Compounding the matter, damages assessed by Singapore courts for defamation of those in leadership positions have been described as way above levels assessed by courts in other countries. For years, people have been saying that such stratospheric penalties have a chilling effect on speech in Singapore.

As we all know now, Durai was highly paid, and so the three whistle-blowers could have expected that the damages assessed by a court would be considerable. This would be a major inducement to settle and apologise, which the three did. But might one ask how Durai got to be highly paid? Might one ask if courts are remiss when they rely on rank and salary levels as prima facie indicators of repute? Might one ask on what basis does Singapore, alone in the world, think damages should be as high as they are when other jurisdictions do not?

Yet this week, Lee merrily said, oh, we should play whistle-blower.

I think it's too convenient to forget the foregoing pattern of judicial punishment meted out to those who have said uncomfortable things about highly-paid people in our establishment. I think it serves us ill not to question how that pattern arose.

* * * * *

On 6 October 2005, Lee was the speaker at a luncheon organised by the Foreign Correspondents' Association of Singapore. In the Straits Times story the morning after, it was reported that,

In sketching the journey ahead for Singapore, PM Lee foresees a system shaped by Singaporeans and their values. Not any magic formula or Constitution. 

-- Straits Times, 7 Oct 2005,
 'S'pore will set its own political model PM '

With such words, the Prime Minister effectively dismissed the import of the constitution.

At a certain level, he's not wrong. The constitution is a piece of paper that is meant to embody certain basic values. On the other hand, while it reflects those values, it also acts, by being in tangible form when those values are not, as a means by which to defend those values.

As analogy, we could ask, why do businessmen sign contracts, even if they have done business many times before with each other? There surely must be a considerable degree of trust and good faith between them and a meeting of minds as to the deal in question. Isn't the handshake good enough?

We all know why. The contract is there to guard against one party changing his mind and violating the terms of the agreement.

And that's what constitutions are for. The executive as a branch of government will always have a tendency to interpret its powers broadly or to seize new powers. An easy rationalisation would be to say that circumstances and societal values have changed, and now the "people" want the government to do things which previously they couldn't do.

How does one check such tendencies and sweeping claims about values shift?

It is the constitution that acts as the reference document; it is the constitution that sets up institutions such as the judiciary with the powers to arbitrate.

As my friend Clarence Singam argued in a recent email,

The importance of a constitution in societies is to ensure that

1. executive power is kept in check via a balance of powers -- which will in turn give rise to a rich Administrative Law and
2. that you are protected from a tyranny of the majority.

The judiciary + the constitution is intended to play the role of conscience.

For our Prime Minister to speak dismissively of the constitution is dangerous to the rule of law. By making the very squeezable notion of popular values the primary reference, and downplaying the more formal strictures of a constitution, he is removing safeguards against tyranny.

Rights don't get enshrined because some eloquent person sets it down as moving words on a piece of paper. If it were that easy, the hundred or so Third World countries with constitutions worded by lawyers well-schooled in the top universities of the West would all be enjoying reasonable constitution-guided governance. That as you both know is NOT the case.

Russell's argument was that for the system to work, you'd still need a strong authority to demand respect for constitutional provisions. Where does one find this strong authority?

Clarence's response was that it can be found in the way the constitution itself is written and an independent judiciary. The document should have a clear Bill of Rights and procedures that make it difficult to amend itself. Furthermore the seniormost judges should have security of tenure in order to preserve their independence from the executive.

To this I would add the importance of civil society, which includes a free press. A healthy, vigilant civil society speaks up whenever it sees transgressions and in extreme cases, removes moral legitimacy from any government that seeks to flout a ruling by an independent judiciary. In such societies, the government ignores the rulings of its regulators at its peril.

A healthy civil society allows whistle-blowers to surface. An independent judiciary protects genuine whistle-blowers (and I accept that some so-called whistle-blowers may be found to be acting out of malice) from retribution by the executive.

* * * * *

Now, let me take each of these conditions in turn, with reference to Singapore.

As for security of tenure, all I need to do is to refer readers to the article A black day for justice in the archive. Even our Chief Justice has his job renewed periodically by the President on the advice of the cabinet.

As for amending the constitution, in our case, all it takes is a two-thirds majority in our unicameral parliament. Since the ruling People's Action Party has held way more than 2 in 3 seats ever since independence, our constitution has been amended with ease countless times.

The Singapore constitution does mention things like freedom of speech and assembly, but these are fettered with all sorts of conditions. The effect can be seen from a recent judgment by Justice V K Rajah delivered on 7 December 2005.

* * * * *

9. Chee Siok Chin ("Chee") and Yap Keng Ho ("Yap") wore T-shirts with the words "National Reserves" and "HDB GIC" inscribed on either side. N Gogelavany ("Gogelavany") and Tan Teck Wee ("Tan") wore T-shirts with the words "Be Transparent Now" and "NKF CPF" inscribed on either side. Tan, however, is not a participant in these proceedings. In this judgment I shall hereinafter collectively and interchangeably refer to the applicants and Tan as "the protestors".

10. The protestors stood in a row along the walkway. Yap held up a placard which read "Singaporeans spend on HDB; whole earnings on CPF; life savings – but cannot withdraw when they need" above his head. Tan held up a transparency sheet with the word "Accountability" written in Chinese.

-- Justice Rajah's written judgment
paragraphs 9 and 10

Evidently, it was a silent protest. They didn't speak except in response to questions put to them by reporters.

The police soon came, demanded their T-shirts and that they disperse, on pain of arrest. Deputy Superintendent Dominic J Baptist told them that he had received a telephone call complaining that they were creating a public nuisance, which was an offence under the Miscellaneous Offences (Public Order and Nuisance) Act (MOA).

3 out of these 4 persons then sued the Minister of Home Affairs -- he being responsible for the police -- for violating their constitutional freedom of speech and assembly.

The judge found that the police acted entirely within the law and that constitutional freedoms do not include doing what they did.

Not being a lawyer myself, it is quite difficult to fully understand the judge's reasoning, even harder for me to try to explain it to you in a nutshell. But let me try anyway.

In paragraph 41 of the judgment, the judge directed himself to this question:

Can the provisions of the MOA restrict or curtail Art 14 rights as declared in the Constitution?

-- ibid, para 41

Article 14 is the part of the constitution titled "Freedom of speech, assembly and association".

The judge concluded from a reading of Article 14 sections (2)(a) and (b) that,

In short, Parliament may by law impose restrictions on the rights of freedom of speech and expression and assembly if it considers such restrictions necessary or expedient in the interest of (a) the security of Singapore, or (b) public order.

-- ibid, para 42

With that, the judge found that the MOA is one of the laws that can restrict Article 14.

He then referred to the Indian Constitution which demands a test of reasonableness be applied to any law that seeks to infringe such a basic right. At the same time, he cited judgments from the Indian judiciary showing that they "exercised considerable self-restraint in the actual exercise of such a power" (para 47).

In Singapore's case, the judge said,

In contrast to the Indian Constitution, there can be no questioning of whether the legislation is "reasonable". The court’s sole task, when a constitutional challenge is advanced, is to ascertain whether an impugned law is within the purview of any of the permissible restrictions. The touchstone of constitutionality in Singapore in relation to the curtailment of a right stipulated by Art 14 of the Constitution is whether the impugned legislation can be fairly considered "necessary or expedient"...

-- ibid, para 49

It is also crucial to note that the legislative power to circumscribe the rights conferred by Art 14 of the Constitution is, inter alia, delineated by what is "in the interest of public order" and not confined to "the maintenance of public order". This is a much wider legislative remit that allows Parliament to take a prophylactic approach in the maintenance of public order. This necessarily will include laws that are not purely designed or crafted for the immediate or direct maintenance of public order...

-- ibid, para 50

In plain language, I think he meant to say that in Singapore, it is constitutional for the government and parliament to craft laws that act preventively to forestall certain activities which they feel contrary to public order.

I suppose this means that if a journalist is planning to write an article which may cause an uproar, the MOA can be used to arrest and prosecute that journalist even before the article is written.

Summing up this part of his judgment, Rajah said,

The nub of the matter is that Arts 14(1)(a) and 14(1)(b) of the Constitution do not confer absolute or immutable rights. The rights conferred by these Articles can be restricted in the wider interests of, inter alia, the public order so that they do not impinge on or affect the rights of others. The framework of the Constitution deems it crucial and necessary to authorise the imposition of restrictions in the wider and larger interests of the community and country.

-- ibid,  para 54

I'd like readers to bear in mind the words "impinge on ... others." He will later find words that the 4 protestors used, to have impinged.

See excerpt from text of the law in the yellow box at right.

The judge, in paragraphs 73 and 74, then asked himself whether our law requires the prospect of a breach of the peace to be likely before the MOA becomes relevant. He said not.

ss 13A and/or 13B of the MOA are not predicated upon a requirement or an intention that the inappropriate behaviour leads to or is likely to lead to a breach of peace or public disorder.

-- ibid, para 75

In fact, words would transgress the law once they were perceived to be threats, abuses and insults even if they were not intended to be.

Simply put, threats, abuses and insults embraced by s 13B of the MOA may constitute a transgression whether or not they were intended to be threats, abuses or insults.

-- ibid, para 76

I would have thought this finding violated a very fundamental requirement in law: that of mens rea -– the intent to commit an offence. But evidently the judge thought not.

Then a largish section of the judge's written decision was devoted to a discussion about the Public Order Act (POA) of the UK. The judge said he was aware that it is now restrictively interpreted. The reason was that "the legislative scheme dealing with issues of public order has undergone a sea change" (para 78), what with the Human Rights Act 1998, the European Convention on Human Rights and decisions of the European Court of Justice and the European Court of Human Rights.

The judge felt that the English standards were no longer applicable here. For example, he said, "the phrase 'necessary in a democratic society' has been interpreted by the European Court of Justice and Court of Human Rights very generously so as to impose common legal precepts and standards within the European Union." (para 86), implying that similar concerns do not apply in Singapore.

He also said that proportionality is not a concept that applies here.

Another fundamental difference now existing between English law and Singapore law is the applicability of the notion of proportionality. This is very much a continental European jurisprudential concept imported into English law by virtue of the UK’s treaty obligations.

-- ibid, para 87

A little further on,

Proportionality is a more exacting requirement than reasonableness and requires, in some cases, the court to substitute its own judgment for that of the proper authority. Needless to say, the notion of proportionality has never been part of the common law in relation to the judicial review of the exercise of a legislative and/or an administrative power or discretion. Nor has it ever been part of Singapore law.

-- ibid, para 87.

So, after despatching the test of reasonableness as inapplicable, he now despatches the principle of proportionality too.

Turning to the power of arrest, Rajah said,

It is settled law that a police officer may make a lawful arrest on the basis of reasonable suspicion.

-- ibid, para 101

and that,

It is also of crucial importance to point out that there is an essential distinction between reasonable suspicion and prima facie proof...

-- ibid, para 102

Finally in paragraph 119, the judge came to the central question:

the only issue that remains is whether DSP Baptist had inappropriately or incorrectly exercised his executive discretion. Did he act arbitrarily and therefore unlawfully?

-- ibid, para 199

While the judge found that "[t]here was no hint or suggestion of violence and/or any threatened breach of peace",

The most striking feature of the protest would have been the words associating and linking the "CPF" (Central Provident Fund) to the "NKF" (an acronym for the National Kidney Foundation). Coupled with this were references to the "HDB" (Housing and Development Board), "GIC" (an acronym for the Government of Singapore Investment Corporation Pte Ltd), the "National Reserves" and a clarion call for "Transparency" and "Accountability" as well as a suggestion that Singaporeans were for some inexplicable reason unable to withdraw their CPF "life savings" when they needed it.

-- ibid, para 120

On 11 August 2005, when the protest took place, the scandal at the National Kidney Foundation was still fresh in people's mind. "A toxic brew of inexplicable accounting practices, corporate unaccountability, lack of financial disclosure and questionable management practices created an atmosphere cogently suggesting financial impropriety," the judge noted.

He then found that by having "NKF" on the T-shirts along with acronyms of other government-linked bodies, it "is to tarnish them with financial impropriety and sully their standing and integrity."

Surely, it would be reasonable for any police officer at the scene to conclude, without diffidence, that the words employed by the protestors were "insulting" and/or "abusive" apropos those responsible for managing the institutions.

-- ibid, para 123

But did the police officer at the scene so conclude? What I found interesting was that, based on the judge's lengthy recapitulation of the arguments, at no time during the proceedings did DSP Baptist or the government lawyers defending his actions say that the idea of insult was anywhere on Baptist's mind and communicated to the protestors. Yet the judge found a thought for the DSP that, as it appears, he did not at that moment hold; a thought which served to rationalise the police's intervention and threat of arrest.

The judge also found that beyond being insulting, the protestors were also harassing.

"A persistent course of conduct for a sustained period of time can constitute harassment," he said, and the fact that the 4 protestors "did not assemble at the scene for a mere split second" made their actions harassment (para 124)!

Together, causing someone or some organisation to feel insulted or harassed would be contrary to the interest of public order, which was a permissible exception to the constitutional guarantee of free speech and assembly.

* * * * *

Generally, people would want to exercise this right of free speech and assembly whenever they feel aggrieved over something. Each time they do, it can be expected that the object of the protest, be it a person or an organisation, would naturally feel "impinged upon". They could easily say the words expressed were "insulting" to them or that the presence of the protestors (for more than a split second) constituted "harassment". They could also say the protest caused them "alarm" and "distress" – these too being provisions of the Miscellaneous Offences Act. 

All these feelings of hurt would be enough for the police to arrest and prosecute the protestors, or even a lone protestor. You don't even have to be in a group of four. You don't even have to wear a T-shirt with words on it; you might just be handing out flyers at a street corner.

Absurd though it may be, such a conclusion was quite easily reached once the tests of reasonableness and proportionality were ruled inapplicable.