The unimpeachable court

The Attorney-General’s efforts may be having the opposite of its intended effect

A week ago, news that the Attorney-General would be initiating contempt proceedings against a deputy editor from The Wall Street Journal was greeted with some surprise by local observers, who wondered why the government was charging a member of the Journal’s staff so soon after the Journal itself had been found guilty of contempt in November 2008.  Yet the High Court’s judgment just some short days later (finding the defendant guilty of the charges) hardly elicited any astonishment, even as it triggered the usual consternations from the foreign press about an injudicious and politically-biased bench.

Such pronouncements are to be expected, and they are probably indicative of liberal sentiment in Singapore which has long questioned the extensive tally of court decisions that have gone against the government’s critics.  Some questioned the seemingly discretionary nature of the decision to prosecute the Journal and its staff with such zeal; in contrast the Attorney-General has not seen fit to go after the International Bar Association, whose damning indictment of the judiciary in 2008 provided the material for the Journal articles which prompted the contempt proceedings in the first place.  Perhaps it is simply too much work to charge every single critic – after the judgment, international wires and NGOs reiterated that the government used the courts to “stifle dissent”; the Journal itself remained stoically unrepentant in its public statements.

Yet the reality is probably more complicated.  One empirical study¹ argued that the judiciary is more independent than commonly believed in spite of various legislative encumbrances: the government is pragmatic enough to recognise that the court cannot simply be a slavish creature if it is to retain credibility.  The trial against the Journal’s deputy editor is a case in point – the presiding judge seems to have disregarded the prosecution’s arguments about “aggravating factors” that merited a strict sentence and moderated the fine meted out.

Even so, the same study noted dryly that the Singapore establishment seemed to view criticism of its system as due to foreign critics and lawyers having “a knowledge of the law inferior to that of their Singaporean counterparts…[and] based on wrong legal interpretation”.  Perspectives and priorities certainly differ.  Unlike in Western systems, the pursuit of justice may not merit boundless exertions: optimising efficiency, for example, is also an important issue².

Furthermore the judiciary views its role as upholding the rule of law rather than to provide a check on the government or to uphold Constitutional supremacy.  In cases such as that involving the Journal or the host of defamation suits brought by the government against its critics, the courts are therefore – in a manner of speaking – largely hostage to legal precedent.  It would have been mightily difficult for any judge – even  one with a very liberal temper – to overturn precedent built up by more than two decades of such cases.

In this context the Attorney-General’s Chambers has a rather significant part in maintaining judiciary credibility as much depends on the kind of cases that it brings before the courts.  Unfortunately it seems to have rediscovered a fervour for safeguarding the “integrity and independence” of the courts not seen since the late 1980s: the recent cases against the Journal and blogger Gopalan Nair, jailed for three months after being found guilty of  insulting a judge, seem to be in this vein.  Yet by initiating cases in which the bench has little room for manoeuvre, and whose outcomes would also certainly bolster the critics’ claims about a politicised judiciary, the Chambers could inadvertently be bringing about the very outcome it had sought to prevent.

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¹ Ross Worthington, “Between Hermes and Themis: An Empirical Study of the Contemporary Judiciary in Singapore”, Journal of Law and Society, Vol. 28, No. 4 (Dec., 2001), pp. 490-519

² Ibid, citing M. O’Kane, ‘Eye of a Tiger’ Guardian Weekly, 20 May 1995, 4: Then-Chief Justice Yong Pung How reportedly told an audience in 1995 that, “We have now reached the stage when criminal cases can be disposed by the high court in about six months. Criminal appeals are disposed of by the court of appeal in about six months.  And condemned prisoners can be disposed of by the prison authorities in about six months.”

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