Wham vs AG: Judge glares spotlight on the Police

The recently reported decision of Wham Kwok Han Jolovan v Attorney-General [1]  is intriguing in more ways than one. 

The case has received public attention for its clarification on the legal effects of police warnings – that they are “no more than an expressions of the opinion of the relevant authority that the recipient has committed an offence”. [2]

But the written judgment of this case by Justice Woo Bih Li is also significant for its critique on how the warning was administered to the recipient in the case.  The Judge shone the spotlight on how the police treated the recipient of the warning - and the police did not come up smelling like a rose.

This is a side of the reported decision which not only opens the lid on police processes, but also makes a fascinating story.

It should be noted at the onset that this is not your run-of-the-mill criminal case.  This case concerns an offence which cannot be committed anywhere on the island of Singapore except at Speakers' Corner in Hong Lim Park. The recipient of the police warning in this case was a Singapore citizen who was exercising his constitutional rights.  The context of the case being in the lofty realms of police constraints on civil activity, it adds a special flavour to the story which the Judge unfolds.

Background - what the case is about

On 1 October 2014, Mr Jolovan Wham organised an event at Speakers' Corner. The publicity for event expressly stated that foreigners and permanent residents required a permit in order to participate in the event. At the start of the event, Mr Wham also informed the participants that only Singapore citizens were allowed to participate.

After the event, the Central Police Division (CPD) commenced investigations against Mr Wham as CPD officers had observed that there were participants that appeared to be foreigners. Subsequently, the Attorney-General decided to direct the CPD to issue a warning to Mr Wham to refrain from conduct amounting to an offence under the Public Order (Unrestricted Area) Order 2013 [3] or any other criminal conduct in the future, instead of charging Mr Wham.

On 25 March 2015 at the CPD Headquarters, Mr Wham was verbally warned as directed by the Attorney-General.

Believing that he had done nothing wrong to warrant a warning, Mr Wham applied to Court to challenge the warning given.

Judge unsure whether there was even any warning given

Right at paragraph one of his judgment, the Judge declared it was not even clear whether any warning was given at all.  

The Judge then went on to scrutinise what transpired between DSP Pannirselvam (the CPD Officer) and Mr Wham, which may be summarised as follows:

1. On 25 March 2015, Mr Wham met the CPD Officer at the CPD Headquarters. 
2. The CPD Officer administered Mr Wham with an oral warning and then invited Mr Wham to sign a document called "Notice of Warning" to acknowledge that he had received the document. 
3. Mr Wham refused to sign the Notice of Warning. 
4. Mr Wham informed the CPD Officer that he wanted to consult his lawyers and requested a copy of the Notice of Warning.  
5. The CPD Officer refused to give Mr Wham a copy of the Notice of Warning.  
6. The CPD Officer then made a handwritten note on his paper that "No copies of the warning was issued to him."  
7. On 4 May 2015, Mr Wham contacted CPD to enquire about the outcome of the investigations against him.  
8. On 5 May 2015, CPD sent a letter to Mr Wham stating that it had been placed on CPD’s record that Mr Wham was “warned by … DSP S Pannirselvam on 25 March 2015".

The Judge having laid out the sequence of events, it becomes evident to the casual observer that the way the CPD dealt with Mr Wham was ambiguous and inconsistent. 

Did the CPD intend to administer the warning to Mr Wham orally or in written form?

How the CPD intended to administer the warning to Mr Wham was not clear.

Handwritten notes on the Notice of Warning stated
"No copies of the warning was issued to him."

According to the Judge, if it was the intention of CPD was to administer the warning orally, then the wording of the Notice of Warning was inconsistent because it stated "You are hereby warned", and not "you have been warned" and that a stern warning “would be administered”, and not “has been administered”.[4]

The Judge also noted that DSP Pannirselvam's handwritten notes stated "No copies of the warning was issued to him", which seemed to indicate that he was treating the Notice of Warning as the warning itself. [5]

The Judge commented: "If indeed CPD had intended all along for DSP Pannirselvam to administer a warning orally followed by a notice that the oral warning had been administered, then the Notice of Warning was poorly drafted." [6]

The Notice of Warning was poorly drafted in more ways than one.  The Judge pointed out that the Notice of Warning had no date and that it carelessly used the terms “warning” and “stern warning” interchangeably.

The Judge suggested: "However, when the Notice of Warning was not handed to Mr Wham because he had said he wanted to consult a lawyer, there was a problem as to whether a warning had been administered to Mr Wham at all. Perhaps it was because of this problem that the position was then taken by CPD that an oral warning had already been issued."  [7]

Then, there is also the mystery as to why the CPD officer refused Mr Wham’s request for a copy of the Notice of Warning.  On this point, the Judge thought that CPD officer should not have withheld it from Mr Wham. 

The Judge said: "It seems to me that if CPD’s intention was to hand over a copy of the Notice of Warning to Mr Wham after the warning had been administered, then DSP Pannirselvam should have handed over a copy even though Mr Wham chose not to sign the acknowledgement.…… Furthermore, it is not illogical for someone who is informed about a warning of an offence to want to seek legal advice before signing any document pertaining to the warning." [8]

Notably, the Judge vindicated Mr Wham’s wish to consult a lawyer before signing any document.

AGC’s Acknowledgement of Remiss

Clearly, there was needless inconsistency and ambiguity in the way the CPD conducted its proceedings with Mr Wham.

In what appears to be an acknowledgment of their remiss, the Attorney-General’s Chambers told the media: "The Attorney-General’s Chambers and the Singapore Police Force are reviewing the process by which stern warnings are administered and the use of the notice, in the light of the High Court's comments in the judgment." [9]

The Judge’s relentless scrutiny of how the CPD dealt with Mr Wham revealed much to be desired of police processes, at least in the area of administering warnings. 

The Straits Times headlined their report on the Court’s decision as “Activist fails to get police warning quashed”. 

Perhaps in an alternative universe would we see the Straits Times using this as the headline instead: “Judge finds fault with how police warned activist”.  

By Jeannette Chong-Aruldoss

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[1] [2015 SGHC 324] at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf

[2] Paragraph 34 of the Judgment

[3] Paragraph 4(1)(b) which provides that an organiser of any demonstration held in Speakers’ Corner must not allow any person who is neither a Singapore citizen nor a permanent resident to take part in the demonstration.

[4] Paragraph 10 of the Judgment

[5] Paragraph 12 of the Judgment

[6] Paragraph 16 of the Judgment

[7] Paragraph 14 of the Judgment

[8] Paragraph 18 of the Judgment

[9] The Straits Times “Activist fails to get police warning quashed” (25 December 2015)

Bilahari Kausikan – Loose and at Large

The day was 31 October 2015 and I was in the famous university town of Cambridge in the United Kingdom. 

I was there to attend a conference with the enticing title "The Legacy of Lee Kuan Yew and the Future of Singapore".  The Conference featured an impressive line-up of speakers comprising distinguished Singaporean and non-Singaporeans with in-depth knowledge of Singaporean history and politics.   

Oxford historian Dr Thum Ping Tjin and Singapore's Ambassador-at-Large Mr Bilahari Kausikan were among the Singaporean speakers I was eager to hear.

Dr Thum Ping Tjin

Dr Thum’s topic was "Lee Kuan Yew’s political legacy".  In his presentation, Dr Thum reviewed the historical context of Mr Lee Kuan Yew's rise to prominence and the political ascendance of the People's Action Party (PAP) in the pioneer years of Singapore. 

In the course of his comprehensive historical analysis, Dr Thum made the point that the era which saw the independence of Singapore was marked by robust political competition. Democracy, debate and dissent characterised the early phase of Singapore's political history.  However, the subsequent period was marked by intolerance for dissent, which has become the one enduring legacy of Mr Lee. 

It was interesting to hear Dr Thum because his perspective of Mr Lee's role in Singapore's history dissented from the narrative circulated by official sources in Singapore. 

Mr Bilahari Kausikan

Mr Bilahari's topic was "Lee Kuan Yew's cast of mind and its lasting influence".  As I leaned forward to listen, I had not bargained to be in for some unpleasant surprises.

To my amazement, Mr Bilahari departed from his prepared transcript at least twice to take two digs at Dr Thum - to make it clear to the audience that he was not in agreement with Dr Thum’s point of view. 

On Dr Thum’s view that the PAP government was intolerant of dissent, Mr Bilahari argued that since Dr Thum was able to express his dissenting views about Mr Lee’s political role, then Dr Thum can’t be right to complain that the PAP government was intolerant of dissent. 

I was taken aback. I failed to see the logic of Mr Bilahari's reasoning.  Dr Thum had expressed his dissenting views to an international audience at an overseas conference, not in Singapore.  Has Dr Thum been free to express his dissenting views in Singapore without adverse repercussions?

Mr Bilahari's second swipe at Dr Thum was more caustic. He called Dr Thum "a young academic trying to make a name for himself" - implying that Dr Thum was propagating an alternative version of Singapore’s history so as to draw attention to himself.

Some in the audience booed Dr Bilahari on hearing his ungracious words against Dr Thum.  

I was shocked - and ashamed - that a high ranking diplomat would deem fit to speak against a fellow Singaporean speaker at an overseas conference in front of an international audience.

By trying to attack Dr Thum's credibility, Mr Bilahari only succeeded in proving Dr Thum right about the PAP Government's intolerance for dissenting views.

But there was one more unhappy surprise in store for me.

"Some" opposition politicians

As Mr Bilahari drew his speech to a close, he said the key challenge ahead for Singapore was whether young Singaporeans would take the achievements of Mr Lee and his comrades for granted and be persuaded that Singapore was no longer vulnerable.

Having articulated what challenge laid ahead, I expected Mr Bilahari to conclude his speech by mentioning how the Singapore Government would handle the mindset of the next generation of Singaporeans. 

Instead, Mr Bilahari opted to bring out the proverbial bogeyman, namely, PAP dissenters.

The exact words of Mr Bilahari's concluding remarks were as follows:

"The key challenge is internal: that a new generation of Singaporeans will take the achievements of Mr Lee and his comrades for granted and be persuaded that Singapore was no longer vulnerable.  Some opposition politicians and their fellow travellers among the intelligensia have tried to do just that. They either do not understand their own country and region or place their ambition above the national interest. Fortunately, as the results of our recent General Election have demonstrated, the majority of my compatriots do not believe them."[1]

Thus, Mr Bilahari thinks that "some" opposition politicians (and their sympatheziers) are busy working against the interests of Singapore and Singaporeans; but fortunately, most Singaporeans are wise to the ruse, as results of the recent General Election show.

Mr Bilahari's remarks are disturbing.  Inherent in his choice of words is the insidious attitude that “some” opposition politicians are a pain in the neck, self-seeking and distracting our good government from protecting our nation and serving Singaporeans. 

Mr Bilahari is entitled to his own personal views.

But Mr Bilahari was not speaking at the Cambridge conference in his personal capacity.  He was invited to speak at the conference on the basis of his credentials as Ambassador-at-Large and Policy Advisor in the Singaporean Ministry of Foreign Affairs. Mr Bilahari was speaking at the overseas venue in an official capacity, as a diplomat and civil servant.

The Singapore civil service and the salaries of civil servants are funded by taxpayers’ money. Singaporeans are entitled to be served by a non-partisan civil service in which civil servants do not comment on politics or on politicians or take sides with any political party. 

I do not think that a country with a functioning democracy would have a civil servant, much less a senior diplomat, speak against opposition politicians at a public forum.

Mr Bilahari is a civil servant and has no business to comment against opposition politicians in public platforms.  By so doing, Mr Bilahari has provided observers with clear evidence that our civil service is partisan and partial to the ruling party. 

Moreover, Mr Bilahari is a diplomat. I am at a loss as to how Mr Bilahari can be said to be serving his country and his countrymen by highlighting the electoral victory of the ruling party.

Singaporeans will be best served if our civil servants spend their time thinking of ways to improve their efficiency instead of using opposition politicians as lame excuses for their inadequacies. 

Mr Bilahari and his fellow diplomats should focus on dealing with our foreign foes and on how to fix them[2], instead of thinking about how to defeat opposition politicians.

PAP dissenters are not “the enemy”.  On the contrary, political dissenters and opposition politicians serve the nation by holding the PAP Government accountable to Singaporeans.  Their continued presence in the political arena is indispensable to the operation of democracy in Singapore. 

That day in Cambridge, I was saddened to see Mr Bilahari throwing punches against his own countrymen in front of an international audience in his capacity as Singapore's official representative. I do not understand how our Ministry of Foreign Affairs could allow its diplomats to express sardonic remarks against our own Singaporeans at an overseas venue.

A “sardonic diplomat" is a contradiction, an oxymoron.  Till now, I am still pondering the enigma of the oxymoron which is Mr Bilahari.

UPDATE on 20 Dec 2015:
In response to this Blog, Mr Bilahari Kausikan commented on my Facebook page on 17 Dec 2015. As a rejoinder to Mr Bilahari's comments, I posted a Note on my Facebook page on 19 Dec 2015 captioned "My Rejoinder to Mr Bilahari's Comments on my Blog".

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[1] Extracted from the transcript of Mr Bilahari’s speech posted at http://www.channelnewsasia.com/news/singapore/bilahari-kausikan-on-the/2235302.html

[2] "Instead of spending my time thinking of what is the right policy for Singapore, I have to spend all my time thinking what is the right way to fix them, what's the right way to buy my own supporters over," Mr Lee Hsien Loong, General Elections 2006 https://www.youtube.com/watch?v=a1WhJKsYb50