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Beyond the Rules of Law in Singapore

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Beyond the Rules of Law in Singapore Singapore Journal of Legal Studies [2012] 269–297 BETWEEN APOLOGY AND APOGEE, AUTOCHTHONY: THE ‘RULE OF LAW’BEYOND THE RULES OF LAW IN SINGAPORE Thio Li-ann∗ I. The ‘Rule of Law’ as One of the Pillars of Constitutional Architecture Against the triumvirate of evaluative factors (viz. the ‘rule of law’, human rights and democracy) assessing good government, domestic and foreign sources1 have given Singapore both good and bad reports. The litany of criticisms has been rehearsed elsewhere,2 but essentially charge that the Singapore legal system is one of ‘rule by law’, not ‘rule of law’, where law is apprehended in formalist terms as ‘lex’, rather than the more majestic justice-oriented ‘ius’.3 That is, Singapore’s formal or statist ‘rule of law’ promotes rule-following, rather than applying public power-constraining principles to control arbitrariness. While the ‘rule of law’ in protecting property rights and commercial transactions is broadly praised, its application in public law cases has attracted the greatest criti- cisms, some bearing weight.4 These criticisms relate to preventive detention, ouster ∗ Professor of Law, National University of Singapore. 1 See e.g., Li-ann Thio, “Lex Rex or Rex Lex: Competing Conceptions of the Rule of Law in Singapore” (2002) 20 UCLA Pac. Basin L. J. 1; Gordon Silverstein, “Singapore: The Exception that Proves Rules Matter” in Tom Ginsburg & Tamir Moustafa, eds., Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008) 73; Ministry of Law, Media Release, LAW 06/021/026, “Singapore’s Response to the Draft Report ‘Singapore: Rule of Law Issues of Concern”’ (9 April 2008) (on file with author). 2 Jack Lee & Eugene K.B. Tan’s contribution to the Rule of Law Symposium (14-15 February 2012) where this paper was first presented. 3 George P. Fletcher, “In Honour of Ius et Lex: Some Thoughts on Speaking About Law” (Lecture in honour of Leon Petrazycki delivered at the Inauguration of “Ius et Lex” Legal Magazine, 1 June 2001), (Warsaw: “Ius et Lex” Foundation, 2001), online: “Ius et Lex” Foundation <http://www. iusetlex.pl/zalaczniki/wyklad_fletcher.pdf>. 4 See e.g., International Bar Association Human Rights Institute, “Prosperity versus Individual Rights? Human Rights, Democracy and the Rule of Law in Singapore” (London: Inter- national Bar Association, 2008), online: International Bar Association <http://www.ibanet.org/ Document/Default.aspx?DocumentUid=93326691-C4DA-473B-943A-DD0FC76325E8> [“Prosper- ity versus Individual Rights?”], for the 18 recommendations at 71, 72; Eugene K.B. Tan, “Law and Values in Governance: The Singapore Way” (2000) 30 Hong Kong L.J. 91; Jothie Rajah, Authoritarian 270 Singapore Journal of Legal Studies [2012] clauses elevating the state above the ‘rule of law’because of “necessity”, alleged dis- criminatory application of licensing laws for public assemblies to the disadvantage of the political opposition, and allegations of a compliant judiciary which facilitates the suppression of political dissent through speech-restrictive defamation and contempt of court laws.5 Critics are unimpressed where the government trots out statistics indicating Singa- pore’s high rankings in terms of ‘rule of law’performances using various indicators.6 This manoeuvre is seen as an apology for power. However, to invoke the ‘rule of law’as a self-evident utopian vision of the good state, where a civilised constitutional order reaches its apogee, to critique polities not meeting declared criteria, may entail its deployment as a rhetorical tool to advance a particularist vision of good govern- ment in the name of a universal “standard of civilisation”.7 This is not to discount the concept of universal justice, but to examine the universality of such normative claims, to avoid a myopic parochialism in a complex plural, postmodern world.8 It also opens up the possibilities of autochthony, of developing an indigenised variant of the ‘rule of law’ in Singapore which is no mere handmaiden to an authoritarian state. Two preliminary observations are necessary to undergird the normative and empir- ical interrogation of the ‘rule of law’. First, the ‘rule of law’ is not an absolute value. There may be good reasons for derogating from it, based on social values such as democracy, equity, higher moral principles, etc. If the application of general laws is an uncontroversial ‘rule of law’ value, this may be departed from in the inter- ests of legal pluralism, as embodied in the Administration of Muslim Law Act.9 An economic system predicated on distributive justice may contravene the ‘rule of law’ Rule of Law: Legislation, Discourse and Legitimacy in Singapore (New York: Cambridge University Press, 2012). 5 See e.g., Open Letter from Chee Soon Juan to Chief Justice, Attorney-General and Law Minister of Singapore (6 January 2009), online: Singapore Democratic Party <http://www.http://yoursdp.org/publ/ special_feature/chee_responds_to_cj_ag_and_law_minister/2-1-0-112>; Beatrice S. Frank et al., The Decline of the Rule of Law in Singapore and Malaysia: A Report of the Committee on International Human Rights of the Association of the Bar of the City of New York (NewYork: The Association, 1990). 6 See e.g., Mark David Agrast, Juan Carlos Botero & Alejandro Ponce, The World Justice Project Rule of Law Index 2010 (Washington D.C.: The World Justice Project, 2010) at 19, which (adopting a thick conception of the ‘rule of law’) in relation to East Asia and the Pacific stated, “Singapore is the top-ranked country amongst the indexed countries in providing security and access to civil justice to its citizens. Yet it ranks very low in terms of open government, limited government pow- ers, and fundamental rights.” See also the Political and Economic Risk Consultancy (P.E.R.C.) Asian Intelligence Reports (2006-2007) ranking Singapore second in Asia for the level of confidence in Asian judicial systems: cited in Prime Minister’s Office, Media Release, “Singapore Govern- ment’s Response to the White Paper by Amsterdam & Peroff” (11 November 2009), online: SG Press Centre <http://www.news.gov.sg/public/sgpc/en/media_releases/agencies/pmo/press_release/P- 20091111-1> at para. 71. 7 See Gerrit W. Gong, The Standard of Civilisation in International Society (Oxford: Clarendon Press, 1984) at 6, 7, observing that from the 19th century, European expansion into the non-European world resulted fundamentally “in a confrontation of civilizations and their respective cultural systems”. Non- European countries were measured against the supposedly superior European standard of civilisation. This set the stage for conflict as Europeans were deemed barbarians or infidels by East Asian or Islamic standards of civilisation. See also David Fidler, “The Return of the Standard of Civilisation” (2001) 2 Chicago J. Int’l L. 137. 8 See e.g., Francis J. Mootz III, “Is the Rule of Law Possible in a Postmodern World?” (1993) 68 Wash. L. Rev. 249; but see Cameron Stewart, “The Rule of Law and the Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the Rule of Law” (2004) 4 Macq. L.J. 135. 9 Cap. 3, 2009 Rev. Ed. Sing. Sing. J.L.S. The ‘Rule of Law’ Beyond the Rules of Law in Singapore 271 in drawing need-based differentiation between persons. A separate politico-legal theory is needed to prioritise between competing values; rhetorical assertions of the ‘rule of law’will not suffice. Sir Ivor Jennings considered the ‘rule of law’an “unruly horse”, both hard to express and “essentially imprecise”.10 Second, there are competing ‘rule of law’ conceptions even if the dominant con- ception within scholarly and policy-making arenas is that associated with Western liberal democracy.11 Lauded as an “unqualified human good”12 and the “jurispru- dential equivalent of motherhood and apple pie”13, the contents of the ‘rule of law’ remain contested, yielding many conceptions.14 These draw form from a polity’s underlying political, economic, social and religious philosophy. The ‘rule of law’has been described variously as thick or thin, formal or substantive15, statist, socialist, liberal, communitarian, etc.16 The popularisation of the ‘rule of law’ as a legitimating slogan of choice has brought confusion as the various associated ideas under its umbrella may conflict. In meaning everything, it cannot mean anything.17 It is prudent to avoid over- simplistic binary dichotomies (e.g., liberal or illiberal), in favour of more nuanced analysis apprehending the “degrees” of liberality along a spectrum, bookended by a liberal and an illiberal political organisation model, summarised thus:18 Lawlessness Arbitrary Rule by Law Rule of Law Rule of Good Law Rule Anarchy Capricious Law as tool of Law is pre-eminent; Comprehensive social and chaos use of government, checks abuses of philosophy, drawn from power may be power conceptions of human deployed for rights, democracy, repressive ends economic justice, etc. 10 Sir Ivor Jennings, The Law and the Constitution, 5th ed. (London: University of London Press, 1959) at 60. 11 Brian Z. Tamanaha, “The Rule of Law for Everyone?” (St. John’s Legal Studies Research Paper) (S.S.R.N.), online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=312622> [“Rule of Law for Everyone?”]; Mortimer Sellers & Tadeusz Tomaszewski, eds., The Rule of Law in Comparative Perspective (Dordrecht: Springer, 2010). 12 E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (United Kingdom: Penguin Books, 1990), c. Afterword. See also Morton J. Horwitz, “The Rule of Law: An Unqualified Human Good?” (1977) 86Yale L.J. 561 which is a book review of Albion’s Fatal Tree: Crime and Society in Eighteenth- Century England by Douglas Hay et al. and Whigs and Hunters: The Origin of the Black Act by E.P. Thompson. 13 Lord Bingham, “Rule of Law” (The Sixth Sir DavidWilliams Lecture delivered at Cambridge University, 16 November 2006), (2007) 66 Cambridge L.J.
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