The Difference between Criticism and Contempt of Court

by The Editor

25 April 2013

The judiciary has received much criticism lately after the Chinese national who drove a taxi into a Malaysian woman and caused her death was handed what many perceived to be a short and disproportionate sentence. Some netizens, out of anger and frustration, have made several accusations against the courts. These include claims, according to the spokesperson for the AGC, that “the courts did not wish to offend China, that Singaporeans would get heavier sentences in comparison, that the judge lacked integrity, and that leniency was shown.”

In response to these claims, the Attorney-General Chambers (AGC) released a warning that these allegations are tantamount to contempt of court, and threatened legal action against the individuals who made them. Netizens responded in fury. Political Writings, for example, described the AGC as “dimwitted”, “pathetic”, “backward” and “ineffectual”, accusing it of “using the law of contempt to silence criticism”.

In light of such sentiments, I believe it is apt to address the differences between criticism and contempt of court.

Differentiating criticism and contempt

Let me start with an analogy. When a teacher calls on a student for a poor piece of work, pointing out his mistakes, requesting for an explanation and demanding he improves, she is criticizing him. People are usually not so averse to such behavior. However, many people would disapprove if she were to call him “dimwitted”, “pathetic”, “backward” and “ineffectual”, and accusing him of things that are either untrue or yet to be proven true, ridiculing him in front of his classmates and spreading false information about him, thereby harming his reputation and standing among his peers.

The difference between the two cases, is that the latter carries with it first, an element of falsehood, second, a lack of good faith on the part of the accuser (the teacher) and third, an element of undue harm on the victim (the student). This is similar as to how saying your accountant is inept is not defamatory, but claiming that he embezzled money when you have no proof, is.

Similarly, one can criticize the judiciary, but not make baseless accusations in bad faith, and cause undue harm. Demanding that the AGC release information regarding the handling of the case and expressing an objection towards the gravity of the punishment may not be tantamount to contempt of court. However, accusing it of pursuing a foreign policy agenda, or claiming that Singaporeans will get heavier punishments without any evidence to support these claims may be tantamount to contempt of court.

Rebuttals

Some cite the constitutional right to free speech and claim that it is in the public interest to allow these accusations, regardless of their factual accuracy. This is an unacceptable position. Constitutional rights are not absolute. Despite of a constitutional right to the freedom of religion, we still ban religious practices that break the law or cause harm to others. The constitutional right to free speech is also restricted on the same basis. This is why we, like any other country, have defamation laws. We accept that baseless allegations against a person or an entity can in fact cause harm, and both people and their respective entities have a right to be protected from harm.

The same applies to public institutions. If a person has evidence that implicates a public figure or institution, it is in the interest of the public that he not only can, but should make that information public. However, if he possesses no evidence whatsoever, such a claim should not be made

Some argue that public institutions, given their special position, have a greater level of public accountability and warrant added scrutiny. Furthermore, the public may not have access to evidence which these institutions, with their power and authority, can conceal.

However, this is not necessary. Public institutions are, by nature, more transparent than private institutions, and easier to scrutinize. While a member of parliament (MP) can launch an investigation against a public institution opens, it is much harder to do so against a private one. In addition, there exist law enforcement agencies that scrutinize the dealings of public institutions, such as the Corrupt Practices Investigation Bureau (CPIB). The judiciary, for example, is scrutinized by the executive and judiciary – parliament, acting on the mandate of the electorate, can launch an investigation into the dealings of the court.

Balancing these facts against the costs, there is no compelling need to award those who make false accusations against public institutions immunity against legal action. Instead of making unsubstantiated claims and false accusations, a person can tip off the law enforcement agencies, or raise the issue to their MPs, who both have the power and authority to launch investigations.

Conclusion

My keen interest in the law has led me to criticize whenever I feel compelled to. A few months ago, TODAY published a letter I wrote (pg.17) criticizing the AGC for its sub judice rule (which forms part of contempt of court), highlighting its negative implications, demanding that further explanation be given and explaining why it should be reformed. (also available here) Yet, I have gotten no letters or threats, but instead found myself engaged in vibrant and meaningful discussions with fellow Singaporeans who were similarly concerned about the topic.

It is heartening to see that many Singaporeans are concerned about local issues and willing to stand up for their beliefs. However, there should always be a level of responsibility, integrity and good faith when making these criticisms.

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The End of Meritocracy: Why the Singaporean System is in Danger

by The Editor

19 April 2013

Meritocracy is often misconceived as an end in itself, which is untrue. It cannot be so, because it is not a virtue, nor an ultimate, infallible goal. It is merely a belief in how power should be distributed - through merit and the demonstration of ability. It is therefore not justified through its very own being, but rather, by its practical effects. Therefore, it is a means to an end, a tool that we use to achieve a much celebrated human desire - fairness.

Fairness

Why is fairness a virtue - that is, why is it inherently good? I do not profess to have the best answer, but I shall share my views through a thought experiment. 

Imagine leaving your current dimension and entering a state of non-existence. You have no idea what wealth or resources, material and non-material, you will possess at your point of birth. The only thing you are certain of is your own will - your freedom to choose what you want to do with your possessions, whatever they are. 

This is what the American philosopher John Rawls called the veil of ignorance. As you put it on, ask yourself: would you prefer a fair society that rewards traits such as diligence (resulting from free will), by allowing everyone to start on an even playing field, or would you rather have a society that (unfairly) rewards individuals based on, for example, what material resources they possess at birth, something which you lack control over?

The intuitive choice would be the former - the fairer option. Fairness is a virtue because we desire it independently of worldly possessions. It is something that is so appealing to when we are stripped bare of our property and thrown into uncertainty. This is an important frame of mind to view things for a compelling reason: the living consists of only a single generation, while an infinite number of generations exist in exactly that state - unborn. Unlike in the thought experiment, they cannot choose the society they are born into, but we can. Thus, fairness becomes an inherent human endeavor, not just to create a society we desire for ourselves, but for future generations as well.

Meritocracy justified

Now that we have established the importance of fairness, let us return to the topic of meritocracy. If fairness is so desirable, then as long as meritocracy leads to fairness, it should be justified. 

This argument was strong in the early days of Singapore's history. In the 1970s, wealthy families existed, but were small in number. An overwhelming majority of the population faced low incomes and large households. As a result, the median disposable income per child was extremely low. Private education was not prevalent; there were few private schools, and the tuition industry barely existed. This meant that a majority of families were too poor to spend huge sums of money on their children’s education and even if they did, the small private education market limited the effectiveness of doing so.

Under these circumstances, there was a strong case for an education system with strong meritocratic elements. The performance advantage brought about by financial circumstances was minimal. It was therefore fair to reward those who performed well in school, as their performance was closely tied to their own prowess and diligence. It may not have been a perfect system, but it was a relatively fair one.

Different Circumstances

Fast-forward one generation, though, and we find ourselves in a starkly different situation. The amassing of wealth by beneficiaries of the previous system and its impact on the performance of current students have raised doubts over the fairness of our existing one. 

Income demographics have changed. Our upper-middle class has boomed in the past few decades, while many in the lower-middle section have not moved as quickly, leading to a widening income gap. Combined with a booming private education industry, a segment of our population is able to use their amassed wealth to provide their children opportunities that other parents cannot. This leads to an uneven playing field, and undermines fairness. I will illustrate this with two examples.

First, the Singapore system rewards performance at a young age, leaving little room for mobility. It is at a young age where a child performs well less due to a result of intelligence and diligence, (as many are far to young to develop such capacities) but more a result of investment. At an age where a majority of children are too immature to take schooling seriously, diligence can be manufactured through tuition classes and cram schools. Wealthy children perform better than their equally intelligent peers not necessarily because they are more hard working (a rare number are), but because their parents can afford the tuition classes which forces them to work hard. This is not entirely a bad thing; parents want the best for their children. However, this does not change the fact that wealth does put some children at a distinct advantage.

Second, the stark difference in the access to quality early childhood education. The difference in quality across different early childhood institutions and the difference in price allow children with wealthier parents to attain a head start over their peers. The importance of early childhood education cannot be underestimated. It has a significant impact on the child’s curiosity, cognitive ability, memory and sociability. Unlike some countries where early childhood education is both affordable and of high quality, Singapore’s system ensures that wealthy children get a head start over their peers. 

While admittedly the final performance of privileged children came from their own hard work and intelligence (and we should always respect that), we have to admit that ultimately, a child with equal diligence and equal intelligence as these privileged children will not fare as well, given the difference in opportunities. In a fair system, both should be rewarded equally. In our current system, both will not. 

Meritocracy’s greatest strength is also its primary weakness. It rewards individuals based on merit, regardless of their background or the source of their merit. This creates a fair reward system in an equal society where the playing field is substantially level. However, in our current society, it works against us. It ignores the fact that today, wealth can purchase a greater access to merit, and therefore meritocracy does not necessarily always reward those who best deserve it, but those who can afford it. This is far from fair. 

Earlier on, I mentioned how meritocracy derives its legitimacy by being a means to achieve fairness. It is not, unlike some may believe, something desirable in and of itself. Through examples, I have shown how the argument for meritocracy was strong one generation ago, but with the unfair results observed, much weaker today. If so, should we still pursue meritocracy the way we do? 

Conclusion

Put on the veil of ignorance once more, and observe our society. Is this a society you would want to be born into? Would you take a chance? Or would you like to see change? While a society where parents are banned from providing their children with opportunities is undesirable, this should not become so prevalent that it distorts the meritocratic system and turns it into an unfair one. 

Some may argue that this problem is an age-old one, and the problem of an uneven playing field has existed since time immemorial. However, this does not mean we should not work towards minimising it. Several policy measures should be considered, especially in the area of early childhood education and national examinations. These I will leave that for part II of this article. For now, let this be your takeaway:

Meritocracy has its strengths, and must continue exist, but let us ensure that it does not end up betraying its own objective. We would be foolish to pursue it to the end, without its end in mind. 

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National Service – The Most Progressive ‘Tax’ Singaporeans Pay

by The Editor

16th April 2013

When discussing on how progressive Singapore's taxes are, so much focus has been placed on other traditional, monetary forms of taxation that we often overlook the value of our most progressive, equalizing ‘tax’ of all: national service.

National service is Singapore’s most progressive form of taxation. In what way, you may ask, is national service a tax? Intuitively, it just doesn’t seem so.


A Striking Resemblance

Similar to taxation, national service is a mandatory obligation, backed by law, to draw resources from the population into a common pool to provide a public good that benefits society.

Public goods are goods that are non-rival and non-exclusive - nobody can be excluded from them, and nobody can be charged individually according to the amount they consume. These goods include public infrastructure (e.g. parks, playgrounds), as well as public services (e.g. the police, the civil defence force, and of course the armed forces). Although beneficial, they will not be created if left to the free market. Therefore, governments need to raise taxes to provide them.

While taxes gather money, national service gathers the human resources required for national defence - a public good.

Next, national service is mandatory. Like tax evasion, the failure to fulfill one’s national service obligation is punishable by law. Like taxes, it is something that people have attempted to avoid, and will continue doing so. This is because, avoiding national service, or taxes, will hardly make a difference to the overall level of national defence (or public services) one would receive. With the prospect of avoiding all of the costs, and yet gaining practically all of the benefits, there is a strong incentive to evade.

However, if everyone does the same, there will be no national defence, no public infrastructure, and no public services. In the long run, everybody suffers. This is why the government, like in the case of taxes, has to step in to make national service mandatory.

Finally, just like how taxes gather resources from the population to form a common pool, national service draws resources from the entire population into a common pool to serve a common good. 

Now that we have established how national service is in many ways a ‘tax’, why is national service the most progressive one we have? Two reasons: its nature and its magnitude.


Time is (more than) Money

While other taxes merely involve giving up money for the public good, national service involves giving something much more intractable: time, and by extension, life. Besides the fact that national servicemen swear an oath to defend Singapore with their lives, they do in fact give up a portion of their lives during their service. Unlike a resource like money, by no measure can a person procure more of it.

Therefore, while a wealthy person may earn more money to offset the marginal influence of the taxes he pays, no one can procure more time, or life. It is progressiveness and equality in its ultimate form, one which cannot be offset by any means. Thus, without even taking into account the amount of ‘tax’ paid, the nature of the tax in itself already offers a compelling argument that supports the hypothesis that national service is the most progressive form of tax we have.


The Magnitude of Sacrifice

The more progressive the tax, the more aggressive is its redistributive effects. The opportunity cost paid by more privileged individuals in society is far more than any tax can provide, making it the most progressive form of ‘tax’ we have.

For example, a person who has the potential to earn $1,000,000 a year, and a person who has the potential to earn $50,000 a year by the end of both their careers, despite sacrificing equal amounts of time, have different opportunity costs. This is calculated as the value of sacrifice at the end of their careers as most people retire due to factors beyond their control: age, health, or regulatory reasons. They therefore would have had an additional two years of work if not for the sacrifice made during their youth.

The progressivity is clear. Unlike regular taxes which remove a part of one’s income on a yearly basis, national service removes what is equivalent of person’s entire income for a period of two years, at the end his career.

Furthermore, unlike regular taxes where wealthy individuals still end up better off than less wealthy individuals after both have paid their taxes, national service shortens the careers of all individuals; they are unable to use those two years to be any better off than the next person.

The principle behind national service is also extremely progressive. Regardless of your background or potential, you give up a part of your life, just like any other person, to protect your fellow Singaporeans, regardless of their background or potential.


Conclusion

At this point, I believe that it is best to qualify that I am not intending to quantify national service or attempting to put a price tag on it. Neither am I saying that national service is internally perfect (there are a myriad of problems with it). Rather, this article is trying to show the similarities between taxation and national service for two purposes.

First, an understanding of their similarities can help us address problems. These include evasion, as well as the attitudes of the public towards such instruments. For example, despite their immense benefits and similar nature, why is the public more averse towards national service as compared to paying taxes? Perhaps because everybody pays taxes, but not everybody serves national service, such as new citizens beyond a certain age. What can we then do to correct this?

Next, to establish national service as a ‘tax’, and the most progressive one we have. Thus, when analysing the progressivity of our policies, we can take such non-monetary policies into account, and the powerful impact they have.

With these two pieces of information, we have the ability to better understand national service and its place in our society, as well as to address it in order to maximise its benefits and address the issues that surround it.

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The Ex Ante Perspective: Why the Sticker Lady Must be Guilty

by The Editor

9th April 2013

Let us analyse this hypothetical scenario: a robber walks into a bank, holds a customer hostage and demands that the teller hands him $5,000 or he will shoot the customer. The teller refuses; the robber kills the customer and then flees. The customer's family sues the bank. They say, if the teller had given him the small sum of money, the customer's life would have been saved. If you were the judge, would you demand that the bank pay compensation?

It may be tempting to say that it is only 'fair' that the bank pays the customer's family. This is what we call an ex post perspective, a retrospective analysis of the situation after an event has occured to decide a fair outcome. However, what happens if we do so? What impact will this have on the behaviour of banks and robbers?

First, it will create an incentive for future tellers to hand over money to robbers in order to avoid being sued. This in turn will incentivise robbers to rob banks and take hostages because they suddenly realise how easy it is to make the teller hand over the money, and how much more likely robberies are to succeed. Robberies increase, banks lose money and more people are taken hostage. What we see here, is that in pursuit of a 'fair' outcome, we end up creating a precedent, leading to perverse incentives that harm society in the long run. The consideration of these long run effects is called the ex ante perspective.

The ex ante perspective cannot be ignored when making policy decisions. It is the reason why we do not negotiate with terrorists. Sure, we may save some lives in the short run. However, that is assuming that this is the last time a hostage situation will ever happen. Not only will such a situation happen again, thinking this way will make it more likely to happen.

Let us return to the sticker lady. Sure, the objection towards her 'art' is not as widespread. Some even find it attractive, others say it is 'harmless'. Many have argued that since she has not caused any significant harm or inconvenience, and since she acted in 'good faith' she should not be found guilty of any offence. That is an appeal to the ex post perspective: let her go, in this particular instance, she is not guilty. I will not argue why she is guilty on a question of law (although I think so), as this discussion is by no means fresh. Instead, I will explain why she must be guilty as a matter of policy from the ex ante perspective.

Let us say we declare that she did no wrong. How will this affect the behaviour of other parties? Perhaps some individuals will start to paint their work on our public infrastructure too. Sure, if their work is good, we may not mind at first. However, the law of diminishing returns apply. For every additional 'artwork', we realise that their work is getting less and less creative, and intruding more and more into our comfort zone. We may reach a point where we say, "That's enough!" But can we prosecute them? Not with the legal precedent laid out by the sticker lady. Even if we try to change the law after, there is no point. The damage has already been done.

But let us take a step back. Not every person who stencils our roads or spray-paints our infrastructure is equally talented at art. We may encounter people who think they are good at art, but are in fact horrible. They acted in good faith, and did not think they were damaging our property but in fact genuinely believed they were making it more beautiful. Can we put up with them? Should we train our police in art appraisal so they can determine what is good art and what is bad, and who to arrest? Or should we hold a nationwide referendum every time a suspect is arrested to determine if his art is acceptable? If it is not acceptable, who will clean it up? Not enforcing the law is undesirable. Yet, fairly enforcing this law would entail a massive waste of resources, and taxpayers will foot the bill. 

Let's take an even further step back. How about outright vandals who, acting in bad faith, destroy or damage our property and call it art. Can we stop them? They can claim that their work is art, and demand a fair trial to determine so. Sure, they may be sentenced to jail at the end of the trial, but not after a huge waste of resources hiring judges, lawyers and expert witnesses to determine if a broken post box consists of art or not. Prosecutors will either be diverted away from other important cases to handle these vandals, or knowing the trouble they have to go through, not bother to prosecute them at all. We either have vandals who get away with vandalism, or a waste of legal resources. Either way, society suffers.

All these are situations that may emerge if we do not consider the ex ante perspective. Allowing the sticker lady to walk free will leave the law open to interpretation, something that will lead to squabbling over what is art and what is not, and entail a waste of resources. This is in addition to the harmful conduct (undesirable vandalism by genuine vandals and well-meaning but horrible artists) that would result. 

Ultimately, policies have to be tailored to serve the public interest. This means to approach an issue from both the ex ante and ex post point of view and attempting to maximise welfare, while minimising costs. Letting the sticker lady go would do harm. Thus, there was no question about her guilt. Taking into account the effects an acquittal will have on our society and the welfare of the Singaporean people, she must be guilty. 

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Improving Healthcare: The Misconceptions & Why Raising Taxes Not the Only Way Out

by The Editor

27th March 2013

I find that whenever individuals like myself raise the idea of expanding healthcare infrastructure and making healthcare more affordable, we end up swarmed by critics who ask: Are you willing to accept higher taxes as a result?

We have to stop thinking that raising taxes is the only way out. This consists of a one-dimensional view about the healthcare sector, taxation and public spending. It is a convenient way to sidestep the issue and frighten people in an attempt to ‘scare the problem away’. I shall provide an alternative perspective, arranged in 4 tiers.


1. Spending is not Proportionate to Success

First, the assumption that spending necessarily improves the healthcare sector is flawed. Throwing money at a problem will not solve it, and a wide variety of case studies have shown that healthcare spending is not always proportionate to success.

For example, the United States healthcare system is ranked 37th in the world despite having the world’s biggest healthcare budget in terms of percentage of GDP (18%), while Malta, which spends less than half the amount (8.6%) is ranked 5th.

This brings out two points: That it is possible to improve a healthcare system through systemic reform without incurring additional expenditure, and that even if additional expenditure is incurred, it does not guarantee success; the money must be spent effectively.

Thus, when we say "Improve the healthcare system!" we do not necessarily mean "Spend more money!"

Even if money is spent, it should be spent wisely.


2. Redistributing Taxes

Second, even if we need accept the argument that we need to spend more, it does not necessarily entail a rise in taxes. Healthcare spending can increase via a redistribution of government expenditure without having to increase the overall budget.

This means more money going into healthcare instead of, say defence, which happens to consist the largest portion of government spending on a ministry-to-ministry basis.


3. Raising Taxes Through Demerit Goods

Third, even we accept that argument that taxes must be raised, they do not need to come in the form of income tax. Believing so would be to expound a rather narrow view on taxation.

While there are redistributive taxes such as income tax, let us not forget the corrective taxes used to deter the consumption of harmful goods (otherwise known as demerit goods). These include alcohol and tobacco taxes. Such taxes aim to raise the costs of these goods, which if left to market forces, will be consumed at a societally undesirable level. Why not raise the taxes on goods like these, or impose taxes on more of such goods?

If we do so, we will not only achieve the twin benefits of making the consumption of such demerit goods less desirable, but also put money into helping people who lived responsible, healthy lives but fall ill due to natural causes.


4. The Reality of Taxation

Finally, even if we somehow need to dig into the pockets of our citizens and raise our income tax, the extent to which Singaporeans will be affected is often exaggerated.

To begin with, two-thirds of Singaporeans do not pay income tax. Therefore, even an across-the-board rise in income tax will not affect a majority of Singaporeans.

Furthermore, our progressive tax system is such that the top 20% income earners and companies contribute more than 80% of our total tax revenue. If tax increases follow this progressive trend, the burden of higher taxes will fall on the shoulders of a small circle of wealthy Singaporeans, and not the general public, unlike what many believe. The typical Singaporean will not see a rise in his or her income tax level, but witness a more than proportionate increase in healthcare benefits. Whether this is a good thing or not is another issue altogether.


Conclusion

The Singapore Healthcare system is among the best in the world. But we still have much to improve; and the government knows this. I hope these arguments will provide a better perspective on the costs and trade-offs as we attempt to do so.

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Inderjit Singh's Interview: Signs of the Polarisation of Singaporean Politics?

by The Editor

5th March 2013

Recently, People’s Action Party (PAP) member of parliament (MP) Inderjit Singh had an interview with Lianhe Zaobao. During the interview, he expressed his reasons for opposing the Population White Paper and his subsequent vote of abstention. This interview was first published on the Lianhe Zaobao facebook page.

Upon reading the transcript, I expected an overwhelmingly positive response from the public. Singh’s interview explored how PAP MPs do not mindlessly tow the party line, as they are often accused of, but can instead bring a diversity of views to the table.

Unfortunately, I was to be proven wrong; the interview drew much vitriol across the internet. A small but significant number of people have asserted that this is all a big ‘wayang’ – a performance to deceive the public into thinking that there are genuine, alternative voices within the party where in fact there is none. Some have even gone so far as to say that if he was truly against the White Paper, he should have broken the party whip and voted “no”, instead of abstaining. One netizen even commented that to prove that his actions were not mere ‘wayang’, he should join the Worker’s Party.

I hope I am correct when I say that these individuals form the vocal minority. However, if such ideas are allowed to permeate throughout society, we may witness a polarisation of Singaporean politics. This is a destructive and thoroughly undesirable phenomenon.

How does this happen?

If we were to cry ‘wayang’ whenever a government MP disagrees with the party’s official position, or accuse an opposition MP of 'treason' or 'bootlicking' whenever he agrees with the government, we put pressure on our politicians to take extreme positions, pushing them away from the centre and towards the two far ends of the political spectrum. This is called polarisation, and this is not good.

Take a look at the United States. Many major issues, such as the ‘fiscal cliff’ problem, cannot be resolved because politicians are unable to come to a compromise. They are unwilling to make certain concessions because they fear being perceived as ‘weak’ and losing electoral support as a result. Moderates in both parties find themselves both victimized by their colleagues and tormented by a polarised electorate; they dare not and cannot seek a compromise, thus bringing the problem-solving process to a troubling deadlock.

Politics is not an all or nothing game. We cannot adopt a ‘you are either with us or against us’ mentality. Those who would ask a government MP to break the party whip to prove that he is not trying to ‘put on a show’ should first ask themselves: does it make sense to ask an MP to get himself expelled if he disagrees with just a few of the many of his party’s policies? Such an approach will chase away the moderates and silence alternative voices.

Furthermore, if Singh had voted 'no', he may have gained the applause of many Singaporeans and may have convinced most people that he wasn’t trying to ‘wayang’ after all. But his expulsion would mean that he would lose his seat in parliament, and we will never get to hear him speak again, especially against his own government.

Some might argue that we should lift the party whip. While it may be a positive step to tweak party discipline to allow more room for alternative voices, a certain level of consistency is required, lest we witness the fragmentation of our political parties and descend into a state of multi-party madness.

Singapore is fortunate to have its two biggest parties being centre-right and centre-left. For the past half century, pragmatism and apathy prevailed. Thus, we have not witnessed any sort of massive polarisation of Singaporean politics. However, we are entering a new phase of political development, and witnessing the emergence of a new generation of voters. Along with becoming more vocal and gaining a greater sense of political awareness, they have also become more partisan and more adversarial in their speech and conduct. I can only hope that there will be sufficient reasonableness, foresight and maturity of thought amongst the new electorate such that we can have a society with alternative voices, and yet not end up with a segmented, polarised political landscape.

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