By Vincent Wijeysingha
A basic question of citizenship is raised by the deportation of 53 persons accused but not tried for the Little India incident. The Law Minister’s assertion that it is too expensive to apply the law justly, fairly and transparently, also calls us to the same query.
Some citizens have agreed with the minister and gone so far as to suggest that the accusation laid against the 53 is sufficient justification for their deportation: so long as they are accused and the government announces its possession of sufficient evidence, deportation is justified. This view forces us to consider if we want to sustain and defend the transparent protections of justice and equity which we call the Rule of Law or throw them out because on this occasion they do not implicate us personally.
The experiences of people in daily life are not delineated by nationality, ethnicity, gender, age, religion, status, or wealth. When someone lives in a particular country, their treatment by the authorities has ramifications for all people living in that country, whether citizen or migrant. Therefore, how a migrant is dealt with has implications for how citizens are treated. It is for this reason that arbitrary punishment without trial should concern us all.
These arbitrary deportations touch on how justice is determined. If it is normal practice for a migrant to be denied the benefit of a trial, the same response may in the future be offered to a citizen because access to a fair trial does not differentiate between a migrant and a citizen. And more importantly, because we will have communicated to the government that justice is unimportant us.
Among the most precious of our human heritage is the idea of the separation of powers whereby the functions of the state, ie executive, legislative and judicial, are separated; divided among different entities so as to ensure that no one entity attains too much power. The concentration of power in one entity gives rise to the possibility of its abuse. The separation of powers, which institutes a system of checks and balances, is designed to ensure that no one group of people attains too much power which can then be used to exploit others. It also ensures that the operation of state power is carried out with neutrality and objectivity so that no single incident becomes a personal fight between a citizen and an organ or officer of state.
The separation of powers allocates specific responsibilities to the organs of state: the legislators, as the people’s representatives, make the policies; the executive, or the government, operates those policies; and the courts adjudicate when a claim is made that the rules and policies are operated wrongly, unjustly or unfairly, or when an individual is accused of a crime.
A second and equally important aspect of modern democratic societies is the practice whereby all citizens, regardless of their status, are dealt with according to easily recognisable rules developed under known procedures, agreed by common consent and operated transparently. This promotes accountability by state organs and a sense of security among citizens that their rights and obligations are defended by clearly defined systems for which there are accepted procedures for obtaining evidence and appealing against the decision taken
These principles of separation and Rule of Law have given rise to ‘due process’, which are the agreed common procedures by which people obtain judgment in the event they feel they have been aggrieved. These procedures are themselves developed by the legislature, carried out by the executive, and protected by the judiciary.
By implementing such a publicly-known framework, the procedures are made transparent, ie the public is aware (and has faith) that they are operated in accordance with the accepted rules. The organs of state are prevented from acting in a way that suits them but which may be contrary to the accepted rules and procedures. In so doing, the nation is assured that all actions of the three organs of state are carried out with objectivity and fairness. Such is the nature of due process.
The ultimate right which the procedures afford to every person subject to the law is that of appeal, whereby an independent forum which is not a party in the dispute or which did not take the original decision (in our case the Court of Appeal) takes a final look at the decision and the evidence that led to it in order to ensure that no mistakes were made.
Governments, which form the executive branch of the organs of state, are not neutral players in the national framework. In Singapore, in addition to being the makers of policy and keepers of the peace, the executive is also a major participant in the economy. In addition, being a democratic government, it must submit every five years to re-election. Being positioned in this way, it not only has to govern fairly, it also has opportunities that could enrich its officers, for example by the awarding of tenders, or avoid subverting its popular appeal come election time. As human beings, government officers such as cabinet ministers are subject to human failings. They are limited by their own perspectives, knowledge and experience.
These are problems which the separation of powers tries to address by ensuring that all the decision making functions of the state as a whole are distributed across the organs of state to ensure transparency, accountability and the avoidance of mistakes based on personal motives, human failings, or a lack of objectivity.
Therefore, the separation of powers is a bulwark against arbitrary action by a single organ of state or a single government officer. The cumulative effect in the long term helps to avoid the vast problems of governance that have resulted in civil disorder, revolution, poverty, economic collapse, or war.
When considered in this way, the importance of a fair trial to all persons accused of a crime or embroiled in a dispute cannot be overestimated. Only by having the chance to defend oneself against an accusation by a judge objectively distant from the issue, trained in the procedures of evidence, and motivated by the principles of justice can we ensure just outcomes for individuals and the sound administration of the country in the long term.
The operation of the law does not respect one’s nationality, ethnicity, gender, age, religion, status, or wealth, unless these are material components in the dispute or crime. All persons are equal before the law and should expect to receive a judgment based purely on the merits of the case rather than on their personal characteristics. This prevents arbitrary decision making which might have an ulterior motive.
A second and equally important criterion which contributes to future stability is that decisions taken by state organs in one case set precedents for how to deal with similar cases in future involving other persons. In the legal domain this has been codified as a system of precedents whereby decisions taken by a higher court are binding on similar cases coming before a subordinate court. Those taken by subordinate courts are binding on themselves and have ‘persuasive authority’ for those at the higher levels. In the executive domain, decisions taken on previous issues become guiding principles for the state’s response in future similar cases. Ultimately, they shape the relationship between people and state.
Only the legislature, as the representatives of the people, is free to act in any way it chooses because it must reflect changing conditions, new problems, and the will of the people. And even there, Parliament is bound by its own rules known as the Standing Orders of Parliament and by the Constitution, the supreme law which, by law is itself the most difficult to amend.
Parliament is also guided by a book titled Treatise on the Law, Privileges, Proceedings and Usage of Parliament by Thomas Erskine May, a barrister and Clerk of the British House of Commons in the 1840s. This book is accepted by all Commonwealth jurisdictions as a guide for parliamentary practice. These guides are themselves subject to conventions that emphasise common consent and transparency.
Migrant workers, while not citizens of Singapore, are accepted as being bound by the criminal law as well as protected by its operation. There are no separate sets of laws applicable to foreigners temporarily resident here except insofar as the law makes separate provisions for their employment. The principle of precedent means that decisions taken in respect of foreigners are also applicable to citizens. Hence, it is important for us as a nation to ensure that the treatment of foreigners follows the Rule of Law because that same treatment could one day be applied to a citizen. Seen from this perspective, it is absolutely crucial that state actions, whether by the legislature, executive or judiciary, are carried out according to the conventions of the Rule of Law.
The arbitrary deportation of the 53 is being carried out without the chance to defend themselves against the charges that the state has laid against them. In fact, no charges have been laid against them so, technically, they are innocent men. Therefore, on the face of it, they should not be subject to deportation.
Furthermore, punishment for crimes is itself codified in the criminal law. Deportation, while a power held by the Controller of Work Passes and by the Immigration and Checkpoints Authority (under MOM and MHA respectively), is not a legal punishment for the crime of riot.
Are we content to accept the government’s decision based on information it has not made public? If so, what precedent are we setting for future government actions against people, whether citizen or migrant? Additionally, if we accept that the government may apply punishments not sanctioned for a particular crime, are we not attacking the penal law and debasing the very primacy of the Constitution? Will – and should – we remain confident that the same abrogation of the Rule of Law will not be applied should it concern a citizen? Should we not take sufficient regard for the primacy of law because such arbitrary use of state power could one day be turned against us?
In the Internal Security Act and the Criminal Law (Temporary Provisions) Act, the government has formidable powers to bypass the protections that the law gives us. Are we content for more protections to be taken away from us? Should we agree with Lee Kuan Yew, who as Prime Minister, said,
It is not the practice, now will I allow subversives to get away by insisting that I’ve got to prove everything against them in a court of law or evidence that will stand up to the strict rules of evidence of a court of law.”
or would we prefer to share the view, articulated when he was an opposition leader, that,
If it is not totalitarian to arrest a man and detain him, when you cannot charge him with any offence against any written law – if that is not what we have always cried out against in Fascist states – then what is it? […] If we are to survive as a free democracy, then we must be prepared, in principle, to concede to our enemies – even those who do not subscribe to our views – as much constitutional rights as you concede yourself.
The Law Minister has said that the cost of applying the law to the 53 accused outweighs the benefits of the Law itself. Can we think of another area of public expense that should be more protected against the challenge posed by a rightfully parsimonious public purse? If we have so little regard for the Rule of Law which protects us Singaporeans too, can we expect the government to have respect for us?
I do not ask you to take the side of the foreign workers charged with rioting. Rather, I ask you to take the side of Lady Justice. For if you turn your back on her now she may turn her back on you when you need her.