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Rule of law in Singapore

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Introduction

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Overview of the different conceptions of the Rule of Law

There have been many attempts to formulate and define the rule of law. Academics over the years have come up with their formulations and ideas of what the rule of law should mean. The range of views can roughly be divided into 2 categories:

  • The ‘thin’, or formal conception of the rule of law
  • The ‘thick’, or substantive conception of the rule of law.

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Thin View of the Rule of Law

The 'thin' Rule of Law advocates the view that the Rule of Law is fulfilled by adhering to the formal procedures. People who who subscribe to the ‘thin’ rule of law are not apathetic towards the content of the law. However, as Dworkin says, “They say that this is a matter of substantive justice, and that substantive justice is an independent ideal, in no sense part of the ideal of the rule of law.”

Two prominent academics have expressed their views on the Rule of Law and formulated it in a 'thin' concept.

Albert Venn Dicey

Albert Venn Dicey says that the Rule of Law ‘may be regarded from 3 different points of view.

  1. The absolute supremacy of regular law; that a man is to be judged by a fixed set of rules and not to be ruled by any man’s preferences or liking; that he is to be punished by breaching only the law
  2. ‘The equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts’; where absolutely no man is to be treated any differently from any other, all men are to be judged under the same laws, in the same courts
  3. The constitution is the result of the ordinary law of the land, it is not the source but the consequence of the citizens’ rights

Joseph Raz

Raz too expressed a similar view, and expanding on this concept, Rule of Law, in its broadest sense, ‘the rule of law’ means that people should obey the law and be ruled by it. On the other hand, a narrower construction of the Rule of Law means that the government shall be ruled by and subjected to the law. In addition to requiring every legal system to consist of both general, open and stable rules, the doctrine of the rule of law also requires that, ‘the making of particular laws should be guided by open and relatively stable general rules.’ If the law is to be obeyed, it ‘must be capable of guiding the behaviour of its subjects’, that the people can find out what the law is and act accordingly. Further principles spring from the basic rule, that the law must be capable of guiding the its subjects’ behaviour:

  1. All laws should be prospective, open and clear. Laws should not be retroactive, and if a retroactive law is to be enacted, it must be known for certain, so that the retroactivity does not clash with the rule of law. The meaning of the law must also be clear.
  2. Laws should be relatively stable and not changed too often. It may be hard for people to keep themselves updated with frequently changing laws. People need to know the law both for short and long term planning.
  3. The making of particular (or specific) laws should be guided by open, stable, clear and general rules.
  4. Judiciary independence is essential. It would be futile to apply for adjudication if courts do not apply the law independently. Only if judges apply the law correctly can the people be guided by it, otherwise people will not base their guesses on the law if they try to predict the Courts’ decisions.
  5. The principles of natural justice must be observed. An open and fair hearing, an absence of bias and the rest of natural justice’s principles are essential for the law to be applied correctly.
  6. Courts should have review powers over the implementation of the other principles. This includes reviewing both subordinate and parliamentary legislation and administration.
  7. Courts should be accessible. Long delays, excessive costs and the like may effectively turn the most enlightened law to a dead letter and frustrate one’s ability effectively to guide oneself by the law
  8. The discretion of crime preventing agencies should not be allowed to pervert the law. Actions and omissions of authorities can subvert the law. The prosecution should not be allowed to, for example, decide not to prosecute certain cases while prosecuting other cases.
Virtues of the Rule of Law

One of the virtues of the Rule of Law is the restraint it imposes on authorities. It aims to exclude arbitrary power as it is said that most of the exercises of arbitrary power violate the Rule of Law. Arbitrary power is excluded when courts hold themselves accountable only to the law and conform to fairly strict procedures. The rule of law also guides law making and consequently, the executive’s powers. The second virtue is the protection of individual freedom, namely the sense of freedom in which it is identified with an effective ability to choose between as many options as possible.

To adhere to the rule of law will be to respect human dignity by ‘treating humans as persons capable of planning and plotting their future.'

Pitfalls of the Rule of Law

Raz also identified some of the potential pitfalls of the Rule of Law. He opined that as the rule of law is designed ‘to minimise the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be’, the strict pursuit of the rule of law may prevent one from achieving certain social goals which may be preferable to the rule of law.

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Thick View of the Rule of Law

At the other extreme, the 'thick' Rule of Law entails the notion that the law comprises of not just the acts passed by Parliament, but also the fundamental rules of natural justice that have been accepted and become part and parcel of the common law.

At the thickest end of the spectrum, it has been suggested that the idea of natural justice should be applied substantively, giving the courts the discretion to strike down law if its very object is unreasonable and oppressive.

One of the leading authors advocating this view is Ronald Dworkin. Albeit using different labels, his definition of the 'rights' conception, which is similar to the 'thick' view of the Rule of Law, is

"It assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familiar type, so far as this is practicable. The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the book capture and enforce moral rights."

Paul Craig, in analysing Dworkin's view, drew 3 conclusions.

  1. There is no place for a separate concept of the rule of law as such at all. It simply captures the theory of law and adjudication which he espouses. The need to preserve a firm distinction between “legal” rules and a more complete political philosophy is rejected
  2. The formal rule of law simply takes its place within the theory of law and adjudication, and is not considered as comprising or constituting the “rule of law”.
  3. The substantive view of the rule of law requires general conceptions of liberty, equality and the like to be revealed. The choice of the best theory of justice to inform the adjudicative process will necessitate the articulation of a more particular conception of these freedoms.

Features of the Rule of Law

Judicial Independence

Thin View

Thick View

Singapore

Judicial Review

Judicial review is the means by which legal rights are protected and good governance enforced. The process of judicial review is considered an element of the rule of law. The extent to which it operates however is dependent upon the imposition of either the thick or thin conception of the rule of law within a national framework.

Judicial Review under a thick rule of law

At its extreme, a thick rule of law operating within a system would result in the judiciary functioning mainly as a check on the executive. This ensures that executive power is not wantonly exercised as the judiciary acts as a safeguard against potential excesses in contravention of constitutional rights. This characteristic is highly desirable as it creates a degree of accountability on the part of the executive. Decisions clearly in contravention of constitutionally enshrined rights can be challenged easily by any person with recognized standing in the UK. The US and Australia however allow for more accessibility to the courtroom and so the standing requirement appears restricted to most other commonwealth nations. It is essentially a system in which the judiciary acts as referee between the executive and concerned public.

Judicial Review under a thin rule of law

The notion of a thin rule of law on the other hand grants the executive unfettered discretion with no room for interference by the judiciary. In other terms, any check on executive policy making is either illusory or non-existent. This form of rule of law is most often associated with socialist states. At the same time, whilst absence of judicial review of legislation is not uniformly accepted throughout democratic societies, it does not mean that the judiciary is not independent.

Judicial Review in Singapore

In Singapore, the process of judicial review involves review of executive actions for unconstitutionality in light of the doctrine of constitutional supremacy under the constitution. The vital role the judiciary plays as a check on executive power is noted in the holdings of the Court of Appeal in Chng Suan Tze v Minister for Home Affairs where it was held that all power given by law had legal limits, and that courts should be able to examine exercise of discretionary power, as is a requirement of the ‘thick’ rule of law. This was further illustrated in the case of Law Society of Singapore v Tan Guat Neo Phyllis, which held that prosecutorial discretion was subject to judicial review and could be curtailed where power was exercised in bad faith, for extraneous purposes or was in contravention of constitutional rights. As was noted by Chief Justice Chan Sek Keong, it is the role of the courts in Singapore is to give litigants their rights, whilst simultaneously playing a supporting role in the promotion of good governance through the articulation of clear rules and principles by which the executive could conform with the rule of law . It is of interest to note that 27.8% of judicial review cases in Singapore since 1957 have been successful.

Certain matters however are impervious to judicial review owing to limitations on the courts institutional capacity. Courts are generally reluctant to get involved in affairs relating to national security, leaving this role to the government. This is a feature common to both Singaporean and American courts. At the same time, Singaporean courts are committed to careful scrutiny of such a matter before deciding whether it is non-justiciable, as affirmed in Lee Hsien Loong v Review Publishing. There it was held that courts would exclude matters involving ‘high policy’ from their purview but still analyse a case carefully to determine whether or not it truly fell within an area of executive immunity.

Also, limitations on the role of the court have led to the rational conclusion that certain other areas are to be excluded from judicial review. These include matters in which the court lacks expertise and those which are polycentric, as held in the recent case of Yong Vui Kong v AG.

Natural Justice

Thin View

Thick View

Singapore

Exceptions?

Accessibility to the Courts

Introduction

Generally, justice is costly to provide and many legal systems, especially in Asia, are fraught with issues such as weak legal institutions, corrupt and incompetent administrative officers and judges, excessive delays and limited access to justice stemming from high legal costs and the lack of legal aid. It was agreed in the World Justice Forum in 2008 that access is key to advancing the rule of lawCite error: A <ref> tag is missing the closing </ref> (see the help page)., with an emphasis on the procedural aspects of the system.

On the other end of the spectrum, a greater emphasis is placed on elements of substantive justice. It is suggested that a legal system operating as such may, in addition to the basic elements of access to justice in a thin rule of law, incorporate a moral or political philosophy, may constitute “democracy and legality” and give precedence to human rights in the administration of justice. This may be achieved by, among other things, increasing the efficiency of the judicial process, having a robust legal profession and an incorruptible and independent judiciary, and a set of supporting institutions in order to increase the quality of justice administered.

Singapore

In Singapore, ensuring widespread and equal access to justice for Singapore citizens is a constant goal. In this respect, the judiciary takes a two-pronged (two-level?) approach in order to ensure that both procedural and substantive elements of the rule of law are fulfilled – firstly, by continually increasing the efficiency of the courts and legal processes and secondly, by regularly improving the skills,knowledge and values of administrative officials and judges.

Increasing efficiency In 1988, the Singapore courts undertook the enormous task of clearing its extremely large backlog in order to facilitate Singapore’s future development as an international business and finance centre. A multifaceted approach was adopted to dispose of cases expeditiously, including, among other things, the appointment of more judges and Judicial Commissioners, the use of information technology, electronic filing of documents and promoting the use of Alternative Dispute Resolution (ADR). Such efforts significantly expedited the management of cases, both in the Supreme Court and the Subordinate Courts. In particular, specialized courts such as the Small Claims Tribunal, the Family Court and Night Court were set up for better distribution of cases and have also helped to significantly reduce court fees.

Today, there are relatively few barriers to court access for litigants. The availability of legal aid and free mediation services assist litigants who may not be able to afford legal fees; the use of video links and establishment of regional offices of small-claims tribunals in various parts of Singapore assist parties who have difficulty coming to court. As such, the state of the courts and legal processes in Singapore today make justice much more accessible for the citizenry.

Increasing quality Over and above increasing the institutional capacity and efficiency of the courts, improving access to justice in Singapore has also meant a need for a corresponding increase in the quality of justice administered. Efforts to achieve this goal centre mainly on the appointment of the “best and brightest officers” and in particular, the constant upgrading of their skills and knowledge for judicial excellence.

For this purpose, the Judicial Education Board was set up to provide guidance, training programmes and workshops for members of the judiciary, and is supported by a training unit within the Strategic Planning and Training Division of the Subordinate Courts. Such efforts aim to upgrade the competence of judges and equip them with the requisite knowledge for handling increasingly complex cases.

Singapore's View of the Rule of Law

In Singapore, it appears that the authorities adhere to the ‘thin’, or formal concept of the rule of law. In a speech by the Minister for Law K Shanmugam at the New York State Bar Association Cite error: There are <ref> tags on this page without content in them (see the help page)., he said that the key aspects of a society based on Rule of Law was

  1. Exercise of State power should be through laws that are publicly known and enacted legitimately
  2. There should be independent, credible Courts to apply the law and decide on disputes between individuals, as well as between individuals and the State. There must be Separation of Powers
  3. No person should be above the law. That should apply in equal measure to the Government and officials as much as it does to everyone else
  4. There should be credible and effective means for people to challenge the arbitrary exercise of power

Additionally he said that other aspects of the rule of law would culminate in people understanding that a modern civillised society should be structured in such a way that

  1. The people must have the sovereign right to elect their Government; and
  2. The laws must not offend that society’s norms of fairness and justice.

Thus it appears very strongly that the government suggests that Singapore subscribes to the ‘thin’ rule of law.

However, Singapore does not appear to apply the ‘thin’ rule throughout all aspects of the law, and its application of the ‘thick’ rule of law includes, inter alia, giving due accordance to ensuring that natural justice is observed.


See also

Notes

  1. Footnotes are added by enclosing text in the footnote between "ref" tags. Remember to put footnote numbers after punctuation. Use the {{citation}} template, like this: Yeo Tiong Min (1999), "Jurisdiction of the Singapore Courts", in Kevin Y L Tan, ed. (ed.), The Singapore Legal System, Singapore: Singapore University Press, pp. 249–296 at 265–266, ISBN 978-9971-69-213-1 (hbk.), ISBN 978-9971-69-212-4 (pbk.) {{citation}}: |editor= has generic name (help); Unknown parameter |ed= ignored (help).
  2. Albert Venn Dicey (1959), An Introduction to the Study of the Law of the Constitution, London: Macmillan, p. 202, ISBN 1421290448 (hbk.), ISBN 1402185553 (pbk.) {{citation}}: Unknown parameter |ed= ignored (help).
  3. Joseph Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 LQR 195, 196
  4. Remember to add a citation at the end of your quotation.
  5. Parliamentary debate, pg 5-6
  6. 16 Sing LR; Rediscovering the Constitution; pg 197
  7. R Dworkin, A Matter of Principle (1985) pg 11-12
  8. P.L. 1997, AUT, 467-487, pg 12
  9. JUDICIAL REVIEW – FROM ANGST TO EMPATHY A Lecture to Singapore Management University Second Year Law Students (2010) 22 SAcLJ.
  10. 8 R (Cart) v Upper Tribunal 2 WLR 1012; 1 All ER 908 at
  11. R v Secretary of State for the Home Department, ex parte Brind 1 AC 696 at 765 per Lord Lowry, HL
  12. R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council 1 AC 521 at 561, HL, per Lord Donaldson MR
  13. http://www.kentlaw.edu/perritt/courses/seminar/2005-spring-papers/wretzky-Seminar%20Paper.htm
  14. Kim Thachuk and Maria Dakolias, Attacking Corruption in the Judiciary: A Critical Process in Judicial Reform, 18 Wis. Int’l L. J. 353, 361-362 (2000).
  15. Chng Suan Tze v Minister for Home Affairs 2 SLR(R) 525 at
  16. Law Society of Singapore v Tan Guat Neo Phyllis 2 SLR(R) 239 at 312–313, –, CA
  17. Lee Hsien Loong v Review Publishing SGHC
  18. Yong Vui Kong v AG SGHC 235
  19. Randall Peerenboom (2004), Asian Discourses of Rule of Law: Theories and implementation of rule of law in twelve Asian countries, France and the U.S., London: RoutledgCurzon, p. 7, ISBN 0415326133 (hbk.), ISBN 0415326125 (pbk.).
  20. Peerenboom, p.7.
  21. Brian Z. Tamanaha (2004), On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press, p. 91, ISBN 0521843626 (hbk.), ISBN 0521604656 (pbk.) {{citation}}: Cite has empty unknown parameter: |1= (help).
  22. Nelson, Robert L.; Cabatingan, Lee, Introductory Essay: New Research On Rule of Law {{citation}}: Unknown parameter |access date= ignored (|access-date= suggested) (help)
  23. Andrew Phang (2001), "The Singapore Legal System – History, Theory and Practice", Singapore Law Review: 34.
  24. Rajah, V. K. (2010), Judicial Education in Sinapore - Beyond the Horizon, Singapore, p. 5 {{citation}}: Unknown parameter |booktitle= ignored (help)CS1 maint: location missing publisher (link)
  25. Phang, p. 33.
  26. Phang, p. 34.
  27. Waleed Haider Malik (2007), Judiciary-led Reforms in Singapore: Framework, Strategies and Lessons, Washington DC: The World Bank, p. 41, ISBN 9780821353769 (hbk.), ISBN 0821353764 (pbk.), ISBN 0821369083 (electronic).
  28. Yong, Pung How (1999), Speech at the Opening of the Legal Year 1999, Singapore {{citation}}: Unknown parameter |paragraph= ignored (help)CS1 maint: location missing publisher (link)
  29. Rajah, p. 7.

Further reading

Articles and websites

Books

  • Chan, Helena HM (1995), "The Judiciary", The Legal System of Singapore, Singapore: Butterworths Asia, pp. 41–68, ISBN 978-0-409-99789-7 (pbk.) {{citation}}: Check |isbn= value: invalid character (help).
  • Kwek, Mean Luck , eds. (2006), Hall of Justice: Supreme Court Singapore, Singapore: Supreme Court of Singapore, ISBN 978-981-05-5356-2 {{citation}}: |first= has generic name (help)CS1 maint: multiple names: authors list (link).
  • Tan, Kevin Y L (2011), "Without Fear or Favour: The Judiciary", An Introduction to Singapore's Constitution (rev. ed.), Singapore: Talisman Publishing, pp. 107–131, ISBN 978-981-08-6456-9 (pbk.).
  • Tan, Kevin Y L; Thio, Li-ann (2010), "The Judiciary", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 505–630, ISBN 978-981-236-795-2 (hbk.).
  • Thian, Yee Sze; Chong, Chin Chin; Lim, Sharon (2002), In Session: Supreme Court Singapore: The Building, her Heritage and her People, Singapore: Supreme Court of Singapore, ISBN 978-981-047-671-7.

External links