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[Editors’ note:]
Our earlier version gave the impression that Minister Shanmugam has changed his mind on rule of law. This is wrong and taken out of context.
Minister Shanmugam said in Parliament that the rule of law is fundamental for Singapore and its success. He also said that the government has always been committed to the rule of law and continues to be so. He also referred to some countries around the world “where rule of law is a concept for lawyers but it does not operate in the real world.” He used this as a contrast to how the rule of law is applied in Singapore.
Mothership apologises for the misrepresentation. We have corrected our article to accurately represent Shanmugam's comments.
Minister for Law and Home Affairs K Shanmugam's views on the law have changed from when he was a young lawyer in the 80s, he said during the debate on the Foreign Interference Countermeasures Act (FICA) in Parliament on Oct. 4.
When he was a backbench Member of Parliament (MP) and a young lawyer, Shanmugam had certain views, which he said have evolved over time.
Used to challenge laws that took away powers from the judiciary
The Leader of the Opposition Pritam Singh was seeking clarifications over Shanmugam's statements made in 1989, where he seemed to express similar concerns over the limited scope of the judiciary in an ISA amendment bill.
During a Parliamentary debate over an amendment to the Constitution, Shanmugam said:
"The government works on the basis that the persons in government should be upright, moral and only do what is good for the country. Thus the people have nothing to fear, despite the powers that the government has. These powers will never be abused and because they are so effective, they help the government govern effectively for the greater good of all.
So that has worked. But can we be sure that down the road, the situation will be the same? We cannot guarantee that the future government will comprise honourable men... an argument, therefore, can be made out that there must be checks and balances within the system."
Shanmugam: Tell me a better model on how to improve FICA
Shanmugam said that when he was a backbench MP, he routinely spoke up against laws like the Maintenance of Religious Harmony Act and the Internal Security Act, which gave little scope for the courts to act.
As a young lawyer who was called to the bar just four years prior to the speech, Shanmugam said that his younger self always sought to uphold the independence of the judiciary, as its importance was drilled into him in law school.
Shanmugam said he still believes in the principles of the rule of law and separation of powers, both then and now.
"So anytime when there is an approach that seeks to cut back on judicial review, or take away the powers of the judiciary, my instinctive reaction is negative. I don't like it. I don't want to do it. And I instinctively try and see if there is a different way of doing it."
Shanmugam said he had expressed such discomfort about other laws, and even with FICA, he said that he was open to ideas on how it could be done better.
"Likewise today I said, if we can find a better model. I'll be the first one to do it." he said.
But he disagreed that going to the High Court for FICA is a better model, as the possibility of leaks of sensitive intelligence in a tribunal is much less than in the court.
A person who doesn't change their mind is "stupid" or "ideological": Shanmugam
Shanmugam then elaborated on his position:
"I don't think Mr Singh, based on what he says, he obviously doesn't deny that there will be leaks. You want us to take the risks? Will there be a possibility of a leak, with a tribunal? Much, much, much less, to the point of being close to zero. That is the big difference.
Now, what has changed, what has made me change the mind? If a man looks at the facts, the real world and refuses to change his mind, he is either stupid or he is ideological. I am neither, I think, even if I say that of myself.
So, you see 9/11. You look at the way the Americans have dealt with it. You see the issues in Western Europe, you see the issues around the world, where lip service is paid to all these grand concepts, but the societies live in utter misery. Where rule of law is a concept for lawyers, but it doesn't operate in the real world, and you ask yourself."
Mentioned Lee Kuan Yew's "order, before law"
Shanmugam also shared some of his formative experiences from his younger years, where he would get into debates with the late Lee Kuan Yew.
He referred to Lee's 1962 speech to the Law Society, where Lee suggested that the phrase "law and order" should be inverted to "order and law", as he believed that the rule of law cannot function in a society without first having order.
"If you can bring order into society, then your law will take full effect," Shanmugam said.
He added that Singapore enjoys its stability today because it was able to ensure that there was order first, and then ensuring that there is a commitment to the rule of law, but "making exceptions when necessary".
Here's what he said:
"So I looked at all of this experience, practicing in courts, and too many years as an MP. Long conversations with the late Mr Lee Kuan Yew, discussing, I would say, arguing, though it's not easy to argue with him. Discussing. Tough discussions. And then I began to understand the meaning of his original speech to the Law Society, when he said, law and order. I reverse it, order first before law. Because if you don't have order, you cannot have law.
I mean we all read it, we think we understand it, but I don't think we really do. You need to really imbibe, what is the meaning of that. If you can't have the CLTPA and arrest the gangsters, how are you going to have law? It will be a paper law. But if you can bring order into society, then your law will take full effect. Look at the state of our society, look at the number of people under CL today compared to the number of people under CL even 10 years ago. It's halved. And the reason is, as society develops, as society progress, as there is stability, as there is order, the law takes stronger and stronger roots. You get that wrong, you will neither have law nor order.
So, I began to understand why we have a strong commitment to rule of law, strong commitment to separation of powers, and at the same time, over time, in specific areas. For example, I said Land Acquisition Act. Your property could be worth millions of dollars. The government could acquire it. And you could be asked to leave. It's socialism in action, it's social policy. And there is a need for that. Even today, would we, in Singapore be where we are if we had taken the Indian approach, and every matter goes up to the Supreme Court on land acquisition and it takes years to deal with it?
So, I saw the genius in the adaptations that our system has made, our founding generation has made. Being very strict as building up our judiciary. You look at all the countries in the post-colonial world. They inherited the institutions from the British, a civil service, a judiciary, laws, schools, education. What have they done with it? Most of them have gone down the tube while their grand rhetoric. What has Mr Lee and his team did with it? Built up the judiciary.
If we don't have a commitment to rule of law, you think our judiciary will be ranked as it is today? Internationally? Built up our civil service, so it is a strong, upstanding, excellent civil service. Built up the other institutions, including SAF, the police force. Our education system, a middle class. All of this is built up with the foundations of bringing order first, and making sure the law, and commitment to rule of law is there. But making the exceptions when necessary, and I took you through the exceptions.
And to me, the best example of how this operated in practice, is when I saw how the Americans were struggling with it, I mean their ideological commitment to due process, everyone must be tried, everyone must have a lawyer, everyone must be given a full trial. But then they have these, I don't know, X hundred or thousand plus terrorists, whom they don't want to give a trial and America was never under an existential threat as a result of 9/11. Never like the threat that we've faced. But when they did it, they said Guantanamo is in Cuba, our rules and laws don't apply, there is no due process, we lock them up and we throw away the keys.
Let's, that's why I said, let's get out of this colonisation of our minds. Let's look at what works, what is fundamental. Checks and balances are important. But what is wrong with the checks and balances that we built in here?
So yes, I'm not embarrassed to say that I had certain views, straight out of law school, in the first four years. The only mistake is I shouldn't have become an MP when I was 29. I should have waited a bit longer. But I'm not embarrassed to say those were my views. And those views have changed because of the realities of life. Not because I became a minister, but because over time, long before I became a minister, I saw how laws are meant to operate. And where the exceptions have to be made.
So as I sit, sat with my officers and drafted this and with the AGC. Yes, there were parts that I wish were different. But, the threat we face, as I said, are people armed with bazookas and I described this legislation is a toy gun, because Singapore is, believes in the law, so we put forward the law, we give ourselves legal powers. But in reality the kind of threats we face, the kind of adversaries and the resources they have in terms of manpower, are far greater than what we have.
So that, and the problem, our people haven't even begun to realise what the problem is, and the nature of the problem despite despite all the speeches and the conferences and seminars, and the select committee hearings. So, and if anybody else from Workers' Party wishes, I'll give you the references to my different speeches where I have expressed views so that I don't have to keep coming back to this speech, once every, a year or two years. Thank you."
No judicial review as information relating to FICA is "much more confidential and secret"
Pritam responded, saying that while he recognised that Shanmugam's change of views was understandable, as everyone "[goes] through such a catharsis in [their] lives", he wanted to clarify why judicial review had to be limited in FICA's case.
Shanmugam said his ministry had assessed that the information evaluated under FICA is "much more confidential and secret" and that they would have to rely on their different intelligence partners where a greater deal of secrecy is required.
"This should not go to the court process at all," he added.
Nonetheless, Shanmugam said he is "happy to consider" other review processes that would make it more robust, as long as it does not affect secrecy and confidentiality.
You can see the exchange here at 8:45:20: