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Friday, July 11, 2008

Of word games and human rights, democracy, rule of law and all that jazz

The International Bar Association has released a report entitled, ‘Prosperity versus Individual Rights? Human Rights, Democracy and the rule of law in Singapore.’ The Ministry of Law has responded swiftly to the report. Let’s see what the Ministry has to say.

From para 2 of MinLaw’s response:2. From a quick perusal of the Executive Summary, we note that IBAHRI has not taken into account our comments on their draft report, sent on 9 April 2008. We release a copy of our comments previously given to the Chairman of the IBAHRI on the draft report, for your reference.”

It is MinLaw’s assertion that IBAHRI had not taken into account their comments. This is a reference to a letter dated 9 April 2008 from Mark Jayaratnam, Deputy Director of the Legal Policy Division of the Ministry of Law. I went through the IBAHRI report and for good measure I used the ‘search’ tool available for pdf files. Mark Jayaratnam’s letter is referenced by the report 19 times. They have ‘taken into account’ the comments. Although, it is clear that it does not necessarily agree with the comments, IBAHRI has, where appropriate, quoted from the letter to illustrate the Singapore Government’s viewpoint.

The moral of the story… don’t jump to conclusions based on a quick perusal of the Executive Summary. Surely, the Executive Summary is not going to exhibit the government’s comments. I suspect that when MinLaw asserts that IBAHRI did not take into account the comments, what they really had in the mind was that IBAHRI did not agree with their comments. One can take into account an opposing thesis and then disagree. The fact that one disagrees does not mean that one has not taken into account the opposing thesis.

From para 3 of MinLaw’s response:
“3. The IBAHRI Report questions the independence of the Singapore Judiciary. This is contradicted by Mr Fernando Pombo, President of the IBA, who stated in his opening speech at the IBA Conference in Singapore last October that lawyers the world over were coming to Singapore because:
"this country has an outstanding legal profession, an outstanding judiciary, an outstanding academical world in relation to the law".”


It is quite clear from the IBAHRI Report that the allegations directed at the issue of the independence of the judiciary are muted and qualified. IBAHRI does not go all out to claim that the judiciary is not independent. They have acknowledged the high standards maintained by the judiciary and the high standards within our legal system. But, they have sought to address the nagging doubt that is raised by some of the ‘political’ cases that have appeared before the courts. The criticism is measured and I believe it is not inconsistent with the IBA President’s comments at the IBA Conference last year.

“The judiciary in Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases that do not involve the interests of PAP members or their associates. However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient. In addition, it appears that some of the objective characteristics of judicial independence, including security of tenure, separation from the executive branch and administrative independence may be absent from the Singapore judicial system.”

IBAHRI’s comments and their findings do not assert an actual executive interference in judicial affairs. In fact, they are suggesting that there is room for improvement. After all, justice must not only be done, but must be seen to be done.

From Para 4 of MinLaw’s response:
“4. Other independent observers agree. The Political and Economic Risk Consultancy (PERC), which rates Asian countries on their business and legal environments, regularly rates the Singapore judiciary highly. PERC's Asian Intelligence Report 2006 explained that this was because the Singapore judiciary demonstrated three essential elements of judicial independence. First, the courts and individual judges within the system are publicly perceived to be impartial in their decisions. Second, judicial decisions are accepted by contesting parties and the larger public. Third, judges are perceived to be free from undue interference from other branches of government. The IBAHRI Report failed to acknowledge these facts.”

IBAHRI does refer to the PERC Asian Intelligence Report of 2006. In the section D of the Report under the heading ‘Singapore’s International Rankings’, IBAHRI has outline a number of rankings that rate Singapore very highly and some that rank Singapore poorly. Specifically in relation to the judiciary, this is what they say:

“In the judicial and legal system rankings, Singapore has also performed well in international assessments. In Transparency International’s Corruption Perceptions Index 2006, which measures the degree to which corruption is perceived to exist among public officials and politicians, Singapore ranked fifth in the word. Similarly, in an Asian-only based report, the Political & Economic Risk Consultancy’s Asian Intelligence Report 2006, strong commendation of Singapore’s judicial system was made, stating: ‘Within Asia, Hong Kong and Singapore are the only two systems with judiciaries that rate on a par with those in developed Western societies…’

So, the bone of contention for MinLaw is that IBAHRI did not acknowledge all of the accolades given by PERC. Clearly, if IBAHRI intended to carry out an independent study, it would take into account the findings of multiple sources and draw its own conclusions. We can’t expect IBAHRI to rubber stamp PERC’s findings. All that this indicates is that there is a variety of opinion out there about our judiciary. In any event, the point that IBAHRI seems to make is not so much that our judiciary is not independent but rather that there is a perception of lack of independence.



From Para 5 of MinLaw’s response5. The IBAHRI Report did acknowledge that "Singapore has a good international reputation for the integrity of their judgments when adjudicating commercial cases", but it alleged that for cases that involve "the interests of PAP members or their associates", there were "concerns about an actual or apparent lack of impartiality and/or independence". Instead of substantiating this grave allegation with evidence, the Report argued that "regardless of any actual interference, the reasonable suspicion of interference is sufficient". This is a feeble justification.

Oh my God! Feeble justification. A very important principle of procedural justice is a ‘feeble justification’. Justice must not only be done but must be seen to be done. This principle is basic. The point is best illustrated through using the process of adjudication. If I judge a civil dispute involving my son as the Plaintiff and some other person as the Defendant, I might still be able to do the honourable thing and adjudicate impartially. I might assure the defendant that I will adjudicate based on the law and the evidence before me and that the Plaintiff will be treated as just any other person. It is not inconceivable that a true man of conscience with a deep sense of justice would be able to perform this separation of reason and emotion.

There is a story about a Chola king in Tamil Nadu that has passed into legend and it is eulogised in classical Tamil literature. Manu-needi Cholan had a son who killed a calf by riding his chariot over it. The king had a petition-bell outside the palace. Any person who felt aggrieved may ring the bell and seek justice. The mother of the calf was ringing the bell violently. The king eventually discovered through his aides the full story pertaining to the killing of the calf. He then ordered that his son be punished for the crime that he committed.
This story is always presented as an indication of how an honourable king would behave when adjudicating a dispute. The unstated fact is that impartiality in adjudication is not a norm and is usually an exception. Surely the norm is that a king would have difficulties in being impartial when his own son is involved. So, it is important that the king does not place himself in a position of a judge when his own son is the object of the complaint. However, that old Tamil story seeks to instill the value of impartiality within the ruler rather than to insist that a system of impartiality be created to distance the king from the adjudicative process so that we can guard against the human frailty (which is a norm rather than an exception).

In English law, which we have inherited, there is a deep sense of impartiality in decision-making that has been implanted within civil and criminal proceedings. In fact, instead of taking chances with the ability of fallible human beings in performing the mental gymnastics of separating their personal emotions (fear, favour, vested interests) from the rational processes, there is a principle of natural justice that no man shall be a judge in his own cause. If a judge is faced with a Plaintiff or a Defendant in a case and there is a personal financial or non-financial interest that the judge has in the case, he must not hear the case. The principle extends beyond actual bias and deals with apparent bias as well. Our own courts have in many cases held the principle to be of application in Singapore. Of course, this is a principle that is utilised in the course of judicial proceedings. So, a judgment can be quashed not only where actual bias is proven but also on the basis of apparent bias.

Therefore, in the context of judicial impartiality and/or independence, there is no reason why the standard of apparent lack of impartiality and/or independence should not be applied.

IBAHRI’s assertion is as follows:

“However, in cases involving PAP litigants or PAP interests, there are concerns about an actual or apparent lack of impartiality and/or independence, which casts doubt on the decisions made in such cases. Although this may not go so far as claimed by some non-governmental organisations, which allege that the judiciary is entirely controlled by the will of the executive, there are sufficient reasons to worry about the influence of the executive over judicial decision making. Regardless of any actual interference, the reasonable suspicion of interference is sufficient.”

Note that the report does not state that there is no impartiality or independence. It states that there are ‘concerns’ about the ‘actual’ ‘or’ ‘apparent’ lack of impartiality and/or independence. In fact, they were at pains to point out that they were breaking ranks with other NGOs that go overboard in criticising the judiciary in Singapore.
This, however, is the allegedly ‘feeble’ point that they are trying to make: “regardless of any actual interference, the reasonable suspicion of interference is sufficient.”
The point is that it is not enough for a government to assert that there is no interference. Efforts must be made to ensure that the system is not capable of being abused. Efforts must be made to ensure that the system does not allow for the possibility of interference. Efforts must be made to ensure that there can be no reasonable perception of interference. In its report, IBAHRI uses the examples of Judge Michael Khoo, the trend in defamation suits and the Jeyaratnam case that went up to the Privy Council to illustrate the perception of interference. It is clear from the report that there is no actual evidence of interference.

When IBAHRI states that reasonable suspicion of interference is sufficient, they mean that a modern state such as Singapore should strive for a higher governance standard. We can no longer be judged like a third world country. We have first world standards in so many aspects of our life. Is there anything wrong in seeking to have a system of governance that excludes the possibility of executive interference in the judiciary?

From para 6 of MinLaw’s response
6. The cases brought by PAP members usually relate to scurrilous and completely untrue allegations of corruption made against them. Providing clean and efficient governance is a longstanding cornerstone of the PAP Government's policy. Thus defamatory allegations cannot be allowed to rest. The accuser has to prove his allegations. The decisions of the Courts in these cases are matters of public record, and can be analysed. Anyone questioning these verdicts should try to do so by examining these decisions properly, rather than making vague unsubstantiated allegations. What the western media continually criticise is that Singapore does not adopt Western, i.e. American, defamation laws that give the media freedom to report libellous untruths without liability to pay damages. It is also absurd to suggest that honourable and upright judges in commercial cases become compliant and dishonourable when dealing with defamation cases involving government ministers.
I will be fair to our judiciary in those defamation suits. The decisions have remained within the rational limits of the English law of defamation that we have inherited. Using defamation suits alone as a basis for alleging the perception of lack of judicial independence would be insufficient. IBAHRI does not rely on the defamation suits alone. In fact in relation to defamation suits, the bone of contention appears to be that statistically, PAP litigants have received much higher damages compared to non-PAP litigants. Incidentally, the IBAHRI statistics are a bit outdated. They end at 1999. IBAHRI also takes issue with the Summary Judgment procedure that is available under our Rules of Court for defamation suits. When a matter is disposed via Summary Judgment, the matter is not heard in open court. In suits involving politicians, this can run counter to the need for the public to view the proceedings so that they can form their own opinion and so that no allegations of executive interference can be made in the judicial process. It is from this perspective that IBAHRI have made their observations vis a vis he defamation suits.


Para 7 and para 8 of MinLaw’s response deserves a separate comment which I will attempt to do in a separate blog.

1 comment:

Anonymous said...

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Christian, iwspo.net