The Politics of Defamation in
Judge Paul Bentley
Published in The Provincial Judges' Journal, Canada
FOR some years now, Amnesty International has been concerned that the government of Singapore is using defamation suits against political opponents to challenge their right to freely hold and - peacefully express their convictions. The intended (and expected) effect of these suits, it is believed, has been to inhibit the public activities of opposition politicians.
Amnesty International had a particular concern about eleven libel suits brought by senior government politicians, including the Prime Minister, Goh Chok Tong, against Worker's Party (the opposition) candidate, Tang Liang Hong. The plaintiffs accused Tang of defaming Peoples' Action Party (government) leaders. During a recent election campaign, the government leaders maintained that Tang was "anti-Christian" and a "Chinese chauvinist". When Tang filed a police report claiming these accusations were false, the eleven libel suits were the immediate response. Tang, who left Singapore after receiving death threats, was found liable in absentia for damages totalling US$5.65 million.
In January l997, eleven suits were also filed against Joshua Benjamin Jeyaretnam, the leader of the Worker's Party. Jeyaretnam is a lawyer and prominent politician in Singapore. He was the first opposition candidate elected to parliament (after many years). These suits were not the first time Jeyaretnam has found himself defending legal actions initiated by his government. In 1986 he was convicted of criminal charges concerning alleged irregularities in the collection of party funds and was disqualified from sitting in parliament and prohibited from practising law. Jeyaretnam appealed to the Privy Council in the United Kingdom, then Singapore's court of last resort. The Privy Council ruled that he and a co-defendant had been "publicly disgraced for offences of which they were not guilty". The Singapore Law Society reinstated Jeyaretnam, but the government refused to remove the convictions, despite a recommendation by the Privy Council. Amongst other things, this prevented Jeyaretnam from standing for re-election to parliament for five years.
Amnesty International requested me to attend as an observer at the defamation trial of the actions filed against Jeyaretnam this year. The trial was fascinating. Of great personal concern to me was the matter of judicial independence and whether defamation suits were really being used by the executive to suppress legitimate political dissent. When I returned from Singapore, I filed an internal report for Amnesty International. The views in this report are my own and should not be attributed to Amnesty International.
Facts of the Jeyaretnam Case
On December 21st 1996, the government of Singapore called a general election. Five candidates, including Jeyaretnam and Tang, contested the parliamentary constituency of Cheng San GRC on behalf of the Worker's Party. The opposition chose not to contest a majority of seats in the election, thereby ensuring that the governing party would be re-elected. The prime minister believed Tang to be unsuitable for election to parliament because he regarded Tang as a Chinese chauvinist, and he believed that Tang harboured anti-Christian views.
Goh publicise his views during the campaign and his remarks were published in numerous newspaper articles. Tang responded by sending a letter to the prime minister complaining about the defamatory allegations, and alleging that they were intended to limit his chances of electoral success. He demanded a retraction and an apology. Goh responded by repeating his allegations and affirmed that he would continue his attacks.
Tang gave an interview to the Straits Times newspaper. In this interview he said that he was contemplating legal action against Goh and Lee Kuan Yew, a senior government minister, and further, that he was planning to file a police report complaining that they had committed a criminal offence by concocting lies about him and defaming his character.
On December 31st, Goh's solicitors wrote to Tang demanding an apology and a full retraction of the allegations made in the interview with the Straits Times. Predictably, no apology was forthcoming. In fact, on the following night, at the last rally of the campaign, while Jeyaretnam was speaking to the crowd, Tang approached him and placed some documents before him on the podium. Jeyaretnam glanced at the documents and continued speaking. A few minutes later, Tang again approached Jeyaretnam and pointed to the documents on the podium and appeared to say something. Jeyaretnam then uttered the following, words:
"And finally, Mr Tang Liang Hong has just placed before me two reports he has made to the police against, you know Mr Goh Chok Tong and his people."
The following day, Goh contended that the utterance of these words had defamed him, because the words imputed that he was guilty of the offences of criminal defamation and conspiracy. In essence, Goh charged that Jeyaretnam had implied in his remarks to the crowd that Goh was a criminal by telling them of the existence of two reports that Tang had submitted to the police.
Goh resorted to his solicitors to demand a complete apology and compensation for damages for the defamation of his character. Jeyaretnam refused to comply with these demands (although he did offer an apology) and the defamation action was launched.
Ironically, the action was commenced the day after Jeyaretnam appeared in court as solicitor for Tang in the actions which had been brought against Tang by the same plaintiffs.
Prime Minister Goh started his actions in January 1997 by filing his pleadings in the defamation actions in the High Court of Singapore. He sued Jeyaretnam, secretary general of the Workers' Party. A similar action was instituted by Senior Minister Lee Kuan Yew, and there were actions as well by nine members of their Peoples' Action Party. All causes were grounded in the words uttered by Jeyaretnam at the Workers'' Party election rally on January 1st 1997. These words were published the following day in the Straits and Business Times newspapers. Ultimately, all plaintiffs in the companion actions to that brought by Prime Minister Goh, agreed to be bound by the trial judge's ruling on whether or not the words uttered by Jeyaretnam were defamatory. Ergo, if Goh succeeded on the issue of liability. Each of their cases would continue only on the issue of the assessment of their damages. Conversely, if the judgment went in favour of Jeyaretnam, they were to discontinue the other actions.
CONDUCT OF THE TRIAL
The trial began on Monday, August 8th, 1997 and concluded Friday of the same week. On its face it was both fair and impartial. Justice Rajendran, the presiding judge, gave each counsel the opportunity to call witnesses and make submissions, without interference from the bench. There were, however, a number of aspects of the hearing that caused me concern.
The senior minister's suit was scheduled to be heard first. However, when Mr Carman (the British "silk") was permitted to represent Jeyaretnam, Lee's s case was inexplicably placed last on the list. I asked the Registrar of the Supreme Court why this had occurred, but I received no explanation. Carman raised the issue in court, but Judge Rajendran answered by explaining that he had no jurisdiction to entertain a motion to place the senior minister case before Jeyaretnam's to accommodate Mr Carman. Since the same judge would be hearing each case, I was at a loss to understand the judge's response.
The courtroom itself was quite small. In all, only six rows of seating were available in the public gallery. This had to accommodate members of the public and the many journalists. The latter occupied fully four rows of what was available, so the public had to make do with the remaining two rows, or approximately 50 seats. Each day, members of the public waited patiently outside of the courtroom in the obvious hope that someone would leave, freeing up a seat. At the end of the first day of the trial, I brought the limitations of the cramped courtroom to the attention of the Registrar of the Supreme Court. He informed me that there were larger courtrooms available in the building but that Judge Rajendran preferred to preside in his own courtroom.
Judgment was given on September 29, 1997, five weeks after the conclusion of the trial. Judge Rajendran found Jeyaretnam's words to be defamatory, in their plain and ordinary meanings and also on their "innuendo" meaning. As to their ordinary meaning, Judge Rajendran concluded that the words spoken defamed Prime Minister Goh because the ordinary man in Singapore "will come away with the impression that the plaintiff may have conducted himself in such a manner that it is possible he will be investigated for some offence or other". (Pg 57 of the judgment.)
I assume that the judge meant that the mere statement that a police report has been filed is defamatory because the ordinary person would believe that Prime Minister Goh has engaged in a course of conduct that caused a criminal investigation to be launched.
The logic escapes me! Judge Rajendran indicated that he was adopting the reasoning of the English House of Lords in Rubber Improvement Ltd. v. Daily Telegraph Ltd., [1963} A. C. 234 (the "Lewis case") as the correct interpretation of the law of defamation. In that decision, Lord Reid stated at pp. 259-260:
"So let me suppose a number of ordinary people discussing one of these paragraphs which they had read in the newspaper. No doubt one of them might say 'Oh, if the fraud squad are after these people you can take it they are guilty'. But I would expect the other to turn on him if he did say that, which such remarks as 'Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions ... Wait till we see if they charge him....'
I can only say that I do not think that he (the ordinary man) would infer guilt of fraud merely because an inquiry is on foot."
On this reasoning, Jeyaretnam's words to the crowd could not be defamatory. Yet the conclusion of Judge Rajendran runs in clear opposition to the ratio of the "Lewis" case.
On the question of whether the words carried an "innuendo" meaning, the judge agreed that Jeyaretnam, simply by stating the words, was neither adopting Tang's views nor sharing his views of the prime minister. Jeyaretnam, of course, did not read out the contents of the police report. However, the judge went on, inexplicably to me, to say that by telling the crowd that Tang had filed the police report, Jeyaretnam implied that the issue was sufficiently grave that the police would not dismiss it as a mere nuisance. And once again, there was a basis for concluding that uttering the words was defamatory.
This conclusion is equally quite difficult to fathom. Having agreed that Jeyaretnam did not share Tang's views, Judge Rajendran went on to say that merely telling the crowd about the filing of the police report is itself defamatory. It would appear that this runs contrary to his previous findings: either Jeyaretnam shared Tang's views (and no defamatory meaning can be imputed to the words spoken) or he did not and therefore no defamatory meaning can be imputed. I do not feel that the analysis conducted by Judge Rajendran meets the test for innuendo meaning. A defamatory meaning is imputed where none existed.
Having determined that Jeyaretnam defamed the prime minister, Judge Rajendran awarded Goh "only" $20,000 (the Singapore dollar is about on par with the Canadian dollar) damages, instead of the $200,000 being sought. If this appears to be partial victory for the defendant, appearances can be deceiving. The judge awarded the plaintiff 60 percent of his costs, which have been estimated by some observers to be in the vicinity of $100,000.
As well, there were seven other damage suits against Jeyaretnam, and, it will be recalled, all parties had agreed to be bound by the findings of liability in this case. Therefore, the defendant will have adverse findings registered against him in each of these cases as well. The cumulative costs and damage awards may be in excess of a half million dollars. Almost certainly this will bankrupt Jeyaretnam and, under Singapore law, no bankrupt is allowed to sit in Parliament!
The damage award is interesting for another reason. Prime Minister Goh was cross-examined rigorously by Mr Carman as to whether the defendant's comments had tarnished his reputation. The PM conceded that 1997 had been a good year for him- he had won the general elections with his party collecting 82 out of 85 available scats. Judge Rajendran stated that this concession would be considered in assessing damages. Yet later in the judgment he concluded that there was no need for the plaintiff to prove any actual damage to reputation. The court can simply "step back and address the speculations and rumour as I am assessing the damages".
This is a singularly peculiar analysis. In essence, the judge is saying there is no need to prove any loss to the reputation of the prime minister, and we know, of course, that had already the prime minister conceded that he'd had a "good" year. Evidently this was not taken into account so as to affect the quantum of damages awarded.
The Jeyaretnam case raises a question as to the real reason why this defamation action was brought: Was it a matter of injured feelings or damaged reputations, or simply a matter of political expediency? The prime minister has decided to appeal the decision, lending support to the belief that the latter consideration was the real motivation.
Amnesty International has stated that the disproportionate use of civil defamation suits by the government has had a chilling effect on Singapore's political life. The agency believes that the government's resort to civil defamation suits has intimidated and deterred those Singaporeans who would dare to express dissenting views. This strategy, concludes Amnesty International, may have a more insidious and dampening effect on free political speech in Singapore than their obviously condemnable Internal Security Act - civil defamation actions may appear to be relatively innocuous and certainly attract much less international attention than docs detention without trial!
The issue of' whether the filing of' defamation suits affects freedom of expression and peaceful democratic discourse in Singapore is beyond question for me. The more pressing concern is whether international condemnation of the practice and faint signs of growing domestic distaste for it, will be sufficient to change the government's tactics against its political opponents.