Seven misrules of law

Thanks to Mohan Gopalan, my attention was drawn to a video of a talk by the late Lord Thomas Bingham, one of the most influential judges in Britain in recent times. In this talk, he speaks of a book he published called The Rule of Law in which he lists eight cardinal principles that give substance to this much-bandied expression.

The Singapore government regularly boasts that they have safeguarded and promoted the rule of law here. It is perhaps their favourite defence against critics of the political system they created. As recently as in their National Report to the Universal Periodic Review, which is the United Nations’ process for assessing member states on their human rights record, the government brandished these magic words again in their attempt to dismiss reports filed by Singaporean civil society organisations of human rights abuses.

After you’ve watched the video, I am going to show how Singapore falls short of at least seven of these eight principles.

Lord Bingham’s examples were drawn from his long career within the British judicial system. However, even as I listened to him, I could think of examples of shortcomings from Singapore. That shows you how glaring things are that a non-lawyer can think of examples within seconds.

How the Singapore government can claim that we have the rule of law here and yet keep a straight face is beyond me. But then, I am not a practised liar.

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As you heard in the video, if there’s any concise definition of the concept “rule of law”,  it would be something like this: “All individuals and organisations within the state, whether public or private, are bound by and entitled to the benefit of laws prospectively promulgated and publicly administered in the courts.”

Bingham listed eight principles that give substance to the concept, which I will list below, together with one or two examples in each case of how Singapore fails the test.

1. The law should be clear, accessible and intelligible

Despite boasts of making Singapore an intelligent city and exploiting all the promise of information technology, the government has signally failed to put up on the internet all the by-laws that are in effect. Yes, we have put up all the laws passed by Parliament (at http://statutes.agc.gov.sg/) but many of them contain clauses that empower ministers to promulgate additional by-laws, often in the form of Regulations. Since Regulations are made under statutory law, these Regulations too have force of law. Yet, due to non-publication, the ordinary citizen has no easy way of discovering them. For all practical purposes these are hidden laws.

Secondly, following English legal tradition, there is such a thing known as Case Law. This is the accumulation of court judgements that deal with a myriad of issues, with judgements of higher courts binding on lower courts. So, where there is no statute governing a topic, precedents established by previous similar cases are referred to in order to discover what the law on that matter is. That’s what’s called Case Law. Except that, in Singapore, we have no master compendium, easily accessible to the general public, of court judgements.

You might ask: how far back does it need to go? Indeed, this can be a problem. In court, lawyers sometimes cite judgements from 100 years back, and from foreign jurisdictions too, in trying to persuade the judge that there are precedents. It is not realistic for Singapore to be publishing these, but at least if we can publish all court judgements handed down in local courts, it would go a long way.

2. By and large we should be governed by law and not discretion

In Singapore, too many of our laws give discretion to ministers and bureaucrats. One example would be the Films Act, Section 35 of which says “if the Minister is of the opinion that the possession or distribution of any film would be contrary to the public interest”, he may ban the film. There are no other controls as to what “public interest” can or cannot be construed to mean. As filmmaker Martyn See has documented, the record of decisions taken show a striking arbitrariness and partisanship.

3. Equality before the law

This is obvious for anyone who has been following the gay issue. Less obvious examples include the fact that foreign domestic workers are excluded from the scope of the Employment Act, opening the door to abuses, when we ourselves rely on the Act for fairness in employment.

Also not well known is that our Compulsory Education Act allows the minister to exempt an entire class of children. This he has done through gazette, excluding all children with disabilities from compulsory education. Immediately, the Education Ministry sees itself freed from the obligation to provide state schools that cater to children with special needs, leaving it to the voluntary welfare sector and the whim of parents, an arrangement that is far from ideal in terms of these children’s future.

4. The exercise of public powers, i.e. powers publicly conferred by statute,  should be exercised by those on whom they are conferred reasonably fairly, honestly, and importantly, for the purpose for which they are conferred

Example: We have a law regulating public assemblies, the purpose of which is so that the police can strike a reasonable balance between the right of expression and assembly and the inconvenience this may cause to the public. Instead, this law is used to deny anyone not pro-government the freedom of expression and assembly altogether. A recent case found that even discrete individuals walking from point A to point B separately (not en masse), mingling with other pedestrians and stopping for traffic lights, constituted a procession and therefore violated the law. This is a total misuse of the law.

5. Human rights must be an integral part of law

Example: No one should have his body violated without his consent. Yet, Singapore law allows husbands to rape their wives, unless the wife has priorly initiated certain legal safeguards.

6. Dispute resolution

Bingham said: “If we have rights to assert or to defend we ought to able to go to court to get an answer.  But we all know that the expense of litigation is such as to make it very difficult or a formidable undertaking.” This applies in Singapore too, and the jacking up of court costs makes it even harder.

7. The state to should provide a fair trial

In connection with this point, Bingham referred to an example of somebody subject to an application of a control order, saying: “There have been departures from what has hitherto been regarded as almost the fundamental ingredient of a fair trial, which is the requirement that the person who is the subject of an adverse order should know what the case is against him and have a complete opportunity to argue it in a forum where the judge or decision maker has received no material which he has not.”

There is no trial at all for anyone detained under our Internal Security Act or the Criminal Law (Temporary Provisions) Act. Whatever hearings are conducted for the detainee to argue his case, the detainee is not even told what the charges are or what the evidence is against him. Ex-detainees have written about their experiences detailing this.

Moreover, even in normal criminal trials, until recently the prosecution has refused to provide defence with advance notice of the prosecution evidence, including police statements made by the accused himself. This is being qualified now with a pilot project, but criminal lawyers in Singapore have been urging for more thorough changes in procedures to better ensure fairness.

8.  State sould comply with its duties in international law., e.g. law of the sea, aviation

This is the one area where I cannot come up with examples, mostly because I have not been monitoring Singapore’s behaviour in the international realm.

Despite all these examples (and surely many more that I may not even be aware of), our government continues to assert that we have the rule of law in Singapore. It is less than wholly true.

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Lord Bingham passed away in September 2010. The obituary in the Guardian newspaper gives a snapshot of this eminent jurist. He was

was widely recognised as the greatest English judge since the second world war. Serving at the apex of the judiciary for an unusually long span, he was the first individual in the modern era to act both as master of the rolls, with the supreme remit for the civil courts for four years from 1992, and then as lord chief justice, running the criminal courts as Britain’s highest-ranking judge. From 2000 until his retirement in 2008 he was the senior law lord.

In that role, he wrote a number of leading judgments, defining the place of individual rights in the landscape of a changing British constitution. . .

The Guardian also noted that he was also to the fore in promoting a strong, independent judiciary. I wonder what he would have thought of Singapore’s judiciary, protected behind a wall of contempt-of-court judgements.