Speech by Minister for Home Affairs and Law K Shanmugam at the Judicial Executive Programme 2022
21 November 2022 Posted in [Speeches]
Honourable Chief Justice Sundaresh Menon,
Honourable Judges, and Judges of Appeal
Professor Lily Kong, President, Singapore Management University,
Professor Lee Pey Woan, Dean, Yong Pung How School of Law,
Ladies and Gentlemen,
- Good morning.
- Thank you for inviting me here today – to this Program. You are now in the middle of this programme. During this week, you will see, I am told, some practical aspects of our legal system – including primarily how justice is delivered, and our efforts to make Singapore a legal services hub. But to really understand our system, it is useful to understand our specific approach to a basic principle which underlies all civilised systems of law, which is the Rule of Law.
I will speak about how we approach it and how it has been fundamental in helping Singapore transform from the Third World to the First. Given the time available, this can only be a snapshot, a brief introduction. So I will touch briefly on
a. First, where we started;
b. Second, where we are now; and
c. Third, touch on law, and the Rule of Law, what role they have played, in that significant transformation.
- So why am I doing this? On these occasions, oftentimes, one says nice things, and in as short a time as possible. But I thought since we have people from around the world, who come from various judicial systems, it is useful to understand how we have used the law to really, in a practical way, transform our society. And hopefully those ideas can then have some resonance in the different countries.
- In too many societies, the Rule of Law has become an academic concept, quite divorced from the real situation in the society. For us, it is a living concept, constantly adapted and applied to underpin our entire society.
II. Singapore: An Improbable Nation
- How did we start? As many of you might know, we were a British colony from 1819. We inherited the British legal system. The British established a free-trade port in Singapore.
- Our economy was completely dependent on Malaya. Tin and rubber were extracted from Malaya and processed. They were exported to the rest of the world through Singapore. Singapore was an entrepot centre and a commercial centre for British Malaya. Singapore’s economic and existential rationale was very simple: it was the commercial centre for Malaya, and the port from which Malaya’s produce was exported. If you look at Malaya and Singapore, it was really one whole. Singapore has been described as the beating heart, and Malaya - the rest of the body.
- In 1963, we joined the Federation of Malaysia. An independent Malaysia, that was how we became independent. And Singapore was part of it. The union was, however, turbulent and short-lived. We were essentially kicked out from the Malaysian Federation in 1965. So those two years, in the blink of an eye, we found ourselves suddenly independent.
- We were on our own, thrust into the unknown, with many challenges. Singapore was then, and now I think, still, seen as an improbable nation. The fundamental question was: Can the heart (Singapore) now survive on its own, outside the body – which was Malaysia? Particularly, if Malaysia was really not keen on the heart continuing to beat.
Separation from Malaysia meant that we lost our hinterland, and a common market of 12 million consumers.
a. We were essentially a small island, with no natural resources. Everything had to be imported, including water, for our day-to-day requirements.
b. There was not much of a local economy.
c. Our people did not have deep roots, or a common identity.
d. Population comprised of migrants from China, India, Peninsula Malaya, and various other places. Most of them saw Singapore as a transient place to come, make money, and then go back home.
e. And you see some pictures of the kind of people we have (See slide 2 in Annex). Different ancestries, skin colours, languages, cultural backgrounds, religious beliefs, at that time in 580 sq km of land. Today we are about 760 sq km through land reclamation.
f. Our social indicators were poor: Literacy rates were low. Industrial strife was common. Unemployment was high. Housing was overcrowded, unhygienic and unsafe. Crime, disorder and subversion were common. You can see some of the types of housing and buildings we had in the 1950s and 60s (See slide 3 in Annex).
- The diversity of the racial and religious mix meant that racial tensions were easy to stoke up. And they were stoked up: racial riots, violent ones, happened in 1950, 1964 and 1969.
- If I can quote, our founding Prime Minister, Mr Lee Kuan Yew, he had once said – the idea of an independent Singapore was “a political, economic and geographical absurdity”.
- Can such a place survive – let alone build a new national identity and prosper? The answer is what you see today. The improbable was made to happen. 57 years after independence, Singapore is now a modern, thriving, cosmopolitan city – see some of the pictures – with a clear national identity (See slide 4 in Annex).
- Our gross GDP per capita has grown by almost 150 times – from around US$500 in 1965 to more than US$72,000 in 2021. The best way of illustrating this is in some graphics comparing population and land size (See slides 5-6 in Annex). The balloons on this slide compares GDP and population in ASEAN. you will see that Singapore has the second smallest population in ASEAN, but our GDP is quite out of proportion – it is the third largest. If you look at GDP versus land area, we can hardly be seen; we are smaller than every country in ASEAN. But again, our GDP is out of proportion. Our GDP has to depend on fundamentally our population and our resources including land. It shows you what a good understanding of Rule of Law, good governance and human ingenuity can create from nothing. And if you compare, say to the Philippines, 110 million population, 300,000 sq km, the economy is about the same size as ours. Or Malaysia, which has every resource you can think of, oil, palm oil, rubber, timber etc. 330,000 sq km of land, 30 million population. But again, the economy is slightly smaller than ours.
There is no reason why we got an economy so big, except that we managed to make things work by using the one resource we have, which is human capital. Our social and structural indicators are also quite different now.
a. First is human development. For me, this is the most important indicator. It really marks what value the state has to a child born in the country. According to World Bank, we are the best place in the world for a child to grow up (See slide 7 in Annex). A child born in Singapore will get the maximum compared to a child born anywhere else in the world. Some parents may not agree, but that is what the World Bank says.
b. Public housing is one of the highest home ownership rates in the world – at nearly 90%.
c. The education system produces students who generally outperform their peers around the world. This slide (See slide 8 in Annex) tells you what you spend, and what the outcomes are. The idea really is to keep the x-axis as low as possible to the left, and the y-axis as high as possible. You want to be in the upper left quadrant. If you look at education, we are stingy, and spend comparatively little. But if you look at the outcomes, we are pretty much above every other country.
d. Likewise, healthcare. Japan has a slightly better outcome than us. But in terms of spending, no one spends as little as we do. We get bang for the buck. Again, I think Singaporeans will understand. The Government is not known for spending a lot of money. But the real question is the results. And it is public money, it is not an individual’s money.
e. In terms of law and order: The crime rate here is very low. 95% of our people feel safe walking home alone at night, compared to the global average of 71%. We have ranked first in the Gallup’s Law and Order Index since 2015. We also perform well on various Rule of Law indices (See slide 9 in Annex).
III. Importance of the Rule of Law to Singapore and our Adaptations of the Rule of Law
This is a snapshot of development from 1965 to 2022. So how did we manage to get here, in less than 60 years? This development, this change, transformation was built on several fundamental, non-exhaustive, factors. I will mention four:
a. First and foremost, good and effective governance is essential. That will include competent planning, and competent execution. If you don’t have that, everything else is just words. And neither you nor I will be standing here.
b. The second has got to be a laser focus on providing basic, essential public goods including education, housing, healthcare and safety. There is a lot of focus in public and journalistic discourse on democracy – without understanding or emphasis being given to the importance of governance, getting things done, particularly in the societies which start from a low base, and the importance of governance and the growth of democracy itself.
c. The third point I will mention is that this entire process of transformation was underpinned by a deep understanding of the law, and adherence to the Rule of Law.
- I will focus on this last factor, because that is what most relevant for you all, how we approach it, and how we adapted it to suit our situation.
How do we approach this? Again, I will mention four factors – and I emphasise they are non-exhaustive.
a. One: A commitment to clear and stable laws, to govern dealings between man and man, between the Government and people and businesses.
b. Two: An emphasis on the public interest and maintaining public order, in dealings between the State and individuals.
c. Three: A zero-tolerance approach to corruption.
d. Four: A competent, honest, law enforcement system and Judiciary.
- In addition to these four factors, I will also mention a plus one factor, which is how we dealt with land, owned by the private sector, to illustrate how the law was used to develop Singapore. There are other factors, but time does not allow me to go into them.
i. Laws: Transparent, clear
- First, we try to make laws clear, transparent, and generally, conform to international economic expectations.
- Individuals and businesses must know what to expect, in their dealings inter se, and in their dealings with the Government. If the dispute comes before the Courts, they must know that the Courts would adjudicate based on the law. No one can come, knock on your door, illegally take away your money, or your assets, or your businesses. That transparency, stability, has led to a very high level of confidence among investors.
- One result is that the total stock of FDI in Singapore is more than $2 trillion as at 2020. More than 4,000 American companies, and more than 10,000 European companies, Japanese, Korean, Chinese, others, in large numbers, are here (See slide 10 in Annex). Singapore is a place to do business. It is a place where people get best paid compared to most places in the world.
- We have also made significant efforts in the last few years to position Singapore as a thought leader on International Commercial Law. We interact a lot in the Hague, and in many other international forums.
- In 2020, the United Nations (“UN”) Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation (“Singapore Convention”), came into force. This is the first UN Convention named after Singapore. It allows parties that reach a mediated settlement to enforce that settlement agreement, in states which are parties to the Convention. To-date, the Convention has 55 signatories, including two of the world’s largest economies, United States and China.
ii. Criminal Law
- Second, we also have to look at the role of criminal law: where State brings actions against the individual. Our focus is on keeping order and law – and that helps maintain social stability, and a low crime environment. Order has to be established, because without order, the legal system will be meaningless.
- Again, I will quote what Mr Lee Kuan Yew once said about this: “In a settled and established society, law appears to be a precursor of order. Good laws lead to good order… But the hard realities of keeping the peace between man and man, and between authority and the individual, can be more accurately described, if the phrase were inverted to “order and law”, for without order, the operation of law is impossible.” You need order before you can have law to be effective.
- Often, in jurisdictions based on the British legal system, there is this belief that every activity has to be dealt with by the criminal legal system in the traditional way. But the experience of many less developed countries has shown that that does not always work. Criminal masterminds, gangsters, drug barons, other menaces to society often get away scot-free, by distorting the criminal legal process through intimidation, influence.
- Mr Lee was realistic. He saw the problem, and realised that we needed to, and I emphasise this, make exceptions to the Rule of Law, to achieve some degree of order. To actually further the Rule of Law, you need to make some exceptions too. Making those exceptions is one of the adaptations to the Rule of Law that I spoke about. And it is important that you understand this, because it is only when you understand the exceptions, that you understand how the Rule of Law works.
- I will touch on a couple of examples.
1. The Criminal Law (Temporary Provisions) Act (“CLTPA”)
- The Criminal Law (Temporary Provisions) Act allows the Home Affairs Minister to order a person to be detained without a trial. It has been primarily used to detain gangsters, members of organised crime syndicates and some drug traffickers, in situations where it is difficult to get witnesses to come forward and have a proper trial.
- The British had it before we became independent, in a slightly different form and then Mr Lee changed it. Why is it called “temporary” even though it has outlasted many of the other laws that were passed? It is because once every four years or five years, the government is required to go back to Parliament and get approval for the law to continue, and justify to Parliament why the law should be there. Because it allows the Executive to order an arrest without any other oversight. So Parliament has to have that oversight.
2. The Internal Security Act (“ISA”)
- The second exception, a well-known exception, is the Internal Security Act. The ISA empowers the Home Affairs Minister to order detention without trial, on grounds of national security. It allows us to detain, for example, persons who have become radicalised, who want to become terrorists.
- As an example, earlier this year, we detained a Singaporean who was preparing to travel to overseas conflict zones, to undertake armed violence. He also attempted to recruit his family and friends.
- In other countries, you often have to wait for the person to take some active steps before he can be detained. Often it is too late. Frequently, after a terrorist incident in which people die, and people get hurt, you will read in the newspapers that the perpetrator was known to the security forces, he was under watch, but they could not do anything. For example, in New Zealand, there was a man who was known to the security forces. He later went to a supermarket and carried out a knife attack.
- I will often think to myself, in Singapore, he would have been picked up. Because for us, zero tolerance means zero tolerance. The moment you go on the internet you start searching, we are looking at you and if we think you have crossed the line, you have formed concrete views of going overseas, of doing something, we pick you up. As a result, Singaporeans go about their lives with more peace of mind.
Some might say and have said: these powers could be abused. I will put it this way. There are three choices.
a. One: taking serious risks that such a person could kill people. And I talked to you about the transformation of Singapore. Another fundamental for this transformation is the confidence people have in Singapore. Once that confidence goes, the entire economic structure will come down. Confidence is built on stability, confidence is built on the fact that there is peace, confidence is built on the fact that law and order is established. There are a series of incidents that will affect industry confidence and people’s confidence. So one choice is to take risks that a person could kill people.
b. Second, is the choice we have made. It is to remove the threat quickly, but be answerable in Parliament. If the person appeals, there is a separate process – An independent Advisory Board, chaired by a Supreme Court judge, appointed by the President. When the Advisory Board makes a recommendation, the Minister can override it. But the matter can then go to the President who is elected by the people, who has the final say in the matter.
c. Third, is to be hypocritical, which is to continue to say that you will adhere to the Rule of Law, but then go and do what you think needs to be done.
- Many will recall what happened in the US, after 9/11. US is a strong proponent of the due process and the Rule of Law. I have been a recipient of many such lectures from various American senators and lawyers and government officers. After 9/11, people were rendered to the United States from various parts of the world. They were rendered to the United States, picked up in the middle of the night, put in some cargo hold on a plane, and flown, not to the United States, but to Guantanamo Bay, in Cuba. And they were locked up in Guantanamo Bay, in Cuba. They were not given due process. Instead, they were detained without trial. But the US explained this by saying that these guys were not entitled to due process because only suspects in the United States are entitled to due process. And since Guantanamo Bay is outside the United States, in Cuba, therefore due process did not apply, and need not apply. I think there is more than a bit of legal sophistry there.
- They had to do it because Congress would not countenance any of these hard-core terrorists turning up in Washington or New York for trial; and anyway, the likelihood of conviction is low – you got intelligence that someone from Yemen ordered the killing of 50 people. How are you going to prove this, and also that the crime will take place in the United States? So it is likely that there will not have been convictions anyway, but nobody wants to let them go away scot-free. This is where the rubber hits the road. So, you detain them in Gitmo, and say US laws don’t apply. And then lots of bad things happened to these guys. Then Attorney General, Eric Holder, was here. Perhaps in this very room. I said this to him, in front of an audience: We prefer to be honest and call a spade a spade. We have to use these powers. We have to make this exception to the Rule of Law. The circumstances require it.
- In our system, detainees are regularly seen by doctors, community leaders and Justices of Peace to make sure they are okay. And religious leaders, who will talk to them, and attempt to rehabilitate them. Of the 92 persons detained in the immediate aftermath of 9/11, 78 have been rehabilitated and released. And while they are detained, their families are looked after. The Internal Security Department help their families look for jobs , and train the detainees with life skills so that when they come out, they can get jobs.
- Two years ago, we picked up a very young man, who was different from the usual type of persons we pick up. A protestant Christian, he was radicalised by far-right extremist ideologies and wanted kill people at two mosques. He did very poorly in school. In detention, he received a lot of extra coaching, Singapore-style. He actually managed to do better and pass his national examinations, and probably would go on to do a few more things. So, there is hope yet for many of them, because we put them on the right path and they move on.
- The exceptions that we have made to the Rule of Law in themselves illustrate our approach to the law, and the need to be open and honest on what is needed for us in Singapore, and for each of you to decide what to do in your own country.
3. The Maintenance of Religious Harmony Act (“MRHA”)
- There are other exceptions, for example, the Maintenance of Religious Harmony Act. Again, it gives the powers to the Minister for Home Affairs. All of these come to the Minister for Home Affairs. For instance, to issue a Restraining Order to any cleric who speaks or incites hate speech. Proselytization is fine, but if you attack someone’s religion or incite violence towards someone’s religion, you can be picked up by the Internal Security Department.
- We have had the law for over 30 years. We amended it in 2019, to make it more modern to suit the internet world. The effect of the Maintenance of Religious Harmony Act is that in the 30 odd years that it has been in force, we have not had to use it even once. People understand that we are in a multi-religious, multi-racial society.
4. Amendment to the Criminal Procedure Code (“CPC”)
- Let me say something briefly about some other adaptations in our procedural and evidentiary laws, which also illustrate our philosophy.
- We amended the Criminal Procedure Code almost 50 years ago, to allow the Court to draw an adverse inference against a suspect who keeps quiet when he is interviewed by the police, and then raises a factual defence at trial. This encourages suspects to be more open during investigations. Those from the English legal system would understand, that this reverses what is elsewhere.
5. Amendment to the Misuse of Drugs Act (“MDA”)
- We also reversed the burden of proof in our drugs legislation, the Misuse of Drugs Act. If you have more than a specified quantity of drugs, you will be presumed to have them for the purpose of trafficking in drugs. If you traffic in drugs, the penalties are quite severe.
- Our tough drug laws are one reason why Singapore’s drug situation is under control, and why we are one of the safest countries in the world.
iii. Zero-tolerance towards corruption
- Let me now move on to the third of my 4+1 points is on dealing with corruption. This is the cancer that eats away at many societies, and the concept of Rule of Law, including in developed societies. We take a zero-tolerance approach to corruption.
- The Prevention of Corruption Act in Singapore covers both the public and private sector. So even if you are in the private sector and you take some money to do the job you are doing, or you use your position to do a favour for someone else, you could be charged, and people are frequently charged.
- Public sector, of course goes without saying. The approach is that no one should be, or can be, excused from corrupt behaviour. Rectitude in public life: Absence of corruption has been a key reason for, again, our development. People from the highest levels, key Minister in Cabinet, to senior public servants have faced corruption probes.
- About 10 years ago, a former director of the Criminal Investigation Department (“CID”), who was, at that point, director of the Central Narcotics Bureau of Singapore (“CNB”), was himself charged. He was eventually acquitted. But the fact is the system worked.
- Everyone understands our approach. It is hardcoded. The Corrupt Practices Investigations Bureau (“CPIB”), unlike other law enforcement agencies, reports directly to the Prime Minister. So, no Minister can stop it. And if the Prime Minister tries to stop investigations, the Director of CPIB can go to the President, who is, as I said earlier, directly elected by the people. So even the Prime Minister cannot stop the investigations.
iv. Competent, Honest Law Enforcement + Judiciary
- The fourth point I will make, out of the 4 points, is really the need for an honest, effective, law enforcement system and Judiciary. Again, the Rule of Law will remain a theoretical concept, and laws would not be worth the piece of paper they are written on, if they are not properly enforced. You need a highly competent and incorruptible police force and Attorney General’s Chambers. Cases need to be properly investigated, it shouldn’t take too long, and cases need to come to court, and be disposed of, within a reasonable timeframe. And you need a highly competent, honest Judiciary to dispose of the cases properly. Self-explanatory: but it is not easy to build these institutions and make them work.
- If you look at the post-colonial world today, it is mainly a sad story of all these institutions being run down and corrupted over the last 50, 60 years. Our success as a country owes much to the effort that has been put in to build these Institutions. If that is not done, the Rule of Law will only be a nice sounding phrase. It has to be a living, breathing concept, underpinning what we do. Without the dogmatic adherence to the concept, but to understand our society, understand each one’s society, and then make the adaptions that are necessary.
v. Property rights
- Let me now come to my final point - property rights. It can be seen as part of the Rule of Law, though I like to see it as a slightly adjacent but related point.
- Given the small land area of Singapore, when we became independent, we put the public interest above individual property rights. So if we went back to the early 1960s, the majority of the land in Singapore was owned by the private sector, and a minority owned by the Government. There was very limited public housing. Public infrastructure was very weak.
If you start from a blank slate and you have a country as small as Singapore, about 600 sq km at that time, 760 sq km today, and if you wanted it to be a country with all the attributes of a country, what would you want the blank piece of paper to say?
a. You will need economic activity. For that you will need land for industrial development
b. You will need public infrastructure. Roads, airports and so on.
c. You will need land for defence establishments. We take our defence very seriously. About one fifth of Singapore’s land is set aside for defence establishments.
d. You will need housing. If you want to house your people properly, as opposed to the situation in the 1950s and 1960s, where a good proportion of housing was overcrowded, unhygienic and unsafe.
e. And you will need land for public amenities and services. Hospitals, schools, parks and so on.
- If you are a big country, it doesn’t matter, you can put these on any plot of land. But when you are as small as Singapore, then you have no choice, you need to plan it all such that it works, in the most integrated and efficient manner. Then you cannot let the fact that property is in private hands be an impediment, if you want to continue to develop. If you rely on the private sector, you rely on the slow process of contractual negotiations with the private sector, it is just not going to work, because private sector will always do what is essential for themselves, for maximisation of profits, not from the context of public sector, which would need a set of integrated services in the way I described.
- You will need a central authority which can do a masterplan for the whole island in a sensible way, which maximises the usage of land, which means acquire what is necessary, and develop. That is exactly what we did with the Land Acquisition Act. It gave the Government powers to acquire land. So you fast forward to the 2010s, the majority of land is owned by the State. Public housing is built on land owned by the State, generally on a 99-year lease. The minority of land is owned by the private sector.
- It works this way: Government acquires land, offers compensation. Landowners who are unhappy with the compensation can appeal to an Appeals Board, outside of the Judicial system, but currently headed by a State Courts Judge. Competent governance is important. But if I could identify one factor for the success of Singapore, I would say it is this.
- Again, the fact that Mr Lee was a lawyer, made him understand. When we drafted the Constitution, we took inspiration from the Indian Constitution. But the Indian Constitution protects property rights. So if the Indian government wants to acquire a piece of property, they may have to wait many years as landowners may challenge the Government’s land acquisition, and the matter may be appealed upwards to the Supreme Court of India. He decided no, we are not going to have it in the Constitution, so there will be no Constitutional protection of landed property rights, but not only that, he then went around the normal property rights protection by saying that the Government can acquire what it wants for a public purpose as defined in the Land Acquisition Act. And, regardless of your challenge, the acquisition will proceed. There will be no stop or stay of the acquisition. The only issue is the quantum of compensation. And that will be dealt with not in the courts, but before a tribunal, which will have a set of principals established for it.
- It worked because, unlike in many other countries, a land that was acquired did not go towards profiting a specific number of individuals in the government. It genuinely led to the development of Singapore and it was genuinely developed for public interest. The land actually went towards public usage, as opposed to into private pockets.
- This allowed the Government planners to look at Singapore as a whole, plan with rationality on what was needed, and what would be needed in the future, how the whole island can be looked at in an integrated conceptual way, and to put which services where. It is actually a classic example of socialism – to take the property from private hands and put it to public use.
- So you see today’s Singapore, about 20% of our economy is based on manufacturing. A lot of it is built on acquired land. About 77% of Singapore’s resident population live in public housing, of which about 90% own their homes. Hundreds of thousands of jobs that have been created, and the world class infrastructure, roads, public transport, all based on this compulsory acquisition.
- What I have sketched out today, is not something that you all, as judges or people in the judicial system, are normally concerned about.
- But I decided to say this anyway, because you don’t exist in a vacuum. And when you understand how the law works in society, what are the society’s fundamental principles, how does it operate, for example with property, then you realise there is a larger purpose, and you will not automatically apply English property law and principles, which were developed in a different context. You will apply it with the context of the purpose of the legislation.
- And that is the whole reason why I think lawyers in the public service, lawyers in the judiciary, and even the legal profession, will help everyone to understand, how the laws come together and interact, and work together, and makes for a deeper understanding and better interpretation of the laws. None of us exist as an island unto ourselves or in a vacuum. So it is good to understand how these laws and policies work, or don’t work.
- So let me conclude by saying, I have given you a brief snapshot of how we understand the concept of Rule of Law, rather than in terms of “thick” Rule of Law or “thin” Rule of Law. And how we consider it to be the foundation of our society; a key ingredient of our success.
- I wish all of you a fruitful, insightful second week of the Judicial Executive Programme.
- Thank you.
Last updated on 24 March 2023