Book: Authoritarian Rule of Law, by Jothie Rajah

Book: Authoritarian Rule of Law, by Jothie Rajah:

If you have time for just one chapter, read Chapter 3 on the Vandalism Act. You will not see Singapore law the same way again.
Most of us are happy that Singapore is a relatively graffiti-free city, but as law academic Jothie Rajah demonstrates through her unearthing of the parliamentary speeches surrounding the bill in 1966, the intention of this law was completely different. It was a bulldozer of a law designed to destroy an opposition party.  Through this law, ‘vandalism’ was made a cipher for opposition politics (page 74) and the aim of the law was to extinguish the Barisan Sosialis’ messaging to the people. Caning was its chief instrument.
The mid 1960s was a period in which Lee Kuan Yew and the People’s  Action Party’s hold on power was tenuous. After ramming through merger with Malaysia, the project fell apart within two years, proving Lee disastrously wrong in his political ideas. The PAP felt itself particularly vulnerable in 1966 when it offered Singapore as an R&R (rest and recreation) base for American soldiers fighting in the Vietnam War. It made Singapore into an American lackey, and reinforced the Barisan Sosialis’ anti-colonialist, anti-imperialist credentials when the party opposed American involvement in that war. But the Barisan Sosialis was already half-crippled from having its leaders detained without trial under the Internal Security Act (Operation Cold Store 1963). Nonetheless, its remaining activists tried their best to communicate with the public and the chief means of doing so was through putting up posters at many locations. Slogans such as “Yankees go home” were painted too.
The existing Minor Offences Act already made vandalism a crime, punishable with a $50 fine and/or a week in jail. But this was not considered sufficient when the objective became one of political extermination. So a new law was introduced raising the fine to $2,000 with a maximum of three years in jail. It was also made into a non-bailable offence — which is quite incredible for such a minor, non-violent offence — presumably to stop accused persons from putting up more posters while out on bail. More crucially, it made caning (minimum three strokes, maximum eight) mandatory. As Rajah notes, this breached two fundamental principles of law: the penalty is now disproportionate to the gravity of the offence; and sanguinary punishment (caning) is being used for a property offence.
I myself can see in it limned a third violation of principle — the way discretion was taken away from the courts when caning was made mandatory. This seems to me to be an early example of how courts could not be trusted to act in ways the PAP wanted, and which would progress to the ousting of judicial review altogether in the book’s later examples.
She writes:

The ‘rule of law’ principle that punishment should be proportionate, and not cruel and degrading, was violated by the Vandalism Act’s history of being, in part, enacted to ‘humiliate’ those who dare paint slogans challenging the government.
– Jothie Rajah, Authoritarian Rule of Law, Cambridge University Press 2012, page 98.

Through this case study of the Vandalism Act, Rajah introduces her readers to the key thrust of her research and book: how ‘law’ itself has been used to eviscerate the rule of law in Singapore.

Rule of law deformed into rule by law

The rule of law is a concept in which the state itself must be subordinate to law; it cannot act arbitrarily and coercively against the rights of citizens. To have any meaning,

[a] liberal concept of citizenship and the capacity for civil society to counter the state are major constituents of political liberalism, a mode of ‘politics’ which, in turn, informs the ‘rule of law’.
– ibid, page 161.

Her book thus aims to

[trace] the Singapore state’s reconfiguration of the profoundly liberal concept of ‘rule of law’ into an illiberal ‘rule by law’  through the state’s manipulation of legislation and public discourse.
– ibid, page 267.

and focusses on

state measures to silence actors who seek the scrutiny and containment of state power.
– ibid, page 46.

The example of the Vandalism Act also illustrates how the PAP government tries to maintain the fiction that there is rule of law in Singapore. The Act was passed by going through the formal motions of Westminster parliamentary democracy, but parliament at that time consisted only of PAP members. Several Barisan Sosialis MPs were detained under the Internal Security Act and the rest were boycotting parliament in protest. Furthermore, the alarmist, ideological assertions of the PAP as to the seriousness of vandalism, e.g. how such behaviour would frighten away investors and destroy any chance of prosperity, not only dominated the discursive space but were swallowed wholesale by the courts. In the case of fifteen-year-old (yes!  fifteen) Ang Chin Sang, sentenced to three months’ imprisonment and three strokes of the cane, Rajah writes:

The Chief Justice, hearing the appeal in 1967, months after Prime Minister Lee had, from Parliament, instructed the judiciary to “apply the letter of the law in such a spirit that society is able to protect itself”, is completely compliant to the state’s account of what amounts to ‘vandalism’ and becomes the tool of the state’s precept that severe punishment is the necessary response to this especially “serious”  offence.
– ibid, page 88.

The failure of courts to interrogate the use of law in such ways only allows the PAP government to get away with claiming that the rule of law exists. Rajah argues that Singapore “performs” the rule of law through judicial processes and parliamentary procedures, including Select Committee hearings that bear no relation to the purpose of such committees (which is to hear from voices outside parliament various views before passing legislation), but whose transcripts and reports reveal them to be inquisitions designed to demolish political opponents. For the latter, the book contains a vivid description, with many ad verbatim quotes, of what happened in 1986 when the Law Society, led by then-president Francis Seow, tried to speak up against an expansion of press controls.

Four and a half examples

The ‘meat’ in the book is a detailed study revolving around four key pieces of legislation: the Vandalism Act 1966, the Newspaper and Printing Presses Act 1974, the Legal Profession (Amendment) Act 1986 and the Maintenance of Religious Harmony Act 1991. There is also a brief discussion of the Public Order Act 2009, but by the time Rajah reaches this law, the objectives and strategies employed by the PAP government have become so familiar from the earlier examples, there is really nothing new left to be said.
The objectives of each of these pieces of legislation are strikingly similar. In each case, the law followed closely the rise of a new political challenge, and was designed to squash it.

• That the Vandalism Act was aimed at Barisan Socialis’ street messaging has already been discussed.
• The Newspaper and Printing Presses Act 1974 was aimed at securing control of the print media after the Chinese-language newspaper Nanyang Siang Pau began to voice the disaffection of the Chinese-educated. This statute too was presaged by detentions under the Internal Security Act; four executives of the newspaper were arrested on 2 May 1971 and held without trial.
• The Legal Profession (Amendment) Act followed the Law Society’s criticism of the government’s attempt to extend controls to foreign media.
• The Maintenance of Religious Harmony Act 1991 followed the 1987/1988 detentions of social justice activists who had the support of the Catholic Church. While the government could deal with the activists through detention without trial, it needed a less blunt, preventative instrument to deal with any religious group wanting to act on its conscience.
• Finally, the Public Order Act 2009 was meant to shut down the tiny streetside protests of opposition leader Chee Soon Juan, who was gaining (foreign) media attention this way.

Strategies

What strategies were employed by the PAP to get such illiberal legislation passed and yet maintain legitimacy? Rajah’s analysis of this question is particularly illuminating, if not entirely new. In the lead-up to each of these pieces of legislation, she found a discourse heavy with these devices:
Regularly deployed is the language of exceptional national vulnerability, used to legitimise exceptional measures that depart from norms of rule of law. The threat of communism was one, used not only in the 1960s but as late as in 1987 when the Soviet Union was on its last legs and China had turned Dengist. The “hyperbolic narratives of violence” (page 270) along faultlines of race and religion is another one that is constantly played up. It is still in use today. As well, there are assertions of perpetual economic danger.
Secondly, the actors targetted for silencing are demonised, their activities cast as being anti-national. Over time, and coupled with allegations that their activities exposed Singapore to the exceptional vulnerabilities mentioned above, anti-PAP has become reflexively seen as anti-Singapore. This demonisation is carried out through ministerial statements, dutifully printed by an emasculated press, and through performative theatre such as inquisitorial Select Committee hearings, and scripted TV interviews of detainees.
Thirdly, Rajah finds from the historical record a persistent language of infantilisation. The PAP tends to speak of citizens as incapable of absorbing the full facts or understanding the issues thoroughly. This is coupled with language that casts the PAP as protective. The result is a demand for or appeal to trust. One example she drew was from the 1987 detentions leading up to the Maintenance of Religious Harmony Act.

Significantly, the state’s account of the ‘conspiracy’ was rarely clear about the precise nature of the activities of the Catholics it detained. Instead, the focus was on the threat to the ‘nation’ that had been averted and the need for citizens to submit themselves to the state’s  authority. . . . at no point in the speech did Goh [Chok Tong] address the basic question of what the ‘conspirators’ actually did that so imperilled the ‘nation’.
– ibid, page 228.

Just as interesting is how cabinet ministers also deployed performance. In public statements following the 1987 arrests, they said the Internal Security Department had investigated those unspecified activities and

[Goh] then positions himself himself as a member of the ruling elite and presents the state’s good faith in responsibly arriving at the decision to order the ISD action: “We asked many questions.  We wanted to be very sure that the conspiratorial activities  . . . were indeed prejudicial to the security of Singapore . . . All of us were satisfied”.
– ibid, page 230.

The above conjures a picture of rule-of-law processes (checks and questioning) when the whole affair was anything but.
Fourthly, there is a tendency to leave key words and phrases in legislation undefined. This violates a ‘rule of law’ principle that laws must have textual clarity. For example, the Public Order Act targets activities that  “publicise a cause or campaign”, but nowhere does it define what might constitute a cause or campaign. It is left to the minister to determine it and cannot be reviewed by the courts. The Newspaper and Printing Presses Act speaks of “person[s] who [have] been granted the written approval of the Minister” to hold management shares, but who these persons shall be, how determined, and how approval may be withdrawn another day is left to the minister again.
The approach is one

… conceiving of ‘law’ as entirely within Parliament’s  hands and denying the role of the courts in policing, so to speak, the content of ‘law’.
– ibid, page 212.

Arbitrariness is created when such vague language is used, leaving possibly shifting definition to the executive. Courts, if not explicitly excluded from the role of judicial review by ouster clauses (which most of her examples contain) will find it hard to grapple with such vague law, even if they are inclined to. However, as Rajah points out, they seldom are.

Singapore’s statist courts accept and enforce the meanings imposed by the state.
– ibid, page 283.

Yearning for legitimacy

Today, in the sphere touching on politics, the situation has been reduced to one of ‘rule by law’. The kind of political, civil society and citizen questioning called for by the spirit of ‘rule of law’ in order to ensure that the state is subordinate to law

would be treated as a political challenge warranting extreme state coercion
– ibid, page 186.

And yet,

The state’s  attempts to closely control and manage presentations and performances of its legitimacy speak of its anxiety to be seen as legitimately ‘rule of law’.
– ibid, page 142.

This is because the PAP state yearns for the legitimacy that only Western democratic countries can bestow. And also because Singapore’s foundational documents (e.g. our constitution) use language that is infused with liberalism and ‘rule of law’. Constitutional legitimacy would become elusive should it be pointed out that the true behaviour of the PAP contravenes the intent of these documents. This may explain the care taken to attend to the performative aspects of ‘rule of law’ at least, and by this means to hide away the repeated assault on the substantive meaning of ‘rule of law’.
It is here that Rajah brings up a novel point. Very often, the PAP in its defence alludes to how Singapore’s legal and political system is descended from Britain. This is used as yet another bullet point in support of ‘rule of law’ legitimacy. But she points out that in many ways, our laws are not descended from Britain. They are instead descended from colonial rule, and colonial rule is inherently illiberal. Colonial governments did not rule over citizens; they ruled over subjects. Colonial governors did not submit themselves to election nor permit much political contestation; they enacted laws such as the Internal Security Act and the Sedition Act meant to control rebellion, and they saw themselves as the enlightened and civilised few sent here to protect the natives who could not be trusted to see their own best interests, grasp the facts or even understand the complex issues of the day.
The examples she studied and presented in her book all have a similar character. She thus argues that

The nation-state has adopted the colonial legal regime in a manner that renders the nation-state a neo-colonising entity, subordinating and infantilising citizen-subjects.
– ibid, page 279.

Left for another day

One comes to the end of the book wanting more. What might Rajah have to say about the creation of Group Representation Constituencies? In what way are our notorious defamation suits also performative theatre, meant to give the impression that rule of law operates when the meaning of ‘rule of law’ is banished by Singapore’s exceptional construction of ‘defamation’?
One also sees the same strategies that she has described in the ongoing attempts to control social media and online speech. Here again the PAP sees a new civil society force gathering momentum. Here again, the same hyperbolic narrative of racial and religious discord is deployed to demonise and isolate participants (with an added twist: the “threat” of sexual predation). Here again, one sees attempts to use executive discretion to “license” and administratively control such activities, with as little judicial oversight as they can get away with.
The stunning consistency in application of these techniques of control over half a century is depressing. The findings of her study would lend no support to those who believe that things are changing; that Singapore is “freeing up”. In fact, as she progressed through her research,

My desire to adopt a scholarly detachment from the narratives I have uncovered has been thwarted by my growing distress at the violent and repeated amputation of the protective mechanisms of ‘rule of law’ in the Singapore state’s execution of ‘rule by law’.
– ibid, page 296.

But if the PAP has no desire to change, or is incapable of change, what conclusion must we draw?