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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Do Nothing And Be Damned?

cantonment-police-complexToday is the 150th day of the seizure of my two computers and new mobile phone by the police and forensic officers from the Police Cantonment Complex. Roy Ngerng who was even more unfortunate than me, had 2 laptops, 3 hard disks, 1 new unused hard disk, 3 memory cards, 1 mobile phone, 1 memory stick and 1 old computer seized.

The police are still investigating the offences allegedly committed by us on Cooling Off Day. The alleged crimes – posting and reposting harmless opinions on our facebooks. None of us deny that we put up those posts. Our defence is that we have our constitutional right to free speech and expression. Yet our properties were seized.

My flat was raided by a team of 4 police officers and 4 forensic officers who came in two police vehicles. Their entry into my estate must have caused a stir. The security guards were put on alert. The management office was alerted by my neighbours. What was the intent of sending a team of 8 law enforcement officers in two police vehicles to seize my properties? Clearly it was to intimidate and embarrass me? At the police station they threatened to handcuff me. I am not intimidated or embarrassed to be seen with handcuffs. In fact, the police should be the ones to be embarrassed by their show of force, having eight police officers to escort me to my flat, treating an elderly person like an armed terrorist.

May 31, 2016 was not the first time that I experienced the power of the police. In 1987, the police came at dawn and entered my house. They arrested me under the ISA.They kicked down a bedroom door and found nothing – no weapon or bomb making material to cause the downfall of the government. They merely took away my books, among which were translated Mao’s Poems and Stalin. They raided my office and took away confidential files of the Law Society and a client’s file, that of Tan Wah Piow. Breaching the law, they failed to list the properties seized from me. When I was released, they returned my properties in a gunny sack filled with rat shit that stank to high heavens. The intent was to ensure its destruction.

In 1988, the police again arrested me under the ISA and raided my residence. Again they did not find any weapon or bomb making material. Again they seized my books and files. Luckily it was not the practice to seize computers and mobile phones at that time.

Today, I am waiting to be charged and I hope the police will complete its investigation soon. One hundred and fifty days to investigate a case when I have already freely admitted the “crimes” is a very long time. But I am told that it is common practice. Investigations take years.

I have been thinking of what the police do with all the electronic devices they seize from people like Roy and me. Where are they kept? In warehouses full of rats so that when they are returned to the owners, they stink to high heavens?

At the trial of Amos Yee, one of the forensic officers from the Technology Crime Branch disclosed that the first thing he did to a seized computer is to clone the hard disk. Investigations are then done on the cloned copy.

I expect the forensic officers to have cloned the hard disks of my computers. They would have obtained much more information than they require. What do they do with such information?

Singapore is a police state. Like the Soviet Union, Israel and North Korea, it is the business of the secret police to know everyone’s private life. There is no law that require them to return seized properties within a reasonable period of time. Our judges are powerless for the police do not need their warrants to seize.

Parliament has given our police tremendous powers. But are they permitted to abuse their power? Are we to remain silent and let the police behave like thugs, seizing and forfeiting our properties as and when they wish?

By Teo Soh Lung
27 October 2016

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A Miscarriage of Justice

m-raviOn 27 October 2016, the Court of Three Judges delivered its judgement on the application of the Law Society of Singapore against Ravi s/o Madasamy, a well known human rights lawyer in respect of conduct incompatible with his position as an advocate and solicitor. The charges relate to his inappropriate behaviour at the premises of the Law Society and rude letters and baseless allegations against the prosecuting lawyer, staff and president of the Law Society and his family. It was accepted by both the disciplinary tribunal and the court that those acts were committed during the period 10 to 26 February 2015 when Ravi was suffering from “hypomanic” episode due to his bipolar condition.

A disciplinary tribunal was appointed on 25 April 2015 but did not sit till August 2015, by which time, Ravi’s practising certificate had lapsed. A lawyer’s licence to practice has to be renewed annually before the end of April.

At the hearing before the disciplinary tribunal, Ravi admitted to all the charges and offered to pay a penalty. The tribunal concluded that “there was cause of sufficient gravity for disciplinary action” and referred him to the Court of Three Judges because it was of the view that it was not in a position to impose a penalty since Ravi was not a practising solicitor. The tribunal however went on to observe that had Ravi been a practising lawyer, “the misconduct was not serious enough to warrant a reference to this court … as it would then have exercised the discretion available to it under s93(1)(b) of the LPA [Legal Profession Act] to determine that the Respondent should be reprimanded or be ordered to pay an appropriate penalty.”

The Court of Three Judges sat and heard the matter on 6 September 2016 and judgement was delivered on 27 October 2016.

The court disagreed with the disciplinary tribunal that Ravi’s misconduct did not warrant a reference to the court and ruled that it was necessary and appropriate to prohibit Ravi from applying for a practising certificate for a period of two years from the date of the judgement “in order to safeguard the interests of the public and to uphold public confidence in the integrity of the legal profession.”

In imposing the two year prohibition from the date of judgement, the court failed to take into consideration the fact that Ravi had not been a practising solicitor since the date he was ordered by the court to stop practice in February 2015, a period of 20 months. Nowhere in the judgement is it stated that this fact was taken into consideration. Prohibiting Ravi from applying for a practising certificate for two years from the date of judgement therefore means effectively prohibiting him from practising law for about four years. This is unreasonable because Ravi is not responsible for the delay in the prosecution of his case. He was cooperative from the time he regained his normal self and apologised to all the parties he offended. He admitted to the charges and offered to pay the penalty at the earliest opportunity.

Question of jurisdiction
A material issue that was not addressed by the Court of Three Judges was the fact that the charges of misconduct relate to Ravi while he was a practising solicitor. By the time he was dealt with by the disciplinary tribunal, he was no longer a practising solicitor. In ordering a two year prohibition from the date of judgement, the Court of Three Judges had treated Ravi as having misconducted himself as a non practising solicitor when he was in fact a practising solicitor at the material time. Should the Court of Three Judges remit the case to the same disciplinary tribunal for its determination? Shouldn’t he be treated as a practising solicitor and the sanction of the disciplinary tribunal be accepted? This jurisdictional issue was not addressed by the court.

Delayed Justice
Ravi had suffered a miscarriage of justice also as a result of the inordinate delay in the prosecution of his case. In 1986, the first prime minister of Singapore, Mr Lee Kuan Yew complained about the inefficiency and leniency of the Law Society when dealing with its members. He accused the Law Society of delays in disciplining errant members and being too soft on them. He called self regulation of the profession a myth and introduced members of the public and legal officers into the disciplinary process. At the hearing of the Select Committee on the Legal Profession (Amendment) Bill 1986, the attorney general cited nine cases of inordinate delays in the prosecution of lawyers over a period of seven years, from 1978 – 1985. The delays stretched from 7 to 38 months. Inordinate delays in the prosecution of lawyers and being too “soft” with errant lawyers were two reasons for the Legal Profession Act to be amended in 1986. Thirty years after the law was amended, it appears that nothing has changed.

It took the Law Society and the court 20 months to decide on Ravi’s case. Unlike lawyers charged for criminal or other offences who were allowed to continue with their practice pending conviction or investigation, Ravi was ordered to cease practice by the court in February 2015. Ravi’s livelihood was thus adversely affected. His inability to practise has also deprived members of the public of his legal expertise and assistance. And now the delay has rendered the two year or 24 months’ prohibition to a 44 months’ prohibition.

Conclusion
Ravi’s case exposes the Law Society as one that did not care about the well being of its members. Mental illness is not a crime. It should and can be treated. In obtaining a court order stopping Ravi from practice, it should have paid close attention to his recovery and return to legal practice. Instead, it not only failed to assist Ravi but took its time to set up the disciplinary process resulting in severe hardship and mental anguish for him. Likewise, the courts too took their time to adjudicate the case resulting in the doubling of the penalty imposed. The order prohibiting Ravi from practice does not safeguard the interests of the public or uphold public confidence in the integrity of the legal profession. Conditions requiring him to continue with his medical treatment would. Prohibition simply deprives Ravi of his career and the public of a good human rights lawyer

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Freedom Film Festival 2016, Singapore

at-the-projectorFreedom Film Festival 2016 opened yesterday with a good crowd.

The Catholic nuns in Radical Grace left the audience awe struck! Many who came to see the works of Singaporean filmmakers were not disappointed. They were treated to good films and the discussions after the screening were most interesting. Martyn See moderated the Q & A with probing questions – was it accidental that young filmmakers, Claire Low and her team of Heartware chose their subject and what triggered Yeo Kai Wen to make Disappearing Hills.

DJ Chris Ho expressed his love and hate for Singapore in The Naked DJ. He expressed the thoughts of the majority of us Singaporeans who have no guts to admit that we are mainly sheep!

The moving films, Unsilent Potato and A Question for My Father left the audience with much food for thought. AWARE representatives, Chong Ning Qian and Jasmine Ng discussed the issue of rape and molest and the difficulty in resolving cases such as those revealed in the films.

And finally, A Syrian Love Story ended the night with a solemn note of what it is like to live in a country engulfed in civil war.

 

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