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[h=1]LAWYERS’ RIGHTS WATCH CANADA: THE MISUSE OF BANKRUPTCY LAW IN SINGAPORE[/h]
Post date:
24 May 2014 - 3:27pm
An Analysis of the Matter of Re Joshua Benjamin Jeyaretnam, ex parte Indra Krishnan
By Kelley Bryan and Howard Rubin for Lawyers' Rights Watch Canda
Singaporean defamation law makes one radical departure from its common law roots: it does not provide any privilege over statements made by politicians in the discharge of their public duty.
This legal gap has led to a multitude of defamation law suits involving Singapore’s politicians. Singapore’s dynastic party, the People’s Action Party (“PAP”) has used defamation suits to stifle criticism by opposition political parties. The PAP has been uninterrupted in power since 1959, and members of the PAP have never lost a libel action or settled one without making money.
Many commentators, including the Inter-Parliamentary Union and Amnesty International, have noted the chilling effect of such defamation suits on the freedom of political expression in Singapore.
Now the Singapore courts are supplementing this use of defamation law by allowing bankruptcy law to be used as an adjunct political tool. Typically, the courts make generous damage awards in favour of the plaintiffs in such defamation cases. When the defendant is unable to pay, the plaintiffs (now judgment creditors) petition the defendant into bankruptcy. Bankruptcy, in turn, has one significant outcome: Singaporean law prohibits a bankrupt from holding a seat in Parliament. In this way, the twin swords of defamation and bankruptcy law effectively allow the PAP to silence and eliminate members of the opposition.
Such was the case for Joshua Benjamin Jeyaretnam, formerly a key opposition Member of Parliament in Singapore. Following a defamation suit, Mr. Jeyaretnam was petitioned into bankruptcy in 2001 and removed from Parliament. Three years later, in early 2004, Mr. Jeyaretnam became eligible to apply for discharge from bankruptcy. However, in April 2004, the Singapore High Court refused to grant Mr. Jeyaretnam a discharge from bankruptcy.
In refusing Mr. Jeyaretnam’s application for discharge, the court has given undue weight to the rights of the creditors to obtain full payment. By law, the court is required to take other equally important factors into account. Those factors include: a bankrupt’s right to rehabilitation; a bankrupt’s right to avail himself of alternatives to bankruptcy; and the interests of the public in having the bankrupt discharged.
The court’s emphasis on creditors’ rights is especially problematic in this situation, where those creditors have deliberately waived their right to obtain satisfaction of the debt by enforcing the judgment against Mr. Jeyaretnam’s co-debtors. It is also problematic because of the identity of these particular creditors who, being associated with the PAP government, have a history of using bankruptcy proceedings to stifle political dissent.
The court has a duty to safeguard the court’s process by protecting the bankruptcy system from use for this collateral purpose. Further, the court has a mandate to consider the public’s interest in Mr. Jeyaretnam’s discharge from bankruptcy so that he can return to his former role as a consistently-elected member of the opposition.
Any independent judiciary bears the challenge of promoting a healthy democracy and fostering the public’s faith in the administration of justice. This challenge is now before the Singapore Court of Appeal in Mr. Jeyaretnam’s case. Mr. Jeyaretnam has been in the past the target of, in the words of the Privy Council, “misjudgments” influenced by the executive branch of government. The Court of Appeal now has the opportunity to ensure that another profound injustice does not occur.
Read the rest of the article here: http://www.lrwc.org/ws/wp-content/uploads/2012/03/MisuseOfBankruptcyLaw.pdf
Post date:
24 May 2014 - 3:27pm
An Analysis of the Matter of Re Joshua Benjamin Jeyaretnam, ex parte Indra Krishnan
By Kelley Bryan and Howard Rubin for Lawyers' Rights Watch Canda
Singaporean defamation law makes one radical departure from its common law roots: it does not provide any privilege over statements made by politicians in the discharge of their public duty.
This legal gap has led to a multitude of defamation law suits involving Singapore’s politicians. Singapore’s dynastic party, the People’s Action Party (“PAP”) has used defamation suits to stifle criticism by opposition political parties. The PAP has been uninterrupted in power since 1959, and members of the PAP have never lost a libel action or settled one without making money.
Many commentators, including the Inter-Parliamentary Union and Amnesty International, have noted the chilling effect of such defamation suits on the freedom of political expression in Singapore.
Now the Singapore courts are supplementing this use of defamation law by allowing bankruptcy law to be used as an adjunct political tool. Typically, the courts make generous damage awards in favour of the plaintiffs in such defamation cases. When the defendant is unable to pay, the plaintiffs (now judgment creditors) petition the defendant into bankruptcy. Bankruptcy, in turn, has one significant outcome: Singaporean law prohibits a bankrupt from holding a seat in Parliament. In this way, the twin swords of defamation and bankruptcy law effectively allow the PAP to silence and eliminate members of the opposition.
Such was the case for Joshua Benjamin Jeyaretnam, formerly a key opposition Member of Parliament in Singapore. Following a defamation suit, Mr. Jeyaretnam was petitioned into bankruptcy in 2001 and removed from Parliament. Three years later, in early 2004, Mr. Jeyaretnam became eligible to apply for discharge from bankruptcy. However, in April 2004, the Singapore High Court refused to grant Mr. Jeyaretnam a discharge from bankruptcy.
In refusing Mr. Jeyaretnam’s application for discharge, the court has given undue weight to the rights of the creditors to obtain full payment. By law, the court is required to take other equally important factors into account. Those factors include: a bankrupt’s right to rehabilitation; a bankrupt’s right to avail himself of alternatives to bankruptcy; and the interests of the public in having the bankrupt discharged.
The court’s emphasis on creditors’ rights is especially problematic in this situation, where those creditors have deliberately waived their right to obtain satisfaction of the debt by enforcing the judgment against Mr. Jeyaretnam’s co-debtors. It is also problematic because of the identity of these particular creditors who, being associated with the PAP government, have a history of using bankruptcy proceedings to stifle political dissent.
The court has a duty to safeguard the court’s process by protecting the bankruptcy system from use for this collateral purpose. Further, the court has a mandate to consider the public’s interest in Mr. Jeyaretnam’s discharge from bankruptcy so that he can return to his former role as a consistently-elected member of the opposition.
Any independent judiciary bears the challenge of promoting a healthy democracy and fostering the public’s faith in the administration of justice. This challenge is now before the Singapore Court of Appeal in Mr. Jeyaretnam’s case. Mr. Jeyaretnam has been in the past the target of, in the words of the Privy Council, “misjudgments” influenced by the executive branch of government. The Court of Appeal now has the opportunity to ensure that another profound injustice does not occur.
Read the rest of the article here: http://www.lrwc.org/ws/wp-content/uploads/2012/03/MisuseOfBankruptcyLaw.pdf
