Speech by Minister for Law K Shanmugam at the New York State Bar Association Rule of Law Plenary Session

28 OCT 2009

28 Oct 2009 Posted in Speeches

Mr Michael Getnick, President of the New York State Bar Association,

Mr Michael Galligan, Chairman of the International Section of the New York State Bar Association,

Mr James Duffy III , Chair of today’s Plenary,

Mr M N Krishnamani, President of the Supreme Court of India Bar Association, and

Mr James Silkenat, of the World Justice Project, both members of today’s Plenary panel,

Distinguished delegates,

Ladies and gentlemen.

Introduction

I am glad to invite all of you here to Maxwell Chambers. We conceptualised this as the first fully integrated facility in the world, where lawyers can come in and seamlessly work, with on the spot transcription and breakout rooms, structured and conceptualised with the idea of practising lawyers in mind and international arbitrations. You can see it for yourself. We look at it as another example of the way in which we are setting out the legal infrastructure as we grow as a legal centre. I hope you will have the opportunity of looking around yourself and seeing what we have done.
Thank you for inviting me to join in this plenary on “Singapore and the Rule of Law”.

I will:
1. set out what we consider to be the essential elements of Rule of Law;
2. how it is applied in Singapore;
3. the situations where we have detentions without trial, rather than the normal due process. I will deal with them and explain why have these powers; and
4. deal with some broader points relating to our Criminal Justice System.

We are then scheduled to have a discussion, chaired by Mr Duffy.

Meaning of Rule of Law

There is considerable debate on what is meant exactly by the term “Rule of Law”. There is a further question of the relationship between “Rule of Law” and “Rule By Law”.

I will not attempt a comprehensive definition or an academic analysis. Instead, I would suggest, as a practical approach, that the following elements are some key aspects of a society based on Rule of Law:
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.

I will suggest two other elements as part of a broader framework. It is debatable whether they are part of a strict definition of Rule of Law. But most people will accept them as being part of how a modern civilised society should be structured:
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.

Our Approach

Our approach, from the beginning of statehood in 1959 was to recognise the fundamental importance of Rule of Law. Our challenge has been to work out how that ideal can be implemented in the context of the social, economic and security imperatives that we were faced with.

Let me explain the imperatives – because the laws and the conventions of society can only be understood if you have an idea of that society and how it had evolved.

Singapore: A brief background

Singapore started its modern existence as a British colony. In 1959, we were given limited autonomy, statehood. The British were still in charge.

In 1963, we joined the Federation of Malaysia. A small city in a larger country.

In the 1950s, Singapore was recovering from the severe disruptions and dislocations of World War II and a brutal Japanese Occupation. The economy was almost entirely trade dependent, based on our Port. There were no other major sectors or drivers of economic growth. Literacy rates were low. Unemployment was high. Housing was, as in many third world cities, poor. Several families literally cramped into small spaces. We had about 2 million people in 580 sq km.

It was an immigrant society. Many had come with the intention of making money and then returning to their original homelands. Many in my generation are 1st Generation Singaporeans. There was no clear sense of a nation or state. There was no sense of a long shared history or culture or language. The idea that this island, with this mix of population, can be a sovereign state would have been completely ridiculous.

Our approach to social transformation

In 1959, when Singapore achieved self government, this was the situation.

The challenge was: how do you give people a better life. There was then no idea of independence. That came later.

For the society to progress, the basic public goods had to be provided – like education, healthcare, housing. Basically, governance.

There were four essential conditions for such governance:
1. Rule of Law
2. Stability
3. Security – from external threats
4. A high quality public service

I will discuss each aspect, but focus on the first two.

Rule of Law

We have considered Rule of Law to be fundamental to progress from where we were for two reasons.

First Reason

I had described the nature of our society to you: disparate, multi-ethnic, multi religious, poor. A basis had to be established on which people could interact with each other. That basis had to be secular and Rule based. It had to assure equality regardless of race, language or religion.

We never underestimated the power of chauvinism. Over the years, violence based on ethnicity has been a prevalent feature in this region.

Singapore was and is based on an ideal: that people of different backgrounds can come together and create a nation, and be assured of equal opportunities, even though one race, the Chinese, formed the vast majority – 75 per cent. That ideal could be achieved only through the Rule of Law. Majority rule could easily have translated into the oppression of minorities. One of the successes that we can be truly proud of is that despite all the electoral advantages of a chauvinistic approach, that was deemed unacceptable, and we worked hard to have a society based on equality and racial harmony.

So we had a written Constitution, Separation of Powers and structured the society based on law.

We were fortunate that our first generation of leaders understood the importance of Rule of Law, and at the same time understood how it can be applied as a practical matter in our society.

Second Reason

The second reason why the Rule of Law was fundamental for us was economic.

In 1965, our GDP was US$500 per capita.

We had a weak economy. There was a large dependence on trade and the British bases, which I think contributed about 20 per cent of GDP or so.

We decided to move into manufacturing. But capital and technology were needed. That had to come from foreign investment.

Foreign investment would only come if we had:
1. Laws which men of commerce could trust.
2. Their investments were safe and they could make money.
3. Our Courts were independent.

We had no natural resources. The investors did not need to come here.

Our value proposition, compared to other places had to be:
1. A better business environment
2. Rule of Law

Over the years, with both these factors, we have been very successful in attracting FDI.

Rule of Law was the first of the four fundamentals for our progress. Now let me touch on the second of the fundamentals, namely, stability. The issue of stability affects our perception of how the Rule of Law is to be applied in our society.

Stability

We are very focused on stability in our society. Again, if you know the background you will understand why.

Starting from the 1950s, we faced a severe Communist threat. In relative terms, 9/11 was a tragedy. But the stability and existence of the US were never threatened by 9/11. For us the Communist threat was existential. Thousands of trained, armed young men and women, supported by communist states, were waging a war, and suborning the local population. Thousands died in that protracted war.

That war started in the late 1940s when the British were in control and continued through our statehood and independence. Some of you may recall that in the 1960s, many reasonable people believed that communism would sweep several parts of the world. We were part of the actual physical front line of the battle against Communism.

The predecessor to the Internal Security Act ( ISA ) was enacted by the British, in the 1950s to deal with this real and serious communist threat.

Trials were not possible. The population was terrorised. Witnesses would not come forward. Those who did and their families would be hunted down. It was a ruthless form of communism. Americans came across some aspects of it in Vietnam.

The Communist threat continued through the 1960s, albeit with decreasing intensity. Even in the 1970s it never quite went away.

But from the late 1950s, we had additional concerns.

As I said earlier, we became self governing in 1959, with the British exercising ultimate control. In 1963, we became part of the Malayan Federation and the British ceased to have any control. We were a small part of a new sovereign state. In 1965, we were asked to leave the Federation and had independence and sovereignty thrust upon us. The general consensus was that this small island with about 2 million people, with a GDP per capita of US$500, no resources, and given its geographical location, will not survive long. And we were dependent on Malaysia for a daily necessity – water. Recently, with technology, we have overcome that reliance.

As if these complications are not enough, there was complication of race. Singapore, when it was in Malaysia, championed the ideal of equality of every citizen, regardless of race. On the other hand, Peninsular Malay leaders believed that Malays should have a privileged position, and that position should not even be questioned.

Singapore’s overwhelmingly Chinese population also meant that the overall majority of Malays, in Malaysia, was put in a delicate balance. And the Chinese despite being in the minority, had a large share of the economy in both Malaysia and Indonesia, and of course, Singapore.

Racial tensions increased. There were race riots in Singapore. Eventually, Singapore’s insistence on equality was one of the reasons we were asked to leave the Federation.

So here we were, a little red dot which did not seek independence, surrounded completely by two countries with whom our relationship was tense at that time. And the tension was multi faceted and had deep roots. As an aside and to put it in perspective, I would add that over time, our relationships with both countries have become much warmer, as all three countries progressed. We are now members of ASEAN and have good relationships. But as with any close neighbours, issues can arise. For example, in the 1980s, the Israeli President made a state visit to Singapore. There was considerable uproar in the region, notwithstanding that it was our sovereign right to receive such a visit. There were calls to cut our water supply. Our status was questioned. The easiest thing would have been to cancel the visit as some did. But we stood firm because as a small country, we believed in international law, and that we had a sovereign right to insist, regardless of calls which are not legal or right and our right as protected by international treaties. And the visit went ahead. Those are the types of issues we faced.

To put it in perspective for Americans (as to what it was like then, for us), look at it this way. Recall your relationship with Russia and China in the 60s. Imagine the US shrinking to a population of 20 million, or slightly more than double the size of New York City. Shrink the geographical size as well to a size of about 16,000 sq miles – may be the size of Connecticut (to get a sense of proportion). Then put Russia to the North, with about ten times your population, instead of Canada. And put China to the South with about 60 to 70 times your population, instead of Mexico. And assume Connecticut was dependent on water, daily, from Russia.

Add in Communist insurgencies, low intensity conflict, wars like the Korean and Vietnam in the near abroad, general regional instability, clash of the great post war ideologies – and the society I had described earlier, a local population with low levels of literacy, skills and weak economy, poor healthcare and education system, completely insufficient housing - and you start getting the picture. Your relationship with both these countries has of course also now improved considerably.

Our world view was shaped (I would say seared) by those events, and our small size. Therefore, we were totally focused on survival.

The threats to our stability were not only external. Communalism, as I had said earlier, was also serious threat. Indonesia, in the 60s, had a communal bloodbath after the attempted Communist Coup. Thousands died. Malaysia has also had race riots. The other countries in this region have had coups, long running insurgencies. Cambodia had genocide, in addition.

Developed, secure societies take stability for granted. We had no such luxury. One of the tragedies of the 3^rd world, in the second half of the 20^th century, has been the number of societies, from Afghanistan to Zimbabwe, that have been deeply affected, millions of lives wasted, through instability at various times. Sometimes, societies simply imploded. You can have a wonderful Constitution – but how do you ensure that day to day life can be carried on and a society can be modernised in this environment?

We regularly read prescriptions from some in developed countries to some 3rd World states: hold elections, have a free press (which usually means control of the press by a few wealthy individuals), have a Parliament, have the full suit of Constitutional Liberties: that is, take the Western Liberal model of government and apply it – without regard to the state of the society, the poverty and literacy levels, whether the people are empowered enough to work the levers of such a democracy. The result: you repeatedly see endemic corruption, concentration of power in the hands of a few, no progress in society – failed / failing states. To borrow a metaphor, it is like putting a lipstick on a pig. It will still be a pig.

We realized early that all our plans on governance would fail if there was no stability in society. And we recognised the many different threats to the stability – and that each threat had to be dealt with, using a different approach.

Achieving stability for us thus had many facets. I will share with you two.

The first is on Executive Power:
1. The Executive to be effective. For that, it has to have power to act. Your system is based on strong checks and balances. Philosophically, our approach is slightly different:
2. The Government must get its mandate from the people regularly.
3. Once elected, it must be able to conceptualise and implement its policies, with Parliamentary approval and oversight. Street protests, lobbying, and so on is not an integral part of our system.
4. Government action has to be effective, efficient and speedy.

For us, it is important to move quickly, to respond to the external environment. For you, it is slightly different: you have largely expected the world to react to you and largely that has been the case. We will move ourselves into irrelevancy if we took that approach. We see ourselves as a skiff in the ocean. You are a supertanker. Different reactions are needed from both, towards external and internal challenges.

Let me illustrate by reference to a concrete example. Take healthcare. You are able to consider healthcare reforms over four Presidential terms, assuming we start counting from the first Clinton Presidency. And you are able to spend 17 per cent of your GDP on healthcare. You debate about 40 odd million American not having coverage. And in the latest debate, you are able to have many different groups express their views, and lobby groups contribute several hundred million dollars to this debate.

In our situation, we:
1. Do not think we can debate such an issue for years.
2. We do not think our people will accept it if a significant number do not have some coverage.
3. We can’t afford to spend 17 per cent of our GDP on healthcare – if we did, the NYSBA will not be having its Conference here. We spend four per cent.
4. And we do not think lobby groups can or should intervene with the Executive, in Singapore, on any debate.

Our approach has been to work out and implement what we consider best in the long term interests of our country – and let the people judge at the Elections. Of course healthcare is a difficult subject. It has to be constantly looked at and improved upon. I would add that our health outcomes are no worse than for many developed countries, including the US.

The second aspect, in the context of the point about stability, is the power of the Government to deal with extra Constitutional threats. The ISA allows detention without trial. You heard the CJ talk about two such legislation. I will deal with the ISA as it has been commented upon more frequently.

The ISA was introduced by the British against the backdrop of the Communist insurgency, in the 1950s.

We have kept the ISA and over the years have made various modifications to it.

Currently, there are less than 20 in detention under this legislation. The detainees are broadly since 2001 a mix of Jihad believers, and members of organisations with loose Al Qaeda links.

In detention, they undergo reformative training. Independent clerics discuss the theology with them. If they renounce their jihadist beliefs and pose no threat to society, they are released and several have been released. The release can be on conditions.

The powers of preventive detention are subject to some important checks and balances provided in the Constitution and the ISA . For instance:
1. The detainee has the right to make representations to an Advisory Board, which must be considered, and is free to engage a lawyer of his choice for this purpose.
2. The Advisory Board is appointed by the President, and is headed by a Supreme Court judge. It has the powers of a court of law to subpoena witnesses including investigators, and examine documents, including classified intelligence.
3. It is required to review the detainees’ detentions on a regular basis.
4. If the Advisory Board recommends the release of the detainee, the Government cannot detain him further unless the President gives approval – as such the President has the final say, with constitutional veto powers. The President is directly elected by the people.
5. Apart from the Advisory Board, members of a Board of Inspection, comprising Justices of the Peace and community leaders, are empowered to make unscheduled visits to the ISA detention facility and meet the detainees. By law, the Inspection Board is required to make an inspection at least once a month. Members are entitled to speak to the detainees and report their complaints and concerns.
6. Doctors examine detainees regularly, although detainees may ask for a doctor at any time. Any injuries sustained by the detainees must be reported.
7. Finally, detainees receive weekly visits from their families. This is an important component of their rehabilitation and helps prepare them for reintegration into society after their release.

Many countries have faced this dilemma recently: how do you deal with terrorists? You had decided on Guantanamo. That is one approach.

Our approach has been slightly different.

External Security

Let me now touch briefly on the third fundamental: External Security. All male citizens do National Service. The Singapore Armed Forces is a highly regarded force and its ability to defend Singapore is not in doubt. That ensures peace.

We also have active diplomacy and good relationships with a large number of countries – a key aspect of our strategic security.

High Quality Public Service

The Fourth Fundamental is the capacity to deliver. The Public Service has to be first rate. If you cannot deliver, then the Rule of Law will not survive in a developing Country - it is as simple as that. We have delivered governance.

Some aspects of our approach may be considered unconventional. We get the most promising students in each cohort to join public service. They are given scholarships and after college they join the Civil Service. We also have a number of other approaches – but time does not permit me to go into them.

You might be interested in our Judiciary. Judges are appointed from both the public and private sectors. Of the 15 High Court Judges, sixare from the public sector and nine are from the private sector.

In the last two months, we have had three new High Court Judge appointments. All three were senior partners of top law firms, each with over 25 years at the Bar. Very high quality appointments. The quality of justice is ultimately dependent on the integrity, character and ability of the Judges.

Our High Court Judges have tenure, protected by the Constitution. Our Judges are appointed, not elected. We are not sure that for example, electing Judges would be a good idea for us, as a small city – whether that would really strengthen the Rule of Law.

We also ensure that the public service is corruption free. We take this extremely seriously. It is meaningless to talk about Rule of Law if your public officials – whether elected or career officers, are venal and corrupt, or depend on friends for favours.

Those are the four fundamentals. It puts in context the Rule of Law as we see it.

Broader Issues

Let me now take a step back now and deal with a question that is sometimes asked, about our approach to Criminal Law. Are they too strict? Do we ban chewing gum and so on.

Criminal Law

We had a fair bit of air time in the US when Michael Fay got caned. Males below the age of 50 who vandalise property could get caned.

Every society seeks to strike a balance between the rights of the individual and the rights of society, in enacting its criminal legislation. How that balance is struck depends on the philosophy of the society. We inherited our Penal Code from the British and have added to it. Finance and Securities Regulations largely draw their inspiration from the US.

We do tend to weight the balance more towards the society compared with you.

Thus, we do have laws which are strict. And they are enforced. And by the way, chewing gum is not illegal. But, vandalising property with it is.

I was asked yesterday by Mr Duffy: is it true that adverse interferences could be drawn against an accused if he does not at the first opportunity set out facts which he subsequently raises in his favour in defence? Say an alibi defence. The answer is: inferences could be drawn but they do not have to be drawn. The Court has to look at all the facts and will have to consider his veracity – why did he not say it earlier? The Judge will use his experience and common sense, as Judges everywhere should do.

So, when a person is charged or informed he will be prosecuted, he is provided with details of his charge. He is also told: if there is any fact which he intends to rely on in his defence, he is encouraged to mention it straight away. Otherwise, he risks having it disbelieved, if it is raised later.

The accused cannot be compelled to testify in his own defence. However, there are consequences to remaining silent. Cross-examination in an adversarial system is designed to uncover the truth. The court can draw such inferences as it deems proper if an accused, pleading innocence, refuses to subject himself to probing cross-examination.

The Privy Council of England explained this in Haw Tua Tau v Public Prosecutor [1982] 1 AC 136:

English law has always recognised the right of the deciders of fact in a criminal trial to draw inferences from the failure of a defendant to exercise his right to give evidence and thereby submit himself to cross-examination.. It would in any event be hopeless to expect jurors or judges, as reasonable men, to refrain from doing so.

These principles were tested in the Haw Tua Tau case, which I intend to touch on briefly. It is an important illustration of the approach of our criminal justice system.

In that case, Haw Tua Tau had been convicted of murder by the Singapore High Court. His appeal to the Court of Criminal Appeal was dismissed in 1979.

He subsequently decided to appeal to the Privy Council in London. The point was a technical point of law.

The argument ran as follows. The High Court had called on Haw to give evidence during his trial. In line with the statutory requirement, the Court had informed Haw of the consequences of refusing to give evidence. He argued that this had the effect of putting him under a compulsion to give evidence (despite his being told in the course of the standard allocution that he is not). He alleged breach of natural justice, by compelling him to give evidence despite his privilege against self incrimination.

Accordingly, he argued that the relevant provisions of the Criminal Procedure Code ( CPC ) were unconstitutional, for failing to comply with Article 9(1) of the Constitution:

No person shall be deprived of his life or personal liberty save in accordance with law.

This argument was rejected by the Privy Council of England. Very early in their judgment, the Privy Council noted that the relevant provisions of the CPC being challenged had in fact been recommended by the English Law Revision Committee in 1972.

The Privy Council appeared to have been rather taken aback (and perhaps offended) by the suggestion that their own Law Reform Committee could be proposing laws contrary to natural justice:

Although recognising that it is not impossible, their Lordships would regard it as surprising if the distinguished English judges, jurists and legal practitioners who composed that committee should have recommended for adoption in England a procedure that was contrary to a fundamental rule of natural justice.

Going back to the case itself, the Privy Council first recognised that the CPC had taken away the previous privilege of accused persons of making unsworn statements of fact without subjecting themselves to cross-examination.

The Privy Council saw nothing wrong with this. The Council called this privilege “anomalous”. After all, why should an accused be allowed to get away with a story, the truth of which cannot be tested by cross-examination?

The Privy Council then had to deal with the drawing of adverse inferences from the accused remaining silent.

The Council saw nothing wrong with that either. It held (at p152 to 153):

English law has always recognised the right of the deciders of fact in a criminal trial to draw inferences from the failure of a defendant to exercise his right to give evidence …very often the judge did comment and draw to the attention of the jury inferences that they might properly draw, if they thought fit, from the failure of the accused to go into the witness box to contradict the evidence of the prosecution on matters that were within his own knowledge or to displace a natural inference as to his mental attitude at the time of the alleged offence that, in the absence of some other explanation, would properly be drawn by any reasonable person from his conduct at that time.

…What inferences are proper to be drawn from an accused’s refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense - on which the judiciary of Singapore needs no instruction by this Board.”

What is the result of our approach?:
1. If you asked any Singaporean lady in this room: she will have not too much concern about taking the metro or taxi or bus at any time, to any location.
2. You can walk downtown, to any area, at any time, without fear or concern.
3. Many parents will let their children under 10 take public transport, on their own. Children move about freely – as children should.
4. There are no slums, no “no go” areas, no deprived inner city areas. More than 90 per cent of the population own their homes.

Our crime rate is low. Last year, we had a crime rate of 684 per 100,000 population. New York, which has made significant steps to becoming one of the safest large cities in the US, had 2,400 per 100,000. If you look at violent crimes, we have 111 per 100,000 population. New York has 580 per 100,000 population. We have tough gun control laws and we make no apology for it.

And this low crime rate is achieved with a leaner Police Force. We employ 247 police officers per 100,000 people. New York employs about 420 per 100,000 people. You will not see much police presence in the streets. In saying this and comparing, my point is that we do not do too badly on some objective criteria.

Our approach works for us and enjoys broad public support. We have 3.2 million citizens. Another 1.2 million foreign citizens live, work and study here. 500,000 foreign citizens with Permanent Resident status have also chosen to be here. By and large, this mix of people in our society appear to have no problems with our laws.

Summary

If you put it all together – given our limitations, size, geography, history: has our approach to Government, Rule of Law and exceptions worked for us, in giving our people a better life in an environment of safety and security?

I mentioned some tangible aspects of that progress during my Opening Speech. The basic point can be captured in one statistic. Our per capita GDP has grown from US$500 in 1965 to US$51,500 now. And no disappearances, shootings on the roads, coups, juntas, muggings and so on.

I also said in my Opening: Look at the countries that became independent after World War II. Most of them have more natural resources, larger territory, bigger population than us. How do we compare relatively, on broad measures of progress?

Over the years, we have faced various criticisms. We looked at them and worked on those which were sensible. We ignored the rest.

Increasingly, as we have progressed and as we have become more successful, we also realise that some of those who offer us prescriptions and criticisms:-
1. are not able to see the issues in their own systems;
2. assume that the values of our society are exactly the same as theirs; and
3. Sometimes do not understand the need for a different approach, in a different society, in a different climate.

A greater dialogue, and a better attempt to understand each other would help. In that context, I trust that your conference here has helped you get a better understanding of Singapore.

Thank you.

Last updated on 26 Nov 2012