It 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.
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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.
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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.