Lee Kuan Yew and freedom of expression: the libel action as a means of silencing political opposition – Tessa Evans

Lee Kuan Yew, Singapore’s prime minister of 31 years and the man credited with turning the city-state into one of Asia’s most prosperous countries, died last week at the age of 91.

There have been many tributes to a man described by President Obama as a “true giant of history”.  He also occupies a special place in the history of political libel actions.  For over 30 years he used the libel courts to silence all political opposition.

Lee is often seen as Singapore’s ‘founding father’.  He oversaw the transformation of the country into what he described as a First World oasis in a Third World region. He was prime minister of the country from 1959, when Singapore gained self-government from the British, until 1990 when he stepped down, remaining in the government as “Senior Minister” and then “Minister Mentor” until 2011.

While Singapore is admired as an international centre for business and finance, his leadership was not without controversy.  Lee’s leadership style was often ruthless, and he was unabashed about his willingness to suppress personal freedom:

“If you are a troublemaker… it’s our job to politically destroy 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.”

A powerful weapon in Lee’s arsenal was his use of defamation actions, which were utilised in the silencing of political opponents and unfavorable media coverage from the 1970s onwards.  In pursuing high profile legal challenges, the governing People’s Action Party (PAP) were able to impose tight limitations on internal and external criticism.

The risks involved in criticising Lee and other leading Singapore politicians were well known to the international media. A long list of foreign titles have lost actions in Singapore’s courts, including Time, the International Herald Tribune, the Financial Times, the Asian Wall Street Journal, Asiaweek and the Far Eastern Economic Review

 In 2002 Bloomberg joined that list, reaching a S$550,000 settlement for a defamation action with Lee Kuan Yew (Senior Minister at the time), Prime Minister Goh Chok Tong and Lee’s eldest son, Deputy Prime Minister Lee Hsien Loong after an article, which was not printed in Singapore, implied nepotism within the party. The case did not reach the court and was settled within three weeks.

Lee also initiated frequent legal challenges against his opponents, most notably Joshua Benjamin Jeyaretnam, who became the first opposition member of parliament in over fifteen years when he won a by-election in 1981. Jeyaretnam was embroiled in a series of damaging legal battles with Lee, which eventually forced him to declare bankruptcy.

The first of these was in 1976, when Jeyaretnam was successfully sued by the Prime Minister for remarks made in a political speech. Lee was awarded S$130,000 in damages for the remarks, which he claimed implied that he had procured preferential treatment for his family and therefore abused his office.

Lee successfully sued Jeyretnam again in 1988, who was ordered to pay him damages of S$260,000.  An appeal against this decision was dismissed by the Singapore Court of Appeal ([1992] 2 SLR 310).

Another successful action against Jeyaretnam took place in 1997, where high profile PAP ministers were awarded S$120,000 in damages. These legal actions ultimately resulted in bankruptcy proceedings against Mr. Jeyaretnam, after he failed to keep up with the payment of damages.

The frequent use of defamation actions by Singapore’s ruling politicians had a silencing effect on political dissent within the country. Although the right of free speech is clearly guaranteed under Art.14(1)(a) of the Constitution, it is restricted by eight “necessary or expedient” restrictions.

Provision against defamation is one of these restrictions and the judiciary of Singapore has frequently rejected arguments suggesting that defamation actions interfere with the right of free speech. The Singaporean courts have refrained from engaging in detailed analysis on this issue.

In Jeyaretnam Joshua Benjamin v Lee Kuan Yew ([1990] 2 M.L.J. 65) the Singapore Court of Appeal made it clear that the right to free speech was subject, inter alia, to the common law of defamation as modified by the Defamation Act:

“An absolute or unrestricted right of free speech would result in persons recklessly maligning others with impunity and the exercise of such a right would do the public more harm than good. Every person has a right to reputation and that right ought to be protected by law. Accordingly, a balance has to be maintained between the right of free speech on the one hand, and the right to protection of reputation on the other. The law of defamation protects such right to reputation, and, as we have shown, it was undoubtedly intended by the framers of our Constitution that the right of free speech should be subject to such law.”

In an article entitled “Singapore’s jurisprudence of political defamation and its triple-whammy impact on political speech” [pdf], Tsun Hang Tey argues that the Singapore judiciary has inverted the “public figure doctrine”, effectively reversing what the doctrine achieves in other jurisdictions. In the United States, for example, the public figure doctrine require public figures to be more tolerant of criticism in order to serve the interests of free speech.  In contrast the Singapore judiciary place great importance on the maintenance of the reputation of public figures and the public perception of integrity.

Furthermore, the case law shows that political leaders are awarded higher damages than other individuals. This seemingly rests on the idea that politicians have greater reputations to defend. The judgments show the application of a graduated formula; the higher the official political office, the higher the damages awarded.

It seems that while the Singapore judiciary gives public and private figures equal protection in terms of reputational interests, the “high standing” of certain public figures has yielded aggravated damages. Sydney barrister Stuart Littlemore QC calculated that the average award for Singapore’s politicians is 12 times the Singaporean average. These heavy damages often had disproportionate consequences, including, as in the case of Jeyaretnam, highly publicised bankruptcy proceedings, which work to stifle public debate and freedom of expression in Singapore.

The legal claims pursued by Lee and his political associates were remarkably successful. No leader of the PAP has ever lost a defamation action against an opposition leader and no foreign publisher has ever successfully defended a defamation action brought by a Singapore government official in the Singapore courts.

However, it is possible that Lee Kuan Yew’s death marks a shift for the country. Kishore Mahbubani, Singapore’s former ambassador to the United Nations, argues that the city-state is at an “inflection point” . With the PAP’s share of the vote steadily declining, the electorate is increasingly assertive and demanding opportunities for political debate.  Whether the judiciary will play a role in facilitating greater openness in Singapore after Lee Kuan Yew remains to be seen.

Tessa Evans is a journalist and researcher. She tweets @tessadevans