Between Hermes and Themis: An Empirical Study of the Contemporary Judiciary in Singapore

DOIhttp://doi.org/10.1111/1467-6478.00200
Publication Date01 December 2001
AuthorRoss Worthington
JOURNAL OF LAW AND SOCIETY
VOLUME 28, NUMBER 4, DECEMBER 2001
ISSN: 0263-323X, pp. 490–519
Between Hermes and Themis: An Empirical Study of the
Contemporary Judiciary in Singapore
Ross Worthington*
Drawing upon interviews in 1995 and 1998 and analyses of judicial
appointments from 1975–1998, the article offers a new explanation of
judicial-executive relations in Singapore. It attempts to explain how
the judiciary in Singapore actually functions, partly by using the
concept of the core executive to locate the judiciary more accurately
within its political context. The study demonstrates that the judicial
system has been hegenomized by a number of political and
bureaucratic strategies, and interprets its role in terms of the overall
goals of the political executive. The lower judiciary is an amateur
judiciary and forms part of the executive government. Despite this, the
contemporary superior judiciary is not wholly a creature of the
political executive, as is often postulated, but rather the result of a
compromise which balances the need for a reputable judiciary with the
requirement by the political executive for the judicial system to assist
with the control of political opposition. This negotiated balance is
qualitatively different from the relationship that characterized that
between the Lee Kuan Yew governments and their Supreme Courts
until 1991 and reflects the maturing of hegemonic control strategies
under Goh Chok Tong. The analysis was completed in 1999.
Singapore is a small nation of almost four million people, which, in the
course of forty years, has built itself from a third-world colony, albeit upon
colonial foundations of an already successful economy and an efficient
administration, into a wealthy independent nation without resort to military
or civilian dictatorship, with an entrenched, though partial, democracy, a
stable society, and an economy that has averaged annual growth of 8.5 per
cent each year since independence. Its per capita GNP in 1998 was higher
than that of its previous colonial master, it is a net lender to the world, it has
490
ßBlackwell Publishers Ltd 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
*Executive Director, Philippines-Australia Governance Facility, 1107, Antel
2000 Building, Salcedo Village, Makati City, Philippines, and Associate,
Graduate Program in Public Policy, Asia Pacific School of Economics and
Management, The Australian National University, Canberra, Australia 0200.
one of the world’s highest levels of foreign reserves, and, at the end of 1995
was classified by the OECD as having developed sufficiently to be removed
from its register of developing countries, a decision confirmed by the IMF in
1997.
1
It has a multicultural society which is well educated, stable,
increasingly wealthy, and fully employed under the administration of a
efficient and highly effective government. More than 80 per cent of families
own or are buying their homes.
2
Four factors have been consistently identified as crucial to Singapore’s
achievements: a stable, efficient and corruption-free government and legal
system; liberal trade and investment policies highly integrated with the
international trading system; its highly developed human resources; and the
effectiveness of the ‘technocratic elite’ in the state bureaucracies in
developing and managing the policies on which these achievements are
based. In respect of Singapore the consensus is that government has made a
difference.
3
This is a system of governance which, however, has been
extensively criticized for its lack of transparency, accountability, and
democratic behaviour. In particular, there has been a continuing concern that
the ruling Peoples Action Party (PAP) governments have produced a political
system in which all branches of government, including the judicial, have been
subjugated to the executive branch. This has led to considerable criticism of
the Singaporean judiciary, particularly it role under the governments of the
first Prime Minister, Lee Kuan Yew. Lee has now been out of office, but not
out of the Cabinet, for nine years; has much changed in judicial-executive
relations in this time? This study attempts to answer this question.
THE SINGAPOREAN JUDICIARY AND ITS CRITICS
The basis of the extensive criticism of the Singaporean judiciary which has
grown in magnitude over the past twenty years, has not (at least originally)
been based on any particular antipathy towards the PAP. It has been based on
disbelief that a judicial system can perform so consistently within the
principles of English law on most matters, and then seemingly ignore these
principles in political cases, as evidenced in recorded judgments.
4
Criticism
491
1 ‘Resisting Promotion’ Newsweek, 6 June 1997.
2Economist, 13 January 1996, 27–8.
3 World Bank, The East Asian Miracle (1993) 180, 347–68.
4 For example, in Justice Rajendran’s judgment in the case of Goh Chok Tong v. J. B.
Jeyaratnam heard from 8–12 August 1997, the ICJ observer, Canadian Judge Paul
Bentley commented on the logic of the judgment: ‘The logic escapes me!
Rajarendran indicated that he was adopting the reasoning of the English House of
Lords in Rubber Improvements Ltd. v Daily Telegraph Ltd . . . as the correct
interpretation of the law of defamation . . . On this reasoning, Jeyaratnam’s words to
the crowd could not be defamatory. Yet the conclusion of Judge Rajendran runs in
clear opposition to the rationale in the ‘Lewis’ case.’
ßBlackwell Publishers Ltd 2001

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