Comparative Law: Singapore

Clarrie Si Qian Ng LSJ 367 – Comparative Law Research Paper: Singapore May 22, 2013

Singapore is an island state that has been well-known for its economic progress for the past few decades. One of the infamous criticism the country face is freedom of speech. According to Freedom of the World 2013 survey, Singapore has a score of 4 for both political rights and civil liberties (where 1 is most free). This fact is not shocking considering the amount of defamation and libel suits carried out by a central political figure, Lee Kuan Yew, against his political opponents, otherwise known as dissidents, in Singapore over the last few decades. These controversies surrounded a single article that is interpreted in a manner that allows for debates about the judicial power in Singapore. In this paper, I argue that the Singapore legal system has been very political on the interpretation of certain civil rights through the legal decisions they have made or held locally. In the first part of the paper, I will be introducing the creation of Singapore courts and how it came to be: the history and functioning of the high court stressing its relationship to other governmental branches, societal or political events important to its creation, and the constitutional foundation for its judicial power. I will proceed to depict the structure and relative autonomy of Singapore’s legal system. In the second part of the paper, I will evaluate the political impact of the Singapore court adjoining a specific civil right – Freedom of Speech, after which I will focus on a few case examples to highlight the political interpretation of the freedom of speech made by the courts in Singapore according to some of the legal scholars. Singapore was founded on 6 February 1819 by Sir Stamford Raffles, an officer of the British East India Company and Lieutenant-Governor of Bencoolen, in an attempt to counter

Dutch domination of trade in the East. Between 1819 and 1867, the lawmaking authorities were the British government in India and the Parliament of the United Kingdom. After the Straits Settlements (Malacca, Penang, and Singapore) became a Crown colony, this function was taken over by the Settlements' Legislative Council, which was an unelected body. Following World War II, the Straits Settlements were dissolved and Singapore became a colony in its own right with its own Legislative Council. In 1948 the Constitution was amended to allow for six seats in the Council to be elected; the country's first democratic elections were held that year. A further amendment in 1955 increased the number of elected seats to 25. Self-government was negotiated with the Colonial Office in London in 1956–1957. In the 1959 general elections, the People's Action Party (PAP) swept to power, and its leader Lee Kuan Yew was appointed Prime Minister of Singapore. Singapore gained independence from Britain by joining the Federation of Malaysia in 1963, but became a fully independent republic on 9 August 1965. The Legislative Assembly was renamed the Parliament of Singapore. (Library of Congress) At the time of independence in 1965, the Singapore Parliament did not make any changes to the judicial system. Thus, for an anomalous four-year period, the High Court in Singapore remained part of the Malaysian court structure. This was improved in 1969, when the Constitution was amended to establish the Supreme Court of Singapore replacing the Federal Court of Malaysia with respect to Singapore, while retaining the Judicial Committee of the Privy Council in London as Singapore's court of final appeal. The Supreme Court was organized into two divisions: the upper division consisted of the Court of Appeal and the Court of Criminal Appeal, which respectively dealt with civil and criminal matters; the lower division being the High Court of Singapore. In 1970 the subordinate courts were reorganized. Since that time, the

Subordinate Courts of Singapore have consisted of the District Courts, the Magistrates' Courts, the Juvenile Courts and the Coroners' Courts. In current times, Singapore is a republic with a parliamentary system of Government based on the Westminster Model. The sources of law derives from the Constitution, legislation, subsidiary legislation (e.g. Rules and Regulations) and judge-made law. The Constitution is the supreme law of the country and rests down the basic framework for the three organs of state, specifically, the Executive, the Legislature and the Judiciary. The Executive includes the Elected President, the Cabinet and the Attorney-General. The President is elected by the people and is empowered to veto government budgets and appointments to public office. The Cabinet includes the Prime Minister and other Ministers appointed from among the Members of Parliament and is responsible for the general direction and control of the Government and is accountable to Parliament. The Attorney-General is the principal legal advisor to the government and has the power and discretion to prosecute offenders. The Legislature comprises the President and Parliament and is the legislative authority responsible for enacting legislation. Parliament is made up of elected, non-constituency and nominated Members of Parliament. The President’s agreement is required for all bills passed by Parliament and he may in his discretion withhold assent to certain bills. Singapore's judicial power is entrusted in the Supreme Court, consisting of a chief justice and an unspecified number of other judges. All are appointed by the president, acting on the advice of the prime minister. The judiciary functions as the chief guardian of the Constitution through its judicial review of the constitutionality of laws. The Supreme Court of Judicature Act of 1969, and various subsequent acts ensured judicial independence and integrity by providing for the inviolability of judges in the exercise of their duties and for safeguards on

their tenure. (Library of Congress) Anyone with sufficient financial assets are able to get access to the courts. The Constitution of the Republic of Singapore is the supreme law of Singapore. A written constitution, the text which took effect on 9 August 1965 is derived from the Constitution of the State of Singapore 1963, provisions of the Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965, and the Republic of Singapore Independence Act itself. The text of the Constitution is one of the legally binding sources of constitutional law in Singapore, the others being judicial interpretations of the Constitution, and certain other statutes. Non-binding sources are influences on constitutional law such as soft law, constitutional conventions, and public international law. (Library of Congress) In other words, the Supreme Court is the most powerful system in the country because of the separation of powers, the accessibility of courts towards the people and the judiciary review that checks the balances of the officials. However, there has been scholars talking about how the judiciary worked towards the idea of balancing the interest of the people and an individual. Singapore’s constitution has a unique aspect of their take on civil liberty issues, in this case, Freedom of speech. Before I proceed to the next section of the essay, I want to highlight the specific article mentioned in my previous point: “Article 14(1)(a) — Every citizen of Singapore has the right to freedom of speech and expression…Article 14 (2) — Parliament may by law impose on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore… friendly relations with other countries, public order or morality

and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence.” (Singapore Constitution, Art 14) With this specific clause, there is a huge strife between how the court interprets the meaning and how much separation of powers is included in the court in relation to the main political party. I argue that the court is constraining itself by balancing the idea of free speech and retaining public interest towards political reputation. In the last four decades, there were more than ten defamation and libel suits carried out by the ruling political party in Singapore. Majority of the suits were largely political and left many of the “losers” bankrupt or otherwise financially crippled. One would not put a personal stand in this issue, however, it is interesting to note how the court deals with it and also the idea behind “freedom of speech” in Singapore as a civil liberty. In Lee Kuan Yew v Jeyaratnam, a libel suit brought up by Lee Kuan Yew, a leading and well-respected political figure in Singapore who sued Joshua Benjamin Jerayatam (J.B Jerayatnam) for libel during one of the election speech. Justice Lai, the judge presiding the case said “… the common law evolving certain well known defences, as modified by statue, for defendants in defamation cases, and directed to the intent and purpose that freedom of speech must end where individual rights begin.” According to Hor’s legal review, he mentioned that such an attempt to justify the common law balance does not go far as it cannot equate that free speech always has to give way every time a reputation is adversely affected as there would be no balance at all. (Hor 1992)The same question asked by many would be “when does individual rights begin”? The text of article 14 provides little legitimacy for any judicial intervention as the court instructs itself to a wide interpretation in construing parliamentary intention underlying

speech-restrictive legislation. (Thio 2008) This allows for the citizens to think that the courts has ties with the political party given that the chief justice is selected by the President under the recommendation by the Prime Minister and that Singapore has been ruled by the same political party the past forty years. This does not provide legitimacy given that many cases in America and Europe would not go as far as such a restriction within freedom of speech yet this unique approach is independent on its own. Some may say it is the ties with the major party but many legal scholars take the stand that Singapore’s court approach shows more local jurisprudence where they take into consideration the local effects and impacts. (Hor 1992) Another key issue that ties in with the freedom of speech is contempt of court also known as scandalizing the court. There is a very high regard and respect the people in Singapore has for the court. Contempt of court, whether by written or spoken words or conduct, is a common law offence that must be proven beyond reasonable doubt. It seeks to protect public confidence in the administration of justice, rather than the personal dignity of judges. In Shadrake Alan v. Attorney-General, a 2011 judgment of the Court of Appeal of Singapore that clarified the law relating to the offence of scandalizing the court. Alan Shadrake, the author of the book Once a Jolly Hangman: Singapore Justice in the Dock (2010), was charged with contempt of court by way of scandalizing the court. The Prosecution alleged that certain passages in his book proclaimed that the Singapore judiciary lacks independence, yields to political and economic pressure, and takes a person's position in society into account when sentencing; and that it is the method by which Singapore's ruling party, the People's Action Party, stifles political dissent in Singapore. According to Gary Chan, both the High Court and Court of Appeal of Singapore adopted the more stringent ‘real risk’ test for contempt of court. These two were instrumental in clarifying the legal test in Singapore and also represented a more judicial stance towards the law

of contempt in Singapore. (Chan, 2011) This particular case is apt for the discussion of independence of Singapore’s judiciary underlying the freedom of speech. However, I would argue that such a judicial stance is rigid toward having fair criticism within the realm of legal justice in Singapore. It is indeed important to uphold the legitimacy of the courts but also, it is indeed a stifling stance that have caused a lot of debate within the outside society about the ties with the major political party and freedom of speech in Singapore. Nonetheless, such a judicial stance place people in good faith about the courts in Singapore in terms of legitimacy in this specific case. One can see that it clearly stays off the American (Amendment 1) and European (Article 10) jurisprudence and set off a more local jurisprudence of its own – this allows for the courts to be independent on its own and making decisions not because it is popular or otherwise controversial. In conclusion, I think Singapore’s courts has a unique way of approaching political issues. On one hand, it is very independent on its own and not influenced by outside factors or cases in another country that is unlike their own. On the other hand, the stringent and rigid decisions that judges make calls for a more critical look upon the system as, being hard handed does not necessary mean it is effective and efficient. It is interesting to note that Singapore do not include international laws as a factor when dealing with legal issue in Singapore locally which highlights its independency and power within Singapore. Even though Singapore legal system is largely based on the common law system, it is unlike any other common law system. The basic foundation is rather similar: the access, judicial power and autonomy. However, the written constitution is slightly different so is the interpretation of statues in Singapore. The combination of English laws with the mixture of differing cultures in Singapore results to a unique combination of rules and regulations that runs this small island state. Lastly, I would add that

Singapore’s courts are very powerful especially towards decisions that is hotly debated. They do not sway towards the public’s popular notion but rather a sound judgment towards the interest of the community. Yet, this statement would be too lofty to imply as there are much needed improvements toward civil liberty in Singapore.

Bibliography 12 Sing. L. Rev. 296 (1991) Selected Issues in the Freedom of Speech and Expression in Singapore; Hor, Michael; Seah, Collin Thio, L.-A. (July 01, 2008). The Virtual and the Real: Article 14, Political Speech and the Calibrated Management of Deliberative Democracy in Singapore. Singapore Journal of Legal Studies, 25-57. 1999 Lawasia J. 1 (1999) Civil Disobedience and the Licensing of Speech in Singapore; Hor, Michael Chan, G. K. Y. (January 01, 2011). Contempt of Court and Fair Criticism in Singapore: Shadrake Alan v Attorney General [2011] SGCA 26. Oxford University Commonwealth Law Journal, 11, 2, 197-206. Law Library of Congress Singapore http://memory.loc.gov/cgibin/query/r?frd/cstdy:@field(DOCID+sg0105) “The Constitution of Singapore” Article 14(1)-(2) http://www.servat.unibe.ch/icl/sn00000_.html Cases cited: Attorney-General v Shadrake Alan - [2010] SGHC 327 (3 November 2010) Jeyaretnam Joshua Benjamin v Lee Kuan Yew - [1992] 2 SLR 310; [1992] SGCA 27