The Chief Justice has a number of powers under the Legal Profession Act. Two of these came up for adjudication by the Court of Appeal recently:
(1) The CJ’s power under section 82A to grant leave for an investigation into a complaint of misconduct against a Legal Service Officer or non-practising solicitor (“section 82A power”); and
(2) The CJ’s power under section 90 to appoint Disciplinary Tribunals for a formal investigation into misconduct of an advocate and solicitor (“section 90 power”).
What should be the proper avenue of recourse against a decision of the CJ in exercise of these powers? Following the latest decisions of the Court of Appeal in Manjit Singh v Attorney-General  SGCA 22 and Re Nalpon Zero Geraldo Mario  SGCA 28, the correct answer is probably that judicial review should be sought.
The Court of Appeal (Chao Hick Tin JA, Judith Prakash J and Andrew Ang J) decided in Manjit Singh that the section 90 power is amenable to judicial review, even if it may arguably be a “ministerial” or purely administrative power, and even if it may lead to delays in the disciplinary process.
In reasoning why judicial review should be available for what the AG argued was essentially a procedural step in disciplinary proceedings, the Court of Appeal twice cited the famous sentence from Chng Suan Tze v Minister for Home Affairs  2 SLR(R) 525, familiar to anyone who has attended a single public law lecture in Singapore: “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.”
Re Nalpon Zero Geraldo Mario
Judicial review was not in issue in Re Nalpon Zero Geraldo Mario, where a differently constituted Court of Appeal (Chao Hick Tin JA, Andrew Phang JA and V K Rajah JA) decided that the CJ’s section 82A power is not a judicial power of the High Court, but is exercised in the CJ’s position as President of the Legal Service Commission (“LSC”). That being the case, no appeal to the Court of Appeal is available from the exercise of the section 82A power.
Issue 1 - What is the nature of the section 90 power?
The nature of the section 90 power is not entirely clear. While Manijt Singh holds that it is not a judicial power, the clearest statement on its actual nature is that the power “is clearly administrative and no different from what the position would be if the power … were … vested in … the Attorney-General”.
Is the section 90 power also a power of the CJ as President of the LSC, given that section 82A(6) states that the CJ “may grant leave and appoint a Disciplinary Tribunal”? It is an arguable case that if the power to grant leave under section 82A is an LSC power, then the power to appoint a DT under section 82A is similarly an LSC power, then perhaps the general power to appoint DTs under section 90 is an LSC power.
It would be a stretch to extend this logic as far as section 90, however, given that section 82A deals specifically with Legal Service Officers, who, under Article 111(3) of the Constitution, are subject to the disciplinary control of the LSC.
Perhaps it is not necessary to define the precise nature of this power - we could content ourselves thinking of it as a simple administrative power in the CJ’s position qua CJ, just as it could have been vested in the AG, the PM, or even the Senior Undersecretary to the Minister for Magic.
Issue 2 - Is the section 82A power amenable to judicial review, reading Re Nalpon Zero Geraldo Mario with Manjit Singh?
What can definitely be distilled from both cases is that neither the section 82A power nor the section 90 power is exercised in the CJ’s judicial capacity. The section 82A power is, as the Court of Appeal has held, a power of the CJ as President of the LSC, and the section 90 power is an administrative power of some sort.
If the section 90 power is amenable to judicial review because it is a discretionary statutory power exercised in a non-judicial capacity, the same lofty Chng Suan Tze logic should be applied to the section 82A power. All statutory powers should by default be subject to supervision by the courts in the form of judicial review. This is arguably even more important in the case of section 82A, which is a power to grant leave. If judicial review were not available, a decision of the CJ not to grant leave would be the end of the matter, with no relief available for complainants whether by appeal to the Court of Appeal or by judicial review.
The counter-argument would be section 82A’s statutory intent to preserve the LSC’s control over its officers. As the Court of Appeal stated in Re Nalpon Zero Geraldo Mario, “for Legal Service Officers, it is the Legal Service Commission that has the “final say” as to the consequences of the officer’s actions.” It is submitted nonetheless that the courts must always be present to supervise the exercise of discretionary powers, at least where there is a breach of natural justice, irrationality, irregularity or unreasonableness.
One criticism of Re Nalpon Zero Geraldo Mario
In holding that the CJ exercises his section 82A power as President of the LSC, the Court of Appeal cited parliamentary intent to consolidate the disciplinary processes for all Legal Service Officers under the control of the LSC, instead of having some subject to LSC disciplinary control and some to Law Society disciplinary control. Applying this intent, the Court of Appeal decided that section 82A was meant to give the LSC the final say over whether any investigation would proceed against a Legal Service Officer.
While this is eminently sensible, it is unfortunate that the Court of Appeal did not analyse why complaints against non-practising solicitors are also subject to the additional section 82A leave stage before the CJ. It cannot be that LSC control applies equally to non-practising solicitors, who have no relationship with the LSC.
Had the Court of Appeal considered this point, perhaps the conclusion that the CJ acts under section 82A as President of the LSC would not have been as inevitable. It seems to your humble unqualified practice trainee that the section 82A power is probably, like the section 90 power, a simple administrative power vested by statute in the CJ.
This is not a very legal post, but I figured I should post something on this blog and keep it scuffling along for a while longer.
The Enhanced Marriage and Parenthood Package benefits given by the government to encourage Singaporeans to have more children will, in my opinion, be morally and practically deficient as long as they continue to discriminate on the following four factors: marital status, employment status, citizenship, and gender.
This is, I think, the most irrational form of discrimination and the one that most urgently needs to be changed. The Baby Bonus Scheme and 16 week maternity leave are available only to children of married parents and to married mothers respectively. Once a child is born, she is a child like any other and the mother is a mother that needs maternity leave as much as any other mother (some might argue a single mother needs it even more). It is ridiculous to deny benefits to an innocent child and to further disadvantage her when life is probably going to be tougher for her than for most, to grow up without a father.
The concept of maternity leave and pay must change. It should not be a direct one-to-one compensation of a woman’s working time spent bearing and raising a child. It is not some reservist make-up pay where you are paid the money you would have earned. Maternity pay should be paid to all mothers, whether working or not, perhaps with a supplemental component that takes into account how much the woman would have made in her working life. But the message cannot be that we value mothers who work more than we value mothers who don’t.
Paternity leave was extended under the enhanced package. It is a step forward, but fertility will remain low if half of all parents (fathers) hardly get to see their children’s first months in the world.
I’m not going to suggest that the benefits should be given to everyone, regardless of citizenship status. As the benefits are currently structured, they are generally available only to Singapore citizen children and their parents. That is fair. But if we are serious about increasing our “Singaporean core”, we should think about extending citizenship at birth to a wider class of children born in Singapore. Currently, a child is Singaporean at birth only if at least one parent is a Singapore citizen.
I think we can extend citizenship to children born to PRs in Singapore (perhaps at least one PR parent, or both PR parents). We risk creating an underclass of residents born and raised in Singapore but without the benefits and rights of citizenship if we do not facilitate citizenship for second generation immigrants - this has happened in many European countries and in Japan, but not in the USA, which grants citizenship to all children born on its territory. Granting citizenship at birth would be the simplest and strongest recognition of the inclusion of immigrants in Singapore society.
Why are solicitors so strictly forbidden from paying referral fees for business? This prohibition is found in both the Legal Profession Act and its subsidiary Professional Conduct Rules. In recent years, a number of lawyers have fallen foul of the rules against referral fees. Law Society of Singapore v Phyllis Neo is a landmark case in evidence law, particularly on entrapment, because the lawyers in that series of cases were entrapped by a private investigator posing as a real estate agent demanding referral fees. Law Society of Singapore v Michael Chong is remarkable for the fact that one of the solicitors involved was struck off the roll, a heavy punishment for what the Court of Three Judges considered a particularly egregious breach.
But when one thinks about it, what is the problem behind paying referral fees to obtain business? How does it affect any of the many things professional rules are meant to protect - the administration of justice, the dignity of the profession, public confidence, and the like?
In my opinion, allowing referral fees might actually improve the administration of justice. We have seen in a number of recent disciplinary cases lawyers who faced a conflict of interests between their clients and referrors, who were generally moneylenders or real estate agents or both. In Law Society of Singapore v Tay Phuay Khiang, the court went as far as to express some disquiet over this trend and the risks it presents by putting lawyers in positions of potential conflict.
Whereas if lawyers were allowed to pay referrors a fair fee for their referrals, the risk of conflict is greatly reduced. Having received fair consideration for their referral services, referrors can quietly step out of the picture, instead of pressuring or inducing solicitors to squeeze some benefit out of the usually hapless client, such as exorbitant interest rates and onerous security for housing loans.
Referral services are a valuable service that carry a price. Imagine if lawyers were forbidden from paying for printing and photocopying services. Because no one will print stuff for free, lawyers would be left with two choices. They can either not print anything and thus be severely hampered in the practice of law, or they can work out with printing service providers some under-the-table deal to pay for their services.
Some lawyers have tried the latter in the context of referral services, and been punished for it. The rest, as honourable and dignified lawyers, are left to do what Prof Michael Hor once vividly described in an Evidence class when discussing Phyllis Neo: “they sit, honourable and dignified, in the top floor of an office building, and hope someone who needs legal services walks by and knocks on their door.”
Marbury v. Madison, the celebrated U.S. Supreme Court case that forms the basis of judicial review in American law, was criticized in its time as a Federalist power grab and continues to be so labelled by some scholars – including Professor Weiler who at one class memorably called it “the greatest judicial power grab in history”. For good reason too – after all, Chief Justice John Marshall pulled out the famous words that would live on forever in constitutional law textbooks seemingly from thin air:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
Two recent local cases have led me to note the incursions of judicial power into executive power. I am definitely not suggesting by any stretch that our judiciary is sinisterly engaging in a similar sort of murky politics as the judges of a newly independent United States over 200 years ago. Yet it is undeniable that in Muhammad bin Kadar v. PP and Tan Eng Hong v. AG, the Court of Appeal flexed its judicial muscles in fairly significant ways.
Tan Eng Hong is a fascinating case, but I will focus very specifically on the preliminary issue to Issue 4 in the Court’s judgment. This point is particularly interesting as the Court of Appeal rejected jurisprudence from the motherland of all judicial review – the United States – in deciding that it had a wider jurisdiction than the Prosecution argued for.
This preliminary issue regards the requirement of a “real controversy” before a court can adjudicate. The question was whether the absence of a “real controversy” affected a court’s jurisdiction such that it had no jurisdiction to hear a case, or whether such an absence merely affects its discretion as one of the factors to consider when deciding whether it can hear it.
Article III of the U.S. Constitution and the U.S. Supreme Court case of Lujan v. Defenders of Wildlife support the proposition that a controversy must exist before American courts can exercise judicial power. (Factoid: Article III is the very article that invalidated the statute struck down as unconstitutional in Marbury v. Madison (the Judiciary Act). However, nothing in it mentions judicial review.)
The American requirement was rejected by the Court of Appeal. In fairly grandiose terms, the Court declared:
The courts should be slow to read in jurisdictional requirements which limit the sphere of their judicial power as such requirements restrict access to justice.
The court’s function is … to ensure, as the guardian of the Constitution, that the Constitution is upheld inviolate.
The conclusion is that courts in Singapore can hear cases with no real controversy, with the caveat that they should and will be slow to do so unless there is a real public and legal interest in the issue. I will not discuss the rest of this case, which is worth reading in full. It suffices to note here that the Court of Appeal has, with this preliminary point, declared a wide jurisdiction for itself – wider than what the AG argued for, and wider than American courts.
In Kadar, there was no expansion of jurisdiction but the imposition of a tricky and heavy duty on its sister branch of government, the executive, in an area very recently legislated by the third branch of government, Parliament. The Court of Appeal took the bold step of imposing on the Public Prosecutor (or “declaring”, as some would have it) a common law regime of disclosure of unused material, on top of the fresh statutory regime that had just come into force under the Criminal Procedure Code 2010. This new regime required the Prosecution to disclose to the defence unused material “that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused”, or had a real chance of leading to such material. This was on top of the new CPC 2010 regime which already provided for a reciprocal disclosure regime for unused accused statements. The Prosecution was sufficiently concerned to seek clarification from the Court itself by way of a Criminal Motion.
The Prosecution highlighted various possible practical difficulties if it was, as an organization, required to disclose all unused material which it knew might be relevant. After all, the AGC is a massive organization and if the “Prosecution” is taken to mean all the investigative and enforcement branches of Government or even the entire Government, then “undisclosed material in its possession” could mean a serious ocean of information.
The Court of Appeal clarified, among other things, that the Prosecution did not have to search for material. Nor would prosecutors be held to account if disclosures that they did not know would be relevant were not made, although they are expected to make disclosures where they know it would be relevant in a particular case, including a case they are not involved in.
It is clear that the Prosecution now has a duty more onerous than that required by statute. This higher standard was imposed entirely by the judiciary of its own accord. The Court based this extended duty on the common law as applied via section 5 of the old CPC and section 6 of CPC 2010, and justified it based on ethics, an advocate’s duty to the court and the Prosecution’s duty to the public. The power to enforce the new regime will arise from that ultimate deus ex machina, that kitchen sink of judicial powers – the inherent jurisdiction of the court. The judiciary has shown itself unafraid to go beyond what is provided by statute and to state new rules of law, even if it may greatly inconvenience the executive, where in the past cases like Rajeevan Edakalavan and Constitutional Reference No. 1 of 1995 appeared to prefer the route of less hassle for the executive.
I agree very firmly with the substantive decisions in both Tan Eng Hong and Kadar. They reflect a very wise Bench that is alert to the social and political reality of the community that looks to them for guidance. Nonetheless, it serves to remember the words of a disgruntled Thomas Jefferson, complaining about Marbury v. Madison in a letter:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem”, and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties ; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves.
This is Janahan’s reply to “The matter is now before the courts”. My reply is in the comments.
In a year where I feel social media is increasingly going to the dogs, its good to see a thoughtful and principled comment on things. Unfortunately, I am going to have to disagree with you on this one.
Re: The Matter is Now Before the Courts
My disagreement here probably arises from a different interpretation of what this statement actually means. I take to mean (at least if I ever use): “We don’t have facts. We don’t have evidence. The matter is before the courts. The matter is before the competent authority. There is no need to discuss it. Is there any good that will come from discussing it? No. Shall we avoid discussing it?” The statement’s force of argument derives from the desire to avoid needless chitter-chatter and not ideas of due process and the presumption of innocence.
Re: To What Extent Should there be Discussion Concerning Issues Before the Court
I believe the maturity of an individual or society is not measured by the extent to which they do what is permissible but rather by the extent to which they do what is beneficial. Thus, while nobody can curtail individuals and society from discussing, debating, judging and gossiping, these responses are an indication of the nature and maturity of society. Insofar as such activities are not beneficial, they reflect negatively on society and individuals. And I fail to see how beneficial they can be when facts and evidence are yet to be revealed (unless we restrict ourselves to objective hypotheticals which does not seem to be what people are keen on doing).
Re: Factual Guilt and Legal Guilt
At the risk of complicating the matter, I would like to introduce a third concept: Social Guilt. I introduce this concept because I believe this is what we are really concerned with.
Legal guilt is simply the guilt of a person as decided by the courts. If he is convicted he is legally guilty. If he is acquitted he is legally innocent.
Factual guilt is concerned with whether the individual committed the crime in actual fact. The problem with factual guilt is that it will forever be unknown to us.
Social guilt is simply the way society treats an individual post-trial. Do they treat him like he is guilty? Do they treat him like he is innocent? Or do they treat him like something in between.
The question then is how closely should social guilt conform with legal guilt. My instinctive response is in general social guilt should equate to legal guilt. The closer it equates, (again) the more mature an ordered society we become. Of course I have not thought about this that deeply and perhaps there are exceptions or complexities to account for.
Of course, again we can’t stop the gossip and talk in coffee shops and facebook. I am not saying we should but rather that the degree of concordance between legal and social guilt is a reflection of society. Also, social guilt has implication beyond mere kopitiam talk. Insurance is one example. Generally a prospective insured has to disclose whether he is, at the time of taking out the insurance, being charged with any crime. But should he be required to disclose charges from which he was acquitted from (prior to taking out the insurance)? The answer to this question may depend on how we view social guilt.
The recent spate of high-profile criminal cases has led me to notice and be irked by one minor recurring point: it seems annoyingly common and even acceptable to worm out of giving comment by saying something to the effect of “the matter is now before the courts.” Here is one example by Hitachi Data Systems on the sex-for-contracts scandal, and here is another by DPM Teo Chee Hean on the Commercial Affairs Department investigation into City Harvest Church leaders.
I am not saying that these people should have commented; they have every right to say or not say whatever they want, and in these cases they may well be right not to inflame tensions. What bugs me is how they hide behind the courts as if it would be wrong or inappropriate to talk about court matters, rather than outright saying that they prefer not to comment. There is no magic about court proceedings, no need to “let the law take its course” as if the course of the law would be encumbered by talking about it.
Behind the concerns about discussing cases is the worry that making comments will prejudice the case before the courts. But Singapore has professional judges as triers of fact, and no jury. There is no real concern that our judges will be influenced by stuff they read in the papers. In any case, even jurisdictions that use juries have rules and procedures to remove potentially biased jurors, and in Singapore parties can apply for judges to recuse themselves on the grounds of apparent or real bias.
The other greater concern is that comments will prejudice an accused individual in the eyes of the public before a fair court of law pronounces its verdict, which may well acquit the individual of all wrongdoing. Underpinning this is the age-old principle of “innocent until proven guilty”, and indeed I understand if, say, the DPM is careful with his words because after all, people do take what the DPM says quite seriously.
However, I find that such caution underestimates the intelligence of the general public, the increasing number of online idiots notwithstanding. A statement is all that it is, and not many people will jump readily to unfounded conclusions. “Z is being investigated for criminal breach of trust” - would an ordinary reader immediately think that Z has committed CBT? I think not. A person who is being investigated is innocent, but it is a bare fact that he is being investigated. “Being investigated”, “charged”, “accused” - these are bare facts or states of affairs, that do not suggest guilt, and there is no reason to worry that the public will incorrectly associate these terms with guilt.
The ultimate question is the importance of the law in our society. If we want the law to guide and inform our lives, then yes, we should wait for the law to run its course before forming personal judgments. Yet the law is but one tiny part of society, one minuscule low-stakes game in the arena of life. This recalls the debate in the aftermath of William Ding’s acquittal about factual and legal innocence. Law Minister K Shanmugam emphasized that legal innocence does not equal factual innocence. Judge of Appeal V K Rajah was of the view that it serves no purpose to separate legal and factual innocence after a court has come to a conclusion.
I prefer K Shanmugam’s view. In my opinion, a guilty or innocent verdict is little more than that. The guy pays a fine or goes to jail or goes free or whatever. Life goes on. People talk. People judge. And they should have the right to, regardless of what goes on in court.
The application to the High Court for a declaration that the Prime Minister does not have an unfettered discretion in deciding whether and when to call a by-election has been withdrawn. The applicant also asked the court to order the Prime Minister to call a by-election for Hougang within three months or a reasonable time.
While I would not, unlike Professor Thio Li-ann, compare the withdrawal to a cancellation of my favourite rock group’s (Bon Jovi, by the way) concert, there is indeed a sense of disappointment with the withdrawal of the application, which nonetheless is the right move by the applicant given that Nomination Day has been announced. Constitutional challenges are rare in Singapore. We had missed another interesting one on the constitutionality of section 377A of the Penal Code in PP v Tan Eng Hong when the 377A charges were amended.
I have earlier expressed my views on this by-election conundrum. To summarise, the text of the Constitution can (as with most things legal) be read either in favour of or against a generous discretion limited only by the requirement of General Elections. The substantive history of our constitution and our democratic model tend to suggest a preference for such a generous discretion within the Prime Minister’s power. However, there are problems that could arise under a less responsible Prime Minister and I am in favour of imposing, through legislation or constitutional amendment, a time limit of six months or thereabouts.
The term “palm tree justice” is a fairly well-known term in legal contexts, used to describe legal redress meted out at the whim of the adjudicator with little regard for the certainty one expects from a system of rules. The term generally carries a negative connotation. We see it from time to time in local judgments and it appears to be a favourite of Justices of Appeal Andrew Phang and VK Rajah. Out of the 7 local judgments in Supreme Court history which have used the term (at least according to Lawnet), 5 were written by either of these two judges. These include the well-known Court of Appeal cases of Lee Hsien Loong v Singapore Democratic Party, Lau Siew Kim v Yeo Guan Chye Terence and Lock Yeng Fun v Chua Hock Chye, as well as the famous Digilandmall.com High Court case that propelled VK Rajah into worldwide academic fame and local judicial stardom.
Have you ever wondered where the term originated? It is something I have often found quite puzzling. My attempts at researching this matter have generally pointed towards the practice of local Muslim judges in the dusty plains of medieval (or maybe even modern-day) Arabia in dispensing justice to villagers under the shelter of a central oasis of sorts.
Were I a cadi dispensing justice under a palm tree I might have been able to solve the problems which arise in this case. - Lawton LJ in McPhail v Persons Unknown
These are very wide words, but I am quite unable to see how it can appear to the court to be just and convenient to make such an order … Were it otherwise, every judge would need to be issued with a portable palm tree. - Donaldson LJ in Chief Constable of Kent v V
“If there were to be the amplitude of discretion for which [counsel] contends, I find it very difficult to see how one could formulate any sensible principles, for the exercise of discretion, or how one could draw a boundary to delimit the area which should enjoy the shade of the palm tree. - Bridge LJ in Allen v Sir Alfred McAlpine & Sons
I hope the use of the term sounds to you, as it does to me, quite illiberal and reeking of a snooty air of judicial superiority and historicism: “my legal system has rules and precedents and this other palm tree system doesn’t.” My brief study of Islamic law this semester has shown me that this is far from the case, and that qadis are as bound as any common law judge to a complex system of rules and principles. A few very powerful men (the Prophet and then the Rightly-Guided Caliphs) held a lot of judicial power in the early days of Islamic jurisprudence, but since the 9th century AD or so, Islamic jurisprudence has been an enormous field of study that takes years to master.
I therefore hope judges choose a different term when describing unfettered or poorly exercised judicial discretion, rather than denigrate a legal system that is in fact far older and perhaps even richer than the English common law. There is no need for colonialist attitudes in the 21st century, least of all in Singapore, a country which recognizes Islamic law to some extent, that counts as neighbours two majority-Muslim states where Islamic law plays a significant role, and a country which itself was not too long ago victim of attitudes represented by flippant phrases such as “palm tree justice”.
Of course I recognize that this is simply a convenient linguistic turn of phrase and judges probably do not realize its connotations. My research has also thrown up another possible source for “palm tree justice”, but this is merely some guesswork on my part. Deborah, the only female judge in the Bible, is said to have delivered her judgments from under a palm tree in Judges 4:4-5
And Deborah, a prophetess, wife of Lapidoth, she judged Israel at that time.
And she dwelt under the palm tree of Deborah between Ramah and Bethel in Mount Ephraim: and the children of Israel came up to her for judgment.
However, it is not clear how a connection can be made between this and the modern usage of the term, since it does not appear that Deborah was an unprincipled judge. Nonetheless, given the age of the Bible, this may be the true origin of the term, whose meaning somehow morphed along the way.
Article 1 of our Constitution reads:
“This Constitution may be cited as the Constitution of the Republic of Singapore.”
Article 2 continues:
“In this Constitution, unless it is otherwise provided or the context otherwise requires - “Cabinet” means the Cabinet constituted under this Constitution … “
Not very inspiring is it? I doubt fervent drumbeats of national pride thump in the depths of your soul when reading the opening lines of our Constitution. Most countries’ constitutions, however, start with some declaration or other that sets out the purpose of the constitution and thereby of the state: the state is truly constituted by its founders. These can be quite poetic and lyrical. Let’s look at a two examples.
Preamble to the Constitution of the United States of America:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to Ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Preface to the Constitution of Japan:
“We, the Japanese people … determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution … We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want … We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.”
Have a look at almost any other constitution. It is virtually universal to express the desire of the people and to tell the story of how the constitution came to be written: in Japan’s case above, out of the ruins of war. China’s constitution starts with a somewhat rambling but proud history of the ancient land. The Namibian and South African constitutions call for their nations to rise from the hell of apartheid and to never return.
Is such lyricism necessary in a legal document? Singaporeans are generally fairly practical folk who arguably care more for substance than form. Singapore’s independence was also not violent or hard-fought; in fact it was almost forced against its will. Yet I think there is value in remembering where we started and where we want to go, to have a higher ideal to always aspire to. This may also go some way towards resolving our national identity crisis.
But there is no need for us to struggle to artificially write something pseudo-inspirational. The great Lee Kuan Yew proclaimed our separation from the Federation of Malaysia in what I think are very beautiful words. Here is the Proclamation of Singapore in the Separation Agreement:
WHEREAS it is the inalienable right of a people to be free and independent;
AND WHEREAS Malaysia was established on the 16th day of September 1963, by a federation of the existing states of the Federation of Malaya and the States of Sabah, Sarawak and Singapore into one independent and sovereign nation;
AND WHEREAS by an Agreement made on the seventh day of August in the year one thousand nine hundred and sixty-five between the Government of Malaysia of the one part and the Government of Singapore of the other part it was agreed that Singapore should cease to be a state of Malaysia and should thereupon become an independent and sovereign state and nation separate from and independent of Malaysia;
AND WHEREAS it was also agreed by the parties to the said Agreement that, upon the separation of Singapore from Malaysia, the Government of Malaysia shall relinquish its sovereignty and jurisdiction in respect of Singapore so that the said sovereignty and jurisdiction shall on such relinquishment vest in the Government of Singapore;
AND WHEREAS by a Proclamation dated the ninth day of August in the year one thousand nine hundred and sixty-five The Prime Minister of Malaysia Tunku Abdul Rahman Putra Al-Haj Ibni Almarhum Sultan Abdul Hamid Halim Shah did proclaim and declare that Singapore shall on the ninth day of August in the year one thousand nine hundred and sixty-five cease to be a state of Malaysia and shall become an independent and sovereign state and nation separate from and independent of Malaysia and recognised as such by the Government of Malaysia.
Now I LEE KUAN YEW Prime Minister of Singapore, DO HEREBY PROCLAIM AND DECLARE on behalf of the people and the Government of Singapore that as from today the ninth day of August in the year one thousand nine hundred and sixty-five Singapore shall be forever a sovereign democratic and independent nation, founded upon the principles of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society.
A “more just and equal society”. I find in this oxymoronic turn of phrase the essence and the marvel of his words. One would think that something is either just and equal or it is not. 1+1 = 2: it cannot be any more equal or less equal. Yet here he recognises that justice and equality cannot be attained but can always be hoped for. No one really knows what justice is, and no two people in the world can truly be treated equally, different and diverse as we all are.
“Singapore shall be forever a sovereign democratic and independent nation”. This is also tremendously inspiring. Forever, not just today and tomorrow, or the next couple of hundred years, but forever. As Chan Chun Sing demonstrated in the run-up to last year’s General Elections, many Singaporeans and perhaps Chan himself believe that Singapore will eventually and inevitably go the way of the Demak Sultanate and the Lanfang Republic. Not LKY, not in these words. Forever we will be free, or at least we try.
In any case, I suggest that these words, rather than remain in a separate document, should be included in our Constitution as a preamble, as a reminder of our beginnings and as a clarion call to all who act in the name of the Constitution - the President, the Cabinet, MPs, judges - to always keep in mind the goal of “a more just and equal society.”
I am very, very happy that a weekly day off for foreign domestic workers will finally be legislated. It is somewhat sad that such a fundamental bit of regulation took as long as it did. I recall being shocked when I discovered that a day off was not mandatory, that NGOs such as HOME and TWC2 actually had to lobby for a change in the laws. I was fortunate to grow up with an FDW in the household until 2004. Even more fortunately, I had parents who understood fully the importance of respect and love for all people, whether richer or poorer, superior or subordinate, and insisted I grew up the same. All our FDWs enjoyed weekly days off and sometimes weekends off and were generally free to leave the household for personal errands at any time.
But it is important to look forward now that changes are being made. There are details that have to be ironed out. How long is a day off? I imagine some employers letting their FDWs out for a few hours each week.
In the long run, the entire “domestic worker” mindset and structure must change. The idea that an FDW is entirely the responsibility of the employer cannot continue. It is sustained by rules such as the security guarantee that is forfeited when an FDW is repatriated for pregnancy or for absconding. FDWs are adults who can and should take responsibility for their own actions. Ideally, FDWs would eventually be seen as independent workers who happen to be lodged with their employers. They would enjoy public holidays, annual leave and other formal benefits. If they commit some work permit violation or other, then they simply bear the consequences on their own account.