As much as individual reputations need to be protected, a smooth flow of information is an essential component in any democratic society. This paper shows how the interpretation and use of libel laws in Singapore has led to a limitation to freedom of expression, which is itself an integral factor of information flow.
Damages paid out
On 30 September 1997, Opposition leader J. B. Jeyaratnam was found guilty of defaming the Prime Minister, Goh Chok Tong, at a Workers’ Party election rally on January 1 1997, when he told the crowd police reports had been filed against the PM and his PAP colleagues. He was ordered by Justice J. Rajendran to pay $20,000 in damages, plus legal fees, when the judgement was passed (Goh Chok Tong v Jeyaratnam Joshua Benjamin ). After a subsequent appeal, the damages awarded were increased five-fold, to $100,000.
In May the same year, Jeyaratnams Workers Party running mate during the elections, Tang Liang Hong was successfully sued by 11 PAP leaders for calling them liars and criminals during the General Election in January. He was to pay $5.825 million in damages, a record in Singapore courts (Lee Kuan Yew & Anor v Tang Liang Hong & Ors and other actions ). (1)
By any standards, these amounts are no small sums. The effect on Opposition politicians or political critics becomes clear: such is the amount of risk in speaking against the ruling party. This undoubtedly has a chilling effect on those with dissenting views.
The large sums could be justified if what the plaintiffs in the above cases said is truetheir moral character has been damaged and their ability to govern put in doubt. In each case, the other PAP leaders were hard-pressed to show how they have been hurt in any way with their higher voter turnover that election, but damages are awarded according to the weight of the reputation damaged, not the harm done. This brings to question the issue of balance. If the amount of damages are awarded according to the reputation of the plaintiff, do the amounts also become prohibitively huge so that it becomes a same-size risk that stifles any political debate?
It may create a situation where only those rich, and in power, can afford the costs to dare speak out. Worse, it might be so perverse that these same powerful people can take advantage of the situation and have an upper hand in exchanges, even in the process defaming others less likely to sue. In Chee Soon Juans spat with PAPs Mathiaas Yao in the Forum pages of Straits Times, the latter called Chee a liar and a snake, and challenged Chee to sue him for libel. Chee, stating that he did not have the financial means to fight a pitched court battle, declined to sue. In a letter to the South Morning China Post, Lim Siam Kim, Press Secretary to the Prime Minister, smugly said, “Dr Chee Soon Juan, Secretary General of the Singapore Democratic Party, was called a liar and invited to sue. He did not. In recent elections he lost badly. In Singapore, it pays for a leader to defend his reputation”. (2)
These points beg another questionare damages awarded in libel suits meant to compensate or punish? In the aforementioned cases, actual damage to reputation was hardly proven, and thus compensation for the damage difficult to assess. To the observer, the huge damages awarded might seem to be the cost of punishment, or even some form of preventive deterrence to speak out.
Presumption held by the courts
The PAPs leaders have often said they sue their political opponents for libel to preserve their integrity.(3) Yet, there have been criticism that the libel cases concerning PAP leaders have often been politically motivated. In a press release after its observation of the court proceedings, Amnesty International “questions why Jeyaretnam’s case was ever brought to court. The organisation believes that Singapore’s leaders are in fact resorting to defamation suits as a politically-motivated tactic to silence critical views and curb opposition activity.”(4)
If anything, there is an extra onus on the judiciary not to swiftly interpret the laws with presumptions in favour of the plaintiff, apart from the falsity of the defamatory comments. This is especially if the courts follow precedent cases and increase already hefty damages paid to the plaintiffs.
A noteworthy case here: when the appeal courts upped fivefold the damages awarded to PM Goh in his suit against Jeyaratnam in 1997, the judges made the observation that the initial verdict has not considered case precedents, such that $20,000 was “totally disconsonent with past awards, including those which might now be considered excessive.”(5)
In the same case (Goh Chok Tong v Jeyaratnam Joshua Benjamin ), presumptions were held strongly in favour of the plaintiff by the courts here. These including one that Jeyaratnam had first released news of Tangs report to the public, when in fact, PM Goh had authorised Senior Minister Lee Kuan Yew to disclose the police report. This fact he revealed only after he testified from the stand. It could be said that PM Goh has hurt his own reputation by communicating to a third party, and publicising the report himself. However, the judges hearing the appeal of the cases verdict concluded it was Jeyaratnam who told the public, and told it with malice.(6)
The argument is that the judiciary has readily, and rightly protected the reputations of individuals, and with presumptions favouring the plaintiff. This results in a chilling effect which Amnesty Internationals Co-ordinator for Singapore and Malaysia, Margaret John said, “have broader implications on political life in Singapore: the judgment is likely to inhibit freedom of expression and deter the peaceful expression of dissenting political opinion.”(7)
In addition, the chilling effect has also doubtlessly come from the courts interpretation of fair comment, one of the defences against libel. In a number of cases, it seems there is little leeway offered for what is considered “fair”.
In the suits arising from comments on purchases by Lee Kuan Yew and family of expensive properties from Hotel Property Ltd (HPL) in 1996, Tang was ordered to pay $1.05 million dollars in damages in part for suggesting corrupt practices.
On Asian Weekly Magazine (Yazhou Zhoukan), Tang had criticized these purchases, which were investigated by Finance Minister, Richard Hu, and the Deputy Director of the Monetary Authority of Singapore, Koh Beng Seng, on PM Gohs direction. He also suggested that they were no experts and the Corrupt Practices Investigation Bureau would be offer a more impartial investigation.
Regarding Lord Eshers comments on fairness: “The question which the jury must consider is thiswould any fair man, however prejudiced he may be, however, exaggerated his views, have said that which this criticism has said”, Tangs remarks would appear to pass the fairness test, considering the purchases were widely criticised by the public in Singapore.
In the case of the 11 PAP leaders against Tang, it can be argued that the defendant was expressing fair comment when he called the plaintiffs liars. They had, after all, called him a Chinese chauvinist, and anti-Christian, amongst other things. He being well-versed in other cultures, and having a daughter who is a Christian, his comments might be considered a fair retort aimed more at refuting the false accusations, than at defaming the speakers themselves.
These cases show the courts liberal interpretation of words which may incite hatred, ridicule and contempt. If this means that fair comment is a difficult plea in a libel case, the result would be stifled political discussion. Similarly, strict out-of-bound (OB) markers and “sacred cows”, i.e. topics which are sensitive to debate, would prevail. Libel laws, while protecting the reputation of individuals, no less politicians, should not be used to cast fear into and intimidate people who would want to engage in vigorous, but fair debates. The courts, in deciding damages in libel suits brought on by PAP leaders, invariably influence the public consensus on whether it is safe to speak out.
Government as public servants
The successful defamation actions the PAP government has initiated over the years over Opposition politicians and foreign magazines (8) have somewhat challenged the idea of its members roles as public servants. The PAP has continually said that it has the “serious men”(9) to do the job, but these same persons of integrity require their reputations to be protected. This argument runs against the principle that politicians, or government officials, should stand up to more scrutiny, considering the fact that they hold office. Similarly, if they build up a reputation that appears so costly to risk criticising, the truth may never be known about them if they later do not turn out to be of sound character.
In other words, while the consideration for the libel suits is the reputation of the individual, the same individual in power may perpetuate lies, untruths, and engage in corrupt practices, if the climate of fear is created such that criticism of this person is impossibly difficult to be communicated.
There have been suggestions of offering qualified privilege to politicians during election rallies to allow for mistakes in debating issues, but these will remain a mute point if what existing defences there are against financially costly libel suits are not given more weight in future cases.
1) The amount later was later reduced by the Appeals Courts in Tang Liang Hong v Lee Kuan Yew & Anor and other appeals .
2) SW: Pays to defend reputation. Singapore Window (1997). Available: http://www.singapore-window.org/1010scmp.htm
4) J B Jeyaretnam – the Use of Defamation Suits for Political Purposes. Amnesty International (1997). Available: http://www.amnesty.org/news/1997/33600497.htm
5) “Judge erred in three areas”, in The Straits Times July 18, 1998.
7) Amnesty studying Rajendran judgement. Singapore Window (1997). Available: http://www.singapore-window.org/0930ai.htm
8) Damages awarded. Singapore Window (1997). Available: http://www.singapore-window.org/damages.htm
9) “Serious Men vs Opportunists” in The Straits Times, 27 December 1996.
This article was first written for the CS403 Media Law, Ethics and Policy class.