On April 4, 2003, Singaporean opposition leader and labor activist Dr. Chee Soon Juan lost his appeal in a defamation case that has been ongoing since 2001. He was appealing a judgment finding him liable for defaming Prime Minister Goh Chok Tong and former Prime Minister Lee Kuan Yew. The complaint brought by these officials related to remarks made by Dr. Chee during a national election campaign while he was advocating for a compensation package for laid off workers.
The Lawyers Committee sent international observers to the appeal hearing in the Singapore High Court in February 2003. These observers concluded that pre-trial and trial procedures in this case failed to meet international standards guaranteeing the right to a fair hearing. In addition, they note that the suit reinforces a long-standing pattern of government acts denying Dr. Chee full protection for the right to freedom of expression.
Below is an extract of the report.
A number of serious deficiencies marred the hearing before Justice Rubin on February 7, 2003. First and fundamentally there was the inequality of the courtroom battle between leading counsel and his team on the one side, and the unrepresented litigant on the other.
When it comes to issues such as the law on duress, how one applies the legal tests of defamation to a particular case, and what is needed as a matter of fact and of law to answer a claim for summary judgment, the unrepresented litigant is plainly at a manifest and unanswerable disadvantage. The Human Rights Committee, which monitors and authoritatively interprets the International Covenant on Civil and Political Rights, considers legal representation to be fundamental to a fair trial (as mentioned above). Indeed, it specifies that such representation should include in-person communication.
To suggest, as Justice [MPH] Rubin has in his judgment and did at the hearing, that an opportunity could be given (and was given) to Dr. Chee to consult on questions of legal argument is wholly beside the point. In fact, the only advice that Dr. Chee had received from foreign counsel for some months before the hearing was advice by email from Mr. Littlemore. In any event, no amount of long distance consultation with a lawyer, thousands of kilometers away in a different country, could compensate for the lack of legal representation from which Dr. Chee suffered. Court hearings are dynamic events; the variables move and change as the hearing unfolds. A layperson representing himself or herself, is at a stark disadvantage in even seeking to convey to an absent lawyer what was happening in court, what it was that concerned the judge, or where the case seemed to be going or what were the strengths of the opponents case, and how the judge appeared to perceive matters.
An example of the kind of difficulty, even on factual matters, faced by the litigant in person arose at the hearing. Dr. Chee said to the Court that the Senior Assistant Registrar, at the original hearing, was nit-picking, looking for contradictions (in Dr. Chees testimony) where none existed. The judge rebuked Dr. Chee for this comment, saying that Dr. Chee should confine himself to criticizing the judgment and, if the Senior Assistant Registrar was wrong, do not use the word nit-picking but, if the judgment was wrong, highlight the portion before me. The close analysis of judgments and the cogent presentation of argument dealing with factual issues are skills which rest at the heart of the training and experience of an appellate advocate and cannot reasonably be expected from a lay person.
It is well recognized in common law jurisdictions, such as Singapore, that unrepresented litigants pose a particular problem to the courts, and that the courts should always be ready to protect them. This can be done in a number of ways. The judge can, himself or herself, raise the kinds of issues and questions that the unrepresented party should be raising with the represented side. In addition, the more unequal the representation, the more testing the issues either as to legal or factual complexity, or the more grave the consequences to the unrepresented side should he be unsuccessful (as by an award of damages, possible bankruptcy, and professional disqualification), the more careful the judge should be. It would seem that the Courts sensitivities and concerns for the position of an unrepresented litigant would be heightened when the proceedings in question are brought by the present and former head of the government of the day, the two most powerful figures in the State. Furthermore, it is common practice in many common law jurisdictions for a court, when it feels the interests of justice so require, to ask for the appointment of amicus curiae (a friend of the court) to help an unrepresented party to put his or her arguments.
Secondly, the Lawyers Committee believes that an impartial observer could form the opinion that Justice Rubins conduct was influenced by bias for the plaintiffs and against the defendant. On the issue of Mr. Singhs statement about the panoply of eminent defamation Q.C.s available to Dr. Chee, and that Dr. Chees own Q.C.s recognized that his appeal was completely hopeless, it is surprising that this kind of submission could be put to the Court without the Court raising some firm and direct questions. These questions would go to the identity of the defamation experts allegedly assisting Dr. Chee, the basis upon which Mr. Singh believed that this advice was being received, and exactly why the absence of submissions (as asserted by Mr. Singh) should lead the Court to conclude that Dr. Chees own legal advisers thought the case to be hopeless. None of these questions were raised by Justice Rubin. Mr. Singhs submission appears calculated to leave the impression that this kind of legal backup was in fact available to Dr. Chee, so that his lack of representation before the Court was not as problematic as it might appear.
The absence of questioning by Justice Rubin on this point appears to demonstrate that Mr. Singhs strategy may have been successful. Neither at the hearing, on February 7, nor in the course of his judgment, did Justice Rubin display the least concern that Dr. Chee was unrepresented. The Lawyers Committee considers that this apparent lack of concern, coupled with the considerable latitude extended to Mr. Singh in his submissions to the Court, resulted in manifest unfairness in the course of the hearing and, specifically, the denial to Dr. Chee of a fair hearing that met the international norms to which we have referred.
Thirdly, it is troubling that Dr. Chee never was granted an opportunity to argue the merits of his defense or to bring witnesses to support his case in a public venue. As stated above, the Lawyers Committee considers that there appear to be triable issues in this matter, such as whether or not the words spoken by Dr. Chee were defamatory and whether there was pressure brought to bear on Dr. Chee that should render his apology and admission void for duress. The questions Dr. Chee raised during his election campaign, which were the subject of the suit against him, were undoubtedly a matter of public importance. The prudence of government-led defamation actions against the political opposition is also an appropriate matter for public scrutiny and debate. The significance of the issues raised in this case and the public profile of the parties are such that the appeal judges decision to uphold summary judgment not only infringes Dr. Chees right to a public hearing on the charges against him, but hampers public access to the administration of justice.
Finally, the Lawyers Committee is concerned by the deleterious impact of this suit on freedom of expression in Singapore. Dr. Chees political career, pursued by him at great personal cost as his history shows, may be nearing its end. Dr. Chee has indicated to trial observers that he wishes to appeal against Justice Rubins judgment but lacks funds to meet the S$10,000 deposit for security for costs required to file an application in the Court of Appeal. Damages and aggravated damages are to be assessed against him and, in light of the levels of damages set in past defamation actions brought by P.A.P. plaintiffs, the awards will likely be substantial. Dr. Chee has told trial observers that he would not be able to meet defamation awards of any magnitude. The probable outcome is therefore that Dr. Chee will be made bankrupt and remain disqualified from political life. The fact that this bankruptcy and bar on political activities will be based on a lawsuit heard and adjudicated upon in a judicial officers private chambers, to which there was no public access, serves only to underline the powers of the ruling party to curb popular debate.
The Lawyers Committee recommends that the following measures be taken by the Singaporean authorities:
– Judgment should be vacated in the two suits against Dr. Chee Soon Juan and he should be given the opportunity to challenge the merits of the claims against him in a public, civil trial with adequate legal representation;
– Singapore law should be amended so as to allow jury trials in defamation suits. A jury system ensures the independence of the judicial system by creating distance between the executive and the courts. This change should apply to the present suits;
– Applications for summary judgment in defamation suits should be heard in open court;
– Section 14 of Singapores Defamation Act should be amended to allow for a wide-ranging defense of qualified privilege for statements made in the course of political debate;
– Section 21 of Singapores Legal Profession Act, which contains the rules relating to the ad hoc admission of foreign Queens Counsel, should be amended so as to create a prima facie presumption that in defamation proceedings such admission is warranted;
– The Public Entertainments and Meetings Act should be repealed or substantially amended so as to allow public meetings without permission subject only to bona fide and serious concerns about such matters as public safety. The onus to establish such concerns should lie on the police or other appropriate public body. In case of dispute, an appeal should lie to an independent judicial officer;
– Article 45 of the Constitution of Singapore, which sets out the criteria for disqualification of Members of Parliament, should be amended so as to limit disqualification of Members of Parliament who are convicted of criminal offenses to only those convictions which carry a penalty of imprisonment for one year or longer.
For the full report of the trial observation, the Singapore Governments response to the report, and the Lawyers Committees reply to the Singapore Government, please go to: