14 Feb 2012 Posted in Speeches
Honourable Chief Justice Chan Sek Keong
Professor Simon Chesterman
Professor Michael Furmston
Ladies and gentlemen
- Thank you for inviting me here and for organising this symposium:
- Professor Michael Furmston
- Singapore Academy of Law
- National University of Singapore
- Singapore Management University
- Over the years, there have been many debates on what the Rule of Law actually means, and what it should include.
- “thick” and “thin”
- Rule of Law - Rule by Law
- It is not so appropriate to get into that today.
- It is much more useful to set out, for our purposes, how the Rule of Law operates here and what our approach is.
- I will make three points and elaborate on them:
- First, for us, we accept the Rule of Law as a universal value, which is the foundation upon which this country was built; and
- Provides the framework for the proper functioning of this country.
- Second, the Rule of Law must be applied in a way which recognises the practical realities that confront it, to achieve good governance and improve the lives of the people.
- Third, I will touch on some situations where exceptions have been made to the due process of law.
- The Rule of Law: Foundation for Singapore
- Singapore has a short history as a sovereign state.
- Unlike many other countries, we were not founded:
- On a shared, long historical experience;
- A common ancestry or tradition; or
- A unity born out of revolution.
- In fact, we were a highly improbable nation:
- What defined Singapore, and made it a nation, were shared ideals. Some of them:
- Equal opportunities for all, regardless of background, status, race or language
- A commitment to meritocracy
- A commitment to equality before the law and zero tolerance for corruption
- A commitment in economic terms to free trade and the market system
- A determination to develop Singapore, to succeed against all the odds
- These ideals could only be realised through the law and the legal framework.
- There was no other way. For this framework towork, the Government must itself abide by the law. And this approach was also afundamental economic necessity, because essentially we required investments foreconomic progress. Foreign and domestic investment will not come in unless therewas a system that honoured contracts, enforced contracts and enforced protectproperty rights.
- In that sense, the rule of law was for us not only an aspiration and an ideal, but also a necessity borne out of exigency.
- Against the odds, we have done well.
- There are many aspects to this, in terms of quality of life indicators, social progress indicators. But I will use economic indicators for Singapore’s snapshot.
- At the end of 2010, the stock of foreign direct investment in Singapore stood at $622 billion. There is no way that amount of money will come into the country unless people believed that their investments were safe.
- In 2011, our real GDP per capita was US$40,000. In 1965, it was US$500.
- I don’t think there is any other city or country that has made that progress between 1965 and 2011.
- Singapore remains committed to the Rule of Law as a foundational principle.
- Let’s look at the aspects to that:
- The Constitution is the supreme law of the land. It includes a Bill of Rights. The separation of powers is enshrined. The laws are interpreted and applied by an independent Judiciary. Parliament and President are elected.
- The supremacy of the law means that the Government has to act in accordance with the law and society as a whole, including the Government, has to have respect and have a climate of respect for the law in society.
- There can be no tolerance for wrongdoing and corruption either in the public or private sector
- Rule Of Law: Practical Application
- There is very little use in having legislation, the best Constitutions, embodying the highest ideals, only to do something else in practice, as many countries do. I once mentioned in Parliament that if you look through the Constitutions of the world, today the best Constitution appears to be in North Korea. And Pakistan has an administrative Constitution as well. So it is a question of how the laws and the Constitution apply in practice.
- The law has to be applied, and to the extent necessary, the ideals have to be adapted to apply for the benefit of the society.
- And I quote from Mr Lee Kuan Yew (Speech to University of Singapore Law Society, 1962):
- There is a gulf between the principles of the rule of law, distilled to its quintessence in the background of peaceful 19th century England, and its actual practice in contemporary Britain. The gulf is even wider between the principle and its practical application in the hard realities of the social and economic conditions of Malaya. You will have to bridge the gulf between the ideal principle and its practice in our given sociological and economic milieu. For if the forms are not adapted and principles not adjusted to meet our own circumstances but blindly applied, it may be to our undoing. …
- The rule of law talks of habeas corpus, freedom, the right of association and expression, of assembly, of peaceful demonstration, concepts which first stemmed from the French Revolution and were later refined in Victorian England. But nowhere in the world today are these rights allowed to practise without limitations, for blindly applied, these ideals can work towards the undoing of organised society. For the acid test of any legal system is not the greatness nor the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice in the relationships between man and man and between man and the State. To maintain this order with the best degree of tolerance and humanity is a problem which has faced us acutely in the last few years as our own Malayans took over the key positions of the Legislature, the Executive and the Judiciary. ...
- Justice and fair play according to predetermined rules of law can be achieved within our situation if there is integrity of purpose and an intelligent search for forms which will work and which will meet the needs of our society. Reality is relatively more fixed than form. So if we allow form to become fixed because reality cannot be so easily varied, then calamity must … befall us.
- I would also like to quote slightly extensively from Mr Larry Diamond, a professor at Stanford (paper presented to Seminar on Democratic Consolidation: The International Context and the Mexican Experience, 2003):
- Consider the archetypical badly governed country. Corruption is endemic throughout the system of government at every level. Everywhere, development promise is sapped by corruption. Public infrastructure decays or is never built because the resources from the relevant ministries are diverted to private ends. Decisions on public expenditures are tilted toward unproductive investments—sophisticated weapons, white-elephant construction projects—that can deliver large kickbacks to the civilian officials and military officers who award them. Clinics are not stocked and staffed, roads are not paved and repaired because the funds for these essential dimensions of development are squandered and stolen. Businesses cannot get licenses to operate and small producers cannot get titles to their land because it would take half a year and a small fortune to navigate through the shoals of a bloated, corrupt state bureaucracy. State bureaucracies remain littered with pointless and debilitating regulations, each one of them an opportunity for corrupt officials to collect rents.
- In a context of rotten governance, individuals seek governmental positions in order to collect rents and accumulate personal wealth—to convert public resources into private goods. There is no commitment to the public good and no confidence in the future. Thus, there is no respect for law, and no rule of law. … Lacking a sense of public purpose, discipline, and esprit de corps, the civil service, police, customs, and other public institutions function poorly and corruptly. Salaries are meagre because the country is poor, taxes are not collected, corruption is expected, and government payrolls are bloated with the ranks of political clients and fictitious workers. Corruption is rife at the bottom of the governance system because that is the climate that is set at the top, and because government workers cannot live on the salaries they are paid. In fact, institutions in such a society are a façade. The police do not enforce the law. Judges do not decide the law. Customs officials do not inspect the goods. Manufacturers do not produce, bankers do not invest, borrowers do not repay, and contracts do not get enforced. Any actor with discretionary power is a rent-seeker. Every transaction is twisted to immediate advantage.
- Look around the world today. How many countries do you think fit that description, whether in Asia or outside of Asia? These are hard questions – countries which profess to the highest ideals of democracy, countries which hold free elections. How many of them fit that description? I suspect a rather large number.
- When you read commentaries on many of these countries, you will only hear good things about elections, because nobody bothers to look beyond the veneer of the process into how the state functions. What does Rule of Law really mean? What does it mean to the lives of people?
- We were determined to avoid that result, because the Rule of Law ultimately has to operate to deliver good governance. That has to be fundamental. So we look at the Rule of Law not only as the foundation of the state, but also a dynamic concept of framework and architecture that will actively provide for the progress of society – if it is properly adapted and used.
- Let me illustrate what I mean, with some examples.
- Checks and balances
- Everyone accepts that there should be checks and balances within a system, to prevent abuses of power.
- One model, that of the US:
- The Constitution is virtually impossible to amend.
- The President, two Houses of Congress, federal and state structures – all set up to check each other, because of a deep distrust in the power of government.
- The result is that the US finds that it is not always able to move quickly. It takes some time to get to a consensus, decide, and then move.
- A country like the US can afford such a system. We can’t.
- In Singapore, we inherited the British model – less checks and balances than the US. We then adapted that model to suit our circumstances.
- An analogy that is often used is that the US can be considered to be an aircraft carrier. We are a small little boat in the ocean. Decision making processes are streamlined. Executive Power is intentionally made strong and united. The legislature and executive are able to act quickly to get laws passed and policies implemented. Government has to adapt to changing needs, and change laws and seize opportunities. Some people have criticised this as Rule by Law. But the ultimate purpose is good governance and the betterment of society. And for a young developing society, such an approach is necessary.
- We have checks and balances even though they are not like the US. The ultimate check and balance has to be:
- Free and fair elections
- Low barriers to run for parliamentary elections, without too high a cost, unlike say, the US
- Our highly educated electorate which is able to decide for itself on the policies, and
- A scorecard at the end of each term so people can decide on government’s performance.
- Criminal justice system
- It is a given that there should be due process, the presumption of innocence – these are universal values.
- At the same time, the aim of the criminal justice process should be the discovery of truth, not the frustration of justice. To this end, we have adapted our system, and have discarded rules which have no probative value, or which do not work for us.
- For example – jury trials:
- They are of questionable utility - especially in complex cases
- It does not really work, either in civil or criminal cases. There is a lot of emotion involved, and jury selection becomes a very difficult process. Often, winning or losing depends on the jury. We prefer a system where merits are tried in court by a judge who is highly qualified, who will not usually be swayed by emotion.
- Likewise for criminal cases, they avoid issues of what the race of the jury is, how they play up the jury’s emotions and the science that goes behind jury selection.
- Land acquisition
- Respect for private property is fundamental to a market economy, and for investors to invest. On the other hand, when the government started out in the 1960s, it set itself a key social goal, which is not consistent with the free market system, of making sure that there was substantial home ownership in Singapore. The result is:
- Today 85 per cent are public housing
- Total home ownership crosses 90 per cent
- The reason is because a large part of the land in Singapore in the 60s was in private hands. If we had left it alone, as most other countries and states do, then we would not get these statistics. Private property is elevated over the concept of universal home ownership. It really depends on the goal, and is for the people to decide. We decided we needed to give every Singaporean a stake in Singapore. And the way we would do it, having a rule for that, and owning that rule, is a key political and social goal.
- For that, we will acquire land. We will not enshrine in the Constitution the right to private property, as was done in India and other places. Instead, land acquisition will be channelled to a separate process with a tribunal, with extensive powers to acquire and redevelop. In many countries such powers can be abused for private gain. For Singapore, land was taken from a few and redistributed to everyone.
- It was also essential to acquire and redevelop land, to entirely remake the physical face of Singapore, for economic reasons, for investments, for factories to be built, and for business buildings to be put up. This is another area of social justice – to provide employment for the people.
- When the World Justice Project (WJP) came up with their Rule of Law Index, they had not understood this. In 2010, they gave us very low marks in this area in 2010.
- Their starting point and ending point, at that point, was that government expropriation was undesirable.
- The next year, we engaged the WJP on this and explained to them.
- WJP understood and they were prepared to improve our score card by a little.
- Approach to crime
- We take a tough approach to crime and we make no apologies for that. We have tough gun laws – probably one of the toughest in the world, a tough drug policy, and vigorous enforcement.
- And coupled with a socio-economic system where there is no need to turn to crime. There is economic development at all social levels, no isolated inner city slums with a culture of criminality, and low unemployment rates, a property owning society and high levels of education.
- The result is an entire city-state of primarily law-abiding people; a safe city. Children can take public transport on their own; women can travel alone anywhere, anytime. That is a very important right and privilege that Singapore has had, compared to most places in the world. Some statistics on homicides and violent crimes:
|US Definition / Singapore Definition
||New York City (2010)
|# of cases
||Per 100k popn
||# of cases
||Per 100k popn
|Murder & non-negligent manslaughter / Murder
Burglary / Housebreaking
- The Rule of Law must be implemented in a way which recognises each society’s particular needs and practical realities.
- We can be proud of our Constitutions, but nevertheless, over time there may a need to change them to reflect the changing needs of society.
- And Constitutions have to be adapted differently to different societies as well.
- Frequently, commentaries of Singapore and other countries take the American Constitution and apply it. That is the golden standard, and we have to be judged with reference to that golden standard, without any qualification or variation or adaptation for a different society.
- Last week, I was in Washington and visited the Jefferson Memorial. And this quote on the walls of the memorial made a deep impact on me:
- Thomas Jefferson:
- “...laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
- So, without referring to another particular country or system, we can take pride that our Constitution remains unchanged for the past 250 years.
- Let me now say a few words on corruption.
- Even with the strictest laws, there will still be individuals who fall short from time to time. When this happens, it is a test of the system to see whether it is able to respond swiftly and decisively.
- This is the case in Singapore. If you break the law, action will be taken against you. No matter that you are a Cabinet Minister, a senior civil servant, or a public official of a lower rank, or from the private sector. The way we try to minimise it is through the careful selection of people.
- But that and everything else we have will not eliminate wrongdoing. No system can eliminate that. There will be people who will do wrong. This happens in every system, every society. So what we really need is to follow up with effective, strict enforcement. And where there are public servants, I would even say harsh enforcement. That way, everyone knows that the likelihood is very high, of being caught and dealt with. And when you have a system operating like that, when offenders are caught and dealt with severely and there is a culture of intolerance towards corruption, then what you get is a relatively clean system.
- But we never forget, and despite all that, people still fall short. So the principle is - Be you ever so high, the law is still above you. This is a quote from Thomas Fuller.
- Some exceptions to due process
- I will touch on the situations in Singapore where exceptions are made to due process.
- In the interest of time I will focus on the law which is often commented upon: the Internal Security Act (ISA).
- There is a good reason for due process.
- Consequently – and let me be clear – derogations from the ordinary process of law call for explanation.
- It is in this context that we examine the ISA:
- The Act allows for preventive detention, without trial, on grounds of national security
- It is an exception to due process
- Is there a potential risk of abuse? Obviously.
- Is it necessary?
- On one hand, the gravity of threats to national security; and what would the consequences would be if such threats materialised
- Criminal law only provides for punishment after the fact; not prevention.
- The process of law is deliberate and does not lend itself to decisive, preventive action
- And often, it is not possible to divulge the evidence.
- And there are issues of territorial jurisdiction, depending on where the plans were conceived.
- The Act has safeguards built in to minimise this sort of abuse
- Detainees have to be informed of the grounds for detention as soon as possible
- Opportunities to make representation to the advisory board; to be heard within three months of detention, and regularly thereafter
- The advisory board chaired by a person qualified to be Supreme Court Judge, appointed by the Chief Justice; other two members appointed by the President.
- If the advisory board recommends release, then detention cannot continue unless the President concurs.
- There are countries who take the approach, like us, to say that we will not accept that risk and will balance it with the risk of abuse
- For years, the ISA has been criticised by foreign commentators. After 9/11, that criticism has been tempered somewhat.
- Other jurisdictions approach the issue differently. If you take the US,
- The war on terror was approached as an armed conflict, and not a law and order issue
- Terrorists treated as enemy combatants
- Detention at Guantanamo Bay as enemy combatants – intended to put detainees out of reach of US laws – although the US courts have now declared that habeas corpus runs to Guantanamo
- That is one approach.
- Ultimately, each jurisdiction needs to find its own balance between preventing threats and risking abuse.
- These are tough questions, and there are no easy answers.
- What is clear is it is not possible to say without qualification that the ordinary process of law must be inflexibly adhered to, and that there is no trade-off involved.
- Former US AG Alberto Gonzalez argued that civilian trials of terror suspects are simply not realistic.
- And to paraphrase the dissenting judgment of Justice Jackson in Terminiello v. Chicago (1948)
- Choice is not between with order and liberty. It is between liberty with order and anarchy with neither.
- If we do not temper doctrinal logic with practical wisdom, we turn the law into a suicide pact.
- Singapore is committed to the Rule of Law.
- We recognise the universality of its principles, but also stress that their application must be adapted to each society.
- Exceptions to the Rule of Law must be closely scrutinised and strictly justified.
- We do not claim that our system works for everyone, or that it is perfect. Our system has worked well for us, in our circumstances.
- We are committed to continually improving our system.
- We will continue to engage in dialogue with others who are also committed to the rule of law to improve.
- Thank you once again for inviting me to speak to you, and I look forward to hearing your views in tomorrow’s panel.
Last updated on 25 Nov 2012