There was an elephant in the room.
Chief Justice Chan Sek Keong argued that there is no agenda by the courts here to cover up what is wrong in the law. He said this in an essay published in the September issue of the Academy of Law Journal, as reported by the Straits Times today:
Of the 79 judicial review cases since 1957, involving a wide variety of grievances from wrongful dismissal to tax assessment, 22 applicants succeeded in obtaining the court remedies they sought.
The figures showed the courts were not out to protect the mistakes of the public authorities at the expense of the public, said CJ Chan.
[snip]
CJ Chan made clear the courts have no agendas and their only mission is to do what is right in law.
He added that ‘we should look at the facts, rather than indulge in Chinese whispers about the allegedly poor state of judicial review in Singapore’.
He dismissed the notion held by critics that the courts here were submissive and, therefore, ignored wrongful executive acts.
Stressing that cases are decided on legal merit, he said a suit plainly succeeds where the public agency is found to be wrong, and fails where the applicant is wrong.
— Straits Times, 28 September 2010, Courts do not shield govt agencies: CJ Chan
Two things struck me:
Firstly, that there were only 79 cases of judicial review in the 53-year period from 1957. That’s about one or two a year, which seems very few compared to the thousands of interactions between people and government. There must be many instances where people are unhappy with government decisions; why don’t these get to the point where there is a legal challenge? What are the hurdles preventing people from suing the government for redress?
Secondly, from the examples and phrasing used, e.g. “mistakes of the public authorities”, and “wrongful executive acts”, the essay appears to address only certain kinds of cases — ones where administrative action allegedly fails to comply with law.
Yet, judicial review is much broader than that; it includes the courts passing judgement on whether political bodies and authorities comply with the law, and here “law” does not only mean statutory law made by Parliament, but the law that governs the actions of the legislature and political ministers.
The sidebar story reinforces this omission. It quoted the Chief Justice as saying:
Good governance, in my lexicon, refers to the institutional rules of procedure and decision-making process of administrative bodies in implementing government policies in accordance with the law, while ‘good government’ refers to pursuing good policies in building a modern successful society…
Judicial review deals with bad governance but not bad government. General elections deal with bad government.
— Straits Times, 28 September 2010, On Supreme Court’s role
Again he speaks of “administrative bodies… implementing government policies”.
This focus is too narrow, and that narrowness can be said to be proof of the submissiveness that critics accuse our courts of. The biggest problem in Singapore is not that our civil servants abuse their power or fail to follow correct procedure — it can happen occasionally, but there is no systemic failure. Instead it is politicians who systematically abuse their power in the making and the legislating of policy.
These include the bifurcated electoral system (why are some citizens in single-member constituencies and others in group representation constituencies?), the unevenness of constituency sizes (we’ve discussed the 30-percent variation in an recent article), media control and censorship, and detention without trial.
All these acts may be backed by legislation, but the question should be: Are these statutes lawful? Do they not violate one or more of the fundamental rights of citizens?
Yes, it is important that there should be judicial review of administrative decisions by civil servants, tested against enabling legislation and a general principle of fairness, but even more important in the Singapore context is reviewing actions of politicians. And yet, there’s a studied silence on this role of the courts.
It’s the elephant we pretend not to see.
The Chief Justice may boast that 22 of 79 judicial review cases (28 percent) were decided in favour of the applicant, but more important to me is what number of judicial review cases resulted in Acts of Parliament being struck down by the Supreme Court as being contrary to one more more fundamental rights enshrined in our constitution. I believe the answer is Nil.
* * * * *
This historical desert is the chief reason why I am not optimistic about lawyer M Ravi’s chances in his constitutional challenge to Section 377A of the Penal Code, launched 24 September 2010. Ravi is defending Tan Eng Hong, who had earlier been charged under 377A for allegedly engaging in male-male sex in a shopping centre toilet.
Most of the time, lawyers acting for clients charged under 377A choose the plea bargaining route if they are not confident of proving innocence in court; alternatively enter a mitigation plea after the client has pleaded guilty.
M Ravi is taking an unusual route, challenging the validity of the law in the first place.
Many in the gay community may feel rather conflicted about this, and mostly it’s about the public relations aspect of using this case as a springboard to a challenge. It is hard to defend toilet sex; in fact, People Like Us says quite explicitly that it does not condone it. There’s a concern that by using this case as a launchpad for a challenge, the general public may be led to think that striking down 377A will mean a blank cheque for toilet sex. This obviously is not so. Gay activists only want toilet sex regulated in the same say whether it is homosexual or heterosexual — it’s essentially an equality demand — by using a gender-neutral law, not by using 377A.
It’s akin to how 377A used to be applied to men making sexual advances towards boys. When Walter Woon was Attorney-General, he gradually put a stop to it, using the gender-neutral provisions of the Children and Young Persons’ Act or Section 376A of the Penal Code (Sexual penetration of a minor under 16). These are laws that apply whether it’s a man taking sexual advantage of an underaged girl, a woman having sex with an underaged boy, a woman with a girl or a man with a boy. And that’s how it should be. Dropping 377A in such cases did not mean we would do nothing about underaged sex; it only means we treat all forms of underaged sex in an even-handed way.
377A is an inherently discriminatory law because it is gender- and sexuality-specific, and M Ravi is not wrong to challenge it, even when the case is one involving toilet sex, the public-relations nightmare notwithstanding. The issue is not toilet sex; it is the continued use of a discriminatory law.
He also has plenty of precedents from other jurisdictions in his favour. I cannot think of a single court in any country with a robust judicial system affirming an anti-gay law like 377A in the last 20 years.
I suspect though that the Singapore courts will affirm it. What conclusion should we then draw? That Singapore’s legal system is special, or that we do not belong to the same class of countries with robust justice systems?
The Chief Justice may soon get a chance to demonstrate his words with action.
Yawning Bread 
1. “…there were only 79 cases of judicial review in the 53-year period from 1957.”
It would be of interest to me if it was possible to get our hands on all those 79 cases, analyze them and then break them down into categories based on the nature of the cases (commercial, etc.)
(BTW, would commercial cases be tried under private law, and is there a provision for judicial review of private law?)
Only then we will know what type of cases have been ruled against and what type of cases have been left out.
Even in the cases that the courts have ruled against public authorities, it would be of interest to know if they were of a politically sensitive nature ie. that there would be political repercussion that would affect the PAP government’s electoral fortunes or reputationally.
2. “The Chief Justice may boast that 22 of 79 judicial review cases (28 percent) were decided in favour of the applicant, but more important to me is what number of judicial review cases resulted in Acts of Parliament being struck down by the Supreme Court as being contrary to one more more fundamental rights enshrined in our constitution.”
What if the applicant were from the SDP arguing on the grounds of the unconstitutionality of all the legal action that has been taken aginst it by the PAP government?
How would the courts have ruled?
3. “It is hard to defend toilet sex; in fact, People Like Us says quite explicitly that it does not condone it.”
Agreed with PLU’s stand.
However, I feel that this case is not really about “toilet sex” per se but “sex in a public place”, which begs this question: what are doing – or have ever done – about all that heterosexual sex that has taking place in Eacst Coast Park and other public places?
The duty of a defence counsel to put forward every valid defence possible on behalf of his client, including the unconstitutionality of the law he’s charged under, looks like a different animal to Judicial Review ( either of an administrative act, or of an unconstitutional law). As for timing, some people might consider it to be negligence for a defence lawyer to fail to pursue this line of argument or at least for failing to give his client the choice of doing so. Anyone still being charged under this section should be fighting it tooth and nail.
This has to be particularly so since the Court ruling in India on the virtually identical clause – ( which was used as the template for Singapore and other countries in the 19th century) – that it was unconstitutional as regards consenting adults, as well as many many similar rulings across the world and commonwealth as you mention. There is also the recent announcement of the Director General of the United Nations appealing for worldwide decriminalisation, which is at least morally compelling on the issue.
There is room for optimism. This is a golden opportunity for everyone to move on, end divisiveness, and consign this sorry section into history where it belongs. The Supreme Court ruling in India allowed for meaningful and life-saving reform, while saving the face of the government, who went on to win a big election victory. If the case is heard by judges of the great calibre of the Chief Justice and his fellow judge in Delhi who heard the case there, it potentially allows the clause to be reformed in practice without the government risking being “blamed” by fundamentalists. It saves face for everyone on so many levels. It just makes sense that this could and should happen.
I think there is actually a good chance that the Court of Appeal will adjudge 377A to be unconstitutional and void. There are a few factors that would influence the Court to strike it down:
1) The Government is not too keen 377A either. During the parliamentary debates over 377A, PM Lee made it clear that the Government thinks that there is no good reason to prosecute gays for having sex, and it is retaining the law merely to appease the morally conservative majority. Even MM Lee and SM Goh have stated before that homosexuality is innate and gays should not be marginalised.
With the top ministers showing open distaste for 377A, the Court need not fear reprisals from the executive for striking it down. In fact, the Government would probably be secretly grateful to the Court for helping it get rid of this controversial law that keeps distracting from “serious governance” and continues to make Singapore look bad on the world stage.
2) There is a strong legal case that 377A is unconstitutional. 377A arguably contravenes the Equal Protection Clause of the Constitution (Article 12), since the differentiation it creates bears no reasonable relation to the object of the law. If the object of the law is to discourage anal sex, which the legislature deems to be hazardous to public health, then why isn’t heterosexual anal sex outlawed? If the object of the law is to signal the community’s disapproval of homosexuality, it makes no sense to only target male homosexuals and not lesbians. No matter you slice it, 377A does not pass constitutional muster.
3) The current Chief Justice is clearly quite anxious to prove that Singapore’s judiciary is independent. In this year alone he has published two articles asserting the judiciary’s independence. However, it remains a fact that Singapore’s courts have NEVER struck down any legislation for being unconstitutional (the High Court did strike down a law once, but it was reversed on appeal). 377A would provide a golden opportunity for the judiciary to demonstrate its willingness to void unconstitutional legislation and prove that it has a backbone.
——
That being said, much depends on M Ravi’s performance in court. Previous decisions have held that there is a strong presumption that a law passed by Parliament is constitutional. So it is up to M Ravi to furnish concrete evidence to rebut that strong presumption of constitutionality. Passionate rhetoric about how gays are being brutalised is unlikely to sway the judges.
Talking about law and facts.
Until this very day, I am still wondering what is exactly wrong in law with wearing a T-shirt with a kangaroo printed on it to the extent that our courts see it fit to jail the wearers.
Was the word ‘kangaroo’ even mentioned in any of our statutes ? What if the animal printed on the T-shirt is a monkey or an elephant, is it then OK in law ? What if some tourist from Australia wearing their national icon t-shirts happen to visit any of our courts ? How can anyone in Singapore be prosecuted for something that is not even clearly spelt out in our laws ?
I suppose to this very day, our CJ or AG still owes us some kind of explanation regarding this issue. And I rather think that it would bode well for them if they don’t speak on some matter which clearly contradicts what they have been doing. Because it just make them look silly.
I don’t know about “good chance”, but I think that there is a fair chance that 377A could be struck down.
But for one reason only: gays are not a political party.
The judiciary’s enemy coincides with the ruling party’s one, and that has been plain for everyone to see. (We ar4e not lacking in pattern observation skills no matter what they want to think of us.)
I somehow sense that there is a general feeling – or a hope – that the gay rights energy may dissipate if this ruling goes in our favour.
While I know many LGBTs who could fit that description, I would like to see if see if this is indeed true.
I spoke too soon when I said in my last post that there is ‘only one reason’ – that gays are not a political party – that there is a fair chance that 377A could be struck down. I am readjusting my position on that score.
I believe that there could be another category of cases on which the judicial review process would falter, and that is with what I call the PAP’s Pet Projects.
Two examples of such pet projects are the death penalty, and especially the MDP because a constitutional argument against it has already been formulated, as well as the Ethnic Integration Program (EIP), which in my opinion is unconstitutional on two grounds: that it is breach of the “freedom of movement” as well as on the grounds that it doesn’t afford “equal protection” to Indians and Malays (from financial loss). (Indians are also more adversely affected than Malays by the EIP.)
Both have been defended vigorously by the PAP government. We have already seen how judicial review of the MDP has turned out, even if, in my opinion, the arguments advanced by Ravi were irrefutable. Similarly, were the EIP to be challenged on constitutional grounds, I foresee such a case being similarly stonewalled.
However, I get the sense that the gay issue doesn’t – or no longer – falls within the category of the PAP’s pet projects, hence my slightly more optimistic view of the upcoming case by Ravi.
>“law” does not only mean statutory law made by Parliament, but >the law that governs the actions of the legislature and >political ministers.
I think there are two issues to seperate out.
1:Purpose of Judicial review in light of parliamentary supremcy
2:Substantive Rule of Law
Purpose of Judicial review in light of parliamentary supremcy
—————————————————————
From my preliminary readings. SG judicial review has also
evolved into the doctrine of jurisdictional error.
Meaning judicial review is to catch out decisions by
public authorities which are beyond power given to them
by the enabliing legislation. The view is of course
that parliament is supreme, but public authorities must
act within the ambit of the law. If the laws are not
to your taste, you can vote out the party…
Substantive Rule of Law
—————————-
But….of course it is ahem “different” in sg.
Well the constitution can be amended by a majority in
parliament and I think parliament has legislated in the
past to retropectively reverse the legal effects
of judicial review decision.(Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 (Court of Appeal))
ie. Rule by law rather than the rule of law
Conlusion
So while CJ Chan is describing the doctrine of jurisdictional error in judicial review. It is questionable how effective
this is in sg as we are down the spectrum more towards
rule by law than rule of law. So when you mention “law” and
not just “statutory law”, i don’t think you mean common law,
for it will do nothing for you. natural law??
Or is the issue really a political question about the
political landscape here rather than a legal question.
PS.: Sorry, just writing on a whim, the above is not
very deeply researched,and IANAL. Also not sure how
well the Courts in sg stand up with their constitutional
interpretation in the constitutional cases.
Just realised that art 12(1) doesn’t have the magic words “Parliament may by law impose”, “necessary or expedient” &c…
The case is gonna be interesting.
Or maybe they’ll sidestep the issue and hold that toilet sex falls short of gross indecency 😛
What’s happening to the Shadrake case.
Learned people sitting in high places, I hope they are similar to India or better, but lets see.