http://www.yoursdp.org/index.php/perspective/special-feature/1681-chee-responds-to-cj-ag-and-law-minister
<table class="contentpaneopen"><tbody><tr><td class="createdate" valign="top">Tuesday, 06 January 2009 </td></tr><tr><td valign="top">Singapore Democrats
Mr Chan Sek Keong
Chief Justice
Mr Walter Woon
Attorney-General
Mr K Shanmugam
Minister for Law
Dear sirs,
Chan Sek Keong
Your speeches during the opening of the legal year were unmistakable references to my colleagues and I. Yet, like Mr Lee Kuan Yew, you did not deign to mention us by name. This is rather impolite, if not altogether puerile.
Be that as it may, allow me to address the points that you raised.
Mr Chan says that "the mission of the courts requires that its authority be respected by all" and that this respect is "fundamental and critical to the rule of law." Amen.
What you fail to state, however, is that the rule of law is not just a system where the government passes legislation and everyone unquestioningly obeys. The concept of the rule of law necessitates the limitation of state power and the respect of human rights.
Our Constitution spells out what these limitations are. It also defines the rights of the citizen.
Are citizens treated equally under the law?
Of importance are two fundamental articles. Let me start with Article 12 which says that "all persons are equal before the law and entitled to the equal protection of the law."
CASE outside Parliament House
Is everyone in Singapore treated equally under the law? The question is highlighted by two recent protests: One was conducted by the Consumer Association of Singapore (CASE) and the other by Tak Boleh Tahan activists. Both were conducted outside Parliament House, both involved displaying placards, both were commemorating the same occasion (Consumer Rights Day) and both involved persons wearing t-shirts bearing a slogan. The difference is that CASE is run by PAP MPs whereas the TBT protest was made up of human rights defenders.
While CASE was allowed to conduct its activity, my TBT associates and I were arrested and now face prosecution.
It could be that CASE, being affiliated with the Government, does not require a permit because under the Rule 2(1) (f) of the Miscellaneous Offences Act "any assembly or procession held by or under the direction or control of the Government" is exempt from a permit.
But herein lies the rub. Is such a Rule valid under Article 12 of the Constitution which expressly says that all persons are equal before the law?
Or it could be that CASE may have had a permit to conduct its protest, in which instance arises the question: Why was a permit granted to CASE but not to TBT?
Can the Government ban protests outright?
TBT outside Parliament House
The discrmination between CASE and TBT is especially salient when the Minister for Home Affairs Wong Kan Seng said in Parliament that he has "stopped short of allowing outdoor and street demonstrations."
With reference to Article 14 – which states that "every citizen of Singapore has the right to freedom of speech and expression" and that "all citizens of Singapore have the right to assemble peaceably and without arms" – does the Minister have the power to ban outdoor demonstrations in the first place and even if he does, why did he not apply the law equally to CASE?
Remember Article 4 unambiguously states that: "This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void."
These questions need to be examined by the Judiciary which has a sacred duty to ensure that, one, laws introduced by the Government do not violate the Constitution and, two, that they are not used to discriminate against certain groups of citizens.
Laws cannot be passed or applied will-nilly to buttress the power of the ruling party while suppressing the political opposition and civil society. When the ruling party imposes and enacts such unjust laws, the judiciary must intervene to protect the rights of the citizenry.
This is, in essence, what constitutes the rule of law. Absent such a judicial function, the rule of law is just a buzz phrase used to prop up a facade.
What other chief justices say
TBT protesters arrested
Your counterparts in democratic jurisdictions where the rule of law is genuinely practiced all acknowledge this aspect of the judiciary's role vis-a-vis the rule of law.
The former Chief Justice of India, Mr P N Bhagwatie, noted that "The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution...It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power."
Former UK Lord Chief Justice Bingham said: "The rule of law must, surely, require legal protection of such human rights as, within that society, are seen as fundamental. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers."
UK Lord Chancellor Irvine in the House of Lords determined that "Any system of law under which the individual was convicted and made subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent with the rule of law...If subordinate legislation is ultra vires on any basis, it is unlawful and of no effect in law."
Canada's Chief Justice, Madam Beverly McLachlin, wrote that "Judges must resist...making 'law' out of what cannot be just, and hence, in a profound sense, cannot be legal. To do otherwise is to allow injustice to hide itself under the cloak of false legality."
Sadly, I am reminded of your opinion as Attorney-General, as you then were, in the aftermath of the elections in 1997. PAP ministers, including the prime minister, had entered polling stations without authorisation. You explained, with excruciating logic, that under the Parliamentary Elections Act "unauthorised entry into or presence within a polling station" is not an offence.
Worse, you concluded that "those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act."
And yet the Act clearly states the presiding officer shall "exclude all other persons except the candidates, the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station." The ministers who entered the polling stations did not fall into any of these categories.
Fulfilling international obligations
The United Nations' Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of peaceful assembly and association” and that “Everyone has the right to freedom of opinion and expression”.
Save for the most autocratic of regimes, these rights are recognized by every government in the world and have given rise to legally binding obligations. The UDHR is now part of customary international law, binding on all states and guaranteed to all persons.
Furthermore Singapore voted in favor of General Assembly Resolution 28/251 in 2006. This resolution was made to establish the UN Human Rights Council which stipulates “that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing”.
In 2003, Singapore also signed the Commonwealth (Latimer House) Principles on the Three Branches of Government which pledged to protect the "fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief". (empahsis mine)
Why do I mention these international agreements? Chief Justice Bingham said that the "rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations."
</td></tr></tbody></table>
<table class="contentpaneopen"><tbody><tr><td class="createdate" valign="top">Tuesday, 06 January 2009 </td></tr><tr><td valign="top">Singapore Democrats
Mr Chan Sek Keong
Chief Justice
Mr Walter Woon
Attorney-General
Mr K Shanmugam
Minister for Law
Dear sirs,
Your speeches during the opening of the legal year were unmistakable references to my colleagues and I. Yet, like Mr Lee Kuan Yew, you did not deign to mention us by name. This is rather impolite, if not altogether puerile.
Be that as it may, allow me to address the points that you raised.
Mr Chan says that "the mission of the courts requires that its authority be respected by all" and that this respect is "fundamental and critical to the rule of law." Amen.
What you fail to state, however, is that the rule of law is not just a system where the government passes legislation and everyone unquestioningly obeys. The concept of the rule of law necessitates the limitation of state power and the respect of human rights.
Our Constitution spells out what these limitations are. It also defines the rights of the citizen.
Are citizens treated equally under the law?
Of importance are two fundamental articles. Let me start with Article 12 which says that "all persons are equal before the law and entitled to the equal protection of the law."
Is everyone in Singapore treated equally under the law? The question is highlighted by two recent protests: One was conducted by the Consumer Association of Singapore (CASE) and the other by Tak Boleh Tahan activists. Both were conducted outside Parliament House, both involved displaying placards, both were commemorating the same occasion (Consumer Rights Day) and both involved persons wearing t-shirts bearing a slogan. The difference is that CASE is run by PAP MPs whereas the TBT protest was made up of human rights defenders.
While CASE was allowed to conduct its activity, my TBT associates and I were arrested and now face prosecution.
It could be that CASE, being affiliated with the Government, does not require a permit because under the Rule 2(1) (f) of the Miscellaneous Offences Act "any assembly or procession held by or under the direction or control of the Government" is exempt from a permit.
But herein lies the rub. Is such a Rule valid under Article 12 of the Constitution which expressly says that all persons are equal before the law?
Or it could be that CASE may have had a permit to conduct its protest, in which instance arises the question: Why was a permit granted to CASE but not to TBT?
Can the Government ban protests outright?
The discrmination between CASE and TBT is especially salient when the Minister for Home Affairs Wong Kan Seng said in Parliament that he has "stopped short of allowing outdoor and street demonstrations."
With reference to Article 14 – which states that "every citizen of Singapore has the right to freedom of speech and expression" and that "all citizens of Singapore have the right to assemble peaceably and without arms" – does the Minister have the power to ban outdoor demonstrations in the first place and even if he does, why did he not apply the law equally to CASE?
Remember Article 4 unambiguously states that: "This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void."
These questions need to be examined by the Judiciary which has a sacred duty to ensure that, one, laws introduced by the Government do not violate the Constitution and, two, that they are not used to discriminate against certain groups of citizens.
Laws cannot be passed or applied will-nilly to buttress the power of the ruling party while suppressing the political opposition and civil society. When the ruling party imposes and enacts such unjust laws, the judiciary must intervene to protect the rights of the citizenry.
This is, in essence, what constitutes the rule of law. Absent such a judicial function, the rule of law is just a buzz phrase used to prop up a facade.
What other chief justices say
Your counterparts in democratic jurisdictions where the rule of law is genuinely practiced all acknowledge this aspect of the judiciary's role vis-a-vis the rule of law.
The former Chief Justice of India, Mr P N Bhagwatie, noted that "The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution...It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power."
Former UK Lord Chief Justice Bingham said: "The rule of law must, surely, require legal protection of such human rights as, within that society, are seen as fundamental. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers."
UK Lord Chancellor Irvine in the House of Lords determined that "Any system of law under which the individual was convicted and made subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent with the rule of law...If subordinate legislation is ultra vires on any basis, it is unlawful and of no effect in law."
Canada's Chief Justice, Madam Beverly McLachlin, wrote that "Judges must resist...making 'law' out of what cannot be just, and hence, in a profound sense, cannot be legal. To do otherwise is to allow injustice to hide itself under the cloak of false legality."
Sadly, I am reminded of your opinion as Attorney-General, as you then were, in the aftermath of the elections in 1997. PAP ministers, including the prime minister, had entered polling stations without authorisation. You explained, with excruciating logic, that under the Parliamentary Elections Act "unauthorised entry into or presence within a polling station" is not an offence.
Worse, you concluded that "those unauthorised persons who only wait or loiter inside a polling station on polling day do not commit any offence under the Act."
And yet the Act clearly states the presiding officer shall "exclude all other persons except the candidates, the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station." The ministers who entered the polling stations did not fall into any of these categories.
Fulfilling international obligations
The United Nations' Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of peaceful assembly and association” and that “Everyone has the right to freedom of opinion and expression”.
Save for the most autocratic of regimes, these rights are recognized by every government in the world and have given rise to legally binding obligations. The UDHR is now part of customary international law, binding on all states and guaranteed to all persons.
Furthermore Singapore voted in favor of General Assembly Resolution 28/251 in 2006. This resolution was made to establish the UN Human Rights Council which stipulates “that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing”.
In 2003, Singapore also signed the Commonwealth (Latimer House) Principles on the Three Branches of Government which pledged to protect the "fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief". (empahsis mine)
Why do I mention these international agreements? Chief Justice Bingham said that the "rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations."
</td></tr></tbody></table>
