The great wall of legal obfuscation that Terry Xu must face

Sometime in 2017, Dr Lee Wei Ling posted on her Facebook some explosive comments relating to the final will and testament of her father Lee Kuan Yew. Her narrative alleged some impropriety on the part of her brother, Prime Minister Lee Hsien Long. This fed into the brewing private family dispute which has spilled into the public domain. On the promise of transparency, the PM put the matter up for discussion in parliament where, without hearing the evidence of all other parties to the dispute, PAP members of parliament cleared the PM of any wrong-doing. PM Lee refused to sue his sister as it would 'further besmirch' their parents' names. The parliament 'debate' raised a further public outrage that the PM has misused government resources for a private dispute, it served the PM well to self-absolve from blame in a PAP version of transparency, 'come clean' and just allow the matter to quietly fade away.

Last month August 2019, Terry XU, Chief Editor of online news The Online Citizen, reposted the old 2017 post of Dr Lee, in TOC's Facebook. It was not an editorial piece and neither did Xu add any personal comments. It was not exactly ad verbatim but basically a factual report on that controversial comment of Dr Lee. He has now been sued by PM Lee. The uniquely Singapore circus is back in town again.

The crux of the family dispute was one party (Dr Lee and brother Lee Hsien Yang) wanted to honour LKY's dying wish to have his house demolished, whilst the other party (LHL) does not. The reason why LKY wanted his house demolished was his disdain for the building of a cult after his passing as well as to be fair to the neighbours who never had a chance to rebuild their properties and were disadvantaged in the property boom years.

Without getting into the full details of the dispute, there were allegations (in relation to this suit) that :

• LHL misrepresented to his father that the government is gazetting the property as heritage site, ie, he lied - there was no such gazette. This persuaded LKY to change his dying wish for his house to be demolished.
• Mrs Lee Suet Fern, one time managing partner of law firm Morgan Lewis Stamford and sister-in-law of PM Lee, drafted the last will, which she has denied.
• M/s Kwa Kim Li, managing partner of Lee & Lee, and cousin of PM Lee, was the one who drafted the final will. All LKY's legal affairs were handled by the law firm Lee & Lee. Kwa has denied she drafted the final will.

Obviously someone, possibly more than one, in the Lee family had LIED. If LHL has been aboveboard all the while, then all is fine. If not, then he has certainly painted himself into a corner with this libel suit, for a fair trial must certainly come to the truth of the matter regarding the family dispute. The whole world will discover whether the prime minister, or managing directors of powerful local law firms, of a country that boasts of a clean government, has been dishonest. When the dust has settled, it is the reputation of Singapore that will be severely damaged, done in not by media, least of all XU, but by the powerful who uses defamation laws as their preferred tools to browbeat the weak.


The chill winds blow for Xu :

Xu's first mistake -- he decided to represent himself, ignoring the old adage 'a man who is his own lawyer has a fool for his client'. But one ought to salute his sincerity and strength, traits not often seen in the government leadership. For Xu, his post was not defamatory and he will not apologise to avoid the suit. He will speak truth to power and carry the burden of financial losses, fighting in what he believes for the rights of Singaporeans to freedom of speech.  He said he cannot afford a lawyer and he does not wish to burden the public with crowd funding.  He is right as far as legal fees are concerned. To face the might of PAP in court, one needs heavyweight lawyers the likes of Shanmugan or Edwin Tong from the esteemed firm of Allen Gledhill, whose services save one in legal battles but kill in legal fees. Perhaps Xu is not saying that he ran out of numbers to call. There is a certain chill in Singapore that blows through the legal fraternity. Why take such cases which warrant stepping on the toes of a well-connected Singapore Inc and risk multi-million dollar projects drying up. Years back, twice the opposition leader Chee Soo Juan, could not get any lawyers to represent him in defamation suits brought by the Lees. He had to resort to engaging Queens Counsel from UK.

There are questions the public asks -- this is not POFMA but a libel suit, so what is the ramifications of selective legal action against someone reposting some comments, and not on the originator of the comments. The original post did not elicit a libel suit, does not that imply plaintiff consent? If plaintiff was not damaged by the original post, how can he suffer damage from a repost. Similarly if plaintiff has suffered damage from original post, can he suffer again from a repost? How many skins does a man have? Our local legal personalities are not vociferous so there is hardly any public discourse to educate us on this case. The experts hide behind the excuse of not wanting to run foul of sub judice laws or holding public trials, but it's up for speculation what the real fear is. In this void, allow this legal-illiterate writer to ponder the Great Wall Of Legal Obfuscation in store for Xu.


Reputation of Singapore courts :

This is the case of a private individual from media against the most powerful man in the country, no less the prime minister. With Singapore's low ranking in the international index for human rights, no bookie is taking a bet in favour of Xu. But let no one disparage our judiciary. We have a very competent and independent judiciary. The government does not dictate to the courts. "This is not the way our government works" according to LKY. After all, the question of executive interference in judicial decisions has been put to rest in the 1980s following the curious case of the transfer, demotion or promotion of Michael Khoo from District Judge to Public Prosecutor shortly after he had cleared opposition icon JB Jeyaratnam of some criminal charges. An Inquiry of Commission (chaired by a sole commissioner Justice Sinnathuray) was formed which found no executive interference in the removal of Khoo as judge. The opposition howled it's a white-washed internal inquiry with the chair objected by many. It satisfied PAP's standard of transparency and is written into the national legal archive as such for posterity.

The reputation of Singapore's judicial system has made our country a popular place for arbitration in this region. This is true in commercial and criminal cases. Not so for libel.

Singapore court has taken a divergent path away from black letter laws (which are well-established case laws) in the area of defamation jurisprudence. Xu will do well to grasp this as he attempts to build his defence or it will be a knock out for him by the first bell. In understanding the judicial ideology, getting into the minds of the court in libel cases, Xu may well find his legal battle mission impossible.


PAP exceptionalism :

According to Prof Jayakumar, ex-Law Minister, who said of Lee Kuan Yew : “He is prepared for a robust criticism of his policies. He can be criticised for foolishness, maybe even for incompetence, for arrogance, but his red line was — not on reputation and integrity.” He brought defamatory charges not to “drive home a point that (the Opposition politician) should not have stood for the elections”, the point LKY was trying to make was to get those who impugn his integrity to justify their allegations. In the cut and thrust of politics, all sorts of accusations are hurled. LKY disliked the rambunctious way of the West and sought to establish a threshold that people of integrity in government and in Cabinet must be prepared to defend.

From this purist and noble philosophy has evolved a PAP exceptionalism. The ruling elites, anchored on million dollar salaries, are incorruptible perfectionists and anyone that impugns on their personal integrity denigrates the credibility of the government. An attack on them personally is an attack on the state. It becomes the unwritten policy that ministers must sue when they are defamed. The fear narrative is implicit. A smear on their personal integrity shakes the foundational pillar of governance. If left unchallenged, the government will come crashing down. With this badge of self-honour, arise a trigger-happy PAP with a litigious culture.

It is one thing for libel suits to be pressed against persons who are political players with an agenda, but something else when small time bloggers and honest media face the full force of powerful bureaucrats.


Judiciary ideology sculpted in stone :

In the words of Chief Justice Yong Pung How : “ [the] sovereignty, integrity and unity of Singapore are undoubtedly the paramount mandate of the Constitution and anything … which tend[s] to run counter to these objectives must be restrained.”

These are chilly words. What CJ Yong meant was the convergence of judiciary and executive views that constitutional rights of individuals must take back seat in deference to the interest of the state. Which means the court must balance the individual's right of free speech to the protection of the integrity of leaders. In other words, the judiciary has normalised the agenda of the PAP. Singapore is a state where socio-enconomics prevail over civil-political interests.

The rule of law is a very contestable concept. It is a tug between a procedural rule-based 'thin rule of law' and a substantive rights-based 'thick rule of law'. Singapore's judiciary takes the thin rule path. What this means is the court is only concerned whether the laws have been enacted properly, they are apathetic to the fairness, justness, and reasonableness of the laws. Under such circumstances, the judiciary is tilted to defer to the executive in the interpretation of those laws. The court is not fixated on democracy but on protection of the economic interests of the state which has been obfuscated to protecting the integrity of bureaucrats. The PAP's integrity is the state's integrity.

"The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which." George Orwell's Animal Farm.

The thick rule laws are more adversarial in nature and this concept predominates in western democracies. It goes without saying the government prefers a thin rule whilst the opposition, and probably the public too, would want a thick rule. The true test for the integrity of the PAP elite is whether one day, when they are in opposition, will they stay true to their position on a thin rule law. When they are creatures from the outside looking in, will they demand to see the 'pig' from the 'man'.


Rule of Law :

Is a 'thin rule' dogma innately wrong? Certainly not. The Diceyian 'rule of law' postulates that (1) Everyone is equal before the law (including prime ministers). (2) Sanctions have to be backed by law. (3) Courts are the ultimate body and supremacy of court is ambivalent in civilized society. But Albert Dicey was writing from the context of UK which presupposes a robust working opposition and a judiciary prepared to make judicial reviews, or proportionality analysis, when necessary. Two critical elements that are missing in Singapore.


Uniquely Singapore black rule laws on defamation :

Singaporeans final course of appeal used to be the Privy Council in UK, an arrangement that LKY praised when it suited him in the past. It bore testament to the independence of our judicial system. Thanks to opposition icon J B Jeyaratnam winning an appeal in the Privy Council in 1988 against his disbarment from parliament, LKY abolished the right of appeal to the council. The rationale has changed to jurisprudence must reflect the values of Singapore society, something a court in faraway UK is not expected to deliver.

Black rule laws are case laws which have gone past scrutiny and are well established principles. To reflect unique Singapore values means that autochthonous jurisprudence must come from the four corners of Singapore and not foreign-dependent. Junk foreign case laws and rebuild Singaporean black rule laws is the way to go. The many cases of defamation since then has allowed the courts to build some indigenous case laws. With a judiciary and executive convergence of a thin rule ideology, the ascendancy of parliament in the court is the status quo.


Libelocracy :

Clive Walker & Russell Weaver coined the term 'libelocracy' to describe a regime where politicians sue non-political publishers, politicians sue politicians, repeated claims, and seeking substantial damages, all these not for vindications of purely personal integrity, but for political success of self and significant political damage to the other.

As the court continues to compile its black rule laws of defamation arising from 'libelocratic' cases, would it not lead to some clash of doctrines with libel cases from commercial or civil domains where universal principles apply? The logical conclusion is a ridiculous situation of a duality of doctrines.

Xu should do well to study not libel cases from the commercial or civil domains, but those 'libelocratic' cases of the past, of which there are many. Here are some illustrations:

LKY vs Seow Khee Leng (1989)

Judge Chua : “[m]oral authority is the cornerstone of effective government. If this moral authority is eroded, the government cannot function.”

What does this mean? All due respects to non-Chinese Singaporeans. The court takes a Confucianist view of Singapore society. The ruling political elites form the 'junzi' of society. They are the PAP elites that has moral legitimacy to look after the interest of the community. In other words, their integrity is a foregone assumption. You attack their integrity, you attack the state. The 'pig' and the 'man' is one and the same.

The good judge has solidified the light that CJ Yong shone to restrain attacks against the Junzi, which is an attack on the state.

(By the way, if the PAP are 'junzi', what does that make for the rest of Singaporeans in Confucianist terms? They are the 'xiaoren' -- the small people who panders to pettiness and mundanes, or in the words of PAP, the mediocres, the lost hopes, 'si kwee kia' which means dead little devils).

Lee Hsien Loong Vs Singapore Democratic Party (2007 NKF case)

'Qualified privilege' is a black rule case of defence in defamation cases. It is a freedom of speech allowed to certain parties who has immunity from legal suits. A good example is the media, provided they publish with honesty in their belief in the truth of the story and without malice.

A defence of 'qualified privilege' was made by SDF that the party has a duty to publish their views as a matter of public interest. Judge Belinda Ang viewed the argument was a “distortion,” and “[t]he mere fact that a publication relates to ‘political information’ or ‘matters of serious public concern’ does not entail that qualified privilege therefore attaches to its dissemination to the world at large.”

The court has definitively and plainly stated that this line of defence is no longer available in uniquely Singapore. The executive has regulated online news and The Online Citizen is considered a media and has paid registration fees diligently, but the court will not recognise freedom of speech immunity for TOC.

JB Jeyaretnam v. Goh Chok Tong (1985)

In 1981 GCT, then a Minister of Defence, made certain remarks about JBJ leaving a Singapore Democratic Party meeting. JBJ felt the comment was defamatory and sued. The defendant GCT line of defence was 'fair comment'. This line of defence holds the view that, however the statements may led to an inference that it was biased, prejudiced, or grossly exaggerated, it is a fair comment if fair-minded persons could have honestly arrived at the same conclusion, that it was just a reasonable fair comment.

Time for hooray, for a defence of 'fair comment' is actually allowed. It is a fair court after all, no? Well, actually, too bad for Xu. It is not the line of defence he should take. In this precedent case, plaintiff JBJ actually proved in court the defamatory words imputing dishonorable conduct or a lack of integrity. But the court allowed for GCT's defence of fair comment.

This sets the precedent for the use of 'fair comment' as it applies to bureaucrats and affords protection to the executive. What is good for the gander is not good for the goose.


Lee Hsien Loong vs The Review Publishing (2010)

This case is significant for two stunning acts by the court.

(1) On the defendant's 'qualified privilege' defence, the court made a review of the practice in UK, Australia, New Zealand, Malaysia, Ireland, Samoa, and South Africa. A very unusual undertaking to show the approaches countries adopt to balance defamation and the rights of freedom of free speech. It then defined the approaches as three rights -

• 'preferential rights' - where freedom of speech is preferenced over protection of reputation if it is reasonable and relates to government and political matters.
• 'fundamental rights' - freedom of speech trumps protection of reputation, unless the defamatory statement was published with malice then they they do not enjoy constitutional free speech.
• 'co-equal rights' - where neither freedom of speech nor protection of reputation takes precedence over the other.

In reality, it was a judicial meandering of no legal nor academic consequences because the court then retreated to a safe ground and declared as the defendants were not Singapore citizens, they do not enjoy constitutional free speech

Is it not remarkable that protection of reputation is not the preferred approach in all three cases. Since Xu is a Singapore citizen, what will the court now say?

(2) Freedom of speech was enshrined in the Constitution in 1963, at a time when there was political and economic instability. Strong defamation laws were necessary to prevent political assassination of bureaucrats' integrity which can be used to destabilise the country. The court commented that a balance of freedom of speech and protection of reputation is still as important today as it was in 1963.

It then made a jaw-dropping statement. Any 'qualified privilege' defence must be able to produce evidence that the political, social and cultural values today have changed.

What does this mean? The defendant is provided an Augean stable. It seems to be a statement that not only confirmed the normalisation of PAP exceptionalism by the court, but that it has no intention of changing their position. 


The case for Plaintiff Lee Hsien Loong :

The normal principle that he who asserts, must prove, applies. These are the assertions in the summon which the plaintiff LHL must prove:

1. The offending words are false and baseless.
2. Were calculated to disparage and impugn the plaintiff as well as in his office as the Prime Minister.
3. The plaintiff has been gravely injured in his character and reputation, and has been brought into public scandal, odium and contempt.
4. There was malice on the part of the defendant

The assertion of 'malice' is interesting.

Firstly, it is a very difficult standard for a plaintiff to prove 'actual malice'. The number of cases where plaintiffs have been successful in using 'actual malice' in defamatory suits are few. If you think 'malice' means LHL is claiming Xu hates, and has ill will towards him and intends to do harm with the Facebook posting, you are wrong. It has nothing to do with the intent of Xu. "Actual malice' in a defamation case means publishing a statement knowing that it is false, or acting with reckless disregard for the statement's truth or falsity. It has nothing to do with what a reasonable person would have published or investigated prior to publication.

LHL must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. Irrationality, stupidity, obstinacy,  failure to contact LHL for comment, relied on a biased source, revived the post after taking it down - all these on the part of Xu do not constitute malice. 

In determining 'actual malice', the court will focus on the actual state of mind of Xu at the time of publication. All that is required of Xu is to hold that he honestly believed the opinion he expressed to be true, but no more is required of him.

In US, 'actual malice' claim applies only to certain categories of public figures. Private figures do not need to prove 'actual malice'.

Secondly, if 'actual malice' is difficult for plaintiff to prove, why did LHL make this assertion. The reason is with 'malice', quantum for damage is multiplied many times over. It demonstrates the vindictiveness of the executive.


The case for Defendant Terry Xu :

A defendant in a defamation case has several lines of defence. Xu needs to be extremely careful on what lines he intend to adopt.

1. He has qualified privilege.
2. It was a fair comment.
3. There was plaintiff conscent.
4. That the statement is True (and he honestly believed it to be true)

Xu's job is to argue against the 4 assertions by the plaintiff and then argue for his own line of defence. He should forget about defence (1) since 'freedom of the press' is a bad word in our court. He should not adopt defence (2) and (3) but instead use these lines of argument when countering against Plaintiff's assertions (2) and (3) respectively.

Whilst the first three strategies are arguable, previous defamation cases brought about by the powerful have shown the court tends to hold laodicean views on these lines of defence which are easily killed by some creative judicial wisdom.

Xu's defence rest entirely on the plea that Dr Lee's version is the truth. It will be a great challenge for the court to separate Xu's case from the Lee family dispute. It is in fact, impossible. That being so, there may be tendencies for the court to be skewed towards protecting the sensibilities of one of the parties. Given this scenario, there is perhaps wisdom in Xu representing himself. With no links to the legal fraternity nor concern for projects from Singapore Inc, Xu can be a loose canon in the court. One recalls the case of university student leader Tan Wah Piow who represented himself when he was (falsely?) charged for rioting in 1987.

Tan:    May I ask a question, Sir?
Judge: You may ask 1 question.
Tan:    Thank you Sir. Question 1(a)....., 1(b)....., 1(c).....

By the way, for those who still think Tan is a communist (anyone?), he is'nt. And here's the reason -- he fled Singapore. A communist will die-die stay his ground. Of all people, LKY knew the dedication of communists well.

The cold reality is, Xu will find his presentation of facts and arguments an almost Sysiphian task in a Singaporean system where the court and the government hold a convergent view that subjugates personal interest in deference to the larger communal interest. Where the court holds the executive has moral legitimacy. Where there is a blurring of lines of the persona of executive and government ie. the 'pig' and the 'man' are one and the same.


Conclusion :

In 'libelocratic' defamation cases, the Singapore regime is one of economics over democracy. Socio-economics triumphs over civil-political rights. Whether this is the best way to organise society is debatable as both Singapore and China has proven that the platform of thin rule law has lifted millions out of poverty within one generation.

There is a strong case for the need to protect the integrity of bureaucrats, especially for a country that has built its foundation on the pillar of anti-corruption. But this approach must not itself become a dogma that equates protection of bureaucrats to protection of the state. The 'pig' must be differentiated from the 'man'. Failure to do so allows the capture of a legal tool by a ruling elite to perpetuate power.

It will be a great travesty of justice to see this LHL vs Terry Xu case produce a judicial wisdom that PM Lee's exoneration by parliament is final and using this to justify a move for summary judgement, thereby denying the public a glimpse into lurid details. Highly unlikely, but it will be a fool who rule out this escape hatch.

This whole idea of PAP to sue when their integrity has been tarnished is laudable. It is the partisan interpretation of the two common defence of 'qualified privilege' and 'fair comment' by the court that is troubling. Yet a glaring omission to act against so many defamatory posts in 'johnharding.com' and 'escapefromparadise.com' all these years is befuddling. Allegations of John Harding alone certainly seem much more damaging than all the indiscretions of JB Jeyaratnem, Chee Soo Juan, Amos Yee, Roy Ngern, Leong Tse Hian, New York Times, FEER, and others, all put together. Harding's posts seriously damaged the integrity of Singapore and not one cabinet member has ever felt it important enough to raise the matter in parliament. If PAP exceptionalism deems defamatory allegations on them personally is an attack on the state, then non-action against Harding surely tantamounts to a dereliction of duty. The fact of the matter is, the PAP, our government, Singapore, has been damaged by what Harding posted.

In the same light, Dr Lee's original statement regarding 38 Oxley Road, is state business after all and rightly was discussed in parliament. But if Dr Lee's statement was an attack on the state, then, not taking any action against her is also dereliction of duty.



Addendum :

In my research for this blog, I had particularly wanted to learn of the strange case of a plaintiff not suing the originator of a statement but only a secondary party. Are there precedents we can learn from. I came across only one more or less similar situation.

Cherneskey v. Armadale Publishers Limited and King (1978)

The plaintiff Cherneskey, a city alderman, claimed he had been libeled by a letter written by two law students and published by the defendants in their newspaper. The law students were not sued, nor were they called as witnesses, so no evidence as to their honest beliefs was presented. The defendants’ testimony showed that they did not agree with the opinions stated by the law students, but they argued that they were entitled to enter the defence of 'fair comment' as they believed the letter reflected the law students’ honest beliefs.

Trial judge : There was no evidence that the words complained of were anyone’s honest opinion, the defence of fair comment could not be put the jury. Plaintiff won.

Saskatchewan Court of Appeal : Trial judge had erred in not placing the defence of fair comment before the jury and that it was not up to the defendants to establish an honest belief before the defence of fair comment could be put, but rather it was up to the plaintiff to show, in answer to the defence, that the opinion was not an honest one. Defendants won.

Supreme Court of Canada : The appeal was allowed and the trial judgment restored. As there was no evidence as to the honest beliefs of the writers of the letter and as the defendants did not agree with the opinions in the letter, the defence of fair comment should not properly be put to the jury. Plaintiff won.

Xu should do well to look up this case. There are pertinent lessons.