Meeting Harvard Law School - Part 1

Last Thursday night, I met three representatives of the Harvard Law School who are doing legal research about Singapore. Over dinner, which comprised local delicacies such as ‘laksa’ and ‘nasi goreng’, we discussed a range of issues about the Singapore legal system. Here are some highlights of the discussion – Part 1.

CONSTITUTIONAL / HUMAN RIGHTS

Our fundamental rights are enshrined in the constitution of Singapore. Most of these rights are not absolute; they are qualified. For example, freedom of expression (Article 14 of the Constitution) is subject to the prevailing laws of the land. As a result, one is free to say whatever one likes so long as one does not defame others.

Some of the rights are also limited to citizens of Singapore. My criticism of this is that it fails to take into account both our rich history and present circumstances as a city of immigrants. Perhaps, one day, these rights will apply equally to all living in Singapore.

DEFAMATION LAW

Our defamation law is not very different from the law in England.

What is different is how the law has been applied to the facts. Issues of fact are firstly not decided by a jury; we don’t have a jury system so judges make the call. Judges are especially mindful that this is a small country and scandalous allegations can painfully affect reputations. As such, in our case law, one finds that the court has often been willing to construe a defamatory meaning in words.

To me, as a corporate counsel, a recent case has been of some interest. In this case, a shareholder had asked certain questions and was later accused in the press of “playing to the gallery”. The shareholder then took out a defamation action. The Court of Appeal considered the circumstances and ruled “playing to the gallery” while defamatory was a fair comment.

I don’t think this case should have gone to court in the first place. Actions such as this show we are evolving more into a litigious society and becoming more insensitive.

DEFAMATION ACTIONS & PUBLIC FIGURES

Another key difference is that, in England, public figures and governmental bodies are not entitled to sue in defamation. There is good rationale for this:
1. You are a public figure and, in taking on this role, you have exposed yourself to a higher threshold of criticism.
2. You also enjoy at your disposal wide access to resources to correct negative remarks about you.

However, our constitution provides: "All persons are equal before the law and entitled to the equal protection of the law". A majority, including those having the mandate of our people and our judges, argue that, like all other persons, public figures must protect their reputation. Defamation actions are thus a means to achieve this end.

As importantly, defamation actions have not just been started by political leaders of the dominant party. Even opposition party leaders have taken out claims against others successfully.

I think the jury can be brought back in such defamation actions, and I also think that matters involving public figures should not be litigated. But I am in a minority.

AWARDS IN DEFAMATION

Michael Palmer of Harry Elias Partnership – now also a sitting Member of Parliament and a member of the dominant party – wrote an interesting paper for the Law Gazette in 2005. It considered awards for defamation claims and argued that the courts have generally been consistent in such awards. An offer to apologise and amend can also help reduce damages awarded.

Public figures also show that they are not seeking to profit from such actions because they often donate what they are awarded to charity. And I believe this is one key reason why many continue to support such defamation actions.

Happiness,
Dharmendra Yadav