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Shanmugam Either Doesn’t Know or Deliberately Misrepresents the Meaning of Rule of Law

By ordering nine individuals to apologise and publish a correction after they posted a Mothership article that had misleadingly edited Shanmugam’s Parliamentary speech during the Foreign Interference (Countermeasures) Act debate, the Ministry of Home Affairs (MHA) followed a familiar pattern.

To briefly recount the details, Mothership had published a report suggesting that Shanumugam had said Rule of Law does not operate in Singapore whereas according to MHA what he “had said in Parliament was that Rule of Law is fundamental and basic for Singapore and its success, and the Government has always been committed to the Rule of Law and continues to be committed to it”

He also said that there are countries around the world where the Rule of Law is a concept for lawyers, but does not operate in the real world, and their societies live in utter misery.

I called it a familar pattern because by using the misquotatation from Mothership (which is a pro PAP publication) as a hook, MHA was attempting to bamboozle Singaporeans into believing that Rule of Law actually exists in Singapore. I was a victim of this when during the 2011 GE I said that LHL had said, in his condolence letter on my father’s death in 2008 which the state media carried everywhere, that JBJ “had sought by all means to demolish the PAP and our system of government” and that therefore he had to be destroyed. The latter is of course not in his letter. LHL demanded an apology and being new to politics and suffering a little of the fear that grips Singaporeans when they are singled out by the Government, I apologised and acknowledged my mistake. What I should have said of course was that even though LHL might not have said the words, his father actually uttered them many times and the destruction of JBJ and what he stood for was always the unwavering aim of LHL and the PAP, from the fake conviction that the Govenment has refused to vacate despite the clear instructions of the highest court in the land, the UK Privy Council, to the libel damages, awarded by judges who were not only beholden to LKY but in some cases related to him as well, that drove my father into bankruptcy.

Shanmugam may pretend that Rule of Law operates in SIngapore but his idea of Rule of Law is obviously very different from what someone in the UK or the US would understand by it. Shanmugam has the wrong preposition. Instead of using ”of” he should substitute the preposition ”by”. Rule by Law, rather than Rule of Law, is how you would describe the legal systems of most totalitarian states including China.

To borrow from a speech given by the former UK Attorney General Dominic Grieve, entitled ”The Rule of Law and the Prosecutor” Lord Bingham, the late UK Chief Justice, in his seminal 2010 book, ”The Rule of Law”, identified the core principle of the rule of law as being:

“that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”

He went on to outline 8 principles which he saw as being the key ingredients necessary to support that aim. In brief these were:

  1. The law must be accessible, intelligible, clear and predictable.
  2. Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.
  3. Laws should apply equally to all.
  4. Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.
  5. The law must afford adequate protection of fundamental Human Rights.
  6. The state must provide a way of resolving disputes which the parties cannot themselves resolve.
  7. The adjudicative procedures provided by the state should be fair.
  8. The rule of law requires compliance by the state with its obligations in international as well as national laws.

How can we have Rule of Law when the violation of the core principle is endorsed by the highest court in Singapore? In its judgement on my appeal on the question of whether Article 144 of the Constitution required Parliamentary and Presidential approval of the Government’s US$4 billion loan commitment, the Court of Appeal made it plain that the Government was above the law. In fact the judges said that they saw their role as “greenlighting the Executive” and took away the rights of SIngaporeans to sue the Government unless they were exclusively affected by Government

Going down Bingham’s list rules 1,2, and 3 are violated by the fact a guiding principle of the Government’s legislation is to give excessive discretion to Ministers, which in practice means excessive discretion to LHL. Laws are vaguely drawn and applied inconsistently. This can be seen in the Protection from Online Falsehood and Manipulation Act (POFMA) where i have repeatedly drawn attention to cases where fake facts have been cited by PAP Ministers and MPs while ordinary citizens asking reasonable questions have been intimidated by the issue of POFMA directives. POFMA has been used to protect those in positions of power and extreme wealth (political power being a necessary and sufficient condition for extreme wealth in Singapore) from being accountable to Singaporeans. Heng Swee Keat issued POFMAs to those who quoted a Taiwanese news channel saying that Ho Ching earned $100 million a year yet the Government refused to provide any facts. The new Foreign Interference (Countermeasures) Act (FICA) also gives enormous unaccountable power to the Government that will not be applied equally since the PAP will continue to use foreigners to support their fake claims to economic success.

The political prosecution of JBJ (and others), which resulted in him losing his seat, being jailed and debarred from standing for Parliament for a fake offence of which he was not guilty clearly violates the second, third and fourth principles, The US immigration judge who granted Amos Yee asylum, wrote a scathing judgement, saying

“The evidence presented at the hearing demonstrates that Singapore’s prosecution of Yee was a pretext to silence his political opinions critical of the Singapore government. His prosecution, detention and general maltreatment at the hands of the Singapore authorities demonstrates persecution on account of Yee’s political opinions.”

The corruption of the judiciary (the members of whom have until now come from the Legal Service and can be transferred back there if their judgements displease the PM like Michael Khoo in 1986) and the abuse of the AG’s role (the current AG was formerly LHL’s personal lawyer) to harass political opponents demonstrates that Rule of Law, as defined by Bingham and nearly a thousand years of UK and US jurisprudence and legal philosophy, does not exist in SIngapore.

Shanmugam might do well to read the words of Dominic Grieve, the former UK AG:

“The primary prosecution services in England and Wales – the Crown Prosecution Service and Serious Fraud Office – are, however, wholly free of political control and direction. They bring prosecutions only when a two stage test has been met:

Is there is sufficient evidence to provide a realistic prospect of conviction?

And if there is; is a prosecution required in the public interest?

It matters not if a government minister, politician or even the Prime Minister demands a prosecution be started – if those two stages have not been met, then no prosecution will follow.

Political aims, petty vindictiveness or vendettas have no role to play. This process helps uphold the rule of law.”

For Shanmugam, principle no 5, as defined by Bingham, ”The Law must afford adequate protection of fundamental Human Rights”, is a derisory concept because he believes that human rights are not important. Of course it holds no value for him because the lack of rights gives him and his master, LHL, a free hand in dealing with their opponents. Shanmugam is fond of using the standard totalitarian arguments against human freedom, saying that the American constitutional right to freedom of expression means a right to hate speech and that depriving Singaporeans of human rights and due process means that women can walk the streets at night without fear of being assaulted.

Similarly he would no doubt cite fake statistics like the meaningless GDP per capita figure to argue that Singaporeans have willingly traded human rights for economic gains were he not undercut conclusively by recent figures from the Government LKY School of Public Policy showing that 30% of Singapore households, despite working much longer hours than any other developed country, do not earn enough for even a basic standard of living. The quote above from his speech in Parliament about ”the Rule of Law is a concept for lawyers but does not operate in the real world, and their societies live in utter misery” shows that he is either cynically trying to deceive Singaporeans with fake facts or he really believes the snake oil he is peddling. Either way Shanmugam clearly does not believe in what anyone living in a democracy would understand by Rule of Law. He is therefore utterly unfit to be Law and Home Affairs Minister. To brush up what seem to be huge gaps in his knowledge of Singapore’s retreat from the Rule of Law under LHL and his dad, Shanmugam could more profitably spend his time reading his ex-wife’s book, ”Authoritarian Rule of Law” than in whatever else he does in his spare time.

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