“First they came for the communists,

and I didn’t speak out because I wasn’t a communist. Then they came for the socialists,

and I didn’t speak out because I wasn’t a socialist. Then they came for the trade unionists,

and I didn’t speak out because I wasn’t a trade unionist. Then they came for me,

and there was no one left to speak for me.”

– Martin Niemöller (A German pastor who talked about the inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group.)

I read with interest the judgement in Kenneth Jeyaretnam’s IMF loan case [1].  Whilst there are many aspects of the ruling that trouble me, for now I would like to speak on just one point. The ruling brought to mind a famous poem by Martin Niemöller [2] titled “First they came … “, which speaks eloquently of the need not just to speak up for our own rights, but also for the rights of all members of our society.  You have just read it above. If we do not do something to protect others in our society, we will have no reason to expect ourselves to be protected in the future.

The relevant section of the judgement in Kenneth’s case is paragraph 47, it is about “locus standi” and who, if anyone, has the right to challenge the government if they pass an unconstitutional law. It quotes a previous case and includes the follow argument:

Every citizen has constitutional rights, but not every citizen’s constitutional rights will be affected by an unconstitutional law in the same way. For example, if there is a law which provides that it is an offence for any person of a particular race to take public buses, this law would clearly violate Art 12. […]

However, the mere holding of a constitutional right is insufficient to found standing to challenge an unconstitutional law; there must also be a violation of the constitutional right. In this fictitious scenario, the only persons who will have standing to bring a constitutional challenge against the unconstitutional law for inconsistency with Art 12 will be citizens who belong to the race that has been singled out as only their Art 12 rights will have been violated. Persons of other races will not have suffered violations of their Art 12 rights and will thus have no standing to bring a constitutional challenge in this scenario.

I find this argument highly insulting and hugely dangerous. The reasoning is that I, as a member of one race, cannot speak up to protect the rights of my friends of another race. But are we not all Singaporeans? Do we not have national service to protect all Singaporeans, regardless of race? If a Chinese lady, married to an Indian gentlemen for example, cannot speak up to protect the rights of her husband, then what have we become? But the argument in this case is not really about race, it applies equally to any way to identify and categorise those people who may, versus those who may not suffer some loss in the face of an unconstitutional law. To paraphrase the poem that I begun with:

First they came for the newspaper men,

and I didn’t speak out because the high court of Singapore ruled that only newspaper men can speak out for other newspaper men, and I as an accountant do not have locus standi to speak out on this topic.

But my husband is a newspaper man, imprisoned without trial for seventeen years, and I fear I will never speak to him again.

I am not a lawyer, but from reading what has been published, I understand that this argument regarding locus standi is what Kenneth (at least in part) seeks to overturn in appeal.  I will donate to his cause not only because I think this is an extremely important legal principle, but also because I feel strongly in protecting the rights of all people in our society, not just any one particular group.

.

Andy Wong”