Friday, March 04, 2011

The Problems when you ASS U ME

It's easy to see why the case of Dr Susan Lim is making headlines. The story has all the ingredients of a successful block buster - money (about S$25 million), drama (did he or didn't he), political movements (government-to-government activity), a mysterious monarch (The Sultan of Brunei), a potentially devious professor (Professor K.Satku, Director of Medical Services at the Ministry of Health) and a pretty darn good looking and talented woman (The Good Doctor herself). If you have a quick glance at the chat rooms, you'll find that most people are convinced that the good doctor got greedy - but they're also sure that there's a conspiracy by the powers that be to fleece someone - ie Dr Lim was fleecing the Royal Family of Brunei until they complained and so they're dumping her to cover their tracks.

While all of these items are keeping the papers busy, one of the most important factors of this saga is being ignored. When this story eventually dies down - people will forget that this is probably one of the few times that a basic Singaporean trait is challenged - namely the trait that assumes that the powers that be or the system is intrinsically flawless.

This became most prominent in court on Tuesday, 1 March, 2011, when the lawyer for the Singapore Medical Council (SMC), Senior Council (Singapore's Equivalent of the Queen's Council), Mr Alvin Yeo accused Dr Lim of using "Legal Mumbo Jumbo" to stop the SMC from setting up a second disciplinary committee to investigate whether Dr Lim had 'overcharged' a patient of hers who happened to be a cousin of the Sultan of Brunei. The crux of Mr Yeo's argument was that ' If she was innocent - if there was a fee agreement and she rendered such a good job for the patient who trusted her - those facts would emerge - Dr Lim would then come out as 'pure as the driven snow.' In other words, if Dr Lim is innocent, she wouldn't be struggling so hard to fight this investigation into her practice. Throughout the four and a half hours of his summation, Mr Yeo kept repeating this point.

That got me worried. Yes, in an ideal world we should all be open and unafraid to speak our minds. In an ideal world, those who have nothing to hide would always be able to speak their minds freely and would have no fear of being prosecuted by the authorities. In an ideal world, the system is ALWAYS perfect and fair. Hence, Mr Yeo's point that Dr Lim was demonstrating her guilt by fighting the SMC's desire to hall her up before a second disciplinary comity after the first one had to recuse itself for 'pre-judging' her guilt.

I can accept that Mr Yeo might have a point from the perception of 'public-opinion.' Speak to enough people about this event and their answer is simple - "Dr Lim is a greedy bitch who's getting what she deserves."

However, I am disturbed by this assumption and the way it's being bandied about in court for the simple reason that we DON'T live in an ideal world where the system is perfect and always fair - there are times when the system does make mistakes and the course of justice gets perverted.

Dr Lim may or may not be guilty of the charges brought against by the SMC. However, her case is NOT the only time when the powers that be have used this argument when stripping people of certain necessary legal protections. I remember the authorities used this argument in 2005 when they made it such that an accused person would not be able to have access to their legal council until the police had concluded their investigation. The argument put forth was simple - "A defense lawyer might coach the witness and therefore impede the course of justice - read a truly innocent person would have nothing to hide and therefore cooperate fully with the police."

Hence the system is fair. The police are ALWAYS right. One would never have a case where the police would NEVER abuse power and use intimidation to extract confessions that may not necessarily be correct. We, the general public, had to ASSUME that the police would take everything at face value and not twist one into incriminating ones-self, which is a real possibility, especially when you are a society that measures people by results rather than process.

Dr Lim is a highly educated woman and has the financial means to hire a good lawyer. As such, it's difficult to intimidate or trap her into certain situations. In her case, her lawyer has pointed out that the system has an inbuilt flaw - namely the person directing the complaint against her is also the person judging her.

Under the laws governing the SMC, the Director of Medical Services at the Ministry of Health is also the registrar of the SMC and a member of the council. The Registrar happens to have a major role in saying who gets onto the council.

In an ordinary situation when an ordinary person brings up a complaint to the SMC about a doctor, the system works. An 'independent' complaints and disciplinary comity made up of a combination of lay people and council members act as judge and jury. A patient cannot say that the process was filled with doctors backing each other up and the doctor cannot complain that there were lay people out to get doctors.

However, in Dr Lim's case, this doesn't work because the complainant is the Director of Medical Services at the Ministry of Health, who is by law the registrar of the SMC. There's an intrinsic conflict of interest here - the prosecution is also the judge and jury.

Mr Yeo tried very hard to explain that there was no issue here - it was not the SMC but the Complaints and Disciplinary Comity looking into Dr Lim's case. However, the both these comities are filled with council members who in turn happen to owe their positions to....the registrar who happens to the Director of Medical Services, who in this case is the person bringing the complaint.

The SMC's lawyer kept stressing the point that Professor Satku had "no influence," over the process. He was not directly responsible and not everybody "reports" to him. Fair enough......if you believe in fairy tales. Mr Yeo used another tested argument - the authority was not "Directly involved," hence the process is "failure-proof." Professor Satku did not sign off on the order to investigate Dr Lim and he wasn't on the disciplinary comity.

However, the point that Mr Yeo overlooked, is the fact that Professor Satku, by virtue of being Director of Medical Services (The only people higher than the director are the Minister, parliamentary and permanent secretaries) at the Ministry of Health and Registrar of the SMC is in a position of immense influence. He doesn't have to say or do much - people will do the things they believe he wants them to do.

May be Professor Satku is genuinely interested in a fair investigation into Dr Lim. However, the process cannot be fair by virtue of the fact that the he is the one who initiated the complaint and the he is in a position of influence over the people doing the investigation.

There is a thread to justice in all "common law" jurisdictions - "No man shall be judge in his own court." In this case, Professor Satku is the judge in his own court and Dr Lim would be committing suicide if she subjects herself to a disciplinary hearing filled with 'his people.'

Now, Dr Lim is fortunate in that she's highly intelligent and has the means to 'fight' in the system. She's also lucky that the "judicial review" in her case is by a professional body rather than a criminal court. She has a credible case in pointing out that the system in her case has an inbuilt flaw.

What happens when you get someone who is less educated and does not have the means to hire a lawyer? What happens when the case is a criminal case? Are we to say that the system is so perfect and we always get the right guy locked away or hanged?

Let's look at the system of "Tua Pek Gong," (Named after the Chinese Kitchen God). Under this system, someone is paid to goto the jail by a criminal syndicate - in return, a huge sum of money awaits them and their families are taken care of. Anyone who decides to go for "Tua Pek Gong," simply has to role over and play dead when the authorities go on the attack. Now, the fact that this happens is an indication that the system doesn't always get the right chap.

I also look at the fact that there are people who have been so conditioned to admit to anything whenever they're placed in a situation of duress. I look at Eric, my favourite ex-convict as an example. The police had no case to link him to the cigarettes they found in the warehouse. However, once he was locked up in a room with them - he confessed. As far as they were concerned, they found the master mind of an operation that that could smuggle nearly a tonne of duty unpaid cigarettes into the country.

Thank goodness for Eric that the case ended up in the tray of my favorite litigators pro-bono desk. Since release, Eric has demonstrated an uncanny inability to tie his own shoe laces. Here is a clear case where the system is catching the wrong guy based on a confession given under duress. The people in power sit on their arses once they've exercised it on someone who crumbles when power is exercised over them. Can you say that the system works? Eric was actually innocent but he confessed and nobody could help him. He spent two years in jail.

We don't live in an ideal world where authority figures are always just and fair. In the real world, innocent people do go to jail and get hanged because they got intimidated into confessing to things they didn't do and they felt the deck was stacked against them. You can call it the "If you want it like that, I'll be that," mentality. How do you say sorry to the guy you hang or jail because you were more interested in upping your conviction rate that you bullied the bugger into confessing.

"Trust me, the system is perfect" should never be accepted as an argument. No system is fool proof or totally fair. However, we need to work in as many safeguards as we can to ensure that there is as much fairness to both sides as we can provide.

Not everyone is Dr Lim who has the brains and money to stand up for their rights. I may not agree with Dr Lim bringing a case to court to quash the second disciplinary comity from a public perception point of view. However, I have to support her when she's fighting the concept of not subjecting yourself to an inquiry that is stacked against you. Let's face it, this is a comity that changed its rules in the middle of things to suite themselves. How much more stacked against you can you get?

What happens further down the social ladder to uneducated and poor people when they have run ins with the authority? Do we just ignore them? Do we just let people get bullied into admitting to things they didn't do?

I like to think that our authority figures are generally good. I know that in many cases they do get the right guy. However, there are cases when they don't and while we may not be 'error' free, we have to work towards a system where we are as sure as we can get. We cannot just assume that the people in power are just, fair and trustworthy. Not only must justice be done - it must be seen to be done.

2 comments:

sgcynic said...

You have valid arguments. Yet precedents abound - eg. Wan Kan Seng appointing a director in his own ministry investigating possible lapses in his ministry under his charge.

"Trust me, the system is perfect" should never be accepted as an argument. Worse is when they place absolute trust in in dividuals to run the system

Gary said...

Without reading the report, my instinctive reaction was the doctor is guilty. However, after reading the details in the press report, I am not so sure.

There is certainly room for Dr Lim to argue her case.

I also find it rather suspicious that while the treatment was spread over a number of years, the issue is raised only AFTER the patient has passed on. Now hear this - THE MOST IMPORTANT PERSON WHO COULD THROW LIGHT ON THIS OTHER THAN THE DOCTOR IS NO LONGER AROUND. I think Dr Lim's lawyer should make a strong case about this point. Why now? Why not earlier, before the most important 'witness' and principal 'actor' leaves the scene! Did she complained at all about the charges? Why didn't the Brunei diplomats complained earlier when there was ample opportunities to do so. After all, it would amount to no more than what they had apparently presently done, namely, lodge a complaint!

The way I see it, the Bruneians are refusing to pay after the doctor has fulfilled her duties and responsibilities to the hilt towards the late Bruneian Royalty. Sort of like, refusing to pay the bill at a restaurant after eating!

There is yet another factor and this is a rather dark side of the entire story - the politics of it.
The Brunei King must have complained to our govt who for political reasons is hauling Dr Lim up to show the Brunei King - a good friend - of our local ruling political family, on the basis of the old boys/'quansi' network. I am concluding thus because the facts are that the medical treatment is a private arrangement between Dr Lim and the late Brunei royalty. All arrangements, private arrangements is between the two parties. Was the govt ever involved? If so, in what role and context?

It is also mighty strange that the MOH saw it fit to take upon itself the role of seeking to take the doctor to task via the SMC. Is this something routinely done by the ministry? Obviously not. So it is because the Brunei King complained which makes it a political rather than a civil or medical issue.