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LRWC's report on Singapore's
judiciary
and legal profession
Lawyers'
Right Watch Canada (LRWC)
19 Oct
07
http://www.singaporedemocrat.org/LRWC.Rule.of.Law.in.Singapore.17.Oct.07.pdf
Lawyers'
Rights Watch Canada, which has been active on Singapore for some
years (and has sent lawyers there on trial observer missions),
has just issued the below detailed briefing of its concerns about
the Singapore government's misuse of the law for political
purposes. It is directed at the over 3000 lawyers of the
International Bar Association (IBA), who are meeting at this
moment in Singapore, urging action on their part.
Rule
of Law in Singapore:
Independence of the
Judiciary and the Legal Profession in Singapore
A.
Introduction
To the casual observer, Singapore appears
to be a cosmopolitan city-state with a functioning democracy
based on the rule of law. After a century as a British colony,
Singapore became self-governing in 1959 and gained full
independence from Britain in 1965. As a former colony, it
inherited a political system which includes a single chamber
Parliament and a common law legal system which, since the Magna
Carta, has enshrined the principles of the rule of law and an
independent bar and judiciary. A legal system based on the rule
of law "would not be possible without independent lawyers
who are able to pursue their work freely and without fear of
reprisals. Indeed, independent lawyers play a key role in
defending human rights and fundamental freedoms at all times, a
role which, together with that played by independent and
impartial judges and prosecutors, is indispensable for ensuring
that the rule of law prevails, and that individual rights are
protected effectively."
In Singapore, members of
Parliament are elected every six years, with the leader of the
majority party becoming the prime minister. The head of state is
the president, an elected and largely ceremonial role, but with
veto powers in selected areas, such as national reserves and the
power to recommend clemency for people sentenced to capital
punishment. Executive power is exercised by the government. The
judiciary is nominally independent of the executive.
Many,
however, question whether these are indicators of a healthy
democracy free from oppression and authoritarianism, or whether
they are merely symbolic trappings that mask deeper problems. In
the 1959 elections, the People's Action Party (PAP), led by Lee
Kuan Yew, took power and formed the government. The PAP has won
all eleven general elections since.
In fact, in nearly
fifty years, the PAP has never won less than 95 percent of the
parliamentary seats, and in recent years a large number of PAP
candidates have run unopposed. Lee Kuan Yew's son, Lee Hsien
Loong, is currently prime minister pursuant to a transfer of
power within the Lee family that took place in 2004.
After
coming to power in 1959, the PAP secured the Singapore economy by
establishing a predictable, seamless platform for foreign
investors and markets. Singapore transformed itself into an
economically prosperous, highly efficient market based on
capitalist policies. The PAP, under an effectively one party
system, was able to pass legislation and exercise executive power
unopposed. Singapore typically scores high on the rule of law and
control of corruption indicators on the World Bank's worldwide
governance indicators. Notably, though, the definition of the
World Bank's rule of law indicator focuses on the predictability
of rules with respect to economic interactions, and importantly,
the extent to which contractual and property rights are
protected.
In contrast, Singapore's scores on the World
Bank's voice and accountability indicators are strikingly low. In
2006, Singapore was ranked in the lowest 25th to 50th percentile
amongst 212 countries, a category it shares with East Timor,
Malaysia, the Philippines, Indonesia and Thailand. The voice and
accountability indicators measure various aspects of the
political process, civil liberties and political rights. These
indicators reflect the extent to which citizens of a country are
able to participate in the selection of governments. Also
included in this category are measurements of the independence of
the media, which serves an important role in holding monitoring
those in authority and holding them accountable for their
actions.
This paper discusses key aspects of the current
state of the rule of law in Singapore: the ability of citizens to
participate in the selection of governments; the independence of
the judiciary; and independence of the bar and the ability of
lawyers to advocate for their clients.
B. The Ability
of Citizens to Participate in the Selection of Governments
As
noted above, the PAP has controlled the Singapore government
since independence in 1959.
This uninterrupted reign of
power stems in part from the PAP's transformative management of
the country's economy, but predominantly from the PAP's concerted
and thinly-veiled efforts to eliminate any political opposition.
While voting procedures in Singapore are considered to be "fair
and free from tampering," the development of a robust
political opposition has been hindered by limits on basic
democratic freedoms and by the government's control and use of
the electoral process as an instrument for political dominance.
As will be discussed below, the government also uses defamation
suits and assignments in bankruptcy to disqualify members of
opposition parties from running for office.
This practice
has disentitled some, such as J.B. Jeyaretnam and Dr. Chee Soon
Juan, and serves to discourage others from participating fully in
public affairs and politics. In so doing, the PAP has handicapped
a basic political right intrinsic to the rule of law: the right
of citizens to change their government. While citizens are
nominally able to elect representatives, elections are therefore
less than free and fair.
Citizens of Singapore are
entitled to universal suffrage at 21 years of age. Voting in
general elections is compulsory, with penalties imposed
(including being struck off the voters' register) for those who
fail to vote without excuse. Use of defamation and bankruptcy
laws to oppress political opposition Singaporean defamation law
makes one radical departure from its common law roots: it does
not provide any privilege over statements made by politicians in
the discharge of their public duty.
This legal gap has
permitted the PAP to use defamation actions to stifle and punish
criticism by opposition politicians. As a result of the lack of
defences, members of the PAP have never lost a libel action or
settled one without making money. Many commentators, including
the Inter-Parliamentary Union and Amnesty International, have
noted the chilling effect of such defamation suits on the freedom
of political expression in Singapore.
Typically, the
courts make damage awards in the hundreds of thousands of dollars
in favour of the plaintiffs in political defamation cases. When
the judgment debtor is unable to pay, the judgment creditor
petitions the defendant into bankruptcy. Bankruptcy, in turn, has
one significant outcome: Singaporean law prohibits a bankrupt
from holding a seat in Parliament.
In this way, the twin
swords of defamation and bankruptcy law effectively allow the PAP
to silence and eliminate members of the opposition. Such was the
case for Joshua Benjamin Jeyaretnam, lawyer, former Senior
District Judge and Member of Parliament for the Workers' Party.
J.B. Jeyaretnam was twice disqualified from serving as a Member
of Parliament through the use of court proceedings that have been
discredited as resulting in significant injustice by the Privy
Council, the International Commission of Jurists, the
Inter-Parliamentary Union, Amnesty International,
Lawyers' Rights Watch Canada and others. Court proceedings
were used to remove Mr. Jeyaretnam from parliament after his
re-elections in 1984 and 1997.
J.B. Jeyaretnam was first
elected as a Member of Parliament for the Workers Party in 1981,
thereby becoming the first opposition candidate to be elected to
parliament since independence. He was re-elected in 1984. J.B.
Jeyaretnam was an articulate critic of PAP policies and programs.
In the words of a British author, Richard Clutterbuck: Jeyaretnam
has been relentlessly harried by PAP members anxious to acquire
merit, but he alone performs what is Parliament's primary
function in a democracy – the public cross-examination of
Ministers.
Following his re-election in 1984, Mr.
Jeyaretnam was charged with financial impropriety related to the
collection of Workers Party funds. After an initial acquittal and
a series of appeals, Mr. Jeyaretnam was found guilty and
sentenced to a fine of S$5,000. The sentence, imposing a fine of
over S$2,000, resulted in the automatic disqualification of Mr.
Jeyaretnam as a Member of Parliament; the conviction triggered
his disbarment from the Law Society. Mr. Jeyaretnam appealed his
disbarment to England's Privy Council, then the final
court of appeal for Singapore. The Privy Council allowed
the appeal and stated that Mr. Jeyaretnam had been "fined,
imprisoned, and publicly disgraced for offences for which [he
was] not guilty". The Privy Council found that Mr.
Jeyaretnam had been wrongly removed from Parliament and
disbarred. The Privy Council directed the Law Society
to reinstate Mr. Jeyaretnam and recommended that the Singapore
government pardon him. In its reasons, the Privy Council
stated:
Their Lordships have to record their deep
disquiet that by a series of misjudgements the appellant and his
co-accused Wong have suffered a grievous injustice. They have
been fined, imprisoned and publicly disgraced for offences of
which they were not guilty. The appellant, in addition, has been
deprived of his seat in Parliament and disqualified for a year
from practising his profession. Their Lordships order restores
him to the roll of advocates and solicitors of the Supreme Court
of Singapore, but, because of the course taken by the criminal
proceedings, their Lordships have no power to right the other
wrongs which the appellant and Wong have suffered. Their only
prospect of redress, their Lordships understand, will be by way
of petition for pardon to the President of the Republic of
Singapore.
The Singapore government refused to follow
the Privy Council's recommendation to pardon Mr.
Jeyaretnam and, soon afterwards, peremptorily abolished the right
of the appeal to the Privy Council for all Singaporeans.
After discharging his debts, Mr. Jeyaretnam was reinstated as a
lawyer and regained eligibility to stand for office in the 1997
general election. By virtue of the number of votes he won, he
received a seat in Parliament. Shortly after this election,
Senior Minister Lee Kwan Yew, Prime Minister Goh Chok Tong and
other senior PAP members filed suits against Mr. Jeyaretnam
alleging that a statement made in the course of his election
campaign was defamatory. The alleged defamatory words of Mr.
Jeyaretnam were: "Mr. Tang Liang Hong has just placed before
me two reports he has made against, you know, Mr. Goh Chok Tong
and his people." Mr. Tang was a Workers Party candidate who
had filed police reports alleging that Goh and others had defamed
him by calling him 'anti-Christian' and a 'Chinese chauvinist'.
As Mr. Jeyaretnam was concluding his rally speech, Mr.
Tang placed copies of his police reports on the lectern and
informed Mr. Jeyaretnam that the reports had been made. The only
statement made by Mr. Jeyaretnam was the simple truth; that is,
that the police reports had been filed. The Prime Minister was
awarded S$600,000.00 for the publication of the same materials by
Mr. Tang and sought a further S$200,000.00 plus costs against Mr.
Jeyaretnam. The trial of this defamation action was condemned by
the International Commission of Jurists, which had sent an
international observer, Stuart Littlemore, Q.C., to the hearings,
as a "parody of justice". This will be discussed in
more detail in the section below respecting the independence of
the judiciary.
Mr. Jeyaretnam was again sued for
defamation relating to a 1995 article published in the Workers'
Party newspaper, which alleged that an event called the 'Tamil
Language Week' was an ineffective means of advancing the Tamil
language, and that a number of those involved were political
opportunists beholden to the government. That article resulted in
two libel suits against twelve defendants: A. Balakrishnan (the
author of the article), Mr. Jeyaretnam (vicariously as editor of
the newspaper), and other members of the Workers' Party's central
committee. One of these lawsuits was brought by Minister of
Foreign Affairs S. Jayakumar and four other PAP Parliamentarians;
the other by Indra Krishnan and nine other members of the Tamil
Language Week organizing committee, one of whom became a Member
of Parliament for the PAP.
Damages and costs of S$510,000
were awarded jointly against all the defendants. Two of the
plaintiffs subsequently commenced bankruptcy proceedings against
Mr. Jeyaretnam alone and he was pronounced a bankrupt the day
after he failed to pay one of the agreed-upon payments. The Court
of Appeal confirmed the bankruptcy order in spite of Mr.
Jeyaretnam's offer to pay the remaining damages and he was
automatically removed from Parliament in 2001. In 2004, when Mr.
Jeyaretnam became eligible for discharge from bankruptcy, the
Assistant Registrar, High Court and finally the Court of Appeal
refused his application for discharge.
In so doing, the
courts considered as the overriding factor the rights of the
creditors to demand full payment and did not give due
consideration to the bankrupt's right to rehabilitation and the
public interest in having Mr. Jeyaretnam discharged from
bankruptcy so that he could return to his former role as a
consistently elected member of the opposition. Only in 2007 has
he been discharged from bankruptcy and regained his
qualifications. As a result of the defamation actions and
bankruptcy, Mr. Jeyaretnam was prevented from standing in the
2001 and 2006 general elections.
The case of J. B.
Jeyaretnam illustrates the PAP's use of the courts and the law to
stifle and eliminate political opposition. Singaporean residents
are thereby deprived of the benefit of having government policies
tested in Parliament and in the public arena of free and open
debate. As a result, the ability of Singaporeans to select their
governments based on a free exchange of ideas, an essential
component of the rule of law, is lacking.
Stringent
limits on freedom of assembly
The Constitution
of the Republic of Singapore provides the right to peaceful
assembly but permits Parliament to impose restrictions "it
considers necessary or expedient" in the interest of
security, public order, or morality. The PAP has used this power
to restrict freedom of assembly, with the manifest goal of
hobbling the activities of opposition political parties. Public
assemblies of five or more persons, including political meetings
and rallies, require police permission; although in 2004 the
government relaxed rules so that citizens no longer need permits
for some indoor speaking events. As a result of the requirement
for government pre-approval, spontaneous public gatherings or
demonstrations are prohibited irrespective of their purpose.
The
government also closely monitors political gatherings regardless
of the number of persons present. During the International
Monetary Fund and World Bank Joint Annual Meetings
held in Singapore in September 2006, the government refused to
issue permits for any public demonstrations. Accredited NGOs were
allowed to protest in the lobby of the conference hall.
On
September 9, immigration officials asked three activists from
People for the Ethical Treatment of Animals to leave the country
for having planned to stage a public protest. On September 12,
the government announced it would bar 27 individuals representing
eight NGOs from entering the country to attend the conference.
They were deemed a threat to security and public order. The
decision was amended on September 15 to permit 22 of the 27 to
enter the country.
Then on September 16, police prevented
Dr. Chee Soon Juan, prominent human rights campaigner and leader
of the Singapore Democratic Party, from carrying out a protest
march.
After a 'Freedom March' on Human Rights Day,
December 10, participants were threatened with prosecution.
Plain-clothes police officers routinely monitor political
gatherings. In July 2005 the police attended and disrupted a
gathering convened for the launch by Dr. Chee Soon Juan, of his
book, The Power of Courage: Effecting Political Change in
Singapore through Nonviolence. After his presentation, the police
questioned Dr. Chee and confiscated for further investigation a
video of peaceful protests by Hong Kong residents that had been
projected as a backdrop to Dr. Chee's presentation on his book.
The police seized the video because Dr. Chee did not have a
permit for public display of the video.
On September 30,
2007, Singapore police disrupted an event organized by Dr. Chee
outside the Myanmar embassy to protest that country's brutal
crushing of the recent democratic uprising in Myanmar. Police
indicated that the assembly was illegal and that the case was
being investigated because more than five people gathered in
order to sign the petitions, some of whom lingered after
signing.
In a media release, Singapore police called this
action "…the latest by Chee in a series of similar
incidents of staging illegal assemblies as acts of civil
disobedience against the Singapore authorities." Although
Singapore, as the current chair of ASEAN, spoke out strongly
against brutality in Myanmar, Singapore's position has been cited
as hypocritical given that extensive economic relations with
Myanmar, which have thrown a lifeline to the junta to blunt
economic and political sanctions from the United States, the
European Union and other states. For example, according to Jane's
Intelligence Review (Dec. 1998), in 1998 Singapore supplied
Myanmar with a purpose-built factory to manufacture assault
rifles and ammunition.
On October 8, 2007, Dr. Chee was
again arrested by Singapore police for alleged illegal assembly,
at the start of a 24-hour vigil outside the main Singapore
government offices. Their application for a permit for a vigil
outside the Myanmar Embassy had been rejected. Singapore
Democratic Party statement indicated that the vigil was aimed "at
raising awareness of the Singapore government's exploitation of
the situation in Burma." Dr. Chee has been sued, fined and
imprisoned on many occasions for his peaceful promotions of
public debate on matters of public interest and for his promotion
of human rights in Singapore.
In 1993, three months after
contesting a by-election as a member of the Singapore Democratic
Party, he was accused of misuse of funds and fired from his
position neuro-psychology post at the university. Since then he
has been fined, imprisoned and bankrupted as a result of a
defamation suit brought by Lee Kwan Yew and Goh Chok Tong.
By
use of these measures, as well as by blatantly manipulating
electoral boundaries and establishing "block" votes to
disqualify opposition members in some constituencies, the PAP has
maintained its super-majority in Singapore's Parliament since
1959. In the 2006 general elections, the PAP, led by Lee Kuan
Yew's son Lee Hsien Loong, won 82 of 84 seats. If, by continued
use of defamation and bankruptcy actions and restrictions on
freedom of assembly, Singaporean voters are deprived of access to
a free and open political debate, then it is likely that the
PAP's dynasty will continue into the foreseeable future.
C.
The Independence of the Judiciary
Judicial
independence has been called "the lifeblood of
constitutionalism in democratic societies". Courts must be
independent from "all other participants in the justice
system". As such, the essence of judicial independence is
that the "relationship between the judiciary and other
branches of government be depoliticized" (emphasis in
original).
Judicial independence must be distinguished
from judicial impartiality. Impartiality is the state of mind or
attitude of a particular judge or tribunal in relation to the
issues and parties in a particular case. Judicial independence is
the status or relationship of the judicial branch to the other
branches of government.
Judicial independence is comprised
of both an individual and an institutional component. The
individual dimension relates to the independence of the
particular judge. The institutional dimension relates to the
independence of the court on which the judge sits. An individual
judge may exhibit the essential conditions of judicial
independence but if the court over which he or she presides is
not independent of the other branches of government, then he or
she cannot be said to be an independent tribunal.
The
principles of judicial independence are entrenched in
international instruments including the Universal Declaration
of Human Rights, the International Covenant on Civil and
Political Rights, the Basic Principles on the Independence
of the Judiciary, and the Commonwealth (Latimer House) Principles
on the Three Branches of Government.
While Singapore has
not ratified the International Covenant on Civil and Political
Rights, the Latimer House Principles were endorsed by
Commonwealth Heads of Government at their summit in Abuja,
Nigeria, in December 2003.
Article IV of the
Principles states:
IV) Independence of the Judiciary
An
independent, impartial, honest and competent judiciary is
integral to upholding the rule of law, engendering public
confidence and dispensing justice. The function of the judiciary
is to interpret and apply national constitutions and legislation,
consistent with international human rights conventions and
international law, to the extent permitted by the domestic law of
each Commonwealth country.
To secure these aims:
(a)
Judicial appointments should be made on the basis of clearly
defined criteria and by a publicly declared process. The process
should ensure: equality of opportunity for all who are eligible
for judicial office;appointment on merit; and that appropriate
consideration is given to the need for the progressive attainment
of gender equity and the removal of other historic factors of
discrimination;
(b) Arrangements for appropriate security
of tenure and protection of levels of remuneration must be in
place;
(c) Adequate resources should be provided for the
judicial system to operate effectively without any undue
constraints which may hamper the independence sought;
(d)
Interaction, if any, between the executive and the judiciary
should not compromise judicial independence. Judges should be
subject to suspension or removal only for reasons of incapacity
or misbehaviour that clearly renders them unfit to discharge
their duties.
Court proceedings should, unless the law or
overriding public interest otherwise dictates, be open to the
public. Superior Court decisions should be published and
accessible to the public and be given in a timely manner.
An
independent, effective and competent legal profession is
fundamental to the upholding of the rule of law and the
independence of the judiciary.
The objective
characteristics of judicial independence must include security of
tenure, financial security and administrative independence. To
ensure independence of the judiciary, judges' term of office,
independence, security, remuneration, conditions of service,
pensions and age of retirement must be determined and adequately
secured by law.
Objective components of judicial
independence are absent in Singapore
These core
objective characteristics of an independent judiciary are
patently absent from Singaporean law. Singapore's lower courts
are Magistrate and District Courts that handle minor civil and
criminal matters. Appeals from lower court decisions are brought
to a single judge of the High Court sitting as a court of appeal.
In more significant civil and criminal matters, cases are heard
at first instance before a single judge of the High Court.
Appeals are made to the Court of Appeal or Court of Criminal
Appeal, composed of a panel of three High Court judges sitting in
their appellate jurisdiction.
All Magistrate and District
Court judges are civil servants. District Court judges are
treated as members of the executive and routinely shuffled
between, for instance, the Attorney General's office and the
bench. They have no guarantee of tenure.
Only fourteen
persons have been appointed as High Court judges. These same ten
judges sit as appeal judges in minor civil and criminal cases, as
well as trial and appeal judges in important civil and criminal
cases. Their individual independence is therefore crucial to the
integrity of the judicial system.
At least half of the
High Court judges have either no tenure or very limited tenure.
For instance, two of the fourteen High Court judges are
designated as Judicial Commissioners, a designation which amounts
to a one- or two-year probationary term during which the
government can review a new judge's rulings before granting full
tenure.
Even when granted, tenure is limited by the
executive's ability, through its control of the legislature and
the office of the president, to remove judges with tenure. One
striking example as the case of Senior District Judge Michael
Khoo. Judge Khoo adjudicated at the trial level the financial
impropriety charges against opposition Member of Parliament J. B.
Jeyaretnam (discussed above).
In 1983, Mr. Jeyaretnam,
then the leader of the Workers' Party, was charged with making a
false statement about the Party's accounts and fraudulently
transferring Party funds to thwart creditors (creditors at that
time included the PAP pursuant to a defamation action). The
dispute centered on three donations, totaling S$2,600, which Mr.
Jeyaretnam insisted, had not been given to the Party, but to
which the government insisted the Party had title.
In
January 1984, Judge Khoo acquitted Mr. Jeyaretnam of the false
statement and fraud charges and convicted him of another count of
fraud, for which he imposed a fine that was insufficient to cause
Mr. Jeyaretnam to lose his seat in Parliament. Seven months
later, Judge Khoo lost his judgeship and was transferred to the
Attorney General's office. He later left government
service.
Although the government denied that the transfer
was a reaction to the Jeyaretnam decision, Prime Minister Lee
Kuan Yew suggested otherwise when during a Parliamentary debate
in July 1986, he stated,
"…there was very
good grounds why, if a person can make such a series of
misfindings of fact and two misfindings of law in one simple case
[referring to the Jeyaretnam case], he should be transferred to
the Attorney-General's Chambers."
Another judge
later imposed on Mr. Jeyaretnam a fine high enough, to result in
Jeyaretnam's disbarment from law and disqualification from
Parliament. (This was the decision eventually overturned by the
Privy Council, as discussed above.)
Confidence in
the independence of the judiciary is lacking
In
addition to legal safeguards, judicial independence depends upon
the public perception that the objective components exist. The
question is not only whether the court is free, but also whether
the court is reasonably seen to be free to perform its
adjudicative role without interference. The public's perception
respecting these components must be buttressed by a tradition of
independence, the strength of which "is measured not only by
its observance but also by the intensity of the reaction to its
violation".
The Singapore courts, when adjudicating
commercial cases, which do not involve interests of PAP members
or their associates, may be relied upon to administer justice
according to the law.
In this regard, Singapore judges
have an overall international reputation for the integrity of
their judgments. In cases involving PAP litigants or PAP
interests, however, many see the Singapore judiciary as amenable
to control by the will of the executive. In the case of J.B.
Jeyaretnam, discussed above, the International Commission of
Jurists released a report on its representative's observations of
the High Court in the trial of Lee Kuan Yew's defamation action
against Mr. Jeyaretnam relating to the 'election rally' remarks
(discussed above).
The observer, Stuart Littlemore, Q.C.,
an Australian lawyer specializing in defamation, concluded that
the most troubling aspect of the decision was the court's "undue
deference" to the plaintiff, then prime minister, Goh Chok
Tong. Mr. Littlemore indicated that Mr. Goh "came to court
as an ordinary citizen, not as prime minister, but it was
impossible to escape the impression that the judge treated Mr.
Goh as a litigant of higher status than he was entitled to".
The court found that the words spoken ("Mr. Tang Liang Hong
has just placed before me two reports he has made against, you
know, Mr. Goh Chok Tong and his people") were defamatory –
but on grounds of "lesser meaning imputation" which the
plaintiff had not pleaded.
Mr. Littlemore questioned
whether this had been done to give the prime minister especially
favourable treatment to avoid the embarrassment of losing his
case. The trial judge also awarded aggravated damages to Mr. Goh
on the basis that defence counsel's cross-examination of Mr. Goh
was "a baseless attack" which "aggravated the hurt
caused to Mr. Goh". Mr. Littlemore concluded that nowhere
else in the common law world could it have been said that the
cross-examination was anything but properly vigorous and
relevant.
The principal role of an independent judiciary
is to uphold the rule of law. If the judiciary is to exercise a
truly impartial and independent adjudicative function, it must be
allowed to be free of repercussions from such outside influences.
As stated by one Canadian judge: "A society where
people know their rights are guaranteed by fair laws which apply
in the same way to all citizens equally, and are applied in an
open and public way by an independent and impartial judiciary, is
always a secure and stable society." If the rule of law is
to flourish in Singapore, it will require the (so far absent)
oversight of a truly independent judiciary free from outside
influences.
D. The Ability of Lawyers to Advocate for
their Clients
In Singapore, lawyers representing
causes or clients unpopular with the PAP risk drastic
repercussions, including criminal prosecutions, civil suits,
detention, economic ruination, disbarment and loss of entitlement
to run for public office.
A strong and independent legal
profession is a fundamental aspect of the rule of law. If lawyers
cannot advocate vigorously for their clients, free from
intimidation, no matter what the issue, then the rule of law is
unquestionably tainted.
This principle is emphasized in
Part VIII of the Latimer House Guidelines For The
Commonwealth, which provides in Article 3: "An
independent, organized legal profession is an essential component
in the protection of the rule of law."59 To uphold the rule
of law, lawyers must be free to stand between the state and the
citizen and to criticize and call into question the actions of
the state.
According to Principle 16 of the United
Nations Basic Principles on the Role of Lawyers: Governments
shall ensure that lawyers
(a) are able to perform all of
their professional functions without intimidation, hindrance,
harassment or improper interference;
(b) are able to
travel and to consult with their clients freely both within their
own country and abroad; and
(c) shall not suffer, or be
threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized
professional duties, standards and ethics.
Furthermore,
"where the security of lawyers is threatened as a result of
discharging their functions, they shall be adequately safeguarded
by the authorities".
Detention
Singaporean
history has shown that lawyers who advocate against government
interests may face detention under Singapore's draconian Internal
Security Act (ISA). The ISA authorizes a police
officer to detain any person whom he or she has "reason to
believe… has acted or is about to act or is likely to act
in any manner prejudicial to the security of Singapore." A
detainee can, on order of the Minister responsible for internal
security, be detained for a period of up to two years.
The
Minister can also impose conditions on the detainee's release,
including curfews, restrictions on mobility and prohibitions
against addressing public meetings or holding public office or
taking part in any political activities. In addition, the
President may direct that the detention be extended for "a
further period or periods not exceeding two years at a
time".
The most striking example of detention as a
mechanism of deterring free advocacy was a rash of ISA
arrests instituted by the PAP in 1987-88. At that time, the
so-called Operation Spectrum resulted in the detention, without
trial, of 22 professionals, social activists, students, and Roman
Catholic church workers, alleged to be plotting to violently
overthrow the government and replace it with a Marxist state.
One detainee was former lawyer Teo Soh Lung. In her
career, she had been a founding member of the Law Society's
criminal legal aid programme. Prior to the time of her arrest in
1987, she was the legal counsel to an organization called the
Geylang Catholic Centre for Foreign Workers, and her work for
that organization included facilitating English language lessons
and assisting Malaysian and Filipino workers in Singapore in
claims for wages and damages for physical abuse. She was also a
supporter of the opposition Workers' Party and had tangled with
Lee Kuan Yew in 1986 during a select committee hearing respecting
the role of the Law Society.
Ms. Teo was detained in the
wave of arrests for the alleged "Marxist conspiracy"
and held, without charge or trial, for more than two years. None
of the detainees were ever charged with a crime or given any
opportunity to challenge the government's allegations against
them. In fact, many of the detainees did not even know each other
prior to their arrests.
Another example is the case of
Singapore's former solicitor general and member of the PAP inner
circle, Francis Seow. After serving with distinction (including
the receipt of the Public Administration Gold Medal) under Lee
Kuan Yew, Mr. Seow left public service and entered into private
law practice in 1972. In 1985, he was elected president of the
Law Society. In that role, he first came to be labelled as
an anti-government troublemaker when the Law Society, under his
leadership, commented adversely on proposed amendments to
legislation that would authorize the Singapore government to
restrict the distribution of foreign publications which addressed
Singaporean politics.
Then in the crackdown in 1988, Mr.
Seow was retained by two lawyers, Teo Soh Lung, and Patrick
Seong, who were imprisoned under the 1988 Internal Security Act
crackdown. Mr. Seow filed for habeas corpus on behalf of his
clients.
When he attended at the prison on May 6, 1988 to
advise his clients that the hearing of the habeas corpus
application had been adjourned, Mr. Seow was himself detained
under the Internal Security Act. He was held in detention without
any stated grounds, charge or trial, for 72 days and was
released, subject to restrictions on his freedom of movement and
association, as a result of pressure by international human
rights organizations.
Mr. Seow left Singapore and now
lives in exile in the United States, where he became a Fellow
based in the Department of Asian Studies at Harvard
University.
Economic consequences
Even
those lawyers who are not subjected to the more extreme form of
backlash described above suffer less tangible but equally
deterrent consequences in terms of the economic viability of
their practices. Singaporean lawyer M. Ravi reports that he lost
many of his commercial litigation and intellectual property
clients after he argued a case in which he vigorously and
publicly opposed the use of the death penalty for minor drug
offences.
M. Ravi found that his commercial clients could
not run the risk of having a lawyer publicly advocating a
position critical of government, especially in a country where
the bench is so small that counsel's notoriety is not easily
forgotten.
In October 2006, a panel of three Singapore
judges suspended M. Ravi from the practice of law for one year.
M. Ravi was described by the Singapore Democrat as "the only
lawyer in Singapore willing to take on cases with political
overtones" and as bringing international attention to "the
lack of the rule of law and the violation of human rights in the
city-state."
Ravi has represented Singapore human
rights advocate Dr. Chee Soon Juan on a number of occasions.
Prior to his suspension he had represented Dr. Chee in a libel
action brought by Prime Minister Lee Hsien Loong and Lee Kwan
Yew. The Singaporean public and business community does not have
a perception of the government's administrative neutrality.
For
instance, lawyers whose clients depend on the government for
permits and licenses are wary of handling cases, which oppose the
government in any form – an extraordinarily broad
application of "soft" conflict principles. As one
lawyer for a small commercial firm stated, "We would not
handle political cases because it would affect our clients, which
depend on the government for licenses and other things." The
former president of the Law Society has been quoted as
saying that Singapore is "too small a place", such
that, "except for open political opponents, no one will
touch such cases." The cumulative result is that legal
representation for clients or causes unpopular with the PAP is
simply too expensive financially and professionally.
E.
Conclusion
A number of factors amply demonstrate that
Singapore is not governed by the rule of law. These factors
include: a demonstrated lack of independence of lawyers to stand
between the state and citizens without fear of reprisals,
inadequate statutory safeguards of the independence of the
judiciary, a perception of executive influence over the judiciary
in cases involving PAP interests, the stifling of public debate
regarding issues of public importance through laws restricting
freedom of assembly and freedom of expression to a degree
incompatible with democracy, the threat of arbitrary arrest and
detention through use of the ISA, and, the use, by members
of the executive and the PAP, of defamation suits to punish and
incapacitate government critics and members of opposition
parties.
Indicated as curative measures are: ratification
by Singapore, of the International Covenant on Civil and
Political Rights and enactment of the law reforms required to
bring domestic legislation into compliance with the ICCPR and
also with international standards safeguarding the independence
of the judiciary and that of lawyers, protecting freedom of
expression and freedom of assembly and preventing arbitrary
detention.
I think this is the case in the
great majority of authoritarian states:
on the surface,
because of repression, everything seems frozen,
but when the
sun comes out and the ice melts, you find that there
was a lot
of life underneath all along. ~ Aung San Suu
Kyi
October 17, 2007
Lawyers Rights Watch
Canada
Vancouver BC Canada V6K 2V5
lrwc@portal.ca;
www.lrwc.org
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