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Competing Conceptions of the Rule of Law in Singapore

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Competing Conceptions of the Rule of Law in Singapore ARTICLES LEX REX OR REX LEX? COMPETING CONCEPTIONS OF THE RULE OF LAW IN SINGAPORE Li-ann Thio* If the government had failed to establish the basics for politi- cal stability and social cohesion, the Rule of Law would have become an empty slogan in a broken-backed Singapore. But we have succeeded, and the Rule of Law today in Singapore is no clich6. -Prime Minister Lee Kuan Yew, 19901 Despite the trappings, the Rule of Law in Singapore today has given way to empty legalism. -International Human Rights Committee of the New York City Bar Association, 19912 I. INTRODUCTION A. THE RULE OF LAW AS CERTAINTY AND/OR JUSTICE: BETWEEN FORM AND SUBSTANCE While the Rule of Law is not formally enshrined in the Sin- gapore constitution's text, it has through practice entered Singa- pore's constitutional and political lexicon. In opposing political absolutism, it avers that no man is above the law and the law's supremacy (lex rex) in contradistinction to the rule of man (rex * BA (Oxon)(Hons); LL.M (Harv); Ph.D. (Cantab); Barrister (GI), Associate Professor, Faculty of Law, National University of Singapore. An earlier version of this paper was presented at a conference on Rule of Law in Asia: Competing Con- ception, 20-21 June 2002, Hong Kong University. 1. Prime Minister Lee Kuan Yew, Speech at the Opening of the Singapore Law Academy (Aug. 31, 1990), in 2 S Ac LJ 155, 156 (1990). 2. Beatrice S. Frank et al., The Decline of the Rule of Law in Malaysia and Singapore Part H - Singapore, A Report of the Committee on InternationalHuman Rights of the Association of the Bar of the City of New York, 46 THE RECORD 7, 17 (1991) [hereinafter, NEW YORK BAR RECORD]. PACIFIC BASIN LAW JOURNAL [Vol. 20:1 lex).3 It has been the subject of Singapore parliamentary de- bates, ministerial statements, media discussions and judicial pronouncements. However, the ambiguity dogging this powerful legitimating idea, a "notoriously contested concept ' 4 in other jurisdictions, is also evident in Singapore. The contest is essentially polarised be- tween formal ("thin") and substantive ("thick") conceptions of the Rule of Law.5 The former considers the Rule of Law as au- tonomous from theories of justice or political morality, drawn from virtues inherent in the concept of "law" itself.6 Rules are 7 assessed through "content-independent" evaluative criteria, (clarity, generality, accessibility, prospectivity, certainty). Thus, jurisprudential bias towards the idea of "law" itself determines 8 how the term is deployed as a plumb-line of good government. A 'substantive" or dynamic conception engages substantive justice theories,9 which precipitates controversy. In speaking qualitatively to a state's economic system, political ideology or human rights practice,10 this broader conception may encompass 3. Samuel Rutherford authored LEX REX: or The Law and the Prince in 1664, (1982 ed.) which England and Scotland banned upon publication. It advocated law- ful resistance against tyranny, based on the premise that the Law, identified as di- vine law, was supreme. A monarch or government could be legitimately disobeyed if it disregarded the Law. This concept flows from the idea of a higher law antecedent to and binding upon the contemporary government which made law. Similarly, Sir Edward Coke opposed James I's belief that a king ruled by divine right and estab- lished prerogative courts to implement his will. He asserted that judges must follow the common law, asserting that "Quad Rex non debet esse sub homine sed sub Deo et Lege" (The King should not be under man, but under God and the Law). See ProhibitionsDel Roy, 77 Eng. Rep. at 1343. In Dr. Bonham's Case (1609) 8 Co. Rep. 107 at 118a, Sir Coke affirmed that the "common law will control acts of Parlia- ment" and adjudge them as void where acts are "against common right or reason or repugnant or impossible to be performed." This reflects the distinction between law as reason and as power in western legal thought. 4. Martin Krygier, Marxism and the Rule of Law: Reflections after the Collapse of Communism, 15 LAw & Soc. INQUIRY 633, 633-63 (1990). 5. Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An An- alytical Framework, PUBLIC LAw 467-87 (1997). 6. what Lon Fuller, who identified eight features that ground a legal system, -termed the "inner morality of law" which gave "law" its distinctive features. H.L.A. HART, THE CONCER OF LAW 202 (Oxford University Press 1961). (1961). 7. John Gardner, Legal Positivism: 5 1hMyths, 46 AM. J. JURIS. 199, 207 (2001). 8. Legal positivists like Joseph Raz prefer a "thin" conception of the Rule of Law to preserve the idea's coherence and determinacy. To Raz, the Rule of Law's virtue is essentially negative, designed to prevent the arbitrary exercise of power, protecting liberty and human dignity against unclear, unstable and retrospective laws. See Joseph Raz, The Rule of Law and its Virtue, 93 L.Q.R. 195, 195-211 (1977). 9. Thus, there arises the problem of subjectivity inherent in the appropriation of the "Rule of Law" by any political ideology of choice. 10. See, for example, the definition adopted by the International Commission of Jurists in 1959 at a Conference in Delhi of the Rule of Law as a dynamic concept which should not only "advance the civil and political rights of the individual in a free society, but also... establish social, economic, educational and cultural condi- 2002] LEX REX OR REX LEX? a wide range of political virtues, blurring the law/politics dichotomy."' The mere legalism engendered by the formal, order-based version is considered deficient as it could mean that authoritarian regimes promulgating unjust laws through correct legal proce- dures could be considered to act consistently with the Rule of Law.12 The law's content could not be evaluated by any higher order norms or13 natural law principle committed to an ethical or "rights-based" conception of law. The dilemma is captured thus: "while the Rule of Law is more than the rule of the law, it 14 must be less than the rule of good law."' Furthermore, what the Rule of Law entails is obfuscated by the concept's close associations with the politically charged con- cepts of constitutionalism, 15 human rights,16 and democracy. 17 A tions under which his legitimate aspirations and dignity may be realised." INTERNA- TIONAL COMMISSION OF JURISTS, THE RULE OF LAW AND HUMAN RIGHTS: PRINCIPLES AND DEFINITIONS 66 (International Commission of Jurists 1966). 11. Critical Legal Scholars would deride the fiction of law's autonomy from politics, as law is a tool to legitimate existing power structures and inequities. Law cannot be divorced from its underlying political philosophy. See, e.g., ROBERTO UN- GER, LAW IN MODERN SOCIETY 176-81, 192-223 (Free Press ed., 1976); Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 Yale L.J. 561 (1977) (reviewing EP THOMPSON, WHIGS AND HUNTERS: THE ORIGINS OF THE BLACK ACT (1975) Duncan Kennedy, Legal Formality 2 J. LEGAL STUD. 351-98 (1973). This reinforces RJ Rushdoony's observation that "Every system of thought is at heart religious and begins with a religious, ultimate principle which is the source of power and authority": LAW AND SOCIETY: VOLUME II OF THE INSTITUTES OF BIBLICAL LAW 519 (1986). 12. Kazimierz Opalek, The Rule of Law and Natural Law in SELECTED PAPERS IN LEGAL PHILOSOPHY 95 (J.Wolenski ed., 2000) (where he discusses the dilemma of two possible faulty solutions in the naturalist and positivist approach, as "the only way of escaping formalism leads to natural law"). 13. Dworkin has suggested a substantive "rights-based" conception (as opposed to a "rule-book" conception) of law, which assumes that citizens are subject to judi- cially enforceable political and moral laws. Hence, in the absence of clear laws, judges are to make political judgements by referencing a community's political and legal culture rather than making historical enquiries into the law-makers" original intentions: RONALD DWORKIN, A MATTER OF PRINCIPLE 2 (Harvard University Press 1985). 14. Jeffrey Goldsworthy, Legislative Sovereignty and the Rule of Law in SCEPTI- CAL ESSAYS IN HUMAN RIGHTS 61, 65 (T. Campbell et al. eds., 2001). 15. See generally CL Ten, Constitutionalism and the Rule of Law, in A COMPAN- ION TO CONTEMPORARY POLITICAL PHILOSOPHY 394, 394-403 (Robert E. Goodin & Philip Petit eds., 1993). 16. Human rights guard against the arbitrary exercise of discretion or abuse of power through justiciable individual entitlements and by guiding policy formula- tions, thereby limiting state power. 17. The Rule of Law bears a close historical affiliation with liberal democratic political orders, sharing the purpose of limiting government through electoral ac- countability. Arguably, failing to develop pluralist and representative democratic structures inhibits the development of a strong Rule of Law as authoritarian execu- tives will disallow meaningful checks through judicial review or parliamentary scru- tiny: J.Reitz, Constitutionalism and the Rule of Law: Theoretical Perspectives, in PACIFIC BASIN LAW JOURNAL [Vol. 20:1 few examples may serve as a preliminary orientation into the na- ture of the contest and the contestants engaged in articulating the dominant and secondary conceptions of the Rule of Law in Singapore. B. THE CONTEST IN CONTEXT In November 1995, the Attorney General publicly rebuked the Law Society for failing to defend Singapore's legal system and judiciary against a barrage of foreign criticism impugning the inability to get a fair trial in Singapore.18 He stated that if the Law Society wanted to collaborate in Singapore's development, it must "[B]elieve and accept a concept of the Rule of Law which should not be substantially different from that understood and accepted by the government of the day." 19 Furthermore, it was not enough for the Law Society [T]o exhort its members to maintain the Rule of Law without a clear understanding of what it conceives to be the necessary conditions that make it possible for the Rule of Law to exist and thrive in Singapore..
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