The phoney war
Saturday, 7 June 2008, 12:16 pm | 94 views
But the attack on the judiciary isn’t coming from the so-called dissidents
JUDICIARIES EVERYWHERE are under constant siege - the only question is by whom. In the case of Singapore, Law Minister K Shanmugam claims that the perpetrators are dissidents trying to undermine public confidence in the judiciary.
Explaining that the integrity of the courts was under attack, he told reporters that Singapore had to be “very, very strict about anyone who attacks the judiciary in scurrilous ways, or calls onto question its independence.”1
Mr Shanmugam was trying to justify the jail sentences handed out to Singapore Democratic Party (SDP) Secretary-General Chee Soon Juan as well as his sister and fellow SDP member Chee Siok Chin, who were to be jailed for 12 and 10 days respectively for contempt of court during the trial proceedings of the defamation suit brought by Prime Minister Lee Hsien Loong and his father Lee Kuan Yew against them.
Though he didn’t spell it out, Mr Shanmugam’s remarks were probably also meant to rationalise the subsequent arrest of the American lawyer (and former Singaporean politician) Gopalan Nair for allegedly “insulting” the judge presiding over the Lees’ suit.
Mr Shanmugam is surely right in pointing out that confidence in the courts has been under attack over the past week. The Lees’ defamation suit - which set the unwelcome precedent of the first ever cross-examination of a serving leader in Singapore by his political opponent, something that both the elder Mr Lee and Dr Chee consented to prior to the trial - featured the kind of politicking by both sides that was out of place in the court’s august chambers. The trial - and the subsequent conviction of the Chees for contempt of court - might contribute to perceptions that the courts are doing the dirty work of politicians by allowing them to achieve through the legal process what they could not accomplish in the electoral arena. Not for the first time, this has put the integrity of the judiciary at risk.
However, Mr Shanmugam’s attribution of the blame for this is somewhat wide of the mark. First, the suit was filed by the Lees, and it was the elder Lee who had thrown down the gauntlet that he would face his opponents in court as well as give them a free hand in questioning him, thus setting the stage for the histrionics that followed during the trial.
Second, and more importantly, it is unlikely that the Chees did as much damage as claimed by Mr Shanmugam. Their comments only had a narrow reach, since they were either ignored or discredited by the mainstream media. In particular, not many people were aware of Nair’s blog postings criticising the judiciary’s conduct of the defamation suit until his arrest brought attention to them.
Furthermore, the Singaporeans who do question the judiciary’s independence probably made up their minds way before the Chees or Nair even uttered anything. The comments by the Chees and Nair merely verbalised what a segment of the Singapore population already believed. And if there are indeed Singaporeans who were swayed by such claims, it is more likely that they were convinced by the example of the high-handed treatment meted out to the Chees and Nair rather than by the force of latter’s arguments.
Storm’d at with shot and shell
Mr Shanmugam seems to have conveniently ignored that, in Singapore as well as elsewhere, the executive and legislative branches of the government pose a far more potent threat to the judiciary than anything else. Naturally, this oversight probably stems from the fact that Mr Shanmugam is part of the executive branch as well as the ruling People’s Action Party that has a virtual monopoly over the legislature.
In this context, the developments over the last week were the latest salvos of the ruling cabal’s own phoney war on the judiciary. As its name suggests, this conflict is characterised by psychological subterfuge and small set-piece skirmishes rather than a continuous engagement.
One notable example of the latter type was former Malaysian Prime Minister Mahathir Mohamad’s crass subjugation of the Malaysian judiciary in 1988. That struggle was a huge mêlée; it had its roots in a fierce political contest within Mahathir’s party and ended with the judiciary being neutered by the Mahathir-dominated legislature as well as the removal of top judges unfriendly to his cause. The legacy of that fracas is a poorly-manned judiciary that is perceived as being somewhat weak-willed and biased.
The ruling cabal’s tactics are nowhere near as asinine as Mahathir’s, but what is worrying is that, like Mahathir, the ruling cabal believes in the supremacy of the legislature. Their past behaviour, with regard to the judiciary or to other institutions such as the elected presidency, suggests a firm conviction in that their primacy in the legislature affords them the license to supersede the other institutions whenever this contravenes their conception of what the popular will demands (unless the popular will goes against what the ruling cabal wants, of course).
But the thing is that in Singapore it is the constitution, not the legislature, which is supposed to be the supreme law of the land. As one legal commentator noted, a written constitution “constitutes a legal rather than political check on power”2. Thus the judiciary is meant as a check on the legislature’s encroachment on the constitution’s founding spirit and intent, with some allowance for evolving circumstances. Judicial independence is especially critical given the PAP’s hegemony over the legislature. It is “even more imperative when Cabinet and Parliament are ‘fused’ to prevent the judiciary from becoming the executive’s tool”3.
Yet this independence has been deliberately eroded over the years. The ruling cabal’s phoney war on the judiciary actually began in the 1980s, and like Mahathir’s struggle, it had its roots in political conflict. In this case it was the emergence of politician J B Jeyaretnam as the first elected Opposition MP in post-independence Singapore that triggered a sequence of legal actions that made his position untenable. The most significant skirmish that followed was the legislature’s curtailment of the right of appeal to Britain’s Privy Council after it ruled in Jeyaretnam’s favour.
But what could prove more fatal to judicial independence than acts of legislation is the psychological element of the phoney war. The ruling cabal’s tactics over the years might, to some degree, induce people into thinking that a different brand of justice awaits those who openly oppose it. Here is where the arrest of Nair heralds a disturbing escalation in the phoney war.
First it seems patently unnecessary. Previously, the judiciary had done its own policing of those who have allegedly tried to undermine the courts. The case of the Chees show that it is more than aptly empowered to do so. Hence having the executive branch step in to take Nair in hand - whether using the part of the penal code about insulting public servants or the Sedition Act, both of which are more suited to dealing with threats to the executive branch’s authority rather than the judiciary’s - might reinforce perceptions of the government’s hold over the judiciary and its tendency to interfere with the latter’s affairs.
More important is the fact that the authorities can’t seem to make the charges stick. Nair’s arrest under an obscure part of the penal code about insulting public servants is perhaps an uncomfortable first, but after Nair spending four days in prison the authorities still do not seem to be able to build a case against him. They allege that Nair sent emails containing his comments to the Attorney-General, something which he denies and which they can’t seem to prove, even though emails would leave a pretty solid trail. In any case, the questions of intent and actual harm done are important, and Nair’s remarks could just as easily be read as an attempt to subject the judiciary to the cleansing of public scrutiny.
Given the apparent flimsiness of the charges, the only thing that Nair’s arrest might serve to accomplish is to reveal the extent to which the judiciary’s integrity will be compromised for political ends.
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1 Straits Times, 6 June 2008
2 Thio Li-Ann, “The Constitutional Framework of Powers”, The Legal System of Singapore, (Singapore University Press, Second edition, 1999)
3 Ibid.
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Cartoon courtesy of My Sketchbook.
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He can be reached at : farquhar.toc@gmail.com
Farquhar features every Friday on TOC.
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I fail to see why people should be censored, or blocked from questioning, or investigating, the independence of the judiciary. At this point, it’s best to turn to Mill philosophy on liberty and freedom of speech. He says that freedom of speech must be protected at all costs to ensure the development of mankind as progressive beings. Any censorship attempt implies an assumption that one cannot make: that the censor is infallible. Clearly, no man, bureaucrat, agency or politician can lay claim to infallibility - not even LKY, whom I tremendously respect in a personal capacity. Mill notes that freedom of speech is important for a number of reasons:
Firstly, a censored opinion may be the truth.
Secondly, even if literally false, a censored opinion might contain part of the truth.
Thirdly, even if wholly false, a censored opinion would prevent true opinions from becoming dogma.
Fourthly, as a dogma, an unchallenged opinion will lose its meaning.
Referring to points #3 and #4 above, that’s exactly what’s happening in Singapore. It may very well be the case that the judiciary in Singapore is independent from the other branches of government. In fact, I’m personally sure that it is. But the government has allowed this feature of the state to transform itself into an unchallenged dogma that no longer pulls its weight. Mill notes that freedom of expression is required to keep true beliefs from dogma, as freedom of thought and discussion is necessary to fulfill our natures as progressive beings who seek knowledge or JUSTIFIED true belief, not just true belief.
There’s only one way to fix this:- tackle the issue head-on. JUSTIFY the judiciary’s independence, rather than censor attempts to question it. Censorship is just a cowardly, not forgetting to mention disturbing, way out of the situation. How about establishing greater transparency and convincing the public of its independence, without having to resort to enforcement of statutes by the very judiciary that is being questioned?
Certainly, this anti-paternal belief in freedom of speech does not apply to members of the public whose rational endowment is severely restricted — the impressionable young, for example. But in the grand scheme of things, as far as the general society is concerned, it applies unquestionably.
The PAP cannot be greater than the Singapore Govt, and the Singapore Govt
cannot be greater than Singapore as a whole. Likewise, the Judiciary cannot
be greater than Singaporeans as a whole. Trying to defend the Judiciary by
using subtle punitive terms to threaten the Singaporean public is tantamount to
casting insults upon the intelligence and maturity of mind of the Singaporeans
as a whole.
Moreover, if the Judiciary is really as independent as it is supposed to be, then
the Judiciary should be able to stand on its own to defend itself, without having
the Law Ministry, which is part of the Executive Arm, to come out to defend it.
The fact that the Minister for Law initiates this defence of the Judiciary is, to my
humble and ordinary mind, an indication that the Judiciary is not so independent
after all.
The Chief Justice may have his own reasons not to initiates this defence in the first place?
It seems to me that the very elite in public institutions are all barricaded, or have barricaded, themselves behind proclamations of integrity and what not.
It looks as though we are creating a class of people which would be rightly classified as “untouchables”.
Recently, the Penal Code was amended to protect such elites as well, namely Members of Parliament and Ministers.
1. Assaulting an MP would now get one a maximum 20 year jail term, up from 2 years previously.
2. One is now not allowed to photograph or video or record any minister without prior approval from the authorities.
Couple these with SM Goh saying that the PAP can guarantee their candidates victories in elections, and MM Lee saying that ‘we have engineered the elections in such a way that it is foolish for Singaporeans to vote for the opposition”, we can see how slowly but surely public institutions and public servants are shut behind an invisible set of laws which, they claim, is supposed to uphold and protect their integrity.
I would have thought that the best way to protect, enhance and concretise one’s integrity would be to be more transparent, accountable and open.
Instead, what we see are public institutions and public servants being given blanket protection through laws enacted by an overwhelming majority of PAP MPs in Parliament without so much as a squeak.
Instead of protecting and enhancing their integrity, these sort of protections are being criticised and the people involved questioned for, ironically, their integrity.
I don’t see anything wrong with questioning the independence of the judiciary. And I believe that the amount of freedom of expression is lacking behind the Western democracies. Also, I find the justification of maintaining status quo that it is necessary to upkeep order and stability too conservative.
But, at the same time, I often find the noble cause of fighting for freedom overly glorified and mistakenly associated with the sole goal of usurping the authority.
Freedom is not about ripping what you don’t like apart. Freedom is not about swearing at a neighbour you dislike. Freedom is not about bashing someone whom talks loudly in public.
Far more important than possessing freedom is harnessing it to build a civic society, which at least has the capability both to engage in discussion and to resolve disagreement in a civilized manner. And I believe we can achieve much more even though we do not, yet, have as much freedom as we would like to.
LKY wrote in his memoirs how he recalled being kicked and slapped by the Japanese soldiers when they overran Singapore because he was too late in bowing to the Emperor and his generals! And he swore that he would never allow Singapore to be ruled by another foreign power, and that it would never happen again! But now he’s behaving worse than a Japanese emperor - sue till bankrupt anybody who is remotely perceived as belittling or humiliating a Minister or PM or him! So where has his moral high ground flown to? The young PM knows no better,so dont bother asking him - he was probably still swimming in his father’s ***** when the Jap army invaded!
We have to respect the judiciary, but the respect must also be earned. It cannot be a blind, trusting respect. The judges are also people, who are subject to mistakes, and errors of judgement. They are not infallable.
In some countries, the judiciary can be bought with money or manipulated by the powerful people in the Government.
We need to strengthen the judiciary so that they can decide independently and fairly and not be subject to external influences. We need some checks and balances to ensure that the judges can act independently and fairly, for the interest of the people.
We need a Justice Pao.
“The young PM knows no better,so dont bother asking him - he was probably still swimming in his father’s ***** when the Jap army invaded!”
— kucingkurap on June 8th, 2008 5.54 am
What does “swimming in his father’s *****” anything to do with the topic?
Gerladine, it means don’t expect the political juvenile to tell his fuddy-duddy daddy he’s getting excessively paranoid and to mind his heavy-handedness and ruining what he had promised a younger generation to open up and discuss and co-create the future!
You should see this video of how the authorities tried to stop them from showing a video in a private screening.
The response by the MIW was not unexpected-perplexing and stupid.
The funniest thing was one of them threatened to charge them with “obstructing justice”. To which some of them laughed. Breaking the law maybe but obstructing justice..the person speaking it has no idea of justice.
http://www.youtube.com/watch?v=6by3jJwoTrQ
I think there is something wrong with the para statement “trying to justify….”. This is like putting the cart b4 the horse. This statement is very mischievious and hope to provoke strong responses…. it can be “defamation” again. Plse examine the sentence again….. and when one analyses it - It can be construed that the Law Minister ALREADY knew of the jail sentences AND the type and manner of the sentences before it was adjudicated by the Court, the reasons for the Law Minister’s statement to be made as a defence of the judiciary. This is all WRONG.
First, the Law Minister statement is a very general one (read the ST again). There is no link when he made this statement with the Chees, Ah Kow or whoever. There was no mention of names. Why then the proposal twisted the facts and squeezed opinions and link the Minister statement with the Chees’ sentences?
Second, the Minister made this statement b4 the Chees were sentenced by the Court. Plse check the timeframe. He knew not, I state, NOT what are the type and manner of sentences meted out. This is called INDEPENDENCE of the judiciary.
I am very sure 80% Singaporeans will be smart enough to judge what is right and what is wrong.
Dear Oscar Choy,
You are mistaken in both your points. First, all the news reports on Mr Shanmugam’s comments stated quite clearly that he was responding to questions from the press about the Chees. (For example, trying searching the Channel News Asia portal: http://www.channelnewsasia.com/cna/cgi-bin/search/search_7days.pl?status=&search=shanmugam&id=351893)
Second, Mr Shanmugam made his comments on 4th June 2008. The courts passed sentence on the Chees on 2th June 2008.
Given these two facts, it is well within reason to say that “Mr Shanmugam was trying to justify the jail sentences handed out to Singapore Democratic Party (SDP) Secretary-General Chee Soon Juan as well as his sister and fellow SDP member Chee Siok Chin…”
But thanks for your comments in any case.
My personal view as an ordinary commoner is that until we ( the citizens of Singapore), sharing the same sentiment exercise that kind of unity and selfless characteristic of the China citizens, volunteers and the likes seen in the recent Sichuan earthquake rescue and rebuilding effort; garner enough signatures to partition for constructive change (no brawl actions or bulldozing tactics), looking through Singapore Constitutions as a commoner (I could be wrong), I think we will not see any drastic change to our current Judiciary system or Policies currently deployed any time soon.
Can we achieve that? I seriously doubt so as each an every individual (including myself), we have our own priorities and more so , when we are confronted with such issues, apart from making our voice heard through internet, the only other alternative is exercising our right during voting.
Obviously at moment, there has not been many worthy oppositions that the majority think it is worth their votes thereby creating a balance in power. Without this balance, the one and only one way we can do sensibly within the Singapore legal framework to voice our collective concerns either to our constituent MP or a collective partition to our authority.
I believe some will argue that this effort is futile because some had tried and failed miserably. Honestly, I personally appreciate the spirit of those oppositions for trying, however, I don’t think I can honestly say I concur the method and tact applied. However, I think we are are persistent in trying in a non-confrontational and constructive way, I honestly think our voices will not go un-notice. It’s sad, but its reality and I think we should at any given time, maintain our sober mind and be a little more patient if we cannot achieve enough unity to make an impact. It is my personal view and by no means am I trying to upset any individual that has differing views.
Oscar Choy ,
“First, the Law Minister statement is a very general one (read the ST again). There is no link when he made this statement with the Chees, Ah Kow or whoever. There was no mention of names. Why then the proposal twisted the facts and squeezed opinions and link the Minister statement with the Chees’ sentences?”
No smart politician will ever mention name just to be tactful and diplomatic, and we should know better who they referring to according to the timing. Farquhar is right that been coincidence in two but not in one case already tell you something. For example, the recent 50km no oil top for Singaporean in Johore is obviously a retaliation due to ruling of Pedra Branca, and of course the Malaysia government will deny that but we should know based our own judgement and instinct and the very of reverting the policy show that.
>> he was probably still swimming in his father’s *****
> it means don’t expect the political juvenile to tell his fuddy-duddy daddy
Independent of the topic of discussion, I find this sort of descriptions offensive and unnecessary to convey the message. Is a driver justified to show the middle-finger even if someone overtakes his or her car by surprise dangerously?
[...] Judging the judiciary - Yawning bread: The Singapore Democratic Party: method or madness? - TOC: The phoney war - Sgpolitics: Ms Chua Lee Hoong, why do you even bother? - Diary of A Singaporean Mind: Chua Lee [...]
Singaporeans should not worry over the attacks on the court over the past week. Because it is the kangaroo court that is under attack. And I’d add about time too.
I read the transcript of the proceedings in Belinda Ang’s Court provided by Mr Martyn See at http://singaporerebel.blogspot.com/
The only knowledge I have of LAW and JUSTICE is what I read and seen in Perry Mason, The Defenders (starring EG Marshall) and Justice Pow Chin Tian when I was a kid. Even with little knowledge, I guess majority of reasonable and fair minded people who read the transcripts would and could feel the scandal going on.
With that, I guess both the newly appointed Mr Shanmugam and Mr Walter Woon
had to do the job of damage control.
But I’m not sure if that’s what they are paid to do.
feedmetothefish
[...] - Yawning bread: The Singapore Democratic Party: method or madness? [Recommended] - TOC: The phoney war [Recommended] - Sgpolitics: Ms Chua Lee Hoong, why do you even bother? - Diary of A Singaporean [...]