In my research on the rule of law and the application of this doctrine in Singapore, I’ve stumbled upon some criticism, which I think are flawed, by parties who are dissatisfied with the current political situation. There are also videos purporting that Singapore’s government abuses the rule of law. I personally feel that to conclusively state whether there is a rule of law in Singapore, it would be good to define what the rule of law actually means. After which we can then take a look at whether the situation in Singapore fulfils this definition.
A good start to defining the rule of law would be to use Albert Venn Dicey’s definition. Dicey defined the rule of law in three branches.
- The supremacy of the law over arbitrary power
- Equality before the law
- The general principles of the constitution are found in the decisions of the courts
The issue with Dicey’s definition of the rule of law is that it mentions nothing about the morality or fairness of the law. Even so, it does give some semblance of a proper definition of the rule of law. Other legal scholars like Joseph Raz also followed closely to this notion that the rule of law was the application of a fixed and clear set of laws that are accessible by all who are governed by them. This led some to brand this concept as being the thin rule of law.
We next touch on the concept of the thin and thick rule of law. The thick rule of law adds to the thin rule of law by including standards of justice and human rights. Lord Bingham articulates this very nicely in his definition of the rule of law which consists of the following 8 principles.
- The law should be clear, accessible and intelligible
- We should be governed by law and not by discretion
- Equality before the law
- The exercise of public powers should (i.e. powers publicly conferred by statute) should be exercised by those whom they’re conferred reasonably, fairly, honestly and for the purpose for which they are conferred
- Adherence to human rights
- A proper system for dispute resolution
- The state should provide a fair trial. The person who is a subject of an adverse order should know what the case is against him and have complete opportunity to argue it in a forum where the judge or decision-maker has received no material which the accused has not.
- The state should comply with its duties in international law as it does with national law
Principles 1, 2, 3, 4, 6 and 8 are concepts that generally fall within the thin rule of law and 5 and 7 deal with standards of justice and human rights. We shall take a look at these 8 principles to try to understand whether Singapore fits into Lord Bingham’s 8 principles.
1. The law should be clear, accessible and intelligible
Singapore’s laws are accessible at all times via Singapore Stature Online. On top of that, the parliamentary debates are also searchable and accessible by anyone with an internet connection. The Legislation Division of the Attorney-General’s Chambers (AGC) embarked on a project in 2013 to improve and modernise the Singapore statute book in terms of its content and its design. The project was named the Plain Laws Understandable by Singaporeans (PLUS) project. The aim was to modernise Singapore’s legislative drafting practice and improve the readability of the laws so that Singaporeans can better understand them. With the Revised Edition of the Laws Act, tweaks to existing laws, which include almost 6,000 Acts of Parliament and other pieces of subsidiary legislation, we made to move closer to this aim.
2. We should be governed by law and not by discretion
The Singapore legal system is based on the English common law system. In Singapore, everyone is equal in the eyes of the law irrespective of their race, religion or creed. We have the Constitution which sets out the fundamental principles and basic framework for the organs of the state – The Executive, the Legislature and the Judiciary. Legislation or statutory laws are enacted by the Singapore parliament. Subsidiary legislation or subordinate legislation are laws made by ministers, government agencies or statutory boards. Judge made laws are court judgements and the rules of stare decisis and the system of precedents form the basis on which future cases are to be heard.
3. Equality before the law
Legal egalitarianism is the concept that all individuals must be treated equally by the law and undergo the same due process in the justice system. In Singapore, this applies to everyone be it the common man on the street or a high profile minister. There is no immunity for any one individual from any law of the land. This particular video from Singapore’s law minister on a particularly high profile case highlights how everyone is equal before the law.
4. The exercise of public powers (i.e. powers publicly conferred by statute) should be exercised by those whom they’re conferred reasonably, fairly, honestly and for the purpose for which they are conferred
Singapore is one of the least corrupt countries in the world. Singapore ranked 4th out of a total of 180 countries in the Corruption Perception Index in 2019 and 2020. The public service is generally seen as corruption-free.
5. Adherence to human rights
The definition of what constitutes Human Rights differs greatly in liberal democracies. Singapore has come under criticism from liberal democracies like the UK or the US when it comes to its Human Rights record. They fail to understand that the UN’s declaration of Human Rights has 30 articles and most of the criticism is centred around Article 19 of the Universal Declaration of Human Rights which talks about freedom of opinion and expression. They fail to take into account the fact that Singapore is one of the safest countries in the world where its people can have freedom of movement, the right to good education, high standards of living, freedom of religion, freedom of choice of employment, freedom to choose their government and many others. These too are part of the 30 articles. The implementation of human rights in society has to undertake a more pragmatic approach. It is idealistic to expect that all 30 articles can be fulfilled equally. They are not mutually exclusive and the strict adherence to one may affect the extent of adherence of another. For example, the freedom of opinion and expression is something that if gone unchecked, may result in the loss of other freedoms in the Declaration. In the US, the freedom for its citizens to bear arms introduces gun violence to the country. The unfettered right to freedom of expression, when left unchecked, has also given rise to much controversy in the US political scene. So much so that social media giants have had to censor and ban the accounts of a certain prominent public figure.
Part IV of the Singapore Constitution spells out the fundamental liberties that are accorded to all who are governed by Singapore’s laws. Singapore does value the importance of the liberties of the person highly. Yes, there can be improvements made to certain sections (this is for a later blog post) but I do believe that the general principle of civil liberties is covered in the Singapore Constitution. Since no other legislation that contravenes the Singapore Constitution can be passed, in effect, fundamental liberties have to be taken into consideration when laws are created. Thus to say that Singapore has little to no adherence to human rights would not be an accurate depiction of how Singapore, to a large extent, has managed to adhere to the Universal Declaration of Human Rights.
For those who would like to understand what is spelt out in all 30 articles, you can find them at this link: https://www.un.org/en/about-us/universal-declaration-of-human-rights
6. A proper system for dispute resolution
Everyone is free to bring up disputes in Singapore courts and to hire legal representation or to argue his or her case on its merits. Singapore has also put in place a good system for alternative dispute resolution.
7. The state should provide a fair trial. The person who is a subject of an adverse order should know what the case is against him and have complete opportunity to argue it in a forum where the judge or decision-maker has received no material which the accused has not.
The independence of the judiciary is paramount to the Singapore justice system. The executive and legislature do not wield any influence on the courts and their decision. A person is presumed to be innocent until proven guilty in the Singapore courts. The burden lies on the prosecution to prove beyond a reasonable doubt. Even when a conviction is obtained, there is an appeal process that one can take.
8. The state should comply with its duties in international law as it does with national law
Singapore does honour the sanctity of international agreements and is open to using neutral international bodies to adjudicate in the event of disputes with other countries. This can be seen in the Pedra Branca dispute where despite Singapore exercising sovereignty over the island, when Malaysia claimed the island as hers, Singapore proposed submitting the dispute to the International Court of Justice.
The rule of law as a concept is flawed when applied mechanically. This is a major error which legal scholars who have been critical of Singapore have been making. The question of whether a state employs the thin or thick rule of law should be replaced by what definition of the rule of law are we basing our discussion on. Much of the criticism has been centred on the fact that there is limited freedom of speech and expression in Singapore. Much criticism is levied upon the Internal Security Act which provides for detention without trial. However, it must be stated that the act does not allow the minister unfettered discretion to detain an individual. Also, the detention can only be because of acts that are incidental to the internal security of Singapore. Taken into context at the time of its enactment (the original act was enacted in 1960 by the Parliament of Malaysia and extended to Singapore), the act was deemed necessary in the face of national threats. In this case, a rising socialist movement. Such thinking is not unique to the region alone. In World War 2, Britain enacted the Defence of the Realms Act to detain persons of German origin without trial. The Guantanamo Bay detention camp is where inmates faced indefinite detention without trial and torture. This stemmed from the US’s war on terror after the September 11, 2001 attacks. These examples do show that despite the west being champions of individual liberties when faced with threats to national security, breaches of such liberties do happen.