A Grotian moment? by Andy Ho

Source: The Straits Times
30 May 2008

A Grotian moment?

By Andy Ho, Senior Writer

IN MEDIAEVAL times, things – actions, entities, situations – were ‘right’ when they conformed with the law of nature. It was Dutch jurist Hugo Grotius (1583-1645) who changed that conception to our modern notion of rights as something that individuals owned because of some quality or power they possessed. Thus I have the right to freedom of thought because I have the power to think as I please.

Because individuals owned these rights, they could also give them away to the state in return for security. If states respected human rights and if they bound themselves to form an international society based on such norms, there would be world peace, Grotius argued.

His adult life was set against the Thirty Years War (1618-48) between Catholic and Protestant Europe. Hence his vision of and hopes for that world society. But what emerged after the 1648 Peace of Westphalia instead was a ‘realist’ order where the European states agreed to limit their exercise of power just to avoid war.

Grotius would have to wait three centuries to witness the Universal Declaration of Human Rights of 1948. Now, six decades later, a new world order based on those universal rights has yet to appear. However, there is a sense that a globalised civil society grounded in the notion of human rights is emerging, one that transcends borders and cultures. Could the present be a Grotian moment, some ask.

Singapore’s Law Society is launching an effort to raise awareness about human rights. Apart from the Constitution and existing statutes, we have two other sources of human rights: namely, treaties that Singapore is a party to and customary international law principles.

The Republic has signed the convention on child rights and those against genocide and gender discrimination. However, it is not a party to the convention against racial discrimination or the international covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR).

While treaties must be incorporated by a parliamentary Act before they become law here, the principles of customary public international law are automatically incorporated into Singapore law without any enabling Acts. (This is presumably because such principles reflect deeply embedded and widely supported values.) The Law Society believes some lawyers here are not aware of this source of rights and the remedies that their clients may be entitled to.

These principles must not be inconsistent with our domestic law. But some law academics have said our courts are too deferential to the executive and Parliament when it comes to incorporating international human rights law into constitutional law. Others say the former is cited only if it buttresses the latter.

In fact, most common law countries refrain from automatic incorporation. Britain’s Human Rights Act of 1998, for example, permits the courts – but does not require them – to review domestic law for compliance with the European Convention on Human Rights (ECHR). But Britain has passed no Act to incorporate the other human rights treaties it is party to, including the ICCPR and the ICESCR.

The US Supreme Court has only sporadically applied international treaty norms to its constitutional jurisprudence. In Stanford v Kentucky, 1989, where the question was what bail was deemed excessive constitutionally, the court said that ‘it is American standards of decency that are dispositive, (not) the practices of other nations…’

Incorporation remains controversial in Australia too. Only in Canada is incorporation accepted widely but whether it is mandated or discretionary remains unclear.

In practice, then, constitutional law trumps international law in most places, including Singapore. In a case involving the deregistration of the Jehovah’s Witnesses, Colin Chan v Public Prosecutor, 1994, the court said that the Constitution cannot be ‘overridden by the extraneous principles of other Constitutions’.

Why this generalised reluctance? Then-Chief Justice Yong Pung How said in 2003: ‘I am not concerned with international law. I am a poor humble servant of the law in Singapore. Little island.’

International human rights law may be culturally at cross-purposes with our social realities.

Historically, it took the experience of World War II for European constitutional systems to be undergirded by the doctrine of human rights. The United Nations began setting standards when the Declaration was adopted without dissent in 1948. Subsequent treaties have continued this process of setting standards.

Human rights non-governmental organisations, by allying themselves with medium powers like France and Canada, succeeded in getting strong human rights provisions written into the Statute of the International Criminal Court to compensate torture victims, for instance. Likewise, Amnesty International’s campaign against the death penalty led to three treaties being drafted – the ICCPR’s Second Protocol, the ECHR’s Sixth Protocol, and the Inter-American Protocol to Abolish the Death Penalty.

It goes without saying that where unelected foreign interest groups are involved, national sovereignty may be implicated. Thus each case must be taken on its own merits.

Another fear is about non-elected activist judges. Based on emerging trends in the British Commonwealth, the Court of Appeal in 1989 quashed an ISA detention order in Chng Suan Tze v Minister for Home Affairs. A constitutional amendment Bill was passed so the courts may no longer question detentions under the ISA.

Justifying the move, the Law Minister then noted that in reviewing executive decisions, British judges had adopted an ‘interventionist approach’, one based on concerns ‘totally unconnected with our country and our society’. If such interventionist approaches were permitted here, he added, they would lead to ‘a substitution of the judgment of the courts for the judgment of the Executive’. But must the Executive prevail in all cases?

Some experts have observed that, while Article 38 firmly ascribes lawmaking power to Parliament, who should conduct foreign affairs is left unspecified by the Constitution. But if it is assumed, as everyone does, that the Executive conducts foreign policy, then the Executive would be empowered to ascertain when and how Singapore consents to international treaties. If so, the judiciary should not invalidate laws if it finds them incompatible with international law – without consulting the Executive first.

Grotian or not, such nettles will come under scrutiny in a series of public lectures organised by the Law Society. This was kicked off last evening by NUS law professor Thio Li-Ann who outlined how human rights came about historically. Those interested should plan to attend her next two talks slated for June 30 and July 8.


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