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TOC Feature: participating in the IBA

By Jeth Lee

Thanks to the kind sponsorship of TOC, I was able to attend the much talked about Rule of Law Symposium organised by the International Bar Association last Friday despite it being priced at a restrictively high 60 Sterling pounds (citizen journalists don’t get paid very well).

The symposium was a full-day programme that was widely hyped to be able to provide a clearer perspective of what the status and meaning of the rule of law are in Asia, especially in the host state of Singapore. With a stellar cast of speakers comprising Deputy Prime Minister Professor S. Jayakumar, Judge Hisashi Owada, a former Japanese Ambassador to the UN and Justice Albie Sachs, a renowned human rights and anti-apartheid campaigner, one could expect no less.

However, judging from the aims of the symposium and what transpired, I must say that the symposium has largely failed.

DPM S. Jayakumar’s speech part 1- déjà vu

It was perhaps expected that the keynote speech by Professor Jayakumar brought nothing new to the table in terms of our understanding of the rule of law in Singapore.

Most of us are already savvy to the concept of the rule of law. No one is above the law, as opposed to the rule by law, where laws posited by government are to be followed without question and the spirit of the law is subordinated to the legislative will.

Promisingly, the DPM first acknowledged that the rule of law embodied several universal principles despite its amorphousness, including clear limits to the power of the state, equality in application and protection of the fundamental rights of individuals.

He then predictably qualified the application of these universal principles in saying that while these principles must be maintained, a balance must be struck in view of each country’s own socio-political context. This led to the familiar refrain that Asian societies place greater emphasis on the community vis-à-vis Western societies, which shift the emphasis to the rights of individuals.

One would wonder if the drafter of the speech uncovered a dusty copy of the infamous Shared Values White Paper, released 16 years ago, and did the glorious job of cutting and pasting. A symposium of this scale was not needed for such rehashing. It certainly did not go towards the aim of improving the status quo as it stands here.

A 16 year-old ideology. Phew, I thought: the last thing you can accuse government ideologues of is having an imagination.

DPM speech part 2- Singapore is different

In the same vein, the DPM touched on the non-homogeneity of Singapore’s societal composition and how therefore we needed special laws to deal with it. He quoted an example of three individual bloggers posting racist remarks in 2006 and their subsequent charging under the Sedition Act, saying that in other countries such prosecution could be considered as infringement of freedom of expression.

And then he left the thought hanging.

I found it strange that the DPM did not attempt to explain why in Singapore that was not considered a similar infringement.

Are not the rights in the Constitution paramount and superior to all ordinary laws? And doesn’t it guarantee such freedoms, which should require justification before suspending?

What seemed so self-evident to the DPM was a conclusion the audience was left to come to themselves: that what is considered constitutional is then decided by the normative character of each country, and the fundamental rights of the individual (one that he considers to be a universal element of the rule of law) are free to be eroded accordingly through the application of laws.

But wouldn’t it mean that there is thus reason to doubt that what the DPM said at the start of his speech: that fundamental rights of the individual are a universal element of the rule of law that are applied in Singapore?

DPM speech part 3 - majority rule

By way of justification of Singapore’s strict criminal laws, Professor Jayakumar pointed to the low crime rate that we all enjoy and said that law and order have been maintained. Many (myself included) couldn’t help but nod in agreement.

However, what followed was an unnecessary, and I would say unjustified, reason for why we have the death penalty. The DPM said, and I quote in verbatim, “In Singapore, the death penalty is the will of the majority. A Straits Times survey in 2006 showed a large majority, 96% of the electorate in support of the death penalty.”

Firstly, the conduct of the survey was amongst 425 Singaporeans and permanent residents, hardly indicative of society at large. I also find it greatly disturbing that the newspaper managed to find 425 Singaporeans with such views – which dark part of Singapore did these reporters visit?

Secondly, the DPM’s assertions rest on a disturbing premise that seems to underline a similar position the government has taken on section 377a – majoritarian rule is the way to go. Have we truly learnt nothing about the tyranny of the majority in mankind’s history that we are to believe this to be true (think apartheid, segregation and slavery)?

I have no doubt that the majority of Singaporeans are in favour of stoning and castrating child molesters. Perhaps the government could consider that in a next Penal Code amendment.

Fireworks at Q & A

DPM’s assertion towards the end of his speech that Singapore’s laws have strengthened social fabric raised hackles amongst several in the audience.

Feeding frenzy began once the floor was opened for questions. First up was Mr. Timothy Cooper of the U.S.-based human rights advocacy group, Worldrights, who vigorously stated that the human rights community felt that the Singaporean judiciary was not as outstanding as claimed, but that instead there was no level playing field for opposition members to fight cases. Familiar examples of defamation suits were raised.

The DPM’s response was two-pronged: (1) that all defamation suits were won because the PAP hired good lawyers and were certain that the cases could be won at the outset before bringing an action and (2) that Singapore society still retained the old-fashioned view that leaders must be morally upright and superior in stature and leaders are bound to defend their honour (reminiscent once again of the junzi or gentleman concept in the Shared Values White Paper).

Dr. Chee Soon Juan also took the opportunity to wash some of the government’s dirty laundry. These included the preventive detention without trial of Chia Thye Poh, the world’s longest-serving political prisoner at 32 years, and Francis Seow, former Solictor-General and currently in exile. Dr. Chee’s pronouncement that he was “sure [the delegates] would want to hear what the reality of Singapore is” was met by thunderous applause in the audience.

As reported in the press, DPM accused Dr. Chee of turning the IBA conference into a “theatre on Singapore politics” and did not deal substantially with the questions asked.

It wasn’t very good theatre, I thought.

The panel discussion

After a short break, we convened once again to hear shorter speeches from a panel which included Associate Professor Simon Tay of the Faculty of Law, National University of Singapore, Ms. Sylvia Lim, Chairperson of the Workers’ Party and Non-Constituency MP, as well as Ms. Ambiga Sreenevasan, President of the Malaysian Bar.

Professor Tay offered that the “Asian values” debate has long passed and the tendency is now towards Singapore’s adherence to international standards. However, he further suggested that we should insist on a universal definition of the concepts within the rule of law, but not towards the content of laws.

In so saying, Professor Tay seemed to proffer that the content of the rule of law is normative and we cannot therefore directly impose foreign laws directly on Asian cities. Although I understood the nuanced theoretical paradigm shift, I found it difficult to distinguish this from the reasoning in DPM Jayakumar’s speech, since the practical thrust of the arguments are the same – that we can somehow justify deviating from what is internationally accepted by reference to our socio-political state as articulated by the government.

Ms. Lim stated that conferences like this were good to measure Singapore against international benchmarks, but subsequently qualified this by saying that Singaporeans must ultimately decide what type of country they want and there was no need for outsiders to canvass the agenda for us.

Personally, I find there to be some truth in this, that the fate of a country can only be determined by the will of its own people. Yet, as we can see in present day Myanmar, there is a limit to what an oppressed people can do if the power of government is so strong as to restrict any opposition to a mere squeak. International, or even regional pressure, is sometimes needed in order to assist in the dealing of rule of law issues within any state. (Read Ms Lim's full speech here.)

I was rather impressed by Ms. Sreeevasan who spoke candidly about the state of the rule of law in Malaysia and about the lack of public confidence in the judiciary.

While not as openly activist as their causeway counterparts, I believe the Singaporean Bar matches the independence that its Malaysian counterpart possesses. The Law Society’s willingness to challenge the status quo from issues ranging from the death penalty and 377a to questioning high ministerial pay bears testament that lawyers in Singapore are not willing to be passive observers in the democratic process.

Breakout session – a saving grace

I was starting to feel slightly queasy from the barrage of speeches. Thankfully, it was soon announced that there would be a breakout session where participants would form smaller groups to discuss in greater detail matters concerning the rule of law.

I chose to partake in the facilitated group discussion on the independence of the judiciary. To the organisers’ credit, group sizes were kept to a cosy cap of 10 people.

My table looked something like the UN committee – the convener was a Venezuelan, while Canada, England, Japan, Liberia, Pakistan, Scotland, Singapore and Syria were all represented by lawyers from those countries.

The group sessions were the symposium’s saving grace for my IBA experience. My group engaged in a lively, sometimes heated, but always respectful discussion about improving the rule of law. Among the more interesting hypotheticals that went around the table was what would happen in our respective countries if an individual were to sue his government.

Going around the table, each participant offered information about the measures that his/her individual country has taken to ensure independence and the defects in their systems. I was thankfully spared any lectures on how to improve our judicial system, and was pleasantly surprised at the candour with which everyone was constructively criticising their judiciaries. As an English barrister I spoke to in the forum said, with a Canadian law professor concurring, there is no one country where quality of justice cannot be improved.

More tellingly, despite the focus of the discussion being on the independence of the judiciary and legal profession, the topic soon veered towards public confidence in the judiciary and accordingly on to the freedom of the press and freedom of expression in general.

Very clearly, there is no single subject of discussion with respect to the rule of law that can be dealt with in a vacuum. Instead, the interconnectedness of the issues necessitates that for the rule of law to work in any country, Singapore included, there needs to be a comprehensive system of institutional checks and balances.

We’ve still got some way to go.

About the author: Jeth Lee is a law undergraduate at the Faculty of Law, National University of Singapore and the Chief Editor of the Singapore Law Review. He believes the rule of law will one day be present in Singapore in its entirety – but not just yet.