"Prosecution or persecution?" The continuing Judge Dredd tendencies of the Elections Department

As we argued last month, the principles of the exercise and distribution of power by the state and its agencies, in the event of an investigation, have been contravened in the investigation of alleged breaches of the cooling off amendments of the Parliamentary Elections Act. The police have usurped the role of the public prosecutor and attorney general in their questioning of Roy Ngerng, and more importantly, both the ELD and police have usurped the role of the courts in their joint press statement.

One month later, the separation of investigative, prosecutorial, and judicial roles of state agencies continue to be blurred. This is cause for major concern.

We refer to the question filed by NCMP Daniel Goh and the written answer by Minister Without Portfolio, Chan Chun Sing in parliament on 11 July 2016. (Note: Unlike the UK Hansard, the Singapore Parliamentary Report takes more than 2 weeks to publish. We will update this post with the official links when the SPR becomes available.)

Parsing through the question and answer, a reader may tease out further points of interest with regards to the public law considerations of the developing investigation of Roy Ngnerg, Teo Soh Lung, and now Jason Chua.

No sub judice

As a matter of habit and principle, cabinet ministers have refused to comment on ongoing cases, citing sub judice considerations. This is an established guideline and practice even in the UK parliament.

For Chan to submit what appears to be a comprehensive written reply to Goh is interesting. To some, this episode can be spun along the established folk mythology of WP being the party of Low Thia Khiang's Zhuge Liang level strategic genius. It was a cunning trap which the former heir apparent fell for, further justifying his removal from the line of succession!

The truth is far less explosive. From the principles of common law, sub judice doesn't kick in until charges are filed. A report can be filed by a complainant, the police may decide to investigate, persons may be invited for interviews—but until charges are filed, there is no case before the court. Consequently, a cabinet member is not caught in the embarrassing position of embarrassing the state if he comments on a case that hasn't gone to the courts.

ELD imperial overreach, aka Judge Dredd Syndrome

We present point by point what is publicly known of Chan's reply, and unveil the can of worms writhing beneath them.

ELD considers the following:
a. Intent. Posts clearly intending to promote or procure electoral success of a political party or candidate, or enhance their standing, are not allowed. … In addition, repeated publication of posts on Cooling-Off Day and Polling Day, or posts published after ELD had issued its reminder, will be treated more seriously.

ELD continues to insist on usurping the power of the court. It is the court that determines the basis for whether certain actions are aggravating, and relevant to warrant more serious sentencing.

b. Reach and impact. ELD will consider how many people are likely to have read particular posts. Posts by individuals or groups that regularly engage in the discussion of political issues will have further reach and greater impact than those by ordinary members of the public.

ELD also continues to usurp the power of the public prosecutor. It is the public prosecutor who sets forth an interpretation of the law, cherrypicks from a long list of conditions to argue before a court of law that an internet posting has breached the rules, and the extent of "damage" this post has done.

(b) at which point is such individual propagation no longer within the exception of “transmitting personal political views on a non-commercial basis using the Internet”

With one line, ELD efficiently usurps the role of the public prosecutor and the court. It is the public prosecutor who should argue before the court that a piece of written legislation is ambiguous if an individual expressing his own personal, non-commercial opinion has the reach that the legislation has reserved for a campaign, and thus should be prosecuted as a campaigner instead of having recourse to the protection (and legal immunity) an individual is afforded by that same written legislation. It is the court who decides if there is an ambiguity, whether it has the power to resolve the ambiguity as a court, and how to resolve it.

Not only that. ELD is acting as though it is a regulatory board empowered with maintaining and developing legal principles on matters under its jurisdiction, and conducting its own trials (like say, the Singapore electoral equivalent of the US Federal Communications Commission). This unwarranted mission creep is cause for grave concern.

From the ELD's own website, it doesn't like it has a mandate to monitor, let alone punish private individuals for internet postings, or even identify such individuals as deserving punishment. Ironically, the ELD may have even usurped the MCI's power to monitor and regulate private individuals on the internet - except the MCI still has not clarified its intent or position on this matter!