By Dr Chee Soon Juan, 06 Jan 2009
Posted at yoursdp.org
Mr Chan Sek Keong, Chief Justice
Mr Walter Woon, Attorney-General
Mr K Shanmugam, Minister for Law
Your speeches during the opening of the legal year were unmistakable references to my colleagues and I. Yet, like Mr Lee Kuan Yew, you did not deign to mention us by name. This is rather impolite, if not altogether puerile.
Be that as it may, allow me to address the points that you raised.
Mr Chan says that “the mission of the courts requires that its authority be respected by all” and that this respect is “fundamental and critical to the rule of law.” Amen.
What you fail to state, however, is that the rule of law is not just a system where the government passes legislation and everyone unquestioningly obeys. The concept of the rule of law necessitates the limitation of state power and the respect of human rights.
Our Constitution spells out what these limitations are. It also defines the rights of the citizen.
Are citizens treated equally under the law?
Of importance are two fundamental articles. Let me start with Article 12 which says that “all persons are equal before the law and entitled to the equal protection of the law.”
Is everyone in Singapore treated equally under the law? The question is highlighted by two recent protests: One was conducted by the Consumer Association of Singapore (CASE) and the other by Tak Boleh Tahan activists. Both were conducted outside Parliament House, both involved displaying placards, both were commemorating the same occasion (Consumer Rights Day) and both involved persons wearing t-shirts bearing a slogan. The difference is that CASE is run by PAP MPs whereas the TBT protest was made up of human rights defenders.
While CASE was allowed to conduct its activity, my TBT associates and I were arrested and now face prosecution.
It could be that CASE, being affiliated with the Government, does not require a permit because under the Rule 2(1) (f) of the Miscellaneous Offences Act “any assembly or procession held by or under the direction or control of the Government” is exempt from a permit.
But herein lies the rub. Is such a Rule valid under Article 12 of the Constitution which expressly says that all persons are equal before the law?
Or it could be that CASE may have had a permit to conduct its protest, in which instance arises the question: Why was a permit granted to CASE but not to TBT?
Can the Government ban protests outright?
The discrmination between CASE and TBT is especially salient when the Minister for Home Affairs Wong Kan Seng said in Parliament that he has “stopped short of allowing outdoor and street demonstrations.”
With reference to Article 14 – which states that “every citizen of Singapore has the right to freedom of speech and expression” and that “all citizens of Singapore have the right to assemble peaceably and without arms” – does the Minister have the power to ban outdoor demonstrations in the first place and even if he does, why did he not apply the law equally to CASE?
Remember Article 4 unambiguously states that: “This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
These questions need to be examined by the Judiciary which has a sacred duty to ensure that, one, laws introduced by the Government do not violate the Constitution and, two, that they are not used to discriminate against certain groups of citizens.
Laws cannot be passed or applied will-nilly to buttress the power of the ruling party while suppressing the political opposition and civil society. When the ruling party imposes and enacts such unjust laws, the judiciary must intervene to protect the rights of the citizenry.
This is, in essence, what constitutes the rule of law. Absent such a judicial function, the rule of law is just a buzz phrase used to prop up a facade.
What other chief justices say
Your counterparts in democratic jurisdictions where the rule of law is genuinely practiced all acknowledge this aspect of the judiciary’s role vis-a-vis the rule of law.
The former Chief Justice of India, Mr P N Bhagwatie, noted that “The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution…It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power.”
Former UK Lord Chief Justice Bingham said: “The rule of law must, surely, require legal protection of such human rights as, within that society, are seen as fundamental. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.”
UK Lord Chancellor Irvine in the House of Lords determined that “Any system of law under which the individual was convicted and made subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent with the rule of law…If subordinate legislation is ultra vires on any basis, it is unlawful and of no effect in law.”
Canada’s Chief Justice, Madam Beverly McLachlin, wrote that “Judges must resist…making ‘law’ out of what cannot be just, and hence, in a profound sense, cannot be legal. To do otherwise is to allow injustice to hide itself under the cloak of false legality.”
Sadly, I am reminded of your opinion as Attorney-General, as you then were, in the aftermath of the elections in 1997. PAP ministers, including the prime minister, had entered polling stations without authorisation. You explained, with excruciating logic, that under the Parliamentary Elections Act “unauthorised entry into or presence within a polling station” is not an offence.
Worse, you concluded that “those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act.”
And yet the Act clearly states the presiding officer shall “exclude all other persons except the candidates, the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station.” The ministers who entered the polling stations did not fall into any of these categories.
Fulfilling international obligations
The United Nations’ Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of peaceful assembly and association” and that “Everyone has the right to freedom of opinion and expression”.
Save for the most autocratic of regimes, these rights are recognized by every government in the world and have given rise to legally binding obligations. The UDHR is now part of customary international law, binding on all states and guaranteed to all persons.
Furthermore Singapore voted in favor of General Assembly Resolution 28/251 in 2006. This resolution was made to establish the UN Human Rights Council which stipulates “that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing”.
In 2003, Singapore also signed the Commonwealth (Latimer House) Principles on the Three Branches of Government which pledged to protect the “fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief“. (empahsis mine)
Why do I mention these international agreements? Chief Justice Bingham said that the “rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations.”
Extra-legal or extra-constitutional?
My arguments above also apply to the comments made by AG Walter Woon. Mr Woon says that my colleagues and I have conducted a “campaign to force a change in our laws by extra-legal means.”
Obviously, you are confused. Our campaign is to compel the ruling clique to return to the rule of law. If there is anything “extra” about what is going on in Singapore it is that the PAP has been ruling the country through extra-constitutional means.
Since the Constitution is the supreme law of this country, your description of changing laws by extra-legal means is better applied to the PAP instead of the SDP.
You also said: “The essence of the rule of law is that the law applies to all.” For the reasons I enumerated above, I cannot agree with you more. The trick is for you to conscientiously practice what you so eloquently preach.
Fooling the people
Mr K Shanmugam noted that my associates and I did not like certain laws and the way we showed it was “to go out there and protest.” Your statement, ironically, contradicts what CJ Chan and AG Woon try so hard to portray.
In case you haven’t realised, protests to affect the introduction, passage, and enactment of legislation is a right enjoyed by citizens in Japan, Taiwan, Hong Kong, South Korea, Australia, US, Europe, etc; in other words, in societies where the rule of law exists. The right to citizens to conduct peaceful protests is exactly what the rule of law permits and what democracy encourages.
But protest is not only used to affect the state’s decision-making process. It also allows the people to participate in the political process and helps bind them to society. Given the exodus of Singaporeans, is this such a bad thing?
Your argument that “the way to change the law was to get elected politically and argue in Parliament why the law should be changed” is, to put it delicately, disingenuous. Wasn’t it Prime Minister Lee Hsien Loong, who, in a rare moment of candour, avowed that he intends to buy his support and fix the opposition? Mr Lee Kuan Yew even goes to the extent to say that the army will be called in in the event of a “freak” election where the opposition wins power.
Other of your party bosses have unabashedly insisted that Singapore will remain a one-party system. Does all this sound like a situation where one can get democratically elected, let alone do it in enough numbers to change laws? In the words of Abraham Lincoln: you can fool some people some of the time…
Rule of law cannot be merely proclaimed
What the three of you have described is not the rule of law. Rather, it is a system where laws – unjust laws, laws that run contrary to our Constitution, and laws that contravene the Universal Declaration of Human Rights – are used to suppress the rule of law in Singapore.
You are probably aware that the International Bar Association, an organisation whose conference the Government and Law Society welcomed and keenly participated in, said in its report that “A strong and robust rule of law requires respect for and protection of democracy, human rights – including freedom of expression and freedom of assembly” but that the “Singapore Government is currently failing to meet established international standards in these areas.”
The truth is that the rule of law must be practised, not merely proclaimed. Saying that we have the rule of law in Singapore does not make it so. If and when the rule of law is entrenched in this country, I assure you that respect will flow not just from the mouths but also from the hearts of the people.
Chee Soon Juan
Singapore Democratic Party