By Neal Kok
It is difficult to remember what life in Singapore was like before Covid-19 restrictions – not having to wear masks, not having to keep a safe distance, and not being restricted to groups of 8 or less. It is even more striking when remembering a time where conversations did not involve Covid-19 restrictions, whether it be the possible introduction of new measures, a criticism of how other countries were handling it, or even of how our own government is handling the situation. Such discussions surrounding the Covid-19 restrictions range from practical issues of stability and clarity of the rules to substantive issues such as the infringement of the freedom of movement or freedom of choice. This article will identify what the doctrine of the rule of law can contribute to this conversation.
To evaluate how well the Singapore government kept in accordance with the rule of law, a working definition of the rule of law must be identified. The three leading conceptions provided by Dicey, Raz and Allan will be evaluated in turn, and how the Singapore government complied with each of these conceptions will be evaluated. Additionally, it should be noted that criticisms of the government’s rules and regulations may be differentiated into questions of legality and morality. The legal criticisms are explored following Dicey and Raz’s conceptions, and the moral criticisms are examined using Allan’s conception.
The Diceyan View
One of the original thinkers behind the formulation of the doctrine of the rule of law is Dicey. Dicey considered there to be three conceptions included under this doctrine, the collective purpose being to constrain those in power. They may be summarised as follows: first, a citizen may only be punished for the breach of valid law; second, no man is above the law; and third, the general principles of the constitution are the result of judicial decisions. Of the three, the first is the most pertinent to this discussion.
The first conception is that no man should be punishable except for a distinct breach of law that has been established in the ordinary legal manner before the courts of the land. [1] This encompasses the principle of legality, which requires the law to have undergone the appropriate and established legislative process in order for it to be valid. This purports to safeguard against arbitrary use of power, ensuring that citizens are only liable for a breach of legally valid law. In the case of the Covid-19 restrictions, this was achieved through both primary and secondary legislation. For instance, the mandate that masks must be worn when outside one’s ordinary place of residence was provided for in the passing of section 3A of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 [2], a piece of secondary legislation enacted by the Ministry of Health in exercise of the powers conferred to it per section 34(1) of the COVID‑19 (Temporary Measures) Act 2020. [3] In general, it is submitted that the regulations passed by the Singapore government have been legally valid since they have been promulgated through primary and secondary legislation. The Singapore government has thus acted in accordance with one of the conceptions of the rule of law as understood by Dicey.
The View from Raz
Raz is one of the leading thinkers of the formalistic conception of the rule of law. He conceived the doctrine in a morally neutral manner, confining the doctrine to formal rules that are void of a morally biased disposition. It is important to keep this in mind because under Raz’s conception, substantive criticisms of the government’s actions (such as infringements on individual autonomy) are not appropriately categorised under the doctrine of the rule of law.
Apart from the obvious health concerns the pandemic has introduced, a large portion of the disruption to ordinary citizens’ lives has come through the rules and regulations introduced by the Singapore government. This is evident from the cancellation of events such as weddings, musical performances, conferences, and the like. However, the rule of law should not be understood as a doctrine in absolute terms – there may be valid reasons justifying the introduction of rules that may undermine the ability of the law to effectively guide the behaviour of citizens. One such justification is for the safety of others, which is satisfied in relation to the pandemic. It is also for the reason of maintaining stability that the government announces new rules and regulations as far in advance as possible, balancing the urgency of the situation (to curb the spread of the virus) with the disruption it may cause to citizens’ lives. It is also evident from the many means the government has adopted to promulgate new rules and regulations that its actions and intentions are in line with the conception of the rule of law proposed by Raz. One such example is the FAQ page [5] on the government website that details the rules and regulations in plain English and in a manner accessible to an ordinary citizen. This serves a mutually beneficial function. On the one hand, citizens are able to clarify their doubts and inform their decisions such that they are not in breach of the law. On the other hand, the government is able to minimise the chances of citizens inadvertently breaching the law, thereby enabling the government to achieve its objective of curbing the spread of the virus and maintaining the health and safety of the citizens.
It is thus evident from the government’s actions that they have in mind an understanding of the rule of law as conceived by Raz and have acted in accordance and pursuit of the ideals he formalised.
Allan's View
Allan suggests a substantive conception of the rule of law that enables the courts to incorporate standards of morality and fairness into statutory interpretation. Allan’s justification for such a conception is grounded in a similar basis as that of Dicey – protecting citizens from the arbitrary will of those in power. Upon an analysis of both Dicey’s and Raz’s conceptions, it may be identified that the basis of their accounts is to respect human dignity and autonomy. This means treating citizens as persons capable of planning and plotting their future, which in turn demands that the rule of law ensures that certain measures are put in place to reduce the chances of an infringement on the autonomy of citizens.
On that basis, Allan extends the rule of law to encompass the protection of the liberties of citizens through the courts. It may be rationalised that such a conception is based on the understanding that Parliament legislates with the intention of respecting certain fundamental individual liberties unless expressly stated to the contrary. It thereby elevates the role of the courts to guard against the potential encroachment on individual rights by legislation from Parliament. [6]
It is on such a substantive account that criticisms based on individual autonomy against the government’s restrictions may find their footing in the doctrine of the rule of law. However, this is always subject to a test of proportionality. The competing notions of the health and safety of the country and the respect due to individual autonomy must be weighed against one another. What such a conception must contribute to the conversation surrounding the government’s rules and regulations is that the government has a duty to weigh the competing notions and explain clearly to its citizens the rationale behind its decisions, especially when it infringes on the individual’s right to freedom of movement and choice.
A substantive conception of the rule of law is thus best understood as a means to keep Parliament accountable in its promise to respect individual liberties. Until an individual brings a case to the court, it remains to be seen if the substantive conception of the rule of law has been applied in Singapore with respect to the government’s rules and regulations. Nevertheless, in the same spirit, there has been no shortage of academic and journalistic reviews of the government’s decisions. This serves the similar purpose of creating political pressure on the legislature and executive to behave in a manner consistent with respecting individual liberties.
In conclusion, upon analysis of the Singapore government’s actions, a formalistic conception of the rule of law appears to have been adhered to by the government. The substantive account, on the other hand, may not necessarily be readily observable at first glance, but the spirit of such a conception has nevertheless been observed through other means.
References:
[1] AV Dicey, An Introduction to the Study of the Law of the Constitution, Chapter 4.
[2] COVID-19 (Temporary Measures) (Control Order) Regulations 2020.
[3] COVID‑19 (Temporary Measures) Act 2020.
[4] Raz, ‘Rule of Law and its Virtue’ (1977) 93 LQR 195.
[5] Ministry of Health, ‘Answers from Ministry of Health’, <https://ask.gov.sg/agency/moh>, Accessed 12 February 2022.
[6] Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’, [1985] CLJ 111.