Political change, the law and how it is used

By Ghui

Ever since the unprecedented GE 2011 results, many have written about how Singapore’s political attitudes have changed. As our country nears its 49^th birthday, the time is ripe for us to take stock, assess and reflect on the shifting mind-sets of our nation state over the last few years.

Given that the results of GE2011 were tangible and for many, a genuine surprise, it is easy to focus simply on the political reawakening. While that is an obvious transformation, there have been many subtle alterations that have been building up incrementally.

One area that deserves our attention is the gradual change in the judiciary. While the political landscape has received much scrutiny, we must not forget that the law plays a very vital role in a democracy. It is because of its immense power that a series of actions have been taken to mute the potential degree of influence that the law can have on the state.

It is a widely held perception that the law has been used as a deterrent against political detractors – the new MDA Internet regulations and the dreaded defamation suit being prime examples. The law is definitely powerful and the time is ripe for it to be made more accessible to all in the socio-political arena.

In a recent paper by Jothie Rajah and Arun K Thiruvengadam, titled “Of Absences, Masks, and Exceptions: Cause Lawyering in Singapore”, explored the role of lawyers using the law to exert change in society. In many mature democracies, it is taken for granted that the law can be an engine for change. In Singapore, it would seem that the focus is very much on how politicians and the government can reform society while the law takes a back seat.

While the paper is not conclusive, it does shed some light on the role of cause lawyering and provides some useful food for thought on the future of the legal landscape in Singapore.

In this paper, a cause lawyer is defined as a lawyer who sees his role as reconnecting the law to morality. As opposed to acting for individual clients for a fee and furthering that particular client’s interests within the ambit of professional conduct, the cause lawyer practices the law based on a set of values and believes in the public nature of the law. The cause lawyer believes that the courts are viable arenas where societal morality, ideologies and issues that affect the public in general should be articulated.

In other words, the cause lawyer believes that the court systems are a very viable means to bring about change. Instead of merely offering legal services, the cause lawyer takes on a cause and all his actions will be guided by that cause as opposed to the interests of one specific client.

As societies change, the law, the protection and clarity that it could offer in controversial issues cannot be under estimated. Controversial issues around the world, such as those relating to child surrogacy, have highlighted the need for courts to intervene, to shed light on the situation and bring about greater social justice, and this is something that a cause lawyer might take up.

There is clearly a link between morality and the law given that it is humanity’s innate belief in some sort of system to administer justice that the law was born. However, while the two are not mutually exclusive, they are certainly not synonymous.

Traditional lawyers – the ones we have become accustomed to – recognise the difference between the law and morality. They operate within the ambit of the law and uphold a professional standard. They may however act against their personal morals if this furthers the interests of their client as long as it is within the limits of the law and does not jeopardise their professional code of conduct.

In current day Singapore, there is only one lawyer that comes to mind that could possibly be described as a cause lawyer – M Ravi, and a large chunk of this paper is dedicated to him and his rise to prominence.

What has caused this state of affairs? Is it because Singaporeans do not believe in the power of the law to generate social change and maintain social conscience?

Rajah and Thiruvengadam discussed, albeit inconclusively, the history of cause lawyering in Singapore and examines the reasons why cause lawyering failed to flourish, M Ravi being an exception to the norm.

This is not to say that lawyers are not moral individuals and do not endeavour to do their bit for society. Many lawyers do take on work that has the effect of bringing about social change, such as pro bona work. However, this work is indirect and does not actively use the medium of the court to confront or address perceived systemic failures.

M Ravi’s successes have been incremental and, up until fairly recently, would not have granted him recognition as a cause lawyer. Now, he would be the “go to” person for any matters that are either deemed of public interest, or relevant to society and should be openly articulated in the respected forum of the courts, but which may run afoul of the status quo.

Two cases can be used to demonstrate how Ravi’s efforts have brought about positive results. The first is in relation to Yong Vui Kong, where Ravi’s initiative at challenging the legality of the death penalty led to a temporary moratorium of the application of the death penalty for over a year. It also brought about lasting changes to the way death sentences are handled, which now gave judges more discretion to pass the death sentence.

The second case is that of Vellama d/o Marie Muthu v. Attorney General where a resident of Hougang Parliamentary constituency argued that the government’s decision not to hold a by-election in her constituency after it had been vacated by the elected representative violated her right as a citizen to be represented in Parliament. In the past, the government had insisted that it was not obliged to hold by–elections for seats that had become vacant. Although the High Court rejected Ravi’s claims on behalf of his client, it is significant that, after the filing of the petition and before it came to be heard by the High Court, the Prime Minister of Singapore announced that a by–election would indeed be held in Hougang.

These cases illustrate that the courts, if fully utilised to its fullest potential, can offer Singaporeans another avenue to ensure that a matter with “public interest issues” is enunciated openly and with constructive outcomes for society.

The fact that M Ravi has had some success in the domain of cause lawyering shows not just his personal tenacity but also that our society has changed somewhat and is continuing to change. Where previously we had been prepared to wait for things to happen to us, we are now as a whole more proactive to be that change.

With the number of Internet forums springing up to discuss the PAP and politics and many other issues, everyone is keen to proffer a view and publicise this view. This information sharing has in turn led to people becoming more aware of their rights and the “power of the masses”.

Idea sharing virtually is also immediate and has led to brainstorming and connection like never before. This exchange of ideas facilitates coming up with new innovative solutions to old problems.

Most recently, we had the case of blogger Roy Ngerng. Just as Singaporeans were buoyed by their relatively freer abilities to comment on government policies, the legal bogeyman of the 80s and 90s reared its ugly head – the defamation suit. However, this time, there was a marked distinction. Ngerng turned to crowd sourcing and raised a whopping sum from the public to aid his defense. This heralds not just changing political sentiments, but also fueled hope that this case can be successfully defended.

Singapore is definitely going through a period of transition but there isn’t one change or one reason behind that change. Society is exposed to more, questions more and wants more. Singaporeans travel more and are increasingly worldly. Society is more affluent and more open. The resources available on the Internet also further enable this attitude. These forces will continue to work at reinforcing each other.

As Singapore nears its fifth decade as an independent state, it would be simplistic to focus just on the political front of things. We need to recognise this and harness the power of the judiciary as well. As we embrace the information age, perhaps the bogeyman of the defamation suit will gradually fade – not just because their relevance is muted but also because Singaporeans are more socially aware.

Attitudes have changed and we have come a long way. I look forward to more holistic developments – not just in politics but also in the law and how it is used.