Why the case must go to trial

July 31, 2006
Singapore Democrats

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Dr Chee Soon Juan and Ms Chee Siok Chin have applied for the courts not to allow Messrs Lee Kuan Yew and Lee Hsien Loong to proceed with their summary judgement as this would deprive the Defendants of a trial.

Lawyer Mr M Ravi argued in his submissions that under the Rules of the Supreme Court 1970, an application for summary judgment was barred or precluded in a claim by the plaintiff for, among other things, libel and slander.

This provision, discarded by the PAP Government, is retained by the Malaysian and Hong Kong courts. As Malaysia and Hong Kong are Asian jurisdictions with common origins of law as Singapore, it is important to note the disdain these courts have for summary judgements.

Hong Kong’s Court of Appeal noted:

“The court will rarely be able, on an application for summary judgment, to come to the conclusion that the necessary intent has been sufficiently established if the defendant has denied any such intent and has offered an innocent and credible explanation for his conduct…In many of them, the parties would have been better off to go on with the matter and get a final judgment at trial.” (emphasis added)

Malaysian Courts opined: “The procedure by way of application for summary judgment is not appropriate in cases which involve lengthy argument by counsel on difficult questions of fact and law.”

The Attorney-General (AG) will, however, counter-argue on 3 Aug that because trial by jury has been abolished in Singapore, summary judgements are not out of order. But Malaysia still maintains that Order 14 judgements should exclude defamation cases even though jury trials were abolished 11 years ago.

Public involvement in trials

Another point that Mr Ravi will canvass is that the hearing must take place in public and not in the judge’s chambers.

This is because in ensuring that the standards of justice remain uncompromised, the public must be allowed to be involved in trials, either through juries or, at the very least, as witnesses.

Judge Lord Atkinson stated that “in public trials it is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it public confidence and respect.”

Judge Lord Scarman added that the quality of justice dispensed is judged by the public: “Justice is done in public so that it may be discussed and criticised in public…so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.”

Even Malaysia respects the public more than in Singapore as it moves towards restoring jury trials. Its AG recently said: “People are more well-read, well-informed and competent in discussing current issues…I’m confident in the public’s ability to participate in our trials. To say, ‘we can’t believe or trust laymen’, no, that can’t be right.”

“As summary judgment is granted in chambers,” writes Mr Ravi in his submission, “without allowing for public attendance of the hearing, Singapore public’s involvement or participation in the decision-making process is curtailed to an even greater extent.  There is no reason to curtail Singapore public’s involvement or participation in the decision-making process to an extent greater than that in Malaysia.”

It seems that the Singapore Government thinks Singaporeans less mature and educated than the Malaysian Government does of its own people. Hearing the case in chambers on 3 Aug would hardly inspire public confidence and trust in the judicial process.

In fact the Halsbury’s Laws of Singapore states that “The public acts of public persons are certainly matters of public interest, such as a decision of magistrates, the attitudes of politicians, proceedings in court or Parliament …”

Natural justice and the right to call witnesses

Another point that must be noted is that the administration of justice can only be deemed competent and fair if rules of natural justice are observed. In 1981, Judge Lord Diplock said that the “fundamental rules of natural justice” form the bedrock of the administration of justice:

“In a constitution founded on the Westminster model and particularly in that part of it that purported to assure to all individual citizens the continued enjoyment to fundamental liberties or rights, references to ‘law’ in such contexts as ‘in accordance with law’, ‘equality before the law’, ‘protection of the law’, and the like, referred to a system of law which incorporated those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the ‘law’ to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords ‘protection’ for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by Article 5) of Articles 9(1) and 12(1) would be little better than a mockery.” (emphasis added)

So what constitutes “natural justice”? According to NUS Law Professor Val Winslow, natural justice would be denied if there is “failure to invite the defendant to make his defence or call witnesses” because “there was not merely a denial of a fair hearing but even a real likelihood of bias…”

Conclusion

In summary, the arguments for a public trial (as opposed to a summary judgement in the judge’s chambers) are:

– Public involvement and/or participation in trials is an integral part of the administration of justice .

– First-hand public scrutiny (as opposed to jaundiced media reports) provides litigants with the best assurance that their cases would be dealt with fairly and impartially.

– The litigants as well as the public are assured that the case is decided without any compromise in quality of justice and standard of administration of justice.

– Given that decisions have always been made in favour of PAP officials and against their political opponents, it is important to inspire public confidence and trust among Singaporeans in the administration of justice in Singapore.

– The litigants’ rights to call witnesses and test the other side’s evidence-in-chief by cross-examination.

The above are compelling arguments, the denial of which will be a travesty.

The full transcript of Mr Ravi’s submissions can be read here.