The acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice.
The rule of law talks of habeas corpus, freedom, the right of association and expression, of assembly, of peaceful demonstration, concepts which first stemmed from the French Revolution and were later refined in Victorian England. But nowhere in the world today are these rights allowed to practise without limitations, for, blindly applied, these ideals can work towards the undoing of organised society. For the acid test of any legal system is not the greatness or the grandeur of its ideal concepts, but whether in fact it is able to produce order and justice in the relationships between man and man and between man and the state. To maintain this order with the best degree of tolerance and humanity is a problem which has faced us acutely in the last few years as our own Malayans took over the key positions of the legislature, the executive and the judiciary.
The British colonial system was a pragmatic one. Its legal system used the trappings and some of the forms of Westminster, but its content was adapted to meet local circumstances. The skill of the colonial legal and judicial system rested not in the straightforward application of the forms and rules spelt out in the Courts of Justice at Westminster and in the Inns of Court, but in ensuring that these rules were adapted to maintain good government with the largest practical measure of individual freedom. For accompanying the written rules was a set of unwritten ones which was handed down within the service.
Let me give you an example of how a blind application of the forms and rules of law and the rules of evidence led to a complete and utter miscarriage of justice in Singapore. Some three years ago a storekeeper of a bus company took a can of petrol, burst into the directors’ room when a meeting was in progress, spilt the can and set the whole room and building in flames. Several persons were literally burnt alive. The jury convicted without hesitation. But after the fumbling and bungling of the rules of procedure and evidence and the summing up, the court of appeal, according to the rules of precedent, allowed the appeal. Another charge on a second murder committed in the same actus reus followed. A plea was made to the Attorney-General to observe the best traditions of his high office and the practice of the law in never asking a man to stand trial on a capital charge twice for the same act. In response to such an appeal a nolle prosequis was entered. Five bereaved families swore vengeance in their rage at the utter miscarriage of justice which resulted from a blind application of the forms and rules. For if the state cannot maintain the balance between the subjects and if the public wrath cannot be settled by the courts, then private vengeance becomes inevitable and lawlessness must increase.
Five bereaved families swore vengeance in their rage at the utter miscarriage of justice which resulted from a blind application of the forms and rules.
Those of you who are just embarking on the study of the law will learn the phrase “law and order”. In a settled and established society, law appears to be a precursor of order. Good laws lead to good order, that is the form that you will learn. 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. Order having been established and the rules having become enforceable in a settled society, only then is it possible to work out human relationships between subject and subject, and subject and the state in accordance with predetermined rules of law.
And when a state of increasing disorder and defiance of authority cannot be checked by the rules then existing, new and sometimes drastic rules have to be forged to maintain order so that the law can continue to govern human relations. The alternative is to surrender order for chaos and anarchy. So it is that we have to allow the use of extraordinary powers of detention, first in the case of political offenders under the PPSO [Preservation of Public Security Order], and next in the case of secret society gangsters under the Criminal Law (Temporary Provisions) Ordinance.
It must be realised that if you abolish the powers of arrest and detention and insist on trial in open court in accordance with the strict laws of evidence of a criminal trial, then law and order becomes without the slightest exaggeration utterly impossible, because whilst you may still nominally have law and order, the wherewithal to enforce it would have disappeared. The choice in many of these cases is either to go through the motions of a trial and let a guilty man off to continue his damage to society or to keep him confined without trial.
These extraordinary powers do not measure well against the ideals of habeas corpus and the precedents of individual liberty embroidered in two centuries of peaceful non-revolutionary England. But the sociological and political conditions in which we find ourselves make it vital that there should be radical departures from the British patterns.
A curious position that has arisen in Malaya is the temporary alliance of the pure academic who talks in terms of the absolute qualities of freedom, liberty and the rights of man and a strange fellow traveller … the communist revolutionary whose whole philosophy is a complete denial of these liberal concepts. The academic liberal may or may not believe in the practicability of his enunciations of absolute ideals. But the communist revolutionary certainly does not. He is utterly contemptuous of this philosophy of what he believes to be a decadent free society. But the communist is sufficiently cynical to calculate that if he joins forces with the liberal in the name of human rights and human liberty, he is more likely to be able to work up more hostility and dissatisfaction. For “liberty” and “freedom against the authority of state” are better rallying slogans than “communism” and “the dictatorship of the proletariat”.
The realities of the sociological and political milieu of Malaya and of the world of 1962, are that if you allow these shibboleths of “law and order” to be uttered out of context and without regard to the actual social and political conditions we are in, you may unwittingly make these words be your own undoing. For in the last analysis if the state disintegrates then the rules of all laws must vanish. …
If the state disintegrates then the rules of all laws must vanish.
Justice and fair play according to predetermined rules of law can be achieved within our situation if there is integrity of purpose and an intelligent search for forms which will work and which will meet the needs of our society. Reality is relatively more fixed than form. So if we allow form to become fixed because reality cannot be so easily varied, then calamity must befall us.
While Lee was prepared to depart from legal precedent and adapt past practices to suit the circumstances of his fledgling state, he recognised that these were done at a very heavy price. They were not taken lightly but out of necessity to establish and maintain order in the society, he assured lawyers at the first annual dinner of the Singapore Advocates and Solicitors Society on March 18, 1967.
Don’t be afraid to innovate the law
The fact that today the rule of law is reasonably established – no one believes that anyone will be executed at the whim and fancy of somebody else – is cause for quiet congratulations. For it might so very easily have been otherwise in so many ways. There were moments in 1964 and in 1965 when we felt that perhaps we were going the way of so many other places in the world. But we did not.
In 1964, I visited in the course of my duties as a representative of the prime minister of what is now a foreign neighbouring government, a country where the Chief Justice has only recently been detained. And why? Because he acquitted on appeal, or in a trial, a former minister of some charge that he was out to kill the president of the newly independent nation. And the whole judiciary was changed. It was not just the Chief Justice who was detained. A new Chief Justice was appointed and all the judges were left in no doubt as to who was the most important ratio decidendi in any case.
A new Chief Justice was appointed and all the judges were left in no doubt as to who was the
most important ratio decidendi in any case.
In other parts of the world where there are more refined, polite and courteous ways of doing things, one does not put the Chief Justice in jail. One merely appoints a relative to the post. You do not have to hang your relative. You just make sure that he understands how he got there!
Newly independent countries share one thing in common. They all have a tremendous addiction to pomp and panoply of office. Protocol is most important. If you just get a person shot in a dark corner, it is not so satisfying as to have him go through the ritual of a trial, and he is cross-examined and all his wicked deeds – unconnected with the charge – exposed.
I read of somebody who was in charge of some banking institution of a country of great natural wealth. And we heard all about the beautiful women who were supplied to presidents and the guests of presidents. But I often wondered what that had to do with the charge that was brought against him. It was irrelevant! The man was going to be summarily executed. But it would be such a shame just to take him round the corner and finish him off so quickly. So one does it with some ceremonial splendour and thereby establishes the ascendancy of the new regime!
We have, fortunately, escaped some of these excesses. And I would like, apart from congratulations, to hope that we are sufficiently perceptive and determined that it will never happen to us.
It might be good fortune, perhaps, that not just I alone but some of my colleagues were brought up in fairly liberal traditions. We don’t have to be lawyers to understand right, wrong, good, evil. This is basic and fundamental in the values of a people. And I think even if the Minister for Law and myself were to go wrong, you will have some consolation, Mr President, in the knowledge that quite a number of my colleagues are men imbued with some of the values, some of the traditions of an open, of an equal, of a tolerant society.
You cannot maintain that kind of a society unless you are prepared to practise it yourself. In other words, your style must be open. You must yourself be tolerant. And, most important of all, you must be able to ensure, insofar as you can, that your successors – even though they may not be of the same political colour as you are – are imbued with this value.
Let us not deceive ourselves that we can do all these things because we just believe in democracy, the rule of law and the certainty of the law.
Let us not deceive ourselves that we can do all these things because we just believe in democracy, the rule of law and the certainty of the law.
You know, we have paid a very heavy price. We have departed in quite a number of material aspects – in very material fields from the principles of justice and the liberty of the individual, in particular – in order to maintain these standards, in order that there shall be a Bar; that there will be judges who will sit in judgement over right and wrong; that police will produce witnesses and that witnesses for certain crimes shall require corroboration and evidence shall be in accordance with the Evidence Ordinance.
But let me tell you the price today, right at this moment: 620 criminal detainees under the Criminal Law Temporary Provisions Ordinance, 100 of whom are murderers, kidnappers and armed robbers. And quite a number of these cases, though self-confessed, were acquitted at trial. You are landed with a murderer who has confessed to a murder and you know it is true by all the circumstantial evidence, and that to let him out is to run the very grave risk of undermining your whole social fabric. But you played it according to the rules of the game and it did not work.
There are 720 criminal law supervisees – men on whom the due processes of law were unable to place even an iota of evidence. But for the fact that they are required to stay at home by night, I think life would be less what it is in Singapore, for their nocturnal activities can make your motorcar outside a less useful vehicle of transportation, among other things.
This is true. We have had to adjust, to deviate temporarily from ideals and norms. This is a heavy price. We have over a hundred political detainees, men against whom we are unable to prove anything in a court of law. Nearly 50 of them are men who gave us a great deal of anxiety during the years of Confrontation because they were Malay extremists. Your life and this dinner would not be what it is if my colleagues and I had decided to play it according to the rules of the game.
So let us always remember the price that we have had to pay in order to maintain the general standards – relationship between man and man; man and authority; citizen and citizen; citizen and authority – except in the cost of these 620 detainees under the Criminal Law Temporary Provisions Ordinance. But it is an expression of an ideal when we say “Temporary Provisions”.
You know, it has gone on for the last 8 years. I remember being a party to it, saying “Aye” when the previous government moved it some 11 years ago. And we have had to change the law itself. For instance, the Vehicles Theft Ordinance – too many cars were being stolen. Heavy penalties were sought – 7 or 8 years ago we did that and we said, “10 years punishment”. And yet young magistrates sometimes say, “Poor man. He is just trying the first time. Let him off for a year!”
And there is the new law in regard to poster pasting. If you do it in an indelible form, you get a whacking. I and the Minister of Law, who is a lawyer, had to fight a tremendous duel with the Attorney-General’s Office to formulate this law. We knew there was a plan for the whole city to be plastered with paint – red paint, black paint. But the magistrate doesn’t understand. He doesn’t read Chinese. He doesn’t know what these things exhort. It is just so much messy paint on the walls. He doesn’t know how difficult it is to catch one man out of the hundreds that did it; how difficult it is to be on the spot at 3 or 4 o’clock in the morning and to apprehend one of them. It is quite an effort.
Your life and this dinner would not be what it is if my colleagues and I had decided to play it according to the rules of the game.
And when you get one, to the utter and absolute disgust of the police, he is just cautioned and discharged. And so we said, “Second conviction – compulsory caning.” And you know, we have a lot of liberal lawyers in the Attorney-General’s Chambers. They would not put up a draft. They literally refused. They wrote long screeds why this was against the best traditions of penology.
I was happy, Mr President, that you used the phrase “a conscientious Bar”. But I don’t think, Mr President, you understand why I was happy. I knew what you intended. I learnt as a student that a word has three meanings: what the speaker intends it to mean; what the mass of people understand it to mean; what I understand it to mean.
And I think I knew what you intended it to mean, and I think I knew what the mass of people here knew what a conscientious Bar to mean – people who assiduously, in pursuit of their profession, turn up the law books, take every technical point in favour of their client and, thereby, have discharged their obligations, and justice is done.
That wasn’t the meaning that I suddenly felt when you said, “a conscientious Bar”. I thought of a bar with a conscience, a social conscience towards your own society. Do you feel for them? Every time a criminal law detainee is taken in, it is an admission of failure – failure in providing that man with sufficient opportunity to develop his talent in a meaningful way.
Every time I go to a Works Brigade Camp where these detainees are being rehabilitated, I am reminded what tremendous glands they must have had. But they went wrong somewhere. In other words, we failed.
And every time I go to a Works Brigade Camp where these detainees are being rehabilitated and I see the productivity in it compared with the other Works Brigade Camps, I am reminded what tremendous glands they must have had. They rear chickens and plant vegetables better than any other Works Brigade Camp. But they went wrong somewhere. In other words, we failed.
I would like, therefore, to appeal to your conscience this evening since it is, as your President has said, “a conscientious Bar”. I appeal to your conscience to try and help us find the answers to some of these problems.
First of
all, the Bar: the courts, the administration of justice. If we continue as in the past, it will fail. I will tell you how the British maintained it in Singapore.
They recruited the younger sons of wealthy families – or not so wealthy families – who could not afford to have the young man dawdling and earning very little at the Bar in the first five years of his career. They offered him stability, security, early retirement, handsome pensions, a good life whilst he performed his duties. He was not attracted by what was happening in private practice – not until Malayanisation came in. And then the picture got distorted.
Now you are recruiting from within the system. And the man who is going to make your potential Attorney-General is not going to stay in government service when he sees his contemporaries earn more in private practice. It is an insult to a man’s self-esteem to watch what a really good advocate with a good legal mind can earn outside. In government service the most he can hope for is $2,000-odd, plus certain perks of office. So how are you going to get the right people to man your High Court Bench?
Then there is the other problem – of a weak magistrate or a judge buffeted between two powerful counsels. And I have, from time to time, seen these proceedings, particularly in the lower courts. The magistrate’s or judge’s main concern is not with the man or the woman or the case – the rights or the wrongs of the law – but with the counsel who is going to upset his judgement on appeal. For too many appeals upset must mean some blot on the copybook when it comes to promotion. There is a Legal Service Commission with a Chief Justice, two senior judges and the chairman of the Public Service Commission, who do not know all these problems that the poor young man was fearful of, all the tremendous barrage of arguments put forward. All he wanted to do was the right thing and the right thing was to convict the chap. But how? He did not know how and he said, “Well, who is likely to hold me up on appeal?”
Lee Kuan Yew: The Man and His Ideas Page 56