RESPECT FOR THE JUDICIARY

Mr Speaker: Mr Jeyaretnam, you may resume your speech.

Mr Jeyaretnam: Thank you, Sir. As I was saying, we have a Tribunal. We know very little of the circumstances under which the loan came to be granted or agreed to be granted to Indonesia. Indeed, when I raised the question in Parliament, the Minister for Finance was not quite clear even as to where the decision was taken and it would appear that the decision was not really taken by the Cabinet itself but was taken by the Prime Minister in consultation with one or two other Ministers and later ratified by the Cabinet. But, as I said, we are not here to inquire into all that.

The question that we are here to consider is whether in so doing the Government has complied with Article 144 of the Constitution. When my Party first raised this, the answer from the Minister was, "No, we have been advised that it does not apply because way back in 1980 or 1986 the then Presidents had approved purchase of Indonesian equities or securities." Then when my Party took this matter up outside Parliament, in press releases, we heard from the Ministry of Law that the Article should be interpreted in a particular way - I don't want to go into all that - and that we had got it grievously wrong in our interpretation. So we offered immediately and said, "All right. If you say we have got it wrong, why not let the court decide this." And as I said, there was a tribunal already in place which could have decided this question once and for all. The answer came back, "Oh no! We don't have to refer it. If you want, you refer it." Forgetting, Mr Speaker, Sir, that it is only the President who may refer these questions to the tribunal. The Ministry of Law forgets this and says the Workers' Party can refer it.

Then the Party said, "All right. If you want us to appear, we will be quite happy to appear, provided, in the event we are found to have been wrong in our interpretation, no costs are levied against us." It seems to be quite a reasonable request, may I say, on a matter which concerns our taxpayers. And it is not a trifling little sum that is in question. It is nothing less than S$8 billion. And so we went on, to and fro and finally the Party asked two questions: that the Ministry of Law should answer whether it was the business of the court to interpret or not and whether this was a matter of supreme public importance. We never got an answer to that. And, of course, the silence is deafening. The Ministry of Law could not very well come and say it is not for the court to interpret. So it is, I repeat, a matter for regret that on a matter like this, of supreme public importance, the taxpayers' monies of $8 billion, the Government is dragging its feet when it is suggested to it that it should get a decision from a competent tribunal which will be able to put this matter at rest. All we can say, Mr Speaker, Sir, it is to be deplored. But this is not the only instance, although this is the most outstanding or significant instance and of very recent memory.

There was the question whether the Prime Minister and the two Deputy Prime Ministers had broken the law on polling day when they entered the polling stations. My Party had made a complaint that it was in clear violation of the section in the Parliamentary Elections Act. It seems to us plain that the Act prohibited any person other than the candidate and his polling agent or election agent and, of course, other than the election officials, the police and the voters, from entering into the polling station. That was made clear by section 39(4) which says: "The presiding officer . shall exclude all other persons", that is, persons other than those that I have mentioned. But when we complained to the Police, and it appeared to us that it was only the Police that could take action under this, we were told that the Attorney-General had ruled that no offence had been committed because the section did not mean what the Workers' Party was trying to say it meant.

All I wish to say, commenting on it, is that I was told, Mr Speaker, Sir, that there was a story on the Internet. I do not surf the Internet, as they say these days. The story was about a boy who was caught by his mother coming out of a disco, and the mother seized the boy and said, "My son, didn't I tell you that you are not to go anywhere near a disco?" And the boy said, "But, mother, I was not anywhere near the disco. I was inside. So how can you say I didn't follow what you told me." That is the only comment that I wish to make. It seems to us plain that the Act prevented or prohibited persons, other than those I have mentioned, from being present inside the polling station.

Then there was yet another matter on which the Government seems reluctant. And this was the question that I posed to the Finance Minister on the sitting on 19th November and emerged from it. I had asked the question whether section 8 of the Prevention of Corruption Act was considered by him when he was asked by the Prime Minister to inquire into the purchases at Nassim Jade and Scotts 28 by the Senior Minister and DPM Lee. The answer given seemed to me to confirm that section 8 of the Prevention of Corruption Act was never considered. And his answer was that it was not considered because nobody thought it had any application to the purchases. But section 8 of the Prevention of Corruption Act is again explicit and it says, if I may read it, Mr Speaker, Sir:

"Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved."

So under the Prevention of Corruption Act, the decision is left to the court to determine so long as it is found that the recipient is a public official and the gratification has been received or agreed to be received from a body which has or would have dealings with the Government. And there was no question that the developer would have had dealings with the Government. And if one looks at the definition of gratification, it seems to us to be plain that the giving of the discount was covered within the meaning of the word "gratification". So, again, the courts were not given an opportunity to pronounce on this.

Going further back, and this was of course in 1988 and it concerns me, the Government ignored a pronouncement of Singapore's highest court. Government wastes no time in paying lip service to respecting the courts and does not waste any time to punish anyone who it says is in contempt of the court. And yet when Singapore's highest court, as it was in 1988, made a pronouncement that the convictions were wrong and that there had been a serious miscarriage of justice, how did the Government react to a pronouncement by its own court? Let it not be forgotten that the Privy Council, although it was staffed by Britishers, was Singapore's court set up by the Singapore Government to hear appeals and it was praised as serving a very useful task. And the reason given was that the Privy Council had no jurisdiction. The Privy Council itself admitted that it had no jurisdiction to set aside the conviction. We did not need the Government to tell us because the convictions were not before the Council. But the Privy Council had the jurisdiction - and this was not only a decision of the Privy Council, it was also the decision of the High Court of Singapore - that it had jurisdiction to consider the validity of the convictions in a related appeal. Having looked at the convictions and how they were obtained, they said that there was a serious miscarriage of justice. And the Government not only ignored the pronouncement but committed contempt of court, despite the then Prime Minister, now Senior Minister, saying before the Committee of Privileges in 1986 that if it was shown that there was any injustice, Parliament should ask immediately the President to set aside the convictions or to order a new trial. That apparently meant nothing. And then the Prime Minister when he went to Williams College committed blatant contempt of the Judiciary by saying they were playing politics.

Mr Speaker, Sir, I have selected these four instances because they seem to me to be very glaring. There are other instances where the Government and officers have not been seen and perceived to be acting within the law. It is my submission that, by so doing, the Government loses its credibility. It loses its moral authority to govern Singapore if it refuses to abide by the Constitution which is the supreme law and which binds the Government, Parliament and even the Judiciary. Any government which is sensitive to its role as a democratic government and observing the rule of law would only be too ready to submit its decisions for examination by a competent authority, competent to examine its decisions and make any pronouncement on it. But apparently, this Government is not prepared to do so. The Government behaves, as I said, as though it is a law unto itself. No one is right except itself. That, may I say, Mr Speaker, Sir, is a very arrogant attitude to be taken by any government.

So it is my plea in this House - let us forget about the other instances - that this question of granting the loan of S$8 billion or agreeing to grant the loan was taken in accordance with the Constitution be referred immediately to this tribunal. We cannot do it, as I said. The Workers' Party cannot do it. No member of the public can do it. The President, and the President of course acts, as he is required to under the Constitution, on the advice of the Government. So I do hope that the Government will reconsider its reluctance and have this matter now referred to the tribunal under Article 100A and if the tribunal wishes to hear arguments, we, in the Workers' Party, will be quite happy to appear before the tribunal and present what we think is the contrary argument. But it is the tribunal which has to decide that, not the Government. And my plea is that the Government should do that now. It will then redeem itself in the eyes of the public. It will show itself as a Government that is sensitive to public opinion, that heeds the necessity to abide by the Constitution and the Rule of Law.

Question proposed.

[Mr Deputy Speaker in the Chair]

4.22 pm

Mr Low Thia Khiang: (In Mandarin): Mr Speaker, Sir, Parliament, the Executive and the Judiciary are the three major pillars of Singapore's Government. Apart from legislation, Parliament has the supervisory power over the Government's action. The Government should ensure that all its actions are carried out in accordance with the law. The Judiciary is responsible for interpreting the laws passed by Parliament and to find out whether the acts of the Government are carried out in accordance with the law.

Recently, the Government offered to loan US$5 billion to Indonesia. Whether or not this is done in accordance with the law should not be left to the Attorney-General alone to interpret in such a way that justifies the action of the Government. This is not convincing, and it is against the principle of the separation of powers between the Executive, the Legislature and the Judiciary.

Article 144 of the Constitution provides for the protection of the assets of the people. The Attorney General has interpreted this Article in such a way that it cannot restrain the Government from making such a substantial loan without having first obtained the approval of the Elected President. If the Government can freely make use of the reserves to lend money to any organisation or any foreign government, then the Elected President who is supposed to be responsible for holding the second key, is quite useless. Is this a loophole in our Constitution? Therefore, to refer the interpretation of the Article to the tribunal set up under the Constitution is what a responsible government should do. But, unfortunately and regrettably, the Ministry of Law is trying to push the responsibility to the Workers' Party. This is not a question between the Government and the Workers' Party. It is a question whether the Government is acting according to the law, respecting the Constitution and be responsible to the people.

Generally, the people of Singapore are questioning the Government's right to grant a huge loan to another country without the President's approval. The Government should therefore refer the matter to the tribunal in order to enhance the confidence of the people in the Government. Why should the Government shirk the responsibility? Therefore, I would appeal to the Government to refer the interpretation of Article 144 to the Constitutional tribunal to show that the Government has indeed the respect for the Judiciary and for such a respect to be affirmed. .

I support the motion.

Assoc. Prof. Ho Peng Kee: Sir, both Mr Jeyaretnam and Mr Low have talked about the recent episode of the loan that Government made to Indonesia. Mr Jeyaretnam made other points which I will address briefly afterwards because they are points that have been addressed before. Other than the loan, he has really brought up old issues. But this current one is a continuation of the debate that began in this House on 19th November 1997 when Mr Jeyaretnam asked the question of Dr Hu, Minister for Finance, as to the constitutionality of the loan. He said that the Workers' Party questions its constitutionality and he said that the Government should be the party to refer the matter to the constitutional court. Let me first of all put things in context, set out the backdrop to this episode, in particular the exchange of letters between the Government and Mr Jeyaretnam.

As I said, it began on 19th November 1997 in this House, after which in a letter dated 20th November, Mr Jeyaretnam repeated his allegation of unconstitutionality in a press release. The Government responded very quickly the following day to explain carefully the operation of Article 144, setting out the Attorney-General's opinion. Obviously, Mr Jeyaretnam either did not want to or could not grasp the explanation that was given. Calling the law "an ass", he asked the Government to refer the matter to a constitutional court, boasting that he would argue the case himself. The Government responded that the law was clear and that there was no need to do so. But if Mr Jeyaretnam wished to, he was free to bring the matter before the courts.

True to character, Mr Jeyaretnam shifted ground. He did not say it as much just now but he alluded to it. But let me put it in the fullest context. He said that the Workers' Party would bring the matter before our courts but on the condition that the Government agreed to bear all legal costs. So the Workers' Party would bring the matter to the court but the Government, with taxpayers' money, bears the legal costs, including those for engaging a constitutional lawyer from overseas. If that was not already an absurd condition, yet another condition was that the Government should meet AG's costs in defending the suit even if it failed. So the Workers' Party brings the suit. First, he said he would argue himself. Then he said, "Well, we will bring the suit. We will bring an overseas lawyer, expert constitutional lawyer. But if we fail, we won't bear AG's costs." At that stage, Mr Jeyaretnam was already talking of the action failing and no longer was he going to argue the case himself. He was now going to get an overseas constitutional lawyer. Obviously, he had second thoughts about his assertion that Article 144 was unconstitutional. And indeed, I think it was a wise thing when he said he would bring an overseas constitutional lawyer to help him because, if I may say, he needs it.

With these absurd conditions, the Government responded the next day that the Workers' Party's position was ludicrous. The Government also reiterated its position that, as advised by the AG, the law was clear. There was therefore no need to refer the matter to the courts. And we also said that if Mr Jeyaretnam claimed otherwise, he was free to do so. So we have this as the current position.

The legal position, as confirmed by the AG, is clear. What the Government has done is within the law and the Constitution. But Mr Jeyaretnam disagrees. Just because he disagrees, he wants the Government to refer the matter to the courts. The Government has said no. From that, he now wants this House to say that the Executive does not respect the Judiciary as the final arbiter of our laws. So it is a quantum jump. It is preposterous that just because he, as an Opposition Member, makes an issue of it or demands it, we are obliged to refer the matter to the courts. How does this follow? Mr Jeyaretnam having failed to be elected in the last general election wants publicity. But the courts are not there to satisfy his craving for publicity. If Mr Jeyaretnam is sincere and serious in his view that the Government has breached the Constitution, then surely as a lawyer he knows that he can initiate action in our courts to challenge the Government.

Mr Jeyaretnam clearly does not understand the provisions of the Constitution. So what I have done is I have asked the Attorney-General to once again elaborate on its earlier opinion as to why Article 144 does not apply to loans made by Government, applying rather to loans made to Government, in other words, when the Government borrows money, not lends money. This is for Mr Jeyaretnam's elucidation. I will now ask the Clerk to distribute AG's elaboration (Cols. 133-6). [Copies of Attorney-General's elaboration distributed to hon. Members.] AG's elaboration (Cols. 133 - 136)

The AG's exposition of these provisions on reserves is very clear. Article 144 applies to situations where Government borrows , not lends, money. This is because when Government borrows money, it borrows on public credit. So a profligate government without enough money in the coffers to spend can borrow money, but who will return the money? Future governments will have to do that.

Mr Jeyaretnam would do well to take some time to read it carefully. Or better still, he should consult his overseas constitutional lawyer. He would then discover that if anybody is an ass, it is not the law. AG has set out the position very clearly and I hope he reads it very carefully. His interpretation is backed by common sense. In fact, paragraph 8 of AG's note puts it very nicely. Let me read the paragraph:

`If Mr J B Jeyaretnam's view of Article 144 is correct, it means that the Government's power to give any loan of any amount to any person anywhere is now restricted by Article 144. It means, for example, that the Government may not give car loans or computer loans to civil servants without the sanction of Parliament and the President. That would be an absurdly impractical way for the Government to govern.' Mr Jeyaretnam prefaced his speech by saying that he makes a very practical point. It is not an academic point, not a moot point. But the interpretation he argues for would, in fact, lead to much impracticality in governance.

AG's elaboration is also backed by other premises or basis such as the rules of statutory interpretation, reference to Article 144(2) and also to the concept of reddendo singula singulis and indeed even to the reference to the legislative material, eg, the White Paper, where in paragraph 42 on which Article 144 is based, it is stated very clearly, Article 144 talks about situations where Government raises loans, not gives loans, as well as other provisions in the Constitution and also other legislation. This is a full opinion. I hope he takes care to read it.

The President's constitutional powers to safeguard reserves are therefore not compromised in any way. And the Government is very open about it. That is transparent government. We will tell you why we think the law is clear. And because AG's exposition is clear, the law is clear, Government accepts it. Of course, again, as I said, if Mr Jeyaretnam thinks otherwise, he is free to bring the matter to the courts.

Let me turn to another absurd point made by Mr Jeyaretnam - that the AG is a member of the Executive, hence it is really a case of the Executive interpreting laws passed by Parliament. I think that is what he has alluded to. He talks about the two questions he raised in his last letter where there is really no need to reply to because the exchange had gone on for sometime already, and Government had put its case very clearly. This is one question that he had asked - is AG a member of the Executive? Government says AG's opinion is clear, therefore, there is no need to refer to the courts. I think such an assertion really shows Mr Jeyaretnam's gross misunderstanding of the role of the AG as chief legal adviser to the Government, as set out in Article 35 of the Constitution.

As chief legal adviser, AG is asked, from time to time, to advise the Government on the legality of proposed executive decisions or actions. His role is to give legal advice objectively. In giving such advice, the AG may have to advise the Government on the interpretation of the provisions of a statute. In this case, he had to interpret Article 144 of the Constitution. His advice, like any other legal adviser including Mr Jeyaretnam who himself is a lawyer, represents his own understanding of the law. He does not have to seek a judicial ruling before tendering advice to the Government. Like all legal advisers, AG will assess each case on its own merits. Like all legal advisers, he will not say that there is a strong case if there is really none. After all, he has to stand by his opinion to the Cabinet, and if it becomes public as it has now, then to Singaporeans and indeed to others in the world who may care to read it, examine it, especially to his own fellow AGs from other jurisdictions.

In this instance, AG has advised that the US$5 billion loan to Indonesia is lawful. The Government has no reason not to accept AG's advice. In so doing, we can understand Mr Jeyaretnam's disappointment in that he will not have what he wants - Government acting on his prompting to bring the matter to the constitutional court. But for him to claim that non-referral of AG's legal interpretation to the courts is tantamount to not respecting the courts, I think that is mischievous.

The other two instances that Mr Jeyaretnam mentioned just now ---

Mr Jeyaretnam: Three.

Assoc. Prof. Ho Peng Kee: All right. Two instances as regards AG's role as Public Prosecutor, which is also set out in Article 35. We all know that the AG has got the discretion to prosecute or not to prosecute, and he will do that fairly, impartially.

Sir, this point about PAP leaders not being prosecuted for acts done in connection with the last General Election, again, this has been fully debated in this House when the Minister for Law answered and gave a full reply. He also set out an opinion by the AG which again was made public. So it is examined by everybody why the provisions do not apply. The same argument applies to the Prevention of Corruption Act. Is it relevant? Is it applicable? The AG will have to decide, and he does this acting in his constitutional role of Public Prosecutor, acting fairly and impartially.

Before I go on to the other point, Mr Low Thia Khiang talked about a loophole in the Constitution - can Government just lend money? The Government has the power to lend money, but, ultimately, I think he will agree that all of us know that the Government's actions are accountable to the people. So if we make imprudent loans and we cannot defend what we do, we answer for it in the next general election. So there is an element of accountability. And if you look at AG's opinion, he also mentioned Article 148G where the Accountant-General and the Auditor-General have the duty to advise the President should there be transactions or proposed transactions which to their knowledge are likely to draw on the reserves. So there are checks and balances, I would like to assure Mr Low.

Then the question arises: is Mr Jeyaretnam therefore hypocritical in moving this motion? I ask this because he accuses the Government of not respecting the Judiciary. But let me ask him: has he once stood up for the Judiciary? On the contrary, the Member was censured by this House in 1987 which found him guilty of abuse of the privileges of Parliament in his allegation of Executive interference in the Judiciary. So he himself impugned the integrity of the Judiciary and Parliament punished him with a maximum fine of $1,000. I should say that he is the least qualified to talk of respect for the Judiciary.

Sir, the position of the Executive, and indeed of this House, has always been that our Judiciary should be accorded due respect and its integrity defended. This is on record. It is very clear from Government's actions. We stand by the rule of law. We subscribe to the separation of powers and the independence of our Judiciary. Indeed, if Mr Low can remember - Mr Jeyaretnam was not here at that time - it was only a few years ago in November 1995 that the Government on that occasion stoutly defended the integrity and independence of our Judiciary. On that occasion, this House passed a motion denouncing the SDP for attacking the Judiciary. The message was clear. The greatest respect should be shown to our Judges. Even Mr Chiam See Tong - he is not here today - I think all of us remember that episode, he was then still an SDP member, stood up for a principle and defended our Judiciary, even if it meant disassociating himself from the then leadership of the SDP. He voted in favour of the motion. The Workers' Party, on the other hand, issued a statement that it would not participate in the debate and its sole representative in the House, Mr Low, abstained in the voting.

Sir, therefore, I would urge this House to soundly reject this motion. It is baseless. It is mischievous. It is hypocritical. Before I conclude, I think Mr Jeyaretnam will remind me of one more example he cited, his own case in 1987. Here again, the grounds have been fully ventilated.

Mr Jeyaretnam: 1988, not 1987.

Assoc. Prof. Ho Peng Kee: Thank you. The grounds have been fully ventilated. Indeed, this was debated in this House in January 1989, when the Minister for Law answered a question raised by Dr Lee Siew Choh on this matter. So it was fully ventilated. The grounds are very clear. In fact, the Privy Council, as Mr Jeyaretnam said himself, had no jurisdiction in terms of commenting on the criminal convictions.

Mr Jeyaretnam: You got me completely wrong. I will reply to you.

Assoc. Prof. Ho Peng Kee: All right. It is very clear. The grounds are there. The matter before the Privy Council in that case was disbarment, not the criminal convictions. So whatever comments the Privy Council made on the convictions were not binding, and the Privy Council, in fact, said that. Also, because the Public Prosecutor was not present, important points of law were not argued. These are just examples. The main point that Mr Jeyaretnam wants us to look at is really the motion. I do not think we should be side-tracked by these examples which I have said are old examples. He would like us to re-visit these issues, but they are really all in the books. Government stands by what it has said in the past which is totally defensible.

Therefore, Sir, once again, I urge this House to reject the motion. Let me conclude by affirming that the job of government is to govern. And we will govern effectively so as to safeguard our interests domestically, in foreign relations and defence, and we will do this in a manner and in the best interest of Singapore, and in accordance with the law. If it requires getting the President's approval or coming to Parliament to pass laws or debate policies, we will do it. But if it requires decisive Executive action, as was the case for the loan because timing was a consideration, then we will continue to take such decisive actions. [Applause].

Mr Simon S C Tay (Nominated Member): Mr Deputy Speaker, it is not apparent to me what specifically Mr Jeyaretnam had in mind when he moved this motion. Allow me therefore to begin with some general observations on the motion before dealing with the specifics of what I have just heard him and the Minister of State for Law, Assoc. Prof. Ho, say.

I think it is apparent to all of us that Singapore has a written Constitution that sets out the respective roles of three main and equal institutions - Parliament, the Executive and the Judiciary. It is also very clear that the Constitution gives judicial power to the Judges. "Judicial power", what does it mean? I tend to agree with the NCMP that it is to interpret the law. But then, I think, in principle, any first-year law student would agree with the same. The question then becomes: in practice, has this Executive government observed that rule of law?

The allegation, first, must be taken seriously. Because, if it is true, then there are very serious consequences. Many states in history have let slip the rule of law and there have been tales in which judges, after giving a decision against the Executive, had found themselves removed or, worse, confronted by armed men and tanks. I am glad to know that we have a trained defence force in Singapore and mobilisation exercises. I believe none of us, including the NCMP, would want to see that kind of mobilisation exercise carried out. So it is a serious matter and political, social and economic consequences would be very high for Singapore. What then must be done, Mr Deputy Speaker, to prevent the possibility of force overwhelming the rule of law or subtler means in which the rule of the Judiciary might be usurped?

One thing that has not been said in Parliament today is that our Constitution provides that the Judges of our Supreme Court have security of tenure in office. With very narrow exceptions such as unsoundness of mind, body or misbehaviour, the Judges of our Supreme Court cannot be summarily dismissed nor can their salaries or powers be reduced. This is important. This is an important protection against improper influence and fear from the Executive or from others.

The courts also have the powers to punish people who speak or act in contempt of court. And so in this way, the Singapore system gives Judges as much protection as the law can give. Is there more that can be done? Sir, I wish to speak on one general principle that I wish to introduce to this House before turning to specifics that Mr Jeyaretnam has raised.

The first step, I believe, to make the situation even better is that all Singaporeans must recognise and respect that the Judiciary can, and often will, review and strike down laws passed by this House or actions taken by the Executive. In Singapore's legal history, though brief, there have been cases in which the court has disagreed with Government agencies and statutory bodies such as the Housing and Development Board and the Registry of Companies. These are not small and petty bureaucracies. These were serious decisions taken by the court in favour of individual Singaporeans against powerful Government bodies.

In this past year itself, we have seen the courts significantly reduce the amount of damages sought by Government leaders in their personal capacities against their political opponents for defamation. In two major cases, the courts have ruled against the Executive. First, in the decision of PP v Bridges, the courts held that the courts should be the final arbiter of what is or what is not a secret under the Official Secrets Act, not the Executive. Second, and even more recently, in the case of former GIC manager, Eddie Taw, the court refused to uphold his conviction on charges of corruption. According to newspaper reports, the Judge held that part of the Prevention of Corruption Act is unconstitutional insofar as it provides an unequal burden on Singaporeans. I am not dealing with the substance of these cases, but I think the principle must be clear to everyone that our courts are independent and these examples that I illustrate are not to shore up our bureaucracy or Executive but to show that, when necessary, our courts are strong and bold enough to put right what they see as wrong. I think the Executive has demonstrated in these cases that they have followed the decisions.

Sir, I think sometimes we in Singapore tend to view disagreement as something to be avoided; something distasteful or inefficient or even "unAsian". But when we consider the role of the Judiciary, an equal role, we must give allowance for such disagreement between the Judiciary and the Executive, or the Judiciary and this House. The authority of the courts to administer justice to the ordinary citizen is built on the authority of the courts to do so with all, even if it means being in disagreement with the highest office in the land. When we recognise this, we can recognise the power that the Judiciary wields in the name of justice. Only with such knowledge, will the confidence in our judicial system increase. Only this will send the message that our courts have acted and will act independently of the Government. Then all Singaporeans can join in refuting the scandalous claims others have put forward that our Judiciary is somehow compliant.

This brings me to the second step that I think is needed to safeguard the Constitutional position and the public standing that our Judiciary already enjoys. This is that the House and the Executive should best serve the Constitution and this country by conducting ourselves in ways that give due recognition to the Judiciary's role. Specifically, I caution against amendments to the law designed to override interpretations and decisions given by the judges.

This House makes the law. But the Judiciary interprets it. There may therefore be occasion on which we pass the law thinking it will have this meaning and this effect, only to have the judges tell us that it does not, it has a different effect, or that it cannot be given effect. When that happens, the temptation will be to amend the laws, or even the Constitution, abruptly. This has happened before.

There have been notable amendments to the Internal Security Act in the late 1980s. This followed the Judiciary's decision in the landmark case of Chng Suan Tze, that decisions taken by the Executive should be subject to judicial review on substantive grounds. This House reacted then by amending the law and the Constitution to remove substantive judicial review and limit the courts to the review of procedure only. The amendments removed the ISA from full judicial scrutiny. It made the Executive the arbiter over the substance of ISA cases.

But even as we recognise that fact, we must also recognise that this is a very narrow exception. For the vast majority of laws, which Singaporeans live under every day, the Judiciary remains the final arbiter, not the Executive. What then must be done is to restrict the exception, and not to allow it ever to become the rule. It of course remains the right of the Executive to appeal the decision of a judge to a higher court. It is also within the power of this House to amend the laws, and given the large majority enjoyed by the party in power, the Constitution as well. But I, as an NMP, hope that this power to make and amend laws in the face of Judicial decisions will be exercised sparingly. The process of making and amending laws needs a sea change, I believe. This House should override judicial decisions by amending laws or making new ones only with compelling reasons and after a thorough discussion, both in this Chamber, and by such means as Select Committees. This hope extends to the recent instances I have mentioned in which courts have given decisions that the Executive may disagree with.

I humbly submit in that sense, that the question facing us in this House in such situations is not: Can this House amend the laws? Of course, we can. The question is not: Will the Executive be able to act more efficiently if we change the law and exclude judicial review? It almost certainly will be. The question should be: Has the court acted within its powers? If it has, this House should recognise this is the constitutional scheme of things and give serious pause before overriding that decision by amendment of new laws and limiting judicial review.

There is no doubt in my mind that Singapore has enjoyed good Government, and benefited from an Executive and bureaucracy that has been largely efficient, non-corrupt, effective and lawful. Singaporeans recognise this. We must also recognise that our nation would also benefit from a Judiciary that is given and continues to be given its full constitutional measure of power and responsibility.

The exception that I have mentioned, as regards the ISA, must be just that - an exception. In the vast majority of laws in Singapore, the Judiciary is the final arbiter, not the Executive nor this House. Let it remain so. The Executive and this House must be encouraged to ensure it remains so. On these grounds, I regret that I cannot support the present motion.

As regards the specifics that Mr Jeyaretnam has brought up, I will confine my comments to basically his contention as regards Article 144 of the Constitution and the role of the Executive as regards seeking the concurrence of Parliament and the Presidency. I think there has been some public talk, coffee shop talk, if you will, that if the President is to be the second key to our reserves, where was the second key in this instance? But I think the clarifications that the Government has brought up upon questions in Parliament have assuaged people. The question of reserves has been emphasized, as Article 148G rather than Article 144. I have not had the time to peruse the detailed opinion given by the Attorney-General, but I believe this, and I agree with the Minister of State on this point: the Government cannot doubt itself. It has an opinion from its Legal Counsel. There is an urgent situation. There is a need, therefore, to move forward. No government ever in the world, when faced with such exigencies, will give pause and say, "Well, even though I think, and my legal advisers think we should move on, perhaps for safety's sake, we should hold a constitutional conference or referendum." These situations take a lot of time and I think in this case, everyone can see that time was of the essence to restore confidence to Indonesia and the region and for our foreign relations. What then has happened now, and this is an important step for Singapore, is that there will be full transparency and discussion of both the substance of the decision and the process of decision.

I think finally we must come to this point. That Article 100 of the Constitution, which is created by the Executive, was to give the right to refer matters on Constitutional questions to one person - the President, not to me, not to Mr Jeyaretnam, not to any Member of this House. Article 100 says the President has the power to refer the matter to a Constitutional Tribunal. And the President has chosen, in this case, to remain, to allow it, at least, by silence.

I think I should stop here because my understanding of Standing Order No. 48(8) is that the conduct of the President shall not be open to discussion in this House.

Mr Tay Beng Chuan (Nominated Member): (In Mandarin): Mr Deputy Speaker, Sir, the legislation of a nation should basically provide for the Government to make a resolute decision in an emergency so that they could take rapid action to protect the interest of the nation. At the moment, the entire region is faced with a financial turmoil that is affecting our nation. We should therefore be concerned with how to unite ourselves and to take effective measures to boost the confidence of the region, particularly our neighbouring countries. Under such circumstances, our Government has, at the request of the Indonesian Government, agreed to grant them a loan of US$5 billion so that they can tide over their financial difficulties. We should be more understanding and give our Government the support. After all, Indonesia, like Malaysia, is our immediate neighbour and one of our most important trading partners. Their economic development is closely linked to ours. If the crisis in Indonesia continues, it would gravely affect our economic development.

On these premises, and at the request of the Indonesian Government, we give them a helping hand. I think this would go a long way to benefit our economic interests. Of course, we must ensure that they make good use of this money and repay the loan as promised.

Sir, at a time when we are faced with such a crisis, we should rally behind our Government and I feel it is most inappropriate to move such a motion at this point of time. Therefore, I do not support the motion.

The Minister for Law (Prof. S. Jayakumar): Mr Deputy Speaker, my colleague, the Minister of State, Assoc. Prof. Ho Peng Kee, has given a very comprehensive response to Mr Jeyaretnam and it had not been my intention to take the floor. But I do so after listening to Mr Simon Tay who, I think, made a very lucid and scholarly presentation of the respective roles of the Executive, Legislature and the Judiciary. For the most part of his presentation, I have very little differences of view. But the reason I take the floor is because of his comments on the need to ensure that when the courts have pronounced on interpretation of the laws or the Constitution, the Government or the legislature should not override (the term used is "override") the judgment, except in exceptional circumstances.

Let me assure him that when the Government has occasion to amend the law, it is not because of wanting to override the decision. As he has very well put it, the job of Parliament is to enact laws which reflect Government's policy. The role of the Judiciary is to interpret the laws, and he is right. Sometimes the courts may arrive at an interpretation which might not have been the interpretation that had been intended by the legislature or the Government. In that kind of a situation, the Government will have to examine the judgement, because as Assoc. Prof. Ho Peng Kee, the Minister of State, ended up his speech, the job of Government is to govern, and to govern effectively to defend and advance Singapore's national interests in various fields - economics, internal security and a whole area of governmental functions.

He referred to the ISA case. In the ISA case where we had to amend, the reasons for amendment were very clearly stated and, that is, it had always been the intention that the merits of the Government, the Executive's decision, under the ISA ought not to be justiciable. What can be reviewed is compliance with legal procedure. And since I moved those amendments in this House, I can assure him, (and this can be verified by reference to records) I had also expressed concern about the trends in Europe and in England where because of the influence of the European courts, they were moving in a direction which was not in our interest. Therefore when we amended it, it was clearly with a view to ensure that in the area of internal security, the Executive will be able to promote Singapore's national interest. That is not to suggest that there is a disrespect for the Judiciary because precisely we respect the Judiciary's decision, we have to amend the laws and the Constitution to ensure that Government's intention and policy objectives are correctly reflected in the law. If the court had arrived at a different interpretation, then we would have to remedy by amendments to the law. That is not anything sinister or undesirable. That is a part of the function of Government.

He mentioned two of many examples where the courts had taken a position of disagreeing with the interpretation and holding against Government. Of those two examples, one was the Official Secrets Act case. Let me say that we have asked the Attorney-General to give us his considered views because his preliminary review was, and is, that if the law is not amended, then it may render it impossible or well-nigh difficult to enforce the provisions of the Official Secrets Act. Since he mentioned it, I want to make it clear in the House that there may well be a need to amend the Official Secrets Act.

The other example he mentioned was the recent decision that section 37 of the Prevention of Corruption Act is unconstitutional. And here, as Members will note, I have given a comment to the press that, yes, we will also examine that decision because it has very serious implications. The fact that we are reviewing it does not mean there is a disrespect of the Judiciary's decision. But we have to examine what is it in Singapore's interest in respect of advancing our objectives and high standards of non-corruption and whether, if that decision in any way renders it difficult to advance our national interest in prevention of corruption, we need to amend the law. In so far as the judge has pronounced that the law was unconstitutional because Parliament did not have power to enact extra-territorial legislation, that also has very serious implications because the preliminary advice from the Attorney-General is that it renders it impossible to comply with our international law obligations and our obligations under certain international conventions, including, for example, exercising jurisdiction over hijacking offences committed abroad. Therefore, this is also being studied. I thought I should mention this now so that if I have to come to Parliament later to make amendments to these laws, Mr Simon Tay would not be surprised or allege that I have not mentioned this at all during the sitting.

Mr Deputy Speaker: Mr Tay, do you want to reply to the misunderstood part?

Mr Simon Tay: I want to mention briefly ---

Mr Wong Kan Seng: I think there is a point of order. The Member has only one chance to speak. Unless he is seeking clarification of what the Minister had said, he has no second chance of reply.

Mr Deputy Speaker: Mr Jeyaretnam.

Mr Jeyaretnam: Mr Deputy Speaker, Sir, I do not intend to keep the House very long in my reply because I think I can deal very shortly with all that had been said by the Minister of State. But before I begin to reply to him, may I say I resent his descent into a personal attack by saying that I am moving this or asking for this because I am craving for publicity. I have heard this several times. That is always the standard reply of the PAP if somebody asks for anything, "Oh, he is craving for publicity." They forget that the Ministers and the PAP occupy the whole of the media space and time. So they do not crave for publicity but anyone who tries to question anything craves for publicity. So I do resent this. It casts doubts on my motives and on my sincerity which I do resent very strongly. And he also goes on to suggest that I am being hypocritical. I have heard this so many times. It is nothing new. But I find it surprising that it should come from this Minister of State now.

May I now reply to his points. The Minister refers to the press releases by my Party and the answers from the Ministry of Law and he says it is an absurd position taken by the Workers' Party to ask for costs. May I say this. When replying to the Ministry's statement made in the first instance that it was always open to the Workers' Party to refer the matter to the court, I had overlooked quite candidly Article 100A of the Constitution. And so we said, "Yes, all right, we will take it." But we do not want to be burdened with the costs of it, if we should be proved to be wrong. We are quite happy to admit that we may be wrong. We do not take the stand of the Government that it is always right, that nobody else can be right. We said that we did not want to be burdened and simply because the Government knows the Workers' Party does not have the funds to pay the cost and no one will help us with these funds because of the climate of fear in Singapore. So we are not ashamed of the fact that we cannot ourselves bear any cost. But one would have expected the Government to have said, "Yes, please do, we will let this matter be decided without costs becoming a stumbling block." But, no. The Minister very conveniently forgets what I have pointed out, which I later realised, that the Workers' Party could not have taken this to the tribunal. It had to be only by the President but Simon Tay also knows that the President acts on the advice of the Cabinet. He is required to act on the advice of the Cabinet.

Some hon. Members: No.

Mr Jeyaretnam: So the Cabinet has to advise him to refer the matter to the tribunal. And so ultimately it is a decision for the Cabinet to take. The Minister says, "Oh, we got the opinion of the Attorney-General. It is so crystal clear to us." It completely misses the point I have tried to get across. It is not for this House. It is not for the Attorney-General to say what the law means. He may have his views like anybody else. But he may be wrong. He is not infallible. And as Mr Simon Tay has rightly pointed out and underscored, the final arbiter of this question is the Judiciary. So what is wrong if you feel that you are right, that it cannot be wrong? What is so very difficult about referring it to the tribunal and getting them to confirm that you are indeed right, that the Government is indeed right? But as I said, it is not for us here to decide. I know Mr Simon Tay says that he now thinks the Government's interpretation is right. It may well be right. I do not know. But I said, let us have a decision by the tribunal which is competent to decide this question.

The Minister says, "Will Mr Jeyaretnam take the trouble to read the opinion?" I have not gone through it very carefully but because he picked out paragraph 8, he says Mr Jeyaretnam's interpretation is wrong because if he is right, it would mean that the Government may not give car loans or computer loans to civil servants. Well, I was amazed to see that because I would have thought that provision would have been made in the Budget every year. Provision would have been made in the Budget for car loans in Ministries and Government offices, and the Budget would have been passed by Parliament and then assented to by the President. So there is parliamentary approval for loans to its officials to be made by the Government. The provision has to be made in the Budget. The money is not taken from any other assets or reserves, for these car loans. So the Attorney-General is clearly wrong on that. It is so elementary to me that he overlooks that that would have been included in the Budget. And is the Minister ---

Assoc. Prof. Ho Peng Kee rose ---

Mr Deputy Speaker: Mr Jeyaretnam, Prof. Ho wants to clarify. Do you want to give way?

Mr Jeyaretnam resumed his seat.

Assoc. Prof. Ho Peng Kee: I just want to ask Mr Jeyaretnam two things. First, whether he had also considered, not just the route through Article 100 of the Constitution, but to seek a declaration in the High Court as to the constitutionality of the Executive action, which is what the Ministry of Law alluded to - unless we have to spell it out specifically. But we said he was free to do so. We know the interpretation of Article 100. But there is this other route.

The other point of clarification is the loans. I would suggest he takes time to read the whole opinion of the AG before he talks about Parliament giving blanket approval to grant loans.

Mr Jeyaretnam: Well, I will do. But that does not necessarily mean because the Attorney-General gives his opinion, and to you, it is crystal clear, or to the Government, it is crystal clear, that the Attorney-General is right, with due respect to the Attorney-General. May I just answer this point on which clarification was sought. Of course, the Workers' Party can ask for a declaration by way of an action in the High Court. But there is already provision in the Constitution, there is this machinery set up. There is a tribunal. Why should we be asked to go by an ordinary action in the High Court when it is the tribunal which has been invested with the powers to determine any opinion as to what an Article in the Constitution means? I do not quite understand the suggestion that you can go that way, you can go this way when already the way has been provided for you. There is one way set out for you. [Interruption by Assoc. Prof. Ho Peng Kee.] Whether it is the Workers' Party or not, would the Government concede, please, for the last time that this is a matter of public concern? The public wants to know whether in agreeing to give $8 billion loan to Indonesia, the Government acted under the Constitution. Is it a matter for the public, for the taxpayers? Or are you saying it is only a matter for the Workers' Party? The Workers' Party tries to represent the people. It does not act as though it is a law unto itself.

The other point is this. He says that the AG is not a member of the Executive, if I have understood him correctly. He says he is the chief legal advisor. Does that mean he is not a member of the Executive? He can be a legal advisor but does it not mean he is a member of the Executive? What is he? A member of the Judiciary? Or is he a member of this Parliament? He is a member of the Executive. He is the chief legal advisor.

He touches on the decision of the Privy Council and, if I understood him correctly, he says the Privy Council has no jurisdiction to examine convictions. I am surprised that the Minister of State makes the same mistake that has been made over and over again by others. Is the Minister ---

Assoc. Prof. Ho Peng Kee: Mr Deputy Speaker, can I just clarify on this point? Like I said, first, the case has been fully ventilated in the press, exchange of letters, in this House, and the Government's position has remained consistent all this time. As regards the comments made by the Privy Council in relation to Mr Jeyaretnam's criminal convictions, these comments are not binding on the Government because the Privy Council was not seized of the matter, ie, criminal convictions, they were examining Mr Jeyaretnam's appeal against his debarment. And the Privy Council, in its judgement, said as such that the comments could not overturn the criminal convictions. And in fact, the position taken by the Government was also backed up by comments of an English judge, Justice Brooke, who agreed with the points made by the Government. So it is not just a matter of the Government or the AG making these points, but even an outside person.

Mr Jeyaretnam: Again, may I say I am surprised at what I have heard. Perhaps, I should say, first of all, what was before the Privy Council was not the order of convictions made by the criminal court. What was before the Privy Council was the order of the High Court disbarring me from practice as a lawyer. So that was what they were hearing. And as they themselves observed, they had the power to set aside that order and they set aside that order. They had the jurisdiction and I am sure the Minister of State for Law must know this. That even before that decision, there was a High Court decision in Singapore which said that the court listening to a disciplinary proceeding against a lawyer can, in proper cases, go behind the convictions. So that was established as the law. And the Privy Council said, "Of course, that is the law. In proper cases, we can go behind the convictions." So they had the jurisdiction and they went behind the convictions, acting perfectly within their jurisdiction. But they said, "Unfortunately for this man here (I was there at that time) we cannot set aside the convictions because the convictions are not before us." But that does not make it any less a decision of the Privy Council on those convictions. They were saying the convictions were all wrong. And that was the reason for setting aside the order.

I am glad the Minister has now referred to this judgement of Justice Brooke. Justice Brooke is just an ordinary judge of the High Court of England. He does not rank above the Privy Council and he is being quoted out of context by the PAP leaders time and time again. He was not saying that the Privy Council was wrong in saying that the convictions were wrong. What he was affirming again was that the convictions were not before the Privy Council and, since it had not been set aside, the convictions still remained. Of course, that is true. But the Privy Council itself said that they hoped - they did not say in so many words - that the President would do something about it. But the President of course refused to do anything about it.

Finally, may I just deal with Mr Jayakumar's reply. He was not replying to me but he was replying to Mr Simon Tay. He says that when the Government amends the law following any decision by the court, it is not meant to show any disrespect to the court. May I remind him whether he has forgotten that after the decision by the Privy Council, immediately the first thing the Government did was to pass a law abolishing all appeals to the Privy Council from lawyers who have been found guilty or who have been disbarred, preventing them from taking it up to the Privy Council. Is that not a decision taken in pique just because the Privy Council had the temerity to comment on the decision? Equally, was that not the reason for the decision to exclude the courts from inquiring into the merits of detention under the Internal Security Act taken out of pique because the Court of Appeal had said the courts can enquire into the merits? The Court of Appeal was only following what had been established in so many other jurisdictions that the freedom of a subject is so vital that the courts have to determine and remain the final judges on whether the imprisonment or detention is illegal. They overruled the 1942 decision taken in the war time that it was for the Executive to decide that. But of course the Singapore Government could not accept all that. So the immediate answer was `out with all appeals'. We will be our own masters.

Mr Speaker, Sir, I regret that no attempt has really been made to grasp the point that I was making. Instead of that, a lot of irrelevant statements were made. The point that I was making is simply this. It is not that the Attorney-General is wrong and that we are right, but the point that I was making is: was the Government seen and manifestly seen to have acted within the terms of the Constitution and that could only have been demonstrated if the decision had been referred to the tribunal and the tribunal had said, "Yes. Of course, in our view, the Government has acted within the law." That is all I was asking. What is the great reluctance on the part of the Government to refer the merit to the tribunal?

Question put, and negatived.

Motion accordingly negatived.