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Li Shengwu at the Sciences Po Debate Open 2013

The prodigal son escapes; the press secretary restates

Li Shengwu: "In Singapore, it is possible that one can be detained and interrogated for some time without a lawyer. My friends had warned me that they were concerned for my safety if I remained in Singapore."

PM Lee's press secretary: "This is a well-established legal process. Clear laws and procedures apply to all cases of contempt, including this case involving Mr Li."

Yes, the legal process is well-established and the laws are clear. But this is a facile interpretation of our legal system. Saying this is not the same as saying that the legal process is fair or that the law is just. In fact, as the facts show, this merely suggests that an unfair legal process is deeply entrenched here and that the laws we have are clearly unjust.

Consider the following. Singaporeans do not have an immediate right to counsel within 48 hours. We only have a right to counsel within a reasonable time which can be as long as three weeks. We do not have the right to be informed of the right to counsel. We do not have the right to silence because an adverse inference can be drawn from our silence. And we do not have the right to have counsel be present throughout the interrogation.

Perhaps, because our police force is generally free of corruption and our judges cannot be bribed, one might argue that those who have done nothing wrong have nothing to fear. But it is actually the ones who are innocent who have the most to fear. Besides, is not guilt or innocence a matter to be determined through a fair and just legal process? If we are such sticklers for procedural justice, shouldn’t we have a fair system? Therein lies the hole in arguments supporting the status quo. In justifying restrictions on the right to counsel and the right against self-incrimination, the spectre of guilty criminals getting away scott-free on technical grounds is frequently raised; but when these restrictions are questioned, they are defended on the grounds that they form part of a “well-established legal process”. We believe in procedural justice only when it suits us—what justice is that?

What then is this “well-established legal process” that justifies these restrictions? It is none other than the system of judicial review that we have. There is no evidence to suggest that the judiciary is corrupt (mind you, I am always tip-toeing around this because the AGC is so trigger-happy, but this is also very true and important—the focus of our criticism should not be the judges’ character but their approach towards interpreting the law). It is just that they have so consistently deferred to Parliament that people have started to question why. In fact, apart from Taw Cheng Kong v Public Prosecutor (1998), no legislative provision has ever been struck down as unconstitutional.

One possible reason for this is that the justices are genuine positivists. They believe in the letter of the law over the spirit of the law. If Parliament makes a constitutional amendment, and since it has the power to do so, judges must respect it.

But this is contrary to the rule of law which the Court of Appeal in Chng Suan Tze v Minister for Home Affairs (1988) famously defined thus: “The notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.”

Perhaps, in order to avoid a confrontation with the executive on this matter, Singapore’s judiciary has deftly evaded the issue by focusing on technicalities. In Chng Suan Tze v Minister for Home Affairs, ISA detainees were released on technical grounds—because the wrong person had signed the detention orders—and promptly re-arrested once the correct signatures were obtained. The court did not subsequently apply the above reasoning about the limits of executive power to the case to have the arrest overturned.

Why didn’t it do so? As Thio Li-ann explains in Evolution of a Revolution: Forty years of the Singapore Constitution: “The Singapore judiciary has assiduously avoided being caught in the political thicket and has avoided the hubris of judges in other jurisdictions whose decisions have been criticised as naked judicial ambition and excessive activism.”

Judges have to strike a balance between legislating from the bench and abrogating its duty to uphold the  indeed.law. While Singapore courts hold, in principle, that no legislative provision or executive action lies beyond judicial review, it must also take care to avoid usurping the authority of a democratically elected Parliament. This necessarily assumes that our elections have been free and fair—a questionable assumption

Perhaps then, Singapore’s judges are “pliant” in the sense that they are almost always willing to defer to the decisions of Parliament and of the executive. This can be interpreted in either two ways. It could be the result of a genuine belief in strict positivism and the need to defer to elected institutions in a democracy or it could be a strategic decision to avoid a showdown with the ruling party. No matter how many people the AGC prosecutes, Singaporeans are ultimately the ones who choose which interpretation they believe in.

It is not surprising that many Singaporeans have a low opinion of the judiciary because it is clear, on the face of things, that it rarely challenges Parliament or the executive. It would be foolish to think that judges sitting in judgement over those accused of smearing their reputation would do anything to change that opinion. Contempt of court has been abolished in the United Kingdom precisely because of, among other reasons, the widespread perception that it is unjust to have judges preside over their own cases. Well-founded or not, that perception persists in the UK as it does in Singapore.

But whichever interpretation one takes, it is important that the government not be allowed to derail the conversation by turning this into a matter of respect for “well-established” legal procedure in Singapore for the laws themselves are at issue here—not their clarity or their long pedigree.

Li Shengwu is not obligated to stay and be subject to interrogation without counsel precisely because he has a legal right to counsel that our courts have failed to recognise.