Human Rights for Some Humans

I am mulling over this issue: Is it possible to advocate for human rights and yet qualify it by asserting that not all humans are entitled to rights?

The easiest answer to give to that is to say that if you do not advocate rights for all humans, then you do not in fact stand for human rights. What you stand for is rights for a group of humans or a majority of humans. So, how could you be classified as a human rights advocate.

This issue has now been articulated through NYU’s invitation extended to Pro Thio Li-Ann.

Let us consider the following hypothetical situations:

a) Can I be considered an advocate for human rights if, despite other strong views supportive of human rights, I believe that the worship of idols either in public or private should be criminalised?

b) Can I be considered an advocate for human rights if, despite other strong views supportive of human rights, I believe that the law should state that women must be homemakers so long as there is a child in the family that is below 10 years of age (failing which a criminal penalty ought to be imposed)?

Many of us would instinctively jump at the 1st example as a case of religious intolerance and an infringement of the freedom of each individual to continue as a practitioner of a particular faith. Similarly, many would jump at the 2nd example as a case of gender discrimination if the law mandates that a woman should stay at home.

We have, in our minds, classified gender, race, religion, nationality and language (amongst others) as distinguishing characteristics within the human race and that any discriminatory application of the law in relation to persons on account of those differences as an infringement of their human rights.

So, the next question is: Can a person advocate equal rights for persons regardless of gender, race, religion, nationality, language, etc., but believe in the criminalisation of homosexual conduct and still be considered a human rights advocate?

Some of us would readily assert that discrimination against a person on account of their sexual orientation is an unacceptable form of discrimination. There are others that may construct an argument that a provision like s.377A is not discriminatory towards homosexuals and that it only criminalises the ‘act’. The opponent of homosexuality does not discriminate against the individual but only the act that the individual engages in.

I came across some interesting comments at the following site:
http://nyuoutlaw.blogspot.com/2009/07/nyu-outlaw-boards-official-statement.html

There is an individual posting the following comment anonymously:

“jailing someone for a particular act is different from jailing someone for who he is.
an example of jailing someone for who he is would be, say, putting a jew in jail simply because he was born to a jewish parent (and not because he engaged in any particular practice).
another would be putting japanese-americans in concentration camps simply because they were born to japanese parents - not because of any particular acts they committed.
the professor's argument, as i understand it, is that certain homosexual ACTS should be made criminal - NOT that homosexuals should simply be jailed regardless whether they commit any acts.”

In response to that comment another anonymous commentator posted the following:

“Targeting a behavior that only one group; a) engages in, and b) is defined by, is fairly clearly also targeting that group.
If you make "cheering for the Yankees" illegal, even if you allow people to "be Yankee fans," then you're seeking to jail Yankee fans. It's the same reason a Florida judge found Miami's Anti-Baggy-Pants law to be unconstitutional last year, because it unfairly targeted minorities.”

The 1st commentator then posted a response, part of which is as follows:

“don't many (most?) laws target particular groups? Laws against yelling drunkenly at 2 a.m. target people who like to yell drunkenly at 2 a.m. (an activity which is not without its merits). Laws against exposing yourself in public target nudists (among others).”

In relation to homosexuals the problem that is highlighted here is that the sexual act is targeted and not the group. The 2nd commentator is of the view that where an act is done by a group and that group is defined by the commission of the act, criminalising the act is equivalent to discriminating against that group. Homosexuals fall into such a category. But, what are we to make of the rejoinder about the people who yell drunkenly at 2 a.m.

If every human activity that can be identified as being performed by a group is to be protected on account of it being discriminatory if one were to criminalise the conduct, wouldn’t all criminal activity have to be de-criminalised? To criminalise murder is to discriminate against murderers. To criminalise theft is to discriminate against claptomaniacs… etc.

But, I believe that this conduct-group association misses the point. Criminalisation of a particular conduct by the state should be undertaken on the basis of the harm that the conduct causes to others. Murder, theft, assault, etc, are examples of harmful activities that the state proscribes. Where no harm is done to another, the state ought to refrain from proscribing that activity. It is for this reason that I believe that consensual sexual activity between two adults should not be criminalised.

Let me come back to this point about discrimination against homosexuals. A law such as s.377A criminalises the conduct engaged in by homosexuals and it is a conduct by which that group is defined/classified. The conduct itself causes no harm to others. Therefore, it is not conduct that can be classified alongside theft, assault, murder, etc. Prima facie, it is not conduct that the state has an interest in criminalising.

Next: Criminalisation of a conduct by which a group is defined where such conduct does not cause harm to others would amount to discrimination against the group.
Consider the idol worship example. A law criminalising idol worship would discriminate against Hindus, Buddhists and Taoists primarily and possibly Catholics and certain denominations of Christians.
Similarly, criminalising conduct by which a homosexual is defined where this conduct does not harm anyone is discriminatory.

This then gives rise to the next question. We readily accept that discrimination on account of race, religion, language and nationality is impermissible and we see it as a human rights issue. However, there appears to be a debate over whether discrimination on account of sexual orientation raises a human rights issue. I do believe that depravation of any individual’s ability to peacefully carry out activities that cause no harm to others is an infringement of a human right. So, how does one get to be called a human rights advocate whilst not advocating for the rights of some.

I am quite curious as to how an argument might be advanced to suggest that s.377A does not raise a human rights issue. Anyone willing to venture an argument along those lines?

ON ANOTHER NOTE, Prof Thio has struck a rather conciliatory tone after the furor over her invitation by NYU. There was a law student from NYU, Jim McCurly, who posted an open letter to Prof Thio and she responded to it. The following is a small part of her response:

I was sorry to read that you were beaten up - that is never justified; and being called "faggot" is as ugly as being called "homophobe" so perhaps we will leave the name-callers to their own devices and treat each other first and foremost as human beings with intrinsic dignity. (Is that a howl of protests I hear across the cyber-waves by the usual band of demonisers? C'est la vie.)

Let me get this straight. In ‘Thiology’, it is wrong for a person to be beaten up because he is gay; it is wrong for a person to be called a ‘faggot’. However, it is perfectly right, moral and justifiable that the state criminalise consensual adult male sexual conduct carried out in private. Apparantly 2 years behind bars is far more justifiable than being called a ‘faggot’.

I can see where you are coming from Mr Shanmugam

My suspicion is that there is a general consensus or at least a majority view in the Cabinet that homosexuality is a non-issue. Clearly, as a matter of policy they keep asserting that s.377A would not be enforced. This indicates, probably, a Cabinet view that what happens in private between consenting adults is of no concern for the state. If, indeed, this was the predominant perspective of the Cabinet, then why did they still insist in Parliament that the law should be retained?

I have a rough idea as to what might have motivated the current posture. Like many average heterosexual individuals in Singapore, I expect that Parliamentarians as well as the Cabinet members by a majority are neither here nor there on homosexuality. Many are not homophobes. Many would have no difficulty communicating or mingling with a homosexual colleague, friend or relative. But, being heterosexual, they don’t understand the marginalisation of a segment of the population on account of sexual orientation. That s.377A stands as law and that it would not be enforced appears to many to be a sufficiently pragmatic approach to deal with the situation.

The argument is: Don’t worry la. We are not homophobes. We won’t persecute you. We won’t enforce the law. Since you have that assurance from us, you need not worry about the presence of s.377A.

So, why is it that Parliament would not repeal this law? Why is it that the Cabinet would not persuade Parliament to effect a repeal? I can only imagine that in the overall interest of maintaining societal harmony and in the face of vocal positions adopted by anti-gay, pro-‘family’ interest groups, the government has erred on the side of caution by retaining s.377A on the statute books. However, since they are not too impressed with the rationale behind the criminalisation of such conduct, they have repeatedly given assurances that the law would not be enforced.

Mr Shanmugam, I understand where you are coming from. You do not think it is right to punish consenting adults for their private sexual activities. However, you think that there is a conservative segment of the population that has a sense of moral outrage vis a vis homosexual tendencies. So, the solution is: Leave the law as it is. We did not make that law anyway. We will just refrain from using it.

After the recent Delhi High Court decision on s.377 of the Indian Penal Code, Mr Shanmugam has been quoted in the Straits Times:

“We won't change the law, but how that is interpreted is up to the courts, It is not our position to tell the courts what to do."

Now, that is a useful way to attempt a rethink on s.377A. Perhaps a ‘reading down’ of s.377A is in order. Our courts could interpret s.377A in a way that would not render it unconstitutional. Note that s.377A only makes the commission (etc) of an act of gross indecency an offence. The ordinary sexual activity involving two males could be interpreted by the courts as not being acts of gross indecency.

The Penal Code:
s.377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

The Constitution:
Article 12. —(1) All persons are equal before the law and entitled to the equal protection of the law.

On that note of judicial interpretation as the way to go, I feel it would be appropriate for me to quote from the judgment in the case of Naz Foundation v Government of NCT of Delhi and others (2009):

‘The judiciary is constituted as the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights. After the enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. To quote the words of Krishna Iyer, J: “The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.”

Section 377A is a law, a decorative piece or a potential political tool?

The High Court in Delhi has interpreted s.377 of the Indian Penal Code as not criminalising consensual homosexual relations between adults for to criminalise such conduct would be unconstitutional. To put things in perspective, Singapore had already repealed s.377 in 2007. However, we do have s.377A:

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

What is our government's response to the Indian Court's decision?

“We have the law. We say it won’t be enforced. Is it totally clear? We, sometimes in these things, have to accept a bit of messiness.” - Mr K. Shanmugam, Minister of Law, 2nd Minister of Home Affairs.

Boy do I have a problem with that statement! The Law Minister is making a case for messiness in the law. Is it acceptable to have some messiness in the law?

The hallmark of the rule of law is the control of wide or discretionary power. Whenever the state is given power over citizens, that power must be regulated by law. Where the state has discretion in the use of power, that discretion must be regulated by law. Thus, in many areas of the exercise of authority, the Executive is required to operate within the boundaries prescribed by the Constitution and by Acts of Parliament. Where the Executive is permitted discretion in the application of particular policies, our system allows for judicial review of such discretion. In this way, we seek to control abuse of power by subjecting all power to law.

We have a slightly different problem when there is a law that criminalises a certain conduct. The state is now authorised to prosecute an individual for the commission of an offence as deemed by that law. Where such authority exists, the expectation of the citizenry is that the law be applied consistently and efficiently. With regard to much of our criminal laws we have earned the reputation of consistent and efficient application. What then becomes of a law that is not enforced? Does it cease to be law by its disuse? Does it gradually fail to have any legal status by the very fact of its long term non-application? The answer is an emphatic No! A law is a law so long as it fulfils the criteria of validity within a legal system. If it is found in a statute, by the requirements of legal validity in Singapore, we would regard it as a law. This is without regard to whether it has become comatose.

So, what is the problem if there is a law that criminalises a certain conduct and that law has gone into a state of disuse but is nevertheless considered to be a law? It is possible for someone to assert from a practical standpoint: ‘Look. That is the law. We haven’t been enforcing it right? We won’t enforce it in the future. So, there is nothing to worry about. The law is a bit untidy. But, that is just going to be an abstract issue of academic importance. You won’t get charged for this offence. We are sincere about it.’ It is easy to be enticed by this supposed distinction between the practical and the theoretical.

I firmly believe that there is a practical reason for removing a law that the Executive and the Legislature regard as one that should not be enforced. If a law that the state has chosen not to enforce is retained, it becomes a tool in the hands of a future Executive that seeks to abuse power. In relation to s.377A of the Penal Code this is the problem. It is clear from statements made by some of our ministers as well as some Parliamentarians that there is no collective interest on the part of our State to enforce s.377A. They have made repeated assurances that they would not enforce the provision. This includes the latest assurance by the Law Minister: “We have the law. We say it will not be enforced. Is it totally clear?” To be fair, I have no reason to doubt Mr K Shanmugam’s sincerity when he asserted that. In fact, there appears to be a certain impatience in the phraseology revealing the sincerity that the Minister has with regard to the non-enforcement of s.377A. I do not take issue with the sincerity of our government on this issue. I do believe that they would not enforce s.377A against consenting adults carrying out the act in private. Whilst I do not believe s.377A would be enforced, I do believe that it exists as a powerful tool if the state is minded to abuse power. We are all familiar with Anwar Ibrahim’s predicament in Malaysia. We should be aware of the fact that abuse of power through the use of archaic law is not merely a theoretical possibility but has in many jurisdictions been a painful reality.

We cannot pretend that we would be immune to such potential abuse of power. Imagine a scenario where a vocal critic is silenced through the application of s.377A. For example, the author of the Yawning Bread blog is, on an objective assessment, a vocal critic of the government. However, his criticisms are neither seditious nor defamatory. They are within the ambit of lawfully permitted speech. Nevertheless, if the state so desires, it could deploy s.377A against the author. Such potential for arbitrary use of power through the deployment of a law in a state of disuse is not just a theoretical possibility but also a practical problem when it materialises.

If the state sees justification in the criminalisation of a conduct, then that law must be enforced. If the state sees no justification for the enforcement of that particular law, then the state obviously does not believe in any justification for the criminalisation of that conduct proscribed by that law. In such a situation, when the law is in fact eventually enforced on an ad-hoc basis, it becomes a discretionary application of the law. The exercise of discretion by the Execeutive is always a worry when that discretion is unregulated. If the state is going to enforce s.377A on the basis of pure discretion, the law is susceptible to political abuse.

My view is that since the state appears not to believe in the need to enforce s.377A, that provision ought to be removed in order to prevent any future abuse of power. (For apologists of the status quo, imagine this: Dr Chee Soon Juan becomes the Prime Minister in 2030 and decides to have Mr K Shanmugam charged under s.377A using false allegations of engaging in homosexual acts with a former member of his staff. – I don’t intend to cast aspersions on the character of either Dr Chee or Mr Shanmugam by using this example. I have chosen to use this example so that the danger of leaving an unused law on the statute book can be driven home)

Tiananmen

Why don't you ask the kids at Tiananmen Square, was fashion the reason why they were there? - from the lyrics of System of a Down

Song of Tiananmen Square

The following is an extract from David Rice's fictional work entitled 'Song of Tiananmen Square' based on the Tiananmen protests 20 years ago. I thought the declaration of martial law was handled rather well in this extract:

On the dot of ten a helicopter thudded down along the ravine of Chang'an Avenue, well below the tops of the buildings. It banked in front of Tiananmen Gate and swung in over the Square. It was one of those french-made Gazelles -- I recognised its faired-in tail rotor. We shaded our eyes to watch it hover right above us.
A huge bulk appeared below the helicopter, falling directly on top of us. Song screamed and I thought I was going to die. The thing exploded and became thousands of fluttering leaflets.
They had put it in writing, the bastards, their fucking Declaration of Martial Law.

Tiananmen

The following video from Human Rights Watch is a timely reminder why this is a tragedy that cannot be forgotten.




http://www.hrw.org/en/video/2009/05/12/tiananmen-chinas-unhealed-wound

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.

Public and International Law Committee

Following closely on the heels of my blog's renaming from the clumsy 'withandwithouteyes' (that nobody was really reading) to the succinct 'article14' (an attempt at cyber CPR for that unrealised Constitutional right), the Law Society of Singapore has announced the formation of the Public and International Law Committee.... a sort of Human Rights Committee minus teeth and any other sharp objects or objects that, though not sharp, may be sharpened or though not sharpened, may be able to inflict the damage (or a fraction thereof) that could be inflicted by sharp objects or any damage.

Ok... That's clearly not in keeping with the plain English drive...

Incidentally, my blog's name change did not in any way, shape or form (or formless form) influence the Law Society. I have no idea what motivated the Law Society.

Let us hope some constructive work from the Committee.. For now, although it has not been launched yet, this is my favourite committee within the Law Society. That does not say much since I haven't thought of any committees with the Society that I can think of as a point of comparison.

Somehow, I don't think the Committee is going to be all that great. Judging from the inaugral lecture that they have arranged, I can't help but suspect that it will serve as a forum for a competing thesis for human rights based on the less than human values as evisaged by the 'uniquely' Asian perspective. A thesis that human rights is not for us because we are Asians. :-) presumably, the result of that equation would be that we Asians are not humans... well, whatever, nevermind

Anyway, it always helps to be hopeful... that is the way to keep one's sanity... It also helps to be cynical.... that is the way to avoid disappointment... The key to dealing with the work of this Committee and how it would unfold is to follow the middle path between hope and cynicism.

Good luck to the Committee. I wonder what their views are on indefinite detention without trial. That's a good place to start.