A slight commotion over a motion

Sylvia Lim is the bad one.

Low Thia Kiang is a decent guy who actually ran Hougang Town Council competently but…

Pritam Singh and Png Eng Huat had been duped by the two above-mentioned.

Faisal Manap, as town council chairman, doesn’t have the gumption to do the right thing, that is, remove the first two from their town council posts or, at least, make sure they don’t have oversight of finances.

Chen Show Mao was the only one who was left scot-free. He didn’t speak – nor was he spoken of.

That’s how the People’s Action Party painted the elected Workers’ Party MPs yesterday, during the debate on a motion spearheaded by Deputy Prime Minister Heng Swee Keat. At least that’s how it came across to me.

The motion was to get Parliament to affirm the importance of MPs “maintaining high standards of integrity and accountability”. No one quarrelled with that, not even the WP. But then comes three other limbs…

If this was supposed to be a show of force by the 4G leaders to get the WP to eat humble pie or “swallow the bitter pill” as Mr Heng put it, then it wasn’t a very robust one.  Six PAP office-holders spoke and only one PAP backbencher, Mr Sitoh Yee Pin, who stuck to recounting the difficulties he faced taking over the Potong Pasir town council from veteran opposition MP Chiam See Tong. I am not sure what point he was trying to make. Also, I had actually expected more PAP MPs to pile in.

Mr Heng’s opening was a rambling  one hour, as he chronicled the WP’s eight-year journey through different auditors and three courts, leading to the High Court judgement on Oct 11. That was what limb No. 2 was about: The findings said that Mr Low and Ms Lim had acted dishonestly in their roles as town councillors and that their conduct lacked integrity and candour.

Mr Heng gave examples galore, from the Oct 11 judgment, previous judgments and what the auditors, including the town council’s own auditor, had said about not getting access to documents and emails, particularly those surrounding the appointment of their “friends” as the town council’s managing agent after the 2011 general election. The agent, FMSS, did not go through a tender, charged higher fees than the past agent, and operated in a system that was devoid of checks. “Allowing your friends to help themselves to public funds – that is a tale that belongs to the Third World, not Singapore,” he said.

Limb No. 3 was about how the two were still holding on to their appointments in Aljunied-Hougang town council – Ms Lim is the vice-chairman, while Mr Low is a member. Four weeks had passed since the judgement was made but there’s been no word from the WP about putting its house in order, Mr Heng noted.

Limb No. 4 is the “actionable” part: That the town council should do right by its residents  by getting  the two MPs to recuse themselves from having anything to do with money matters.

This is the key point. Mr Heng said the residents were owed an apology. Auditors and Parliament had been consistently misled by the WP members who had maintained that the appointment was above aboard or had given excuses for why no tender was called. The judgment had called them out on their lies. Anybody else would have been chastened by the findings. Any company or charity would have made sure such personages had to quit or be removed from important roles, especially involving money.

“Playing the victim or the underdog may be par for the course in politics, but there are important mayors at stake – public finds, residents’ monies, the estates that Singaporeans come home too. We cannot sweep things under the carpet,” said Mr Heng.

After he spoke, it seemed like the WP MPs were intent on picking on specific points, asking him for a slew of clarifications. A flustered Mr Heng tried answering the points, before demanding that the party engage on the key issues of transparency, accountability   and moral standards. But Ms Lim, the most persistent questioner, wasn’t done yet. She spoke from her prepared text and here’s where things took a turn: Mr Heng asked for an adjournment or a recess.

I found it astonishing that the PAP didn’t seem to have anticipated the WP’s main line of defence: that the House was having the debate before the Nov 11 deadline for appeals against the judgment. In her speech, Ms Lim said that WP intended to appeal and it was therefore “premature” to have the discussion in Parliament before the court had the final word on it.

Senior Minister of State for Law Edwin Tong had got up for his turn to speak, but Mr Heng beat him to the mic to ask the Speaker for an adjournment. When Mr Pritam Singh who objected, he said he needed time to consider his response to Ms Lim.  Speaker Tan Chuan-Jin agreed on a 10-minute recess.

So those of us in the gallery were left twiddling our thumbs as the House emptied out, presumably for the PAP to decide on strategy. The word, subjudice, hung heavy in the air. Ms Lim seemed to be referring to this aspect of the Administration of Justice Act, known as contempt of court, that having a discussion in the House might prejudice the coming appeal case.

When the motion was made public, I was under the impression that the appeal window must have already closed for the motion to be up for debate. Even so, I had wondered if discussing the issue would affect the “second tranche” of hearings to determine the quantum of damages the WP MPs were liable for.

But while Mr Heng spoke, he was clearly apprised of the open window. He said that in “the interim” – whether or not the WP decided to appeal – something must still be done about ring-fencing the two MPs. But now that Ms Lim had given a positive answer, the PAP seemed to have been taken by surprise.

Right on cue, it was the question Mr Heng lobbed at Ms Lim when the House reconvened: Did she consider the motion subjudice? But Ms Lim wouldn’t be drawn into agreeing or disagreeing, merely sticking to her  point that the appeal case might well turn up different findings of law or fact. (I think she thought she would be walking into a trap.)

Nominated MP Anthea Ong had intimated the same thing when she got up to speak, questioning the appropriateness of discussing the matter. “I am concerned that any comments that we make now, while possibly protected under certain parliamentary privileges, could still potentially fall under contempt of court.”. But when Ms Indranee Rajah, Minister in the Prime Minister’s Office, asked if she was concerned about “subjudice”, Ms Ong said she was not legally-trained, reiterating that she was “uncomfortable”. She also wondered if other regulatory levers could be used to achieve the same end, especially since a Parliament resolution  has no binding effect.

I wish the frontbench had gone further to explain this issue of subjudice. Mr Heng let Ms Lim’s answer pass while other office-holders said that the issue was about what to do in the interim pending the outcome of the appeal case to safeguard residents’ interest. Hence, not subjudice. Ms Rajah also said that it was not subjudice, and enunciated carefully that the House was accepting “the findings as they are, not about the rightness or wrongness of the judgment”.

It was something that the PAP side should have clarified right away in the beginning. After all, this was what Law and Home Affairs Minister K Shanmugam did when he raised the issue of the suicide of a teenager in Parliament in 2016, even though the case was still pending in the courts. He said he will not be liable for sub judice as the minister is also a public official.  Public officials can make statements “if they believe it to be necessary in the public interest – even if there is a hearing pending”.

Even so, it is up to the court to assess whether there is sufficient basis to have the person alleged to have committed contempt be brought to court, or whether the application should be dismissed. Perhaps, Mr Heng was daring Ms Lim to do so? (This is purely speculation.)

I also wondered if the motion should have been amended to make clear that the “recusal’ was an interim measure until the outcome of the appeal. This is because the PAP’s motion also opened up another line of inquiry: Was it so sure that the AHTC entity, represented by a three-member independent panel, would not appeal as well? Both Ms Lim and Mr Singh noted that while the WP MPs were liable for damages, it was for the plaintiffs to prove the legal burden of proving loss – something which the plaintiffs had tried to argue against.

The motion, to me, seemed more like an opportunity to reprise the failings of the WP by quoting liberally from past judgements and auditors’ statements. One particular phrase Justice Ramesh Kannan used in his finding surfaced at least six times from the PAP side: WP’s myriad attempts to “varnish a veneer of credibility”  to camouflage its premeditated plan to replace CPG with FMSS.

Senior Minister of State Edwin Tong was even more detailed than Mr Heng in his exposition. He reiterated the finding that  Mr Low and Ms Lim had engineered the process of appointing the managing agent, leaving other town councillors in the dark.

He listed the auditors’ complaints that emails and documents were not made available to them, and that the town councillors were either tardy or obstructionist. It was only in the High court trial last year, he noted, that emails regarding the FMSS takeover from CPG were revealed. Most damning was one email which had Ms Lim instructing the managing agent to “sanitise” its draft documents on the appointment, so that it could “pass the auditors’ eyes”.

Ms Indranee Rajah was sharpest with retorts, suggesting that by failing to take action, WP would lose “all moral authority” if it tries to impose ethical standards should, say, an official or PAP MP, run foul of the law.

The WP MPs, particularly Ms Lim and Mr Png, kept asking for clarifications from the PAP side when its speakers went into detail. On suggestions that important documents had been kept from the auditors, Ms Lim said that “bad record keeping is not the same as hiding”, drawing some derisory laughter in the House. To those who repeated the judge’s words about breach of fiduciary duties, she maintained that the case actually surfaced “new law” as there was no such concept before this.

Mr Faisal was put on the spot a few times when asked what he, as town council chairman, would do now in the wake of the judgement. Besides declaring his full trust in his fellow MPs, Mr Faisal also referred to the independent panel – from whom he had heard nothing. He also said that taking any action against his fellow MPs would be going against the mandate given by voters in the 2015 general election. Second Minister for National Development Desmond Lee took him to task for wanting to wait for directions while Ms Rajah told him that the voters’ mandate didn’t include allowing the MPs to act dishonestly.

Even if the speeches were repetitive, there were points made that might have escaped the attention of those who haven’t been following the saga closely, such as how the court case was initiated by an independent panel nominated by the WP to represent the town council entity, and not by the National Development ministry nor the HDB.

I guess this was to make clear that the Government or the PAP didn’t have any part to play in the court proceedings and to stress that the motion was about ethical standards that MPs should be held against, that is, a non-partisan motion. Several times, the PAP side spoke of honour, integrity, accountability and even humility that the WP should display in light of the court judgment.

But this was a point that Nominated MP Walter Theseira was uncomfortable with. He said that the motion was for AHTC, a political entity of elected MPs, to take a certain course of action. “I’m uncomfortable, as a non-elected member, in participating in what may be a political resolution.” Both he and Ms Ong abstained from voting.

Mr Pritam Singh rounded up the “defence”. Mr Low, although present, did not speak. Mr Singh described the timing of the motion as “highly unusual for a legal system that places  an exacting premium on the rule of law as a defining characteristic of the country”. He wanted the PAP to explain its true motive for the motion being raised before the case was concluded. Parliament, he said, should not be “prematurely hijacked as a substitute for the judicial process when the window for appeal…has not closed”.

He said that parliamentary motion or no parliamentary motion, it was for the AHTC to decide what to do with its members. If the issue of recusing the two MPs came up during a council meeting, then a decision would be sought. He, himself, however, would not vote in favour of recusal.

By then, it was way past 7pm. Mr Heng got up to round up the debate. It was a little garbled. He made mistakes such as talking about an “on-going appeal” (not filed yet) and how Ms Lim had admitted that the discussion was not subjudice (she didn’t). At one point, he talked about working with the WP to draw up some basic principles for a code of conduct for MPs both inside and outside the House, which led me to wonder if a new motion would be raised. But no. It was still about the need for ethical standards and “clean politics”. He also said the Government would now be “forced to express its concerns” to the AHTC independent panel. So is this the next step then?

You can’t help but wonder what the seasoned ministers, such as Mr Shanmugam, Mr Khaw Boon Wan or Mr Teo Chee Hean, would have said if they had joined the debate. But this was clearly a 4G show with Mr Heng making it clear that the 4G would retain integrity as the hallmark of the PAP.

The House approved the motion with all nine WP members (including the three NCMP members) saying nay and the two NMPs voting to abstain. I wouldn’t call it a PAP victory or a WP defeat. It would actually have been to the PAP’s advantage to wait until the court appeal window is closed, so that it would be certain of the WP’s position before proposing a motion. And it should have made clear from the outset about whether talking about the motion would be contempt of court.

Last point: didn’t the PAP speakers compare notes earlier so we wouldn’t be hearing the same things over and over again?