Are Singapore courts pliant?

Pliant means easily influenced, directed, biddable, managed, and a host of synonyms describing a weak disposition of character. When used to describe the courts, the Attorney General has defined it to mean ".. the Singapore Judiciary acts on the direction of the Singapore Government, is not independent, and has ruled and will continue to rule in favour of the Singapore Government in any proceedings, regardless of the merits of the case.”

Criticisms of the courts have landed many in trouble with the law in Singapore. Calling the courts pliant in a private Facebook conversation has landed no less than a grandson of Lee Kuan Yew and a nephew of incumbent PM Lee Hsien Loong in trouble. Arms-folded, Singaporeans stand on two sides of the aisle. One seeing a great effort to demonstrate no one is above the law. The other sees a PM using state resources to persecute a proponent in a personal matter in light of the family feud in the background. 

I apologise the title of this blog is a click trap. But can we not discuss pliant in a mature and educated manner?

"Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must not rest on sheer foundations, nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more at stake it is no less than freedom of speech itself " Lord Denning

Calling the courts pliant scandalises the courts and can be charged for contempt of court. Contempt is an awsome power and needs to be exercised very judiciously. Many jurisdictions have come to view this as an archaic law and taken steps to minimise its use. Singapore has gone the other direction and passed the Administration of Justice (Protection) Act where definitions are so loose that it is better for one to shut up. The Singapore courts are beyond criticism.

The main purpose of the contempt power is not to protect the dignity of the court against insult and injury, but to protect and indicate the right of public so that the administration of justice is not prevented, prejudiced, obstructed or interfered with. The tangent view is that scandalising the courts diminishes the judiciary in the country and people's trust in the system. While the Executive has lots of weapons to fend for themselves, the Legislative has Parliament house, judges have no forum to define themselves and they have a need to avoid controversy. Thus contempt offers them protection. 

The question of whether a court is pliant arises when it is called upon to decide if an administrative action, or a legislation, is fair. There have been cases where the litigants have won against an administrative action, but the incidence of such judicial disagreement with the executive is low, especially in those with political undertones. This situation has led many to hold the view that the judiciary defers to the executive. Or one may say the judiciary is reluctant to do proportionality analysis.

The attitude of the courts towards judiciary review of administrative action and legislation is influenced by judicial ideological persuasion on the red light/ green light doctrines. Basically, red light judiciary believes rights over law and they tend to be confrontational with the Executive and Legislative. Green light judiciary takes a more constructive approach.

Green light believers take the view that judiciary helps to make good administration better. It is foundational that the executive body is the elected representatives of the people, entrusted to legislate appropriate laws for the good of the people. The judiciary can only review the facts and the correct application of the laws, It has no business nor expertise to review political or national implications. To this extent, it will consider proportional analysis only where the administrative action is 'irrational' as to have 'Wednesbury unreasonableness', or bias.

Singapore courts have publicly made their stand in favour of the green light approach, in the ex-curia speech by CJ Chan SK 2010. This approach was further endorsed in the Kenneth Jeyeratnam vs AG 2012 case. The message from the Singapore judiciary is loud and clear. Do not seek the courts to change bad laws - do that through the ballot. Put it another way, do not seek redress for bad government via the courts, do that through legal political process.

The question thus arises - why does the judiciary here take to the green light doctrine? In his 2014 paper "According to the Spirit and not to the Letter: Proportionality  and the Singapore Constitution", Asst prof Jack Tsen-Ta Lee of the Singapore Management University suggested ".. The general reluctance of the courts to exercise constitutional judicial review probably has its roots in the political experience of Singapore." Singapore has been dominated by one single party since independence in 1965. Each election has seen the PAP garnering a huge segment of the popular vote. Parliament is predominantly comprised of PAP members. The strength and party discipline of the PAP, the members required to vote according to party line, has meant laws can be, and have been, passed with great ease.  

This over-powering and intoxicating dominance of the PAP impacts every aspect of our cultural, social, and economic life as well as all spheres of human activities be it in business, education, the judiciary, etc. That dominance is reinforced by the larger than life personality of Lee Kuan Yew himself. The government is elected by us with overwhelming majority, it does it's best, it knows best, and it's trusted. So even though we have constitutional sovereignty, in reality, we live under parliamentary sovereignty.  

In 1986 a Commission of Inquiry into 'Judicial Independence" was held following an application by opposition MP JB Jeyeratnam, who claimed government interference in the subordinate courts.  In the parliamentary debates, Opposition MP Chiam See Tong made a remark that the PM Lee "dominates the universities, the civil service, statutory boards, I think, even Members of Parliament". In his akwardly style, the endearing Chiam made the same suggestion that the personality of LKY dominates everything, thus influencing decision making although not personally directed. 

In that same parliamentary debate, Lee Kuan Yew said:
"THE Subordinate Court judges are controlled by the High Court judges who can only be removed by an impeachment here in this House, by a two-thirds majority.  But in Singapore, we have an extra supervision on them. When they write their judgments, they know that it could go up to the Privy Council and judges, nothing to do with Singapore, will scrutinise whether their findings are in accordance with the law."

For those who are not aware, in the past, Singapore outsourced it's last avenue of judicial appeal to the British Privy Council. Being a person of highest integrity, Lee boasted this avenue of last recourse stamps the unquestionable independence of our legal system. (By the way, the 1986 Commission of Inquiry concluded there was no administration interference in the courts. The commission was presided by the CJ over JBJ's objection.)

In 1993, Singapore judicial sovereignty finally established itself with the abolition of appeals to the Privy Council and establishment of the Court of Appeals. What caused the change of heart of Lee? It had to do with JBJ yet again. In 1986, JBJ lost his MP seat as well as a disbarment after being found guilty of falsifying party accounts. He went all the way to the Privy Council and in 1988 he won and the case was overturned, he returned to the bar. Lee felt a lesson was learnt, that a court a few thousand miles away from Singapore, is unable to understand the context of a case before it. 

At the core, an allegation, or slur, to the independence of the judiciary, questions the integrity of our legal system, which of course needs to be challenged. On the other hand, neither can the public allow a cloak of protection of the courts camouflage administrative or legislative attempts to diminish the rights of citizens, particularly when driven by political self interests. How well are we doing so far is a matter of personal opinion, and in the market of ideas, the Administration of Justice (Protection) Act are drowning the voices.

"(Mr Chiam) now says, because I have been here for 25 years, I have become so dominant, so dominating, such a big banyan tree with such widespreading roots, that they all do my bidding... It is not the way a government is run. If you run a government that way, you end up like the Philippines. Because at some stage, it will all come out. It will all come out, what President (Ferdinand) Marcos said to the judges and to the prosecutor, and so on and so forth." ... Lee Kuan Yew

Great words of advice for the current administration.