ILLEGAL $$$ COLLECTED BY MND: WORKERS' PARTY "RULE-OF-LAW" VS PAP "RULE-BY-LAW" AND BAD TECHNOCRATIC MESSAGING

Bertha Henson 8 May 2026
"I wouldm't even mind a lecture on what should be in the law and what can be up to executive discretion or put as 'regulations' - if the G is inclined to give it. Or the AGC. Or the opposition. Or any lawyer."

Following an internal review, the government found that certain agencies of the Ministry of National Development (HDB, URA, NParks, BCA) have collected certain fees for decades which have not been anchored in legislation. Parliament passed a legislation to retroactively validate these collections. 

The government took a "rule-by-law" (legality) argument that the fees were charged in good faith, services were genuinely provided, costs were genuinely incurred, and the issue was more one of legal formality or technical basis rather than wrongful enrichment.

The opposition Workers' Party took the "rule-of-law" argument that if the fees lacked legislative authority, then on what basis were Singaporeans compelled to pay them? How can Parliament now extinguish possible claims retroactively without even quantifying the sums involved?

There are actually several things to be learnt here but as usual, netizens go for the jugular in their condemnation of the government focused on the theatrics. On the other hand it is increasingly apparent the establishment has exposed a weakness of no longer having the capacity to explain themselves satisfactorily to the public on various national issues.   
   
In the debate in Parliament, certain words were tossed around which has legal complications, and which added to some confusion. That prompted Bertha Henson to ask for a "lecture". I  sense the exasperation but don't presume to have an authority for the matter, but just sharing here my understanding.

Not every dollar must appear in an Act itself

A modern state cannot realistically function if every minor operational recovery requires a fresh Act of Parliament before an action can be taken. Agencies often need flexibility for emergency responses, storage costs, inspections, technical certifications, enforcement logistics, or some costs in a rapidly evolving operational situation. 

In practice, governments operate through a hierarchy:
- Parliament passes a parent statute.
- The statute delegates powers.
- Ministries/Agencies issue regulations, rules, orders, notifications, schedules of fees. These subsidiary legislation are officially gazetted.

All those fees are legally binding even though the government did not vote on every individual fee line item. This is extremely common practice in Singapore.   

A chain of delegated authority exists:

Parliament → Parent Act → Delegated Power → Subsidiary legislation → Fee collection.

Without delegation, modern states would grind to a halt. Imagine Parliament is needed to have a full legislative debate every time an animal quarantine charge is revised, or the gantry point CBD charge is increased. Our constitutional systems accept delegation, but with safeguards. 

The MND controversy arose because the chain was broken. One of the links in the chain may have been missing or defective. The problem appears to have been that for some fees either the delegated authority was insufficient, or the proper subsidiary legislation was never made, or the fee was implemented administratively without proper gazetting.

Subsidiary (subordinate) legislation vs Subsidiarity

These are two different ideas but I though it is interesting to our understanding here. 

Subsidiary legislation is a Commonwealth administrative law concept which means Parliament delegates limited rule making authority downward to ministers, agencies or stat boards. The delegated rules remain subordinate to parliament, the Parent Act. They are invalid if they exceed delegated powers.

An example is a personal battle of mine. The Constitution grants right of citizenship to a child born overseas if one of the parents is a Singaporean. There is administrative requirement to register the child for citizenship. But the ICA has its own criteria to approve the application. One of this is the economic contribution of the parent. This makes sense in the case of non-citizens making an application for citizenship. But applied against the child of a Singapore citizen, the subsidiary legislation of ICA has exceeded the authority of the highest law of the land, our Constitution.

Subsidiarity is a different concept originating mainly from Catholic social teaching, European constitutionalism and EU governance. It means decisions should be made at the lowest competent level possible. Local bodies handle local matters, central government intervenes only when necessary. The idea is to minimise centralisation, preserve local autonomy and keep power close to affected communities.  

The two ideas are almost opposite in direction. Subsidiary legislation is delegation downward (for efficiency), subsidiarity is restraint on central authority (for lower-level decision-making). 

In our case here, the deeper constitutional question is: If Parliament delegates power downward, must that delegated power itself remain strictly subordinate and constrained? The answer is YES. And this is absolutely the foundational principle of administrative law. Essentially the doctrine is delegated authorities cannot exceed the scope of powers delegated to them.

Discretionary powers and safeguards

The parent statute establishes the outer limits of authority, but delegation necessarily confers discretionary power within these bounds. Such delegated discretion must therefore be accompanied by clear safeguards, accountability mechanisms, and legal constraints to prevent arbitrary or improper exercise of power. Are there safeguards in this MND incident?

The primary legal check is the Parent Act itself:
The Act usually defines the purpose of the power, who may exercise it, the subject matter, procedural requirements, and sometimes limits or criteria. That wording already constraints discretion -- fees must relate to administration and NOT related to revenue raising.

The procedural requirements described in the Act:
The Act sometimes specifically spells out requirements for publication in gazette, consultation, written reasons, parliamentary tabling, licensing requirements and appeal mechanisms. These are checks because it creates transparency, create records and enables challenges. From the debates in Parliament, it seems the MNB debacle is in respect of procedural exceptions. However, given that all these arise from internal reviews and lacking in details, doubt lingers in the public domain.

Parliamentary oversight:
In some Westminster systems, subsidiary legislation must be tabled before Parliament which may anul it, committees may scrutinise delegated legislation. In the Singapore system, due to Parliamentary dominance of the ruling PAP, the Executive is generally given strong and practical control. Nevertheless, Parliament remains formally the ultimate source of authority.

Political accountability:
Ministers remain politically answerable to Parliamentary questions, debates, media scrutiny, elections, Attorney General's findings and public criticism. Political matters still matter. In the technocratic system of Singapore, reputational legitimacy is especially important because much governance rests on trust in administrative competence. Very unfortunately public trust has been eroding over recent years and the PAP seems to be failing to recognise it.

Judicial review:
A judicial review is the legal process where courts examine the actions of government bodies to ensure they are lawful, focusing on procedural fairness rather than the merits of the decision.

Doctrine of ultra vires

Ultra vires means "beyond the powers", refers to acts taken by a public body or corporation that exceed its legal authority. 

Courts' degree of scrutiny in a judicial review depends on four levels of ultra vires:
- Substantive ultra vires is where the agency had no power at all. Very strong scrutiny -- did the authority act outside powers granted by Parliament? Courts are generally willing to intervene here as this is protecting Parliament against Executive overreach.
- Procedural ultra vires is where power existed, but required procedures were not correctly followed. Strong to moderate scrutiny -- were mandatory legal procedures followed? Courts generally treat procedure seriously because this is what transforms power into lawful authority. But they distinguish between mandatory procedural defects vs merely technical or harmless irregularities. The MND case falls in this category. The question is, is it a defect touching on mandatory procedures or mere technicalities?
- Improper purpose. Careful but cautious scrutiny -- was the power used for wrong objective? This is very complex because the court must infer government motive, legislative purpose and administrative intent. The courts tread very cautiously because government often has mixed motives, policy objectives overlap, and judges avoid substituting political judgement. This is actually a difficult ground to prove. 
- Irrationality/unreasonableness. Most deferential --  was the decision absurd, arbitrary or disproportionate? The court will not overturn an admin decision merely because it disagrees with it or thinks it is unwise. Can the agency charge a fee and how much can it charge. This is the crux of discretionary power and the courts tread on whether it is a form of tax or cost recovery?
a. If it is basically a form of tax, it is not allowed unless there is a specific legislation. 
b. If it is cost recovery, on the question of the fairness of the quantum, the court defers to expertise of the Executive. The court intervenes only on grounds of "Wednesbury reasonableness", that is, the amount is so absurd that no person of a reasonable mind would have considered it rational. Eg a certification of $50 or $300 the courts wouldn't care whichever. But if it is $50,000 irrationality becomes the issue.

Validating Acts and retroactive legislation

After the parliamentary debate in April 2026 the government passed the Statutes (Miscellaneous Amendments) Bill. This is known as a "validating act" which is an act or legislation to retroactively make lawful actions that were previously invalid, illegal, or of doubtful legality.

The question is, can the government pass a retroactive act? 

Art 11 of our Constitution forbids retroactive criminal laws, with exceptions for acts of subversion under Art 149 (National security overrides everything). Retroactive application of laws is largely disallowed in civil matters, such as contempt proceedings, if it creates new liabilities.

In the case of civil law, there is a general common law presumption against retroactivity. But this presumption can be rebutted if the legislature’s intent to make a law retrospective is clear. In  ABU v Comptroller of Income Tax [2015] SGCA 4 the Court of Appeals confirmed that the presumption against retroactivity is a rule of statutory interpretation, not an "immutable rule" that restricts Parliament’s power to pass such laws. The government must make its intent very clear, and it must not be arbitrary and unfair.

In the case of administrative law, validating act is acceptable when it is curative or declaratory—meaning it fixes a technical mistake in how an existing policy was carried out. It should not be "unfair" -- creating a new liability when there was none before, or prejudices the right of an action taken earlier. To this extent, I believe the Statutes (Miscellaneous Amendments) Bill 2026 does have a clause that exempts those who have filed cases before this Act. 

Whilst on the issue of retroactivity. two cases are worth mentioning:

Li Shengwu v Attorney-General [2019] SGCA 20
Lee Kuan Yew's grandson was based in London. The AG served legal papers on him for a contempt of court case. At the time, Singapore’s procedural rules did not clearly allow the court to serve legal papers overseas. The Law Minister amended the law retroactively to allow service overseas. The court refused to allow the retroactive application of new procedural rules (specifically service out of jurisdiction) because doing so would have created a legal liability for the defendant that did not exist when the act occurred.

President Tharman and his directorship with WEF Trustees
In the 2023 election, there was some controversy over Tharman's candidacy. At the time he was a director in the World Economic Forum Trustees. He refused to give up the seat and was in non-compliance of our Constitution which forbids the president to hold any foreign appointment.  There was an online petition initiated for his disqualification. After the election which Tharman won, the government amended the law in November 2023 to allow the President to hold international appointments with retroactive effect to 14 September 2023, the date he was sworn in as president.

The primary justification for the constitutional amendment was to enable the President to advance Singapore’s national interest on the global stage without being restricted to only representing the government's official position. This is fascinating because it actually turned the rationale on its head since, in the first place, the reason why the Constitution forbade the President to make representation overseas in his private capacity was to protect national interest. A President should only officially represent the State overseas.

This "national interest" argument is a political-legitimacy argument, not a judicially measurable legal standard. There is no precise jurisprudential formula proving something enhances "Singapore's standing". This amendment is inherently contestable and political. 

The government may say international appointments enhance prestige and influence. But critics may say they create conflicts, compromise neutrality or blur constitutional roles. It is too bad Singapore's muted legal fraternity never got this into a broader debate.

Singapore's courts historically have shown substantial restraint in areas involving national policy, political judgement, foreign relations, and constitutional structure, unless a clear legal violation is shown.

To my mind, there was a clear legal violation for the retroactive amendment of the Constitution in 2023 because it unfairly prejudiced the positions of the other two presidential candidates Messrs Tan Kim Lian and Ng Kok Seng.

"Rule-by-law' (legality) vs "Rule-of-law"

The debate in Parliament on the MND fiasco is an argument about rule-by-law vs rule-of-law. This can be quite confusing so let me explain it in 3 different ways. They all mean the same thing:

* Legality is about authority: "Does the state have the power to do this?" Rule of Law is about justification: "Is this power being used in a way that respects human rights, equality, and fairness?"

* Legality or rule-by-law, refers to mere compliance with existing laws, while the rule-of-law is a broader, normative ideal demanding that laws are fair, transparent, and binding on everyone, including the government. 

* Legality is a procedural check (did we follow the rules?), while the rule of law is a moral and political check (are the rules themselves just and do they prevent the abuse of power?).

So, something that is legally right, can at the same time be wrong by rule-of-law. Just 3 examples will clear this:
The Population Registration Act of 1950, South Africa
This law legally classified people by race and restricted where they could live. Because these laws were passed by a valid parliament, they were "legal," but they violated the Rule of Law's core requirement of equality before the law.
Nuremberg Laws (1935) Hitler's Germany
These laws stripped Jewish people of their citizenship and basic rights. They were legally enacted and strictly followed by German judges, yet they represented the ultimate failure of the Rule of Law because they were discriminatory and lacked substantive justice.
POFMA (Protection from Online Falsehoods and Manipulation Act 2019) Singapore,
POFMA gives Ministers the power to issue correction notices or take-down orders for online statements they deem false and against the public interest. The government's actions under POFMA are legal so long as they follow the procedural requirements laid out in the Act. But others argue that giving Ministers (rather than an independent body) the initial power to decide what is "factually false" gives the executive too much discretionary power, which could lead to arbitrary use or a "chilling effect" on free speech.

History shows that legality is just a tool. It can be used to build a fair society (Rule of Law) or it can be used by a government to oppress people while claiming everything they do is "perfectly legal" (Rule by Law).

These two ideas frame the deeper philosophical tension behind the MND issue.

The government's position is rule-by-law in the technocratic-administrative sense. Parliament is sovereign, fees were substantively justified, services were genuinely rendered, the public interest favours continuity and certainty, and therefore retrospective validation is a legitimate corrective mechanism. This is a coherent constitutional position within a Westminster parliamentary system.  . 

An unsettled portion of the public, and the opposition members of parliament, emphasise rule-of-law values. They feel state power must trace clearly to lawful authority before money is collected, procedural chains matter, legality should not become retroactively adjustable, and the state should hold itself to the same standards imposed on citizens.  

The key philosophical concern, which is fundamentally a rule-of-law anxiety is -- if legality can always be repaired after discovery, does legality become too contingent on political convenience?

On the other hand, the public need to be realistic that pure rule-of-law absolutism is impossible. No system is perfect. There is always a "black swan event" waiting to happen in every system. A "black swan even" is a rare, unexpected event with major consequences that people only rationalise clearly after it happens.

In real governance, modern states delegate powers, make procedural mistakes, and require practical mechanisms to regularise defects. 

So constitutional systems must tolerate Validating Acts to some extent. The real debate then becomes -- what level of transparency, accountability, and restraint must accompany it to preserve rule-of-law legitimacy?

This is why reasonable people can look at the same MND facts and emphasise different things. One side sees pragmatic repair of technical defects. The other sees the state relaxing procedural rigor for itself after decades of non-compliance.

Neither is right nor wrong. Both are engaging in genuine constitutional principles. They are just weighing them differently.

"They don't even know how much they collected"

The government has consistently scored "F" in the way they manage fallouts form negative events. This MNB fiasco is no different.

The optic that remains in the public's mind is the Senior Parliamentary Secretary for MND, Dr Syed Harun Alhabsyi, rummaging for a full minute through his papers looking in vain for a number when he was asked how much has been collected over the decades. The Minister Chee Hong Tat had to intercede to explain the figures were not readily available because they dated back to independence1965.

The hook "they don't even know how much they collected" will forever be in the public's psyche the same way Singaporeans never forget for four decades how President Ong Teng Cheong was told in 1996 "it will take 56 man-years to compile a list and valuation of the physical assets of the government". Perception matters. To the public, this is arrogance in the face of incompetence.

"They don't even know how much they collected" is damaging because it cuts directly against Singapore's cultivated image of administrative precision, technocratic competence and data-driven governance. That's what we pay big bucks for. This hook becomes symbolic for "If the state can't quantify decades of collections, what exactly was being supervised?"

Perception matters enormously in our high-trust technocratic system. The government underestimates time and again, in a rules-based state, legitimacy comes not only from being competent, but from appearing accountable when competence fails.

There are several things that government could have done better in the MND fiasco.

In crises, absence of numbers often damages confidence more than imperfect numbers. When the government says they cannot determine a number, they create a vacuum.  Instead of a blank, people tend to tolerate better with estimates, ranges, or provisional figures. The government could have used numbers for the last ten or twenty years. Line numbers are easily available in computerised systems. Any number would have sounded more controlled than "we don't know".

The public often forgives errors more readily than perceived defensiveness. The government could have said following up that internal review they are conducting a whole-of-government audit of delegated fee regimes and subsidiary legislation. Better still if they say it will be an independent auditor-general or independent legal panel review which creates distance and credibility.

A retrospective validation feels one-sided. The state self-immunises while citizens absorb consequences. Full refunds are impractical and the fees/charges were genuine cost recovery,  but the government could have considered a limited refund window, some ex-gratia gestures, some waiver schemes, or hardship claims. These are not legal requirements, but the symbolic reprocity matters in rule-of-law legitimcay.

The government could have better explained the delegation legal chain more clearly, in ways surpassing my humble explainer here. Most people do not understand delegated legislation, gazetting defects, subsidiary legislation and procedural ultra vires. Without clear explanation, the public compresses everything into "they collected money illegally".  A simple constitutional narrative could have covered what exactly failed, why the fees/charges were lawful, why retrospective repair is necessary and what safeguards now exist. 

The government should tone down the use of "technicality" as their core defence. Although this may be legally accurate a description, politically it sounded dismissive when it affected public payments over decades. Would the state react the same way if I breached technical rules for decades? Words carry an emotional force in controversies.

Communication is the government's weakness. Singapore is built on technocratic and institutional trust, and in such systems, citizens subconsciously apply the standard that if the government asked us to trust their competence, therefore procedural failures matter more, not less. 

The MND fiasco is a debate in the legal dimension of rule-by-law vs rule-of-law, but it is the communication dimension that the government is found most wanting.

 

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