SINGAPORE 2007: a record year
INTERNATIONAL BAR NEW
“IMPASSIONED DEBATE AT THE RULE OF LAW SESSION”
by Jonathan Ames
December 2007
The reaction of the Singapore authorities when they first heard that the IBA was planning to hold its 60th anniversary conference at the city’s Suntec convention centre must have been mixed.
On the one hand, Singapore aggressively promotes itself as a top-drawer venue for doing international business- and 3,800 IBA lawyer-delegates certainly translate into international networking and deals. But, on the other hand, the IBA has a growing reputation for highlighting the rule of law and human rights issues-the latter being something of a sensitive subject in the tropical city-state.
Indeed, sensitivities over the international community’s view of Singapore’s human rights record threatened to scupper what has become a focal point of recent conferences-the rule of law symposium. Right until the eleventh hour before the opening day of the conference, the IBA and the Singapore Government appeared locked in a stand-off battle of wills.
Public Debate
Ironically, the incident was a microcosm of the debate around Singapore and its human rights position, particularly in relation to freedom of assembly. Local legislation requires an official permit for any public meeting of more than two people.
The IBA has made it a high-profile policy that its rule of law day is open to the public in whichever city the Annual Conference is being held and not just to the lawyer delegates. This view is based on the laudable position that the rule of law is designed to have a practical and real impact on communities at large and not simply be an academic talking point for the legal profession.
There was concern that government red tape would force the IBA to cancel the day’s sessions. In the end, though, a license dropped on the desks of the IBA senior officials and the rule of law session had a green light.
In retrospect, the Singapore Government might well regret not allowing the bureaucrats to hold back on granting permission, as the day provided a format of open and robust debate on local human rights as well as wider, global issues. The second most senior government official- S Jayakumar, the deputy prime minister and minister for law- saw his talk followed by challenging questions from Singapore opposition politicians.
Jayakumar had kicked off the debate with a theme that several would follow- that different cultures adapt the concept of the rule of law in different ways. ‘Asian societies, like Singapore, generally give greater importance to the larger interests of the community’, he commented. ‘In Western societies, the tilt is towards more emphasis on the rights of the individual. It is not possible to criticize one approach as wrong or applaud another as right.”
Opposition challenge
But criticism he faced, indeed, on exactly that point. One of the country’s opposition figures, Chee Soon Juan, took advantage of the open forum to challenge the minister and his government. He pointed out that he had been successfully sued for defamation by government officials three times, had been made bankrupt as a result of the damages (meaning that he could no longer stand for public office) and that he had been jailed no fewer than six times for speaking without a permit.
Chee passionately lambasted the Singapore Government for a range of alleged human rights abuses, including detention without trial and a reliance on corporal punishment such as canings. To loud cheers from the conference dekegates, he told symposium chair, former IBA President Francis Neate: “Your delegates want to hear what the reality of Simngapore is. I know that they have come to network and to do their deals. But this is where I bring up my children and I want them to know what right and wrong are. I will gladly go back to prison and remain a bankrupt all my life if that is what it takes’.
Timothy Cooper, the executive director of Washington DC-based group World Rights, backed Chee’s position. He said: “There is a very sophisticated system of oppression in Singapore. It is all done on a nod and a wink between government ministers and the judiciary, It is a well-oiled power machine.”
Cooper criticized the Singapore authorities for abusing the libel laws by not allowing experienced defence counsel from overseas to act for defendants without the approval of the Singapore Law Society, something that was rarely granted. Libel actions were also heard summarily with defendants routinely not allowed to make submission, Cooper complained.
Jayakumar attempted to deflect the attacks by saying that ministers had to protect their reputations so that they retained the respect of the population.’The government has an old-fashioned notion that for leaders to be credible their reputation with the public is vital. The people expect that every minister will protect his reputation-if not, then they have no business being in government.’
He also claimed that the ruling party had no monopoly on bringing defamation suits, saying that opposition parties had sued each other and occasionally the government.
Difficult definitions
Agreeing to a definition of the rule of law proved to be the biggest conundrum faced by speakers on the day. Simon Tay, a professor of international and public law at the National University of Singapore and a visiting professor at Harvard Law School in the United States, encapsulated the problem: ‘What should be the content of the rule of law? Should it be liberal and who should decide it? The developing world does not need to accept the content of the US or Western developed-world definition. We need to accept the concept and not the content.”
Tay pointed to the current wrangle in the Singapore Parliament to reform legislation that currently renders male homosexual sex acts illegal. ‘There is a debate over the rule of law in relation to this’, he said, ‘but we may well not end up with what many countries in the West might consider to be the liberal view’.
But a leading voice from the West countered suggestions that regional variances in the definition of the rule of law were acceptable. Peter Goldsmith, until earlier this year the UK attorney-general, asked: ‘What is the point of agreements such as the UN’s human rights declaration if later you are going to say that countries can pick and choose or adapt the principles?’
Goldsmith’s short period out of Whitehall-he has recently been headhunted for a private practice role at the London office of New York-based law firm Debevoise & Plimpton- has allowed him to reflect more liberally on the UK Government’s recent anti-terror measures. ‘Upholding the rule of law is not an obstacle to tackling terrorism’, he told delegates, ‘it is a crucial tool. The rule of law is what separates us from the terrorists and the hate mongers’.
He counseled governments against adopting draconian measures. In a remark aimed at the US authorities, who are still imprisoning terror suspects in Guantanamo Bay, he said,: ‘You can’t keep people locked up until “the end of the conflict” because you will never know when the “war on terror” will end. The first line of defence needs to be the criminal law. People have faith in the criminal courts.’
It was a point firmly supported by a leading figure from Asia. Ambiga Sreenevasan, the President of the Bar Council of Malaysia, said: ‘The terrorism challenge is used to bring in oppressive legislation. Why can’t terror be dealt with like any other crime?’
Rounding out the session was Justice Albie Sachs, the eminent judge of South Africa’s Constitutional Court. As an anti-apartheid campaigner he was jailed by the ruling white regime in the country and also lost his arm and sight in one eye after the security services attempted to assassinate him in a car bomb attack in 1988.
Justice Sachs recalled that years later he met the security agent who had planted the bomb and he encouraged him to testify to the truth and reconciliation commission set up by the then Nelson Mandela-led African National Congress Government. The agent purged himself before that commission with his experience, in many ways, said Justice Sachs, being a microcosm of the wider purging of many whites in the country following the end of apartheid.
Indeed, the judge told delegates, ‘the most important legal document I’ve ever drafted was the code of conduct for the ANC handling of prisoners while the ANC was in exile’. That code, he said, went a considerable way towards ensuring that the ANC was a proper government-in-waiting, illustrating that it accepted the rule of law.
Justice Sachs left the delegates with a somber note on the contrast between the lip-service many governments pay to the rule of law and the actual reality of implementing it. ‘It is easy to have the rule of law-as long as it is not tested,’ he said.