The Singaporean government at present does not appear to have come to terms with the concept. Instead, it has adopted various interpretations to suit different audiences. In reply to JB Jeyaretnam’s contention that the rule of law should be substantive and protect principles of natural justice in parliamentary debate more than a decade ago, Assoc. Prof. Ho Peng Kee stated that if an Act is passed properly and it is followed, the rule of law is upheld. This is the formalist approach. Yet, in the IBA speech that Prof. Jayakumar delivered, it was propounded that the rule of law encompasses certain substantive universal principles. One wonders which then is the conception that the government wishes to adhere to.

However, even accepting the formalist conception of the rule of law, one that is obviously more favourable to the state, it is difficult to imagine that there isn’t an inherent substantive nature to it. One may accept that the rule of law is followed when the executive, legislature and judiciary do not overstep the boundaries of statutory and common law. Yet, this line is surely blurred when statute and even the Constitution are changed at will so as to validate the actions of these bodies. It can still be said that the rule of law is present, but such a proposition will be greatly strained. After all, the rule of law, even in its barest form, stands for the principle that no one, the government included, is above the law.

Let us take the case of Chng Suan Tze v. MHA, [1989] 1 MLJ 69 for example. A preventive detention order by the executive was quashed by the Singapore Court of Appeal, albeit on mere administrative grounds. More importantly, the court established an objective test of review over executive discretion under the Internal Security Act. In a move more commonly associated with jurisdictions without a written constitution, the Singapore Parliament reversed the decision in Chng Suan Tze and reinstated the subjective test of review in an earlier 1971 case. It also amended the Constitution and ISA provisions to curtail the power of judicial review granted to the courts in respect of the ISA. Having done all this, the detainees previously released were re-arrested. Needless to say, the subsequent case of Teo Soh Lung saw a muted court come to a foregone conclusion of upholding the new detention order.

One could say that the rule of law was still present. Everything that Parliament did, they did within their powers – which wasn’t too difficult since the ruling party had a 90+% majority with the benefit of a party whip. Even if there were to be a challenge,whether constitutional or administrative in nature, to what Parliament did, Parliament could simply amend something else to place themselves back in the driving seat of legality. Yet, can one truly say that government is not above the law in this circumstance? I think the answer must be in the negative. No matter how formalistic a conception one opts to take, a minimal threshold of adherence to the basic principle that the rule of law stands for must be transcended in order for it to be said that the rule of law exists.

Notwithstanding, I concur that Singapore does adhere to the rule of law in many ways. It is just that I do not believe we have it anywhere near its entirety yet.

The real debate is really about the “spirit of the law”. Pro democracy activists like CSJ have never really been clear about what they mean when they spout this rhetorical phrase, but we can infer that this refers to an intepretation that places individual rights as pretty important. CSJ is of course, wrong in insisting that the phrase “spirit of the law” can only refer to an interpretation of the law which takes rights seriously ( with apologies to Ronald Dworkin).

In Singapore’s case, the judges do in fact have principles when making their decisions, but these principles are based on a concept of maximising social welfare ( what the economists would call Utility) rather than the protection of the individuals.

If you look at the maid abuse cases, for example, ex-CJ Yong justifies clamping down on maid abuse not because it is very degrading to the maid, but because if we don’t do this, countries where these maids come from will think badly of us. This sort of reasoning can lead to the correct result ( maid abusers get punished), but the big problem with such reasoning is that it could be inferred that it is okay to abuse your maid if you employ her from some country too busy engaging in civil war rather than complaining about the mistreatment of their citizens in other countries. Which completely misses the point of anti-maid abuse legislation.

Time and again you’ll see such reasoning being employed by Singapore judges and politicians. Most of the time it doesn’t really sway the result because many cases involving personal dignity can be “justified” on the grounds of some wider social welfare principle ( like the maid abuse example I provided above). You can also justify for instance, minimising abuse by superiors in the armed forces not on the grounds that this is really harmful to the individual involved but because if nothing is done it could hurt morale in the platoon/company/battalion etc. And so on.

But you can’t run a society based almost exclusively on such utility-maximising arguments. Firstly you create a place where people are treated not on the basis of the notion that everyone has a right to a core of dignity and minimal respect which cannot be violated, but by their value as economic units. When people complain about Singaporeans being treated like economic digits, this is precisely what they are getting at.

Secondly, you run the risk of oppressing minorities- in the Singapore context, any interest which doesn’t involve a religious or ethnic culture or language preservation interest.

Thirdly ( and this is a point which is based on the first two points) you stultify the development of a genunine Singaporean nationhood.

Why? Because in the first place, why should an individual feel that he or she has an obligation to other people in the commmunity, if his or her rights will almost always be dismissed at a whim in favour of some “community interest”? This sort of reasoning was at the heart of why it took decades for the quota on female medical students to be lifted ( “oh they might get pregnant and leave the workforce and we would have wasted time and money spent on subsidising their training etc”).

And in the second place, it stultifies Singapore’s development as a pluralistic and diverse society. Understandably, when Singapore really got cobbled together as a nation in the 1950s, it might have been enough to just recognise diversity in terms of race, language and religion. But as we mature as a society, we have got to recognise that individuals associate themselves with other labels too- be it gender, disability, sexual orientation, marital status, ethnic identity which ISN’T chinese malay or indian and so on. But as it stands, some community interests are more equal than others. This is however, changing, as the campaign to repeal 377a shows.

So the point I’m trying to make is that
(a) we DO have the rule of law
(b) the substantive principles governing our interpretation of our law are almost exclusively utilitarian
(c) this is problematic.

You have got it wrong. Sylvia Lim didn’t sit together with DPM Jayakumar because they were at separate sessions of the symposium.

DMP Jayakumar’s session was in the early part of the morning, where Dr Chee posed his questions.

Sylvia Lim’s session was after the break, after the DPM’s session, where a new panel was brought in – without the DPM.

So, she never sat beside the DPM. She, however, sat beside Simon Tay, ex IBA president Francis Neate and Malaysian Bar Council president Ambiga Sreenevasan.

” Formal conceptions of the rule of law address the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individual’s conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of the enacted norm. (was it prospective or retrospective, etc.). Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. They are not concerned with whether the law was in that sense a good law or a bad law, provided that the formal precepts of the rule of law were themselves met.

Those who espouse substantive conceptions of the rule of law seek to go beyond this. They accept that the rule of law has the formal attributes mentioned above, but they wish to take the doctrine further. Certain substantive rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for these rights, which are then used to distinguish between “good” laws, which comply with such rights, and “bad” laws which do not.” ( 1997 Public law 467)

It is pretty obvious if you accept this analysis that Singapore definitely has at least embraced a formal conception of the rule of law. What about the substance? Well Singapore does have that too, but under this substantial bit, we don’t care enough about rights. A theory of interpretation of cases which cares more for “social rights” rather than individual rights is not necessarily contrary to the substance of the rule of law.

We do in fact have the rule of law in Singapore. But far from being very concerned about the protection of individual rights, the interpretation of our law is clearly skewed towards the protection of certain interests which are thought to be more important that individual rights. The interpretation of the law is skewed towards protecting business and economic interests, and the interests of religious and racial-based interests ( as opposed to other social interests, like those of women, homosexuals, the disabled etc etc).

This is not a question of “corruption”, as some of you will inaccurately think it is- this is more a question of what judges and the government think should be the prevailing “social good”. This is all very well and good if your interests happen to be in line with what the majority of the Singaporean public thinks should be the social good, but it will be quite a different story if your interests aren’t in line with theirs.