoniously removed from council even before his term expired. To be exact, he served as president for barely ten months. That blatant and shameful act though completely legal, was never debated in parliament or outside. Singaporeans did not protest. No one breathed a word because everyone knew then that they could be the next victim. Fear prevailed throughout the 1980s and after.

The following oppressive, chilling and incredible debate between Lee Kuan Yew and Francis Seow graphically illustrates the tyranny of the majority which John Stuart Mill and so many other thinkers had written about more than a hundred years ago. Sir Ivor Jennings, Walter Raeburn QC and all those who assisted in the drafting of the Constitution of the Republic of Singapore for the PAP would probably regret being its architect and may be turning in their graves many times over. The constitution which was meant to protect the people with its clear pronouncement of fundamental liberties, has never been the supreme law as intended by the authors. It has time and again been amended and used against the people of Singapore, lending legitimacy to immoral acts of the government.

francis-seowFor ease of reading, I have inserted PM for Prime Minister Lee Kuan Yew and Seow for Francis Seow and deleted the numbering of paragraphs which ran from 414 to 422 (pages B65 to B66) of the Report of the Select Committee on the Legal Profession (Amendment) Bill, 1986.

PM: Do you know why those investigations proceeded?
Seow: Why? It is quite obvious why.
PM: Why?
Seow: Okay, you tell me why?
PM: If it is obvious, I want to hear your explanation?
Seow: Well, maybe my explanation is different from yours.
PM: Tell us. I will tell you mine in a moment?
Seow: Yes. You don’t like me to be the President of the Law Society. It is simple as that.
PM: No. I am astounded and outraged that a person with your moral qualities is being asked to uphold the integrity of the Bar?
Seow: And why not, may I ask? If my peers, if the rest of the members of the Bar who know the full circumstances of my two suspensions and convictions still see me fit to elect me, it is not for this Committee nor for you or indeed anyone to say that I should not be.
PM: Mr Seow, when we legislated it never occurred to us for one moment, first, that lawyers of more than 12 years’ standing would vote you into the Council and, second, that the Council members, 10 of them, would vote and make you President. And when that happens, the law will be changed because obviously the lawyers are not fit to look after their own affairs. By the time they elected you as President, I am entitled to tell Members of Parliament and Singaporeans that they are unfit to govern themselves, a right of government which we, as legislators, have delegated. That is why we are here — ?
Seow: I accept that.
PM: To change the law. And if you convince me further that we have not changed it adequately, I will go another step to make sure that this does not happen ever again. It is for me. It is not for you to decide?
Seow: I accept that. But as of now, the fellow members of the Bar, knowing fully what the position is. Look, my life has been an open book. The Straits Times has been canvassing everything about my convictions, my suspension, almost ad nauseam. So these members know it when they voted me in. They are also thinking people and they know what is right and what is wrong.
PM: By that you mean that they can absolve you from all moral blame because they have reposed confidence in you by voting for you?
Seow: I do not know what you mean by morality or —-
PM: You have no sense of right or wrong or shame? —
Seow: Of course, I have the sense of right and wrong as well as the expression of shame, as I am sure all of you do have. As a matter of record, may I mention this, that I was in fact suspended for one year from the 30th April 1973 to the 29th April 1974. That was my first suspension over that unfortunate Gemini affair. I stood and was elected as a Council member in 1976 and 1977.

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Chancellor Angela Merkel, my admiration


angela-merkel-773848 by Teo Soh Lung

Watching Chancellor Angela Merkel handle the horrific tragedy in Berlin on BBC, I am full of admiration for her. She was calm despite the enormous responsibility and the increased blame that would be cast upon her for welcoming refugees. She acknowledged and expressed that fear openly and solemnly laid flowers at the site of the tragedy. The Germans like the English, took everything in their stride. They went about their business soon after, determined not to be cowed by terrorism.

As I watched the reactions of the Chancellor and the Germans on television, I could not help thinking about what our government and Singaporeans would have done if a similar incident happened here. Our ministers said that they are well prepared for a terrorist attack and have conducted many rehearsals. I don’t know how well prepared we are though I have no doubt that they have very sophisticated anti terrorism equipment and weapons.

In Berlin, one Pakistani asylum seeker was quickly arrested but released within 24 hours. That delay had probably contributed to the escape of the real culprit to Milan. But the forensic team did not stop working on the finger prints and documents found in the wrecked truck. They managed to identify the killer. He was finally shot dead by the fast reaction of a young Italian police officer (quite by accident) when he opened fire at his colleague.

thenewpaper-23-dec-2016How will Singapore handle the situation if what took place in Berlin happened in Singapore? I think a curfew will immediately be imposed, inconveniencing the entire population. Many people, innocent or otherwise will be arrested and detained without trial under the ISA. That after all is the purpose of the ISA. No one will be released within 24 hours. Singaporeans will accept all these without a murmur, trusting that the government is doing its best. Meantime, the culprit will escape to another country despite our tight security. I don’t know what role INTERPOL which has its headquarters here will contribute towards the search for the culprit.

The culprit will escape if we go by past cases. We have had at least two incidents when despite island wide man hunts involving riot police, Gurkhas, navy and an inordinate number of police vehicles, the culprits managed to leave Singapore, one apparently by sea and the other by air. Remember Mas Selamat who escaped our top security prison in 2008 and the Australian who robbed Standard Chartered Bank in Holland Village this year? Both were arrested subsequently by Malaysian and Thai police respectively.

my-paper-08072016Mas Selamat is now back in the top security prison, untried even for the offence of escaping from the prison. I suppose this is in line with our non transparent way of handling embarrassing situations. They think that Singaporeans are easily satisfied with the findings of the commission of inquiry which allegedly investigated into the escape and a public trial will not be necessary to prove or disprove its findings. As for the bank robbery, I don’t know if the culprit was handed over to Singapore. We have not been informed about what happened to him.

My gloomy pre Christmas thoughts were somewhat lifted by the sensible words of sociologist Tan Ern Ser and the assistant secretary of the Inter Racial and Religious Confidence Circle, Mr Ahmad Tashrif Sarman (the newpaper 23 Dec 16) who said that it was dangerous to blame anyone without evidence. If all of us can refrain from jumping to conclusions when things happen or arrests made and stop believing every word of our government, we will be a changed society. But do we want an accountable government?

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We Cannot But Minister Can

Administration of Justice BillMinister for Home Affairs & Minister for Law K Shanmugam’s comment (his Facebook of 16 Dec 16) on the sentence of 10 weeks’ jail imposed on the man who assaulted a policewoman just three days after the case was reported in the media is a clear illustration of how the government uses and takes advantage of the law, in this case, the new Administration of Justice (Protection) Act.

Section 3(4) of the Act permits institutional bias – the government can comment on a case within the period when an appeal may be lodged while the public cannot. Prior to the enactment of this law, the public was permitted to comment on such a case.

The minister said: “He [the convicted] has been sentenced to 10 weeks jail for this. I have asked the Ministry of Home Affairs (MHA) to relook at the legislation, to consider whether this is adequate. I have said to MHA that anyone who attacks a uniformed officer should learn a lesson, which he will never forget; and it should be enough of a deterrence to others.

We acknowledge that the minister has vast powers and his opinion can influence decisions. The judge in the case had exercised his powers within the limits provided by the law. The maximum prescribed penalty for assaulting a public officer is “7 years, or with fine or with caning or with any combination of such punishments.” The judge had exercised his discretion within the law when he sentenced the man to 10 weeks’ jail.

Our criminal laws (enacted long before Mr K Shanmugam was appointed a minister) set out an appeal process. The prosecutor has 14 days to appeal against the sentence if he is of the opinion that the convicted deserves a heavier sentence. What the minister should have done (if he strongly feels the need to interfere which I think should be discouraged) is to instruct the attorney general to lodge an appeal against the sentence and not make a public statement expressing his dissatisfaction with the sentence. His comment is a criticism of the judge.

Finally, why does the minister threaten to amend the laws over just one case and before the appeal process is exhausted? Singaporeans are used to knee jerk reactions from ministers and swift amendments to laws without thorough research and debates. But do we really need ministers to react in this way?

by Teo Soh Lung

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Congratulations to Dr Ang Swee Chai

We congratulate Dr Ang Swee Chai on winning the MULAN Award 2016 for her exceptional contributions to voluntary work in the Community and Charitable Causes. The award is given to Chinese women who have contributed their talents and skills to education, arts and culture, business and enterprise, the community and charitable causes.

Dr Ang’s courage, determination and dedication to humanitarian work in the Middle East is well-known. She is the founder and patron of Medical Aid for Palestinians, a charity now in its 32nd year. As an orthopaedic surgeon, she has devoted her expertise and time in conflict zones and has spoken up about the massacre in Sabra and Shatila in her book “From Beirut to Jerusalem.”

Dr Ang Swee Chai is a Singaporean. She was imprisoned under the Internal Security Act in 1977 and left Singapore to join her exiled husband, Francis Khoo Kah Siang in UK after her release. She was permitted to return to Singapore for just a brief period with her husband’s ashes in 2011. She stays as a beacon of bravery and humanitarianism. She has been a constant source of inspiration to many of us in Function 8.

Function 8, Singapore

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Abuse of the Court Process?

abuse-of-court-processesBy Teo Soh Lung

The Newpaper reported on 9 Dec 2016 that the Court of Appeal comprising Chief Justice Sundaresh Menon and Judges of Appeal Chao Hick Tin and Andrew Phang “gave notice that lawyers who submit such last minute applications will now have to explain why they could not raise the arguments during earlier appeals.”

 

Newpaper went on to say that the court had recently faced a string of last-minute applications from death-row convicts and wants a stop to what it sees as an abuse of the court process.

I do not know how many last-minute applications have been argued before the court and over what period of time. But four death row prisoners had appealed against the sentence of death in the first week of December. The applications raised constitutional arguments touching on the separation of powers under our constitution – that the legislature, executive and judiciary have separate powers and functions. This principle has never been argued in capital cases relating to the requirement of a prosecutor’s certificate confirming that the convicted offender had assisted in “disrupting drug trafficking activities” before his case can be reviewed by a High Court judge who can then decide to grant him life and caning instead of the death.

Earlier this year, there were two application from Kho Jabing who faced imminent execution. A few months later, one application from a Nigerian, Chijioke Stephen Obioha who argued that an eight year wait in death row amounts to cruel and inhuman punishment. As the High Court is now in recess till January 2017, I think there will not be any other applications for the year.

Six death row prisoners in one year have caused the judges to issue the stern and unreasonable warning to lawyers not to file last minute applications without reasons. I hope the Law Society of Singapore being “one of the major components of civil society” (to use the words of the president) will speak up on behalf of all the brave lawyers who not only volunteered their money, time and effort to save lives but who received endless criticisms from the bench.

I was at the hearing of the applications of two of the six prisoners – Kho Jabing and Chijioke Stephen Obioha. The judges sat to hear both applications after 5 pm.

Kho Jabing
In Kho Jabing’s case, the registry staff probably worked till the early hours of the morning. I was told that just before midnight, they sent a notice to the lawyers that his application would be heard at 9.30 am the next day. That compelled the lawyers to return to their office to work through the wee hours of the morning. They sacrificed their sleep.

Who caused all those extended hours of work for the judges, staff of the registry and lawyers? Could not the application be heard the following week or month? What was the urgency? To hang the man on the scheduled date and time so as not to trouble the president at the Istana or waste the time of the executioner waiting at the gallows?

Kho Jabing was hanged three hours after the verdict. I was eating my lunch when I received the news. It was chilling and everyone who heard it was upset. What was the urgency? Why deny his mother, sister and cousins who came from Sarawak a few more visits?

When it all started
I think it all started with the case of Kho Jabing. I was in court when the judges kept chiding the lawyers for filing last minute applications. They were clearly agitated. But if they would pause to look and think about the man in the dock who was fighting for his life, I think they would not be so unhappy that their valuable time was being “wasted” by lawyers.

Kho Jabing was a native of Sarawak, a Iban who I think did not understand the English language. He had an interpreter but how much of what the judges said was interpreted to him, I do not know.

I felt terrible sitting in the gallery, listening to all the petty utterances from the bench. I felt so sorry for the poor, simple minded Iban who in his own unselfish culture in Sarawak must feel bewildered though gratified that so many lawyers have acted for him gratis and so many young people paid for the airfares of his mother and sister to come to Singapore to meet him before his death.

Why deny the prisoner?
The hearing of the application of Chijioke Stephen Obioha was equally disturbing. The judges kept asking for the reasons as to why the application was made at the very last minute. The young lawyer could not answer as he was instructed just a few days ago. He did not represent the prisoner in his trial or appeal. The judges kept harping on the fact that it was not the first time that Chijioke Stephen Obioha had filed last minute applications after the execution date was fixed. They should have asked his previous lawyers and not the newly appointed lawyer. They must have voiced their unhappiness four or five times.

Chijioke Stephen Obioha’s family do not live in Singapore and they were not in court. The judges didn’t think that in this day and age, there would be problems communicating with the prisoner. As a former prisoner myself, I can confirm that there are huge problems. Every letter to an inmate goes through several hands and may never reach him. Emails are helpful but the inmate does not have access to a computer. In the end, Judge Andrew Phang himself volunteered the answer. He said “You (the lawyer) don’t know the answer”. The lawyer agreed.

Chijioke Stephen Obioha was silent in the dock. I think he understood the words of the judges but he did not interject or tell his minders that he wished to speak with his lawyer or address the judges. He probably knew he had no chance with the hostile words from the bench.

After the hearing, the judges did not dismiss the application immediately but adjourned to deliberate. The prisoner was led out of the court and the observers sat glumly waiting for the inevitable verdict.

When the judges emerged after more than half an hour and sat on the bench again, the lawyer for Chijioke Stephen Obioha informed them that his client would like to explain why he had made the last minute application. Judge Andrew Phang hesitated and without consulting his fellow judges said he did not wish to hear him. In any case he said, the reason was “not central.”

If the reason for the last minute application was “not central”, then why harp on that throughout the hearing?

I cannot imagine how Chijioke Stephen Obioha felt that evening. It was incredible that he did not burst into tears and sob aloud when he was denied his request to speak. Maybe he was terrified.
What were his thoughts when he walked with shackled feet to the gallows at dawn. Would he question why he was denied the opportunity to explain why his application was made so late in the day. Perhaps in the next world, Chijioke Stephen Obioha will find the answer.

Chijioke Stephen Obioha’s lawyer had argued that it was cruel and inhuman punishment to be on death row for eight years and that his sentence should be commuted to life and caning. The judges did not agree and said that it was Chijioke Stephen Obioha’s filing of last minute applications that delayed his execution. The blame for the delay was on him and not on the State which took time (about two years) to draft the new law pertaining to the discretionary powers of the prosecutor to issue the certificate necessary to beg for his life.

The ground that eight years on death row constitutes cruel and inhuman punishment has never been argued before the Singapore courts though it had been successfully canvassed elsewhere. It seems strange to me that the judges were disinterested in the argument even if this application was made at the very last minute. Surely life is precious and more important than judicial time.

Very few people know how death row inmates live in Changi Prison. I may be wrong but I understand that prisoners are confined to a row of single cells with iron bar gates. The gallows are located on the same floor as the cells so that when a shackled prisoner walks or is dragged crying, singing or shouting to the gallows, it is within view and hearing of the others. The operation of the gallows is within the hearing of the prisoners. The loud cranking sound when the floor board opens and the prisoner drops to his death is heard by all prisoners. I am told the floor trembles. If being confined for eight years in such hellish condition is not cruel and inhuman punishment, I don’t know what is.

Representing death row prisoners who are mostly impoverished, demands the highest calling from lawyers. They should be complimented, appreciated and encouraged, not condemned and looked upon as trouble makers. These lawyers are not paid by the State under so called pro bono schemes. They acted for these prisoners out of the goodness of their hearts and their sense of justice. They are brave lawyers and ought to be praised and recognised for their selflessness and commitment to justice. The Law Society of Singapore and the judiciary should recognise their contributions. To be reprimanded for doing what they did is not what we expect of a civilised society.

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International Human Rights Day 2016 – We remember JB Jeyaretnam!

jbjToday is International Human Rights Day. Let us remember that on this day, 30 years ago, JB Jeyaretnam was released from Queenstown Prison after serving a one month jail term for offences which he denied committing. Indeed, the Privy Council in 1988 vindicated him and he was reinstated to the lawyers’ roll. In addition, the Singapore Court of Appeal was heavily criticised by the Privy Council for sending him and Wong Hong Toi to jail.

JB Jeyaretnam was fined $5000 for those wrongful convictions. That amount disqualified him from holding his Anson seat in parliament. His MP office in Anson was immediately demolished.

The wrongs committed on J B Jeyaretnam have not been rectified to this day. He should have been reinstated as a member of parliament and the convictions overturned with the Privy Council’s decision. But that was not to be. This is the sorry state of human rights in Singapore 30 years ago and even today.

10 December 2016

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