Much ado about Nordin

I've been awfully busy and have taken some time off blogging.  But, some pretty interesting things have been going on that warrant some commentary:  the questioning of a local cartoonist by the police, the judgment in one of the two s.377A cases and the General Elections in Malaysia, just to name a few. 

But, I figured that I'd get back to blogging by dealing with the 'gang-rape' analogy in relation to democracy that has raisede quite a storm.  PAP MP Nordin posted on his Facebook page a quotation from Terry Goodkind that kind of riled up the online community.  This kind of took me by surprise.  The more I read the quote, the more puzzled I became.  Why such an adverse reaction?

I first came across this issue when I saw a Facebook posting by "Rice Bowl" (Kenneth Jeyaretnam's alter ego):

"PAP Member of Parliament for Bishan-Toa Payoh GRC Zainudin Nordin appears to be using his Facebook page to promote the view that democracy is akin to gang rape. Quote:

“People use democracy as a free-floating abstraction disconnected from reality. Democracy in and of itself is not necessarily good. Gang rape, after all, is democracy in action."

When questioned to rebut the opinion - which is ...presented as a quote by author Terry Goodkind - the MP clearly declined and deleted the relevant comment.

The Rice Bowl believes strongly in democracy and the rule of law. As such we reject the opinion published in the strongest terms possible. Primarily since rape is obviously illegal in all democratic countries, the stated opinion cannot possibly stand. Furthermore, by the rule of law, a supposedly "democratic" move to violate fundamental personal and human rights could never succeed as a free and independent judiciary would inevitably strike out such an effort. In fact the constitution of Singapore itself states that Singapore is a democracy - in light of this one wonders how the MP reconciles such a negative view of democracy with his own standing as an elected member of parliament.

Finally, the intent of democracy is such that the result of a free vote in a secret ballot will tend to reflect the opinion of a majority of participants. To us it seems obvious that citizens are wise and compassionate enough to ensure that a free vote to inflict suffering and harm on a minority would be rejected in a landslide. One wonders if Mr Zainudin agrees."

Even without reading the context of the quotation from Terry Goodkind, I didn't think that there was anything radical that was being stated in that quotation.  Democracy, if it is understood to be majority rule and majority based decision making, does involve at its base level the rule by a lynch mob.  Much would depend on how we seek to define democracy.  I decided to look at MP Nordin's Facebook page.  This is the context of the quotation: 

 

 

“People use democracy as a free-floating abstraction disconnected from reality. Democracy in and of itself is not necessarily good. Gang rape, after all, is democracy in action.

All men have the right to live their own life. Democracy must be rooted in a rational philosophy that first and foremost recognizes the right of an individual. A few million Imperial Order men screaming for the lives of a... much smaller number of people in the New World may win a democratic vote, but it does not give them the right to those lives, or make their calls for such killing right.

Democracy is not a synonym for justice or for freedom. Democracy is not a sacred right sanctifying mob rule. Democracy is a principle that is subordinate to the inalienable rights of the individual.”
― Terry Goodkind

Meanwhile, the "gang-rape" part of the quote was going viral and Nordin had to face the online lynch mob. 
 

Rather comically SPP's Lina Chiam put up a statement on the Facebook:

 

"In Singapore, we aspire to be a nation that is free to consider and tolerate different opinions in business, academic, political and to some extent religious spheres. However we clearly need to avoid outrageously chauvinistic statements tha...t condone rape culture. This is not a tall order, and our leaders should observe this.

I therefore regret that the MP for Bishan-Toa Payoh Mr Zainudin Nordin has reproduced on his Facebook page an abhorent quotation which characterises gang rape as 'democracy in action'. As a woman and an advocate of democracy, I urge Mr Zainudin to retract his statement and apologise to women in Singapore."


I guess that we have come to expect that a PAP MP is bound to speak disparagingly or in a less than flattering manner about democracy.  There has been a consistent pattern of PAP leaders speaking in favour of a model of government based on some degree of control and speaking against the wholesale import of Western-style democracy.  The messiness, the inefficiency and the chaotic tendencies of so-called liberal democracies is usually cited as a reason why Singapore's 'nannycracy' is a better model. 

I do, therefore, understand the reason why there was a knee-jerk reaction amongst many in assuming that Nordin had made an anti-democratic statement.  By posting a quote that referred to democracy as 'gang-rape in action', the MP appeared to many to be presenting democracy in a bad light. 

But, what does the quotation actually say.  What did Terry Goodkind intend to convey?  Making the right sense out of the quote would involve us understanding that the crudest form of a democracy is based on majority rule.  If one were to accept such a model of democracy, the will of the majority can be imposed on the minority.  If a majority of citizens in a country favour genocide, then genocide can be justified in such a version of democracy.  The Holocaust in Germany was, after all, carried out by a democratically elected government.  It is in this context that Goodkind referred to democracy as "gang-rape in action"

It is pretty obvious that the author intended to convey the view that rights of individuals must be allowed to trump the collective communal goals of society.  Majority rule must always be subject to the enlightened protection of the rights of the minority.  An individual is a minority of one.

The Terry Goodkind quotation presents Nordin as a liberal.  It presents him as someone that would advocate that whilst the majority of the country may demand a particular course of action, he would seek to ensure that the rights of individuals are not trampled upon.  I guess, that is the part that doesn't gell. 

I suspect that Nordin was going for another effect.  He probably found the quotation appealing for a different reason.  The PAP has been insisting for some time now that good leaders must resist adopting a populist approach to leadership.  The government should not pander to the demands of the crowd and it must be willing to take bold and unpopular decisions.  PAP's insistence on not going down the populist road is not based on a desire to uphold the rights of individual citizens.  In fact, often the PAP government's justification for compromising on individual rights is based on the importance of the community's collective goals.  The gang-rape version of democracy is what we get when majority moral sentiment is used as a basis for the rentention of laws that infringe upon the rights of individuals.  Communitarian goals trump rights in the gang-rape version of democracy. 

Nordin probably threw that quotation in because it appeared to justify the need to avoid populism.  But, Goodkind was in fact championing the rights of the individual.  That (championing individual rights), based on historical record, has not been the operating philosophy of Nordin's party. 

In the end, was there a need for Nordin to apologise for the quotation?  This is one incident that, I would unequivocally state, did not warrant an apology.  The quotation is against a majoritarian approach and is in favour of protecting individual rights.  I don't mind, and I approve of, this kind of infiltration into the mind of a PAP MP. 

(As for those that seek to read mysogyny into the 'gang rape' reference, please get a dictionary and look up the meaning of the word 'analogy')

 

We the people can make our President speak

The debate on the President's powers is taking a healthy turn. I'm glad that netizens are weighing in with good arguments one way or the other. A truly heartening aspect of this discussion is that most views are expressed within the ambit of the current constitutional framework as set out in our written Constitution. Nobody has illusions about the powers that are provided for.

The Ministry of Law's press statement is an accurate rendition of the relevant constitutional provisions. For those readers that don't plan to labour over the Constitution, I would recommend the MinLaw statement for a useful guide.
http://www.news.gov.sg/public/sgpc/en/media_releases/agencies/minlaw/press_release/P-20110610-1/AttachmentPar/0/file/Press%20Statement%20from%20Minister%20%28Law%29%20-%20Elected%20President%20_10%20June%202011_.pdf
We can potentially debate about whether the Constitution itself ought to be amended to give the President express powers in additional areas or to remove the constraints placed by the Cabinet's advice in the exercise of certain powers (e.g. Clemency). But, that would be a different kind of debate.

The present debate, as it is shaping up, is about whether the next President should speak up on policy issues or not. Traditionally, the head of state in a commonwealth country has been fashioned after the British monarch. There is no historical controversy in the assertion that our first President was in many ways a replica of the British monarch. His power was essentially more ceremonial than actual. As with the Queen, our unelected President lacked the constitutional legitimacy to speak up.

Singaporeans had never debated about the extent to which a President should exercise his powers because we never really saw him as having any legitimacy to wield any power.
Two things have changed from the 1990s onwards - today's President is elected and today's President earns an obscenely high salary. There is, therefore, a popular perception that the will of the people must be voiced in some way by the President and the President must be worth the money that he is being paid.

The expressly stated powers of the President in our Constitution do not traverse the area of his right to speak and express his views. Yes, he is not in a position to veto most bills and he is not in a position to veto policies. But, the Constitution is silent on his right to express a view. In such instances we have to resort to the political conventions surrounding the office of the President. Being a carbon copy of the British Queen, the original office of the President was governed by conventions that applied to the queen. An unelected person has no legitimacy to chide the elected leaders for their policies. Similarly an unelected person has no legitimate role in criticising the legislation passed by an elected parliament.

The conventions surrounding the British monarchy were easily transplanted into our constitutional arrangements. But, it still remains true that those were conventions and not strict provisions in our constitution.

Those of us advocating an expanded role are relying on the elastic nature of conventions. Once the Head of State is elected the game changes considerably. (In fact, one of the drawbacks of the creation of the elected presidency was the failure to appreciate the potential impact of the electoral mandate on the office itself. The complacent PAP government did not anticipate that an Elected President might one day challenge and question the PAP itself). Constitutional law does not reside in a vacuum. Political currents can be sufficiently strong to push through major shifts in the way certain officeholders may carry out their functions. This can happen without necessarily amending the Constitution and at the same time by avoiding any offence to existing constitutional provisions.

There is room to manoeuvre. We want our next President to use that room.
If ever there is to be a political moment in our nation's post-independence history where the power of the people's voice was strong enough to effect change, this is it. The push-back by the people against the PAP was loud and clear in May 2011. The PAP (to its credit) did not react with a heavy hand. It is responding through a reassessment of itself.
This displays that there is an important threshold that the PAP leaders are themselves prepared to cross. Criticism need not be crushed. It can be the basis of constructive analysis instead of building a culture of group-think.

I firmly believe that if there is sufficient public support for a vocal presidency, the winning candidate may carry with him a powerful electoral backing with which he can re-shape the office.

The current Cabinet ministers may possess sufficient wisdom to permit a slightly expanded role for the President. Who knows?

In a country where we are accustomed to the rules of the game being changed by the PAP, it is about time that the people play a part in changing the rules.

Summarising my previous blog post and the current post, my premise for an expanded role is this:
a) There are powers that the President can exercise discretion on
b) There are powers that the President is required to exercise in accordance with the advise of the Cabinet
c) There are no limitations or constraints on the President’s ability to publicly express his opinion
d) Public expression of opinion rendered in a gentlemanly fashion would at most piss off the government of the day but it would not result in a constitutional crisis
e) Dissenting views are a healthy aspect of a mature democracy (and we are on the way to maturing as a democracy)
f) By expressing his views, the President is not going to emerge as another power centre as his functions are still clearly demarcated

Where do we go now?

For the last 20 to 25 years, I have had this feeling that our country had lost its soul. I might even add that maybe we didn’t really develop a soul after independence in 1965. We had become mere digits in a giant GDP focused machine.

Many of my friends and some of my relatives have gone away to work overseas or have relocated and given up their citizenship. If you were to ask most of them what the reason for leaving was, one inevitable reason would be that our country was missing a soul. Some would talk about it in terms of the politics here. Others would lament the lack of a balanced lifestyle. Still others may speak of the lack of a creative environment.

To me, these are all interrelated reasons. Our politics has stifled our cultural environment. The ruling party’s overriding focus on economic growth at the expense of everything else has stunted our development as a nation. After all these years of independence, why are we still not a nation yet? (Mr Lee Kuan Yew asserted as much in 2009 when he insisted that we are still not a nation.)

The answer lies in the fact that for too long the PAP has relied on a top-down model of governance that has stifled the voice of the people. Whilst you are trying to lead a whole community, the voice of the people might feel like a cacophony that distracts you from your primary purpose. But, within that cacophony is a yearning for ownership. Each individual wants to have the dignity of being the creator of his own destiny. This collective yearning to be creators, and therefore co-creators of the community’s destiny, should not be shut out. But, this is what the PAP has done in all these years of governing this country.

The PAP leaders have acquired a ‘we know best’ persona and have refused to hear or accommodate dissenting voices or views. This has manifested itself in a range of ways. Letters written to the forum pages of the state media may not readily be published if they are overly critical of the government. Responses from government departments or ministers have adopted a ‘trust-us-this-is-good-for-you’ approach rather than to suggest that they would consider the complaints and look into how things could be improved. This may sound trivial. But, psychologically this is something valuable for the people. We can feel that we have expressed our frustrations and that these frustrations have not only been heard but that they may possibly be the basis on which policy decisions are made.

At the extreme end of the spectrum, too many Singaporeans have grown up with a sense of fear as to what could happen to them if they voiced their views in public. Detentions under the Internal Security Act had caused many of us to fear a government that we saw increasingly as being bent on retaining its grip on power through whatever means possible. The 1987 detentions under Operation Spectrum were pretty unconvincing in terms of the reasons supplied by the state. Roman Catholic church members, social workers and lawyers: these are hardly the kind of people that we consider to be dangerous communist insurgents. But, the government through the state media tried to sell that story to us. Some of us bought it. Many didn’t. But, amongst the many that didn’t buy into the reasons, we certainly got entangled in the state of fear that the arrests induced.

Singapore society fell silent. Social activists fell silent. The Law Society fell silent. We knew that it was not prudent to criticize the ruling party or to speak in support of opposition parties. I remember for a long period of time that any conversation critical of the PAP or its leaders had to be conducted within the privacy of our homes or if in a public place, with hushed tones so as not to attract the attention of some ISD operative. You could be in a coffee shop and the conversation could veer into politics and friends would uneasily glance over at other tables especially if there is a lone individual sipping his coffee for an endless period of time.

As a concurrent development in the 1980s, the youth of that time were displaying dissent at the ballot box. (Presumably it was the youth as LKY was pretty upset with the younger generation at that time.) At its peak the opposition managed to get 4 seats in Parliament and had reduced the PAP’s popular vote to 61%. That was in 1991. Since then the PAP has been effective through redrawing of boundaries and the extensive usage of the GRC system to effectively neuter the opposition and limit them to Hougang and Potong Pasir.

By the time we stepped into the 1990s, it was becoming clear that voicing your views against the PAP was not a prudent thing to do. In the 1990s, we moved from ISA detentions to defamation suits. In a country where the pursuit of wealth or at least economic survival is of penultimate importance, the threat of defamation suits was a powerful weapon against dissent.

But, the last five years have been different in many ways. Little by little people were voicing out their views and getting away with it (with the exception of the law extending its arm now and then to show who’s the boss). The internet gave us two things: an avenue for alternative news and an avenue for venting our frustrations. The 2011 general elections saw online criticism of the PAP reach fever pitch with some really nasty and heated comments being dished out by disgruntled individuals. For the first time in a general election we had policy issues to grumble about and the discussions were not merely about checks and balances in Parliament. (But, arguably the a sizeable percentage of voters have matured enough to realize that the best way to effect policy changes is to have an effective system of checks and balances in Parliament)

Ironically, the government’s decision to adopt a light-touch approach to the internet as well as the decision to allow the internet to be used as a campaign platform became a sword against the PAP. The opposition parties do not have the organizational strength of the PAP nor the kind of structural reach into the population through grassroots organizations. But, through the internet and the internet-savy youth, they penetrated well into the hearts and minds of a frustrated population. Alternative news could not be ignored. The mainstream media could not ignore the online chatter. The PAP leaders could not ignore the sheer anger that was being displayed by the population during the campaign period. All that led to that historic day of ministerial apologies and we felt that Goliath, whilst not slain, was made to have a good hard look at himself (even if he may find it difficult to really alter himself).

Polling day came. More than 800,000 people made their roar audible. A GRC fell. Several GRCs were close. A warning has been served.

We stand now at the threshold of a new dawn. This is liberation day all over again. Not liberation from a colonial power but liberation from the fear that had gripped our nation. Suddenly, we realize that there is nothing to fear. The mighty PAP is fallible. The present leaders are not going to come down on us with the ISA. They appear willing to let us have our say and not quash us or our views.

During the election campaign period, many volunteered their services for the opposition parties. To do this in Singapore takes tremendous courage and a sense of self-sacrifice. Many had to battle disapproval from family members or colleagues or superiors. After the elections were over, many came forward to volunteer their services. I know of many (usually younger than me) who have voiced the intention to serve on the ground with opposition parties either as members or simply as grassroots volunteers.

One thing is clear: Anyone who volunteers in this manner to serve opposition parties is not trying to gain some kind of benefit for himself. The unfortunate fact about most people who join existing grassroots organizations is that they seek some kind of benefit for themselves. I have a relative who urged me a long time ago to join the grassroots as I am bound to benefit through contacts and I could get better clients that way. When I first moved to Choa Chu Kang, a court clerk that I knew bumped into me and suggested that I join the RC in my zone (in which he was a member). His rallying cry was also about the benefits that I could get as a result of being a RC member. I know of many parents who volunteer their services to grassroots organizations in the hope that they will get preference for the primary school where they intend to send their kids. There is only one thing to say about this. It is pure selfishness and self-interest at play. There will surely be some who join purely out of a sense of service and I am not going to lump them up in this generalization.

Unlike the grassroots organizations from which the PAP draws its strength where sycophancy is often the order of the day, the volunteers that are now coming forward to help the opposition cause carry a serious message through their actions. They want change. They want to live their lives with a sense of purpose. This purpose is not in fulfilling their own narrow interests but in pursuing the greater good of Singapore. The political stranglehold that the PAP has had in our country has sucked out almost the last drop of the idealism and hope that we were born with. But now, something has changed. Something magical has happened.

People are rising up. There is a momentum created during the days of the campaign period that has not gone away. Many are carrying this flame in their hearts and surely more and more capable and passionate people will step forward to join the opposition parties. The next general elections will see the opposition fielding very strong candidates with tremendous passion. This is something the PAP is going to be lacking: passion. It already lacks this and it is failing to attract passionate individuals. Neutered unionists, technocrats and individuals climbing up the PAP-engineered meritocratic ladder are the types that the PAP can churn out. Individuals with a passion for the people are inevitably going to cross over the line and towards the opposition.

What do we do now? There is an important political milestone to be reached in our country. We have to prevent the PAP from amending the constitution whenever it deems it fit. Constitutional amendments must be done only when there is a cross-party support for such measures. To ensure this, the opposition must obtain sufficient seats in Parliament to prevent the PAP from having a 2/3 majority.

30 seats in Parliament for the opposition and the PAP’s stranglehold will be broken. That is the target.

This is achievable even by the next election. Those of us that are committed to building an active democracy must do our part. We could volunteer to assist in the grassroots activities of opposition parties. We could monitor the state media and expose any propaganda. We could continue to highlight the policy failures of the government and socio-economic issues encountered by Singaporeans. We could continue to campaign for the reform of the law and our legal system.

We want a just society. We want an equal society. We want a democratic society.

This is not too much to ask or too much to seek to accomplish. It is nothing more than what we have been pledging to do all those years in our school days. For once, the pledge can mean something. We now have a chance to cease to be hypocrites and really do what we have been pledging to do.

“We, the Citizens of Singapore, pledge ourselves as one united people, regardless of race, language or religion, to build a democratic society based on justice and equality, so as to achieve happiness, prosperity and progress for our nation.”

Of Word Games and Human Rights, democracy, rule of law and all that Jazz (Part 2)

In continuation of my earlier blog entry where i was analysing the Ministry of Law's response to the IBA report, I was planning to do an analysis of paragraphs 7 & 8. These are the relevant paragraphs:

7. The human rights allegations in the Report also have no substance. Singapore had responded in detail to them in our 9 April response to the draft report. Singapore, like nearly all countries, subscribes to the Universal Declaration of Human Rights. Human rights are interpreted and implemented according to the specific histories, cultures and circumstances of each country. Every society must find and decide the appropriate balance between rights and responsibilities for themselves. Human rights groups in IBAHRI have closed ranks with other Western human rights NGOs to prescribe for Singapore and all new countries, especially China, Western norms of liberal democracy as the only way to bring stability and prosperity. They believe that free market policies cannot succeed without Western liberal democracy, and it is their mission to make other societies adopt the Western model.
8. No NGO has greater interest and understanding of Singapore's history and internal balance than Singapore's leaders, to be able to set norms that will work for Singapore. Whatever the shortcomings of the Singapore government, from our record no one has doubted that our overriding objective has been to get Singaporeans better educated, to understand and be exposed to the globalised world we are now in. So we adjust our laws and systems to maximise the benefits from global forces to make Singapore a thriving cosmopolitan city, where Singaporeans and foreigners live and work in a peaceful, safe and open environment. We listen carefully to all advice and then decide the right balance for ourselves. So far we have not done badly.


I find it difficult to digest the idea that IBA is closing ranks with other NGOs or that it doesn't have a right to render a friendly advice. Before I could formulate my thoughts coherently and write about those two paragraphs, I have read the following from Michael Backman in The Age, 17 July 2008:

As you read through the measured paragraphs of the IBA report, you can almost feel the pleading; the advice to a friend: "you're wealthy, you're educated, you're like us now. Take that final step — join us — the community of civil, prosperous societies. Do it, before you embarrass yourself more." But this friend is too proud to listen.

The full article is at http://business.theage.com.au/business/uniqueness-of-perfection-that-sits-to-our-north-20080716-3gdz.html

Whilst I don't agree with every aspect of Backman's article, his characterisation of the IBAHRI report as an advice of a friend is very apt. We have reached a level of development where we can safely cross over to the other side. There is no point in our government repeatedly asserting that given our unique cultural, social, historical, etc. background, we have to chisel a system that works best for us. There is surely a system that worked for us in the economic developmental phase of nation-builidng. But, we must remember that we are building a nation and not a company. The next step is the emotional fulfilment of being Singaporean; of having a sense of belonging; of having a sense of civic responsibility; of having a stake in the decision-making process; of having a say in relation to government policies; of being able to critique the political goings-on without the constant fear (imagined or otherwise) of reprisal lurking next to every thought that we wish to express.

We are more educated. We are economically more well off. But, why must freedom languish in the abyss. Let us lift ourselves and march confidently. Criticisms sharpen our perspectives, broaden our understanding and ensure enlightened governance.

Of word games and human rights, democracy, rule of law and all that jazz

The International Bar Association has released a report entitled, ‘Prosperity versus Individual Rights? Human Rights, Democracy and the rule of law in Singapore.’ The Ministry of Law has responded swiftly to the report. Let’s see what the Ministry has to say.

From para 2 of MinLaw’s response:“2. From a quick perusal of the Executive Summary, we note that IBAHRI has not taken into account our comments on their draft report, sent on 9 April 2008. We release a copy of our comments previously given to the Chairman of the IBAHRI on the draft report, for your reference.”

It is MinLaw’s assertion that IBAHRI had not taken into account their comments. This is a reference to a letter dated 9 April 2008 from Mark Jayaratnam, Deputy Director of the Legal Policy Division of the Ministry of Law. I went through the IBAHRI report and for good measure I used the ‘search’ tool available for pdf files. Mark Jayaratnam’s letter is referenced by the report 19 times. They have ‘taken into account’ the comments. Although, it is clear that it does not necessarily agree with the comments, IBAHRI has, where appropriate, quoted from the letter to illustrate the Singapore Government’s viewpoint.

The moral of the story… don’t jump to conclusions based on a quick perusal of the Executive Summary. Surely, the Executive Summary is not going to exhibit the government’s comments. I suspect that when MinLaw asserts that IBAHRI did not take into account the comments, what they really had in the mind was that IBAHRI did not agree with their comments. One can take into account an opposing thesis and then disagree. The fact that one disagrees does not mean that one has not taken into account the opposing thesis.

From para 3 of MinLaw’s response:
“3. The IBAHRI Report questions the independence of the Singapore Judiciary. This is contradicted by Mr Fernando Pombo, President of the IBA, who stated in his opening speech at the IBA Conference in Singapore last October that lawyers the world over were coming to Singapore because:
"this country has an outstanding legal profession, an outstanding judiciary, an outstanding academical world in relation to the law".”

It is quite clear from the IBAHRI Report that the allegations directed at the issue of the independence of the judiciary are muted and qualified. IBAHRI does not go all out to claim that the judiciary is not independent. They have acknowledged the high standards maintained by the judiciary and the high standards within our legal system. But, they have sought to address the nagging doubt that is raised by some of the ‘political’ cases that have appeared before the courts. The criticism is measured and I believe it is not inconsistent with the IBA President’s comments at the IBA Conference last year.

“The judiciary in Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases that do not involve the interests of PAP members or their associates. However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient. In addition, it appears that some of the objective characteristics of judicial independence, including security of tenure, separation from the executive branch and administrative independence may be absent from the Singapore judicial system.”

IBAHRI’s comments and their findings do not assert an actual executive interference in judicial affairs. In fact, they are suggesting that there is room for improvement. After all, justice must not only be done, but must be seen to be done.

From Para 4 of MinLaw’s response:
“4. Other independent observers agree. The Political and Economic Risk Consultancy (PERC), which rates Asian countries on their business and legal environments, regularly rates the Singapore judiciary highly. PERC's Asian Intelligence Report 2006 explained that this was because the Singapore judiciary demonstrated three essential elements of judicial independence. First, the courts and individual judges within the system are publicly perceived to be impartial in their decisions. Second, judicial decisions are accepted by contesting parties and the larger public. Third, judges are perceived to be free from undue interference from other branches of government. The IBAHRI Report failed to acknowledge these facts.”

IBAHRI does refer to the PERC Asian Intelligence Report of 2006. In the section D of the Report under the heading ‘Singapore’s International Rankings’, IBAHRI has outline a number of rankings that rate Singapore very highly and some that rank Singapore poorly. Specifically in relation to the judiciary, this is what they say:

“In the judicial and legal system rankings, Singapore has also performed well in international assessments. In Transparency International’s Corruption Perceptions Index 2006, which measures the degree to which corruption is perceived to exist among public officials and politicians, Singapore ranked fifth in the word. Similarly, in an Asian-only based report, the Political & Economic Risk Consultancy’s Asian Intelligence Report 2006, strong commendation of Singapore’s judicial system was made, stating: ‘Within Asia, Hong Kong and Singapore are the only two systems with judiciaries that rate on a par with those in developed Western societies…’

So, the bone of contention for MinLaw is that IBAHRI did not acknowledge all of the accolades given by PERC. Clearly, if IBAHRI intended to carry out an independent study, it would take into account the findings of multiple sources and draw its own conclusions. We can’t expect IBAHRI to rubber stamp PERC’s findings. All that this indicates is that there is a variety of opinion out there about our judiciary. In any event, the point that IBAHRI seems to make is not so much that our judiciary is not independent but rather that there is a perception of lack of independence.



From Para 5 of MinLaw’s response5. The IBAHRI Report did acknowledge that "Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases", but it alleged that for cases that involve "the interests of PAP members or their associates", there were "concerns about an actual or apparent lack of impartiality and/or independence". Instead of substantiating this grave allegation with evidence, the Report argued that "regardless of any actual interference, the reasonable suspicion of interference is sufficient". This is a feeble justification.

Oh my God! Feeble justification. A very important principle of procedural justice is a ‘feeble justification’. Justice must not only be done but must be seen to be done. This principle is basic. The point is best illustrated through using the process of adjudication. If I judge a civil dispute involving my son as the Plaintiff and some other person as the Defendant, I might still be able to do the honourable thing and adjudicate impartially. I might assure the defendant that I will adjudicate based on the law and the evidence before me and that the Plaintiff will be treated as just any other person. It is not inconceivable that a true man of conscience with a deep sense of justice would be able to perform this separation of reason and emotion.

There is a story about a Chola king in Tamil Nadu that has passed into legend and it is eulogised in classical Tamil literature. Manu-needi Cholan had a son who killed a calf by riding his chariot over it. The king had a petition-bell outside the palace. Any person who felt aggrieved may ring the bell and seek justice. The mother of the calf was ringing the bell violently. The king eventually discovered through his aides the full story pertaining to the killing of the calf. He then ordered that his son be punished for the crime that he committed.
This story is always presented as an indication of how an honourable king would behave when adjudicating a dispute. The unstated fact is that impartiality in adjudication is not a norm and is usually an exception. Surely the norm is that a king would have difficulties in being impartial when his own son is involved. So, it is important that the king does not place himself in a position of a judge when his own son is the object of the complaint. However, that old Tamil story seeks to instill the value of impartiality within the ruler rather than to insist that a system of impartiality be created to distance the king from the adjudicative process so that we can guard against the human frailty (which is a norm rather than an exception).

In English law, which we have inherited, there is a deep sense of impartiality in decision-making that has been implanted within civil and criminal proceedings. In fact, instead of taking chances with the ability of fallible human beings in performing the mental gymnastics of separating their personal emotions (fear, favour, vested interests) from the rational processes, there is a principle of natural justice that no man shall be a judge in his own cause. If a judge is faced with a Plaintiff or a Defendant in a case and there is a personal financial or non-financial interest that the judge has in the case, he must not hear the case. The principle extends beyond actual bias and deals with apparent bias as well. Our own courts have in many cases held the principle to be of application in Singapore. Of course, this is a principle that is utilised in the course of judicial proceedings. So, a judgment can be quashed not only where actual bias is proven but also on the basis of apparent bias.

Therefore, in the context of judicial impartiality and/or independence, there is no reason why the standard of apparent lack of impartiality and/or independence should not be applied.

IBAHRI’s assertion is as follows:

“However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient.”

Note that the report does not state that there is no impartiality or independence. It states that there are ‘concerns’ about the ‘actual’ ‘or’ ‘apparent’ lack of impartiality and/or independence. In fact, they were at pains to point out that they were breaking ranks with other NGOs that go overboard in criticising the judiciary in Singapore.
This, however, is the allegedly ‘feeble’ point that they are trying to make: “regardless of any actual interference, the reasonable suspicion of interference is sufficient.”
The point is that it is not enough for a government to assert that there is no interference. Efforts must be made to ensure that the system is not capable of being abused. Efforts must be made to ensure that the system does not allow for the possibility of interference. Efforts must be made to ensure that there can be no reasonable perception of interference. In its report, IBAHRI uses the examples of Judge Michael Khoo, the trend in defamation suits and the Jeyaratnam case that went up to the Privy Council to illustrate the perception of interference. It is clear from the report that there is no actual evidence of interference.

When IBAHRI states that reasonable suspicion of interference is sufficient, they mean that a modern state such as Singapore should strive for a higher governance standard. We can no longer be judged like a third world country. We have first world standards in so many aspects of our life. Is there anything wrong in seeking to have a system of governance that excludes the possibility of executive interference in the judiciary?

From para 6 of MinLaw’s response
6. The cases brought by PAP members usually relate to scurrilous and completely untrue allegations of corruption made against them. Providing clean and efficient governance is a longstanding cornerstone of the PAP Government's policy. Thus defamatory allegations cannot be allowed to rest. The accuser has to prove his allegations. The decisions of the Courts in these cases are matters of public record, and can be analysed. Anyone questioning these verdicts should try to do so by examining these decisions properly, rather than making vague unsubstantiated allegations. What the western media continually criticise is that Singapore does not adopt Western, i.e. American, defamation laws that give the media freedom to report libellous untruths without liability to pay damages. It is also absurd to suggest that honourable and upright judges in commercial cases become compliant and dishonourable when dealing with defamation cases involving government ministers.
I will be fair to our judiciary in those defamation suits. The decisions have remained within the rational limits of the English law of defamation that we have inherited. Using defamation suits alone as a basis for alleging the perception of lack of judicial independence would be insufficient. IBAHRI does not rely on the defamation suits alone. In fact in relation to defamation suits, the bone of contention appears to be that statistically, PAP litigants have received much higher damages compared to non-PAP litigants. Incidentally, the IBAHRI statistics are a bit outdated. They end at 1999. IBAHRI also takes issue with the Summary Judgment procedure that is available under our Rules of Court for defamation suits. When a matter is disposed via Summary Judgment, the matter is not heard in open court. In suits involving politicians, this can run counter to the need for the public to view the proceedings so that they can form their own opinion and so that no allegations of executive interference can be made in the judicial process. It is from this perspective that IBAHRI have made their observations vis a vis he defamation suits.


Para 7 and para 8 of MinLaw’s response deserves a separate comment which I will attempt to do in a separate blog.