|
|
AG
Chao Hick Tin
"You
are obviously confused between the concepts of the rule 'of' law
and the rule 'by' law. What you described in your speech is not
the rule 'of' law but really the latter. The rule 'by' law refers
to the use of laws by a person or group of persons to regulate
society and maintain political power."
"The rule
of law is not a title we adorn on ourselves. It is a way of
political life, something that we practice instead of merely
announce in opening addresses."
|
CSJ
refutes AG on the "rule of law" in Singapore
12
Jan 07
12 January 2007
Mr Chao Hick
Tin
Attorney-General
Republic of Singapore
By Fax:
6332-5984/6332-5278
Dear Sir,
Your
address at the opening of the 2007 Legal Year would be
sterling if not for the ghastly lack of understanding of the rule
of law that you so amply demonstrated.
Before I take issue
with it, however, I would like to say that your reference to
those people who "flout the law" is an obvious
reference to my colleagues and I in our campaign of Nonviolent
Action and civil disobedience. But while you speak about us, you
have shown neither the courtesy nor the courage to refer to us by
name.
Be that as it may, I will address your point that
flouting the law "is to undermine the very basis of the rule
of law." The basis of the rule of law must perforce include
three elements: One, the legal order regulates the power of the
government; two, it ensures equality before the law; and three,
there must be formal and substantive justice.
I will in
turn address these three elements vis-à-vis the system
that presently exists in our country.
Limiting the
power of the government
For there to be the rule of
law, a government must itself submit to the rule of law. In other
words, it accepts that its powers are curtailed under a prescibed
and pre-determined set of laws, as say in a Constitution. Even
the presidency of the United States, the most powerful political
office in the world, has its powers checked by other branches of
government as well as the public.
Mr Lee Kuan Yew,
however, rejects this notion. When former prime minister Mr Goh
Chok Tong introduced the bill for the elected presidency, he
said: "In introducing this Bill, the Government is in fact
clipping its own wings. Once the Constitutional amendment is
effected, this Government will have some of its powers checked."
Mr Lee Kuan Yew overruled: "No, if you've to clip your
wings, then you are in trouble, you cannot govern…I cannot
remember what he [Goh] said but I would not have used that phrase
because the executive powers of the Government should not be
clipped."
Mr Lee also said that "we haven't
found it necessary yet [to change the one-man-one-vote system].
If it became necessary we should do it." He even went to the
extent to say that in the event of a "freak" election
and without an elected president, "the army would have to
come in and stop it."
More recently, Prime Minister
Lee Hsien Loong admitted that if there were more opposition MPs,
he would have to think of "what's the right way to fix them,
to buy my supporters’ votes…"
Does all
this look and sound like a system where the PAP Government has
its powers regulated under a legal order?
Equality
under the law
The rule of law also stipulates that the
Government and its leaders are not above the law. Every
individual, regardless of position in society, is subjected to
the same laws.
Is this the case in Singapore?
In
1997 when PAP ministers entered polling stations during the
elections without authorization, the former Attorney-General and
now Chief Justice, Mr Chan Sek Keong, ruled that the ministers
had not committed any offence and, therefore, refused to take
legal action.
Seeing this, Internet activist, Mr Robert
Ho, then called on Singaporeans to walk into polling stations
whether they were authorized or not. He was duly investigated for
"incitement to violence." If it is not illegal for
unauthorized persons to enter polling stations during elections,
as the Attorney-General insists, how does that make Mr Robert
Ho’s statement an offence? Isn’t this a case of
unequal application of the law?
Another instance is the
Films Act. While political films about the Government and PAP are
made and broadcast, filmmakers who make videos about opposition
figures are threatened and investigated, Mr Martyn See being a
prime example.
And while public protests are allowed for
pro-establishment bodies (the NTUC was given clearance to stage a
march numbering in the hundreds against the US outside the
America embassy in 1988), similar activities by civil society
groups and opposition parties are banned. A silent protest of
four people in August 2005 was prohibited even though the
Constitution clearly provides for it. I don’t have to tell
you that under a system where there is the rule of law, the
Constitution reigns supreme.
Formal and substantive
justice
The third element in the rule of law is that
citizens must be accorded due process if they are accused of
wrongdoing. Yet, scores of Singaporeans have been detained
without trial under the Internal Security Act, the majority of
whom were political opponents of the PAP. Many of these detainees
were tortured and abused whilst in the ISD’s custody.
The
most famous prisoner is Mr Francis Seow. He was your colleague in
the legal service as the former solicitor-general. He wrote what
ISD officers told him during his 72-day incarceration:
"So
you think you can take on and bully the second generation
leaders? Well, our job here is to make sure you do not succeed.
We are here to neutralize you. For your information Lee Kuan Yew
is running for another term. So where will you be? You can give
up all your ideas of going into politics."
Would such
disregard for justice, both formal and substantive, be allowed to
occur in a state that abides by the rule of law?
Rule
"of" law or rule "by" law
You are
obviously confused between the concepts of the rule "of"
law and the rule "by" law. What you described in your
speech is not the rule "of" law but really the latter.
The rule "by" law refers to the use of laws by a person
or group of persons to regulate society and maintain political
power.
The rule "of" law, as I have outlined in
the preceding paragraphs, is an indispensable tool and the very
basis of democracy. In contrast, the rule "by" law is a
dictatorship’s best friend. Singapore, it is widely
recognized, is not a democracy and, hence, not a practitioner of
the rule of law. As such, it would be disingenuous to accuse my
colleagues and I for not adhering to the rule of law. In fact,
the rule "of" law is exactly what we are trying to
establish.
The laws that you accuse us of "flouting"
such as the ones that prohibit the freedoms of speech and
peaceful assembly are unjust ones used to oppress citizens of
this country. By defying these laws through civil disobedience,
we highlight them and appeal to the public to pressure the
government to repeal or amend them.
Allow me to quote
Martin Luther King, Jr who is universally honoured for his
championing of civil rights and the rule of law in America:
"An
individual who breaks a law that conscience tells him is unjust,
and who willingly accepts the penalty of imprisonment in order to
arouse the conscience of the community over its injustice, is in
reality expressing the highest respect for the law."
It
is unfortunate that you as the Attorney-General and a former
judge – and for that matter one who has functioned at the
highest level of Singapore’s judiciary in the Appellate
Court – should possess such an immature understanding of
what constitutes the rule of law.
Public institutions
cannot be criticised by the public?
In addition, you
state that what we do is often encouraged "by foreigners in
the name of human rights." This is not a legal (or even
rational) statement but a political one that the PAP is fond of
using whenever it has little else to say. What does the view of
foreigners have anything to do with the debate of whether the
Singapore Government respects the rule of law and human rights in
Singapore?
You mention "foreigners" in the same
breath as "human rights" as if to say that human rights
are alien to Singaporeans and therefore should be rejected. Do
you even realize how contradictory you are by decrying human
rights on the one hand while attempting to uphold the concept of
the rule of law on the other?
Another point on your swipe
at "foreigners": If we in Singapore don’t care
what others think of us in so far as the rule of law, human
rights and democracy are concerned, how are we going to
participate and compete in an increasingly globalised world
dominated by democratic societies?
You are also worried
that our criticisms will bring Singapore’s "key public
institutions into disrepute." In the first place, one would
think that the role of the Attorney-General would be to ensure
the effective administration of justice in Singapore, not the
defence of public institutions which is the domain of the PAP
Government. Worryingly, such a view is increasingly spouted in
our legal system as High Court Judge V K Rajah also noted that
citizens cannot "spuriously cast doubt" on "public
institutions."
Secondly, are our public institutions
so fragile that they cannot withstand criticisms from the public
whom they supposedly serve?
Third, if they are "public"
institutions (I have in mind here organizations like the GIC,
HDB, CPF, etc.) why are their operations, especially the
financial aspects, not made public?
It is interesting that
you have called on your fellow court officers to "rise"
to counter what my colleagues and I are saying and doing. If what
I have described in this missive to you is as unfounded as you
suggest, then there is hardly any need for such a dramatic, might
I say even nervous, response. I am sure your colleagues in the
legal service are able to think and decide for themselves if
indeed there is the rule of law in Singapore.
The rule of
law is not a title we adorn on ourselves. It is a way of
political life, something that we practice instead of merely
announce in opening addresses. In this regard, whether the rule
of law is present or not in Singapore will be seen and felt by
Singaporeans as well as others looking in at us. No matter how
shrill you scream from your pedestal, you will not change the
fact that the system that we presently have makes a mockery of
the rule of law.
Sincerely,
Chee Soon
Juan
Secretary-General
Singapore Democratic Party
c.c.
The Law Society of Singapore (via Fax: 6533-5700)
|
|
