Friday, April 07, 2006

*Clarifications are needed it seems*

I would have thought that the rather hysterical and (hopefully) uncharacteristic tone and form of argumentation that I used yesterday would have signalled to regular readers that I wasn't really being very serious about the views advocated.

Particular when it had Mr Fluffy remarking on the absurdity of what constitutes politics and politicking, something inherent in the "blog gag" as the BBC puts it.

But it seems that I have upset Ted, which definately wasn't my intention seeing as he is perhaps the only regular commenter on my blog.

Nevertheless, seeing as he points me to the's commentary on this issue and I need some revision for public law, let's examine this issue a lot more seriously. Since it is fair comment the MDA shouldn't be coming after me =)

Do these laws violate the Constitution anyway?

One thing that we may be overlooking is that these laws may be in violation of the Constitution anyway.

The Constitution is supreme over our laws. If a law violates the Constitution, that law is null and void [3]. In that case, it's pointless for a minister to try to clarify how the law would be applied.

He's right in reminding us that the Constitution is the supreme law of our land, it being both heirachically and logically precedent to legislation passed by Parliament because it gives Parliament its powers to make law in the first place. Article 4 is the Constitutional Supremacy clause and it basically says that any laws that are inconsistent with the Constitution, is to the extend of its inconsistency, void.

Good stuff that. That basically draws a big (theoretical) distinction between the UK Westminster System and the Westminster system that is otherwise practiced by the rest of the Commonwealth. Under the British Westminster system, Parliament is supreme and their courts have acknowledged that Parliament could in theory because of their supremacy, effectively eradicate all forms of Human Rights. Of course, their parliamentary system and the basic decency of a mature democracy would never allow that, notwithstanding Blair's 700 new criminal laws and his attack on youths in general. It's also worth pointing out that the Human Rights Act of 1998 does not give the same powers to strike down laws as our courts do, it's just that there is a huge political price to be paid if the court should hold that a piece of legislation is inconsistent with the act.

But as I quoted yesterday from the Constituion, the right to free speech is the only fundamental liberty that from the beginning of its article is already qualified. Such that despite this being an ostensible fundamental liberty, I do wonder whether it bears more resemblence instead to the common law notion of residuary right i.e. you have that right only insofar as it does not contravene any properly enacted bit of legislation. So a proper articulation of the issue should be the extent to which the court have construed the article and the extent to which it is prepared to differ to the judgement of Parliament. But more on that below.
Clause 14 (1)(a) of Singapore's Constitution says, "every citizen of Singapore has the right to freedom of speech and expression."

A little further down, a few exceptions to the above guarantee are stated:

Parliament may by law impose... on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

It's worth noting that no exception is provided to the free speech provision on the grounds that certain speech is political. So, unless one really stretches the meaning of "security", "public order" or "morality", it's hard to see a constitutional basis for circumscribing speech just because it promotes any political or even party political point of view. And speech includes podcasting and videocasting.

Here the situation gets very very interesting. Let's deal with the Adminstrative Law issue first i.e. what empowers the minister to make the regulations that he makes.

Here is where we turn to statute and in particular, the Parliamentary Election Act (Cap. 218). Sections 78, 78A and 102 gives the power to the minister to make regulations as to election advertising (and in general). Pursuant to these powers, we have the Parliamentary Elections (Election Advertising) Regulations. Without delving into the intricacies of Administrative law and the grounds one uses to impugn subsidiary legislation (judicial and non-judicial controls), the conclusion is that the Minister is absolutely entitled to make the regulations he did.

On second thoughts, it looks like we're going to need to deal with it. I don't want to deal with non-judicial controls because it's not an issue here so I'll turn instead to judicial controls and the two main methods one uses to impugn a subsidiary legislation.
1. Procedural ultra-vires (outside of jurisdiction) i.e. breach of mandatory procedural requirements in parent statute and breach of rules of natural justice, see the Interpretation Act (Cap. 1), s. 19, 23 and 48. So if one looks at the parent statute (the Parliamentary Elections Act) and the relevent statutes listed above, it should be apparent that the minister was within his powers when he made those regulations

2. Substantive ultra vires e.g. unreasonableness, oppression, bad faith. Without delving too much into case law, the standard to impugn is really pretty high. You going to have to need to demonstrate something along the lines of targeting only specific parties (bad faith) or some form of improper purpose, or some form of unreasonableness so extreme that NO reasonable person would have come up with it.

While a case could be made on the last point, it seems that considering the object of the act and regulations (see below) and the restrictions imposed i.e. fair comment is allowed but not active electioning (, I don't think it would be impugned.

Which leaves us with the Constitutional issue. As can be seen from the Constitution, there are eight grounds by which Parliament may restraint speech. So the "threshold issue" is whether or not a court may review legislation which (potentially) contravenes art. 14(1)(a). There are basically 2 approaches that a court could take.
1. That the right to free speech is essentially subject to whatever laws Parliament may make and that the words "necessary and expedient" should be read subjectively to mean that it is beyond the court's capacity and competency to question the necessity or expediency of the legislation passed. This would indicate that regardless of how harsh and unreasonable the restriction may be, Parliament's law stands.
2. That despite what is said, the court will read into the Constitution some notion of "reasonable restriction" on the offending legislation.

I seriously doubt the second Indian approach will find much favour here seeing that the court has generally taken a very strict separation of power and literal interpretation of the Constitution and an aversion against judicial activism, prefering instead to avere to the democratic will of Parliament (which makes theoretical sense seeing as judges aren't elected). Furthermore, in cases like Colin Chan v PP (relgious freedom case), the court took a very precautionary stance in that things that like national security and social order, which were a "paramount mandate" would automatically trumpt any action that would have the tendancy to infringe upon them.

As such, given the likely subjective approach that is taken, I point you to the parliamentary debate on the Parliamentary Elections (Amendment No. 2) Bill which basically removed a 1997 ban on internet election advertising and put forward the blanket (it applied to all parties and forms of mass media) restriction on the types of advertising allowed.

What I hope to draw my readers attention to is Mr Lee Yock Suan's speech and the reasons for this particular amendment.
Parliamentary elections are of vital importance to Singapore and should be conducted in a fair and orderly manner, free from distractions and undue influence. Our electoral processes also need to be updated to take into account new developments such as the Internet. This Bill proposes amendments to the Parliamentary Elections Act to, firstly, regulate political campaigning on the Internet; secondly, prohibit the publication during the election period of the results of opinion surveys on how electors intend to vote; and, thirdly, disallow a person from contesting simultaneously in more than one constituency. I will cover each of these issues in turn.

Internet Political Campaigning

The General Election in 1997 took place under rules that predated the Internet and did not allow political parties to post election materials on their websites during the campaign. At the time, few people had access to the Internet.

In the five years since, the popularity of the Internet has grown tremendously. Singapore already has the highest Internet penetration rate in Asia at 48%. Broadband access, which currently stands at around 90,000 subscribers, will become even more widespread in a few years.

Mr Speaker, Sir, contrary to what the media have been speculating, the Government has decided to allow political campaigning on the Internet in the upcoming General Election. However, a free-for-all Internet campaigning environment without rules is not advisable. The Internet is a double-edged sword. Whilst it facilitates discussion and communication, the seriousness of political debates may be cluttered by noise, mischief or frivolities during the election period. Worse, the anonymity in the Internet opens a door for surreptitious elements to mislead, distract and confuse the public. On the Internet, once a false story or rumour is started, it is like water that has been spilt. It is almost impossible to remedy matters, especially in the limited period of an election campaign.

The Government has always maintained that politics should be based on factual and objective presentation of issues, and reasoned debate. Regulations are therefore necessary to protect the integrity of our electoral process, and guide responsible use of the Internet during the elections.

So I think that if push came to shove and some intripid citizen were to go to court to impugn the regulations or legislation, he is going to find it nigh impossible seeing that the legislation was properly passed by parliament, the subsidiary legislation properly made by the minister and there are reasonable as well as constitutional grounds for the restrictions that are present in the regulations and legislation made.

This is not really an exhaustive analysis as I did not want to delve into the individual cases and really explore what each case meant, means and might mean. Instead I hope to give a sense that a Realist viewpoint would look to parliament as the guardians of our fundamental liberties and that the current approach of our judiciary also prefers the notion of the democratic representatives of the electorate actually representing and protecting them.




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