Did Shanmugam Breach the Constitution When He Discussed the High Court Judgement in the Parti Liyani Case?
Article 99 of the Singapore Constitution states:
The conduct of a Judge of the Supreme Court or a Judicial Commissioner, a Senior Judge or an International Judge of the Supreme Court shall not be discussed in Parliament except on a substantive motion of which notice has been given by not less than one-quarter of the total number of the Members of Parliament.
I have already criticised the Minister for Law’s statement on the Parti Liyani case in a previous blog (Shanmugam Abuses Parliamentary Privilege to Retry and Convict Parti Liyani). Shanmugam went out of his way to exonerate Mr Liew, the Attorney General’s Chambers (AGC) and the District Judge while at the same time casting doubt on Pari Liyani’s innocence.
However Shanmugam also appears to have breached Article 99 by going beyond this to implicitly criticise some of the High Court Judge’s findings. For instance, on the question of whether the Liews had an improper motive in filing a police report against Ms Liyani “Shanmugam thinks it is a “fair assumption” that the High Court intended to say there was a reasonable doubt as to whether the Liews had an improper motive, not that they in fact had an improper motive.”
However the High Court Judge is quite explicit in his judgement when he states that:
In the light of the above circumstances, the Defence has sufficiently demonstrated an underlying factual basis in support of its allegation of an improper motive on the part of Karl and Mr Liew.
Shanmugam undermines this by saying that “further investigations have shown that the Liews had told their maid agency by end-2015 that they wanted a new helper as they had suspected Ms Parti of stealing” though he says that the Judge was not aware of this as it was not raised by either side.
I have said enough about this case elsewhere. I am concerned here with whether Shanmugam breached Article 99 by discussing the conduct of the Judge without a “substantive motion of which notice has been given by not less than one-quarter of the total number of the Members of Parliament.” This condition does not appear to have been fulfilled. There was a procedural motion by Indranee Rajah to lift the application of the Standing Order which says that reference should not be made to matters which are pending before the courts.
The Code of Conduct governing Supreme Court Judges can be found here. It appears to largely follow the UK Supreme Court Guide to Judicial Conduct, following the SIngapore Government’s pattern of always adopting the UK model, modern or imposed during colonial times, as long as it aids or does not weaken their desire for total control. While there is no suggestion that Shanmugan has impugned the honesty and integrity of Justice Chan Seng Onn he does seem to be criticising the judge indirectly on the grounds of diligence by suggesting that it is difficult to understand “why the judgement has been reached in a certain way” (p. 13).
It is not clear whether Article 99 of the Constitution was in the original 1965 Constitution or one that was introduced by LKY or his son to prevent an Opposition MP (presumably JBJ as the current WP MPs are always careful not to rock the boat too much) from criticising the independence of the judiciary.
If it is the latter then it is ironic that Shanmugam may have broken the limits his leader introduced. However the PAP have always flouted the Constitution when it suits them as shown when I took the Government to court over their breach of Article 144 of the Constitution over the US$4 billion loan commitment to the IMF. In that suit the Court of Appeal decided that Singaporeans did not have locus standi to apply for judicial review of Executive decision. The Government has also amended the Constitution only slightly less frequently than LHL changes his underwear because the PAP have always held at least 90% of the seats in Parliament. In addition the Judiciary, from the time of Wee Chong Jin (LKY’s best buddy in violation of the Supreme Court Code of Conduct) and Yong Pung How has continually taken the position that it is not within its scope to review the Executive’s actions. So Shanmugam, like his master, is on pretty safe ground in doing whatever he pleases.