SINGAPORE HUMAN RIGHTS PRACTICE AND LEGAL POLICY Of Pragmatism and Principle, Rights, Rhetoric and Realism

Citation(2009) 21 SAcLJ 326
Date01 December 2009
AuthorTHIO Li-ann BA (Hons) (Oxford), LLM (Harvard), PhD (Cambridge); Barrister (Gray’s Inn, UK); Professor, Faculty of Law, National University of Singapore; Nominated Member of Parliament (11th Session).
Published date01 December 2009

This third in the series of three lectures was delivered on 7 July 2008 at the invitation of Law Society President Michael Hwang SC under the auspices of the Law Society Public and International Law Committee. This article is a modified version of the public lecture.

I. Singapore human rights policy — The end of the “allergy”?

1 The subject of today’s final lecture concerns Singapore’s human rights obligations, which implicates law, culture and politics. Singapore appears to be entering a stage in her history marking the end of the “allergy” towards human rights.1

2 In times past, the Singapore government was reticent towards using “human rights” terminology, preferring the language of human welfare or dignity. I shall elaborate upon this after establishing a few baselines. Firstly, the present Government has stated clearly it has no problems with the Universal Declaration on Human Rights (“UDHR”);2 the Attorney-General reiterated this at the first lecture. We have a minimum core of human rights standards upon which to engage in human rights discourse. Secondly, a minor sea change occurred when Singapore acceded to three United Nations (“UN”) human rights treaties shortly after attending the 1993 Vienna World Conference on human rights; it is party to more than 20 International Labour Organisation (“ILO”) treaties, including Convention No 100 on Equal Remuneration for Equal Work, ratified in 2002.3 Thirdly, the

Government has altered its stance from ignoring or shutting down its detractors to engaging with its critics to some degree, sometimes through point by point rebuttal.4 However, there has not been a glad embrace of human rights, more a cautious hand-shake. This is reflected in the Societies Act regime5 which confers automatic registration on voluntary welfare organisations engaged in social welfare and charity, but not upon groups wishing to discuss civil-political rights which is defined as including human rights, environmental rights and animal rights.6 More caution is directed towards the latter.

3 In the 21st century, there is a wealth of human rights norms; what continues to remain disputed are questions of interpretation and appropriate enforcement methods.7

II. Contextualising Singapore human rights policy

4 In understanding Singapore human rights policy, two qualifications are encountered in the form of cultural and economic development arguments, which may justify rights abridgement. First, cultural particularities in the stream of the “Asian values” or “values in Asia” school,8 which shapes how the Government frames responses to human rights issues. Human rights are not the sole province of Government; they also belong to civil society groups, so we need to pay heed to who is talking. One dominant government voice is that Asian societies, particularly Singapore, have a particular culture which values group interests over individual interests. This is not a “West versus Rest” dispute, but an ideological clash, as there are Western communitarians as well as non-Western liberals.

5 Secondly, given Singapore’s developmentalist imperatives, human rights cannot be spoken of apart from economic development. For example, a property rights clause was deliberately excluded from the Constitution because it would hinder nation-building imperatives.

Foreign Minister George Yeo once declared it was “absurd to talk about human rights independent of the overall economic development of a society”.9 How can rights to health or housing be guaranteed without money in the bank? To that end, maintaining social control through restraining civil-political rights was considered integral to attracting foreign investment and sustaining economic take-off.

6 In Singapore and many other Asian societies, human rights are usually spoken of in conjunction with the broader idea of good governance — human rights, rule of law and democracy. Human rights are thus a “key performance indicator” for governors. What is the relationship between the UDHR and the rule of law, which is mentioned once in the UDHR preamble?10 The rule of law, while more acceptable than “human rights”, is itself contested.11 It transcends a formalistic rule-following State or mere legalism. Legislation enacted by Parliament following the stipulated procedure may be immoral. Human rights law is a profoundly ethical area of international law. We cannot equate the rule of law with rule by law, blind to whether the rules are fair. We are talking about the spirit of the law. Our Court of Appeal in Chng Suan Tze v Ministry of Home Affairs12 defined the rule of law thus: “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.” What happens when statutes or constitutional clauses preclude or limit judicial review? Are other constitutional mechanisms available for protecting rights?

7 While the rule of law is important, it must also be the rule of good law. There must be a moral basis grounding positive laws, whether derived from natural law, divine law or a secular ideology such as human rights and democracy. Resort must be had to a thicker, justice-based conception of the Good and human community. Human rights constitute part of the “thicker” idea of the rule of law.13

8 What about democracy? The word “democracy” appears once in the UDHR in Art 21(3): “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Belgium proposed adding the terms “according to the party system” after “in periodic and genuine elections” as it considered that democracy must mean multi-party democracy. Unsurprisingly, this was opposed by Soviet delegate Pavlov as the official view was that the peasants and workers were perfectly represented by the Supreme Soviet, within a one party State. The Belgium proposal was eventually rejected as the UDHR does not prescribe a particular political system but, rather, principles for constructing government structures. It leaves it to a country’s citizens to debate the details of structures and processes. Article 2 of the UDHR proscribes discrimination on the grounds of political opinion. This caused tension within the Soviet system where only the Supreme Soviet had legitimate political views.14 The point worth underscoring is that the UDHR is philosophically very thin; its drafters avoided siding with the liberal or conservative ends of the political spectrum. As long as popular will was somehow expressed, that sufficed.

9 What about Singapore’s international human rights policy? The most important speech was that delivered by then Foreign Minister Wong Kan Seng at the 1993 Vienna World Conference where more than 170 States gathered to discuss human rights issues.15 Several points which inform Singapore’s policy are worth noting. First, Singapore affirmed the UDHR as the normative baseline; it recognised that States have an interest in how other States treat their own citizens, as a legitimate international concern. Second, Minister Wong stressed that only a narrow “core” of universal rights existed. Law always operates in the backdrop of politics, and recognised human rights had to be distinguished from contested political claims. Third, he stressed the importance of cultural relativism and historical specificity, as human rights must be understood against “national and regional particularities and various historical, cultural and religious backgrounds”.16 He admitted “tolerance or diversity cannot be an excuse for dictatorships” as certain countries had invoked cultural arguments to excuse human rights violations. Minister Wong said human rights were not needed in heaven but only in an imperfect world.

10 Thus, the Singapore human rights approach is both contextual and realistic. A clinical approach towards human rights was advocated, but surely both reason and conscience should inform our thinking, action and being as these are not mutually exclusive. Minister Wong cautioned against “zealots” speaking with a “pronounced theological fervour” as no one had a “monopoly of truth” nor was any one country “the prophets of a secular god whose verities are valid for all time”.17 The Singapore Government clearly eschews metaphysics and embraces pragmatism, the “science” of experience, in seeking to consolidate common ground, to agree to disagree in areas lacking consensus. The idea is to forge ahead by focusing on similarities.

11 Singapore has emphasised the fundamental, inalienable and universal quality of the right to development (“RTD”) in the international arena; all lawyers know that the use of terms like “inalienable” and “fundamental” are an attempt to underscore priority. It was first declared in a 1986 UN General Assembly resolution,18 affirmed by Asian States in the 1993 Bangkok Declaration19 and by more than 170 States in the 1993 Vienna Declaration. The RTD is controversial owing to difficulty in identifying the right-holder and duty-bearer. Does it simply entail economic development?

12 The object of the RTD is supposed to be the human person, and not the State. This is important because, frequently, the RTD seems to be treated as nothing more than a State’s right to economic growth. The Declaration states that on the principle of indivisibility, the lack of development cannot justify violating human rights. The RTD as a solidarity or third generation right recognises the need for both national and international measures for its fulfilment; we are no longer speaking of the obligation between State and citizen but between States. This might be reminiscent of the New International Economic Order (“NIEO”)20 which called for macroeconomic change and for developed States to afford less developed States preferential treatment in matters...

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