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TOC Feature: participating in the IBA

Posted by theonlinecitizen on October 22, 2007

By Jeth Lee

Thanks to the kind sponsorship of TOC, I was able to attend the much talked about Rule of Law Symposium organised by the International Bar Association last Friday despite it being priced at a restrictively high 60 Sterling pounds (citizen journalists don’t get paid very well).

The symposium was a full-day programme that was widely hyped to be able to provide a clearer perspective of what the status and meaning of the rule of law are in Asia, especially in the host state of Singapore. With a stellar cast of speakers comprising Deputy Prime Minister Professor S. Jayakumar, Judge Hisashi Owada, a former Japanese Ambassador to the UN and Justice Albie Sachs, a renowned human rights and anti-apartheid campaigner, one could expect no less.

However, judging from the aims of the symposium and what transpired, I must say that the symposium has largely failed.

DPM S. Jayakumar’s speech part 1- déjà vu

It was perhaps expected that the keynote speech by Professor Jayakumar brought nothing new to the table in terms of our understanding of the rule of law in Singapore.

Most of us are already savvy to the concept of the rule of law. No one is above the law, as opposed to the rule by law, where laws posited by government are to be followed without question and the spirit of the law is subordinated to the legislative will.

Promisingly, the DPM first acknowledged that the rule of law embodied several universal principles despite its amorphousness, including clear limits to the power of the state, equality in application and protection of the fundamental rights of individuals.

He then predictably qualified the application of these universal principles in saying that while these principles must be maintained, a balance must be struck in view of each country’s own socio-political context. This led to the familiar refrain that Asian societies place greater emphasis on the community vis-à-vis Western societies, which shift the emphasis to the rights of individuals.

One would wonder if the drafter of the speech uncovered a dusty copy of the infamous Shared Values White Paper, released 16 years ago, and did the glorious job of cutting and pasting. A symposium of this scale was not needed for such rehashing. It certainly did not go towards the aim of improving the status quo as it stands here.

A 16 year-old ideology. Phew, I thought: the last thing you can accuse government ideologues of is having an imagination.

DPM speech part 2- Singapore is different

In the same vein, the DPM touched on the non-homogeneity of Singapore’s societal composition and how therefore we needed special laws to deal with it. He quoted an example of three individual bloggers posting racist remarks in 2006 and their subsequent charging under the Sedition Act, saying that in other countries such prosecution could be considered as infringement of freedom of expression.

And then he left the thought hanging.

I found it strange that the DPM did not attempt to explain why in Singapore that was not considered a similar infringement.

Are not the rights in the Constitution paramount and superior to all ordinary laws? And doesn’t it guarantee such freedoms, which should require justification before suspending?

What seemed so self-evident to the DPM was a conclusion the audience was left to come to themselves: that what is considered constitutional is then decided by the normative character of each country, and the fundamental rights of the individual (one that he considers to be a universal element of the rule of law) are free to be eroded accordingly through the application of laws.

But wouldn’t it mean that there is thus reason to doubt that what the DPM said at the start of his speech: that fundamental rights of the individual are a universal element of the rule of law that are applied in Singapore?

DPM speech part 3 – majority rule

By way of justification of Singapore’s strict criminal laws, Professor Jayakumar pointed to the low crime rate that we all enjoy and said that law and order have been maintained. Many (myself included) couldn’t help but nod in agreement.

However, what followed was an unnecessary, and I would say unjustified, reason for why we have the death penalty. The DPM said, and I quote in verbatim, “In Singapore, the death penalty is the will of the majority. A Straits Times survey in 2006 showed a large majority, 96% of the electorate in support of the death penalty.”

Firstly, the conduct of the survey was amongst 425 Singaporeans and permanent residents, hardly indicative of society at large. I also find it greatly disturbing that the newspaper managed to find 425 Singaporeans with such views – which dark part of Singapore did these reporters visit?

Secondly, the DPM’s assertions rest on a disturbing premise that seems to underline a similar position the government has taken on section 377a – majoritarian rule is the way to go. Have we truly learnt nothing about the tyranny of the majority in mankind’s history that we are to believe this to be true (think apartheid, segregation and slavery)?

I have no doubt that the majority of Singaporeans are in favour of stoning and castrating child molesters. Perhaps the government could consider that in a next Penal Code amendment.

Fireworks at Q & A

DPM’s assertion towards the end of his speech that Singapore’s laws have strengthened social fabric raised hackles amongst several in the audience.

Feeding frenzy began once the floor was opened for questions. First up was Mr. Timothy Cooper of the U.S.-based human rights advocacy group, Worldrights, who vigorously stated that the human rights community felt that the Singaporean judiciary was not as outstanding as claimed, but that instead there was no level playing field for opposition members to fight cases. Familiar examples of defamation suits were raised.

The DPM’s response was two-pronged: (1) that all defamation suits were won because the PAP hired good lawyers and were certain that the cases could be won at the outset before bringing an action and (2) that Singapore society still retained the old-fashioned view that leaders must be morally upright and superior in stature and leaders are bound to defend their honour (reminiscent once again of the junzi or gentleman concept in the Shared Values White Paper).

Dr. Chee Soon Juan also took the opportunity to wash some of the government’s dirty laundry. These included the preventive detention without trial of Chia Thye Poh, the world’s longest-serving political prisoner at 32 years, and Francis Seow, former Solictor-General and currently in exile. Dr. Chee’s pronouncement that he was “sure [the delegates] would want to hear what the reality of Singapore is” was met by thunderous applause in the audience.

As reported in the press, DPM accused Dr. Chee of turning the IBA conference into a “theatre on Singapore politics” and did not deal substantially with the questions asked.

It wasn’t very good theatre, I thought.

The panel discussion

After a short break, we convened once again to hear shorter speeches from a panel which included Associate Professor Simon Tay of the Faculty of Law, National University of Singapore, Ms. Sylvia Lim, Chairperson of the Workers’ Party and Non-Constituency MP, as well as Ms. Ambiga Sreenevasan, President of the Malaysian Bar.

Professor Tay offered that the “Asian values” debate has long passed and the tendency is now towards Singapore’s adherence to international standards. However, he further suggested that we should insist on a universal definition of the concepts within the rule of law, but not towards the content of laws.

In so saying, Professor Tay seemed to proffer that the content of the rule of law is normative and we cannot therefore directly impose foreign laws directly on Asian cities. Although I understood the nuanced theoretical paradigm shift, I found it difficult to distinguish this from the reasoning in DPM Jayakumar’s speech, since the practical thrust of the arguments are the same – that we can somehow justify deviating from what is internationally accepted by reference to our socio-political state as articulated by the government.

Ms. Lim stated that conferences like this were good to measure Singapore against international benchmarks, but subsequently qualified this by saying that Singaporeans must ultimately decide what type of country they want and there was no need for outsiders to canvass the agenda for us.

Personally, I find there to be some truth in this, that the fate of a country can only be determined by the will of its own people. Yet, as we can see in present day Myanmar, there is a limit to what an oppressed people can do if the power of government is so strong as to restrict any opposition to a mere squeak. International, or even regional pressure, is sometimes needed in order to assist in the dealing of rule of law issues within any state. (Read Ms Lim’s full speech here.)

I was rather impressed by Ms. Sreeevasan who spoke candidly about the state of the rule of law in Malaysia and about the lack of public confidence in the judiciary.

While not as openly activist as their causeway counterparts, I believe the Singaporean Bar matches the independence that its Malaysian counterpart possesses. The Law Society’s willingness to challenge the status quo from issues ranging from the death penalty and 377a to questioning high ministerial pay bears testament that lawyers in Singapore are not willing to be passive observers in the democratic process.

Breakout session – a saving grace

I was starting to feel slightly queasy from the barrage of speeches. Thankfully, it was soon announced that there would be a breakout session where participants would form smaller groups to discuss in greater detail matters concerning the rule of law.

I chose to partake in the facilitated group discussion on the independence of the judiciary. To the organisers’ credit, group sizes were kept to a cosy cap of 10 people.

My table looked something like the UN committee – the convener was a Venezuelan, while Canada, England, Japan, Liberia, Pakistan, Scotland, Singapore and Syria were all represented by lawyers from those countries.

The group sessions were the symposium’s saving grace for my IBA experience. My group engaged in a lively, sometimes heated, but always respectful discussion about improving the rule of law. Among the more interesting hypotheticals that went around the table was what would happen in our respective countries if an individual were to sue his government.

Going around the table, each participant offered information about the measures that his/her individual country has taken to ensure independence and the defects in their systems. I was thankfully spared any lectures on how to improve our judicial system, and was pleasantly surprised at the candour with which everyone was constructively criticising their judiciaries. As an English barrister I spoke to in the forum said, with a Canadian law professor concurring, there is no one country where quality of justice cannot be improved.

More tellingly, despite the focus of the discussion being on the independence of the judiciary and legal profession, the topic soon veered towards public confidence in the judiciary and accordingly on to the freedom of the press and freedom of expression in general.

Very clearly, there is no single subject of discussion with respect to the rule of law that can be dealt with in a vacuum. Instead, the interconnectedness of the issues necessitates that for the rule of law to work in any country, Singapore included, there needs to be a comprehensive system of institutional checks and balances.

We’ve still got some way to go.

About the author: Jeth Lee is a law undergraduate at the Faculty of Law, National University of Singapore and the Chief Editor of the Singapore Law Review. He believes the rule of law will one day be present in Singapore in its entirety – but not just yet.

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8 Responses to “TOC Feature: participating in the IBA”

  1. Jie Kai said

    Actually, as every law undergraduate in Oxford learns, the “rule of law” is not some sort of objective reality- it depends on what sort of conception of “rule of law” you actually adopt. Professor Paul Craig, in an influential article ( because most undergraduates adopt the analysis blindly to the chagrin of our examiners), has this to say:

    ” Formal conceptions of the rule of law address the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individual’s conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of the enacted norm. (was it prospective or retrospective, etc.). Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. They are not concerned with whether the law was in that sense a good law or a bad law, provided that the formal precepts of the rule of law were themselves met.

    Those who espouse substantive conceptions of the rule of law seek to go beyond this. They accept that the rule of law has the formal attributes mentioned above, but they wish to take the doctrine further. Certain substantive rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for these rights, which are then used to distinguish between “good” laws, which comply with such rights, and “bad” laws which do not.” ( 1997 Public law 467)

    It is pretty obvious if you accept this analysis that Singapore definitely has at least embraced a formal conception of the rule of law. What about the substance? Well Singapore does have that too, but under this substantial bit, we don’t care enough about rights. A theory of interpretation of cases which cares more for “social rights” rather than individual rights is not necessarily contrary to the substance of the rule of law.

    We do in fact have the rule of law in Singapore. But far from being very concerned about the protection of individual rights, the interpretation of our law is clearly skewed towards the protection of certain interests which are thought to be more important that individual rights. The interpretation of the law is skewed towards protecting business and economic interests, and the interests of religious and racial-based interests ( as opposed to other social interests, like those of women, homosexuals, the disabled etc etc).

    This is not a question of “corruption”, as some of you will inaccurately think it is- this is more a question of what judges and the government think should be the prevailing “social good”. This is all very well and good if your interests happen to be in line with what the majority of the Singaporean public thinks should be the social good, but it will be quite a different story if your interests aren’t in line with theirs.

  2. Ned Stark said

    With all due respect i tend to take the cynical view that, the way things are going, it is rather unlikely that we are even getting a whiff of the rule of law. As has been said the situation in Singapore is more akin to rule by law. It is undeniable that it has had its uses, but the potential of abuse is ever present.
    Nevertheless it is indeed heartening that the Law soc has spoken up on the changes in the Penal code.

  3. repeal377a said

    The local organiser of the IBA’s Rule of Law Symposium is the Law Society of Singapore. Ms Sylvia Lim from our Tamasek Business School was invited as a panel speakers to be seated together with our DPM & other distinguish guests from overseas is that she was conveniently used as a token opposition for the Singapore government. She should know of the real reason that she was there in the first place.

  4. Andrew Loh said

    Repeal377a,

    You have got it wrong. Sylvia Lim didn’t sit together with DPM Jayakumar because they were at separate sessions of the symposium.

    DMP Jayakumar’s session was in the early part of the morning, where Dr Chee posed his questions.

    Sylvia Lim’s session was after the break, after the DPM’s session, where a new panel was brought in – without the DPM.

    So, she never sat beside the DPM. She, however, sat beside Simon Tay, ex IBA president Francis Neate and Malaysian Bar Council president Ambiga Sreenevasan.

  5. Jie Kai said

    What some people so dismissively called “rule by law” is really a way of expressing one possible conception of the rule of law- which is a formalistic conception of the rule of law. There is very little evidence that judges are wilfully disregarding statute or precedent. There is also little evidence that the executive is generally acting in a way which falls outside the powers granted to them by statute. For example the police were not acting contrary to their powers to disperse people wearing “free Burma T- Shirts”.

    The real debate is really about the “spirit of the law”. Pro democracy activists like CSJ have never really been clear about what they mean when they spout this rhetorical phrase, but we can infer that this refers to an intepretation that places individual rights as pretty important. CSJ is of course, wrong in insisting that the phrase “spirit of the law” can only refer to an interpretation of the law which takes rights seriously ( with apologies to Ronald Dworkin).

    In Singapore’s case, the judges do in fact have principles when making their decisions, but these principles are based on a concept of maximising social welfare ( what the economists would call Utility) rather than the protection of the individuals.

    If you look at the maid abuse cases, for example, ex-CJ Yong justifies clamping down on maid abuse not because it is very degrading to the maid, but because if we don’t do this, countries where these maids come from will think badly of us. This sort of reasoning can lead to the correct result ( maid abusers get punished), but the big problem with such reasoning is that it could be inferred that it is okay to abuse your maid if you employ her from some country too busy engaging in civil war rather than complaining about the mistreatment of their citizens in other countries. Which completely misses the point of anti-maid abuse legislation.

    Time and again you’ll see such reasoning being employed by Singapore judges and politicians. Most of the time it doesn’t really sway the result because many cases involving personal dignity can be “justified” on the grounds of some wider social welfare principle ( like the maid abuse example I provided above). You can also justify for instance, minimising abuse by superiors in the armed forces not on the grounds that this is really harmful to the individual involved but because if nothing is done it could hurt morale in the platoon/company/battalion etc. And so on.

    But you can’t run a society based almost exclusively on such utility-maximising arguments. Firstly you create a place where people are treated not on the basis of the notion that everyone has a right to a core of dignity and minimal respect which cannot be violated, but by their value as economic units. When people complain about Singaporeans being treated like economic digits, this is precisely what they are getting at.

    Secondly, you run the risk of oppressing minorities- in the Singapore context, any interest which doesn’t involve a religious or ethnic culture or language preservation interest.

    Thirdly ( and this is a point which is based on the first two points) you stultify the development of a genunine Singaporean nationhood.

    Why? Because in the first place, why should an individual feel that he or she has an obligation to other people in the commmunity, if his or her rights will almost always be dismissed at a whim in favour of some “community interest”? This sort of reasoning was at the heart of why it took decades for the quota on female medical students to be lifted ( “oh they might get pregnant and leave the workforce and we would have wasted time and money spent on subsidising their training etc”).

    And in the second place, it stultifies Singapore’s development as a pluralistic and diverse society. Understandably, when Singapore really got cobbled together as a nation in the 1950s, it might have been enough to just recognise diversity in terms of race, language and religion. But as we mature as a society, we have got to recognise that individuals associate themselves with other labels too- be it gender, disability, sexual orientation, marital status, ethnic identity which ISN’T chinese malay or indian and so on. But as it stands, some community interests are more equal than others. This is however, changing, as the campaign to repeal 377a shows.

    So the point I’m trying to make is that
    (a) we DO have the rule of law
    (b) the substantive principles governing our interpretation of our law are almost exclusively utilitarian
    (c) this is problematic.

  6. Ned Stark said

    Jie Kai,
    I acknowledge the force of ur argument. Perhaps i did not form words sufficient to express my thoughts. It is indeed tragic that Singapore tends to employ a rather utilatrian approach in many areas. One of which is the retention of 377A contrasted with the opening up of IRs.

  7. Jeth Lee said

    I think Jie Kai has a point in saying that a formalist conception of the rule of law should be adopted and discussed in isolation from other more substantive values such as the protection of individual rights. This certainly makes for clarity and the avoidance of a tendency to lump all grievances into one singular notion. To that extent, whether a law is just or otherwise is not the province of the rule of law.

    The Singaporean government at present does not appear to have come to terms with the concept. Instead, it has adopted various interpretations to suit different audiences. In reply to JB Jeyaretnam’s contention that the rule of law should be substantive and protect principles of natural justice in parliamentary debate more than a decade ago, Assoc. Prof. Ho Peng Kee stated that if an Act is passed properly and it is followed, the rule of law is upheld. This is the formalist approach. Yet, in the IBA speech that Prof. Jayakumar delivered, it was propounded that the rule of law encompasses certain substantive universal principles. One wonders which then is the conception that the government wishes to adhere to.

    However, even accepting the formalist conception of the rule of law, one that is obviously more favourable to the state, it is difficult to imagine that there isn’t an inherent substantive nature to it. One may accept that the rule of law is followed when the executive, legislature and judiciary do not overstep the boundaries of statutory and common law. Yet, this line is surely blurred when statute and even the Constitution are changed at will so as to validate the actions of these bodies. It can still be said that the rule of law is present, but such a proposition will be greatly strained. After all, the rule of law, even in its barest form, stands for the principle that no one, the government included, is above the law.

    Let us take the case of Chng Suan Tze v. MHA, [1989] 1 MLJ 69 for example. A preventive detention order by the executive was quashed by the Singapore Court of Appeal, albeit on mere administrative grounds. More importantly, the court established an objective test of review over executive discretion under the Internal Security Act. In a move more commonly associated with jurisdictions without a written constitution, the Singapore Parliament reversed the decision in Chng Suan Tze and reinstated the subjective test of review in an earlier 1971 case. It also amended the Constitution and ISA provisions to curtail the power of judicial review granted to the courts in respect of the ISA. Having done all this, the detainees previously released were re-arrested. Needless to say, the subsequent case of Teo Soh Lung saw a muted court come to a foregone conclusion of upholding the new detention order.

    One could say that the rule of law was still present. Everything that Parliament did, they did within their powers – which wasn’t too difficult since the ruling party had a 90+% majority with the benefit of a party whip. Even if there were to be a challenge,whether constitutional or administrative in nature, to what Parliament did, Parliament could simply amend something else to place themselves back in the driving seat of legality. Yet, can one truly say that government is not above the law in this circumstance? I think the answer must be in the negative. No matter how formalistic a conception one opts to take, a minimal threshold of adherence to the basic principle that the rule of law stands for must be transcended in order for it to be said that the rule of law exists.

    Notwithstanding, I concur that Singapore does adhere to the rule of law in many ways. It is just that I do not believe we have it anywhere near its entirety yet.

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