Analysing Thio’s comment on UDHR and Singapore Public Law – there is no ‘creeping influence’

10 Apr

In Thio Li- Ann’s ‘Reading Rights Rightly: The UDHR and its creeping influence on the development of Singapore Public Law’, the writer surmised that there is a ‘creeping influence’ of international human rights norms, in particular, the UDHR on Singapore courts (2008).

Using the various cases such as Re Gavin Millar Q.C. and Nguyen Tuong Van v. PP, she argued that the Singapore courts are increasingly taking into consideration  international human rights norms.

In Nguyen Tuong Van v. PP, the High Court accepted article 36 (1) of the Vienna Convention on Consular Relations (‘VCCR’) (1963)  which Singapore was not a party to (p. 280). This, in her opinion, meant that the Singapore courts are susceptible to accepting Customary International Law (CIL). Nevertheless, the acceptance of that article does not constitute an acceptance of a human rights norm because the treaty by itself does not belong to the human rights regime. More importantly, this is not explicitly a human rights norm per se.

She then went on to state that the counsel invoked article 5 of the UDHR – that ‘no one shall be subject to torture or to cruel or inhuman or degrading treatment or punishment’ to no effect with the Court of Appeal as this was not a universally agreed CIL (citing the examples of US retentionist policy on death penalty and the equal number of abolitonist and retentionist states).

In Re Gavin Millar Q.C., the defendants are Hong Kong-based Review Publishing Company (also the publisher of the Far East Economic Review) which has been sued for publishing an alleged defamatory article on the Singapore’s Prime Minister and Minister Mentor. As the company could not find any defense lawyers ‘to their satisfaction’, they argued that they should be ‘entitled to be represented by a Queen’s Counsel (‘Q.C.’)’, in this case,  Mr. Gavin James Millar (p. 275). Article 10 of the UDHR was used as an argument by the defense. They argued that ‘allowing the admission of a Q.C. was necessary to satisfy the principle of equality of arms, which was “a fundamental part of any fair trial guarantee.” (p. 276). The defendants also invoked article 19 of the UDHR which protects freedom of expression. The invoked UDHR article 10 was rejected (p. 288) and the Singapore Courts ruled in favour of the plaintiffs. Thio further commented it appears Singapore courts follow the British in which local laws override an applicable CIL (p.289) though the situation remains unclear.

In her conclusion, she optimistically forsees a more accepting Singapore judiciary, thereby increasing the ‘possibility of incorporating human rights provisions in national law, as a basis for expanding existing rights as these evolve, or for grounding implied rights’. She also argued that the application of UDHR ‘is likely to relate primarily to civil and political rights, as the Singapore Constitution does not contain socio-economic rights’.

The inconsistency of her hypothesis and analysis is glaring. She has been unable to provide a single instance whereby the invocation of a UDHR article was successfully considered by the judges.

In addition, she should also be aware that the UDHR, as a ‘Declaration’ is not legally binding on any states, in except as so far, merely signals a written promise of a State to work towards these goals or guides.

In that sense, a more adequate analysis of the influence of the human rights regime on Singapore’s domestic laws should perhaps start or focus on the International Convenant on Civil and Political Rights (ICCPR), of which the city state is not a signatory of. This analysis may include the reasons why the government continues not to accede to the treaty, its protocol and other human rights conventions, revealing its static resistance to a worldwide growing acceptance of the human rights language.

There is no creeping influence of UDHR nor any other human rights international laws into Singapore’s statutes or courts however much Thio might have want us to believe.

– Work Cited –

Thio, L. Ann 2008, ‘Reading Rights Rightly: The UDHR and its creeping influence on the development of Singapore Public Law’, Singapore Journal of Legal Studies, pp. 264 – 291.

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