Is S'pore's legal system getting a bad name?

HUMAN rights groups denigrate it as being 'compliant'. Yet competitiveness and business ratings rank it highly. Just what accounts for this difference in the way Singapore's legal system is viewed by others? Chua Mui Hoong explores the issue.

A JUDICIARY that is "improperly compliant". Defamation laws used by the executive to stifle dissenting views. Abuse of the court process by government leaders.

In the past few weeks, human rights groups and foreign media commentators have hurled these and other accusations at the Singapore legal system.

And yet, just two months ago, Singapore's police and judiciary were rated tops by businessmen in Asia in a poll conducted by Hongkong-based research agency Political & Economic Risk Consultancy.

Singapore's legal system also wins accolades in many areas and is rated routinely as one of the country's competitive assets.

Is Singapore's legal system as oppressive as the human rights groups make it out to be?

Or is it among the world's best, as competitiveness reports suggest?

A closer look at the ratings and the criticisms will reveal some answers.

The bouquets

THERE is no doubt that Singapore rates highly, when it comes to economic competitiveness and in commercial litigation.

The 1997 World Competitiveness Yearbook, compiled by the Lausanne-based International Institute for Management Development, ranked Singapore first in legal framework, ahead of Hong Kong, New Zealand and Malaysia, respectively, for being "supportive of the competitiveness of the economy".

The rival World Competitiveness Report put out by the Davos-based World Economic Forum (WEF) rated Singapore's legal system fourth, a notch ahead of Britain (fifth), Australia (14th) and the United States (16th).

The criteria? Effectiveness in enforcing commercial contracts.

In addition, academics point out that judgments from Singapore courts and Singaporeans' academic articles in law journals have been cited by the Privy Council and the English Court of Appeal, and in the highest courts in Canada and Australia.

Singapore has also been innovative and progressive in encouraging arbitration and mediation in commercial and family disputes, and the courts are efficient.

But a closer look unveils some other, not-so-glowing perceptions.

In the WEF report, Singapore ranked only 22nd -- alongside Malaysia, and below Hongkong (first), India (18th), and South Africa (19th) -- in the indicator called "impartiality of arbitration".

For this indicator, respondents were asked if they agreed that "private businesses can readily file lawsuits at independent and impartial courts if there is a breach of trust on the part of the government."

In the IMD's report, Singapore, in fact, slipped 10 notches in the sub-indicator on justice, defined as confidence in the fair administration of justice in the society, from fourth last year to 14th this year.

In comparison, a July survey of companies here found that 97 per cent said that the courts here administered justice fairly, regardless of who the parties were.

So, some minor question marks aside, the overall standing of Singapore's legal system continues to win the confidence of foreigners, especially those with substantial financial stakes in this country.

As Nominated Member of Parliament Shriniwas Rai notes, the best accolade to the legal system here is the steady stream of investments coming in each year. However, human rights groups appear less enamoured of the judicial system.

The brickbats

AS CONSTITUTIONAL lawyer Kevin Tan notes: "What human rights groups and international non-governmental organisations criticise is our public law record, meaning things such as constitutional law, criminal law, anything involving the state. They are not concerned with the commercial areas, as our record is very good for dealing with these matters."

In the late 1980s, Singapore drew flak for its arrest of activists, under the Internal Security Act, who were said to be hatching a Marxist plot to overthrow the government. But this has died down as the use of the ISA declined.

Singapore's tough laws against crimes too have led to charges that it metes out sentences disproportionate to the offence, for example, caning for vandalism in the Michael Fay case.

But this is a grey area even among people living in the west, and there are examples of some of these laws being adopted later in one form or another in western countries, such as heavy fines for littering.

The latest bone of contention with Singapore springs from the growing number of defamation suits brought by People's Action Party leaders against political opponents and Western publications. The gist of the complaints, led mainly by human rights groups, is that the PAP is silencing political dissent in Singapore by suing its critics, and winning large awards, over fairly innocuous comments.

It was Queen's Counsel George Carman, whose salt-and-pepper looks belied his penchant for verbal histrionics, who put the charges most dramatically in open court in August, when he defended Mr J. B. Jeyaretnam in the defamation suit brought by Prime Minister Goh Chok Tong.

He said: "First, you pay lip service of having the full rights of a democracy like there are in the Western countries, in Australia and others ... with freedom of speech, independence of the judiciary, freedom of the press and freedom of opposition. But there comes a point when you adapt that for your own purpose in Singapore to stay in power and to stifle opposition."

The means creating in the minds of many people in Singapore a "degree or climate of fear" and using the courts to obtain large awards of damages to "financially oppress" political opponents.

The same allegations surfaced in reports of human rights groups -- the International Commission of Jurists (ICJ) and Amnesty International -- which both observed the trial.

Indeed, the ICJ went one step further in accusing the Singapore courts of continuing its reputation of being "improperly compliant" to the interests of the PAP.

Amnesty International noted that the judiciary "has not moved to check the executive's misuse of the law" in bringing defamation suits to intimidate Singaporeans holding dissenting views.

Asked why these human rights groups were focusing on Singapore, observers suggest these groups may be broadening their agenda.

Instead of picking on flagrant abuses such as shootings or imprisonment, they were now on the lookout for what they perceived as more invidious trends.

Singapore has come under close scrutiny precisely because it presented an alternative -- and viable -- "model" for development, one which combined economic success with an orderly, disciplined society and which would appeal to more communitarian societies.

As NMP and law lecturer Simon Tay said: "The human rights groups are also proselytising, and their concern is that the Singapore experience will be replicated the world over, unless its weaknesses are made public."

The real issue

AT THE same time, a close look at the criticisms levelled by Amnesty International, and Mr Carman in court, indicates that the criticisms are directed not so much at Singapore's legal system per se as against the PAP government's use -- and alleged misuse -- of the court process.

The root of their displeasure is, in fact, the way society is organised in Singapore, in the way the courts have struck a balance between free speech and protecting reputations; and, by extension, in the way society has found a balance between safeguarding individual rights and protecting the community's interests.

Hence, Singapore courts' decisions on where to strike the balance between allowing free speech and safeguarding the reputations of political leaders have been criticised for veering too much towards the latter.

Clearly, these decisions differ from country to country.

In the US, public figures are open to any criticism made without malice, while the European Court of Human Rights' has decided that "the limits of acceptable criticism" are wider for a politician than for a private individual.

Dr Kevin Tan sums up the issue this way: "In public law, human rights groups feel the courts have been overly deferential to the Executive.

"By deferential I do not mean they are biased, or compliant, but that, between two possible choices, greater benefit of the doubt is given to the executive than to the individual or any other group. There is a generally conservative approach to adjudication."

Law academic Thio Li-Ann, in an article in the Hong Kong Law Journal, argues that the courts here have tended to award "communitarian" judgments, and have been "deferential towards collective interests and executive assessments of what the public good requires".

She cites several examples, including the 1995 (Colin Chan vs PP) decision upholding an order to deregister the Jehovah's Witnesses group on the grounds of protecting public order, despite the constitutional protection of religious freedom.

In like vein, she notes, the courts here have tended to protect the public interest of upholding the integrity of government leaders, rather than make judgments that protect the right of individuals to make public criticisms of conduct by public figures.

Indeed, far from allowing greater latitude in criticisms of politicians, the courts here have tended to accept the argument that, because politicians are well-regarded here, they deserve higher damages to protect and vindicate their reputations.

Mr Rai, who is also a lawyer, agrees generally with this approach, but adds a caveat. He thinks politicians, on their part, as public figures, should "hold their hand" and sue judiciously.

Mr Tay argues that high damages for defamation might have the "unintended consequences" of silencing critics, and suggests that a cap on damages, an unreserved apology, and a formal declaration by someone in authority that there were no grounds for the defamatory statement, could suffice to vindicate reputations.

The government's position on this is unequivocal. It believes that protecting the reputation and integrity of the political leadership is of the utmost importance, and that the consequences of not doing so extend far beyond the courtroom.

This was how Mr Goh put it when he was cross-examined by Mr Carman in August: "We are a different society. In Singapore, we believe that leaders must be honourable men, gentlemen or junzi (a Confucian gentleman), and if our integrity is attacked, we defend it."

This was unlike Western societies, where politicians might not do anything if their integrity was attacked, he added.

"But here, if leaders and politicians do not defend their integrity, they are finished ... So, each time our integrity is impugned, we come out strongly and go to the courts to defend it. If you do not do that, over time, politics in Singapore is going to degenerate into politics like some other countries where leaders are called liars and cheats and nothing is done."

What should Singaporeans make of all these?

The first, and most important, point is that the Singapore legal system continues to be highly regarded and well-respected, despite the efforts of western human rights groups to cast doubts on it.

The second issue concerns the use of the courts by politicians here to defend their reputations when they are impugned. It is an issue which goes far beyond the legal system, touching on the very core of the political system here.

Whether the government's approach will prevail will depend on its ability to continue winning the political ground, and to demonstrate to Singaporeans that it is right. It has, so far -- which is why it is so tough-minded about it.

Meanwhile, human rights groups will continue to mount their attacks. But their criticisms, while providing some food for thought, are really a sideshow.