07 June 2016

"Prosecution or persecution?" Public law issues in the investigation of Teo Soh Lung and Roy Ngerng for Cooling Off Day violations

In the distant future of the 2000 AD comic books, Mega-City One is patrolled by a police corps empowered to arrest, convict, sentence, and execute criminals. Judge Dredd pushes the popularity of authoritarian anti-crime rhetoric in society in the 1980s to its most logical conclusion: a world where due process and separation of powers mean nothing. The gimmick is fashioning a hero for a world where these authoritarian fantasies have come true, while the twist is showing that what passes for justice in this world is hardly something we'd recognise or desire.

As the personification of everything that's wrong with the authoritarian impulse, Judge Dredd is also an excellent primer on the basics of Public Law, which regulates the modern body politic.

These principles delineate the legal exercise and distribution of power by the state and its agencies, in the event of an investigation:

Following a complaint by a member of the public or a state agency,
1. Police investigate and establish the facts of the case
2. Attorney General decides whether it is likely an offense was committed and if so, whether to issue a warning or press charges and prosecute
3. The Public Prosecutor argues before the court his interpretation that an offense was indeed committed, and to persuade the judge of motive and intent
4. The Courts ultimately decide whether there was an offense or not, and what the punishment or restitution should be

Singapore Police Force headquarters at Cantonment Road

Turning to accounts of the unfolding police investigation of Roy Ngerng and Teo Soh Lung, several troubling public law issues are apparent.

From Roy's account of his interview with the police, we note the following questions allegedly posed by the police:
Do you agree that the contents of your Facebook postings and blog articles tend to cast Dr Chee is a positive light?
Do you agree that your Facebook postings and blog articles would tend to promote the electoral success of Dr Chee Soon Juan in the Bukit Batok by-election?
Do you agree that your Facebook postings and blog articles would tend to enhance the standing of Dr Chee Soon Juan in the Bukit Batok by-election?
The police appear to have usurped the prosecutorial role of the Public Prosecutor, who should be the one posing these questions in court and making the novel argument (that is, one that is not written in the Parliamentary Elections Act nor interpreted from Parliamentary proceedings on the matter) that any speech-act that tends to promote a candidate or party is indeed "election advertising". Conversely, a police force strictly following their investigative function would instead establish the facts:

Did Roy Ngerng publish the posts that the Elections Department reported him for?
How did he publish these posts?
Were these posts made for commercial gain?
Were they made in his capacity as a private individual or part of the SDP election campaign?

Next, we turn to the joint press statement by the Singapore Police Force and the Elections Department (ELD).

Given that the ELD has filed a police report and submitted itself, Ngerng, and Teo to the investigative process, the two agencies should take care to keep each other at arms length for fear of contaminating their distinct and separate mandates.

The ELD report makes several extraordinary statements that "we observed what appeared to be deliberate and serious breaches of the rules under the Parliamentary Elections Act (PEA)", that "various persons and sites published online posts in contravention of the PEA, that "given the blatant disregard of the PEA... decided to make police reports so the Police could investigate".

The ELD appears to have usurped the role of the Courts in determining that the breaches had indeed taken place, even before making police reports and before the police conduct their investigation. The ELD has also usurped the role of the Public Prosecutor and the role of the Judiciary in determining the intent behind these acts.

The unfortunate press statement appears to deny that the until the case is put before the court, that any breach of the PEA is an alleged breach. This is extremely troubling given that breaching the PEA is an "arrestable offense". The ELD and the SPF, in issuing this joint statement, have forgotten the basic principle that any person investigated for a arrestable offense should be accorded due process.

The SPF in issuing this joint statement appears to have short circuited its own investigations by agreeing with ELD's definitive declaration of guilt in those under its own investigation. This is highly problematic.

Are Roy Ngerng and Teo Soh Lung under prosecution or persecution? We at Illusio believe this is the wrong question to ask. The real issues are plenty, and instead come from a public law perspective.

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