Don’t COP out, keep things in-House

I wasn’t happy with the way the parliamentary privileges committee went about its work. I thought the members were too soft on Ms Raeesah Khan who was, after all, the reason for the inquiry, and too aggressive with the rest of the Workers’ Party leaders, particularly Mr Pritam Singh. 

I can only conclude that they went easy on her because she had admitted to lying in Parliament and went “woah’’ when she said that she was only doing what she was told to. 

The COP’s questions to her were more about getting her to elaborate on this, rather than testing the veracity of her statements. On the other hand, Mr Singh was subjected to quite a lot of badgering with hypothetical questions thrown at him to say something that would incriminate himself. 

But, at the end of the day, the outcome was clear: Ms Khan had lied and deserved punishment, and there was something “fishy’’ about the way the three WP leaders, including Ms Sylvia Lim and Mr Faisal Manap, went about their work as though nothing had happened. 

The next stage has been set. Parliament will decide on whether to agree with the COP’s findings and recommendations. I suppose this will be through a motion set before members and opened for debate. 

Ms Khan was fined $35,000 in all, below the $50,000 maximum allowed by the law. No punishment was suggested for Ms Lim as she was deemed to have been co-operative to the extent of submitting documents that didn’t put her chief in a good light. Both Mr Singh and Mr Faisal, said the COP, should be referred to the public prosecutor. Mr Singh, because the COP was satisfied that he had lied under oath which could amount to perjury and Mr Faisal for refusing to answer questions in particular about documents in his possession that could point to a conspiracy.  

I am uncomfortable with the idea of passing the buck over to the courts, although I can see the merits. What bothers me is what the COP is signaling by suggesting that the PP gets  involved. 

Supporters of COP’s recommendation say that this means that the WP leaders will “have their day in court’’ instead of having to answer to a panel. There will be greater scrutiny because the trial process is an adversarial one, with prosecution and defence counsel. The defence is likely to go hammer and tongs with prosecution witnesses rather than treat them with kid gloves.

That is presuming that:  

a. Parliament agrees that there is reason to hand the case over the public prosecutor instead of settling the issue itself (which it can) 

b. The Public Prosecutor thinks there is a case to take to court 

People seem to think that the legal system will give Mr Singh and the WP a fairer shake than what had transpired before COP. I agree and that is as good as saying that the COP process was unfair, whether because it is packed with ruling party MPs, or because of its inquisitorial approach. 

Health Minister Ong Ye Kung, a member of PAP’s central executive committee said: “I feel it is proper and correct for the Committee of Privileges to refer the case to the Public Prosecutor because, should the issue really go to trial, Mr Pritam Singh and Mr Faisal Manap can then furnish all the evidence before the judge, argue their case, defend themselves and clear their name.

“The issue of being outnumbered by PAP members doesn’t arise in the court of law. The judge is independent, and the judge is objective. Further, if no wrong is done, there is no fear of the Leader of the Opposition losing his seat.’’ 

In my view, this “issue’’ of the PAP’s majority numbers makes every parliamentary decision suspect, unless the party whip was lifted with every passage of legislation and debate. The PAP has always held to the principle that Parliament is the supreme authority. It has the power to pass Bills that affect the lives of the people, and the PAP could care less about talk that legislation got approved easily and speedily because of its majority. The legislative process was adhered to and transparent to boot (with live streaming!). So why not the same confidence to deal with a couple of “renegade’’ Members? Because the optics won’t look good? 

In its report, COP acknowledged that Parliament itself has the power to impose sanctions, including custodial sentences, fines, and other sanctions. Parliament can order another committee to be set up as well but this might be fruitless, it said. “The default position is that Parliament should deal with matters that arise in a Parliamentary context’’.  

It didn’t explain the importance of this default position or why it is so keenly held in parliamentary democracies. 

But it then proceeds to say that “nevertheless’’, there were benefits sending it to the PP: 

(a)  the Public Prosecutor will have the opportunity to consider all the evidence afresh, and also consider any evidence that this Committee may not have considered, (for example, if such evidence has not been presented to this Committee, but emerges subsequently) before deciding whether criminal charges should be brought against Mr Singh;

(b)  Mr Singh will have the opportunity to defend and vindicate himself, with legal counsel, if criminal charges are brought; and

(c)  a court can look at the matter afresh, and consider any further evidence that may emerge, and decide whether any charge(s) have been proven, or not proven, beyond reasonable doubt.

It would be, it said, “best for us’’.

In my view, the only good argument is that the PP will have more powers of investigation to uncover more evidence, if any, to vindicate the COP’s position that Mr Singh had lied under oath or the suspicion that Mr Faisal had in his possession incriminating documents. Then again, shouldn’t it be the other way around? That the COP is convinced that wrong-doing was so egregious that it is inviting the PP to enter the picture because parliament’s own punishments do not fit the supposed crime? 

I note, however, that there is an explicit mention in the Singapore Constitution about the power of Parliament to expel MPs, which the COP avoided mentioning. 

Section 46, Clause 2 said that the seat of a Member of Parliament shall become vacant if among other things, “if he is expelled from Parliament in the exercise of its power of expulsion’’. 

What then are these powers of expulsion? This can be found in the PPIP Act under Section 21 under the title Procedures in Cases of Contempt. 

(2)  If, on the report of the select committee to which a matter has been referred under subsection (1)(b), Parliament is satisfied that any person is guilty of any offence mentioned in section 20, Parliament may inflict upon such person all or any of the punishments provided in section 20 and also in the case of a Member expel him. 

So Parliament can well decide that Mr Singh and Mr Faisal should lose their seats. The difference between Parliament’s decision and a criminal conviction is that Parliament can expel but cannot disqualify a person from standing for election. 

It takes a jail term of more than a year or a more than $2,000 fine to disqualify an MP and bar the person from standing for elections for five years. 

There might be politicians who would relish their day in court, because it means the ability to summon witnesses and examine them on the stand – something they won’t have the luxury of doing otherwise. But politicians also know that a conviction could harm their political futures.

In 2020, Singapore Democratic Party’s John Tan asked the Appeal courts for a jail term in lieu of a fine when he was convicted of scandalising the judiciary –  because he wanted to contest in the coming general election held that year. Better to serve time than pay a fine. 

The judges who fined him $5,000 said:  “Parliament has enacted a series of  disqualifying conditions for aspiring Members of Parliament, and it would bring the Judiciary and the administration of justice into disrepute if we were to impose sentences with an eye towards the political process.

“After all, a court that chooses to impose an inappropriate sentence in order to avoid disqualifying a candidate from standing for election as a Member of Parliament could just as easily do the same thing to achieve the opposite end. In truth, both outcomes are equally abhorrent and impermissible.’’ 

Lawyer and social commentator Yeoh Lian Chuan called this fine-versus-jail outcome an “anomaly’’ in the law. I agree. How does a $2,000 fine compare with a year in jail? Whichever way the courts rule, however independently, they would have to come down on one side or the other and inevitably attract comments about partiality. Which layman can possibly view a $3,000 fine as worse than 10 months in jail? This law needs changing. 

Of course, the courts may well find all parties not guilty or decide there is no case. The judiciary doesn’t go “yes sir, yes sir, three bags full’’ .  In the WP’s appeal against conviction for financial wrong-doings in its town council, for example, the judges acknowledged the political nature of town council work which could lead to political decisions being made about the running of the estate rather than basing them on pure economics. The verdict has yet to be released. 

There is a sad and cynical expectation that Parliament will say okay to the COP’s recommendation to send the case to the PP.  What would happen if  the PP investigates and decides there wasn’t enough evidence that would constitute a legal offence worth pursuing in the courts? (Note that the burden of proof in a court of law is set higher.)  What would this make of the credibility of the whole COP process? Surely, the WP cannot be doubly punished by Parliament deciding to take action because the PP cannot? 

I don’t know how the WP would respond in Parliament tomorrow besides complaining about partisan politics influencing the COP. In my view, the COP has conceded that even if it is “not biased’’, it “looks biased’’ and this “perception’’ should be corrected with third party intervention. 

The COP had WP MP Dennis Tan as a member, but that is just one MP among eight (including the Speaker) to examine witnesses with a different line of questioning. It might have been different if more opposition MPs sat on it, but alas, the numbers are too small to justify involvement in COP. The same might be said for every parliamentary committee that is set up. Why cast this pall over Parliament proceedings? 

When Parliament sits tomorrow, I hope MPs, especially Nominated MPs, will examine the larger implication of this move and what this means for the credibility of a one-party Parliament. I am leaning in favour of Parliament keeping its business in-House.