You Don’t Have to Believe Shanmugam Pulls the Strings to Know That the PM Has Too Much Influence Over the Judiciary
Yesterday I read that M. Ravi is being investigated by the police for criminal defamation. He posted on Facebook on 6 November that Eugene Thuraisingham, another lawyer in whose firm Ravi previously worked, had told him that Mr Shanmugam had said he “wields influence over the Chief Justice” and “calls the shot and controlls (sic) Sundaresh Menon”.
Eugene Thuraisingham wrote to Shanmugam the same day that “[t]here is absolutely no truth whatsoever” to the allegation. I have no reason to doubt Mr Thuraisingham’s words. I am not concerned with that here.
My concern is firstly with the use of the archaic and repressive criminal defamation statute to silence critics. I have written about its use to prosecute Terry Xu from TOC and Daniel DeCosta in “An Archaic and Repressive Law Corruptly Misused”. It is corrupt to use state resources to silence your critics and political enemies so that you can continue drawing multi-million dollar salaries but more importantly maintain your wife as head of Temasek, despite her dubious qualifications, drawing a salary that you refuse to disclose on the spurious grounds that she works for a private company but has been alleged by a foreign news network to be $100 million p.a. Article 500 of the Indian Penal Code of 1860, which the UK imposed on Singapore as a Crown Colony, provides for up to 2 years imprisonment for criminal defamation or an unlimited fine or both. Criminal libel was abolished in the UK in 2010, along with sedition (which the PAP Government still finds a useful tool) though both offences had long fallen into disuse.
However, more importantly, the substance of what M. Ravi is saying is correct even if not the particulars. The Judiciary is not independent. The Government cannot dispute that under Article 95 of the Constitution the President has to follow the PM’s advice on whom to appoint as Chief Justice (CJ), Judges of Appeal and Judges of the Supreme Court. The PM has to consult the CJ on those appointments but since he appoints the CJ in the first place the latter is unlikely to propose anyone who is likely to take an independent line. While a Supreme Court Judge cannot be removed, once they reach the age of 65 they can be re-appointed for a specified period which obviously makes their continued employment subject to political pressure. Instead of being appointed Supreme Court Judges individuals can also be appointed as Judicial Commissioners for a specified period which similarly makes them subject to the whims of the PM. The PM also has the power to get the President to appoint a tribunal to remove any Supreme Court judge on the grounds of “misbehaviour”. It is true that the President has the discretion to veto the PM’s choice but if he does not follow the advice of his Council of Presidential Advisers (CPA) the President’s veto can be overridden by a vote of two-thirds of MPs. 3 of the CPA’s 8 members are appointed directly by the PM and the other 2 by the CJ and the Chairman of the Public Service Commission (PSC), both of whom are beholden to the PM for their appointment. Since the Elected Presidency was instituted to the best of my knowledge the President has never vetoed an appointment that he has been asked to approve, whether for the judiciary or any other public office.
Also all judges, not only Supreme Court Judges, come under the Legal Service Commission (Article 111 of the Constitution) whose members consist of the AG (who is appointed by the PM), the CJ, the Chairman of the PSC, and between three and six other members appointed by the PM, the CJ and the Chairman of the PSC. To show the influence the Government exercises over the judiciary, one need only point to the notorious case in 1986 when Michael Khoo, who had refused to do LKY’s bidding in full and impose on JBJ a penalty requiring his disqualification from Parliament, was punished by being removed as a District Judge and sent back to the AG’s Chambers. When LKY made his notorious “hatchet man” speech attacking JBJ for saying that the judiciary was not independent, h actually provided the best evidence for it by saying the CJ was his best friend:
“Jeyaretnam was attacking the system, he brought the Chief Justice into it. If I want to fix you, do I need the Chief Justice to fix you? Everybody knows that in my bag I have a hatchet, and a very sharp one. You take me on, I take my hatchet, we meet in the cul-de-sac. That’s the way I had to survive in the past. That’s the way the communists tackled me. He brought the Chief Justice into the political arena. He brought my only friend in university into our quarrel. How dare he!”
The clearest evidence for Government influence over the judiciary was provided by the judges themselves when dismissing my appeal against the High Court’s judgement in the action I brought over SIngapore’s US$4 billion IMF loan commitment. The Appeal Judges said they saw their role as “greenlighting” the Executive and not concerning themselves with Constitutional breaches. They also ruled that Singaporeans were not able to sue the Government unless there were very specific circumstances only applying to the litigant.
As Sundaresh Menon previously served as the AG, who is appointed by the PM, serves as the Government’s legal adviser and whose prosecutorial function has often been seen to be deployed selectively against the Government’s enemies while turning a blind eye to offences committed by Government members including the Pm, he can hardly be said to be independent.
In the UK, on which Singapore’s Legal Service is modelled, the power to appoint judges was taken away from the Government and put in the hands of an independent Judicial Appointments Commission in 2006. Rather than try to silence M. Ravi and others through the use of repressive laws that have been repealed in the country from which Singapore’s legal system is derived, if the Government wants to prove that the judiciary is independent it needs to take the power to appoint judges away from Lee Hsien Loong and put it in the hands of an independent commission which has no connection with the Legal Service.