Rule of law: The path to exceptionalism

This is an excerpt from a speech delivered by Chief Justice Sundaresh Menon at the American Law Institute's 93rd Annual Meeting in Washington, DC, last week. He said the United States and Singapore share a commitment to the rule of law, although they may differ in their understanding of how it works in practice in each society.

The American Revolution drew from the well of natural law theory and the Lockean social contract in its commitment to equality and a distrust of power. The Constitution, therefore, divided the government into three coordinate arms. The judiciary was the institution entrusted with upholding the rule of law.

In the aftermath of the Civil War, the courts were, on the orthodox view, propelled by the ideology of laissez-faire individualism into a period of activism; but this was followed by a period of retreat and restraint under the New Deal court, as the United States strived to overcome the woes of the Great Depression. By the mid-20th century, the court had emerged as the strong protector of civil rights and liberties with the far-reaching decisions of the Warren Court.

That the conceptions of an independent judiciary upholding the rule of law have evolved over time is unsurprising because the rule of law is inevitably enmeshed within a complex web of historical fact, philosophical outlooks and, to some extent, the "felt necessity of the time".

Yet, behind these various conceptions, we see the same deep and unyielding commitment to the ideals of equality and liberty that characterised the founding of the republic; the same firm recognition of the centrality of the judiciary in ensuring legality and defending rights; and the same respect for and adherence to the decisions of the courts, no matter how unpopular they might be.

Without question, this has been instrumental in America's pathway to its exceptional position.

THE SINGAPORE STORY

If the American republic was born out of a pursuit of high ideals, Singapore was the progeny of an austere and existentialist necessity.


ST ILLUSTRATION : MIEL

For nearly a century and a half prior to her independence in 1963, Singapore had been a colony subject to British rule. As she moved towards independence in the early 1960s, the strong sentiment was that a federation with Malaysia, our neighbours in the north, would be the only way to secure our survival.

Malaysia was a large, resource-rich nation. By contrast, Singapore, though already a busy trading port, had little else. We had a land area of just 580 sq km and no natural resources; we even depended on Malaysia for drinking water. We had a population of two million people, many migrants of a diverse heritage.

And so on Sept 16, 1963, we came out of our colonial past as a constituent state of the Federation of Malaysia. The union was short-lived. There were deep disagreements between the local government in Singapore and the federal government over the establishment of a common market and the special position of the Malays. Singapore left the Federation in 1965 after political, economic and racial skirmishes caused our relationship with the Malaysian government to fracture and eventually break down. On Aug 9, 1965, Singapore became an independent nation.

Our existence was precarious and the path forward fraught. Racial tensions were high following our communally charged exit from the Federation. And the communist threat persisted into our independence, with traction especially among the working class and Chinese-speaking tertiary students of the day.

The need to survive sharpened the ideals of Singapore's founding fathers into an intensely pragmatic vision. Mr Lee Kuan Yew put it this way in a speech he delivered in those early years: "The acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice in the relationships between man and man and between man and the State."

One consequence of that hard-nosed pragmatism was an emphasis on a strong rule-of-law culture in order to attract foreign investment and multinational business interests. Without natural resources, investment and technology from abroad would be the engine to drive our economic growth, and its fuel a legal and business environment that protected contracts and property rights.

We understood from our foundational moment that an indispensable feature of that environment was a clean, efficient and independent judiciary. Our judges were drawn from our finest private lawyers, academicians and government counsel. Their tenure and remuneration were constitutionally protected. We ceaselessly updated our court systems and processes to cope with the increased volume and complexity of cases that came with development.

Underlying this was our zero- tolerance approach to corruption, which, just last week, Ms Christine Lagarde of the IMF praised in a speech on the economic harm of corruption. She cited Singapore as an example to be emulated for its eradication of corruption and its establishment of honest and competent public institutions.

Our commitment to the rule of law resting on a strong judiciary has been pivotal in Singapore's development narrative and its emergence as a modern economic miracle. Our Law Minister has observed that the confidence in our legal system helped us attract and sustain the high level of foreign direct investment relative to our size that we continue to receive today; about US$1 trillion (S$1.38 trillion) at last count.

From our improbable beginnings, we stand today as one of the most prosperous nations in the world. Our GDP per capita has risen from approximately US$400 at the time of our independence in 1965 to about US$55,000 today. Home ownership rates have risen from 29 per cent in 1970 to 90.3 per cent today. Life expectancy and literacy rates are also very high.

COMMUNITARIAN PERSPECTIVES

But our fidelity to the rule of law has co-existed comfortably with a prominent feature of our cultural substratum, which is an emphasis on communitarian over individualist values. These include notions such as dialogue, tolerance, compromise and placing the community above self. These values have modulated the court's approach in ensuring that the rule of law rules.

Chief Justice Chan Sek Keong, who held the office before me, spoke extrajudicially of the contrast between a society where the court is in an adversarial relationship with the executive, and one in which the court plays a supporting role to good governance by articulating clear rules and principles by which the government should abide, and serving as the last line of defence if and when those principles are breached.

On the latter view, good government can be encouraged through a variety of means, only one of which is the adversarial process of pitting the government across the Bar table before a judge.

Aspects of the latter approach can be seen in the Starkstrom case, a recent decision of the Court of Appeal, our apex court. It concerned judicial review of administrative action on the ground of substantive legitimate expectation, which is engaged when the government or an administrative agency acts contrary to a promise or an expectation that it has created or encouraged.

This is a developing body of law with divergent approaches in the British Commonwealth: both the courts of England and Hong Kong recognise it as a ground for review while the courts of Australia and Canada do not.

The controversy centres on the fact that this type of judicial review goes beyond the process and legality of executive actions. Judicial enforcement of an individual's legitimate expectation could amount to overruling on the merits the choice of the executive to reverse its earlier policy stance which had given rise to the expectation.

We did not in the end have to decide whether to recognise this type of review under Singapore law because it was a complete non-starter in the circumstances of the case.

But I do want to mention one aspect of our judgment. We observed that there exists a multitude of gradations between, on the one hand, judicially enforcing a substantive legitimate expectation and, on the other, permitting an administrative authority to ignore it altogether.

Intermediate points include (a) requiring the authority to confirm that it has considered the relevant expectation; and (b) requiring the decision-maker to disclose its reasons for overriding that expectation and subjecting those reasons to the traditional grounds of judicial review.

The judgment is instructive for the guidance it gives to the government and the public as to the sorts of issues that will need to be considered, and the variety of possible solutions, which can be evaluated when a proper case arises. What underlies this approach is the belief that a court which is respected by the other branches of government can effectively shape the debate and ensure the legality of government actions by setting out its concerns openly and potentially obviating a binary clash between the judiciary and the executive.

THE SHARP EDGE

Having said that, confrontation may be inevitable, and then, the judiciary must stand firm as the last line of defence. Judicial review is the sharp edge that keeps government action within the form and substance of the law. Although there is no express power of judicial review in our Constitution, our courts, like yours, have held that judicial review flows naturally from the premise that it is " emphatically the province and duty of the judicial department to say what the law is".

Our first Chief Justice post-independence, Wee Chong Jin, wrote in Chng Suan Tze v Minister for Home Affairs that "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power".

The Court of Appeal was recently required to apply this in the Dan Tan case. Dan Tan had been detained on the executive order of the Minister for Home Affairs under legislation which exceptionally permits such detention, if the minister is satisfied that the detainee had been associated with activities of a criminal nature, and that the detention was "in the interests of public safety, peace and good order".

Mr Tan's detention was ordered on the grounds that he had been the leader and financier of a global soccer match-fixing syndicate, labelled "the world's most notorious" by Interpol, and which allegedly operated in Europe and Africa from Singapore. He moved for habeas corpus, claiming that his detention was illegal.

We found for Mr Tan and set aside the minister's order. We undertook a detailed review of the history and purpose of the relevant legislation and concluded that it only permitted detention where the detainee's acts were harmful in Singapore. The grounds for Mr Tan's detention given by the minister did not establish whether or how the match-fixing activities, which were executed abroad, had a bearing on public safety, peace and good order within Singapore.

Mr Tan was accordingly released, but he was re-arrested and detained a week or so later. The ministry said in a statement that while it accepted the court's decision, it considered that there were sufficient grounds for Mr Tan's detention, and so a fresh order was issued, this time setting out in detail the grounds relied on to establish the existence of the relevant threat in Singapore.

A few weeks later, the ministry released three other detainees. It said on that occasion that in the light of the Court of Appeal's decision, the minister had reviewed the detention orders of these persons and concluded that the orders ought to be revoked.

The point I wish to draw from this example is that the commitment of the executive to comply with and abide by the law as pronounced by the judiciary is critical to the rule of law and good governance.

The release of the three other detainees apparently did not rest on any application they had made but on the minister's review of the position in the light of our decision. In the final analysis, the robustness of a nation's rule of law framework depends greatly on how the other branches view the judiciary and whether it in turn is able and willing to act honestly, competently and independently.

Tom Bingham observed that the rule of law is "one of the greatest unifying factors, perhaps the greatest" of mankind.

Despite the vast differences in our legal systems and the variations in the length, colour and character of our history and culture, it is that same commitment to the rule of law that brings us here today; and this should be a heartening thought for all of us who have made the rule of law nothing less than our life's work.

A version of this article appeared in the print edition of The Straits Times on May 28, 2016, with the headline 'Rule of law: The path to exceptionalism'. Print Edition | Subscribe