COMMISSION TO EXAMINE DEFAMATION LAW

5.43 pm

Mr Deputy Speaker: The motion is subject to signification of support by at least one Member. Does the motion have the support of at least one hon. Member?

Mr Low Thia Khiang: I support.

Mr Jeyaretnam: Mr Deputy Speaker, Sir, I beg to move,

That this House, recognizing that in a true democratic society, every citizen should have the basic right to comment on and criticise the conduct of public officials in the discharge of their public functions and duties, resolves that a Commission be appointed to examine and recommend what changes should be made to the law of defamation to give every citizen this basic right to exercise without fear.

Mr Deputy Speaker, Sir, this motion that I am tabling this evening is a logical follow-up to the last motion that I tabled and which was debated some four months ago on the removal of fear in Singapore. And I dare say that Members, feeling perhaps exhausted after a long day and not only just the long day but the week, will say to themselves, "Are we going to have another tedious hour from Mr Jeyaretnam?" It is probably for that reason that our faithful Singapore press did not report anything of what I said at the last motion. They find it tedious to bore their readers and that is probably why nothing was said about what I said in Parliament two days ago. But I am not going to bother about what the Singapore press has to say.

This motion, Mr Deputy Speaker, moves the focus to this House. May I make that clear. The previous motion was examining the role of the people in our society, particularly their role in the participation in decision-making. But this motion now proposes to examine the role of Parliament in such a society. I will explain what I mean as I go on.

As I have said once before, in 1947, when we, as a people, were deciding what sort of a government we desired, because the British had offered some self-autonomy, we sent an All-Party Commission to London to say that we wanted a parliamentary democracy based on the Westminster model. And it is not surprising, Mr Deputy Speaker, Sir, that we should have chosen that, that is, that we wanted a parliamentary democracy where the Government will be subject to Parliament, representing the will of the people. I said it is not surprising because that system of government was accepted by the people of the United States when they decided to break away from the United Kingdom and become a nation by themselves, only that they carried it to more rigid divisions of power and it was also accepted by countries which were once under British rule and then broke away from British rule. And Pandit Jawaharlal Nehru, the first Prime Minister of India, and who was a great, passionate believer in parliamentary democracy, chose that as the model for India. May I say, it was not just Jawaharlal Nehru, even our present Senior Minister who was a member of the All-Party Commission to London, chose for Singapore, along with the others, this parliamentary system of government. It was not surprising that he should choose that, having come from Cambridge and studied DICEY and the rule of law.

Under this system of government, it is Parliament that, as representatives of the people, should have control over the Government. It should act not only as offering advice on legislation, law and other matters, but first and foremost, as a check on executive power. That was the foremost intention of the people who evolved Parliament into what it is today in the United Kingdom and other countries.

The question that I am posing today, and which I would ask the Members to answer honestly, is: is this Parliament, now 50 years down the road, after we accepted the parliamentary system of government, performing such a role, and if not, why not? I propose in the course of my speech to give the answers as to why this House is not performing the role that it should be performing in a parliamentary democratic form of government and suggest the remedy for that.

It was envisaged by those who were setting out on the nationhood for Singapore that Parliament should, as I said, be the supreme body and that the Government be subject to it. Of course, I have to acknowledge that in the years before 1959, when the present Senior Minister was in the opposition, the Legislative Assembly, even though it had limited powers, was trying to do just that, to act as a check on the Government then. Those Members who have read the debates would have seen that Mr Lee wasted no time, although again his Opposition Members were not very large, in trying to bring the Government to check, probing and seeking answers to questions. He then showed himself as a firm believer in parliamentary democracy. But for Singapore, this fervour somewhat began to cool off after the PAP took power in 1959, though from the years 1963 to 1965, when we were part of Malaysia and Mr Lee was attending the Malaysian Parliament, there he again found his fervour and spoke at length, whenever it was possible, on the need for parliamentary democracy and the government being subject to parliamentary control.

But after we came out of Malaysia and perhaps before that, Parliament began on the road of not being able to exercise its role which was intended for it. This became very marked when the Barisan Sosialis who were still in the Assembly after they had broken away from the People's Action Party and were sitting in the opposition benches, decided, for some reason or other, that they would take their battle to the streets, and would no longer attend the sittings of the Assembly. That, may I say, and I have said it, was a wrong move and it was a disservice to the people of Singapore when they left the Legislative Assembly.

Then, when we came out of Malaysia, we found ourselves with a Parliament totally composed of One-Party Members, the ruling party Members, and that continued until 1981 when there was one other Member from another party in Parliament.

But today, 50 years down the road, we still have not reached anywhere near the stage of performing the role that Parliament was intended.

Mr Deputy Speaker: Order. Mr Jeyaretnam, can I just hear from you whether you have any experiences to demonstrate that we need to change the law of defamation?

Mr Jeyaretnam: I am coming to it, but I must perhaps lay the background and show you the present role of Parliament and why it is such a damaging thing for our society. I will be coming to it.

Mr Deputy Speaker: We have heard your views on a number of times. Otherwise, I will not allow it because you are repeating your points over and over again over the years.

Mr Jeyaretnam: Mr Deputy Speaker, Sir, this is important so that Members can understand why we need to change the defamation laws. They should understand the role of Parliament and ask the question where they are moving.

Mr Deputy Speaker: Do not go back to history because what you have said has already been mentioned over and over again in this House.

Mr Jeyaretnam: I am not repeating what I have said today.

Mr Deputy Speaker: All right. Proceed and go to the point.

Mr Jeyaretnam: You must bear with me. This is Parliament and Members should have the right to speak their minds on the present position.

Mr Deputy Speaker: Mr Jeyaretnam, there is a Standing Order to discourage repetition of points. So can you just stick to the point and do not go back to history all over again?

Mr Jeyaretnam: All right, Mr Deputy Speaker. But the point is that by a systematic and deliberate move, which I am going to spell out, the libel suits would be one of these measures. That is why I am going to ask for an amendment to the defamation laws. But I am saying, by a systematic and deliberate move, the Government has so far succeeded in preventing the election into Parliament of Opposition Members and that is what I am talking about this evening, and that is why I am asking for an amendment to the defamation laws in accordance with the spirit and Articles of the Constitution. Do I make myself clear, Mr Deputy Speaker?

Mr Deputy Speaker: Come to the point.

Mr Jeyaretnam: Yes, thank you. As I said, by a deliberate and systematic course of action, they kept Opposition Members out. At first, it was the use of ISA, and making life inconvenient for those who aspired to enter Parliament. But now, over the last few years, we see an increasing trend to keep Opposition Members out by the use of the libel law and which deters very effectively, may I say, persons who aspire to enter Parliament to serve their country, but think that their place should really be in the Opposition, and not in the Government party. But they are deterred by the defamation actions. I am going to ask whether these defamation actions accord with the spirit of the Articles in the Constitution and with the law as it is being developed in other countries.

If you want me to move on, I will. But the quintessence of a parliamentary democracy, may I say, is the presence in Parliament of a sufficient body of members to perform the primary role of Parliament as a check on the Executive. So the point I am making is that if you really believe in a truly democratic society, then you should put no impediments, no blocks, on Parliament playing the role that it was intended to play. It can only play that role if you have a sufficient body of Opposition Members. They can only enter Parliament through elections and there is no substitute for allowing the electorate to elect the Opposition Members into Parliament. With respect to the Nominated Members, they are no substitute. Parliament should have the Opposition Members in Parliament elected by the electorate. For this, there is a basic right on the part of voters to receive information on issues in the elections and corresponding right on candidates to impart information. Therefore, free speech becomes the life blood in elections for voters to make their choice.

All this is guaranteed by the Constitution. Article 14, Part IV of the Constitution, enshrines what are the essentials of a democratic society and which Singapore should have. Article 14(1) of the Constitution grants every citizen the freedom of expression and assembly. Article 14(2)(a), however, seeks to impose a restriction on this right where it is considered necessary. It says, "Parliament may by law impose . such restrictions as it considers necessary." Article 162 of the Constitution expressly mandates the courts, Parliament and all other law-making bodies to construe any existing law with modifications, adaptations, qualifications and exceptions to bring them into conformity with the Constitution. So there is clear mandate in the Constitution that there should be no law which unnecessarily, and that is important, puts an impediment on the development of a truly democratic society.

I will illustrate how the defamation laws have been applied by the courts, and I am not here to criticise the decisions of the courts, but I am here to ask whether we should now make an amendment to the defamation law to bring it into accord with the Constitution. I will illustrate this by three cases of libel suits that were brought, and they are of very recent origins, so I expect Members must be more than aware of these suits.

The first was a suit brought in 1989 and it arose over questions asked about the death of a Minister. Members will, of course, recall that the former Minister for National Development of whom Mr Lee, when I was in this House, declared, "Where can I find another Mr Teh Cheang Wan." He was found dead in bed one morning and the cause of death was an overdose of amytal tablets. It was then revealed that he was under investigation for corruption. So that was immediately a matter of great public interest. There is no question that it was a matter of great public interest. Our party asked questions saying there should be a full investigation into this death and how he came by his death. We asked two questions because it was revealed that he had written to the then Prime Minister, the present Senior Minister, a letter the day before he died. It was not revealed whether there was any reply to that letter. So we asked whether there was any reply given to him.

The second question was: how did he get these amytal tablets? Because amytal tablets, Mr Deputy Speaker, as you are probably aware, are on the Poisons List. Their stocks and distribution are controlled, and should be controlled very strictly, with proper records kept. When we asked for questions through the party, there was no answer. But when I asked the same questions in an election in 1988, I was served with a writ. I do want Members to understand this clearly that this arose over two questions asked, questions which were of great public interest. In any other country, the press and public would be in full cry wanting to know the answers to several questions. But I was taken to court as having libelled the then Prime Minister.

Finally, in court, we got an answer from him that he did not reply to that letter. As someone observed to me, "Well, you had to pay $260,000 for an answer to a question. Was that not a bit expensive?"

The question that we should ask is: should we permit actions like this, or should we not amend the law to prevent actions of this nature where the action arises over legitimate questions of public interest asked of Ministers and public officials? It is very important that we grasp this because if Ministers are going to serve a writ on any member of the public or any member aspiring to come into Parliament because he asks questions of public interest and then scare him into coming into Parliament, we are never going to get a Parliament to play its role. We are not going to get the Opposition Members coming into Parliament. So that was one case.

Then, of course, the more recent cases brought after the last elections or just towards the tail end of the elections. I do not have to repeat or give a lot of information to Members about how these libel suits came about. But, of course, Members will recall that it was revealed publicly that a Cabinet decision had been taken to keep Mr Tang Liang Hong out of Parliament. That the Cabinet had decided that he should not be allowed into Parliament. Of course, that meant that the whole team could not come in. I could not come in either because he was part of the team. In pursuance of that, they decided, and this is all public, that they would expose him as a Chinese chauvinist and an anti-Christian. He had not said anything but they decided that they would expose him as a Chinese chauvinist and an anti-Christian so that he would not enter into Parliament, and along with him, me and the others who were standing in this constituency. And Mr Tang said he was not a Chinese chauvinist, he was not anti-Christian, because he could not keep silent when he was accused of these things, and so he spoke to the press, and he said, "I am not." He said, "They are telling lies." But he could have said they were not telling the truth. There is no truth in what they say. And for that, it was decided that libel suits should be issued against him.

I hope Members can see how oppressively libel suits are being used in Singapore. Here is a man who is accused of being a Chinese chauvinist, being anti-Christian, because it is thought that he should not be in this House. And libel suits are issued against him when he denies it, says that they are not telling the truth when they accuse him of being a Chinese chauvinist and anti-Christian.

Then there were other suits against him. One was that because he said in Kuala Lumpur when he was informed that the Prime Minister had said that he would not be arrested under the ISA, "Should I trust him?" or something. He was again slapped with a libel suit. Again, the question that Members should ask is: was a libel suit necessary in these circumstances? There was no statement, I repeat, made either by me in the 1988 statement in the elections or Mr Tang Liang Hong accusing anyone, any Minister, of corruption or of committing criminal offences. I was asking questions of public interest and Mr Tang Liang Hong was seeking to deny allegations made against him. Is it justifiable that he should then be the subject, as I was the subject, of libel suits, simply to frighten - I am saying in this House - others who may aspire to come into Parliament?

Then following that was the Prime Minister's suit against me. And, again, I do not have to remind Members - I am sure it must be fresh in their memories - that the words over which I was sued for libel were to give a statement of fact that Mr Tang Liang Hong had made reports to the Police, as he had said he would. And his report to the Police, if you care to look it up, was simply denying the allegations, and to ask for Police protection. And I was slapped with suits. Just as he, there were about eight or nine suits against him (I think it is probably more), but I had eight suits against me.

Is this how we are going to keep Opposition Members out of Parliament? The question we have to ask, and I keep repeating this: should we allow in this country these libel actions to continue? Or should we say enough is enough now, we want a society that is progressive, and we can only become progressive if Parliament is allowed to play its role as a check on the Government. And if that will not be possible, we will never become a progressive society, we will never become an open society, so long as these impediments are in place, preventing candidates from speaking their mind openly and freely at the elections.

I am not advocating - let me make it very clear - a licence for candidates to defame Ministers or others in public life, to accuse them falsely of anything. But as I have tried to show in these three actions, there was nothing of that sort. And yet the actions were brought. The Courts have held that the meanings were that we were defaming them. But, as I said, I am not here to criticise the decision of the Courts. But if that is how it is going to be interpreted, then it is time we looked at the law of defamation to see whether actions like these should be allowed to be brought in the Courts in Singapore, but that candidates should have, as was intended by the framers of the Constitution, the uninhibited basic right to give information to the voters and to ask questions that are necessary and that will help to guide the voters in the choice of who they should send into Parliament.

Mr Deputy Speaker, Sir, perhaps I will deal at length with the laws in the other countries in my reply, but I wish to say this now, so that whoever is replying can consider this. Article 14(2)(a) allows Parliament to make such laws as Parliament considers it necessary to impose restrictions on the right of freedom granted under Article 14(1). The question is, would these laws be necessary? There is also the question of which is the greater public interest - the asking of questions, the attempt to deny allegations made against you or is it the supposed protection of the reputation of public officials? Which is of greater public interest? And I am sure, if you ask any Parliamentarian, he would say the greater public interest is that questions should be asked and information given honestly to voters.

The first decision which made an inroad to cut on this attempt to shut members of the public from questioning or criticising the conduct of public officials was way back in the 1940s when the US Supreme Court decided in the case of Sullivan and the New York Times that public officials cannot maintain an action against any criticism of them even if the facts were wrongly stated, unless the public officials were able to show that whoever made that criticism had actual knowledge that the facts were false and so were acting maliciously. Knowing something to be false and stating it. That was a revolutionary change in the law. It stopped public officials from bringing actions because of criticism of the officials concerned.

But even at the beginning of this century, a minority view in a Supreme Court (I think it goes back to 1908), it was a State Supreme Court, held that the greater right was the right to ask questions and that libel actions should not be entertained where a citizen seeks to criticise, even wrongly on wrong facts, the conduct of public officials. Sullivan's case was followed by the European Court of Human Rights in the case of a journalist who wrote an article criticising the Austrian Chancellor, accusing him of very grave offences, of harbouring and protecting Nazis during the Nazi regime. And he was convicted in an action brought for criminal defamation. He took up his case to the European Court of Human Rights. Fortunately, Europe has thought fit to have a court of human rights which would entertain petitions of this nature. I shall read the provision in the European Charter, which I say corresponds almost identically with our Article 14. The Court held that the conviction was an unnecessary interference with the liberty of this journalist to write on a matter of public interest and they set aside the conviction and ordered compensation to be paid to the journalist for all the suffering he had suffered. They had no doubt of what was the greater right in a truly democratic society.

Then there was a case in England brought by a County Council against a newspaper which had criticised, not public officials, I must point out the difference, but the Council itself, and I shall read some of the passages in the judgement in my reply but time does not permit me to read them now. It was held that in a truly democratic society, this freedom is important, the freedom to criticise and comment on public officials, and the action by the County Council was thrown out. It went up to the House of Lords. The County Council took it up to the House of Lords who dismissed the appeal, again, declaring what had already been said about the vital importance and role in a truly democratic society for citizens to comment on and criticise the conduct of public officials and to ask questions.

So we have these developments in the law in other countries. This development of the law is also taking place in Australia where the High Court of Australia has ruled that it is of the utmost importance that the right of citizens to criticise and comment on the conduct of public officials should not be curbed in any way unless it is absolutely necessary.

These three cases that I have illustrated, I hope, will demonstrate that the actions were totally unnecessary because there was no question of the Ministers being accused of crimes or misconduct in their lives. These actions arose over the exercise of our rights as citizens to ask questions and, in the case of Mr Tang Liang Hong, to deny accusations which were made against him. Here is a man who was seeking elections to Parliament along with me. If he did not deny it, and if he did not say it was not the truth, what would the electorate say? Those who had to make up their minds would say, "I see. He admits that he is a Chinese chauvinist. He admits he is an anti-Christian. So we better not vote him in." So does he not have a right to deny that he is a Chinese chauvinist and an anti-Christian?

I do not believe that he is a Chinese chauvinist, and I said that several times during the elections, neither is he an anti-Christian. His daughter is a Christian. And as we said, it is quite inexplicable that if he is an anti-Christian, he should decide to team up with me who is a Christian, and he knew that. And it is not only him who suffered, it was his wife of whom we have seen some publicity the week before. Her passport was impounded illegally. She was prevented from leaving Singapore.

I could go on but probably I am nearing the time I am allowed to speak. But what we have to ask is, as Mr Lee was asking when he was in the Opposition, do we believe in democracy or do we not? He was asking that question. He said that it was simple. "You answer that", he said. Do we believe in democracy or do we not? If we do believe in democracy, then there is no answer except to say that we should allow the practice of democracy in this country which means the right in every citizen to ask honestly, without any malice, any questions of public officials in their conduct and discharge of public functions. If, however, we do not believe in democracy and we do not want a democratic society in Singapore, we do not want a Parliamentary system of government which can only function with an adequate number of Opposition Members in Parliament, not Nominated Members, but Opposition Members in Parliament, then let us tell the world we do not want democracy in this country. We do not want Parliamentary democracy. We are quite happy with our own autocracy. So then we will be honest with ourselves.

But, on the contrary, we hear protestations from Ministers that we are a democratic country, that we are an open society. The questions I asked in 1988, may I say, Mr Deputy Speaker, were in reply to Mr Lee's statement then that the Singapore Government was an open Government accountable to the people. And I posed several questions and these questions were among those questions: were you open and accountable to the people in those situations?

It is for us who have the mandate under the Constitution to see that the spirit of the Constitution is preserved and enforced. We take the oath when we come into this House that we will defend, preserve and protect the Constitution. If we are to be true to that oath, then we have got to take steps to see that the Constitution is not in any way hindered or impeded by laws or administrative action, but that the full spirit of the Constitution be given effect.

Mr Deputy Speaker, Sir, I am not suggesting what amendments should be made. A Nominated Member queried why we need a Commission. I thought it would be obvious. I am not suggesting what amendments should be made. I am suggesting that we appoint a Commission now to inquire into whether it is time for us, as a society, to look at the way the defamation law is applied and whether it should be continued to be applied as it is at the moment.

It is of the utmost importance, Mr Deputy Speaker, Sir, that we should take steps now. We were debating the whole of this week on competitiveness and about going into the 21st century. If we are to go into the 21st century, we have got to go in as a progressive society.

Mr Deputy Speaker: Order. Your time is up.

Mr Jeyaretnam: Thank you, Mr Deputy Speaker.

Mr Simon Tay: Mr Deputy Speaker, in the earlier motion that Mr Jeyaretnam referred to, I was concerned about the rules of preventive detention. But I did not support that motion because I felt that there were smaller concerns that might limit free speech in our society. I turn then to this motion to think whether our defamation laws are one of those concerns.

In speaking today, I must say that while some sectors of Singaporeans have sympathy for Mr J.B. Jeyaretnam for the various suits that he has fought and lost, I would wish to make my remarks less personal and avoid the cases he has referred to which have already been decided by the courts and which stand today as the law in Singapore as decided by our highest courts.

Let me then turn to four questions. The first is the importance of free speech. The second is whether this important free speech needs to be balanced in some way. The third is what is that right balance. And the fourth is how do we change the law. Is a Commission, as proposed by the motion, the best way to go about it?

On the first question, the importance of free speech. I have served this year, and I am still serving, as a member of the Singapore 21 Committee. In this context, I co-chair a committee concerning the search for consensus and consultation on one hand against decisiveness and quick action on the other. In our meetings with many people, we have emphasised that, for consultation to happen in Singapore, there must be free speech, there must also be a sense of participation and there must be a recognition of our national interests and the harmony that underpins our society. Only when we accept on one hand the right to speak and, on the other, recognise the due limitations to those who speak. This helps make consultation work, and Singapore is a better place rather than a more fragile place.

In this context, the law of defamation concerns me because it is not about all forms of speech. Defamation, as any law student will tell you, is about false statements. If you are saying the truth, you cannot be found guilty of defamation. You must first be saying something that is false. There are other elements such as, secondly, that false statement then injures the reputation of the person you refer to. That is the first distinction I want to make about the broader question of free speech and the narrower question on defamation.

While we value free speech, should we value it so much that we want to protect false statements that harm reputation? This question is an important one because it leads me to my second, the question of balance. Having said that free speech has a value and is recognised in the Constitution under Article 14, we have to recognise that there are concerns that the politicians, or those who would be politicians, would have their reputations injured falsely, or ordinary citizens would. This might lead to the lack of good people to volunteer themselves for public office and to have their reputation scrutinised and publicly criticised.

This exception of question of defamation is also in the Constitution. So, if on one hand, the freedom of speech is in the Constitution, so is the exception of defamation, and we have to recognise that that is the substance of our Constitution. We cannot on one hand inflate the value of free speech, and pretend the exception does not exist in our Constitution. But I still think that there is room to recognise that the law of defamation, as it exists today, can have unintended consequences that it can chill free speech. It can prevent some good and honest citizens from speaking up in case they make a false slip. And I want to emphasise "in case" because we recognise that Singaporeans, as a generic quality, are somewhat "kiasu", too careful.

We would also have to think about the law of defamation that exists and the unintended consequences because of two things. The first is the privilege that all of us in this House enjoy as Members. In this House, we are free from civil suits, including suits for defamation. Why do we enjoy this freedom? It is because this House should have the freest debate possible. We may be brought up for parliamentary processes, but we are free from civil action while we speak in this House.

The second reason I can think of to re-look at defamation law at this point in time is the example set by our own Prime Minister, Mr Goh Chok Tong. In the recent suit with the NCMP, Mr Jeyaretnam, I, and I think, many Singaporeans, were heartened by PM Goh's offer to forgo a certain amount of damages if Mr Jeyaretnam was to publicly accept the judgment of the Court of Appeal and to apologise in certain terms set by the Prime Minister's lawyers. This offer did not come to pass but the Prime Minister's offer itself makes it clear that he is cognizant of an unintended consequence that might otherwise have come to pass. That, in the legitimate interest of protecting his reputation, he might unintentionally knock out a Member of Parliament, an NCMP, which he said was not his intention.

Let me turn then to the next question. Having said that there is a reason for balance, what is the right balance? I do not want to guess what Mr Jeyaretnam will bring up as examples. Let me just quickly sketch two extreme positions and some places in between. The two extreme positions, as I see them, is first the USA, and second, ours. I mean there are positions beyond ours, but for the spectrum I wish to sketch, I will take these two ends. In America, as regards politicians, you cannot defame them, even if you are completely and utterly false without basis, only if you can prove actual malice, that is, out of a vendetta, a hate, a personal vindictiveness, you have said what you know to be false, and obviously, this is very hard to prove. So, the American political figures live with all sorts of slander. In Singapore, at this end of the spectrum, there is no difference between politicians and private individuals. Whether you are running for office or whether you choose to lead a quiet, private life, the rule is the same for you.

It is important to see therefore when we think about law reform, that there can be places in between these two positions. But even if we choose to reform, we need not open up the box to be exactly like America. That may be fine for Americans but it may not suit our temper and tenor of our society. This position in between can try to make a distinction where a false statement is made recklessly, or a false statement is made negligently, or a false statement is made out of some sincere belief or honest mistake. Let me quickly sketch the differences between these three intermediate positions.

"Recklessly" might mean I heard some rumour about Mr X and I just simply blurt it out publicly. I make no attempt to find out whether it is true. Second, negligently, I heard the same rumour. Perhaps I am a more careful man, I call up the newspaper or somebody who is supposed to be the authority, his boss, his subordinate, and I check. But somehow, that same mistake is duplicated. It is not cured. I make my statement and fail to check properly; I make some checks, but I do not check properly, and I am negligent. The third: sincere belief or honest mistake is when I have been thorough in my checking, I have already tried exhaustively to check out whether what I am saying is true or not true, and yet it is still possible to make a mistake.

As I said, we are talking here about false statements in defamation that lower someone's reputation in the public eye. I myself will stand for the idea that if there is malice, or if it is reckless or negligent, the value of free speech should not cover such sins. We should not excuse such forms of defamation. That leaves me only with the concern about honest mistakes and sincerely held beliefs. The law of defamation, as it stands in Singapore, recognises various defences, one of which is the defence of fair comment. This has to be a question of opinion, of course, rather than a statement of fact. It is of course possible to add other defences, such as honest mistake and it is possible to twin this with other questions and limits, such as to limit this extent of greater freedom to times of political competition in elections, or to limit to politicians or those who run for public office because they put themselves up for public choice and the public should have a right to know. We could also cap damages to a sizeable amount, an amount that has bite, but one that will not necessarily ruin a person for a single mistake. We could institute a formal role to the question of apology. Many of you know that when an apology is given honestly and sincerely and accepted, this defamatory mistake can be forgiven. However, as it stands, this is a matter of negotiation between the wronged party and the person who has wronged them. It is possible to make this matter of public process in the courts.

There are many possibilities of which I have quickly sketched my own inclinations. But the motion today is not about any particular choice and I do not want to over-argue this point. I just want to demonstrate that if a Commission is called for, there is room to work on the law, to refine the law, finding a new balance without abandoning certain cornerstones of our belief, such as democracy, and on the other hand, the need to defend reputations which are falsely accused.

My fourth point then is the question of institutions. Courts themselves have regulated defamation. There is a Defamation Act of course passed by this Parliament or its predecessors, but that Act does not really provide the body of defamation law. It provides rather some narrow exceptions to it. The body of defamation law is carried over by Singapore from other precedents in England particularly, and more recently, our own precedent, as one case builds on another. The courts themselves, I believe, are always the first person to turn to, to change their own mistakes.

In this House, I have previously spoken and cautioned against over-anxiety of legislation to cure one or two judgments, and I have not shifted my position. That is still my view that the courts themselves should be the primary focus when we think about an evolutionary change in law. How else can the law be changed? Normally, when there is a call for reform, the Government will take it up and the Attorney-General's Chambers will do the work, call in together the various ministries and other agencies that are concerned or involved.

The motion standing in the NCMP's name is different from this. It calls for a Commission of Inquiry. I am not sure this is at all the right institution. It is certainly different from what has been done before and I think it is quite different from the nature of most Commissions of Inquiry to investigate a certain, fixed and quite narrow question. But when I think through the motion and whether I should support it, I am reminded that in one of the sittings in this House that I attended, the NCMP said in a rather sarcastic tone that he was not at all surprised that one of the NMPs supported the Government. I then shared my view of the function of NMPs with him and the House. NMPs, to my mind, are neither for the Government nor against it, neither are we for the opposition nor against them. I try to look at the law and policies in a non-partisan light to give what inputs we can, and I have tried to do this today.

Despite Mr Jeyaretnam's personal remarks and the cases that he has brought up concerning himself or his fellow opposition candidates, I do believe, for the reasons I have given, the law could stand the question of reform. When we look at this question of reform, we may not in the end decide we do need a reform. If we do decide on a reform, we do not need to decide that it is American or some other western form. We can find our own way.

With this hope and with this reservation also about the institution, about some of the arguments that the NCMP has made for the law and for the value of freedom of speech, I support the motion.

7.00 pm

Mr Zulkifli Bin Baharudin: Mr Deputy Speaker, Sir, I would personally agree with the call to review the Defamation Act but certainly not the formation of a commission. I do not wish to comment on the personal experiences of Mr J. B. Jeyaretnam except to say that the law must apply if defamation is proven. But it is another completely different matter and outside the present law if the Prime Minister offers him avenues to help lessen the burden and consequences brought about by the decision of the court. Personally, I am encouraged by PM's gesture of tolerance and forgiveness. But I would like to ask the Minister to consider the wider implication of the Defamation Act. Article 14 of the Constitution clearly guarantees every citizen the right to freedom of speech and expression. But this certainly does not mean the right to defame. We can speak freely, but certainly no one can defame freely.

The other thing that I would like to highlight is that the Defamation Act is not necessarily for politicians only or political parties. It is available for any citizen, corporation or organisation. The law of defamation essentially attempts to strike a balance between the public's freedom of speech and the individual's right to the protection of his good name, and that certainly must be a very sensitive and important matter of somebody who holds a high public position like the Prime Minister. Unfortunately, in Singapore, people tend to associate defamation laws with political figures and politics, because of the series of legal suits involving politicians and the high profile publicity given to such suits. My concern is that it has brought about, like what my colleague, Mr Simon Tay has mentioned, the unintended consequences and some negative implications on civil society. Because of that, some people are reluctant to speak up and comment on controversial public policies or on public office holders because of the fear that they may be subjected to legal suits.

Generally, most people have no problem giving their views to local newspapers because they feel that the local press will exercise care and caution not to defame public officials. But this is not in the case of foreign publications or journalists because of their past experience of being involved in defamation suits themselves. Quite frequently, foreign journalists have problems getting enough people in Singapore willing to express their views. "No comment" or "Don't quote me" are common responses. As such, we may unnecessarily be sending a wrong signal to Singaporeans who are afraid to speak up.

But to be fair, Sir, a lot depends on the person himself to exercise caution when commenting on personalities and public policies. While it is quite easy to determine whether a person making defamatory statements has been malicious or reckless by exposing the person to hatred, contempt or ridicule which, in my view, is what the Act is intended for, it is quite difficult to determine intent and impact of other less damaging statements which may arise out of mistakes or negligence or, at the spur of the moment, reliance on wrong source of information. I do not necessarily condone this. But perhaps in view of that, it may be useful to consider amending the present legislation to give more weightage to apology in mitigation factors or in assessing damages. Perhaps one suggestion is to consider limiting or specifying the quantum awarded in a different type of defamation cases, especially parties who have relied on the process of mediation or in settlement are prepared to make public apologies.

Sir, in the past, political leaders who have been defamed, quite rightly have taken strong actions to protect their reputation. Although monetary compensations were given, as in most cases quite large sums, these do not seem to be the objective of those seeking remedies, as charities have been the main beneficiaries of such monetary awards. Again, the intention here is not to bankrupt anybody but to redeem one's reputation. However, the consequence is that, as it stands today, because of the monetary compensation given, some people stay away from political controversies of criticising on public policies or politicians because of the fear that it may lead to financial ruin. What in fact happens is those who have been found guility, and I said guilty, are certainly liable for defamation. In this case, they may find themselves paying a heavy price or penalty for it.

I now move on to elections where some of these issues have cropped up, especially during elections, and it can be expected that during the heat of elections, statements that can be made may be construed as defamatory, not in its intent, but in its environment and the situation that is found. Based on past cases, one has to be extremely careful and one should in making speeches during election rallies. While care must always be exercised, the law should not cause unnecessary restrictions, especially during elections. One suggestion is perhaps to exercise more tolerance before resorting to legal suits. Of course, this works both ways for all parties taking part in election rallies.

Another, Sir, is to provide for limited privileges during elections, especially to cover cases of unintentional defamation. Of course, one can argue that this suggestion may mean giving political parties or individuals a leeway to criticise and defame others and later get away by merely apologising. But I would say today, Sir, that it would be foolish for any politician seeking office to think that he can get elected if he has the habit of frequently having to apologise to his political opponents. At the end of the day, Sir, defamation, especially the one Mr Jeyaretnam mentioned, is a very personal matter. I think the Prime Minister has demonstrated that avenues have been made available, which is relevant to this case. At the end of the day, the two parties must explore those personal avenues available to settle what is essentially a personal matter. But I hope the Minister would consider the suggestions that I have referred to in the wider context.

Mr Sin Boon Ann (Tampines): Mr Deputy Speaker, Sir, Mr Jeyaretnam's motion to call on the Government to appoint a commission to examine and recommend what changes should be made to the law of defamation is misconceived and should not be supported by this House.

Sir, for the benefit of Members of this House who may not be familiar with the subject, the general starting point of a defamation law begins with a published defamatory statement which refers to the person concerned. I underline the words "persons concerned" because this will be relevant subsequently when I respond to Mr Simon Tay's point. A defamatory statement is one which is calculated to injure a person's reputation and to diminish the willingness of the others to associate with him. Where it is alleged that a defamatory remark has been made against a person, the person who is alleged to have made the defamatory remarks would not be liable for those defamatory remarks if he is able to establish certain defences such as justification, absolute privilege, qualified privilege or fair comment. For instance, if I called somebody a cheat and a liar, I would, on the face of the statement, be liable for defamation. However, if I am able to, among other things, show that the person whom I had called such was indeed a cheat and a liar, then I would not be liable as I had spoken the truth. Alternatively, if it was found as a fact that a particular person indeed told a lie, it would not be defamatory for one to pass an opinion that it was wrong to lie, since this comment was based on a proven fact.

Sir, I had broadly stated the underlying principles of defamation only to show that contrary to what Mr Jeyaretnam seems to suggest, there is generally a right to proffer what is on the surface, defamatory comments on the conduct of public officials or anybody whatsoever, provided that the author of the statements is able to raise the defences which I mentioned earlier. If I may add, defamatory statements are not just statements alone but also include innuendoes or suggestions indicating the conduct or otherwise of the person concerned.

Mr Jeyaretnam had numerous encounters with defamation laws. Unfortunately, not all of his encounters have met with successes in his favour. Perhaps that is the reason, and we have heard this to be so, why he is asking this House to appoint a Commission to reform the laws of defamation.

We must recognise that in every democratic society, there must be a constitutional right of free speech. We are no exception. Our Constitution provides the assurance that all Singaporeans have that right. However, we must also recognise that there is equally the right of individuals to protect his honour, reputation and dignity. The right of free speech must be subject to some form of legal control. An English jurist put it well when he said:

"Firstly, any person is entitled prima facie to his good name, and imputations are not to be made without justification which are detrimental to his reputation. Secondly, any person should be entitled in a free democratic community to publish fearlessly statements of fact and expressions of opinions however forthright or unpopular and even though they may reflect on or displease particular individuals or groups."

Sir, the freedom of expression without fear or favour serves as an important underpinning in our democracy. Without the freedom to speak up, our people will not have the ability to determine their own future in this country. To be able to criticise and comment is the spur by which our Government is kept perpetually on its toes. In any democracy, if the people do not have the right to speak nor the courage to get themselves involved or heard, there will not be any check on the Government. In the end, they only have themselves to blame if the Government abuses its powers at the expense of the people.

However, while we recognise the constitutional right of free speech, it is another thing altogether to give people the carte blanche licence to go into scurrilous attacks on the integrity and reputation of any individual member of society. The cases which Mr Jeyaretnam referred to in his earlier speech did not provide the complete picture because while he tried to paint the picture that he merely made those remarks innocently, as a lawyer, he should know that taken in toto, those remarks represent certain innuendoes which, if not pursued in a court of law, will result in the undermining of the character of the person concerned. Certainly, an innocent remark which he presented earlier, as asking questions about the conduct of a particular Minister, can be seen as disparaging the good name of the Prime Minister, as it was indeed so, as found by the court in the decision which he referred to; and that is the Teh Cheang Wan's case. What Mr Jeyaretnam is asking for is not freedom of speech. That is an inalienable constitution right of Singaporeans. What Mr Jeyaretnam wants, although he has said that this is not the case that he wanted, is a licence to defame people without being called to account for the basis of his allegations.

Mr Jeyaretnam knows that it is no defamation for anyone to comment and even to criticise stridently, any policy of the Government. Outside this House, people are free to criticise Government policies and Acts. At the last general elections, many of the Opposition Members had been volubly vocal about many of our Government policies. Are these criticisms made out of fear?

Sir, what we must realise is that at the end of the day a distinction must be made between the criticism of a particular policy for which the fight for the vote of the people must stand on as opposed to an attack on the integrity and the good name of the person concerned.

Sir, what we must realise is that in a country as important as ours, human resource is our only asset. Making it more difficult for public officials to sue in defamation may well discourage many from joining the public sector. The Government would end up being poorer for it. It may not be the case for some, but for many, honour, reputation and integrity are qualities that many work hard at building and preserving.

The case which Mr Jeyaretnam cited, and that is the New York Times' case, has been considered in a Canadian court, Court of Appeal which decided not to endorse it. In Derickson v Tomat [1992] 88 DLR 401, the British Columbian Court of Appeal in that case took the opportunity to consider whether or not the New York Times' case ought to be adopted in Canada. The judge said that this particular decision has no application in Canada, and I will read the dicta from the decision.

"The rule that the New York Times case leaves vulnerable the reputation of all who are, or would be, in public life by depriving such people of any legal recourse from defamatory falsehoods directed against them, except in those rare cases where actual malice can be established. Such a rule would likely discourage honest and decent people from standing for public office."

Thus, the rule destroys rather than preserves the delicate balance between freedom of expression and protection of reputation which, as I already noted, is vital to the survival of a democratic process of government. For that reason, I would oppose introducing such a rule in this country. So there you are, Mr Jeyaretnam, it is not by uniform consensus that the rule in the New York Times case is universally applicable even by western standards.

For many of our public servants, they are not likely to allow anyone to fritter away their good name through spurious allegations which cannot be substantiated. If we allow that, there will be many, I am sure, who will have second thoughts about being a part of the public service. And I am sure you agree that this is not in our interest.

Of course, if the pubic servant concerned was engaged in some illegal or improper acts, Mr Jeyaretnam is at liberty to report the matter to the proper authorities. Let them deal with it. Indeed, it if were true, there is nothing to stop Mr Jeyaretnam from stating the substance of his concern publicly. If an officer, for example, were engaged in an act of corruption by accepting some form of gratification, it would be a defence to a claim in defamation if one can justify the statement. What the law cannot accept, however, is the allegation of improper acts through indefensible statements or innuendoes which diminish the standing of the person in the eyes of his peers. This is the real intention of Mr Jeyaretnam's call for the reformation of defamation laws in this country.

Mr Jeyaretnam is aware that our laws apply equally to all. If I choose to defame Mr Jeyaretnam publicly outside this House, he can sue me in a court of law. Whether or not he chooses to sue me is a separate matter. That is the essence of our democracy. The rule of law applies to all. It does not matter if Mr Jeyaretnam was making the defamatory remarks against me, or if I was making a defamatory remark against him. The law is respecter of no class or rank.

Sir, we recognise that with widespread literacy and universal suffrage, Singaporeans have the opportunity to participate in the political and community affairs of our country. With better education, Singaporeans are better able to articulate their views more effectively. We have seen that over the years, Singaporeans are more actively involved in the political processes than before. They would want more information rather than less of it.

We recognise this and we encourage the flow of free and frank discussions. This is necessary for the maintenance of democracy in this country. However, and I say it again, it is another thing altogether to say that that right extends to defaming the character of another fellow human being and to destroy his or her reputation.

Mr Jeyaretnam's motion in part relates to some recent matters which involved several international NGOs. I am referring in particular to defamation suits against Mr Jeyaretnam which attracted much media and international attention. Sir, at this moment, I would like to touch on the comments of several parties who have spoken publicly on this matter.

Against the issue of reformation of defamation laws is the question, as alleged by some critics, of whether we use defamation laws here to stifle and oppress opposition voices. Both the ICJ and the Amnesty International observed the defamation trials involving Mr Jeyaretnam.

Amnesty International in their report expressed the concern that the decision to launch defamation was unnecessary and unreasonable. They feel that the combined action of the leadership and the decision of the court placed restrictions on freedom of expression that cannot be justified by international standards. Amnesty International went on to pontificate that civil defamation has been misused by the Executive to intimidate and deter those with dissenting views. The suits have a chilling effect on the political life and place unreasonable and unacceptable restrictions on the right of Singaporeans to freely hold and express their views.

The International Commission of Jurists, on the other hand, through their self righteous representative Stuart Littlemore, blatantly stated that the courts have assisted the plaintiffs in this case.

Sir, I have two comments to make on these. First, we must recognise that as a matter of first principle, every country with its duly elected government has the sovereign right to determine its own destiny. I have stated, at the onset, that the freedom of expression and speech must be balanced in every democracy against the right of any individual to protect his reputation and standing in the eyes of the community. Where that balance lies is to be decided by the people of the country concerned. It is not for any one, Stuart Littlemore included, who has no stake in his country, and who had himself sued others for defamation, to pass judgment and to say where that balance should be.

Here, in Singapore, we have leaders who have worked hard at transforming this country into an economic miracle. The success of this country rides not only on the back of the labour of our people but is also founded on the integrity and honesty of the leadership. Their integrity has helped to build up the trust that the people have in the leadership of this country. It is this inherent trust that our people have in our Government that has led to the quiet confidence that this Government will lead the country through its present difficult time. The leaders did not forge this trust overnight or through subterfuge. It is through years of hard work, and the success of our leaders at every general election is an affirmation of that trust. We are not going to allow anyone to fritter away the trust that our people have in the leadership by allowing anyone to cast aspersions on the character of our leaders which is indefensible in law; and certainly not allow anyone who, after they have lost their case in a court of law, should now come to this House to ask for the rules to be changed so that he has the licence to defame others.

The principles of defamation may be similar in most common law countries, but the standards of defamation are and should be different. The Guardian, in its editorial, has called our leaders thin-skinned. If that is the allegation, so be it. We have seen the buffoonery of the English press in the handling of their own leaders under the guise of freedom of expression. If that is the standard they want us to go down to, Sir, we are not interested. Let us decide what those standards are and let us be our own judge.

Secondly, the reports that have emerged suggest that we have no avenue for constructive criticism at all. Is this true? Are we deterred as a people from speaking up publicly? Mr Simon Tay said earlier, people are discouraged from speaking simply in case there is a chance that they may be sued for defamation. I did say earlier that a distinction must be made between defamation which goes towards the integrity and the good name of a person as opposed to a fair criticism and comment of the policies of a country. I think, in any election, there must be a contest of ideas. In the last elections, we have seen that the people have had no restraint in publicly criticising, rather stridently at times, some of our Government policies. But let there be no mistake about it, that here it is the good name and the reputation of the people concerned that we are trying to protect. And it is a matter of policy, we have decided, or at least I feel we have decided, that if we allow people to launch into scurrilous attacks against the good name of the people concerned, then the people may feel discouraged from participating in the political process. But then, of course, Mr Zulikifli has also said that people who are involved in elections should be prepared to have their feet muddied in the process. But then I ask Mr Zulkifli, the hon. NMP, why should politicians be any different? Are they not human? Are they not entitled to have the right to defend their good name in a court of law?

At the end of the day, let us ask ourselves: Is there a forum for our people to express deep unhappiness over policies? Are there people in prison today because they spoke out their minds and spoke from conscience? No. The answer is a resounding no. Sir, over the years, we have put in place institutions that encourage people to participate in policy formulation and implementation. Mr Simon Tay, for example, is involved in a forum that looks at deciding policies that will carry Singapore to the next millennium. If it was our intention to gag opposing, or even remotely, dissenting voices, he would have no place in this Committee today. And that is why we have the Feedback Unit, the Forum page of the Straits Times, the Internet, and, as I said earlier, more recently the Singapore 21 Committee where the people involved have actually gone out of their way to solicit views as to the kind of society Singaporeans want in the next millennium. In all these discussions, one would say that there were no attempts to put any unreasonable restrictions other than those which go beyond the bounds of human decency, in matters which they have been allowed to raise. Did we go after them because of such adverse remarks? Was there ever any indication of oppression or fear which prevented them from speaking out? No. If there was any effort on the Government's part to gag these voices or to instil in them a fear to speak out against what is perceived as bad Government policies, we would not have seen or heard any of these strident criticisms that we see or hear of these days.

We should realise that nowhere in the world would you find a Government that has taken the trouble of constitutional reform to ensure that there is adequate representation in Parliament for the minority voices. It is for this reason that we have in this House today Nominated MPs and the NCMP. These representatives have no obligation to anyone and are encouraged to speak without fear or favour. Mr Jeyaretnam, a loser in the last election, is here today by the grace of the same Government he now claims is suppressing this right of free and fair speech. Has the Government tried to stop him from speaking in Parliament? No. On the contrary, we have been patiently listening to him going on and on in this House almost ad nauseam on the same themes like an old record. If we had a strict democracy, where the right of admission into this august House is through the vote of the people, then these people, like Mr Jeyaretnam, will not be here today, and we all agree that Singapore will be poorer for it. So, Mr Jeyaretnam, how are we, with all that we have sought to do in these past years, any less democratic? How can we be said to be oppressive and stifling free expressions and discussions? Mr Jeyaretnam, unfortunately, has his pet peeve and would waste no time in bringing it into this House without considering whether it stands to reason. Today's motion is yet again another example.

For the above reasons, I do not support the motion.

Assoc. Prof. Ho Peng Kee: Sir, first, let me say, before going into the motion proper, but I would not take as long as Mr Jeyaretnam did, when he introduced this motion with a 20-minute speech which sounded like a history lecture, that this House is doing well. Mr Jeyaretnam asked whether this House is effective. He has criticised this House as not doing its job of checking the Executive. But, of course, from his standpoint, Mr Jeyaretnam would like a gridlock, as happened in some countries, where the Legislative arm and the Executive arm cannot see eye to eye, and government cannot function. But, Sir, in Singapore, we do things differently. Yes, Parliament has a role, and Parliament plays its role effectively. This, in fact, was a subject matter of a motion which Mr Jeyaretnam himself had moved in this House six months ago. So we have already dealt with that effectively. It is not only me who says this, because here again if you look at independent polls, I think it was 1996, the PERC polls talked about the state of the legislatures in the Asian region. The PERC polls put Singapore at a very high placing, saying that despite the absence of strong Opposition in the House, there was rigorous and vigorous debate. So there you have it.

The other thing about Mr Jeyaretnam is that he keeps returning to old themes. He laments why there are so few Opposition Members in Parliament. He has given other reasons in the past. He has a new one this time. He says that Opposition politicians are defeated in the polls because of the law of defamation. Mr Jeyaretnam, what else will you come out with next?

Sir, let me first say that the motion is misconceived. It must be rejected because its basic premises are false and untenable. These are, firstly, that the law of defamation denies every citizen the right to comment on and criticise the conduct of public officials and the discharge of public functions and duties. And secondly, without changes to the law of defamation, citizens cannot exercise their right without fear.

Sir, Mr Sin has just said that this is far from the truth. Because, as Mr Sin has said, and indeed this is the case, Singaporeans are not afraid to criticise Government policies or indeed officials, if justified. I think in the last debate in this House, again on Mr Jeyaretnam's motion, Mr Zulkifli and Mr Simon Tay had alluded to this, that as a civil society, we are opening up and more people are speaking up. And for those who are not speaking up, it is not so much for fear of being put in prison or Government reprisal, but I think Mr Zulkifli also said it is partly due to a cultural basis. People may not want to speak up in public to avoid the embarrassment of being put down or having to rebut and to debate publicly.

Sir, certainly, it is not the fear of defamation that puts people off from speaking up. In any case, even if there are some, like Mr Zulkifli has mentioned, who may have this fear, I hope that, after today's debate, knowing what the ambit of the law of defamation is and how Government leaders have in the past used it, the few instances when PAP leaders had used defamation in what context and what were the words in question, I think such fears can be put to rest.

What is Mr Jeyaretnam's motivation for moving this debate? I think he shows it quite clearly. He has talked about cases he had been involved in, two of which he was involved in, and the other one involving Mr Tang Liang Hong, a Party member. Like Mr Sin has mentioned, and the other two Nominated MPs have also said, these are cases which have been dealt with fully by the courts, up to the Court of Appeal, which have examined them in the context of the law and in the context of accepted standards, tests and principles, whether the words in question were defamatory or not. Of course, Mr Jeyaretnam, in this House, tries to tell us that they were all innocent statements, they were innocent denials. Again, without going into the details, surely the courts examined these words very carefully, not only in the context of what was the natural and ordinary meaning, but also what was the innuendo meaning in the context in which the words were uttered, and after a full consideration in the cases that Mr Jeyaretnam had mentioned, the courts had held that indeed defamation was made out.

Mr Jeyaretnam talks about democratic society and freedom of speech. He makes a big pitch about it. Let me first say that there is no democratic society in the world, let alone true democracy, words in the motion, whatever true democracy means, where the right to exercise free speech includes the right to defame individuals, including public officials, not here, not in the US, not anywhere. As Mr Tay has pointed out, every society has to strike a balance. What is this balance between the individual's right of free speech and the interest of society? Our defamation laws are well established. They have worked well and I would say that there is no need for a Commission of Inquiry to look into changes.

Mr Jeyaretnam talks about democratic freedom. Sir, it is not a democratic freedom to defame and attack another person's reputation with falsehoods to impugn his integrity without basis. Our defamation laws give everyone, including politicians, and that is what it should be, the right to protect one's reputation and honour. It is one thing to engage in robust political debate and criticise the Government as leaders or policies in the process. In fact, Opposition leaders, Members like Mr Low Thia Khiang, Mr Chiam See Tong and others, have done for many years. They have not been sued for these criticisms. But it is another thing to defame. And indeed, everyone, including politicians, must take the legal consequences of their words.

It is not only Government leaders who sue in defamation. I am sure Mr Chiam knows this very well. He has also invoked the law of defamation. When justified, he has sued. He has won cases, not just against other Opposition politicians but also against PAP leaders. Indeed, Mr Jeyaretnam himself has invoked the law of defamation when he sued the Prime Minister who was then DPM in 1989. That case went up to the Privy Council and was dismissed.

Mr Jeyaretnam: Why?

Assoc. Prof. Ho Peng Kee: Whatever it is, the highest court at that time dismissed Mr Jeyaretnam's case.

Mr Jeyaretnam also talks about our Constitution. In Singapore, yes, there is freedom of speech in Article 14 of the Constitution. Yet, at the same time, and Mr Tay has alluded to that, it must be balanced because the word "defamation" is also mentioned expressly in our Constitution. Therefore, the requirement of balance is in fact expressly set out in the Constitution.

But Mr Tay supports Mr Jeyaretnam's call for a Commission of Inquiry. A Commission of Inquiry is normally set up to inquire into alleged wrongdoing. It is not the proper forum for the examination of an area of the law. Of course, with Mr Jeyaretnam back in the House, I think one other theme that is recurrent has been his constant calls for the formation of Commissions of Inquiry, committees and whatnots. Perhaps he sees himself playing a starring role in these committees. He wants a higher profile for himself in Parliament.

Like I have said just now, the law is working well. Indeed, the law is evolving because our courts are still looking at how defamation laws can be applied in various contexts. So I would say, let the courts do the job. I think this is an approach Mr Tay himself has previously argued for. So our position is that unless there is a need for Parliamentary intervention, the courts should do their job.

I should take this opportunity to explain why PAP leaders sue for defamation. We have explained this many times before, both here and outside. Defamation is taken very seriously in Singapore, not just by the Government, but indeed by all Singaporeans, more so when the integrity of its political leaders and key institutions is questioned. In a Singapore lacking in natural resources where the cutting edge that has made a difference is human resource, it is critical that at the apex where the national political leadership and key institutions sit, there is no doubt that there is absolute honesty and integrity. Wild allegations must be deterred and debunked in accordance with the law. Why? Otherwise the ability to govern will be undermined. This indeed is a democratic and conclusive way to settle disputes and thus maintain high standards of truth in politics. The other way, as is the case in some countries, is to exchange defamation for defamation in the media with the public never the wiser as to who is lying. Singapore leaders therefore sue in defamation to clear their names and protect these key institutions through due process of the law, not to stifle, intimidate, harass or bankrupt the Opposition. Therefore, these actions are not politically motivated. Ultimately, Singapore will benefit.

The other point of course is that politicians who do not clear their name in court, when defamed, will lose the respect of the electorate. They will ask what is he fearful about. Why is he not suing? A key ingredient of good Government is that political leaders have the trust and respect of the electorate. PAP leaders working with important institutions, such as the civil service, have through many years of hard, honest work won this trust and respect. Public interest demands that such good repute be accorded the protection that it deserves, because we cannot risk what has happened in some countries where politicians are regarded very lowly.

One must not forget that when anyone, more so a national leader, sues in defamation, he is putting his own reputation on the line. As such, PAP leaders sue in their personal capacity. I think all of us know a key defence to a defamation action is justification. In other words, it is open to the defendant to prove that what he says is true. A politician who sues thus opens himself and his actions to public scrutiny and rigorous cross-examination in court.

Hence, with all these constraints, why then do politicians sue? The main point is to establish the truth. A politician knows that scurrilous accusations left unchallenged would poison the public's mind. For example, past allegations against PAP leaders which have prompted them to sue for defamation include imputations or implications of nepotism, corruption, lying, abuse of power, all of which are very serious allegations, and of course implication in the death of a Minister and other such implications. In a Singapore founded on good honest Government, we cannot allow such poison to fester and go unchallenged. Besides risking exposure, if the allegations are proven to be true, a losing plaintiff has also to pay costs. Therefore, the point is no PAP leader will sue for defamation unadvisedly and without just cause.

Should there be a higher threshold when remarks are uttered in the heat of the hustings? This is Mr Zulkifli's point. Indeed, this is the situation on which the three cases are founded. But the question really is: why should it be so? Elections and electioneering should never be justification for defaming and maligning an opposing candidate whether with words which are plain and ordinary in the meaning or, more often than not, words with innuendo meaning. Why should the law give licence to politicians, whether Opposition or Government, to make defamatory statements? If any politician thinks it is in the public interest to expose any character flaw or wrongdoing of an opposing candidate, he can and indeed should do so. But, at the same time, he must be prepared to justify these allegations, and that is the way it should be.

There are rules of conduct in election campaigning. Otherwise, we can imagine that the noble task of choosing political leaders who form the Government to lead the country will become an open season for mud-slinging and character assassination, an outcome we must avoid.

In any case, another important point is that the defamation action is not a blunt instrument. And I am sure that Singaporeans, I think not many, who fear defamation action if they criticise the Government or public officials, if they know this, they will be assured. Because, besides the defence of justification, there are also other defences, such as fair comment and qualified privilege.

In addition, a person who innocently defames another may make amends in accordance with section 7 of the Defamation Act. Even if not made innocently, he can mitigate damages by making an unreserved apology. And indeed an early, sincere, unqualified apology may in fact avert a defamation suit. In many cases, the publication of an unqualified apology in the newspapers will result in a full settlement of any potential action for damages. Some may argue that freedom of speech should include freedom to err in speech. Our defamation laws allow for freedom to err in speech but not freedom to perpetuate defamatory statements to the detriment of the person defamed.

Sir, I have made these points to show that the law of defamation is not a sledgehammer. Quite the contrary, the law is sensitive and nuanced enough to differentiate fair criticisms on the one hand, innocent, unintended or careless remarks on the other hand, and malicious falsehoods in the third category. The law also ensures that fair and justified comments, even if defamatory, will not necessarily get its maker into trouble.

The next point is that Mr Jeyaretnam cites support from developments in overseas jurisdictions. He talks about Derbyshire. He talks about New York Times. He talks about the Theophanous and Stephen's cases in the Australian High Court which incidentally were only 4-3 majority decisions.

Mr Jeyaretnam: Lingers in the European Court of Human Rights.

Assoc. Prof. Ho Peng Kee: The Austrian case, I know. My response is that as Singapore matures as a society, we must build up our own legal jurisprudence. This must be so. This is an inexorable process, applicable not only in the case of the law of defamation, where there are well over 100 local reported and unreported cases, including several important Court of Appeal decisions, but in many areas of the law, such as criminal law, family law, as well. But I would say that more so in the law of defamation, we cannot follow developments in Western democracies such as UK, US or Australia blindly. Why? Because defamation laws are society-oriented. The test of defamation involves how ordinary members of that society would view the plaintiff in the light of the alleged defamatory remarks. Hence, every society must, in the final analysis, evolve its own benchmark and yardstick. What amounts to defamation in one society may not be so in another, and this is shown very clearly in the US, for example, as Mr Tay has alluded. And indeed, even among the countries that Mr Jeyaretnam cites, whether it is US, UK, Australia, their laws of defamation also differ which proves my point.

There is therefore no one right approach. Neither is there an international approach. Ridiculing and sullying the reputation of national political leaders may be acceptable, say, in the US. But why should it be so in Singapore, where the standing of politicians and the process are different? Hence in the US, because of this requirement for express malice, it has become well-nigh impossible to sue in defamation when a politician is defamed. Hence, we have the media coverage and stories being exchanged, defamation for defamation. Is the country better off for it? Surely not. So that cannot be the better approach.

In the same vein, maybe not as dramatic, but different nonetheless, we are also evolving differently as a society from the British society, the Australian society. Or as Mr Simon Tay says, "Why not the middle ground? US in one spectrum, or at one end, and Singapore at the other end, but there may be other models in between." We have to find our own model, especially when we talk about political leaders having to protect their own reputation because the way political leaders are elected differ from country to country. The compact between the elected and the electorate differs from country to country. Therefore, we must evolve our own way.

The next question is: should there therefore be a different yardstick for political and public figures? I think, Mr Zulkifli, and if I am not wrong, Mr Tay, also asked this. Should politicians be treated differently? Should they be more thick-skinned? Sir, the law of defamation protects everyone, both public officials and private citizens alike. It must be so. There is equality before the law. In fact, this point was brought up in one of the cases where section 12 was cited. Why should the reputation of public officials matter less? Indeed, it is already hard enough attracting able Singaporeans to give up the privacy of their lives to heed the higher calling of politics. A higher requirement of suing and succeeding in defamation, to clear one's reputation, when smeared, would be an unnecessary additional barrier. Hence, Singaporeans can criticise Government's policies, implementation of policies, conduct of public officials, but I would say, no defamation, please. These will be met with rebuttals, explanations and consultation, if need be. But, let us not open Pandora's box because when the horse bolts, we may not know how to rein it in. We have kept it in this manner which has worked all these years. Singapore has done well. It is the right approach. Let us keep to it. Otherwise, there will be a lot of energy spent by Government leaders, not governing but handling the media, countering these defamations in the media.

Another important point which I have made is the occasions when PAP leaders have sued. I have made this point already. That is a point worth repeating. It is not because of criticisms but because of grave and serious allegations, personal ones, going to the heart of good governance. Therefore, the falsehood must be shown up and the best way to do it is decisively, independently, objectively, according to principles and standards which are all laid out in the case laws in our courts. This afternoon, the Minister for Law has, in a very convincing speech, highlighted the reputation of our Courts, not just in Singapore but worldwide. It is not just said by us, but by independent polls. So let the Courts do their job.

Should there be a cap on the quantum of damages? Again, I would say that there is no need to do this because the cases differ on the facts. Unlike the UK where the jury decides on the damages and it has been said the damages can be inordinately large and somewhat inconsistent, in Singapore, where judges decide on the damages, they look at the framework of cases and they decide based on precedents. They would say, "In this case, because of these facts, so much will be given." I think we should not have a cap and limit the quantum.

Sir, let me conclude. It is obvious that this motion cannot stand. Ever since Mr Jeyaretnam returned to this House, he has sought at every turn for a higher profile for himself in Parliament. I think this time round, as in other times, we must deny him that. Our approach has worked well. It has resulted in good government where honest and able men and women of integrity are prepared to step forward, sometimes as a sacrifice to themselves, to assume public office. What is happening in the region in the last 2-3 years where Singapore is standing up very well, shows that this approach is the way to go. Politicians who are subject to scurrilous attacks on their personal integrity and character must continue to receive the protection of the law. In this, they should not be singled out and additional fetters should not be placed in their path when they sue for defamation.

Mr Jeyaretnam: Mr Deputy Speaker, Sir, may I say that, apart from the two Nominated MPs, what we have heard from the Government benches, Mr Sng in particular, and the junior Minister are all old hat. They say I keep repeating but theirs is old hat. We have heard this over and over again, perhaps not from them but from Ministers. Mr Goh Chok Tong, even from the witness stand, was saying what Mr Sng was repeating here.

Mr Sin Boon Ann: Mr Deputy Speaker, Sir, for the record, it is Mr Sin, and not Mr Sng.

Mr Jeyaretnam: Mr Sin. Forgive me. It is nothing new to me. But, as I have said before, there is a total failure to come to grips with the question raised by this motion. There are even misconceptions completely of the terms of the motion and its purpose. Instead of that, both Mr Sin and the junior Minister questioned my motivation. It is not surprising to me that they should question that motivation. But that is something I am used to. We have heard this from Ministers over and over again but when we question their motives for bringing the action they take umbrage. As I said, it does not worry me if they should accuse me of motivation. But whatever the motivation, the question is, and which must be answered honestly, is: should we allow in Singapore actions for defamation on the facts that I have outlined in these three cases?

I think both Members, particularly the Minister of State, suggest that I am perhaps seeking a high profile in this House. But again, it attacks my personal motive. May I ask is that the reason, because they think I am trying to achieve a high profile. Is that the reason why the media have been told to shut me out completely so that the public may not know anything about what I say in this House, even questions that I ask? Nothing is shown on TV or mentioned over the radio. The press, particularly the English press, have nothing to say. Is that the reason, may I ask, for this blocking out of whatever I say in this House because I am seeking a high profile and that should not be allowed? The question is: what do the public want to hear? What do the public feel about the role of opposition in Parliament? Not whether the Opposition Members are seeking a high profile or not. If they are talking nonsense, let it be reported so that the public can see it.

On the misconceptions, both Members, I think perhaps even one of the NMPs, questioned whether a Commission was the right way. But if you read my motion, I am not asking for a Commission of Inquiry. A Commission of Inquiry is set up to inquire into some wrongdoing or some accident to find out the facts. But that is not what the motion is seeking to bring about. The motion is asking for a Commission. Have the Government Backbenchers and the Minister of State not heard of law reform commissions appointed to look into the law and to suggest ways of bringing the law up-to-date, if it were necessary? That is the sort of Commission I am asking, not for a Commission of Inquiry into why they brought these actions. But a Commission on whether the law of defamation in Singapore intrudes unnecessarily, may I repeat, intrudes unnecessarily, into the freedom of expression guaranteed by Article 14 of the Constitution. That is all. And no one is suggesting that we bring in carte blanche the American model or any other model. All that I am asking is that we should seriously examine this question. Are the defamation laws curtailing in any way this basic right of the individual? So that is the first misconception.

The second misconception is that, somehow or other, I am asking that the law of defamation be amended to give persons the licence to defame everybody, including politicians in high places. I do not know whether it is because they did not hear me, or whether they thought they should just ignore what I said and continue to make the same allegation that I am asking for a licence. I made it clear that I was not seeking a licence for defamation, for the right to defame, whether at elections or at any other time. The US law does not give the citizens the right to defame. It only protects the right of citizens to question and participate in the affairs of the country. And it protects them if there are errors of which they were not aware at the time they made the statement. What is wrong with that? The US decision in the New York Times and Sullivan does not say that you can defame the President, you can defame all the other public officials, you can go ahead, and the Constitution gives you the licence. It does not say that and neither do the laws in other countries. So, do not be carried away by the idea that I am proposing for Singapore a licence to defame. All I am concerned is that we should move from the kind of society we are in now into a freer society, with the right of every citizen, in elections or out of elections, to question the Government and to have answers given to those questions, and without being shut up by the threat of defamation actions.

Again, a big misconception by Mr Sin and the Minister of State, and perhaps also the point taken by one of the NMPs, Mr Zulkifli, is that, in Singapore, people have the channels to criticise and they do it fearlessly. I do not know how this perception was arrived at. I would commend to the Minister of State and to the Government that perhaps they should appoint a fact-finding body, not the Government, to inquire from the citizens whether they feel they have a right to speak up freely and criticise the Government and its officials in the discharge of its public duties. May I say from what I know, if such a body is appointed and the citizens are told, "You need have no fear. You can give the answers truly.", it will surprise the Government. Not a day passes without me encountering people who tell me, "In Singapore, we cannot breathe. In Singapore, we cannot speak up." It does not only come from taxi drivers. It comes from people way down. So, I fail to understand this statement that, in Singapore, no one need be afraid, whether of defamation laws or the ISA or any other administrative action.

What fora are there in Singapore for expression of public opinion? It is no good pointing to feedback systems set up by the Government. I have mentioned before that it has been reported to me that even at these feedback sessions, questions have first to be given and they have to be approved. But what I am suggesting is that if you are really sincere in your statement that there are enough avenues, or you would want avenues, then open up, and allow public discussion. Take away the permit requirements for public meetings. Allow persons to congregate and discuss openly. Then you can say, "Yes, in Singapore, we have all the avenues necessary." But that does not obtain in Singapore. There is no freedom of expression in Singapore.

The chilling effect of the defamation actions on the freedom of expression is not something that just the Amnesty, the ICJ or other NGOs have brought up. This chilling effect of restricting, by defamation laws, public participation was noted by the House of Lords in the Derbyshire County Council case. It is probably from there that people have begun using the term "the chilling effect". It is not just the ICJ or Amnesty which talks about the chilling effect. The courts in other countries have recognised that and they recognise the importance of free speech for a truly democratic society which rates the freedom of the citizens to participate in public affairs higher than the right to protect personal reputation. But, of course, they are not suggesting that we go overboard.

The other big misconception is to totally ignore the three cases on which I have relied and to talk generally that we cannot allow our citizens, even if they are Opposition politicians, to run down political leaders. Do I need to go over again the facts upon which the actions were brought in the three cases? There was no smearing of the plaintiffs in these actions. In Mr Tang Liang Hong's case, it was a denial of defamation against him, that he was a Chinese chauvinist and anti-Christian. So are we saying that in Singapore, if a Minister decides to call someone a liar, he should just shut up and not say, "I am afraid the Minister is not speaking the truth"? Because the Minister will then say, "Oh, you are accusing me of lying. I am going to sue you in the courts." Is that not the situation in the case of Tang Liang Hong? Reference is made to the perception of Singaporeans that in our society politicians should immediately take action to protect themselves if there is anything unkind said about them, even if it is defamatory, and especially it is slightly defamatory.

Again, I ask: where do you get that perception from? Has any poll been conducted, as it would have been conducted in other countries, as to what Singaporeans thought of the defamation actions in the circumstances over which they were brought? I would urge the Government to carry out that survey. You can dismiss what I say as just my own perception or because a few have told me. My friends have told me and, of course, they would say that. But my own perception is that many Singaporeans were very disappointed and upset over the defamation actions. I think I had said in the previous motion about the letters that I had received after the last elections where Singaporeans said they were sickened to the pit of their stomachs by what had happened during the elections. They said they were ashamed that this should be allowed in Singapore. So, please carry out a survey. I would be very glad if you would carry out a survey among Singaporeans as to what they think about the defamation actions.

I am not disputing that we should make laws that we think are necessary for our society. And this would be the purpose of the Commission. The Commission would examine the present defamation laws and see how they have been applied in the Courts. The Commission would go into the facts and then come out with their recommendation whether they think any change should be made. That is all. What is so difficult about it? We should all accept that with open arms if, as I said, we believe in democracy. So we come back again and again to this question: what kind of society do we want in Singapore? Do we want an open democratic society? Or do we want a society where the people's mouths are shut and they are not able to speak up and make their contributions to the society?

There was, in the speeches of the NMPs, the need to protect politicians from false charges or reckless charges. My answer to that is, of course, I can see the need to protect them against scurrilous false charges, but we would have to examine and answer the question whether, in these three cases, there were false scurrilous charges. In my own particular case, it was a statement of truth, that he had placed in front of me reports which he had made to the Police. On that it could not be denied, it was nothing but the absolute truth. There is nothing false about it. And, indeed, as Members must know, the next day the press carried Mr Tang Liang Hong's reports to the Police, released by no less than the Senior Minister, in conjunction with the Prime Minister. So they were informing the public and yet I was sued because I had told the public that he had lodged the reports.

It is this situation that one should examine and answer the question whether we should allow libel actions in these situations. Of course, there is the law, the defence of justification, the defence of fair comment, the defence of qualified privilege. But, as has been observed in the decisions in the other countries, it is almost impossible for a person who makes a comment to prove something which lies peculiarly within the knowledge of the other party. So it is for the other party to bring all the facts and to show that the statement was false and that the person knew the falsity of the statement when he made it.

Both Mr Sin and the Minister of State talk about the sovereign right in Singapore to make its own laws. Where does this motion deny that sovereign right? So what is the purpose in repeating that? We are asking independent people to advise the Government on the law of defamation. We are not asking them to import any other laws. We would be asking them to appoint a Commission to make recommendations.

I was going to read, Mr Deputy Speaker, Sir, and I could read, statements in all the cases decided outside Singapore to show what importance they attach to the rights of the citizens. But I do not intend to do that. I have kept Members long enough.

Mr Deputy Speaker: Yes, it is getting very late.

Mr Jeyaretnam: And if I carry on, it will probably take us up to 10 o'clock. But I do not intend to do that.

Mr Deputy Speaker: I think you should wind up the debate.

Mr Jeyaretnam: So I will sit down. Thank you.

Mr Deputy Speaker: Thank you.

Question proposed.

Mr Jeyaretnam: I call for a division on the motion, Sir.

Mr Deputy Speaker: All right. You require five Members to call for a division.

Mr Jeyaretnam: Yes.

Mr Deputy Speaker: Those in favour of a division, would you please stand?

Mr Chiam See Tong and Mr Low Thia Khiang rose.

Mr Deputy Speaker: There are only three Members. That does not qualify you to call for a division.

Mr Jeyaretnam: Yes, all right. But I have called for a division.

Mr Deputy Speaker: We will note it. It shall be recorded.

Question on the motion put, and negatived.