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.
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.