CSJ’s closing submissions for contempt of judiciary, 2006

March 16, 2006
Singapore Democrats

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Chee Soon Juan

As the AG has preferred a charge against me, I believe I am entitled to a trial where I can call witnesses to demonstrate the truth of my statements and to document with precision how the courts in Singapore have been used by the PAP Government to maintain its chokehold on the country.

I have said before I will not run away. I am here to face my accuser and the very people whom I have criticised. I am here to speak the truth, whatever the consequences may bring.

If you are going to charge me for contempt of court, at least have the decency to allow me the opportunity to defend myself. There is nothing honorable in a fight wherein you bind and incapacitate your opponent.

Defamation without trial

This hearing has it roots from the defamation suits that Mr Lee Kuan Yew and Mr Goh Chok Tong took against me in 2001.

In my applications I had indicated to the courts that I needed the services of Queen’s Counsels (QC) as no Singaporeans would take up my case. I am not alone in this predicament.

Mr Tang Liang Hong also had great difficult in finding local representation when he was fighting his own defamation suits with the PAP. Mr J B Jeyaretnam experienced a similar plight, saying “No lawyer in Singapore wants to do political cases. It’s a very sad commentary. Lawyers here are too scared for their own livelihood.”

Mr Charles Gray QC who had represented Mr Tang in 1997 said in his submission to the court of appeal that it was “no credit on the legal community that Tang had been unable to find any lawyer (apart from Mr Jeyaretnam himself and, briefly, Mr Peter Low) willing to represent him.”

It is a telling indictment of the legal and judicial systems in Singapore when Singaporean lawyers fear doing what they have been trained to do and sworn to uphold – justice and the rule of law. The judiciary must ask itself how and why Singaporean lawyers are afraid to take up such cases when foreigners are not.

I was told by the courts that my case wasn’t complex enough to warrant my engaging a QC. The funny thing was that my opponents had solicited the services of Mr Davinder Singh, Senior Counsel which I understand is the Singapore version of a Queen’s Counsel. Mr Singh, whom I am sure you are aware, is an experienced lawyer in defamation suits.

How much more onesided can the fight be? In one corner you have a Senior Counsel and the chief of one of the biggest law firms in Singapore of more than 150 lawyers, I believe, and in the other corner, a psychologist with zero training in law. But the referee didn’t seem to care and allowed the fight to proceed. How the courts could be assisted to come to a fair decision when one side did not have legal representation did not seem to be a matter of concern to the judiciary.

So my case hobbled along and came to its inevitable demise when Messrs Lee Kuan Yew and Goh Chok Tong applied for summary judgment where the case was heard in chambers before the registrar. Expectedly, the matter was awarded to the plaintiffs which meant that there would be no trial, no calling for witnesses and no cross-examinations. In the meantime, I had gotten legal advice that the matter contained issues that necessitated a trial. But what could I do?

So no lawyer and no trial. The courts then proceeded to award the plaintiffs $500,000. I have already paid $400,000 in costs and damages in another defamation lawsuit involving my dismissal from NUS and, as a result, I don’t have much left to pay Lee and Goh.

The question that I want to ask is: Why have the courts been so unfair to me? By not allowing me QCs and thereby legal representation, and then not giving me a trial, and subsequently ordering me to pay Lee Kuan Yew and Goh Chok Tong halfamillion dollars, both of whom are millionaires by the way, and then making me a bankrupt when I am unable to, is to not only punish me but also my wife and children. Is this how justice is meted out in Singapore?

If you were me, would you also not have grave doubts about the entire system?

Trials gone bad

One need look no further than the suits of the PAP leaders against Mr Tang Liang Hong to understand how problemaic our judicial system is. The legal events that led to the bankruptcy of Mr Tang make for sordid reading. I will cite a few instances:

During the 1997 elections Mr Tang had made a police report complaining about the accusations PAP leaders had made about him. The PAP leaders accused Mr Tang of making public the contents of the report to the news media and proceeded to sue Mr Tang and ultimately obtained more than $3 million in judgment. This subsequently made Mr Tang, who now lives in exile, a bankrupt.

The horror of it all was that it was later revealed, during cross-examination by the late George Carman QC, who was representing Mr Jeyaretnam, that Home Affairs Minister Wong Kan Seng had ordered the police to give him a copy of the report, which by the way is confidential, passed it on to Mr Goh Chok Tong who was then the prime minister and who then gave it to Senior Minister Lee Kuan Yew who disseminated the report’s contents to the media.

Two questions begged to be asked:

Why was a confidential report made available to the PAP when it was confidential? Remember, the information was later used by the PAP leaders to sue Mr Tang in their private capacities.

Why was Mr Tang found guilty of defamation when it was Mr Lee Kuan Yew who had released the information contained in the police report to the media? Does it make sense for Mr Lee to disseminate the information and then sue Mr Tang for defamation?

More incredibly, Mr Jeyaretnam had held up an envelope during an election rally and informed the public that Tang had made a police report. For that he was also sued and convicted of defamation despite the fact that he neither revealed the contents of the police report nor mentioned anything in detail about the PAP politicians.

In the Tang Liang Hong case, it will be remembered that Mr Lee Kuan Yew had made a statement in his affidavit that the town of Johor Baru was “notorious for shootings, muggings and carjackings.”

In the ensuing uproar on the Malaysian side, Lee was forced to retract his statement and apologize to Malaysia. Lee then applied to have his statement removed from his affidavit. But Tang queried the move on a point of law: that the rules of court stated that an affidavit or parts of it may be struck off only on the grounds that it was “scandalous, irrelevant, or oppressive.”

The judge allowed Lee’s application saying that the judiciary “should help Singapore maintain good bilateral relations.” Maintaining good bilateral relations is the work for the Executive Branch of the Government, in particular the Foreign Ministry. The judiciary’s role is to ensure that justice is meted out in accordance with court rules and the law to contesting parties. I will submit more on this point a little later.

To heap insult upon the already enormous injury, the judiciary then ordered Tang to pay cost for the application even though Mr Lee was the one who had made the statement about Johor Baru and it was Lee who had applied to have the offending words removed!

Similar occurrences happened in my own case. In 2004, I had informed the courts that I would be away in the United States to do a fellowship until September that year. In July while I was still away, Mr Lee Kuan Yew and Mr Goh Chok Tong applied for the hearing to assess damages to be brought forward. The Registrar then wrote to me, knowing that I was away, to attend court to ”confirm the new dates” proposed by the plaintiffs. I found out about this only when I returned to Singapore in September. The fact that the plaintiffs changed their minds about the application and decided to stick to the original dates was cold comfort to me.

Going back to the Tang case, It will also be recalled that Mr Tang’s wife was named a co-defendant to the suit even though she had nothing to do with case. Be that as it may, when Mrs Tang tried to visit Johor Baru one day, she was stopped by immigration officials who proceeded to impound her passport. Mr Lee Kuan Yew later said in court that “we were compelled to seize her passports for the purpose of satisfaction of judgments to be obtained by [the plaintiffs].” We? Since when was there a law to allow plaintiffs in defamation suits to seize the passports of defendants? Where was the judiciary to prevent such an abuse of power?

International criticisms

These events were not conjured by me for fun. They were actual occurrences. They are incontrovertible facts that demonstrated how the judiciary has bent over backwards to accommodate those in power at the expense of the political opposition in Singapore.

These occurrences have led international observers to come to the conclusion that the judiciary is indeed influenced by the executive. Ross Worthington, in his paper Hermes and Themis: An Empirical Study of the Contemporary Judiciary in Singapore, listed the observers: (p. 492)

“Criticism of the Singaporean judiciary has been made by international human rights organizations such as Amnesty International and Asia Watch, by judicial institutions such as the Bar Association of the City of New York, the International Commission of Jurists in Canada, Australia, and its international office in Geneva, the Privy Council and eminent internationally renown senior counsel such as John PlattsMill QC, Frank Galbaley QC, Anthony Lester QC, Geoffery Robertson QC, Judge Paul Bentley, and Stuart Littlemore QC. These critisims have usually been based on judgments in political cases in Singapore, not on the basis of political belief, but according to the established legal principles of common law nations, the same standards Singapore professes to follow.”

[Defamation lawsuits have] done little to overcome the courts’ reputation as improperly compliant to the interests of the country’s ruling People’s Action Party. – International Commission of Jurists

“What emerges…is a government that has been willing to decimate the rule of law for the benefit of its political interests. Lawyers have been cowed to passivity, judges are kept on a short leash, and the law has been manipulated so that gaping holes exist in the system of restraints on government action toward the individual.” – New York City Bar Association

Lawyer’s Rights Watch Canada: “The use of defamation suits in Singapore to prevent political statement belies any notion that Singapore is a democracy. Democracy is the right to participate in one’s governance and to receive, distribute and debate information regarding issues of public concern and the performance of public officials without the risk of civil or criminal penalties. Singapore has failed to protect these rights. Singapore has also failed to honour its obligation to promote and protect the rule of law (a state of affairs in which there are legal barriers to government arbitrariness and legal safeguard for the protection of individuals.)”

Retired Canadian judge Paul Bentley: “The issue of’ whether the filing of’ defamation suits affects freedom of expression and peaceful democratic discourse in Singapore is beyond question for me. The more pressing concern is whether international condemnation of the practice and faint signs of growing domestic distaste for it, will be sufficient to change the government’s tactics against its political opponents.”

Professor Ross Worthington had conducted an empirical study on the judiciary in Singapore and this is what he found:

On the subjugation of the judicial branch of government (p. 491)

“This is a system of governance which, however, has been extensively criticized for its lack of transparency, accountability, and democratic behaviour. In particular, there has been a continuing concern that the ruling Peoples Action Party (PAP) governments have produced a political system in which all branches of government, including the judicial, have been subjugated to the executive branch. This has led to considerable criticism of the Singaporean judiciary…”

On the control of the subordinate courts (p. 497)

“This practice of actively ensuring that there is no professional judiciary within the subordinate courts subjugates these courts directly to executive power; they are not part of an independent judiciary but an arm of executive government, part of the Singapore Legal Service, and they carry into that role the norms characteristic of the civil service including implicit support for the political executive and its power arrangements.”

On appointees to the Supreme Court (p. 499)

“Almost half of appointees to Supreme Court are drawn from the Attorney-General’s Chambers or were formerly senior officers of this department before going into private practice and then into the judiciary. If we accept that it is irrelevant for senior civil servants to be PAP members or cadres as it is both illegal for them to be members of a political party and they can have allegiance to the party without such a formal status, those appointed with formal or informal affiliation to the PAP form 85 percent of Supreme Court appointees. Those not obviously linked to the PAP comprise 15 percent.”

On the abolition of appeal to the Privy Council (p. 502)

“The last vestige of complete independence in the judicial system, appeal to the Judicial Committee of the Privy Council, was abolished in February 1994, despite Lee Kuan Yew’s previous insistence that Singapore should ‘allow a review of the judicial process that take place here in some other tribunal where obviously under influence cannot be brought to bear’. The abolition of appeals to a nonSingaporean tribunal is, in itself, no cause for concern; New Zealand acted in 1996 to do likewise, as has Australia. The principle concern is that the indigenous judicial system be sufficiently mature to defend the rule of law, maintain the independence of the judiciary and, at the most basic level, be able to provide balance in the exercise of state power over citizens.

Given that the Privy Council and several international judicial organizations had castigated the Singaporean judiciary for failing to uphold such standards, it is difficult not to conclude that the executive replace the Privy Council with a domestic Court of Appeal as a means of maintaining executive control of the judiciary and minimizing international criticism of the judicial executive nexus and the executive’s occasional overt abuses of power.”

In the US State Dept Human Rights Report 2005, it is stated that “The following human rights problems were reported” one of which was “executive influence over the judiciary.”

The report went on to say that “Some judicial officials, especially supreme court judges, have ties to the ruling party and its leaders…Government leaders historically have used court proceedings, in particular defamation suits, against political opponents and critics. Both this practice and consistent awards in favor of government plaintiffs raised questions about the relationship between the government and the judiciary…”

All the instances that I have cited, there seems to be almost universal agreement about the lack of judicial independence in Singapore. Given this isn’t there a possibility that there may be, just may be, a kernel of truth in all their observations.

You may say that all these organizations and individuals are somehow stupider than the judicial and legal officials in Singapore when it comes to interpretation of the law. Or may be they are all ang mohs (Caucasians) who are intensely jealous of Singapore’s success and want to sabotage it. They are all either telling lies or deeply mistaken, the whole lot of them: AI, ICJ, Professor Ross Worthington, the US State Dept and so on.

Maybe you can try to make this to be the case that everyone else is wrong except you. But what is most important is what does the average reasonable person think.

But let us for the moment assume that everyone else is wrong and that the AG and the Courts are right. You will recall that in the Christopher Lingle case, the AG admitted, and the courts agreed, that when the American academic said that some Asian governments used “compliant” judiciaries to bankrupt opposition politicians, he was referring to Singapore.

Let’s pause for a moment here and take a closer look at the absurdity of the present case. The AG and the courts acknowledge that “compliant” judiciaries are used to bankrupt opposition politicians in Singapore. That’s what you said. Yet when I agree with you and say the same, I am charged for contempt of court. Does this make any sense to you?

The only way that I can be convicted for contempt of court is if you admit that the AG and the Courts had lied in the Christopher Lingle case because it is not true that the Singapore judiciary is “compliant” when it came to defamations suits involving opposition politicians. But if you are speaking the truth, then so am I. And if I am speaking the truth, how can I be in contempt of court. Isn’t truth what courts seek? On this point allow me to point out that in Nationwide vs Mills (p 39):

“It is not necessary, even if it be possible, to chart the limits of contempt scandalizing the court. It is sufficient to say that the revelation of truth—at all events when its revelation is for the public benefit—and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or judge of public confidence. The critical difference between the scope of s. 299(1)(d)(ii) and the scope of contempt of court is that the latter does not purport to suppress justifiable or fair and reasonable criticism which exposes grounds for loss of official repute, but s. 299(1)(d)(ii) purports to suppress all criticism which is likely to bring the Commission into disrepute including criticism that is justifiable, fair and reasonable.”


Conclusion


The truth of the matter is that convicting and punishing me for contempt does not and cannot change reality, it cannot elevate the reputation of the Singapore courts. Its like the big bully punching out the little guy for calling him a bully.

Please don’t for one minute think that I am attacking you, sir. I respect you as a person and I hold have only the highest regard for your intellect.

But I cannot in good conscience continue to allow it to go unremarked when our judicial system is in such a dismal state.

I am not foolish. I know the power that you wield. It is power backed by handcuffs, prison cells and, utimately, guns, the combination of which keep heads bowed and mouths shut. I don’t possess or have at my disposal such enormous power. I have only my freedom with which to wage this battle. But I also have something that is far more powerful than all the physical force that you can muster – and that is, the truth. And if you realise the power that truth posseses you will seehow lopsided this contest is, and you will have the wisdom, I pray, to get on the right side.

What you do to me today, the sentence that you will hand down, will be temporary. But the infamy that you will have to live with will go down in the annals of Singapore’s history and that will last forever.

I plead not for leniency but for reform, that good and wise minds prevail in this room today.

Speaking truth to undemocratic power is never easy for it invariably invites reprisal. I do not want to go to prison for I have a lovely wife and three beautiful children wanting me to come home. Having to leave them under such circumstances is the most painful thing I have had to do. But living with the shame of keeping my head bowed when injustice permeates our society is infinitely worse. I want to be free but freedom is nothing when one cannot speak the truth to power.