by JB Jeyaretnam, 1999
ON THE RULE OF LAW
At the sitting of Parliament on the 24 Nov 1999, I spoke by way of a motion on the RULE of LAW. The government pays lip service to the rule.
Ministers speak time and time again of Singapore's adherence to the RULE of LAW.
Yet we have on our statute books the most flagrant violation of the RULE - empowering the government to imprison a subject without first prosecuting him in a court of law — allowing the court to decide whether the subject should be imprisoned for an offence known to the law. This is not the only instance of the violation of the RULE.
In 1987 a delegation from the New York Bar came to make a study on how far the RULE obtained in Singapore. The government had detained 22 persons on suspicion of being a danger to the security of Singapore. The delegation in its report said the RULE had been reduced to mere symbolism.
There can be no democracy in a country where the RULE of LAW does not obtain — where the Ministers and law enforcement officers do not act under law. As I said in my speech such conduct is more akin to mafia rule rather than the RULE of LAW. Democracy if it means anything means that citizens live their lives under the certainty that they can only be punished for a breach of the law found against them by a court of law. Democracy also demands that everyone should be equal before the law. The Prime Minister of
the country and the dustman are equally entitled to the same rights and protection and under the same duties.
The Ministers appear to confuse the RULE of LAW as meaning RULE BY LAW. RULE BY LAW may validate the Internal Security Act because it has been passed by Parliament but the Act violates the requirement of natural justice - a vital component of LAW even though‘ unwritten. Natural justice was part of the common law which was imported into Singapore in the middle of the last century under the Charter given to the East India company. A dictator governs by decree which serves as LAW in the country and consequently validates the exercise of arbitrary power which has no place in a truly democratic society.
So law is not just the Acts passed by Parliament but the fundamental rules of natural justice that have been accepted and become part, and parcel of the common law and which, as they say, and which I have been saying, was the law in Singapore in operation before that. I was talking about the misconception in the minds of our Ministers. And it comes to my mind that sometime in the 1980s when l was in this House, there was a debate on the Internal Security Act. I said then that the provisions in the Act providing for detention of persons under an order of the Minister was a blatant negation of the Rule of Law. I said there was no question about it, because it blatantly disregarded the fundamental rules of natural justice. The then Minister for Home Affairs, Mr Chua Sian Chin, in replying asked: ‘'15 the Member trying to say that the lnternal Security Act is not law‘? lt was not passed properly"'There you have the misconception.
Even an Act of Parliament can violate the Rule of Law. It can violate the Constitution and that is specially provided by the Constitution which says that any Act which is inconsistent or contrary to the Articles of the Constitution shall to that extent be void. And further by Article 162, it enjoins the Government and the courts to modify, alter and interpret Articles in any law so as to comply with the Articles in the Constitution, if that law seems to conﬂict with anything in the Constitution. So it is no answer to say, "Oh, we have the law, and that is it”. The question is whether the law itself violates the Rule ofLaw as understood through the centuries. That is the main question»
I think I have said enough to try to deﬁne what we are talking about when we say the Ruie of Law is supreme and what is meant by the Rule of Law. I must now proceed without any further delay - I see time is running on — to list what I see to be the instances or examples of the violation of this fundamental principle of the Rule of Law in Singapore.
Mr Speaker, Sir, after i have listed them, I shall proceed to set out what I think the Government should do immediately, and then return back to this list of violations to try and explain how they vioiate the Rule of Law. The first on my iist of the examples of vioiation of the Ruie of Law is course, as has been asserted by us many a time, the arrest and detention of persons without trial purely on the arbitrary power invested, by Pariiament albeit, on the Minister. A person in Singapore can be detained without trial under the internal Security Act, under the Criminal Law (Temporary Provisions) Act and also under the Misuse of Drugs Act, although some justification may be found for the detention under the Misuse of Drugs Act.
The second is the arrest by police officers and other law enforcement officers without informing the subject of the charge. it is absolutely important under the Rule of Law that a person's liberty should not be deprived. He should not be deprived of his liberty, or in any way restrained unless he is first told of the law under which that can be done, and why it should be done. Also incidental to this is the searches - search of a person‘s house carried out by the poiice and other law enforcement agencies. There again a citizen is entitled toinsist that any search of his house be strictly in accordance with the law.
Thirdly, the denial of the right to counsel — denial of the right of arrested persons - to counsel and to visits from families for a period of time.
Fourthly, there is the denial of bail by the courts without adequate reasons. I am referring to the often heard request from police officers prosecuting to ask for a remand in Police custody when the accused is ﬁrst produced in court. As I said once before, usually that request is granted without any inquiry, and l shall explain why it violates the Rule of Law.
Then the one which we the Opposition have often raised — it is the ﬁfth one — the denial of the freedom of speech and assembly. That violates the Rule of Law. And when I say about freedom of speech and assembly, of course, I am also referring to the freedom of the newspapers to publish — the freedom of the press. That is part and parcel of the freedom of speech. Sixthly, denial of reasons for executive decisions and shutting out appeals to the courts. As l shall say, now in almost every Act. one finds this denial of reasons for decisions and not allowing any recourse to the courts. Seventhly. the restrictions on the right to travel out of Singapore, the impounding of passports without an order of court. When I come to illustrate, I shall, of course, refer to the case of Mdm Teo Siew Har whose passport was detained for several months for no reason at all under the law.
Then we have the eighth on the list - the power given to the Housing and Development Board to throw out lesees or tenants without having to take them to court. That is, if ever there was one, clear violation the person's rights and the Rule of Law. Then we also have have the suspension and cancellation of people's licences by executive officials, and l have in mind, of course, the licences of taxi drivers, without a proper judiciary enquiry.
So you have in Singapore an abundance of power exercised by the executive through its officials which offend the Rule of Law. That is the first limb - that no one shall be deprived of anything, except under the law. Now, if I may come to the second limb, the equality of all persons under the law, and as Prof Dicey says - from the the Prime Minister down to the constable they are equal before the law. The Prime Minister is not more equal than a postman or a collector of rubbish.
And under this, I have about four heads, and that is, the blatant violations during election time by Government and Ministers to secure the victory of their party the ruling party, including intimidation of voters. There you have clearly the law not evenly applied as between one Party and another.
Then we have the disparate treatment of Opposition political parties in their applications for licences to hold their activities or conduct their programmes. I will explain that if we have the time.
It is like not seeing the wood but just simply seeing one or two trees there. But if you want to commend the Government for upholding the Rule of Law you have got to answer a number of questions and ask whether the Rule of Law has been observed in the situations that are being looked at.
Prof. Chin again raises. what was already said by Mr Simon Tay, that the laws are properly enacted, passed by Parliament and subsidiary legislation is made under the authority ofthe parent legislation. We all know that. But the point is, as the Privy Council pointed out in the judgment of Ong Ah Chuan that even an Act of Parliament may violate the Rule of Law if it is completely contrary to the rules of natural justice. Of course, Parliament, which is controlled almost entirely by Members of the Government party, can pass any law according to the Constitution.
Having more than a two-thirds majority the Constitution can be amended at any time. That is why it is absolutely essential in any democratic society that the ruling party should never have more than a two-thirds majority if the country is to have a stable democratic government. It follows without any explanation. Otherwise, it becomes a tyranny, a tyranny by the Party which controls Parliament. as we know the situation in Singapore.
From 1966 to l98l. it was an entirely PAP Parliament. There was no one from any other party in Parliament. So it was one party passing laws, yes. strictly following the Constitution, the procedure - but ignoring the fundamental rules of natural justice and claiming that they were abiding by the Rule of Law when they passed/any Bill. That it had been passed in accordance with the Constitution. That is not compliance with the Rule of Law as the Privy Council tried to point out.
After l98l. Parliament continued with a majority of PAP Members And this is the great drawback in Singapore and the one on which the PAP has capitalised. and that is. they go to any length to keep out any Opposition building up in Singapore. That in itself to me, is a flagrant violation of the Rule of Law. I will illustrate what l mean by making references to how elections are conducted.
Elections in Singapore are all one-sided. The ﬁeld is not an even playing ﬁeld. It will be idle to pretend that we have an even playing ﬁeld in
Singapore when it comes to elections. I have said this before. In many countries. particularly in the Commonwealth countries, elections are the
responsibility of an independent body that is, the Elections Commission. Do we have an Elections Commission in Singapore? The Opposition parties, I remember. asked for it in the l970s. Have we got an Elections Commission? No. The elections are run as though it was a matter for the Government. and Government alone. It is run on the decree of the Prime Minister in whose Ministry the Elections Department is put.
So. where is the Rule of Law there to ensure equality to all parties to contest the elections’? Straightaway, you have a fundamental breach of the Rule of Law, when you. on your own. decide to re-draw boundaries just because an Oppoition Party has gained a foothold in one constituency. You decide you will bring it into a GRC, put it with other constituencies. This is done ad nauseam to ensure that the Opposition is kept out of Parliament. So, that is a glaring instance of a violation of the Rule of Law.
And then when it comes to the actual conduct of the elections, I am surprised that no attempt is made to try to answer what I have said in myspeech. I mentioned about the conduct of the Government Ministers during an election campaign. Have Members here forgotten how the Government won the constituency of Cheng San‘? The Parliamentary Elections Act has a provision which says that any elections won by intimidation or bribery of voters is illegal and can be set aside on an election petition.
What took place on lst January I997? The Prime Minister came to Cheng San, held a rally and he had only about 2,000 people in front of him and what did he he say? Did he say. "You vote for the PAP. we are a better party. the Worrkers’ Party cannot be trusted?" That is all in the rules. What did he say to the voters? Please look it up. It was next day headlined in the Straits Times I will come to that. That was another violation of the Rule of Law. In the front page it said "PM to voters" -all or nothing". You vote for the Workers’ Party, you would not get anything. Even what you have in the way of any benefits will be taken away from you. But if you vote for us, you will have what you have got and you are going to get more. But if you vote for the Workers’ Party upgrading will cease, you may not get your MRT, trains will not stop here, you would not get your LRT, you would not get your new town, your children may not get good places in schools. lf that is not intimidation, I would like to know what is intimidation.
That was his threat, all or nothing. We referred this matter for an opinion to a Queen's Counsel in London and he said it was clearly an intimidation and in breach of the section under the Parliamentary Elections Act. PM told the voters that if they did not vote for the PAP, they were going to lose everything. But that is not all. On election day, when the law is that no one. other than the voters, the candidate and his agent, will be allowed into the polling centre, we had the Prime Minister and the Deputy Prime Ministers driving in, shaking hands with voters queuing up to vote, and going beyond that into the area where they were casting their votes, watching over them. That seemed to us to be a clear breach of the Parliamentary Elections Act which says that no one. other than the voters, the candidate and his agent will be allowed, besides of course the election officials and the police officers to keep order. If that is not a violation of the Rule of Law, what is it then?
May I also refer to the publication by the papers. The Straits Times carried it on their front page. I have no doubt that the Chinese newspapers also carried the same message on their front page. The New Paper thought that it would go better. It tabulated. for the benefit of the readers, what they would get and what they would not get, depending on their choice. Vote for the Workers’ Party. you would not get this, you would not get that, etc. The Parliamentary Elections Act says that on polling day itself. there shall be no campaigning, there shall be no intimidation. there shall be no forcing of voters and yet, the papers blatantly carried all these on polling day. Was any action taken against the papers? Is that a violation of the Rule of Law or not? And yet, we are asked to commend the Government for upholding the Rule of Law and ensuring that it is fully observed by all. I selected the elections because that is the starting point. the main foundation for ensuring that there is a democracy — a properly elected government ruling the country, a government elected by the people with complete freedom to chose their representatives without any fear, without
Did the Cheng San voters have that freedom? Will you please try and answer that? You have the Prime Minister, not the PAP official. You have the Prime Minister because he was already Prime Minister on nomination day. There was no question that he would be the Prime Minister. He went there and he said this. So what freedom ofc hoice did the Cheng San voters have? Let us be honest and ask this question. Here is the Prime Minister telling you, "I am going to withdraw everything from you." What is more. he told them. "If you vote for us you’ll have a hot line to me. You'll have a hot line to the two Deputy Prime Ministers." l have been telling some of the Cheng San voters, "Why did you not ring up the Prime Minister?‘
‘Ring him up and say. This is the hot line, Mr Prime Minister. Will you listen to me? And see what response you get".
The detention under the lnternal Security Act is not answered simply by saying that we may need it. It is justified. The question you have to answer is does it or does it not violate the Rule of Law? The rule, as I said, was propounded in the l3th century when the Barons said. "No one will be deprived of his liberty except by a lawful judgment of the court." is it or is it not a violation of the Rule Of Law." It is no answer to argue that it is necessary because you want to keep Singapore safe. If you want to keep Singapore safe. then shoot all criminals. Then perhaps people may not take to crime. Have summary trials. summary justice and then Singapore may be safe. But is that what we want in Singapore‘?
So we must look at the picture as a whole. Does detention without trial violate the Rule of Law‘? Do not just say that it keeps Singapore safe. we will not have any trouble if we keep the ISA. Let us be honest and say. "No. in Singapore. we do not uphold the Rule of Law. We don’t think the Rule of Law really is necessary for our society because we want to keep Singapore safe. So we are going to give our Ministers arbitrary power to keep Singapore safe." Then, at least, the world will know that we are being honest, that we are not interested in the Rule of Law. We have our own way doing things. But if you keep saying that we observe the Rule of Law. then you have got to ask the question, do we? And if you examine the record of this Government, certainly from 1965 onwards, you will find that this is a Government which, through its Ministers. through its civil servants. especially the law enforcement agencies violate the Rule of Law. l have mentioned the instances.
But as I said. you do not just look at one instance or two instances. l could go on and explain in detail. but I do not think I will have the time for that.
The way Police investigations are carried out violates the Rule of Law, not informing arrested persons of their right, denying them counsel once they are taken into custody for up to three weeks violates the Rule of Law. Yes, you can, of course, say it is necessary. Our police have to investigate. Our police have to stamp out crime. So we have got to give them these powers. Let us say we do not want the Rule of Law. For us, it is more important that ourofficers have the power to get criminals out of the society and, similarly, with other powers of the police.
The amendment ignores the realities in Singapore. It does not look at the situation in Singapore but seeks approval or approbation because ‘Singapore is such a good place‘. Everyone is happy. That is questionable. But it ignores the realities. We have the results. The means do not matter. But means are important. It is the means which will justify the end. not the end that justiﬁes the means.
The other constant theme of Mr Simon Tay and even Prof. Chin is, "Go to the courts. go to the courts." But that is to miss the whole point of the argument. Does Mr Simon Tay know that with the amendment to the Internal Security Act. the courts are now precluded from inquiring into the merits of the detention‘?
Mr Simon Tay: May I clarify?
Mr Jeyaretnam: Do that afterwards. This happened after the Court of Appeal in 1989 decided it would no longer follow its past.
Mr Deputy Speaker: Order. Mr Jeyaretnam, you have used up your 30 minutes.