Thursday, March 15, 2012

Is an unrestrained discretion compatible with the Rule of Law?

The official position in Singapore has always been that we respect the Rule of Law. When attempts by human rights organisations or foreign governments were made to run us down, our government has stood firm and insisted that we do respect the Rule of Law.

But, what does the Rule of Law entail?

A basic premise is the view that all exercise of power is subject to the law. I, as an individual, have no right to exert power over you in such a way that I might harm your property, your person or your life. Where I may attempt to do so, laws may legitimately be in place to prevent me from so harming you. This is reflected in a variety of criminal offences and civil liability. Equally, the state has no right to exert power over any of us except as it might have been lawfully authorised to do so.

At this juncture, we can take this in two directions. Firstly, the state is justfied in punishing us by depriving us of our life, liberty or property if we have breached a law that has been clearly stipulated. Secondly, the state is justified in exercising a general power of decision making in a way that affects our rights or activities so long as the same is done in accordance with the law.

The key here is the fact that the law is used as an objective and neutral intermediary between the state and the citizen. The state seeks justification for its actions in the law as predefined. The citizen demands that the state's power be exercised solely within the ambit of the predefined law.

This is all well and fine if the predefined law is in fact clearly defined. What if the law is vague? What if the law provides an area of discretion? What if the area of discretion is so wide as to render the law redundant?

Example 1:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held and towards this end a Writ of Election shall be issued by the President within 3 months of the date that the seat fell vacant.

Example 2:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held and towards this end a Writ of Election shall be issued by the President within a reasonable time.

Example 3:
In the event that a Parliamentary seat shall fall vacant, a by-election shall be held.

Example 4:
In the event that a Parliamentary seat shall fall vacant, the seat shall be filled by election.
In exercising his power to issue a writ of election, the President shall act on the advise of the PM.

All of the above examples contain discretion. The first example is restrictive and binds the President to issue a Writ of Election within 3 months. The second one restricts the exercise of discretion to a reasonable time. The third example doesn't stipulate a restriction. But, by requiring a by-election to be held, it does not leave it too vague to allow for an interpretation that might result in the election being postponed till the next general election. The fourth example appears to give a broad discretion for the seat to be filled and for this to be done in accordance with the PM's advise.

The broadest way of interpreting the 4th example is to say that the law provides that it is the absolute and unfettered discretion of the PM to determine when he would call for the by-election. Being an unfettered discretion as to timing, it might even be postponed all the way to the end of the Parliamentary term.

Although the 4th example is not on the exact terms as our Constitutional arrangement for by-elections, it is nevertheless similar. Our Constitutional arrangement is something that I blogged about here:"

I beleive that the extent of discretion provided in the Constitution does not go as far as to permit the PM to decide whether a by-election should be held. But, it is however broad enough to be interpreted as giving him a broad discretion to decide when the by-election should be held. This is where the problem comes in. A discretion that is unrestrained and so broad is one that renders the rule nugatory. Unrestrained discretion is ultimately an afront to the Rule of Law.

Assuming that I am the King of this country and I were to declare that I will govern according to law, the expectation would be that my discretion would no longer be the basis of exercise of power. Power will now be exercised in accordance with law. But, what if I have a law that says: "Whatever the King determines to be the appropriate tax to be levied upon the people from time to time in his absolute discretion shall be the lawful tax." Such a law gives so broad a discretion to me that the law may as well not exist. The law negates itself.

Some of the broad interpretations of our Constitution as proposed by PAP leaders provide for such a possibility that the Constitutional guarantee of Parliamentary representation is rendered nugatory. Where possible, in upholding the Rule of Law, those that interprete the law (i.e. the judiciary) must adopt a restrictive interpretation on the exercise of discretion. Thankfully, in Singapore we have the Interpretation Act to assist us in relation to issues of timing. So, I believe that the PM's discretion to decide on the timing of the by-election should be restricted both by having regard to the Interpretation Act as well as by having regard to nothing less than the foundational and organizing principle of any rule-based society: the Rule of Law.


Anonymous said...

Clear and lucid.

It occurs to me as I read your article, that this is indeed a good way to help educate and raise awareness of the average Singaporeans regarding our laws -the penal code and constitution is as good a start point as any.

So that the scales would drop from our eyes, and so that we know when an attempt is being made to pull wools over our eyes.


Anonymous said...

But laws are made such that lawyers can make tons of $$$ fooling the average ignorant layman; and that Nair has proven himself in Parliament to be a very good lawyer!