Normalising Authoritarianism: Authoritarian Rule of Law in Singapore and Hong Kong

Abstract

How does the reconfiguration of political norms animating rule of law in Singapore and Hong Kong normalise authoritarianism? Informed by Foucault’s interrogations of the compound, overlapping meanings and processes of “norm”, this chapter addresses this question. It traces the socio-legal power of normalising cultural scripts to argue that in Singapore and Hong Kong, the normalisation of authoritarianism is marked by a tension between domestic and transnational legal discourses. In authoritarian states, the rule of law is made to serve the consolidation of the state’s power over territories, discourses, and populations. However, borders are porous when it comes to rule-of-law discourses, requiring authoritarian states to engage in perpetual projects of normalising authoritarian rule of law so as to manage contestation.

Introduction

In formal legal-political terms, Singapore is a liberal democracy on the Westminster model. This is enshrined in Singapore’s founding legal texts: the Constitution and the Independence of Singapore Agreement. The Constitution declares itself to be “the supreme law of the Republic of Singapore” (Article 4) thereby explicitly “opposing political absolutism” (Thio, 2002: 1). Ideologically and administratively, the Constitution sets forth a Westminster-model separation of powers. The Independence of Singapore Agreement declares the nation “forever a sovereign democratic and independent nation, founded upon the principles of liberty and justice and ever seeking the welfare and happiness of her people in a more just and equal society”. However, despite these formal features, Singapore is characterised by “a comprehensive and systematic merging of state and party” (Rodan, 2005: 125), the re-making of democratic governance through the ruling party’s parliamentary dominance (Tan, 2019), and a judiciary that is distinctly statist in orientation (Jayasuriya, 1999; Worthington, 2001). Disaggregating the enmeshments of authoritarian politics and invocations of Westminster, Garry Rodan (2005: 110) writes,

Aspects of Westminster-style government such as accountability of ministers to parliament, a non-partisan public bureaucracy and the tolerance of a loyal opposition were all casualties in the …establishment of a virtual one-party state by the ruling People’s Action Party. Paradoxically though, appearances of at least some aspects of Westminster remain important to the ideological defence of the political system. In particular, notions that regular and free elections and the fundamental importance of constitutional processes prevail in Singapore are actively promoted by the ruling party and considered vital to its political legitimacy. Although neither substantively exists, continued insistence to the contrary by PAP leaders reflects ... the deliberate practice of trying to harness historically liberal institutions to authoritarian ends.

The state’s characterisation of Singapore as “democratic” evidences a normalisation of authoritarian rule of law, in that Singapore is marked by the coexistence of fundamental liberties as well as legislation that erodes these (Rajah, 2012; Tan, 2019; Thio, 2004). The Fundamental Liberties section of the Constitution (Part IV) imports liberal values by guaranteeing the freedoms of speech, assembly, association, movement, religion, and equality before the law. However, these constitutional promises are qualified in a range of ways, such that, generally, authoritarian norms prevail. In this chapter, I examine how authoritarianism is normalised through the reconfiguration of political norms animating rule of law. While my main focus is on Singapore, I also discuss recent developments in Hong Kong, which suggest that authoritarian rule of law as a political norm perfected by Singapore has in important respects been replicated by China.

Authoritarian Rule of Law: Unpacking an Oxymoron

What distinguishes “rule of law” from mere law or rules? As a socio-political concept, the beating heart of rule of law is law’s capacity to scrutinise and limit power.¹ If one meaning of “norm” is prescriptive in character, signifying an optimal model encoding ideals or values (Foucault, 2007: 58), then, as a political norm, the rule-of-law ideal signifies law which, in content and institutional arrangements, limits political power by preventing arbitrary and excessively discretionary exercises of authority (Clark, 1999: 30; Krygier, 2016: 204; Tamanaha, 2004: 114). Unsurprisingly, as a political ideal, rule of law is rooted in a history of guarding against unfettered monarchical power. More recently, liberal legalism has augmented rule of law’s wary distrust of power by layering the values of democracy and liberalism upon rule-of-law foundations (Loughlin, 2000: 198). As a sociolegal scholar, my commitment is to studying rule of law in relation to the specifics of texts, contexts, actors, and arenas. Attending to rule of law through situated, relational, and ethnographic attention, illuminates how rule of law, like other socio-political concepts, is subject to reconfigurations through processual, normalising dynamics (Cheesman, 2018). These dynamics illuminate the conjoined work of law and politics that may shift law further and further away from the orienting ideals of the rule of law.

Rule of law’s suspicion of untrammelled power becomes especially important when political power is authoritarian. Authoritarian politics is characterised by “a concentration of power and the obstruction of serious political competition with, or scrutiny of, that power” (Rodan, 2004: 1). Through a study of legal texts and contexts in the first fifty years of postcolonial Singapore’s formation, I have traced the reconfiguration of the profoundly liberal concept, “rule of law”, into the seeming oxymoron, “authoritarian rule of law” (Rajah, 2012). The texts and contexts conditioning authoritarian rule of law include legislation, Westminster institutions and procedures, colonial, Cold War, and postcolonial dynamics, public discourse, authoritarian politics, judicial interpretation, and an enduring, repeatedly revitalised, narrative of national vulnerability. A crucial pillar of authoritarian rule-of-law discourse is the celebration of British colonialism as having bestowed upon the postcolonial nation-state the legacy of rule of law (Rajah, 2012, 2014, 2017: 27–37). The Singapore government routinely claims “English law”, “British law”, “common law”, and “rule of law” as part of the genealogy of Singapore law (Rajah, 2012: 267–297). The intertextuality of language lends rich legitimising resonances to this claim of descent from English law, because histories of the rule of law regard England as “the acknowledged birthplace of liberalism and the bastion of the rule of law” (Tamanaha, 2004: 56).

Attending to the manner in which law and nation have been co-constituted through the socio-political fabric, my analysis unpacks the paradox of authoritarian rule of law: a regime that has systematically undercut rule-of-law freedoms has managed to be acclaimed as a rule-of-law exemplar (Rajah, 2012: 1–52 and 267–297). This undercutting of rule-of-law freedoms typically takes place through a strategic uncoupling of the form and substance of rule of law. Authoritarian rule of law scrupulously performs law as procedure, while dismantling civil and political rights, and substantive restraints on, and scrutiny of, state power. Analytic grappling with this disaggregation of rule-of-law substance and rule-of-law form owes much to Kanishka Jayasuriya’s compelling analysis of Singapore’s legal system (1999, 2001). Jayasuriya adopts Fraenkel’s concept of the Nazi dual state combining “the rational calculation demanded by the operation of the capitalist economy within the authoritarian shell of the state” (2001: 119) to argue that Singapore exemplifies a contemporary dual state in which “economic liberalism is enjoined to political illiberalism” (2001: 120). Jayasuriya points out that the British colonial emergency template for law—repressing civil and political rights while protecting business and commerce—provide the foundation for Singapore’s dual state legality (1999, 2001).

An important attribute of authoritarian rule of law is the amplification of the state’s discretionary power. The Singapore state has often turned to law to intimidate, criminalise, silence, and punish individuals, institutions, and arenas critical of the state. The state’s discursive strategy of conflating state, party, and nation (Rodan, 2005: 125) has been mobilised such that critics of the ruling party’s conduct of state power have often been accused of threatening Singapore’s security.² Up to the dying moments of the Cold War, critics were accused of being dangerous to the nation-state because they were “Communists” (Rajah, 2012: 161–254). And in the more than sixty years of People’s Action Party (PAP) rule, those who critique the state have often been accused of being part of shadowy foreign conspiracies designed to thwart Singapore’s prosperity, stability, and sovereign autonomy. I use the term “state” for the political state, acting through the agency of state institutions such as the executive, Parliament, and the bureaucracy. But I also flag the wider social presence of the state. In Singapore, there is a particular potency to the presence and power of the state because the PAP has been in power since 1959. Not only has the PAP been in continuous power, it has also been in almost absolute power. It is this history and politics of Singapore as a “virtual one-party state” (Rodan, 2005: 110) that makes it impossible to overstate the pervasive, dominant, and often domineering nature of state power in Singapore.

In a nutshell, two crucial dynamics underpin authoritarian rule of law. First, the uncoupling of the form and substance of rule of law, and second, law’s co-constitution with narratives of national exceptionalism. In the case of Singapore, these narratives insist upon Singapore’s exceptional territorial, existential, and socially conditioned, vulnerability (Hong & Huang, 2008; Rahim, 1998; Rajah, 2012: 20–37). In keeping with the colonial template for Emergency law, the postcolonial state’s narrative of national vulnerability authorises the all-seeing, all-knowing state to act pre-emptively and coercively, while suspending or attenuating civil and political rights (Rajah, 2012: 280–297).

A key feature of authoritarian rule of law is the manner in which rule of law has been reconfigured without substantially damaging the Singapore state’s national or international legitimacy. Indeed, Singapore is an exemplary instance of how “the political legitimacy of authoritarianism rests so heavily on economic growth” (Rodan, 2004: 2). An “outstanding economic success stor[y]” with prosperity largely achieved through an economy “heavily dependent on international capital investment” (Rodan, 2004: 1), Singapore has been characterised as a sophisticated authoritarian regime (Rodan, 2004). The sophistication of Singapore authoritarianism is marked by the “finesse” of “calibrated coercion, which represses challengers with minimum political cost” (George, 2007: 127). Managing coercion with minimal political cost, and with minimal erosion of national and international legitimacy, accounts for why a host of other regimes look to the Singapore model of law and politics (Ortmann & Thompson, 2014; Rajah, 2012: 5–6; Rodan, 2005; Slater, 2012). Of particular significance is the Chinese state’s decades-long attention to Singapore as a model for how an authoritarian state effects the canny management of law so as to secure political hegemony (Ortmann & Thompson, 2014; Rajah, 2012: 5–6).

The continuous decades of PAP rule have meant the ongoing normalisation of authoritarian rule of law. Normalisation, Foucault has argued, is a politically important, often invisible, and generative technology of power, whose attributes and operations are processual, disciplinary, and standard setting (Foucault, 2007). Normalisation works on the micro scale of individual bodies as well as on the macro scale of populations (Golder & Fitzpatrick, 2009: 20–21). Rather than reading “norm” as distinct from “law” (Kelly, 2019), I adopt the approach of Foucauldian legal scholars Ben Golder and Peter Fitzpatrick who argue that for Foucault, various technologies of power, such as disciplinary, pastoral, normalising, and legal power, co-exist in “symbiosis and mutual interaction”, expressing “the necessary relations between the law and the modalities of power outside it” (Golder & Fitzpatrick, 2009: 23).

The prescriptive, disciplinary character of the norm, and power’s capacity to exclude through the marker “abnormal”, are facets of normalising authoritarian rule of law that I explore in this chapter. I do so through a discussion of, first, Singapore’s POFMA legislation designed to police so called “fake news”, and, second, the 2020 National Security Law in Hong Kong. I suggest that a political norm for authoritarian rule of law perfected by Singapore is in important respects replicated by China.

Singapore Legislates Truth

On 8 May 2019, the Parliament of Singapore passed the controversial Protection from Online Falsehoods and Manipulation Act (POFMA). Popularly referred to as the “fake news law”, POFMA might be read as legislation designed to update the state’s control of the public sphere through a policing of messages on the internet and social media platforms. Critics speculated that the Protection from Online Falsehoods and Manipulation Act was timed to chill critique of the state, and of government ministers, in anticipation of the general election of 10 July 2020 (Jaipragas, 2019). Among the flurry of about thirty-five POFMA orders and directives issued between November 2019 and July 2020, all but five were directed at opposition politicians, civil society, and critics of government,³ evidencing “an apparently politicised enforcement of POFMA” (Schuldt, 2021: 362). As this chapter shows, the norms scripted by POFMA elevate the state’s unilateral and monologic determinations of “truth” above Constitutional protections for civil liberties relating to freedom of expression ↓ in the process re-making rule of law into authoritarian rule of law.

Sophisticated authoritarian regimes, Garry Rodan points out, harness information and analysis that is publicly available, as well as mass media, “to propagate their own messages and to promote economic objectives …[with] considerable selectivity” as to what will be tolerated in the public domain (2004: 1). Singapore’s sophisticated authoritarianism also harnesses electronic media, law, and public discourse about law (George, 2019a, 2019b; Rajah, 2012; Rodan, 2004). Cumulatively and intertextually, these discursive fields and platforms propagate state-constructed meanings and interpretations of key social categories. And while authoritarian rule of law claims to uphold the Westminster system and “the common law” as “inherited” from British colonialism (Rajah, 2012, 2017: 267–297), a pillar of authoritarian rule of law’s disproportionate command of public discourse on law rests on legislation that excludes or minimises judicial review (Rajah, 2012: 14–20). Courts, in short, are a diminished site of both law-making and of restraints on power. In authoritarian rule of law, Parliament and the executive become increasingly dominant spheres for commanding the articulation, social relations, and interpretations of law. Relatedly, the enactment of legislation becomes an arena for public pedagogy, instructing the public on the state’s unilateral determinations of the meanings of key terms, and of the parameters of permissible critique (Rajah, 2012).

As part of the processes through which authoritarian rule of law has been normalised, these moments of public pedagogy attached to law-making and meaning-making convey the state’s determinations of issues and social spheres that citizens, civil society, and a range of social actors must not trespass upon. Thus, for example, through the state’s insistence on a distinction between “law” and “politics”, the Law Society of Singapore’s powers were truncated, and certain lawyers were detained without trial (Rajah, 2012: 161–218). The state’s insistence on a distinction between “politics” and “religion” served a similar punitive disciplining of institutions and actors associated with religious organisations (Rajah, 2012: 219–258; Barr, 2010). When it comes to media too, law has been the tool of coercion and silencing, with the timing of legislation and detentions inevitably conditioning the media and public sphere before general elections are held (Rajah, 2012: 287; Rodan, 1998: 125). In short, authoritarian rule of law deploys the enactment of legislation to constrain judicial power and silence non-state actors while expanding the operations and scope of discretionary executive power (Rajah, 2012).

POFMA: Criminalising and Securitising Online Communications

The texture and dynamics of normalising authoritarian rule of law engineered through POFMA are best appreciated through a detailed consideration of the legislative text, and state discourse on the meanings and parameters of POFMA’s key provisions. POFMA illustrates how the authoritarian capture of law is articulated along a continuum, including coercive, pedagogical/pastoral, disciplinary, and sovereign-legal dimensions, as part of the project of normalising authoritarianism.

Protection from Online Falsehoods and Manipulation Act (POFMA), 2019

According to the Act’s statement of purpose, POFMA has been enacted

to prevent the electronic communication in Singapore of false statements of fact, to suppress support for and counteract the effects of such communication, to safeguard against the use of online accounts for such communication and for information manipulation, to enable measures to be taken to enhance transparency of online political advertisements, and for related matters.⁴

Importantly, the Act criminalises the electronic communication of false statements of facts: individual offenders can be fined or imprisoned, or both (s. 15). Fines for corporate offenders are higher, and POFMA lifts the corporate veil by specifying that evidence of the state of mind of an officer, employee, or agent of a corporation amounts to evidence of the corporation’s state of mind (s. 58). Classifying offences under POFMA as criminal is one clear way in which “fake news” is treated as an offence against public order. Significantly, POFMA also claims an expansive jurisdiction over people and actions both within and beyond Singapore. As long as a communication takes place within Singapore through the internet, MMS, or SMS (s. 3), POFMA applies, even if that communication originates outside Singapore. Section 7(1) sets out the key prohibition:

7.—(1) A person must not do any act in or outside Singapore in order to communicate in Singapore a statement knowing or having reason to believe that—

• (a) it is a false statement of fact; and

• (b) the communication of the statement in Singapore is likely to—

  • (i) be prejudicial to the security of Singapore or any part of Singapore;

  • (ii) be prejudicial to public health, public safety, public tranquillity or public finances;

  • (iii) be prejudicial to the friendly relations of Singapore with other countries;

  • (iv) influence the outcome of an election to the office of President, a general election of Members of Parliament, a by-election of a Member of Parliament, or a referendum;

  • (v) incite feelings of enmity, hatred or ill-will between different groups of persons; or

  • (vi) diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board

A scrutiny of this key provision discloses that POFMA criminalises and securitises “false statements of fact” by reproducing the language and logics of Article 14 of the Constitution, and five prior enactments—the Internal Security Act (sections 20 and 26), the Telecommunications Act (section 45(b)), the Penal Code (section 298), the Sedition Act (section 3(1)(a)), and the Public Order Act (sections 7(2)(h) read with 7(3)(b)). This existing legislation might easily have been amended to accommodate prohibitions against internet and social media “fake news”. Indeed, section 45 of the Telecommunications Act (criminalising the transmission of false messages), together with section 298 of the Penal Code (criminalising the wounding of racial or religious feeling), capture much of the content of POFMA’s section 7(1). But with POFMA, as with other enactments consolidating the state’s control over the public sphere (Rajah, 2012: 265), the very process of law-making has given the state an immediate and public platform for forcefully asserting its authority and its capacity to surveil, interpret, punish, and control.

Definitions and Discombobulations

POFMA defines a range of terms in ways that obstruct comprehension. If agreement on language is necessary to legal argument (White, 1984: 268), and if law is “a way of establishing meaning and constituting community in language (White, 1984: xi), then POFMA’s definitional discombobulations are a crucial subversion of both rule of law and of democracy. In this chapter, I limit my consideration of POFMA’s illegibility to POFMA-scripted meanings for “statement”, “fact”, “courts”, “law”, and “democracy”.

POFMA defines “statement” expansively to mean “any word (including abbreviation and initial), number, image (moving or otherwise), sound, symbol or other representation, or a combination of any of these” (s. 2(1)). In effect, POFMA remakes the meaning of “statement” away from the grammatical understanding denoting a sentence which is typically structured by a subject, followed by a verb, and possibly an object; and which is distinct from a question, a command, or an exclamation. Instead, POFMA’s definition of statement captures the far broader category “representation” with the counterintuitive result that sounds and symbols can themselves be true or false.⁵ The key category “false statement of fact” is defined in even more expansive and somewhat “tautological” terms (Bothwell, 2019),

• (a) a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact; and

• (b) a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears (s. 2(2)).

In the ordinary meaning of words, “a statement of fact” might be grasped as distinct from expressions of fiction, argument, analyses, theorising, opinion, or the advertising and spin generated by marketing, public relations, and advertising agencies. Indeed, when 83 academics worldwide signed a petition addressed to the Singapore Minister for Education, expressing concern that POFMA would have the unintended consequence of inhibiting scholarly research, the Singapore government replied that POFMA was not directed at research or opinion (Sharma, 2019). The state’s response relied on the ordinary meaning of “statement of fact” to distinguish between fact and opinion. But POFMA scripts a discombobulating universe of possibilities for “statement of fact” that includes a potentially fragmentary representation or evocation (s. 2(1)) that is “false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears” (s. 2(2)).

Under POFMA’s terms, a “statement of fact” is a representation that “a reasonable person … would consider to be a representation of fact” (s. 2(2)). Importantly, the provisions of POFMA colour the seeming neutrality of the standard legal trope of the “reasonable person” because any cabinet Minister is empowered to trigger a set of administrative orders that, in effect, render the state the editor-in-chief of all online communications. As long as a Minister deems a communication to be a “false statement of fact”, and “is of the opinion that it is in the public interest to issue the Direction”, a Minister “may instruct “the Competent Authority” to issue a direction requiring that communication to be corrected or stopped (s. 10).

Section 2(2) above read with some of the Act’s other provisions evidence how POFMA engineers a series of de-democratising moves. First, the separation of powers is undermined in that the policing and judicial attribute of deciding that online material constitutes a “false statement of fact” is, in the first instance, a determination to be made by any cabinet Minister (s. 10). In other words, in keeping with Jayasuriya’s analysis of postcolonial dual state legality (1999, 2001), POFMA amplifies executive discretion, an immediate violation of norms for the rule-of-law ideal. Appeals against a Correction Direction (s. 11), a Stop Communication Direction (s. 12) (directions that may be issued against individuals), and against directions issued to internet intermediaries (s. 21, 22, 23), must first be made to the Minister. Only thereafter may an appeal be made to the High Court (s. 17; s. 29). In short, in both first and second instances, the executive-political arm of state performs judicial-policing functions. Two basic rule-of-law principles—first, that an arbiter must be disinterested in the case at hand, and second, that governance must take place through the separation of powers—are thus immediately dismantled.

De-Democratisation

Despite such dismantling, the Singapore state has represented POFMA as consistent with ideal norms for the rule of law; namely, that laws should be enforced by ordinary courts rather than special tribunals or government discretion, and that rights should be enforceable through courts (Tamanaha, 2004: 63–65). Attending to the state’s representations of POFMA through its mediatised discourse, such as press statements, is important because legislative text is generally perceived as inaccessible in style and language. A press release is likely to reach a far wider audience than the actual text of the legislation.

In its press release, the Ministry of Law asserts,

The Courts will have the final say on what is false. Any decision by the Government on what is false can be overridden by the Courts on appeal. What is false is ultimately for the Courts to decide.⁶

However, the liberal imagining of a court empowered to hear a dispute in a disinterested manner is undermined, first by executive appropriations of judicial functions (s. 17; s. 29), and second, by POFMA’s legislative constraints on what the courts may and may not determine, as delimited by section 17(5):

The High Court may only set aside a Part 3 Direction on any of the following grounds on an appeal:

• (a) the person did not communicate in Singapore the subject statement;

• (b) the subject statement is not a statement of fact, or is a true statement of fact;

• (c) it is not technically possible to comply with the Direction. (s. 17(5))

As a political norm, rule of law understands courts as a limit on state power. Notionally, courts are powerful sites for securing liberal rule of law because they bear autonomy from executive power and are thus able to scrutinise it. However, since POFMA’s limits the grounds upon which courts may hear appeals against Directions, the courts function within the logics of dual state legality as “statist” (Jayasuriya, 1999) and as “a particularly effective weapon to depoliticise the society” (Jayasuriya, 2001: 121).

Rule-of-law ideals also understand courts as publicly accessible arenas structured by rules of procedure, principles of justice, and legal professional ethics. In this understanding, courts are a facet of the public sphere in which citizens and the public may witness the civil back-and-forth of contestation, and the deliberative processes through which counsel present arguments, witnesses testify, and judges listen, assess, intervene, and decide. However, POFMA’s procedural rules require that appeals against Correction Directions be heard in chambers. These hearings are not open to the public or to media (Kurohi, 2020). Thus, in the devilish detail of how courts hear appeals on Correction Directions, the statist and depoliticising logics of authoritarian rule of law prevails.

Confusingly, while sections 17 and 29 empower the subjects of POFMA Directions to appeal specifically to “the High Court”, section 60(2) states that “a District Court or a Magistrate’s Court has the jurisdiction to try any offense under this Act”. In the context of Singapore, the distinction between the High Court on the one hand, and the District and Magistrate’s courts is important because as Ross Worthington’s empirical study of Singapore’s judiciary shows, (at least up to 1999),⁷ Singapore courts have been “hegemonised”, with the lower judiciary in particular, “form[ing] part of the executive government” (Worthington, 2001: 490). Thus, the state’s insistent defence of POFMA as protecting free speech and democracy because “[w]hat is false is ultimately for the Courts to decide”,⁸ is yet another instance of the Singapore state amplifying executive prerogative while harnessing liberal institutions to authoritarian ends (Rodan, 2005: 110).

Remaking Meaning

Because meaning-making for new enactments takes place through definitions assigned by state actors both within and beyond parliament, it is important to read legislation through the primacy of legislative text as well as through the normalising cultural texts which contextualise the Act. On 1 April 2019, the day of POFMA’s first reading in Parliament, the Ministry of Law issued a press statement which included this description of the proposed Act, “The bill targets falsehoods not free speech. It will help ensure online falsehoods do not drown out authentic speech and ideas, and undermine democratic processes and society” Ministry of Law 2019).⁹ The press statement offers a valuable example of how state-determined definitional webs render law’s meaning-making processes almost univocal.

The statement is remarkable for two reasons. First, it departs from the hitherto standard trope of narrating Singapore exceptionalism to justify legislation eroding rule-of-law rights (Rajah, 2012). And second, it characterises Singapore as already possessing “democratic processes and society”. The rhetorical move of focusing attention on the contrast between “falsehoods” and “free speech” has the effect of burying—almost smuggling—this characterisation of Singapore as democratic.

POFMA also augments the contradictions and paradoxes of authoritarian rule of law through an expansive exclusion of the compound meanings of “law”, and of law’s close cousin, professional ethics:

It is not a defence to a charge under section 36, 37 or 38 that the accused is subject to any duty under any written law, any rule of law, any contract or any rule of professional conduct, that prevents the person from complying with that section or restricts the person in such compliance (s. 39(1)).

The sweeping exclusion of “any written law, any rule of law, any contract or any rule of professional conduct” are almost identically repeated in POFMA’s sections 42(2)(a), and 51(1). The meaning of these provisions is unclear; generating more confusion than clarity. Does “any rule of law” signify the concept and category “rule of law”? Does “any written law” signify even the Constitution? Does “any rule of professional conduct” signify legal professional ethics and journalists’ code of ethics? Do the terms of these exclusions render POFMA, rather than the Constitution and the rule of law, Singapore’s supreme law? These ambiguities seem to deny law’s compound, intertextual, and border-transcending meanings; meanings that speak to the “democracy”, “justice”, and “equality” exalted by Singapore’s founding legal texts. Given the considerable asymmetries of power that mark public discourse in Singapore, how is this press statement issued by the Ministry of Law to be understood? Available online, does the state’s claim that Singapore features “democratic processes and society” constitute a “statement of fact” within the purview of POFMA?

Theatres of Authoritarian Rule of Law

In January 2018, a Select Committee was appointed to look into the “serious challenge” of deliberate online falsehoods.¹⁰ In keeping with parliamentary practice, the Select Committee invited written representations from the public. By the closing date some six weeks later, 162 submissions had been received (Devadass, 2018).¹¹ This unusually large number of submissions indicates the degree to which the proposed new law ↓POFMA↓ was regarded with alarm by civil society. One submission was made by historian and civil society activist, PJ Thum. Thum characterised the PAP as having “historically spread ‘fake news’ for narrow party-political gain” and argued that what was needed was not more legislation to “suppress free speech” but instead “the education of Singaporeans to be more sceptical of all information” (Thum, 2018, 2019).

The March 2018 Select Committee Hearings on Deliberate Online Falsehoods must be contextualised with reference to the Singapore state’s practice, launched in 1986, of broadcasting Select Committee Hearings (Rajah, 2012: 180–218). In some broadcasts, viewers have witnessed the verbal aggression, incivility, and discursive domination exercised by the state towards non-state critics. In the 1986 Hearings, for example, the state used frequent interruptions, and selectively insisted that those appearing before it reply through the cross-examination modality of yes/no answers. This violated the substantive and open-ended engagement between state and citizen imagined for the Select Committee process of consultative law-making. In those 1986 Hearings, the state selectively discredited certain individuals by character assassination while strategically disregarding the content of their submissions. More than thirty years later, in the 2018 Select Committee Hearings on Deliberate Online Falsehoods, these techniques were revitalised and re-employed, this time against Thum (Lee & Lee, 2019: 87).

On 29 March 2018, the Committee questioned Thum for almost six hours¹² in a manner that has been characterised as a show trial (Jones, 2018). When Thum’s colleagues at Oxford’s Project Southeast Asia circulated an open letter deploring how, at the Hearings, “the Minister repeatedly expressed disdain for Dr. Thum’s research, rephrasing its findings in general terms that misrepresented it, and attempting to get Dr. Thum to agree to those rephrasings by attempting to force him to provide only yes/no answers”,¹³ the Singapore state responded by revitalising another well-rehearsed trope from the past: it accused Thum of “possibly being in cahoots with foreigners in an attempt to influence and subvert Singapore’s parliamentary processes” (Tham, 2018); an accusation rejected by one of the Oxford academics involved as “clearly preposterous” (Ng, 2018). This exchange between the state, Thum, and his Oxford colleagues, illustrates how rule-of-law discourses bear transnational, border-transcending resonances, particularly for the postcolonial territory. The inextricable intertextuality of language means that the project of normalising authoritarian rule of law must be an ongoing project, always repudiating critique from “enemies” imagined and real, domestic and foreign.

As a questioning citizen who has dared to challenge the state, Thum stands in for others: a cautionary tale. The Hearings served to teach a watching public, yet again, that the state has the overwhelming capacity to silence, attack, distort, discredit, disdain, and demonise those who question or critique it. In other words, the state demonstrated that, even as it positioned itself as democracy’s defender, this was a uniquely Singaporean version of democracy. For those living under the jurisdiction of POFMA—which includes anyone who generates an electronic communication disseminated within Singapore (s. 3)—this is a disciplinary project of meaning-making normalising authoritarian rule of law.

Hong Kong’s National Security Law: A Normative Borrowing from Singapore?

Since 1 July 1997, a unique constitutional arrangement—“one country, two systems”—has structured Hong Kong’s political and jurisdictional status (Ghai, 1999). On that date, Hong Kong—a Crown Colony from 1841 to 1997—became a Special Administrative Region of the People’s Republic of China. While there are important differences between the contemporary legal-political systems of Singapore and Hong Kong, important commonalities also exist. These commonalities arise in relation to notions and traditions of the rule of law, in tandem with legal education and practices attributable to British colonialism.¹⁴ Echoing the authoritarian rule of law playbook, amplifications of state power, attenuations in restraints upon political power, and the demonisation of critics as threats to the state, have in recent years become features also of the legal landscape of Hong Kong (Chan & Chen, 2020; Chan & de Londras, 2020; Tai & al., 2020).

Particularly alarming, and with far-reaching effects, is the controversial new National Security Law of June 2020.¹⁵ The Economist Intelligence Unit offers a succinct summary of the content and context of this law, and the stark erosion of the rule of law norm it entails:

The law provides the NPC (National People’s Congress, China’s legislature) standing committee rather than Hong Kong’s courts with powers of interpretation, in a departure from the practice for the Basic Law (Hong Kong’s mini-constitution). As expected, the law defines four crimes relating to secession, subversion, terrorism and collusion with foreign forces, with associated penalties. The wording of the crimes is linked to events during the 2019 protests. For example, attacking or damaging a government facility is an act of subversion, while sabotage of transport facilities for a political goal is classified as terrorism. Principal offenders convicted of these crimes face up to life imprisonment. The law creates a new central government agency in Hong Kong¹⁶ with powers to conduct national security investigations in certain (ambiguous) situations. These include ‘complex’ cases involving external forces and when a ‘major and imminent threat’ to national security has occurred. This undermines Hong Kong's judicial independence and will facilitate the transfer of cases into the mainland Chinese judicial system. The law's application to non-Hong Kong residents is another troubling aspect; those interpreted as advocating independence for Hong Kong while overseas, for example, could be prosecuted upon entering Hong Kong or mainland China (or countries with which they have extradition treaties). (Economist Intelligence Unit, 2020)

These provisions are parallel to authoritarian rule of law in Singapore, which has similarly consistently featured departures from Constitutional guarantees of fundamental liberties; legislative enactments that are simultaneously expansive in reach and ambiguous in terminology; an executive-political dominance for interpreting law; and a re-semanticisation of key terms that serves the state’s disproportionate command of politics (Rajah, 2012). It seems probable that, just as the PAP-state turned to the logics of legal exceptionalism through the Internal Security Act in the founding moments of its rule (Rajah, 2012: 13–20), so too the 2020 National Security Law is establishing a coercive template for law and politics; a template that legitimises and authorises the silencing, criminalising, and demonising of critics. The 2020 National Security Law is a key text for normalising authoritarian rule of law.

The central terms of Hong Kong’s new authoritarian legislation—security, secession, subversion, terrorism, and collusion with foreign forces—are heavily freighted with ideological meanings. The National Security Law prevents contestation by imposing the state’s meanings and awarding powers of interpretation and enforcement to non-judicial and state-aligned institutions (Economist Intelligence Unit, 2020). Just as dominant meanings for “terrorism” and “security” in our post-9/11 world are categories imbued with acquiescence to the “globalised order of racial violence that the national security state aims to protect” (Li, 2020: 26), so too “secession”, “subversion”, and “collusion with foreign forces” are terms designed to delegitimise and demonise citizens who critique the state.

As noted above, a crucial feature of authoritarian rule of law is the amplification of state discretionary powers in tandem with the erosion of public, judicial fora for scrutinising and constraining such powers. In keeping with this dynamic, seemingly straightforward bureaucratic processes conducted by the Electoral Affairs Commission (EAC) have prevented aspiring candidates from participating in elections. The EAC is a statutory body that invokes rule-of-law principles by describing itself as “independent” and as adhering to “fair, open and honest principles, … in strict compliance with the law”.¹⁷ The EAC has however become an ideological gatekeeper for Hong Kong politics by requiring potential candidates to sign a declaration pledging allegiance,¹⁸ adopting a distinctly statist interpretation of Article 6 of the National Security Law, which stipulates,

A resident of the [Hong Kong Special Administrative] Region who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China in accordance with the law.¹⁹

The EAC barred pro-democracy and pro-autonomy candidates from competing in the announced 2020 Legislative Council elections (Cheung et al., 2020). When those elections were finally conducted in December 2021, they took place “under Beijing’s “patriots-only” political overhaul, with the pro-establishment bloc sweeping all but one seat in the 90-strong Legislative Council amid a record low turnout.²⁰

The National Security Law has shown itself to be a law with seemingly boundless jurisdiction (Craymer, 2020a; Wintour, 2020), rapidly weaponised to target critics of the state (Mahtani, 2020; Silver, 2020). The law has been critiqued as a Beijing imposition undermining the Basic Law, without any Hong Kong participation (Economist Intelligence Unit, 2020). However, the Hong Kong state discourse insists that deliberative and consultative processes observant of the Basic Law preceded the National Security Law’s application to Hong Kong. as exemplified by this EAC press statement:

June 30 this year, the Standing Committee of the National People’s Congress (NPCSC) passed “The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (the National Security Law) and listed the legislation in Annex III to the Basic Law after consulting the NPCSC’s Committee for the Basic Law of the Hong Kong Special Administrative Region and the Government of the Hong Kong Special Administrative Region as required under Article 18 of the Basic Law.²¹

So-called “consultation”, disregarding asymmetries of power, limited to exchanges among state actors, and behind closed doors; effectively excluding deliberative public processes and engagements, has also been a feature of authoritarian rule of law in Singapore (Rajah, 2012: 161–215). In insisting “consultation” has taken place in accordance with the Basic Law, the EAC’s statement is consistent with authoritarian rule of law in that rule-of-law procedures may be gesturally and publicly performed as political theatre; a façade of rule of law accompanying authoritarian politics’ stripping of law’s robust and muscular capacity to actually and substantively limit power.

A further notable example of the normalisation of authoritarian rule of law in Hong Kong is the dismissal of Hong Kong University’s Associate Professor of Law, Benny Tai (Craymer, 2020b). A tenured faculty member engaging in political activity deemed legitimate within a rule-of-law framework, Tai was one of the progenitors of the 2014 Occupy Central Movement. In July 2020, Tai was dismissed against the recommendation of the University Senate (Craymer, 2020b; Tai et al., 2020). Tai’s dismissal, alongside his criminalisation and imprisonment, recalls the precarious nature of academic freedom experienced by Singapore academics (Teo, 2019), as well as the Singapore state’s uses of authoritarian rule of law against those academics it has deemed threats (Rajah, 2012), including the targeting of scholar-activist, PJ Thum.

Conclusion

Four years after Hong Kong’s Occupy Central Movement was launched in 2014, compelling the world’s attention, the trial of the Movement’s nine leaders came to a close in December 2018. Among those “charged with various public order, conspiracy and incitement offences at common law” (Tai et al., 2020), was Associate Professor of Law, Benny Tai. Tai was found guilty and sentenced to 16 months imprisonment. In his closing submissions to the Court, Tai cited legal precedent authorising civil disobedience. He also quoted canonical, transnational authorities on rule of law, and civil disobedience, including John Rawls, Lord Hoffman, and civil rights leader, Reverend Dr. Martin Luther King Jr. Through his invocations of law, democracy, justice, and rights, Tai’s words, beliefs, and actions span decades, oceans, and continents to connect Occupy Central to Black Lives Matter and to all movements across time and place which seek to thoughtfully, lawfully, and peacefully, advance democracy and the rule of law in the face of instrumental, authoritarian, deployments of law to oppress, silence, and foster injustice. It is the impossibility of eliminating discursive assertions of ideal norms for the rule of law that necessitate the ongoing efforts of authoritarian states, discussed in this chapter, to normalise authoritarian rule of law.