On the rule of law - form vs. substance

The concept of the “rule of law” generally means that the law is above every person, and it applies equally to every person.

Whenever criticised about human rights issues in Singapore, the ruling PAP government likes to bring up mention that there is “rule of law” in Singapore. However, it must be noted that there is no precise definition for the expression “rule of law”, and its actual meaning varies with different people. So what the PAP government likely means when it talks about the “rule of law”, is a formal, positivist interpretation, i.e., there is a system of man-made laws which are enacted and carried out by the government.

But this is no big deal. Practically all countries today with functioning governments will possess the “rule of law” in this sense. As a matter of fact, some of the worst atrocities in human history were committed by Hitler’s Nazi government under legitimately enacted laws. Yet, after World War II ended, Hitler’s government was subsequently tried and convicted for crimes against humanity.

So, as seen, the formal view of the rule of law contains no requirements whatsoever as to the content of the law. There is no inherent or necessary connection between the validity of the law and ethics or morality, and critics have noted that such a system creates a ruling elite that has the power to manipulate through the law. It has thus been observed that consequently, the law cannot serve as an effective barrier to a government’s abuse of power because power structures in society, not the law itself, determine the outcome of legal issues and problems.

There is, however, another higher interpretation of the phrase, “rule of law”. This is known as the substantive interpretation, which holds that the rule of law intrinsically protects human rights. The concept of natural justice comes into play here, and whereas a formal, positivist view would claim that a law can be unjust without it being any less a law, a substantive, naturalist view would observe that there is something legally deficient about an unjust law. As mentioned, individual human rights (i.e., the basic rights and freedoms to which all humans are entitled, such as the right to life and liberty, freedom of expression, and equality before the law) are protected under a substantive rule of law system, and an unfair, oppressive or unjust law is in a sense regarded as no law at all.

To put it in the local context, for example, Article 14(b) of the Singapore Constitution provides that all citizens have the right to assemble peaceably and without arms. The right of peaceful assembly is generally considered to be an important civil right for citizens. There is a caveat to this right of peaceful assembly, and that is, parliament may impose such restrictions as it considers necessary or expedient in the interest of national security or public order.

The PAP government had, based on this caveat, enacted rigorous laws (in particular, the Public Order Act) to restrict the holding of public assemblies. One notable aspect of these restrictions is that the PAP government had delegated responsibility for public assemblies to the police, and any person wanting to hold a public assembly is required to obtain a police permit. Unfortunately for the opposition parties in Singapore, the police categorically outlawed all outdoor political events and will not ever grant public assembly permits for such purposes. This in essence deprives a group of citizens of their fundamental right to peaceful assembly. In this scenario, there is rule of law in the formal sense, whereby a government enacts certain laws and carries them out to the letter. But the question is, is there substantive application of the rule of law?

In order for the PAP government to truly address any criticisms of human rights transgressions, it must be able to demonstrate that Singapore has the rule of law not only in the formal sense, but also, in the substantive meaning of the phrase.

On medical leave and the employee

Medical leave is an employee benefit that is given in the form of paid leave which employees can use during periods of sickness. In most countries, there are statutory laws which provide for and protect the employee’s right to medical leave, especially for the rank-and-file employees who seldom possess the bargaining power to negotiate the terms of their employment.

The approach typically taken in Western countries, with regard to an employee taking medical leave, displays compassion and understanding. If an employee falls ill and requires rest for a couple of days, most companies will allow the employee to call in sick. There is no need for the employee to produce a medical certificate issued by a doctor in order to take short term medical leave. Only in cases of longer medical leave, e.g. four or more days, will medical certification be required. This approach is based on mutual trust and respect accorded between the employer and the employee. The underlying principle which companies adopt, is that the employee is regarded as a mature adult and is trusted not to abuse the benefit given to him or her. Equally, the employee appreciates the trust given, and does not abuse it.

The attitude adopted by the majority of companies in Singapore is markedly different. The employee is required to go to a doctor to obtain a medical certificate as proof of his or her sickness, even for just 1 day of rest. Otherwise, medical leave will not be granted, and the employee’s absence will be considered as unauthorised, with the consequences that the absence will be deducted from his or her annual leave or salary, and possibly, disciplinary action taken.

Why do employers in Singapore treat their employees in this way? Well, Singapore employers claim they are afraid that medical leave benefits will be abused, resulting in a loss of productivity at work.

But if we think about it, the prevailing system in Singapore doesn’t really do much to prevent the abuse of medical leave benefits. Most companies will concede that employees who are determined to use up all their medical leave, will do so anyway whether or not their employers require them to see a doctor and obtain medical certification.

Does abuse exist in the Western system? Yes, of course there are some individuals who will tend to abuse the trust given to them. However, these are isolated cases, and by and large, the majority of employees do not abuse the system.

Now, the cost of providing health care to employees in Singapore is expensive – according to one estimate, it costs between S$800 and S$1,400 annually per worker. The larger companies in Singapore usually procure group health insurance for their employees to cover their medical expenses. However, many small and medium businesses find such group health insurance plans expensive, and they typically choose to reimburse their employees’ medical expenses on a per occurrence basis instead. What Singapore employers may have failed to realise, is that there is actually a cost-saving benefit if an employer allows its employees to call in sick without obtaining medical certification, i.e., medical expenses will not be incurred. Of course, this is in no way advocating that companies should do away with medical certification requirements just to save costs. The principle is about treating the employee as an adult.

To minimise the abuse of medical leave benefits, it is submitted that companies may consider giving small monetary rewards to employees who achieve full attendance (i.e. no medical leave taken) during the work year. Such a gesture will recognise the employees' efforts, and also serve as an incentive for them to keep healthy.

Hopefully, we will someday see a mindset change among Singapore employers in this aspect.