The book accuses the Singapore judiciary of inexcusable timidity. Our courts engage in “national formalism” and “textual literalism”, and judgements often lack “rigour and depth”, coming as they do with “insufficiently articulated assertions” (quotes from page 70).
In a cited case, it “upholds the letter of the Constitution at the expense of its spirit, and totally ignores the crucial judicial function of checking legislative power, deliberately casting Singapore judiciary in a severely limited role” (page 96). In perhaps different words, the same criticism is repeated in other cited cases.
Legal Consensus: Supreme Executive, Supine Judiciary, Suppliant Profession of Singapore is the title of this 2011 book by law academic Tey Tsun Hang. It aims to “examine how the Singapore judiciary has abdicated its role as guardian of individual liberties and a check on state power” (page 8). At its heart, the courts have become supporting actors to the government’s philosophy of executive supremacy and communitarian-driven policy-making.
Tey Tsun Hang (right), alas, didn’t become well-known by authoring this book. A few months ago, he was convicted under the Prevention of Corruption Act in a case our mainstream media labelled the “sex for grades” trial, and sentenced to five months’ imprisonment. It might be worthwhile noting that despite this media moniker, the court did not find that he gave his student better grades after receiving inducements (the court said that determining this “was not vital to the charges against the accused”); rather, the conviction rested on the finding that he harboured “corrupt intention and guilty knowledge” in his relationship with the student. (Quoted from lines 658 and 660 of 2013-SGDC-165)
In the course of the trial, allegations appeared in the online media that Tey was being persecuted as a result of this book. While the timeline may lend support to this hypothesis — the Corrupt Practice Investigation Bureau (CPIB) first sought him out on 2 April 2012, after publication of the book — whether this is the motivation behind the charges is impossible for me to determine.
However, I wondered throughout the trial who might have been the original complainant. It didn’t seem as if it was the student in question, Darinne Ko Wen Hui, since there were discrepancies between her court testimony and prior statements to CPIB, for which she argued that her statements to CPIB had been made under “oppressive circumstances” and that she was “coerced” (Line 353). This suggested that she was not a willing witness. In fact, the prosecution sought to impeach her testimony in the course of the trial. In any case, it would only hurt her own career to make a criminal complaint that could cast suspicion on her own grades. Unfortunately, I still have no answer to what I would think is an important question.
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Coming back to the book, Tey lays out his arguments through a close examination of jurisprudence in four main areas: criminal due process, political defamation, scandalising the judiciary, and the death penalty. In the process, he calls out Singapore’s terribly thin rule of law.
In the chapter Traumatising criminal due process, Tey finds the Singapore judiciary too enamoured of the crime control model:
The Crime Control Model places primacy on efficacious suppression of crime. Central to the Crime Control Model is a high degree of trust in the reliability of the fact-finding and screening processes operated by the police and prosecutors. . . .
The Due Process Model, on the other hand, shows a more generous acknowledgement of human frailty and error in the criminal process. . . . [and] seeks to prevent errors to the greatest extent possible (page 9).
The chapter then goes on to show the various ways in which due process is traumatised. Our courts suffer from “self-imposed limitations on judicial review” (page 10). They have undermined the right to silence (i.e. the right not to self-incriminate), and done nothing to advance the right to counsel.
Tey detects in the judiciary a “strong tendency of deference to the executive” (page 20) and with it a reluctance to take a more purposive approach in its considerations, i.e, it doesn’t ask itself what should be the right decision to make in the interest of natural justice. Instead, our judiciary tends to adopt a literalist approach — merely looking at text. He cites an example where in its “allegiance to the letter rather than the spirit of the law”, it shied away from “the articulation of implicit rights”. Doing so, said the court, would amount to “adventurous extrapolation” (page 13).
Tey finds this attitude highly regrettable, arguing that the right judicial approach should be “an especial concern for the individual who is in an unequal position against the full force of state machinery.” (page 22)
“The right of free speech,” Tey writes, has been “incrementally swallowed up by its exceptions” (page 31). Especially when it comes to defamation law, our “courts omit weighing the competing interests at stake”, failing to “balance the freedom of speech against private reputational interests” (page 31).
He also bemoans the fact that judges here have “summarily dismissed the public figure doctrine” (page 32). The doctrine, developed in foreign jurisdictions, allows that public figures should be tolerating wide limits of criticism from the public. Ironically, “whereas the official capacities of public figures were conveniently overlooked in the assessment of liability, the very same factor operated an as aggravating factor in the assessment of damages” (page 32) — in effect, “the Singapore judiciary has turned the public figure doctrine on its head.” ( page 55).
Scandalising the judiciary
Like our (ab)use of defamation law, the law on scandalising the judiciary (a variant of contempt of court) also presents severe problems:
Tey argues that the judicial record shows that whilst the Singapore judiciary has moulded a strict law of contempt of court against any publication or conduct injurious of its integrity, it has failed to undertake a searching or meaningful analysis of the issue of the permissibility of derogation from the constitutional right of free speech, and has also failed to appreciate the importance of achieving an appropriate balance between the social interests in preserving its integrity, and the freedom of critical reporting. (page 69).
Worse yet, many of the defences available in defamation cases are not available in contempt of court cases, despite the similarities between the two. Relying on a definition of ‘scandalising the judiciary’ to be anything that ‘excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office’ (page 71, quoting from Attorney-General v Wain and Others, 1991), it is made into a strict liability offence.
What does strict liability mean? In defamation, ‘fair comment’ is available as a defence, as is that of justification. Criticism that is made in good faith and/or grounded in truth is not defamatory. Tey points out, quite shockingly, that the Singapore judiciary has ruled that these defences are not available in ‘scandalising the judiciary’ cases. In other words, even if what you say is true, so long as it brings disrepute to the judiciary, you are still guilty!
He cites a 2006 judgement of Justice Lai Siu Chiu, quoting her saying, “Recognising the defence of justification would give malicious parties an added opportunity to subject the dignity of the courts to more bouts of attacks; that is unacceptable.” (page 76).
(Personally I cannot understand how she sees only malice in someone who says something true, albeit damaging to the reputation of the courts.)
Moving on to the death penalty, Tey takes issue with two features that Singapore relies on: the “increasingly pervasive use of statutory presumptions” (page 106) shifting the burden of proof to the accused, and that of mandatory sentencing. In discussing these, he shows through many examples how foreign jurisdictions have considered these issues and taken a very skeptical view of them. However, our judiciary relies on the ‘four walls’ doctrine, i.e. it rejects the admissibility of case law from other jurisdictions in constitutional cases, often with facile, unsupported assertions that social conditions in Singapore, or the text of the Singapore Constitution, are different. Waving this doctrine, “foreign authorities can be simply dismissed without any analysis. . .” (page 19).
So, “despite the tide of international judicial resentment against the mandatory death sentence, the Singapore courts have clung on to trifle technicalities to reject these decisions and avoid any meaningful constitutional discourse on the death penalty.” (page 86).
Even without reference to foreign authorities, our judiciary could well have applied their minds to laws passed by Parliament that raise troubling constitutional issues, but Tey says they do not, preferring a “long-standing philosophy of parliamentary supremacy and the complementary formalist approach towards constitutional interpretation.” (page 87)
There is a lucid discussion of the principle of proportionality, surely an essential element of lawfulness, yet the mandatory death penalty rides roughshod over it. A range of different kinds of homicide (including instances where the accused didn’t even know his accomplice would less-than-intentionally kill someone in the course of a robbery), and a range of drug offences, attract the mandatory death penalty. Tey even alludes to a case where a drug mule, deciding not to go ahead with the assignment, returns the stash of drugs to his mastermind, yet that act of returning the stash was counted as trafficking, a capital crime (page 85). He argues that from this lack of proportionality, it should be possible to strike down the mandatory death penalty on the basis that it violates our constitutional provision that no one should be deprived of his life or liberty except in accordance with law. The term ‘law’ is not just texts from Acts of Parliament, but includes a broader concept of lawfulness and natural justice including an inherited body of common law principles, of which proportionality is one. An Act of Parliament that violates the principle of proportionality cannot be good law.
Going further, he even shows how the death penalty — not just the mandatory kind — is increasingly being found abroad to violate a ban on cruel and inhuman punishment. He writes: “Similarly, the application of the death penalty in Singapore may violate a more enlightened Constitution that impliedly incorporates the international norm against cruel or degrading punishment through extra-textual interpretation of the word ‘save in accordance with law’ in Article 9(1).” (page 89)
But, as mentioned several times throughout the book, our judiciary remains keen on sticking to a narrow textualism, locked within a four walls doctrine, and ever deferent to the supremacy of the executive — it’s in the title of the book.
The final section of the book deals with the way the legal profession is tamed and therefore unable to do its part in defending against executive encroachment upon the healthy functioning of law, firstly through curbing the role of the Law Society, then through the creation and state promotion of the Singapore Academy of Law as a rival institution to it. Needless to say, the story does not cast the government in good light.
There is a certain changing of tracks in this final part: the discussion relies primarily on parliamentary statements, in contrast to the preceding sections that cite court judgements extensively. This is understandable because there is very little (none?) case law with respect to the now-disallowed role of the Law Society in commenting freely on legislation.
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This is a important book by an erudite academic, yet written in language that is accessible to the lay reader. However, it may help to have some prior familiarity with key legal concepts.
Tey pulls no punches, convincingly showing how damaged the law is in Singapore. He shows how this unhappy situation is a complex result of a “consensus” between a muscular executive, a judiciary retreating into textualism and a silenced body of lawyers.
It could have done with a better editor; at places it becomes a little repetitive, and there’s a mysterious one-page chapter that reads like an introduction and summary . . . but what’s it doing as Chapter 8 on page 123? Still, the relatively thin book is so rich in substance and so thought-provoking, you forgive.