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.

* * * * *

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.

* * * * *

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.

6 Responses to “Seven misrules of law”


  1. 1 Alan Wong 22 March 2011 at 14:00

    We have an anti-smoking law which says employers and building owners can be prosecuted if they knowingly allow any of their employees or occupants to smoke in their premises without taking any remedial action. That’s probably why coffee shop operators and security guards are on the constant lookout for smokers in their premises. Smokers can also be issued summons if they are caught smoking in prohibited areas by NEA enforcement officers.

    Yet our PAP Govt allowed smoking in our 2 of our Gambling Dens in blatant violation of our own anti-smoking laws. Why are these workers not accorded their rightful protection as provided under our Work Health Safety Act ?

    Can our PAP Govt leaders & MPs be considered as accessories to murder for those affected workers who succumbed eventually to lung cancer as a result of working in smoking areas of our Gambling Dens ?

    Can we say that our laws are being twisted for the sake of a few extra months of bonuses for our PAP leaders ? And yet our Law Minister says we have the Rule of Law in Singapore ?

  2. 2 Rajiv Chaudhry 22 March 2011 at 17:07

    Another example of discretionary power under item 2 is clause 10 of the Newspaper and Printing Presses Act which makes it mandatory for newspaper companies to issue at least 1% of their total equity as “Management Shares”, each carrying 200 times the voting power of an ordinary share (the arithmetic is quite straightforward). Management shares can only be issued to citizens or corporations “approved by the Minister”. A newspaper company may not refuse to issue or transfer Management Shares to such approved parties “except for reasons to be given in writing acceptable to the Minister”. Talk about clarity of the law!

    BTW, as an aside, the Criminal Law (“Temporary” Provisions) Act was enacted inn 1955.It is renewed every five years. LKY is on record as saying the word “temporary” is the “expression of an ideal”.

  3. 3 patriot 23 March 2011 at 19:17

    “2. By and large we should be governed by law and not discretion”, unquote.

    Me thinks there is GREAT DIFFERENCE between ‘governed by law’ and rule of law.

    It is due to the fact that rulers are likely to make the laws to suit themselves. Rule by laws on the other hand means all, including the rulers, will have to comply and conform to the established laws.

    A layman’s view, do pardon should there be any misinterpretation.

    patriot

  4. 4 Rule of Law 24 March 2011 at 20:33

    “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

    Thomas Jefferson
    3rd President of USA

    Source: http://www.brainyquote.com/quotes/quotes/t/thomasjeff136362.html

    Other worthwhile quotes for your consideration;

    Love your country, but never trust its government.
    — Robert A. Heinlein.
    http://www.catb.org/~esr/fortunes/liberty.html

    ~ The welfare of the people in particular has always been the alibi of tyrants – Albert Camus

    ~ The limits of tyrants are prescribed by the endurance of those whom they oppose ~ Frederick Douglass

  5. 5 Eastender 16 May 2011 at 00:10

    I can only comment on the first point regarding 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.” Regulations, rules, orders and notifications (collectively known as subsidiary legislation) are publicly available but are not as easily attainable as Acts. These can’t be hidden or else lawyers cannot do their jobs. They are available online but for a fee, or for free at the various libraries (NUS and Supreme Court). So yes, while they are not as accessible as Acts (which are freely available online), they are not hidden.

  6. 6 Eastender 16 May 2011 at 00:30

    Sorry one more comment: “in Singapore, we have no master compendium, easily accessible to the general public, of court judgements.” There is the Singapore Law Reports which reports on all judgments of the Supreme Court (High Court and Court of Appeal) since 1965. These are publicly available again at NUS and Supreme Court libraries. As for online availability, you will need to pay a fee. For earlier judgments, these are available online for a fee.


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