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2005
Openness and inclusiveness, bah!
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On 12 August 2005, Chua Mui Hoong of the Straits Times wrote a commentary
to mark PM Lee Hsien' Loong's first year in office. The main focus of her
essay 'Continuity, yes, change aplenty too', was to examine where things
stood especially with the "open and inclusive Singapore"
message.
I offered my two bits' worth when she was drafting her commentary, but due to poor communication on my part, one point that I wanted to make wasn't expressed as well as it should have been. I wanted to draw attention to how the incessant talk about openness and inclusiveness was, either deliberately or otherwise, a diversionary tactic, helping to avoid having to talk about freedom and equality. They're really the same things, aren't they, for what is openness but a climate of freedom, and what is inclusiveness, but a common recognition that ultimately, everyone deserves equal treatment? However, phrasing it as "openness and inclusiveness" tended to make it sound like a generosity of spirit and a gracious gift by those in power (both those in political power, and those privileged with the weight of the social majority). Phrasing it as "freedom and equality" focusses the mind on human rights and constitutional guarantees. One genuflects to power for bestowing kindness, the other demands that power subordinate itself to higher standard. * * * * * The subordination of power to justice and constitutional guarantees was starkly illustrated on 24 August 2005, when a High Court judge in Hong Kong ruled that the territory's laws against homosexual sex were unconstitutional because they violated a guarantee of equality and personal privacy. See the article Hong Kong leads the way. In ruling that a discriminatory law cannot be allowed to stand, the Hong Kong court hammered home the equality message (or if you wish, the inclusiveness message) in a way no amount of sweet talk by the Singapore government can ever do. This type of case is what is known as a judicial review, wherein a person who feels onerously imposed upon by a law or an act of government appeals to the judiciary to review the fairness of the law or the government's action.
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The Hong Kong government tried to argue that the plaintiff, William Leung, had not been convicted of any offence under those laws and thus, the Court had no jurisdiction to hear the case. Furthermore, the government argued that the legislature was in a better position than the courts to judge the prevailing "social norms and values" and how best to protect young people. The courts should defer to it and let the law stand. The Court rejected this argument, recognising firstly, that the very presence of the law infringed the avenues open to Leung for his self-autonomy and he did not need to commit a crime to have a basis for complaint against the law. Justice Michael Hartman said there are "rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation", and I might add, independently of any queasiness or disfavour by other people around, especially when it's none of their business. He also said that in matters of "high constitutional importance" the courts were obliged to give "considerably less deference to the legislature than would otherwise be the case". The two constitutional rights upon which Leung relied -- equality before the law and his right to privacy -- were recognised in the Hong Kong jurisdiction as fundamental human rights. Hong Kong's Basic Law also required Hong Kong to respect the International Convention on Civil and Political Rights, which in 1994 had been interpreted by the UN Committee on Human Rights to encompass sexual orientation.[1] * * * * * Now look at Singapore. Firstly, our constitution is as porous as toilet paper. Unlike Hong Kong's clause which says, very simply, very clearly, in exactly 10 words, that
Singapore's Constitution, Section 12, is full of holes: Equal protection Secondly, there has never been a case of judicial review where a law has been overturned, in our 40 years' of independence. I am informed of this by Assoc Prof (law) Michael Hor of the National University of Singapore. It has never happened here, he said. More than that, larger and larger swathes of government action are exempted from judicial review. For example in the recent presidential non-election, many observers noted that whatever decision made by the Presidential Elections Committee to disqualify anyone from standing for election, such decisions cannot be queried or reviewed by our judiciary. What if they made the decision in bad faith? What if they had been under undue pressure to decide in a certain way? No appeal, no review is permissible. Thirdly, our government sees laws as part of its toolkit for controlling people. This is known as the legalist tradition: the law serves the government of the day in achieving its objectives. This is to be distinguished from the general concept of law and the judiciary serving the people, ensuring that their rights are protected from each other and from unwarranted intrusion by the government. In Singapore, it appears more accurate to say our system is one of Rule by Law, rather than Rule of Law. [2] * * * * *
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The same week that the court in Hong Kong struck a blow for the rule of law, more evidence came of Singapore's rule by law. Martyn See was once again summoned down to a police station to answer more questions about the video documentary he made about opposition politician Chee Soon Juan. I had earlier written an article on this (yes, the harassment is still going on!) in Filmmaker called up by police, from where you can retrieve the background to this saga. See was asked at the end of his latest interrogation to surrender his camera and all videotapes, including all his raw footage. The long and short of it is that no one can make any film that touches on politics in Singapore except with the gracious, magnanimous permission of the government. The law does not undergird Martyn See's freedom to make the documentary he wants. Rather, it is a tool for the authorities to punish him for exercising his freedom. Yet we're an "open" society, remember? It's no use relying on our constitution for freedom of speech either. Clause 14 is also full of holes. Freedom of speech, assembly and association Look at subclause (2)(a) above. It effectively says Parliament can override your fundamental liberty on the grounds of any one of these: national security, diplomacy, public order, morality, protecting the immunity of Parliament and the Court, defamation, telling people they shouldn't obey any law. What a smorgasbord to choose from! As for the last -- telling people they shouldn't obey the law (i.e. incitement to an offence) -- let's say Parliament passes a law whereby everybody has to contribute 1% of their salaries every month to a charity trust to benefit ministers' wives and families, and you publish something on the internet saying this is a bad law, it violates the very spirit of a republican democracy, and we should refuse to contribute...... you're committing a crime for saying that, and you cannot rely on our constitution to protect your freedom of expression! Our constitution is hardly worth the paper it is printed on. In contrast, the Basic Law of Hong Kong just says, again clearly and simply,
38 words. No ifs, no buts. * * * * * "Openness and inclusiveness" is
an opiate for the masses, sold by our government. It dulls our minds; it
puffs up clouds that obscure the more cogent point: freedom and equality.
The rule of law is what Hong Kong has. The rule by law is what we have. © Yawning Bread
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Footnotes
Addenda None
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