Mr Chao Hick Tin
Republic of Singapore
By Fax: 6332-5984/6332-5278
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 prescribed 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.
Chee Soon Juan
Singapore Democratic Party
c.c. The Law Society of Singapore (via Fax: 6533-5700)
SPEECH BY THE ATTORNEY-GENERAL AT THE OPENING OF THE LEGAL YEAR 2007
Supreme Court Auditorium, 6 January 2007
May it please Your Honours, Chief Justice, Judge of Appeal, Judges, and Judicial Commissioner of the Supreme Court.
We are gathered here once again to welcome the new Legal Year, but this time with a different Chief Justice who is no stranger to the Bench and the Bar, and whose “determination to uphold the rule of law and respect for the integrity of the law and a fair judicial process are also well known to the legal community” . Given the historical significance of this occasion, we are looking forward to receiving guidance from you, Chief Justice, on the expectations in the administration of justice for the coming year, which Your Honour will deliver in a moment.
Those of us who follow closely legal developments elsewhere probably know that the United Kingdom (“UK”) had in late November last year introduced their Legal Services Bill in the House of Lords. If the Bill is eventually passed in its entirety, the UK will have an independent oversight regulator, at the apex of a new regulatory framework, that ensures other approved regulators function to the required standards in keeping with better defined regulatory objectives. It will also see the creation of an independent Office for Legal Complaints. This means that the handling of legal complaints will, for the first time, be removed from the legal professionals. Under the proposed law, different kinds of lawyers, as well as lawyers and non-lawyers, can also set up alternative business structures to deliver legal services in innovative ways to meet new customer demands.
These proposed changes are indeed fundamental in a country that has a Bar Council and a Law Society which are historically strong and independent. More significantly, the UK is already the second biggest exporter of legal services in the world. It is in a position of strength and leadership in the supply of legal services that is unmatched by most countries. In the words of the Lord Chancellor “the expansion of the major UK law firms into new markets overseas seems to be unstoppable”. Still, the UK finds it necessary to reform their regulatory framework in order to maintain their leading edge in the international trade in legal services.
I am not for a moment suggesting that the proposed regulatory reforms in the UK are necessary or even suitable for our fused legal profession at this point in time. I am drawing attention to the UK developments to simply make the point that no country, however foremost it may be in the provision of local and foreign legal services, can avoid reforms to better position its legal services sector in an increasingly competitive global economy. The UK example also highlights the importance of being forward looking in a rapidly changing environment. Unlike the UK, our legal services sector presently does not have the critical mass. The pre-eminence of English law as the preferred law in the commercial world is also a competitive advantage that we presently do not possess. Nevertheless, we are no less forward looking than the UK in our own efforts to become a leading regional, if not a global, provider of legal services.
In August last year, the Government accepted the key recommendations of the Third Committee on the Supply of Lawyers to increase the number of lawyers. This has been necessitated by the acute shortage of practising lawyers, coupled with enhanced demand for legal services due to regional economic growth. To address these challenges, Singapore will have a second law school in the Singapore Management University. In addition, Singapore citizens and permanent residents who graduated from recognised overseas law schools with second class lower division honours or equivalent can now practise law upon meeting certain conditions. This move is greatly appreciated by those who just missed the required class of degree, as it gives them a second chance to fulfil their aspirations for legal practice.
These supply-side measures will ultimately increase our pool of lawyers. But the Bar must still address the worrying trend of its dwindling numbers in the last five consecutive years. The legal profession must continue to explore effective ways to minimise the attrition rate of young lawyers who are in practice or have just joined the Bar. Law firms that are able to harness the benefits of an improving economy should seriously consider restructuring their work and pay practices to make the conditions and rewards of legal practice more attractive. Those less able to do so can equally make reasonable efforts to help young lawyers achieve a better balance between working life and social and family life.
A thinning Bar can be an early sign of an ailing profession. The identified causes of young lawyers leaving practice are stresses of practice, long hours, unrewarding pay, and perhaps unreasonable client demands. Could there be other deeper underlying causes? For instance, can it be due to a different mindset and expectation of a younger generation of law graduates? If so, should this be tackled at the undergraduate level or even earlier? Why do certain undergraduates choose a legal education without the aspiration of practice as a long term career choice, and are they in the majority? Or is it because the younger ones no longer see the profession as a noble calling due to the conduct of some black sheep that may have marred the image of the profession? These are important issues which should be considered by the Law Society, perhaps in conjunction with the law schools.
Pupil-masters can also do more to prepare pupils psychologically for transition into the real world of practice. Senior lawyers, especially those who have withstood the rigours of practice in the last 15 years, should by now have their mantra of how to effectively manage the stresses of practice. They can bring such useful knowledge and experience to bear on their pupils, who will no doubt benefit from their personal guidance. I therefore urge pupil-masters to have greater interaction with, and be closely involved in the nurturing of their pupils. Pupil-masters should not only impart practical knowledge to their pupils, but should also play a role in shaping young lawyers’ attitudes towards practice.
Beyond increasing the numbers to meet the growing legal services market, Singapore law firms have to improve the quality of their legal services so that they can compete effectively in the region. One way is for them to recruit high quality foreign legal talent to practise Singapore law in areas like banking, finance, corporate and regional work under a special scheme administered by my Chambers. The scheme will allow the blending of foreign and local legal expertise, so that consumers of our legal services can get the “best of both worlds”. This will better position our outward-looking law firms for regional and even global competition. For this reason, the entry criteria for such foreign legal talent are high. Each application will undergo stringent scrutiny, and those who manage to come on board will be subject to continued oversight by my Chambers.
The future for Singapore law firms and lawyers is promising. To ensure that our legal services sector continues to support Singapore’s plans for future economic growth, a committee headed by Justice V.K. Rajah is undertaking a holistic review of our legal services sector and will propose measures to enhance Singapore as an international hub for legal services. This may cover among other things the promotion of Singapore law as the preferred law in commercial contracts, and the promotion of Singapore as the choice venue for international arbitration. I am confident that Justice Rajah’s committee will present us with an even clearer picture of where we stand and the necessary strategies to take Singapore law and Singapore lawyers forward.
While the legal services sector is essential to our economy, of equal importance to the nation is the role played by the Singapore Legal Service. In line with Singapore’s aim to have an outstanding public service, a comprehensive review of the management and development of our Legal Service talents was undertaken last year. Legal Service Officers are either appointed as district judges, magistrates, deputy public prosecutors or state counsel, or hold other appointments in government departments or statutory boards. They perform a critical role in our judicial and legal institutions. The attraction and retention of the right talent is therefore of utmost importance. The review covered areas such as recruitment, assessment, training, development, feedback, talent management, succession planning and exit management. The Review Panel's recommendations were accepted by the Legal Service Commission in October last year. The measures that are in place should provide each Legal Service Officer with the opportunity to develop his or her potential to the fullest. This will in turn contribute to Singapore’s continuing judicial and legal excellence.
The past year has also seen leadership renewal for the Judiciary and the Attorney-General’s Chambers. During the period February to October, we have had a new Chief Justice, a new Attorney-General, a new and youngest ever Judge of Appeal, a new Supreme Court Judge, a new Judicial Commissioner and a new Second Solicitor-General. The holders of these appointments are all known to you and need no further introduction. The renewal process shows that we are indeed at another significant turning point in Singapore’s legal history.
In this context, a key area that requires refocusing and which is being done, is the administration of criminal justice. A 29th September 2006 Straits Times article on the recent changes in our criminal justice system commented that while our courts seemed to have become gentler on crime, “We do not want to become too soft on crime either”. Indeed, media reports and commentaries on the outcome of successful criminal appeals by defence counsel since May last year may have contributed to a perception that our courts have become more lenient to criminals than before. This perception is not necessarily correct. In my opinion, one should see these developments as a timely refinement of our penal jurisprudence to ensure that the punishment fits not only the offence but also the offender, which is desirable in the wider interests of society. Your Honour, Chief Justice, is presently chairing a review panel to examine and rationalize the current practices on sentencing and on the granting of bail. Its report will no doubt set the future direction of the administration of criminal justice.
One of the fundamentals of Singapore’s success is our firm commitment to the rule of law. Our laws are accessible, intelligible, clear and predictable. Questions of legal rights and liabilities mostly find resolution in this country by application of the law rather than the exercise of discretion. Save to the extent that differentiation is justified, everyone here is entitled to the equal protection of the law. Fundamental liberties are adequately protected in accordance with the law. There are various means to ensure that civil disputes are resolved without prohibitive cost or inordinate delay. Our public officials at all levels exercise powers reasonably and, if they are in doubt as to the limits of their powers, they invariably look to my Chambers as the first port of call. Even when powers are inadvertently exceeded, which is relatively rare, corrective measures are available.
In a country that observes the rule of law, it naturally follows that justice has to be administered independently and impartially in accordance with the law. Those in litigation practice know that in this country, it is the merits of the case that determine its outcome. The merits of the case in turn depend on the evidence and the law. The role of the judge is to interpret the law and apply it to the evidence to reach a logical and just conclusion. In the nature of things, especially in an adversarial system, the law cannot be in all parties’ favour. Yet, from time to time, we never fail to get parties who, when the law is not on their side, criticise the judges for being unfair or, worse, accuse the whole judiciary of lacking independence.
Of course, some indefatigable critics have their own agenda to bring into disrepute key public institutions. There are those who consider that they have a right to break the law in order to make a political point or to ventilate a grievance they might have against the authorities. They are often encouraged by foreigners in the name of human rights. We should be wary of this. The rule of law means that all persons in Singapore are subject to the law, regardless of their political, ideological or religious affiliations. To allow certain individuals to flout the law is to undermine the very basis of the rule of law. Attacking the judiciary is easy, because judges here traditionally do not engage in public debate. Neither do they answer their critics directly. Unsubstantiated allegations, even if rebutted, can erode public trust in the administration of justice and shake their confidence in the rule of law. Respect for the law is something that we lose at our peril. Once respect is lost, it will take much time and effort to regain.
The response of our judiciary has been to render justice to whom justice is due, regardless of the standing or political persuasion of its critics. For the rest of us who are officers of the court, we have the duty to dispel any myths about the judiciary that can mislead the public. We should therefore rise and refute any scandalous and unfounded criticisms, and robustly defend the independence and impartiality of our courts, and the probity and integrity of our judges. Such criticisms against our judiciary there will always be, for as long as the critics do not achieve what they wish. I therefore hope that our Bar will continue to support our judiciary, as it did last year when it drew on its members’ daily experience and with fairness and justice in the courts to counter a contemnor's baseless allegations.
Before I conclude, I would like to remember a retired member of the Supreme Court. He is Justice Lai Kew Chai, who retired from the Bench after 25 years of distinguished service. Unfortunately, soon after his retirement, he passed away. Justice Lai was known for his strong sense of fair play and unfailing courtesy. He was a friend and a colleague who was always prepared to take in arguments from a fresh perspective. In one case , he boldly departed from an established 1890 English authority so that his decision can “reflect the mores and sense of justice” of the Singapore society. That landmark ruling was later endorsed by the Privy Council in another case on appeal from Hong Kong . Justice Lai had made significant contributions to the development of Singapore law.
Finally, in keeping with a tradition that has been in practice in these courts for some fifty years, on behalf of all the Legal Officers in my Chambers, let me renew our pledge to support Your Honours in the administration of justice and in upholding the rule of law. I also wish Your Honours, Mr Philip Jeyaretnam, and all members of the legal fraternity a healthier, happier and better year ahead.
(12 Jan 2007)