SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2013 —“THE RULE OF LAW AS A MANY COLOURED DREAM COAT”

Citation(2014) 26 SAcLJ 1
Date01 December 2014
Published date01 December 2014
I. Introduction

1 Chief Justice Menon, former Chief Justice Chan, Attorney- General Chong, the Australian High Commissioner, Philip Green, your Honours, ladies and gentlemen: Thank you for inviting me to deliver the 20th Annual Singapore Academy of Law Lecture. One of the functions of the Academy is to promote the standing of the profession in the region and elsewhere. That outward-looking orientation is reflected in the engagements the Academy has undertaken with the judiciaries and legal professions of other countries and, on this occasion, in the invitation which it has so graciously extended to me. The purposes of the Academy are similar to those of the Australian Academy of Law, which was established in 2007 and which seeks to bring together academics, practitioners and members of the judiciary and to establish links with similar organisations outside Australia. As Patron of the Australian Academy, it is my hope that the common purposes of our two institutions may provide the occasion for some future collaboration. It is also the hope of the President of the Australian Academy, the Honourable Kevin Lindgren, to whom I spoke last week on that topic.

2 The title of this lecture is “The Rule of Law as a Many Coloured Dream Coat”. It draws upon a rather free association with the Webber and Rice musical, “The Amazing Technicolour Dreamcoat”, an adaptation of the story of Joseph and his brothers from the book of Genesis. A key song in the musical is “Any Dream Will Do”. It is a useful metaphor to highlight the many-hued discourses that exist about the rule of law, a concept which means different things to different people and which has been called “a celebrated historic ideal, the precise meaning of which may be less clear today than ever before”.1

3 I propose to speak of the rule of law primarily from an Australian perspective. In so doing, I acknowledge that, although the idea has elements common to all societies in which it is asserted, each society has its own history, culture, legal traditions and demographic mixture. There will inevitably be different understandings of the rule of

law and, even when understandings coincide in theory, different applications of those understandings in practice. It is useful to begin with a reminder of Dicey's concept of the rule of law and how that concept has evolved in the UK. I refer to the UK because we are the common inheritors of its legal tradition and it presents the case of a society in which the rule of law is based upon common law constitutionalism.
II. The rule of law — Common law constitutionalism

4 Parliamentary sovereignty and the rule of law were described by Professor AV Dicey as two characteristic features of the political institutions of England since the Norman Conquest. Parliament inherited the royal supremacy. The Diceyan vision of the rule of law involved “at least three distinct though kindred conceptions”. They were in summary:

(a) “[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”2

(b) “Every man whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”3

(c) “[T]he general principles of the constitution (as for example the right to personal liberty, or the right of public meeting), are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.”4

Dicey's formulation has been much criticised but judicial elaboration of the rule of law has been described rightly as “[p]erhaps the most enduring contribution of our common law”.5 Professor Jeffrey Jowell, who so described it, sees the rule of law as supplying the foundation of a new model of democracy in Britain that limited governmental powers in certain areas even where the majority preferred otherwise:6

It is a principle which requires feasible limits on official powers so as to constrain abuses which occur even in the most well-intentioned and compassionate of governments. It contains both procedural and substantive content, the scope of which exceeds by far Dicey's principal attributes of certainty and formal rationality.

5 In the UK, the primacy of parliament and the rule of law underpin a constitutional paradigm described as a:7

… bipolar sovereignty of the Crown in the Parliament and the Crown in its courts to each of which the Crown's ministers are answerable — politically to parliament, legally to the courts.

That concept is not novel. In 1991 in X Ltd v Morgan-Grampian Ltd,8

Lord Bridge, with whom four other Law Lords agreed, said:9

In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law.

6 Notwithstanding the strength of the concept of parliamentary sovereignty in the UK, the possibility that the rule of law imposes fundamental common law constraints on legislative power has been raised. Lord Woolf, in an essay10 published in the journal Public Law in 1995, hypothesised legislation which might seek to undermine in a fundamental way the rule of law on which the unwritten constitution depends, for example, by removing or substantially impairing the judicial review jurisdiction of the courts. He said of that jurisdiction that it was:11

… in its origin … as ancient as the common law, predates our present form of parliamentary democracy and the Bill of Rights.

Absent the protection of a written constitution against such intrusions on the judicial function, Lord Woolf was prepared to define a limit on the supremacy of parliament which it would be the responsibility of the courts to identify and uphold.12

7 In the Singapore Academy of Law Annual Lecture in 2005, Lord Woolf returned to that theme. His subject was “Constitutional

Protection without a Written Constitution”.13 Pointing to the principles informing the rule of law in the UK prior to its adherence to the European Convention on Human Rights14 and the enactment of the Human Rights Act 1998,15 Lord Woolf referred in particular to what Lord Justice Laws said in the same edition of Public Law:16

The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms. If the power of a State is in the last resort absolute, such fundamental rights as free expression are only privileges; no less so if the absolute power rests in an elected body.

8 The views of Lord Woolf and those of Lord Justice Laws, which appear to question the absolute character of parliamentary supremacy, were contested by the late Lord Bingham in his book on the Rule of Law.17 Drawing upon the writing of a respected Australian academic, Professor Jeffrey Goldsworthy, in his book The Sovereignty of Parliament,18 Lord Bingham said:19

As Goldsworthy demonstrates, to my mind wholly convincingly, the principle of parliamentary sovereignty has been endorsed without reservation by the greatest authorities on our constitutional, legal and cultural history.

9 The question whether any such constraint could exist in Australia has not been much agitated. It may be that there is a reason for that. In 1988 the High Court of Australia, in Union Steamship Co of Australia Pty Ltd v King,20referred to the position of the New South Wales State Parliament, which was authorised by its Constitution21 to make laws for the peace, order and good government of the state, and said:22

Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not

that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law … a view which Lord Reid firmly rejected in Pickin v British Railways Board ([1974] AC 765 at 782), is another question which we need not explore.

The cases which seemed to favour some such restraints were all New Zealand decisions.23 The question has not been further explored in Australia although it was mentioned in passing in South Australia v Totani.24 In the context of Australia and Singapore it is probably an academic debate given the limits on parliamentary sovereignty imposed by our written Constitutions. Against that background it is appropriate to consider the legal framework in which the rule of law functions in Singapore and Australia.

A. Singapore and Australia — Similarities and differences

10 Singapore and Australia differ markedly in land area, in population, in demographic mix, in culture and in history. Singapore has a population of 5.3 million people in a land area of 710 km 2. Australia has a population of 23 million people in a land area of 7.7m km 2. Singapore is a unitary state. Australia is a federation. We nevertheless share a common legal heritage as a legacy of our colonial histories. We are both societies whose legal systems rest upon written Constitutions. In May 2012, former Chief Justice Chan Sek Keong, whom I had the pleasure of meeting when we both attended the Commonwealth Law Conference in Hong Kong in 2009, delivered a judgment25 in which he compared Singapore's constitutional system with that of the UK. He made the point that as with the Westminster model, the sovereign power of Singapore is shared between the Legislature, the Executive and the Judiciary.

11 Separation of powers is built into the Singapore Constitution.26 Article 28 vests the executive authority of Singapore in the President. Article 38 vests legislative power in the Legislature consisting of the President and the Parliament. Article 93 vests the judicial power in a...

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