The rule of law in Singapore has been the topic of considerable disagreement and debate, in particular, as a result of differing conceptions of the doctrine.
These conceptions of the rule of law can generally be divided into two categories: the "thin", or formal, conception; and the "thick", or substantive, conception. The thin conception, often associated with the legal scholars Albert Venn Dicey and Joseph Raz, advocates the view that the rule of law is fulfilled by adhering to formal procedures and requirements, such as the stipulations that all laws be prospective, clear, stable, constitutionally enacted, and that the parties to legal disputes are treated equally and without bias on the part of judges. While advocates of the thin conception do not dismiss the importance of the content of the law, they take the view that this is a matter of substantive justice and should not be regarded as part of the concept of the rule of law. On the other hand, the thick conception of the rule of law entails the notion that in addition to the requirements of the thin rule, it is necessary for the law to conform to certain substantive standards of justice and human rights.
A thin conception of the rule of law has generally been adopted by the Singapore Government and Members of Parliament from the ruling People's Action Party. However, a thicker conception was evinced by the Minister for Law in a speech made during the 2009 seasonal meeting of the New York State Bar Association's International Section in Singapore. On the other hand, a thick conception of the rule of law that encompasses human rights has been adopted by a number of Government critics, including opposition politicians, and foreign and international organizations such as Human Rights Watch, Lawyers' Rights Watch Canada, and the World Justice Project.
Some of the key principles associated with the thin conception of the rule of law include judicial independence, natural justice, the availability of judicial review, and the accessibility of justice. Judicial independence in Singapore is safeguarded by various constitutional provisions and legal rules, though some commentators have highlighted certain events as suggesting a lack of judicial independence. One incident in the 1980s involving the transfer of the Senior District Judge to the Attorney-General's Chambers following a decision he made which was favourable to an opposition politician. In Singapore, natural justice is generally regarded as a procedural rather than a substantive concept. The process of judicial review involves the review of executive actions for compliance with administrative law rules, and of executive and legislative acts for unconstitutionality in light of the doctrine of constitutional supremacy.
Advocates for the thick conception of the rule of law regard the ("ISA") as a breach of the rule of law. The Act, which provides for detention without trial for people regarded by the executive as a risk to national security, is shielded from unconstitutionality by Article 149 of the Constitution. Although the Court of Appeal held in the 1988 case Chng Suan Tze v. Minister for Home Affairs that the courts could review the legality of detentions under the Act, the effect of the case was reversed through amendments to the Constitution and the ISA in the following year. The ISA amendments were determined to be effective by the High Court and Court of Appeal in Teo Soh Lung v. Minister for Home Affairs. The Singapore Government justifies the statute as a crucial measure of last resort for preserving security.
Conceptual framework Attempts to define the rule of law can roughly be divided into two categories: the "thin", or formal, conception and the "thick", or substantive, conception of the rule of law..
Thin conception of the rule of law
The "thin" conception rule of law advocates the view that the rule of law is fulfilled by adhering to formal procedures and requirements, and that the normative content of law concerns substantive legal issue separate from the rule of law..
According to Albert Venn Dicey, the rule of law in the United Kingdom has three dominant characteristics.; see also . First, the absolute supremacy of regular law – a person is to be judged by a fixed set of rules and punished for breaching only the law, and is not to be subject to "the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint".Dicey (8th ed.), pp. 183–184. Second, the equality of law — "the universal subjection of all classes to one law administered by the ordinary Courts".See also Dicey (8th ed.), p. 189. Third, the fact that, in the United Kingdom, the constitution is the result of the common law, being not the source but the consequence of citizens' rights.See also Dicey (8th ed.), p. 191.
A 1977 article by Joseph Raz argued that the rule of law means that people should obey the law and be ruled by it.. Construed more narrowly, the rule of law would also mean that the government should be ruled by and subjected to the law. Following from Raz's general conception of the rule of law, he argued for the existence of two groups of principles of the rule of law: First, that the law is capable of guiding the behaviour of its subjects; second, that there exists an effective legal machinery that secures actual compliance with the rule of law.Raz, p. 202. The first group comprises principles such as the accessibility, clarity, and prospective nature of the law;Raz, pp. 198–199. the stability of the law;Raz, p. 199. and the compliance of lawmaking with "open, stable, clear and general rules" that create a stable framework,Raz, pp. 199–200. with such rules empowering authorities to make orders and providing guidelines for the exercise of such powers. The second group includes principles including judicial independence,Raz, pp. 200–201. natural justice,Raz, p. 201. judicial review, and limited administrative discretion.Raz, pp. 201–202.
In Raz's view, one of the virtues of the rule of law is the restraint it imposes on authorities. It aims to exclude arbitrary power as it is said that most of the exercises of arbitrary power violate the rule of law. Arbitrary power is excluded when courts hold themselves accountable only to the law and observe "fairly strict procedures". Another virtue is the protection it accords to individual freedom, namely, "the sense of freedom in which it is identified with an effective ability to choose between as many options as possible". Most importantly, to adhere to the rule of law is to respect human dignity by "treating humans as persons capable of planning and plotting their future".Raz, pp. 202–204.
Raz also identified some of the potential pitfalls of the rule of law. He opined that as the rule of law is designed "to minimise the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be", the strict pursuit of the rule of law may prevent one from achieving certain social goals which may be preferable to the rule of law: "Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty".Raz, p. 211.
Thick conception of the rule of law
The "thick" rule of law entails the notion that in addition to the requirements of the thin rule, it is necessary for the law to conform with certain substantive standards of justice and human rights. Ronald Dworkin, one of the leading scholars advocating the thick conception of the rule of law, defines what he terms the "rights conception" of the rule of law as follows:Dworkin, pp. 11–12.
Paul Craig, in analysing Dworkin's view, drew three conclusions. First, Dworkin rejects the need to distinguish between "legal" rules and a more complete political philosophy, since the rule of law is basically the theory of law and adjudication that he believes is correct. Secondly, the rule of law is not simply the thin or formal rule of law; the latter forms part of Dworkin's theory of law and adjudication. Thirdly, since taking a substantive view of the rule of law requires choosing what the best theory of justice is, it is necessary to articulate particular conceptions of what liberty, equality and other freedoms require..
Conceptions of the rule of law taken in Singapore
Thin conception On 24 November 1999, Non-constituency Member of Parliament Joshua Benjamin Jeyaretnam moved the following motion in Parliament: "That this House recognises the importance of the Rule of Law and urges the government to ensure the complete and full compliance of the Rule of Law by all Ministers, officials and public servants.". During the ensuing debate, the Members of Parliament (MPs) from the ruling People's Action Party tended to adhere to a thinner, or more formal, conception of the rule of law. For instance, the Minister of State for Law Ho Peng Kee said:.
Chin Tet Yung, an MP for Sembawang Group Representation Constituency, commented that the rule of law required that:.
Chin moved an amendment to the motion introduced by Jeyaretnam so that it read: "That this House (1) values the importance of the Rule of Law; and (2) commends the Government for upholding the Rule of Law and ensuring that it is fully observed by all."Chin Tet Yung, "Rule of Law" (24 November 1999), cols. 605–606. The amendment motion was eventually voted on and agreed to by a majority of MPs in Parliament."Rule of Law" (24 November 1999), col. 634.
In a speech made on 27 October 2009 at a plenary session entitled Singapore and the Rule of Law at the seasonal meeting of the New York State Bar Association's International Section in Singapore, Minister for Law K. Shanmugam said that he would not try to define the rule of law comprehensively or analyse it from an academic viewpoint, but, practically speaking, the key aspects of a society based on the rule of law are the following:.
However, evincing a thicker conception of the rule of law, he added that most people accepted two additional elements "as being part of how a modern civilised society should be structured", though he felt it was "debatable whether they are part of a strict definition of Rule of Law". These elements were that "[t]he people must have the sovereign right to elect their Government", and that "laws must not offend that society's norms of fairness and justice".Shanmugam, para. 7.
Thick conception A number of critics of the Government of Singapore have adopted a thick, or substantive, conception of the rule of law that encompasses the protection of human rights. In a chapter entitled "Rights and the Rule of Law" in his 1994 book Dare to Change,. Singapore Democratic Party (SDP) member (and later Secretary-General) Chee Soon Juan criticized, among other things, the Government's use of the Internal Security Act ("ISA"). to detain persons without trial, and the lack of freedom of speech and assembly.Chee, pp. 139–149. In an open letter published on the SDP website dated 6 January 2009 which was addressed to the Chief Justice, Attorney-General and Law Minister, he said: "[T]he rule of law is not just a system where the government passes legislation and everyone unquestioningly obeys. The concept of the rule of law necessitates the limitation of state power and the respect of human rights. Our Constitution spells out what these limitations are. It also defines the rights of the citizen.". And in a speech delivered to the International Bar Association Conference in Dubai on 4 November 2011, he cited a free media and the rights to free expression and peaceful assembly as essential elements of the rule of law..