International Commission of Jurists Report on Jeyaretnam's High Court application.

1. BACKGROUND

1.1 Mr Jeyaretnam is the defendant in a defamation suit brought by Mr Lee Kwan Yew, Senior Minister in the Singapore government, and its former Prime Minister.

1.2 The subject application, was brought by Mr Jeyaretnam under Section 21 of the Legal Profession Act, which the High Court of Singapore has discretion to admit to practise, ad hoc, Queen's Counsel where the court is satisfied that (the case) is of sufficient difficulty and complexity, and having regard to the circumstances of the case there being no Queen's Counsel in Singapore.

1.3 The defamation action proper concerns words allegedly spoken in his capacity as a candidate and Secretary General of the Workers' Party in an election rally before the Singapore general election of January 1997 and their republication in newspapers.

1.4 Mr Lee's action is one of 11 suits against Mr. Jeyaretnam over the same words. The other ten plaintiffs are the Prime Minister of Singapore, Mr Goh Chok Tong, and nine members of his (and Mr Lee's) People's Action Party.

1.5 Lee Kwan Yew has a considerable history of taking libel actions for political purposes, although his Party has always dominated the Singapore parliament, with never more then four opponents in an 83-member chamber. The New York Times of 5 June 1997 made this comment in an editorial dealing with Mr. Lee and his co-plaintiffs' action against Jeyaretnam's Workers' Party colleague, Mr Tang Liang Hong

If the consequences were not so serious, the political machinations of Singapore's leaders would be laughable. In the latest twisted use of the country's libel laws, they have obtained a US$5.7 million damage ruling against an opposition politician (Tang Liang Hong) who had the temerity to deny accusations that he was bent on producing racial discord.

Singapore's leaders are masters at using libel suits in a compliant court system to silence or intimidate their domestic opponents and to discourage critical commentary ... It saves the trouble of throwing opponents in jail, and has provided the leaders with a tidy source of outside, income...

1.6 Mr Tang was sued in relation to the same matter as was Mr Jeyaretnam. He had been vilified in the election campaign by Mr Lee and other PAP representatives as anti-Christian" and a "Chinese chauvinist". His response had been to state that his accusers had been in complicity in criminally defaming him.

1.7 Mr Tang did not stay in Singapore to defend the suits, but fled the jurisdiction. His stated reason was that he feared arrest and detention without trial by the government's notorious Internal Security Department.

1.8 Mr Jeyaretnam was sued over allegedly reporting to an election rally that Mr Tang had made complaints to police in relation to "Goh and his people". No more than that was said, but the plaintiffs pleaded that the defendant's words imputed they were guilty of criminal defamation and criminal conspiracy.

1.9 Mr. Jeyaretnam, who contended that such were the realities of the political situation that he could get no relevantly expert local advocate to defend him in the case, filed a motion for the ad hoc admission (under S.21 of the Legal Practice Act) for the court to admit Mr George Carman QC of the English bar as his counsel in the Lee suit.

1.10 Mr Lee objected to the application, and it was set down, for hearing on 27 June 1997 before Justice Cheo Hick Tin.

1.11 Because of concern that Mr Jeyaretnam's application may, suffer at the hands of what the New York Times called "a compliant court system", an Observer mission was arranged.

2. THE DEFENDANT

2.1 Joshua Benjamin Jeyaretnam, now aged 71, was the first Opposition Member of Parliament to be elected in Singapore. He has been a human rights activist for many years, and is a member of the Regional Council for Human Rights in Asia.

2.2 After completing his secondary education in Singapore, Mr Jeyaretnam graduated from the University of London with an LLB degree in 1951 and was called to the Bar of England and Wales in the same year. He returned to Singapore and worked in the Government's Legal Service for eleven years. In that time he served as the Senior' District judge.

2.3 Mr Jeyaretnam commenced private practice as a solicitor and advocate in 1963. He entered into active politics in 1971 when he was elected Secretary-General of the Workers Party. He contested five elections before winning a by-election in 1981, becoming the first-ever Opposition member after 15 years of parliaments consisting entirely of People's Action Party members.

2.4 After being re-elected in 1984 with a vastly increased majority, Mr Jeyaretnam was wrongly convicted on criminal charges, resulting in his being disqualified from occupying his seat in the Singapore parliament and being struck off the roll of solicitors. His appeal to the Privy Council was successful and his name was restored to the roll (see Jeyaretnam v Law Society of Singapore (1989) AC 608).

2.5 Despite the Privy Council decision, the Singapore government led by Lee Kwan Yew refused to remove the convictions to allow him to stand for re-election.

2.6 In his book reviewing events in Singapore in the years 1945-1983, Dr Richard Clutterbuck wrote at p325: INDENT "Jeyaretnam has been relentlessly harried by PAP members anxious to acquire merit, but he alone performs what is Parliament's primary function in a democracy - the public cross examination of Ministers."

2.7 Mr Jeyaretnam was appointed to parliament after the 1997 general election as the Opposition member winning the greatest number of votes.

3. THE PLAINTIFF/S

3.1 Eleven members of the parliamentary People's Action Party brought suits against Mr Jeyaretnam, as they had against Mr Tang Liang Hong.

3.2 The two most prominent of the plaintiffs are Lee Kwan Yew and the present Prime Minister, Goh Chok Tong.

3.3 The Plaintiffs' claim to have been identified and defamed by these alleged words of Mr Jeyaretnam:

INDENT "Mr Tang Liang Hong has just placed before me two reports he has made to Police against you know, Mr Goh Chok Tong and his people."

Such is the entirety of the matter of which the Plaintiffs complain.

4. THE TRIBUNAL

4.1. Mr Jeyaretnam's application for the ad hoc admission of Mr Carman OC was brought in the High Court of Singapore, presided over by Justice Cheo Hick Tin.

4.2 I presented myself at the Judge's chambers at 9.30am on the day of hearing, and sent in a copy of my Ordre de Mission and my business card, but the judge sent word out that he would be unable to see me.

5. THE ADVOCATES

5.1 Mr Jeyaretnam appeared on the application for himself as defendant.

5.2 Mr Lee was represented by Senior Council, Mr Davendra Singh, and a junior. Mr Singh is a PAP member of the Singapore parliament.

6. THE APPLICATION

6.1 Mr Jeyaretnam supported his motion with two affidavits of evidence.

6.2 The major points raised in the applicant's affidavit ware as follows:

* The action raises a number of (complex) questions of law besides those of fact:

the meaning of the words; the Innuendos pleaded; identification of the plaintiff; whether the words are defamatory; whether the defendant was liable for the newspapers, republication of the words; damages

* The consequences of his losing the action would include his being made bankrupt, thereby losing his seat in parliament and hie right to practise as a lawyer;

* His knowledge, from experience, that the few Singapore lawyers competent in the field of defamation were reluctant to appear for defendants in actions where the plaintiffs were members of the government. Mr Jeyaretnam reproduced part of an affidavit sworn in the associated proceedings by Mr Tang, in which he attested to approaching six senior Singapore practitioners with appropriate experience in defamation and having each decline to appear for him.

* Mr Jeyaretnam swore:

The plaintiff is living in a world of his own if he thinks there is no fear in Singapore. The reluctance among lawyers is part of the general fear felt by the populace in being seen as being opposed to the government.

6.3 Mr Lee's affidavit (which was notable for the fact that it was calculated to dictate to the court what its decision should be, rather than to adduce evidence), set out his belief that the words were defamatory; that they carried the imputations pleaded in the Statement of Claim; and that the apology offered in mitigation was "insincere and wholely inadequate".

6.4 Further, the plaintiffs affidavit called the action "simple and straightforward", denying that the issues were "complex (or) difficult, let alone sufficiently complex or difficult".

6.5 The hearing proceeded on the basis of the affidavits, on which there was no cross examination.

6.6 Counsel appeared for the Attorney General and the Law Society, and asked the court to note that neither objected the application. Under S.21(3), the court is required to take into account the views of both bodies, which were served with the application.

6.7 Mr Jeyaretnam argued that the matter embraced issues of sufficient difficulty and complexity to warrant the admission of a QC ad hoc; that the whole question of whether the words were defamatory was - despite the plaintiffs contentions - no open-and-shut issue; that these issues alone required a specialist advocate to do justice to his defence. He alluded to the fact that Mr Lee had himself briefed a QC for his action against the Far Eastern Economic Review, and for his 1990 libel action against Mr Jeyaretnam.

6.8 Having dealt with the difficulty/complexity issue, Mr Jeyaretnam turned to his submissions on "the circumstances of the case", where he argued that "there is never a problem getting counsel to appear for Ministers ......... the problem is where you have to get someone to act for Opposition members". He handed up an extract from a Select Committee hearing in 1986, at which then Prime Minister Lee and a fellow PAP member (who were concerned with a bill to amend the Legal Profession Act) conducted cross examination of a lawyer who had appeared for Mr Jeyaretnam on the criminal charges referred to at 2.4 above, questioning him in a way calculated to intimidate, the lawyer, whose residency in Singapore was at the Government's pleasure. The transcript is attached to this report as the First Appendix. Mr Jeyaretnam submitted the court: "That's the climate in Singapore!".

6.9 Mr Lee's counsel contested the submission that the difficulty and complexity of the case warranted a QC. He agreed that, on the pleadings, the issues were identification; whether the words were defamatory; liability for republication; and the significance of the proffered apology.

6.10 Mr Lee's counsel referred to the Second Reading speech relating to S.21 of the Legal Profession Act, and mounted a case that the Minister's intention was that QCs should only be admitted in commercial and banking' cases, in order that Singapore's reputation as a commercial and banking centre should not be adversely affected, but that tort actions (and, impliedly, criminal prosecutions) were never intended to have the beneff the provision. The only reason for ad hoc admission QCs was in order that investors should retain confidence that they are able to be represented by "the very best"

6.11 Mr Singh's case was that the action brought by Mr Lea against Mr Jeyaretnam was "routine and ordinary"; "routine and straightforward"; and that even if the matter did meet the difficulty/complexity criteria, "the case was a very local flavour", and an overseas lawyer would not understand how a Singapore audience would interpret the words complained of.

6.12 Dealing with the 'circumstances' submissions, Mr Lee' counsel asked the court to disregard the Select Committee transcript (and the judge indicated that he would); and disputed the submissions that no senior local lawyer would be prepared to defend Mr Jeyaretnam - although, when asked by the judge, he was unable to say that any of the three Singapore Senior Counsel apparently free to accept the brief had any defamation experience. He further argued that if a QC were admitted, and that it would be unfair to impose such additional cost on the Plaintiff - where that the defendant was unlikely to be able to meet an order imposed by the court.

6.13 In reply, Mr Jeyaretnam was asked by the judge about his contention that no Singapore lawyer would appear for him, when he conceded that he had not approached local counsel in the present case. Mr Jeyaretnam told the court "I know of the reluctance of lawyers in Singapore after 26 years in politics ... this is not the first time I've been sued: I was sued in 1976 by Lee Kwan Yew, and had to get a QC then - there was no one prepared to appear (for me); I was sued in 1990, and had to get a QC again because I couldn't get anybody (here). I did not approach anyone (because) I knew it would be a waste of time ... and, even if I got a local counsel, they would not put themselves out in my defences".

7. THE DECISION

7.1 At the conclusion of submissions, Justice Chao Hick Tin delivered a short extempore judgment:

I am inclined to hold that the criteria have been satisfied in this case. There are issues of sufficient difficulty and complexity I am satisfied that a case has been made out under Section 21, and I will admit the QC in question.

8. COMMENTS

8.1 It can be seen that the Judge avoided expressing any view on the 'circumstances of the case' criterion evidence and the defendant's submissions that he would not get justice unless a QC were admitted, because Singaporean lawyers were unwilling to take cases, or to prosecute them with alacrity: where the opposing party was a PAP Minister (least of all the Prime Minister or Senior Minister Lee).

8.2 Although no finding was made in this respect, it could hardly be disputed that Mr Lee and his colleagues have manipulated libel cases in a way that intimidates Opposition politicians and local lawyers, and that this case is another instance of the technique. In the opinion of the writer the plaintiffs' cases against Mr Jeyaretnam are very weak, stand little prospect of succeeding when the defendant is competently represented.

8.3 The outcome of the case itself will be of great importance to rule of law and independent judiciary issues.

8.4 The International Commission of Jurists has taken a close interest in Singapore matters. ICJ observers attended the habeas corpus application of Soh Lung and other Internal Security Department detainees in the High Court in May 1988, and protested against the arrest and detention without trial of Francis Seow at about the same time.

8.5 Writing to this Observer after the hearing, Mr. Jeyaretnam commented:

I am most grateful for you having taken the trouble to attend my hearing. I am positive that your presence tilted the scale.

9. MEDIA COVERAGE

9.1 There was a significant mass media attendance at the hearing, and (I understand) extensive coverage - both of the case itself and the ICJ presence. I attached as the Second Appendix the Straits Times Articles.

Dated July 1, 1997