Shocking arguments made by the Lees

August 14, 2006
Singapore Democrats

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Judicial decisions made in other countries have no bearing in Singapore. This is the shocking argument that the Lees’ are making in their push for summary judgement which will be heard on Wednesday, 16 Aug 2006.

Realising that the law is stacked against them, the Lees in their desparation to avoid a public trial now state that the decisions in other common law jurisdictions “are decisions borne of the special circumstances in England, Australia and New Zealand and which have no relevance in Singapore.”

Are the Lees attempting to rewrite the principle upon which common law is derived and developed? For decades countries which have adopted the English system of jurisprudence have valued the decisions made by learned judges which lawyers refer to as “authority” and “precedence”.

Such guidance by past cases is still very much in practice today – yes, even in Singapore. This is because decisions by judges are scrutinised by their brethren judges and legal professionals all over the world, and the judicial wisdom derived from such scrutiny allows the law to develop into a mature tool.

But now the Lees say that all this is hogwash. What the rest of the world thinks doesn’t matter; this is Singapore – land of the strongman.

Summary judgement in the world

So what does common law state about summary judgement hearings in defamation suits?

Halsbury Laws of Malaysia maintains that “The procedure by way of application for summary judgement is not appropriate in cases which involve lengthy argument by counsel on difficult questions of fact and law.”

London Supreme Court Practice avers: “The court should not on Ord 14 [summary judgement] applications determine points of law which may take hours or even days and the citation of many authorities…”

Halsbury’s Laws of Hong Kong insists: “The procedure by way of application for summary judgement is not appropriate which involve lengthy argument by counsel on complicated issues…[and] for the resolution of complex issues or disputes arising out of conflicting professional opinions.”

In a nutshell, summary judgements are inappropriate where there are complex issues of fact and law.

This is what the Chees’ lawyer, Mr M Ravi, has submitted on and provided the authorities to buttress his argument. And what do the Lees say about this? “This is not the law in Singapore. On the contrary, it has been held in Singapore that an application for summary judgement will be entertained and judgement entered even if the issues of law to be determined are complex.”

But why, in the eyes of the world’s judiciaries, are complex issues not suited for summary judgement hearings? For the simple reason that that complex issues require witnesses, expert testimony and cross-examination of the various parties so that the judge can get a comprehensive picture of the entire matter (or one as close to it as possible) before rendering his judgement.

For example, the plaintiffs could have made assertions or false statements that need verification and refutation. A case in point was the PAP’s lawsuit against Mr Tang Liang Hong in 1997. Although it was MM Lee who had released the police report made by Mr Tang to the media, it was asserted that it was Mr Tang himself who had made public the report. This lie was uncovered and corrected only when Mr Goh Chok Tong was grilled by the defence counsel, the late George Carmen, in the witness box.

This is what natural justice is all about. Whether it is Singapore or Kalamazoo, the law of natural justice, which states that anyone accused of an offence must be given the right to defend him/herself in an public trial where witnesses are called and the accusers cross-examined, must apply.

And this is essentially what the Chees are asking for – that there be a trial where they can have the means to defend themselves.

But the Lees have said no, there can be no trial.

This much we know. It is the reasoning offered by the Lees that is shocking. They have not sought to argue that the present case is not complex but instead insist that even if the case is complex the judge can award the case to them without the help of witnesses and cross-examinations – and in the privacy of the judge’s chambers to boot.

The local media as a benchmark for judges

If you’re shaking your heads, hold on to your seats because it gets worse.

The Defence had cited two cases (one in Australia and another in New Zealand) where qualified privilege (the protection of comment especially under cases of special circumstances eg. journalists, whistleblowers, oppositionists, etc. ) were upheld by judges. Rejecting these as precedence, the Lees contend that it would be “completely inconsistent with the political construct and the well defined role of the media in Singapore for any of [the judges’ decisions] to be imported into this country.”

No, your eyes are not playing tricks on you. The Lees actually cited the local media as a yardstick on which Singapore’s judges must base their decisions. They went on to re-tell the lie that the media’s role in Singapore is “one which Singaporeans have come to accept as being appropriate for our purposes.” Ironically, it is such bald-faced assertions that need to be tested under cross-examination.

It may be argued, as dictators often do, that countries like Australia and New Zealand are too democratic and therefore – by some contortion of logic – erroneous. But the Lees even rejected the fact that Malaysia (whose political and media systems resemble Singapore’s) abides by some of these decisions: “The fact that the Malaysian courts appear to have adopted [some of these decisions] is completely irrelevant.” Anything, it seems, that pere et fils don’t agree with is irrelevant. This rejection of court rulings in Malaysia signals nothing but desperation.

Imagine this: If Mr T T Durai had cited this not-relevant-in Singapore proposition and successfully applied for summary judgement against the Straits Times, how would all the shenanigans in the NKF have been uncovered? It was only during the trial when Mr Durai was cross-examined by – and this is where it gets weird – Mr Davinder Singh (the Lees’ lawyer) that the decadence within the NKF was revealed.

Without the Straits Times being given a proper trial and the subsequent revelations by Mr Durai elicited during cross-examination, injustice of the highest order would have been committed. In such a scenario, the biggest losers would not have been the Straits Times but the people of Singapore.

Similarly without a public trial, how are the Chees going to cross-examine the Lees and call for witnesses to uncover crucial facts which may lead to an implosion and collapse of the Lees’ case, just as it happened with Durai’s? Again, without a trial, the biggest losers will not be the Chees but Singaporeans.

Mixing the political and the judicial systems

Legal experts and Queen’s Counsels that SDP spoke to were astounded that the Lees would even dare go for summary judgement. In fact there is so much dispute over law and fact that legal documents submitted by both sides are stacked feet high and whose pages run into the thousands (see photograph).

Yet, come Wednesday, the Lees are pressing the judge to make a decision without the benefit of witnesses and cross-examinations.

The Lees may argue that Singapore is Singapore and that we have our own (read: PAP) way of doing things. But that’s in the realm of politics where autocrats will say anything to justify their hold on power. But to apply this notion to the judicial system is another – and much more dangerous – matter altogether.

It has taken years for the judiciary to develop a legal system that is in sync with the rest of the world. To now negate everything by decreeing that “This is Singapore” is to turn back the clock and destroy the last vestiges of human decency in this country.

The crashing sound you hear is Singapore hitting rock-bottom. God help us.