“Rule of law” in Singapore is so thin, it holds no more meaning

pic_201309_22It is dismaying that a former Chief Justice has such a narrow conception of the rule of law. It is not altogether surprising, since the formulation he hinted at by his threadbare reply has been observed to be practised here for a very long time, and it accounts in large part for the erosion of true rule of law. The institutions that are charged with delivering justice fail us because the concept has been debased.

Choo Zheng Xi drew my attention through a Facebook post to an article in Today newspaper:

Prof [Tommy] Koh cited some Singaporeans’ view of the [Internal Security Act] ISA — which allows for detention without trial of individuals whose acts threaten national security — as example that Singapore had “rule by law, rather than rule of law”.

Rejecting the contention, Mr Chan said that the standard definition of rule by law was that the government is subject to the law and accepts so.

– Today, 17 September 2013, Panellists discuss LKY’s use of defamation suits and ISA

Retired Chief Justice (2006 – 2012) Chan Sek Keong’s over-simplified answer is not wrong in itself, but it is only one part of the concept of rule of law. It is curious how he omits other key elements that make up real rule of law. These missing key elements also happen to be inconvenient to a government that hates to have its freedom of action circumscribed.

Was Chan just trying not to embarrass our political masters? Or has he come to believe himself that these other elements of rule of law aren’t important any more and need no reiteration?

Neither makes him look good.

Many Singaporeans, having heard our government proclaim their devotion to the rule of law, and boasting about how Singapore is highly ranked internationally for it, would have long come to the conclusion that there is something terribly fishy about the claim; they would long have suspected all those perfumed praises must surely mask a rotting carcass. Frankly, they aren’t wrong, once again proving the adage that one cannot fool all the people all the time. Yet, few would be able to go beyond amorphous suspicion and articulate what ‘rule of law’ should be and why we fall short.

Before dealing with the concept of ‘rule of law’, we first need to better understand what ‘law’ is.

* * * * *

The easiest way for a layman to understand it is to look back at history, tracing how our present-day concept of law developed. In doing so, we can glimpse the elements that are considered important struts. It is only when all these key pillars are sturdy that we can say there is rule of law.

Since Singapore law is descended from the English common law tradition, our flashback is turned in this direction.

A thousand years ago, there were no written laws in England. Judges were sent out by the king journeying from town to town (thus the present-day term “circuit judge”) to settle disputes among ordinary people as best as they could, disputes such as “My neighbour stole my horse”, or “My uncle dispossessed me of my rightful inheritance”, or “So-and-so wooed my wife and committed adultery with her.” Mostly, judges would guide themselves by local custom to arrive at decisions that the community would accept as equitable.

Gradually, from these ad hoc beginnings, the various judges made a habit of sharing among themselves the cases they heard and decisions they arrived at. The practice soon developed whereby, in the interest of consistency — and being consistent is a obvious component of justice — a case whose facts resembled an earlier one would be decided in the same way. This principle had a name: stare decisis. Through the steady accumulation of stare decisis, a huge body of law covering a wide range of disputes and offences came into being.

Although substantially informed by the culture, customary peculiarities and Christian values of the English people, this body of law would not have gained respect and acceptance by communities if it did not have at its core a dedication to fairness and equity, and if it did not resonate with people’s natural sense of justice.

That is its key strut. Law is not good law unless, first and foremost, it embodies justice.

But notice one thing: law came into being made by judges. In fact, even today, in the final analysis, law is what courts say it is.

Yet, I’d wager that most Singaporeans would be surprised by me saying this. The general understanding is that legislators (or some people might say, the “government”) makes law. This misunderstanding is very useful for political bullies; they would much prefer people to think it right and proper that “law” is little more than promulgations from the castle.

This commonplace view is plain wrong. Law is not — has never been — what a government or parliament says it is. Even when Parliament passes a bill, the resulting document is never called ‘law’,  except when used loosely by newspapers or in casual speech. Notice, for example, that the technical term is “Act of Parliament” or “statute”. It is not “law”.

However, as parliamentary government established itself in England — and later on, the United Kingdom — with a regular habit of passing statutes, judges felt bound to take cognizance of them. Thus developed a tension between what Parliament wants and what judges consider right and fair. But, as democracy spread and a democratically-elected Parliament gained moral standing, the principle of deference to Parliament developed alongside.

That’s a second strut, but the tension continues, and deference does not mean complete subservience to Parliament. We will come back to this further down.

At the same time, a huge struggle was waged over the question of whether the monarch himself — and by extension, his government — was above the law. By the mid-17th Century, this was largely settled: No, he was not.

That’s the third strut. However, to understand its significance, it needs to be formulated this way: The head of state, government and parliament are subject to law; they cannot act in ways that are unlawful. If they do, their acts are null and void.

This third strut seems to stand in contradiction to the second strut — but only if one thinks that parliament (or the ‘government’) makes laws. A proper evaluation of the meaning of the second and third strut is this: Courts remain the final determinant of what law is. However, in their considerations, they will extend much leeway to the wishes of parliament.

But if courts remain the final determinant when judging the lawfulness of acts of parliament and acts of government, what should courts be guided by? The same as always: inherent fairness. When acts of parliament or the executive violate any of these foundational principles, courts have struck them down or re-interpreted them.

The concept of fairness itself developed over the centuries to encompass due process, proportionality, evidential rules, presumption of innocence, and many other aspects. It was recognised that “fairness” cannot have real meaning unless all attendant circumstances and processes are coherent towards the same goal. Likewise, acts of parliament or the executive are equally subject to judicial examination on these counts.

So, in a nutshell, the situation is this: Acts of Parliament, while not in and of themselves law, are recognised as parts of the body of law, but always subject to interpretation (a term that includes striking down) by the courts.

There is a fourth strut. This can be traced to the European Enlightenment of the late 18th Century, and the development of the concept of inalienable human rights. Notions of fairness and justice began to embrace these rights. At the same time, newly emerging states of the period, such as the United States of America, began to draw up constitutions — bodies of rules that sit above the workings of the legislature and the executive, and it soon became obvious that constitutions should codify these human rights. Notice that I use the word ‘codify’ — because that’s what they were supposed to do. They merely put in writing what existed. The rights were not created by the act of writing them. The concept is that these rights already exist, and in perpetuity, by the simple fact that we are human and it remains for courts to be the final arbiter of how far rights extend, based on deepening human wisdom.

The United Kingdom never got around to writing a constitution, but that does not mean its judges ignore concepts of human rights in their deliberations. However, the UK bequeathed newly-minted constitutions to its ex-colonies, and these documents contain language that enshrines inalienable rights. At the same time, the common law tradition that the UK implanted into these ex-colonies also means that courts continue to have the role of interpreting and protecting these rights.

A fifth strut is currently emerging. It doesn’t quite have a nice name yet, but has something to do with international law or international norms. In a manner that recalls how common law first developed centuries ago, there is a gradual creep towards greater consistency among national laws, at least in specific areas, e.g. ban on torture, maritime law, from the miasma of widely divergent local standards.

* * * * *

The term ‘rule of law’ is meaningful only when ‘law’ comes with its full scope. When ‘law’ is so denuded that it means little more than unquestioning enforcement of acts of parliament and the executive — even if it includes enforcement of these acts on the government itself — ‘rule of law’ rings hollow.

‘Rule by law’ — here, with the word ‘law’ almost sinisterly reduced to the meaning of promulgations from the castle — might be a better description of the scene.

Moreover, the sense one gets from a glance at history is that law is there (among other purposes) to protect people from the excesses and overreach of the state. Here then is a question: Do Singaporeans feel confident that the “law” as we have offers us any protection? If we do not, does that mean that indeed our government is not, in effect, subject to law, whatever its protestations?

Other than mention the third strut — “the government is subject to the law and accepts so” — Chan did not say what he thought of the health and strength of other struts. Or, for that matter, the importance of these other struts. This omission can be telling. In the context of Singapore where our jurisprudence has long been criticised for excessive deference to the executive, for its neglect of human rights, and for reading texts of Acts of Parliament too literally without imbuing bench decisions with wisdom, silence suggests that there is no self-reflection on our judiciary’s shortcomings.

There is actually a term that describes the state of affairs in Singapore: “Thin rule of law”. It means a situation where courts read statutes literally and apply their provisions with much passivity and little thought. Little consideration is given to questions of inherent fairness and human rights.

For example, when parliament mandated the death penalty for a series of offences, leaving judges with no discretion, our judges simply accepted this tying of their hands. By this precedent, if tomorrow, parliament passes legislation that says anyone who steals an orchid from a garden (and he shall be presumed guilty until he can prove himself innocent), he shall be hanged, our courts will likewise say, that’s right and proper, and smugly send alleged orchid thieves to the gallows.

Defendant: “But, your honour, while it is a fact that I had a flower upon me, it was (a) for my own bodily decoration, and (b) I had no idea it was an orchid. I thought it was a tulip.”

Judge: “Well, firstly, parliament created the presumption that you intended to traffic in the flower and you have failed to prove that you, in the quiet of your mind, did not so intend, and secondly, it is objectively speaking an orchid, and whether you thought it was a tulip is immaterial. I therefore sentence you to hang by your neck till death.”

Another example: When parliament amended the Internal Security Act to remove the right of judicial review, it deposed the courts from their rightful role of reviewing acts of parliament and government for fairness. It knocked down struts 1 and 3.  Yet our courts have just rolled over and given in.

Just as egregiously, the Internal Security Act itself, in permitting detention without trial for indefinite periods, merely on the say-so of a minister, arguably violates several human rights prohibitions, such as arbitrary arrest and loss of personal liberty without due judicial process. Yet our judges have never roused themselves to question this statute. This is one of a whole procession of judicial abdications.

If Chan, in saying that rule of law exists in Singapore, is satisfied that such a gossamer-thin rule of law is enough to satisfy his conscience and moreover, is worthy of unashamed defence in public forums, then Singaporeans should be extremely concerned.

64 Responses to ““Rule of law” in Singapore is so thin, it holds no more meaning”


  1. 1 BN 19 September 2013 at 15:11

    Well said. There is rule of law because they say there is. There is fairness because they say there is.

    Any argument against that will be contempt of court.

  2. 2 Richard Lee 19 September 2013 at 15:13

    Under the British ISA, every 2 yrs, the Government had to persuade a (hopefully independent) judge that detention was appropriate.

    In 1989, the PAP “improved” the Act so this was no longer necessary and made it retrospective. Perhaps the Singapore Judiciary (judges) weren’t all PAP bootlickers like the foreign press likes to claim.

    http://en.wikipedia.org/wiki/Teo_Soh_Lung_v._Minister_for_Home_Affairs

    challenged the legality of these changes as it seriously impinged on the Rights of Singaporeans supposedly safeguarded by the Constitution. At least one judge thought it was Unconstitutional but his judgement was later overturned on the grounds that the changes had gone through Parliament.

    Isn’t this ‘Rule by Law’ .. the Government making ‘laws’, even eroding the Rights of Citizens under the Constitution, at will ? Parliament and ‘law’ used to attack & imprison those who don’t agree with you .. or you don’t like.

  3. 3 bochap 19 September 2013 at 20:10

    Even our lawyers have lost their sense of justice. Everytime it is M. Ravi doing the dirty work. LKY should be held culpable for the demise of the law profession.

  4. 5 Jake 19 September 2013 at 22:13

    In short, it’s meaningless to say that you subject yourself to the law if you are the only person making the law in the first place. That is the main problem. There are many laws which enhances executive power by giving broad definitions on what constitutes offences. As a government, it’s the easiest thing to “subject” yourself to such laws since they obviously gives you carte blanche to act as you please.

  5. 6 Junnies Jun Yang 20 September 2013 at 01:26

    thank you for a fine articulation of what is wrong with our institutions of justice.

  6. 7 Nick 20 September 2013 at 03:41

    Alex, I am afraid you have made a fundamental mistake in your understanding of the separation of powers. The will of Parliament is supreme. Statute trumps common law. It is NOT the role of the Court to say whether a statute is wrong or not. What form a statute takes and indeed whether it is pased at all is decided in part in the ballot box but also through a process of consultation and sometimes lobbying. You are however correct that the Courts’ role is to interpret statute but there are limits to that role. The examples at the end of your article are therefore fallacious. Sadly, if Parliament passes an Act tomorrow that says a man who steals an orchid is guilty until he proves himself innocent and MUST be hung if found guilty, the Courts have no discretion to decide other wise. That is as part of the rule of law as the Courts making law by interpreting statute. If you don’t like what Parliament has done, then you try to change or influence change through the democratic process. It is that, I suspect, that your article is fundamentally expressing frustration at. Don’t blame the Courts. Note I am not a judge or even live in Singapore. I admit (confess even lol) that I am a lawyer. I enjoy your blog and felt the need to preserve the integrity of your writing by correcting this error.

    • 8 yawningbread 20 September 2013 at 07:41

      Statutes may (subject to interpretation) trump common law, but in Singapore we have a written constitution, and THAT trumps statute. In any case, there are a zillion possible ways to interpret anything, and the process of interpretation (whether statute or constitutional provision) can be guided by higher moral calling. . . or, as so often is the case in Singapore, be hand-wringingly timorous.

      • 9 Jake 20 September 2013 at 11:40

        The constitution is also right now practically having the same status as acts of parliament in that it can be readily changed by parliament. This can only be corrected with a working two party or multiparty system in which no single party wields more than two thirds majority in parliament. Ideally though, all constitutional amendments should be subjected to referendums.

      • 10 Nick 20 September 2013 at 15:27

        I don’t agree that there are “a zillion (or even a million) possible ways to interpret anything”. If a statute is very clearly worded, there are only a few ways that one can read it – objectively speaking of course. Asking a judge to make his/her decision on what a statute says based on a “higher moral calling” risks blurring the lines between Parliament and Judiciary. Better instead to make sure that Parliament doesn’t allow the statute to pass in the first place. The trouble with written Constitutions (at least in the Singapore context) is that it (like the statutes below them) can be changed. Conversely and somewhat ironically, an unwritten Constitution which is governed by tradition, is much more robust!

    • 11 ape@kinjioleaf 20 September 2013 at 14:31

      Hi Nick,

      What if parliament decides to pass a Bill that says only more than 50% MP votes are required to pass any Bills? With Party Whip still in place. Or amend the Election Act that says only elites are allowed to vote? Or simply confer the authority of amending the Constitution solely to the cabinet/Prime Minister? Will democratic process work? Without violence?

      • 12 yawningbread 20 September 2013 at 16:08

        Hey, ape,

        It is the case even now that only 50% of MPs present in any parliamentary sitting (provided there is quorum) need to vote in favour to pass a bill.

      • 13 ape@kinjioleaf 20 September 2013 at 22:21

        I thought it’s 75%? Or was 75% only for the Constitution?

      • 14 yawningbread 20 September 2013 at 22:45

        To pass any amendment to the constitution is when a two-thirds majority of MPs is needed. There are however a few specific types of amendments, e.g. merging Singapore with another country, where even MPs can’t do so. Such changes require a 2/3 majority of voters in a referendum.

    • 15 Tan Ah Kow 20 September 2013 at 14:42

      For a supposedly lawyer, I am surprised that he/she could confuse separation of powers and parliamentary sovereignty.

      Under the doctrine of separation of powers, parliament or some legislative body, is limited by scope to the kind of laws it can make. Parliamentary sovereignty is a doctrine that embodies parliament as the sole and supreme law making body.

      In the real world, you often find the two concepts being practice. Even in the supposedly mother of all practitioner of parliamentary sovereignty namely, England and Wales, they have scaled back on exercising that concept. In modern times, European Laws, Human Rights and International Treaties have limited England and Wales law making scope. In the case of Scotland, it has it’s own parliament but is limited by the UK parliament. Even in older times of, loosely speaking, UK parliament it is limited, mostly by conventions, by the principles of mega carte.

      So if the commentator tried to make out that there is some divine mandate that parliament is supreme, that is some what accurate in textbook concept but not reality in modern day context.

      In the specific case of Singapore, it could be argued that “we” – in the loose sense people and institution – as so sovereign state have “elected” – in the loosen – to accept parliament as the supreme body of law maker, thus able to make laws that cannot be challenged by other bodies – i.e. No separation of powers. But even so, in reality this may not be the case, for example, we have international treaties obligation that can trump parliament. For example, parliament cannot lawfully pass a law to say, seize American military assets in Singapore. So in a sense Singapore’s parliament is not completely sovereign as such and, therefore, limited.

      It is fair to say that you are not mistaken, as the commentator claim, in the understanding of the concept of separation of powers but rather the commentator.

  7. 17 alexis 20 September 2013 at 03:44

    It is very disheartening to witness so many important leaders and professionals, be they ministers, judges, journalists, lacking courage and integrity but just going with the flow. Kiasi-ism practise at the highest level

  8. 18 Tan Tai Wei 20 September 2013 at 10:23

    “Rule of( not by) law” means means rulers are empowered not to rule by power and fiat, executing laws “by” which so to do, but to be governed by a higher power, ie. “the moral law”, in whatever laws they make and interpret, “of” which they are elected to be custodians. The mechanisms for translating into practice this deference to the moral law, whether constitution, statutes, parliament or judiciary, are all processes, say, of due referencing, of checks and balances, etc,, for best executing moral and just laws, etc. So, even should parliament in practice be “supreme”, its supreme responsibility includes entrenching due mechanisms for mutual checking of legislations among those state functionaries, in order to best execute the moral law.

    What is worrisome is the “modern” eroding away of reverence for the moral law. LKY has claimed only to be “pragmatist”, and that means a reducing of morality to only “what works”. When you identify ultimate values and worth to only expediency and the opportunisms for chancing upon facilities, utltimately for enlarging state “reserves”, etc., then all that becomes “moral law” for you. And so our national pledge only says we want “justice and equality” but only “so as to achieve prosperity…”, implying justice is only a means to prosperity that can be dispensed with if inexpedient. (And so, we hang people, just or not, as long as it is effective deterrence.)

    Is it then a wonder why “rule of law” has become for us only “rule by law”? There is no higher power than what is conceived to be expedient for us, from day to day, GE to GE, on which to base our laws, etc.

  9. 19 Lawrence Y 20 September 2013 at 10:59

    Alex, like what Nick said, best to check through your analyses of the first two struts. What you are advocating for is heightened judicial activism. But I wonder if it is necessarily wise for judges (with their disparate individual values and biases) to rule the land? In fact, judicial activism has been much deplored for lacking in legitimacy. On the other hand, laws passed via the legislative process in parliament represent the will of the people. Control comes in the form of the electoral process.

    On the 3rd strut, the judgements of a competent court should be guided by the background values or intent of the legislation, which are uncovered via parliamentary proceedings. If “inherent fairness” is indeed one such value, then it is for the legislature to define and formulate through the rigours of parliamentary debate. In a democracy, members of the legislature are the ones who are vested with the people’s mandate, not judges. Hence, judges should not be expanding their roles to invent new values. Accountability ultimately rests with the legislature.

    On the 4th strut, I would further add that the UK being a member of the EU is subject to the direct effects of Community laws – the ECHR in particular, in the area of human rights. The ECHR has direct applicability on the UK and judges are expected to adjudicate based on the principles of the “imported” code.

    On the 5th struct, I would not be holding my breath on it. Consensus-building in international law has been extremely underwhelming, issues of sovereignty frequently come to weigh. And the permeation of international norms are at best “soft” in nature. To “harden” them require the political resolve of the legislature.

    I personally would like to see more rights and freedoms enshrined in our Constitution, but on the other hand, I can understand the application of the precautionary principle in the ISA. The background question is probably would/should the protection of individual rights potentially jeopardize that of a nation’s right to safety and security? Has a cost-benefit analysis been employed to find the most proportionate means?

    • 20 yawningbread 20 September 2013 at 16:06

      You wrote:
      “On the 4th strut, I would further add that the UK being a member of the EU is subject to the direct effects of Community laws – the ECHR in particular, in the area of human rights. The ECHR has direct applicability on the UK and judges are expected to adjudicate based on the principles of the “imported” code.”

      In human rights law, when the UK acceded to the European Convention on Human Rights, UK courts became subordinate to the European Court of Human Rights. Even so, the same principle remains at work. Human Rights law are made/interpreted by judges, albeit now at the European level.

    • 21 yawningbread 20 September 2013 at 16:22

      Judicial activism is often considered a bad thing by social conservatives. This is because more often than not, progressives have relied on judges straining at the leash to get the kind of re-interpretation of existing statutes (and constitutional provisions) to get the progress they wish for.

      Singapore, of course, is utterly infertile soil for judicial activism. Our ruling politicians would not stand for it. Or at least would not stand for progressive judicial activism.

      Yet, amazingly, we have judicial activism — of the regressive kind: Where judges reinterpret existing statutes to mean something quite different than intended, but in a manner that pleases the ruling politicians.

      Read up the case of Gandhi Ambalan, John Tan, Chee Siok Chin, Chong Kai Xiong and Yap Keng Ho who were charged with an illegal procession which allegedly took place on On 16 September 2007. The five walked separately, some distance apart, stopped at traffic lights, carried no banners, disturbed no one, blocked no traffic. People around didn’t even notice a thing. Yet the High Court said a procession had taken place! And that walking separately etc indeed constituted a procession!

      • 22 Lawrence Y 20 September 2013 at 17:59

        I would resist any form of judicial activism. I don’t necessarily agree that it has got anything to do with social conservatism, but rather I resist on the principle that I the voter did not choose any of those judges to determine how my life should be run. There is an even greater danger of losing one’s liberty without formal recourse.

      • 23 andyxianwong 20 September 2013 at 22:18

        I think the phrase “activism” is loaded in this context. As far as I am aware the concept of “activist judges” was invented by George Bush when some courts in the US started making rulings against his government. It has always been the case that judges can overrule legislation etc and arguably there is nothing “activist” about it. It is just their job to apply the law

    • 24 ape@kinjioleaf 20 September 2013 at 22:36

      Pardon my ignorance. I look at this matter in simplicity.
      The parliament indeed has the mandate of voters and thus is more appropriate to set laws. However, my perception is that in Singapore’s context, the Court seemed to defer totally to parliament. My fear is that should a government turned rogue, there is no stopping them other than military coup or violent protests.
      I’d rather by and large, parliament set rules but should the rules not conform to certain universal laws like human rights, the judges can struck it down.
      Simply said, I find it hard to accept statements in the effect of ‘It’s the executive (parliament) right to pass a law’ as the only explanation why some laws are upheld.

      • 25 Tan Tai Wei 21 September 2013 at 00:34

        Lawrence Y,
        Surely we voted for good leadership, entrusting Parliament the task of executing good laws, among other things. So, isn’t Parliament obliged to pay due cognizance to “activists”, judicial or otherwise, where these have concerns over the rightness of laws Parliament makes or upholds? The judiciary being “professionals” in this regard should then merit special attending by those we, as voters, empowered to maintain good laws. Now, this doesn’t mean it should overrule Parliament. But a system can be worked out whereby Parliament is obliged to pay due cognizance to its “checks” (and also those of others).

  10. 26 Good Luck 20 September 2013 at 13:55

    Nick and Jake(also the others) basically expressed the problem hidden in the second temptation of Christ. Your wordy deliberation did it justice but you are far from solving the problem – nick bowed to the supreme will, typical of lawyers

    Work at it some more.

  11. 27 Nick 20 September 2013 at 16:23

    Just to point out that there is a growing movement in the UK that resents the impact that the EU is having on parliamentary sovereignty particularly in respect of the ECHR. BTW, just to clarify for some of the readers, “sovereignty” is not to confused with “divinity”.

  12. 28 Anon t5Hd 20 September 2013 at 21:17

    Are students learning in (secondary) school concepts such as rule of law, and their political rights and obligations as citizens/residents?

  13. 29 andyxianwong 20 September 2013 at 22:25

    JB Jeyaretnam triggered a very interesting parliamentary debate on “rule of law” in 1999. The full text used to be available online, but now I can only find this abridged version: http://gssq.entori.net/misc/Rule_of_Law.htm

    Particularly interesting is the observation that even that subset of rule-of-law that the former Chief Justice cites is not something that the ruling party have a good track record on. JBJ for example cited the impounding of the passport of the wife of Tang Liang Hong when his defamation suits were going on – JBJ who is a former lawyer and I think judge made the point that there was no basis for that in law. There were plenty of other examples (the Cheng San polling station incident also springs to mind) mentioned in the full debate, but sadly I can’t find it now.

  14. 31 ;Annonymous 20 September 2013 at 22:26

    Alex, you have done a great service by raising this subject. I will not comment on your views nor that of your commentators. However, you have delicately hinted on one important point – the outlook of our judges. I guess the fear of being cited for contempt of court prevents you from pursuing it to it logical conclusion.In the US public discussion of the temperament and biases of judicial nominees to the Supreme Court in the media and professional journals take place.The judge interpreting the statutes are no robots. Their outlook and biases often determine the outcome. Thus we have the “conservative wing” in the US Supreme Court holding sway and there is talk that Obama may get to appoint a liberal to reverse the trend. Coming to Singapore, you might recall the late Justice Lai Kew Chai ruling in the defamation case against JBJ by LKY that he would “turn his face resolutely against any form of judicial activism” by applying the ruling of the Sullivan case which allows for greater freedom to criticise public officials. The same Judge would later “actively” interpret the concept of corrupt practice in the Pertamina case against its former official in the absence of clear words. This act was later to be described by the Privy Council as a “robust” interpretation and followed. This decision would form the positive assessment of the Judge in the media and elsewhere. Everywhere “liberal” judges earn the ire of conservative governments – Lords Hoffman and Bingham of the UK ( by the way, Alex, do get a copy of Bingham’s book The Rule Of Law, published in 2010, shortly before he died. He was , by consensus, one of the most brilliant legal minds.) In Australia, The Mason High Court was similarly disliked by the conservative government.

  15. 32 Doya 20 September 2013 at 23:08

    In the final analysis, a good law is a law that serves the common good of the people. But what we have here more often than not is people serving the law which for the most part has been insidiously crafted to serve the PAP government for its need at self-preservation.

  16. 33 yuen 21 September 2013 at 02:26

    when singapore officials discuss “rule of law” (as a few ex-officials did at monday’s conference), they usually mean “business processes will not be interrupted, personal rights will not be infringed, by arbitrary, non-transparent decisions because ‘rules” are clearly specified and carefully followed” – note that “business” comes first; this is basically reflected in practice, though Tommy Koh’s comment indicates he feels this is “rule by law” instead of “of” and application of ISA is not very transparent after the abolishing of judiciary review; their definition does not in itself promise the protection of human rights befpre a powerful government

    you raise a number of points that ought to go with “rule of law”; I would guess most of these related to the latter issue, which officials have not applied priority to, e.g. “community before selt” is often used as reason

  17. 34 Lawrence Y 21 September 2013 at 12:46

    Tan Tai Wei

    It depends on what sort of “activism” you are referring to. If activism is about furthering legal education among the general public or to start a general discourse over points of law for instance, then yes, I am all for it.

    But if it is about a few judges asserting their subjective, unitary will over matters that influence broad societal values, then they are over-stepping their function and I reiterate my great discomfort with that. The legal service should remain as it is – a service to the government and not subsume itself to become the government.

    Where substantive lacuna are found, it is the legislature’s duty to address them, whose efficacy is subsequently checked by the electorate.

    Can you please elaborate more about the system that you have in mind?

  18. 35 George 21 September 2013 at 15:52

    None of you have made any mention of the independence of the judiciary from the executive tenure-wise. The PM/cabinet has virtually complete power over which judge stays and who would have to go. The PM/govt has absolute power over who to appoint as judges The judge who granted Ravi’s client leave to further her challenge over whether the PM had unfettered powers to decide on whether and when to call a BE, left the service abruptly just before the case came on before the HCA. Hardly coincidental. In fact, the news came just a day before his departure on a Saturday from the service.

    As is also the case with the Election Dept, the PMO has vested itself with absolute power over institutions/organs whose independence from the executive is extremely crucial in order to carrying out their duties in an impartial manner.

    In a nutshell, its a bread and butter issue not many can resist the temptation to take the path of least resistance. Recent noteworthy of someone who did resist is Walter Woon, ex-NMP, and former ambassador to Germany. His tenure as the AG was short lived.

    • 36 Tan Tai Wei 22 September 2013 at 02:13

      Very interesting, George. True or not, the two incidents you relate are the sort of suspicion which a truly independent judiciary would allay, and therefore a government that really cares for the respectability of the judiciary should give it the independence. But would such independence be really effective in the “tightly knit society” LKY has succeeded to weave? Would those appointed to exert the independence, even if really left to be independent, be psychogically prepared to practice independence after the years of training and conditioning in subservience? Reminds me of an independent school principal who took pride in independently inviting MOE’s school appraisal team to appraise his school! I wondered then if persons approved to head independent and MOE’s autonomous schools had only been those they trusted to independently toe the line. And, more fundamentally, would real independence rather than mere “structural” independence be given? Notice that, although our tertiary institutions, say, are “Stats Boards” independent of government and the Civil Service, Civil Service personnel invariably sit on their governing boards with sufficient powers to be in charge.

      • 37 yawningbread 22 September 2013 at 09:51

        Very good point: We can speak of “independence”, but what if too many of us have been moulded to be sheep anyway?

        I’ve long held the belief that the best thing we can do for judicial independence is to change the constitution to allow one-third of Supreme Court judges to be foreigners. If we can make the argument that we should source the best minds from around the world to be professors, or to manage Temasek Holdings, then why not get the best minds from around the world to instil (a) rigour and (b) credibility to our judiciary?

      • 38 George 22 September 2013 at 17:01

        So are you saying that this is the ultimate fate for Singaporeans and Singapore? No going back? No ‘mental’ revolution or otherwise, possible? Is the ‘structure’ made cannot be pulled down and would last a thousand years? The fact that we are all collectively still plugging away at it says otherwise, isn’t it? A ‘brick’ at a time can send the pyramid crumbling.

      • 39 andyxianwong 24 September 2013 at 21:33

        RE foreign judges. What do you make of the idea to bring back appeals to the privy council? Would that not achieve a lot of what you have in mind? As I remember, appeals to the privy council were abandoned after JBJ had a conviction overturned there, and it was at the same time that Teo Soh Lung was awaiting her appeal – the outcome of which could have allowed her to take her ISA detainment case to the Privy Council as well.

        Having the Privy Council was something LKY spoke in favour of in the early years, because it could be seen as being beyond the control of any adverse influences in Singapore, however once it went against him he did a u-turn. Particularly cynically, if I remember correctly, was that appeals to the Privy Council were not (may be still have not been??) completely removed. If both parties agree, a case can still go to the Privy Council in London – apparently this option was kept open to maintain confidence in the Singapore legal system for foreign businesses and investors. Pretty sure I read all of this in “Beyond the blue gate” by Teo Soh Lung.

    • 40 The 22 September 2013 at 11:11

      Tenure of CJs in Singapore:
      Wee Chong Jin – Jan 1963 – Sep 1990 – 27.5 years
      Yong Pung How – Sep 1990 – Apr 2006 – 15.5 years
      Chan Sek Keong – Apr 2006 – Nov 2012 – 6.5 years

      Does that mean the paths of least resistance were smoother in the earlier years?

      • 41 Tan Tai Wei 22 September 2013 at 15:21

        “Foreign judges”, Alex? But don’t you remember then President Idi Amin gloating as he was being carried by whites in his sedan chair? Goh Keng Swee was recorded to say, when Education Minister commenting on staff shortage in then Institute of Education, that “second rate foreigners would be better than locals”. To be sure, I have had personal experience of one from UK who would say or do anything, and did say and do lots, if only to renew tenure. I suspected he wouldn’t have met the stringent requirements for a similar posting in UK, else he wouldn’t have come.

      • 42 George 22 September 2013 at 16:49

        My take is that the ‘path’ depends on the evolution of the head politician in charge. LKY evolved as he sees fit based on his politics and perception of what he believed HIS Singapore required to continue succeeding, principally, economically. It was and perhaps still is a case of economics subsuming/overriding everything else.

        IMO, Yong came in to sort out a particular ‘backlog’ problem. He is a ‘pal’ of LKY who characteristically and habitually trust only people he knows very well.

        IMO, Chan was an opportunist of sort. He eventually got what he wanted (CJ) and being ever fully conscious of the ‘persistent’ odium from a decision he made as AG (no need to repeat what, as we all know) which he cannot properly lay to rest he has to be satisfied with a relatively short term. In some ways he may have ‘branded’ himself for life as who could forget that infamous act of his as the AG?!

        And it would appear to me that the govt has generally decided on a top SAF scholars’ ‘pattern’ of appointments for senior leadership esp. in the civil service – they get rotated regularly over a relatively short shelf-life. Look around, what top posts has not be rotated on a roughly regular basis? Length of tenure may vary. There may have been pragmatic reasons, but the pattern is quite unmistakable.

  19. 43 KAM 22 September 2013 at 05:06

    Thank you Alex. A well written informative article for us non-legal trained idiots. Sadly we are the majority and the many lawyers in Singapore are also bounded by their “professions” to not rock the boat.
    Who wants to rock the boat?

    The son of the father will continue the secret silent tyranny even if he smiles spastically.
    Sad but we are mere peasants in BMWs and Mercedes.

  20. 44 ;Annonymous 22 September 2013 at 14:00

    Alex, on your point of having foreign judges to instill rigour and bring credibility to our judiciary, you need look no further than the Hongkong experience. With the handover of HK to China in 1997, there were genuine fears that the judiciary will not be independent or be credible internationally and the government was bold enough to provide for a Court of Final Appeal, which still exists, and for at least 2 internationally respected common law judges to sit on it. Lord Hoffman was one of those together with Lord Cooke of NZ. However, that is still insufficient, in my opinion, for the purpose if the majority of the judges are appointed by the PM at his complete discretion. The Wee Chong Jin Constitutional Commission recommended that High Court Judges be appointed on the recommendation of a Council of Judges but, as expected, LKY pooh-poohed the idea. He even removed the provision in the Constitution which required him to consult the Chief Justice before appointing a soccessor. Ditto, for the appointment of the A-G.The next important issue you should examine is the appointment process which is opaque. If you follow this issue in the UK you wiil be surprised to know that the incoming Lord Chief Justice Sir John Thomas was selected by the Judicial Appointments Committee and aspirants have to apply for the post which is advertised. They were also asked to write a 2,000 word essay on subject given to them and make a short impromptu presentation on a subject of which they were not given any advance notice. The Commisssion had to give detailed reasons for its conclusions to the Lord Chancellor. How do we compare?

  21. 46 Jim 22 September 2013 at 16:30

    I basically spit on this Chan since his “something that is inside is actually not inside” rubbish.

  22. 47 George 22 September 2013 at 17:04

    Seriously, Alex I don’t think the PAP govt is interested at all in getting any outside help in the realm of local politics!

    • 48 yawningbread 22 September 2013 at 23:46

      Are you saying the judiciary is part of politics?

      • 49 patriot 23 September 2013 at 13:11

        Law by nature is highly technical and precise. However, as Law is for purpose of JUSTICE, fairness, morality, ethics, reasonableness and conscience must overide all other intents such as using unreasonable and even illogical interpretations to conclude a case in dispute.

        Inside a polling station was ruled out as NOT within a specified distance and a single person can be defined as an illegal assembly. As a lay person subjects to the Rule of(by) Laws, how is one able to abide by Laws beyond understanding due to their flexible and fluid interpretations of the Judges?
        The Chinese Saying ‘ 公道自在人心’ meaning justice is born to all, in my opinion applies to All. That is; for justice to prevail in Laws, the Laws must be rightly and correctly interpreted first and foremost to uphold justice.

        Me commenting as a lowly educated lay person

        patriot

      • 50 George 23 September 2013 at 23:56

        Part and parcel of PAP politics of absolute control. Imagine for a moment the outcomes of the many defamation/politically motivated suites. There would be no certainty for the govt if judges may dispense justice as they see fit – to put this mildly. Why do you think most applications for Q.C. representations have been turned down in such suites?

  23. 51 ;Annonymous 23 September 2013 at 10:57

    George, you are wrong. Up to a point they will not want foreign help. In the 80s there were no suitable candidates for the High Court, so said LKY. David Marshall recommended his friend George Newman,Q.C. from the UK. LKY accepted his suggestion and Newman was offeredf the post. However, at the last moment Newman declined to come because of a serious family illness.

    • 52 George 24 September 2013 at 00:09

      Hard to discuss something that didn’t happen! But, I suspect such an appointment would only be short term, time for LKY to find a suitable candidate. You would note too that we have judicial commissioners appointed who may or may not be confirm for HC judgeship. It’s like a trying out process, a probationary appointment, no?

      • 53 yawningbread 24 September 2013 at 02:11

        Judicial Commissioners! The PAP argues that it is important to have a probationary process. The trouble with a “probationary process” is that some judgement has to be made as to whether they pass or fail the probation. This creates the terrible hazard that the pass/fail decision is non-transparently political.

        Related to this, and as many others have pointed out, the uncertainty of tenure can colour decisions that these judges make.

      • 54 ;Annonymous 24 September 2013 at 08:45

        Supposed to be a trying out process is a more accurate description. Maybe you can explain why at least 2 JCs close to the retirement age of 65 were appointed. And persons who had never spent a day in Court as an advocate have also been appointed. As I said before the appointment process is important. In the UK all posts are advertised and an independent Judicial Appointments Commission makes the decision. Here it is at the absolute discretion of the PM. We do not even need the tortuous US process of confirmation by the Senate,

  24. 55 flyingbobo 23 September 2013 at 18:30

    I fail to understand ur contentions, Alex. I believe that there are many inaccuracies but ill just point out 2 and as i go through them i make observations as to the heretical position u are advocating:

    1) statues passed by parliament is law, just like judicial pronouncements are law. I’m not sure where u got the idea that statutory law is not law. to the extent u mean judicial pronouncements takes precedent over statutory law when stat law is unclear, then u are right, but that is the courts merely giving effect to the stat law, not giving a contrary pronouncement. should a contrary judicial precedent interpret the law contrary to what parliament intended, parliament can through promulgating a clearly worded statue correct the state of law contrary to judicial precedent. So in effect, a court cannot make contrary law in the face of clear statutory language.

    2) courts can strike down legislation on the basis of inherent fairness and are the final determinant of law. not sure where u got this ambiguous and expansionistic doctrine from, but clearly unfounded. judicial review in singapore are illegality (or ultra vires), procedural unfairness and irrationality (wednesbury unreasonable standard) these are very precisely defined grounds. and rightly so.

    There is the competing political imperative/morality alex fails to consider, and the more astute of his observers point out. Singapore is a democracy that subscribes to constitutional supremecy, this means the constitution not the courts not parliament is supreme (another inaccuracy Alex perpetuates). This means while the courts can strike down legislation contrary to constitutional propositions (Chng Suan Tze), it is equally available for parliament to provide otherwise (to state explicitly a promulgation should not be subject to article 8 and then amend the constitution to recognize this). This is rightly so if parliament has strong democratic mandate, it should be able to exclude policies from judicial review, this is to preserve the political imperative that if a sufficient majority in a country believes that although a policy that has the potential to intrude on their rights (say the drug trafficking law that reverses the presumption of innocence such that there is a presumption of trafficking), it should nevertheless be promulgated, it should be promulgated. This is the system that we and many other nations in the world adopted. Our parliament has always acted within limits of this system, there is a rule of law. Alex’s observations are, to say the least, off the mark.

    The alternative Alex is suggesting is not reality (as he concedes) and, in any event, should not be reality. Permitting courts to strike down laws because it doesn’t conform to some abstract notion of “justice” permits unelected individuals and litigious individuals from frustrating the will of the people. Singaporeans should be extremely concerned of the alternative Alex is proposing.

    • 56 yawningbread 23 September 2013 at 22:29

      Basically the difference between us is that where you see a glass as half full, I see it as half empty. I don’t disagree with the details you are saying, but you seem to assume that interpretation of statutes and constitutional provisions can at most be minor, and so the bills as passed by the legislature are law.

      Well, I suspect you subscribe to the school of thought that says judges should not go more than an inch from the text and interpret as conservatively as possible. In that case, indeed, statutes face no risk of significant reinterpretation. But this is exactly the criticism levelled at Singapore’s legal system: We have a thin rule of law. It is considered an inferior state of affairs.

      I am arguing that a whole new universe out there exists that is perfectly in tune with the common law tradition: A thick rule of law, with judges more concerned about substantive fairness than shivering in fear of politicians.

      Just one example: Take the way India’s Section 377 was read down by the High Court. That’s how India today got rid of their anti-gay law. The High Court re-interpreted the relevant clause in India’s constitution, and in the light of that reinterpretation, found Section 377 to be in violation of it and said: Nope, 377 has to be read down. India inherited the same legal system tradition as Singapore.

      • 57 flyingbobo 23 September 2013 at 23:39

        Alex, thanks for your reply. I dont see y im assuming the scope of interpretation of statues to be minor. even if a statue has several possible meanings, 1) it still law because it constrains the courts interpretation, the courts cant pronounce something outside the penumbra of meaning, 2) parliament can subsequently pass a law that closes off all other possible interpretation. Therefore, statutory law is not just law it actually can, in effect, take precedence over common law.

        Prof Thio Li ann also makes a similar argument advocating for a thick version of the rule of law. To the extent this means greater judicial review/activism, i think it should be shunned.

        A clarification is in order: I dont believe in strict conservative construction, i believe in a purposive interpretation of statues (as in I normatively support it as opposed to believe in the applicability of purposive interpretation, which is beyond doubt is the law in Singapore – S9A interpretation act.). but i do believe in a strict construction of the constitution, ie originalism if u like. This is in line with my view of a limited role for judicial review.

        Judicial review as doctrine should remain available but it must be carefully circumscribed for 2 reasons:

        1) as i mentioned it would permit unelected judges to effectively impose their political views, moral values, to the exclusion of majoritarian views. judicial review is not always a force of good, it can well be regressive, see SCOTUS when FDR was president, the conservatives in a series of 5-4 decisions struck down minimum wages on the basis it inhibited the freedom of contract. Further, what is progressive for a certain group could well be regressive for another especially since much of law is a balance of competing rights. Also, if a law should be changed to reflect soceity’s evolving attitudes then the ballot box more closely mirrors such attitudes, citizens should not see the courts as a means of short circuiting the democratic process.

        In any event a judicial review doctrine based on substantive fairness would be infinitely worse than any of the other jurisdictions with robust judicial review doctrines (like the US and the ECtHR) these other jurisdictions base judicial review on the legislation/legislative action being contrary to codified rights.

        2) much of policies is emphatically about allocation of resources. Judges dont have committees, or the civil service to conduct studies as to what is the optimum allocation of resources, they are not equipped to make such decisions. And they dont have the mandate to make such decisions, various sectors of society has various concerns (Singles want HDB flats, couples with children want more educational subsidies), one of the sensible way is to base it on majoritarian views (or a least a system that approximates the majoritarian view) but it certainly should not be up to judges to strike down policies on the basis of substantive fairness (limiting HDB flat subsidies to those who have a family or singles above 30 is unequal treatment before the law).

        There are good reasons why judicial review should be kept within bounds, therefore i believe ur conclusion that the judiciary is shirking its responsibility in fear of the government is not warranted (if u do an empirical study of the judicial review cases in singapore for administrative actions, not legislative promulgation, you would realise that 22 out of the 79 cases so far the court finds against the public authority). I have also sought to prove why the current state of judicial review is not an inferior state of affairs but should be kept.

      • 58 yawningbread 24 September 2013 at 21:20

        You wrote: “2) parliament can subsequently pass a law that closes off all other possible interpretation.”

        You are using this line of argument to say that judges should never venture beyond what politicians want since there is always the risk that the latter will pass a new law even more tightly constraining than the last. Oh, what fatalism!

        But look carefully at how things play out in real life. Coming back to my example of the Indian Section 377, here was a situation where the legal position of homosexuality in India is very much judge-made law. The High Court sharply modified the meaning of Section 377 in a way that legalised homosexual sex between consenting adults. Now, you could say, the Indian Parliament could well have passed a new law that reversed the judgement, though that itself will not be the final word, since any new law too will be interpreted and reviewed by the courts. But in any event, New Delhi has not passed any new law, and so the law on homosexuality in India today is the law as laid down by the bench in 2009.

        Your point is judges shouldn’t even try to do right. My point is yes they should, you never know how much more justice and progress one can get.

      • 59 George 24 September 2013 at 15:21

        Absolutely agree with you.

    • 60 Tan Tai Wei 24 September 2013 at 01:10

      Many years ago, when legalizing abortion was in process, LKY told a university lecturer, who opposed it on moral grounds at a campus forum, “Take me on at the next elections”. His presumption was exactly “flyingbobo”‘s claim that should parliament decides on a law that infringes “human rights”, and therefore immoral, then that’s the rule of law. The fallacy of the presumption is this. Issues of morality cannot be a matter just for voting, and referendum or GE. The “mandate of the people” is for parliament to do the right, including, surely very fundamentally, the moral right. So, while votes may decide on alternatives which are arguably not immoral or economically non-viable, etc., contention on morality or economic viability (viability itself, and not which of alternatives are more or less viable), etc., can be settled only by reasoning and truth-seeking. Can you imagine some mad PM proposing for parliamentary approval the selling away your nation? Ditto, proposing immoral “laws”. So LKY should feel he had no choice but to face that lecturer’s challenge and argue for the moral viability of legal abortion, and not resort to “the people’s will”. But then, matters of truth, rationality and proof, involve us all, more so the professional experts, ie. the judiciary, on matters of legislation. On such matters, a responsible parliament should therefore execute means and mechanisms for effective consultation and due acknowledgement of views visavis agencies and bodies beyond parliament.

      • 61 George 24 September 2013 at 16:49

        flyingbobo, your:
        “Also, if a law should be changed to reflect society’s evolving attitudes then the ballot box more closely mirrors”

        My rejoinder being:
        What if the govt of the day has a stranglehold ‘by fair means of foul’ in parliament and we have ‘captive’ govt parliamentarians such as we have whom the people cannot rely on to speak on their behalves (I hope you are not going to attempt the rigamarole of blaming the electorate for the status quo for any neutral fair-minded person would admit that the current state of affair is mostly machinated/manipulated by the govt party – GRCs for example, and the still ongoing tactic/effort by the govt to mass-grant citizenship in the hope of populating the ground with ‘grateful’ new citizens/voters to offset dissenting voters.)

        In a very real sense, its makes a mockery of the parliamentary system as being practised here. I wonder if you sensed the irony/subtly of Nobel Laureate Aung San Suu Kyi’s in response to a question posed to her during her visit here, i.e., that Burma could certainly learn from Singapore but she was quite adamant about not recreating what we have here, in her own country!

        Perhaps, at core, IMO, the problem we are facing today is the ostensibly assumed FINALITY of the status quo of how we are being governed, that this is the best, that this is the state of the art and any changes, esp. thinking out of the box or mould, would be patently wrong and deviant. If so, Empires wouldn’t have fallen.

  25. 62 flyingbobo 23 September 2013 at 18:33

    sorry i meant part 4

  26. 63 patriot 24 September 2013 at 10:45

    The DUTY of the Court is to uphold, dispense and enforce justice. All other considerations are secondary to its’ FUNCTIONS.

    ENFORCEMENTS OF THE LAWS is the Function of the Home Affairs Authority.

    The Viability and Wellbeings of the Citizenry and the Country are the Duties of the Government and the People.

    Each of the Above-mentioned is to work(function) separately to achieve the best result to complement each others for a fair and wholesome society. The Judiciary should never be beholdened to Rulers nor should the Home Ministry be partial to Rulers.

    法律之前, 君与民同等 meaning everyone is equal under the Laws or no one is above the Laws. The Laws SHOULD NEVER WORK FOR THE ADVANTAGE OF ANY.

    patriot

  27. 64 Rajiv Chaudhry 24 September 2013 at 17:29

    This is one of the most enlightening articles I have read on Yawning Bread in the past few years. The basic concepts have been clearly and simply explained.

    I have no doubt flyingbobo is very learned in the law, yet I tend to go with YB’s interpretation of the state of the law in Singapore. It makes more sense.

    The trouble with common law is that it builds upon the powerful concept of precedence. With every passing judgement, Singapore is building its own body of precedents. It will take a tsunami to sweep these away when regime change finally comes to Singapore (ie when judges finally feel free to express themselves fully).

    If the US Supreme Court (or for that matter, the Indian Supreme Court) had been as supine as our courts here, neither country would have made progress against legislative inertia. In Singapore, our courts are on record in numerous instances as saying their judgements were based on their interpretations of “the intention of parliament”. In other words, our courts here clearly see themselves as subservient to parliament, rather than viewing themselves as one of the three pillars upon which every free society is ordered – the legislature, the executive and the judiciary. Sad but true.


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