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12 January 2007
Mr Chao Hick Tin
Republic of Singapore
By Fax: 6332-5984/6332-5278
Your address at the opening of the 2007 Legal Year would be sterling if not for the ghastly lack of understanding of the rule of law that you so amply demonstrated.
Before I take issue with it, however, I would like to say that your reference to those people who “flout the law” is an obvious reference to my colleagues and I in our campaign of Nonviolent Action and civil disobedience. But while you speak about us, you have shown neither the courtesy nor the courage to refer to us by name.
Be that as it may, I will address your point that flouting the law “is to undermine the very basis of the rule of law.” The basis of the rule of law must perforce include three elements: One, the legal order regulates the power of the government; two, it ensures equality before the law; and three, there must be formal and substantive justice.
I will in turn address these three elements vis-à-vis the system that presently exists in our country.
Limiting the power of the government
For there to be the rule of law, a government must itself submit to the rule of law. In other words, it accepts that its powers are curtailed under a prescibed and pre-determined set of laws, as say in a Constitution. Even the presidency of the United States, the most powerful political office in the world, has its powers checked by other branches of government as well as the public.
Mr Lee Kuan Yew, however, rejects this notion. When former prime minister Mr Goh Chok Tong introduced the bill for the elected presidency, he said: “In introducing this Bill, the Government is in fact clipping its own wings. Once the Constitutional amendment is effected, this Government will have some of its powers checked.” Mr Lee Kuan Yew overruled: “No, if you’ve to clip your wings, then you are in trouble, you cannot govern…I cannot remember what he [Goh] said but I would not have used that phrase because the executive powers of the Government should not be clipped.”
Mr Lee also said that “we haven’t found it necessary yet [to change the one-man-one-vote system]. If it became necessary we should do it.” He even went to the extent to say that in the event of a “freak” election and without an elected president, “the army would have to come in and stop it.”
More recently, Prime Minister Lee Hsien Loong admitted that if there were more opposition MPs, he would have to think of “what’s the right way to fix them, to buy my supporters’ votes…”
Does all this look and sound like a system where the PAP Government has its powers regulated under a legal order?
Equality under the law
The rule of law also stipulates that the Government and its leaders are not above the law. Every individual, regardless of position in society, is subjected to the same laws.
Is this the case in Singapore?
In 1997 when PAP ministers entered polling stations during the elections without authorization, the former Attorney-General and now Chief Justice, Mr Chan Sek Keong, ruled that the ministers had not committed any offence and, therefore, refused to take legal action.
Seeing this, Internet activist, Mr Robert Ho, then called on Singaporeans to walk into polling stations whether they were authorized or not. He was duly investigated for “incitement to violence.” If it is not illegal for unauthorized persons to enter polling stations during elections, as the Attorney-General insists, how does that make Mr Robert Ho’s statement an offence? Isn’t this a case of unequal application of the law?
Another instance is the Films Act. While political films about the Government and PAP are made and broadcast, filmmakers who make videos about opposition figures are threatened and investigated, Mr Martyn See being a prime example.
And while public protests are allowed for pro-establishment bodies (the NTUC was given clearance to stage a march numbering in the hundreds against the US outside the America embassy in 1988), similar activities by civil society groups and opposition parties are banned. A silent protest of four people in August 2005 was prohibited even though the Constitution clearly provides for it. I don’t have to tell you that under a system where there is the rule of law, the Constitution reigns supreme.
Formal and substantive justice
The third element in the rule of law is that citizens must be accorded due process if they are accused of wrongdoing. Yet, scores of Singaporeans have been detained without trial under the Internal Security Act, the majority of whom were political opponents of the PAP. Many of these detainees were tortured and abused whilst in the ISD’s custody.
The most famous prisoner is Mr Francis Seow. He was your colleague in the legal service as the former solicitor-general. He wrote what ISD officers told him during his 72-day incarceration:
“So you think you can take on and bully the second generation leaders? Well, our job here is to make sure you do not succeed. We are here to neutralize you. For your information Lee Kuan Yew is running for another term. So where will you be? You can give up all your ideas of going into politics.”
Would such disregard for justice, both formal and substantive, be allowed to occur in a state that abides by the rule of law?
Rule “of” law or rule “by” law
You are obviously confused between the concepts of the rule “of” law and the rule “by” law. What you described in your speech is not the rule “of” law but really the latter. The rule “by” law refers to the use of laws by a person or group of persons to regulate society and maintain political power.
The rule “of” law, as I have outlined in the preceding paragraphs, is an indispensable tool and the very basis of democracy. In contrast, the rule “by” law is a dictatorship’s best friend. Singapore, it is widely recognized, is not a democracy and, hence, not a practitioner of the rule of law. As such, it would be disingenuous to accuse my colleagues and I for not adhering to the rule of law. In fact, the rule “of” law is exactly what we are trying to establish.
The laws that you accuse us of “flouting” such as the ones that prohibit the freedoms of speech and peaceful assembly are unjust ones used to oppress citizens of this country. By defying these laws through civil disobedience, we highlight them and appeal to the public to pressure the government to repeal or amend them.
Allow me to quote Martin Luther King, Jr who is universally honoured for his championing of civil rights and the rule of law in America:
“An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”
It is unfortunate that you as the Attorney-General and a former judge – and for that matter one who has functioned at the highest level of Singapore’s judiciary in the Appellate Court – should possess such an immature understanding of what constitutes the rule of law.
Public institutions cannot be criticised by the public?
In addition, you state that what we do is often encouraged “by foreigners in the name of human rights.” This is not a legal (or even rational) statement but a political one that the PAP is fond of using whenever it has little else to say. What does the view of foreigners have anything to do with the debate of whether the Singapore Government respects the rule of law and human rights in Singapore?
You mention “foreigners” in the same breath as “human rights” as if to say that human rights are alien to Singaporeans and therefore should be rejected. Do you even realize how contradictory you are by decrying human rights on the one hand while attempting to uphold the concept of the rule of law on the other?
Another point on your swipe at “foreigners”: If we in Singapore don’t care what others think of us in so far as the rule of law, human rights and democracy are concerned, how are we going to participate and compete in an increasingly globalised world dominated by democratic societies?
You are also worried that our criticisms will bring Singapore’s “key public institutions into disrepute.” In the first place, one would think that the role of the Attorney-General would be to ensure the effective administration of justice in Singapore, not the defence of public institutions which is the domain of the PAP Government. Worryingly, such a view is increasingly spouted in our legal system as High Court Judge V K Rajah also noted that citizens cannot “spuriously cast doubt” on “public institutions.”
Secondly, are our public institutions so fragile that they cannot withstand criticisms from the public whom they supposedly serve?
Third, if they are “public” institutions (I have in mind here organizations like the GIC, HDB, CPF, etc.) why are their operations, especially the financial aspects, not made public?
It is interesting that you have called on your fellow court officers to “rise” to counter what my colleagues and I are saying and doing. If what I have described in this missive to you is as unfounded as you suggest, then there is hardly any need for such a dramatic, might I say even nervous, response. I am sure your colleagues in the legal service are able to think and decide for themselves if indeed there is the rule of law in Singapore.
The rule of law is not a title we adorn on ourselves. It is a way of political life, something that we practice instead of merely announce in opening addresses. In this regard, whether the rule of law is present or not in Singapore will be seen and felt by Singaporeans as well as others looking in at us. No matter how shrill you scream from your pedestal, you will not change the fact that the system that we presently have makes a mockery of the rule of law.
Chee Soon Juan
Singapore Democratic Party
c.c. The Law Society of Singapore (via Fax: 6533-5700)