The Justice Game

by Geoffrey Robertson

  The most fundamental right of all is the right to challenge the State, under a legal system which allows the possibility, occasionally, of winning. To secure that right has been the spur for change in most countries I have visited on human rights missions – countries as diverse as Czechoslovakia and Malawi and Vietnam – because it is the acid test of democracy. It had never been a possibility for the Czech dissidents, who were followed everywhere by the same secret policemen who would dog my steps through Prague’s rubbled streets. Once I led them into the city’s Jewish cemetery, full of tall tombstones leaning at crazy angles, as if blown by centuries of storms. By the entrance is a small art gallery full of pictures of ordinary life at home; optimistic, childish art about the possibility of innocence. These are the most moving pictures in the world, for they were drawn by the children of the Terezin ghetto, en route to Auschwitz. Their art survived the war, unlike the young artists. It was both ironical and logical that the ‘unlicensed’ publications for which Karel Srp was sent to prison should include studies of art and music of Terezin.

  *

  Student activists became involved in the labour issues of several factories, presenting themselves as champions of the workers. In 1974, students agitated on the University of Singapore campus. The Communist party of Malaya was attracted to this fertile ground of activism . . . In 1987, a drama society, the Third Stage, was formed by a group of ex-student activists. No Foul Play was the first of a series of plays that took a consistently negative view of society and government policy. Articles in Catholic magazines began to deviate from religious subjects and focus instead on political issues . . . there is a Marxist link to them all.

  This was the opening of Singapore State television’s Tracing the Conspiracy – a programme which showed how Stalin’s trials would have looked had they taken place on TV in 1987. This city-state was vociferously anti-communist, ruled by English law and a lawyer trained in England. The art of choreographing a show trial had moved on in the half-century since Vyshinsky, but the outline of the script remained the same.

  Lee Kuan Yew knew all about communists because he had briefly allied with them, riding the Asian Marxist tiger for just long enough to extirpate first the colonial British and then some short-lived local liberals, before jumping off and shooting the beast between its blood-red eyes. That was in the fifties, and thirty years later, when we crossed words in court, he was haunted by the memory of his escape from the communist cadres he imagined still lurking in the Malaysian jungle. Since he came to power in 1959, his People’s Action Party (PAP) had controlled the lives and minds of Singaporeans as closely (and a good deal more cleverly) than any of its counterparts in Eastern Europe. To this end he had kept in place all the British emergency legislation he had reviled in his fellow-travelling days. These laws provided for detention without trial for as long as the government liked: they were operated by a vast and increasingly sophisticated army of secret police, the ISD (Internal Security Department). There were judges in wigs and gowns, who seemed utterly fair and impartial and had never been known to rule against Lee Kuan Yew or the PAP or the ISD or the government, because (no doubt) these entities were always in the right. My appearances in Singapore in the late eighties were to defend an improbable mix of subversives: Catholic lawyers, women playwrights and Dow Jones Inc.

  The ISD was adept at securing confessions, but modern Vyshinskys no longer resort to medieval methods. They dressed their victims in cotton pyjamas, and stood them under the full force of an air conditioning unit, facing studio-strength spot lights. Then they applied what the government admitted was ‘psychological pressure’ to extract confessions – mainly from a group of Catholics whose concern for social justice they had misinterpreted as subversion. The ISD plots were, in their way, as silly as Stalin’s: the conspiracy was alleged to revolve around connections with a Trotsky figure named Tan Wah Piow, a Marxist who had fled the country to avoid conscription and was now based in postgraduate digs at Oxford. The conspiracy’s clandestine leader in Singapore was a Catholic social worker, Vincent Chang, who had recruited a group of young lawyers, actors, accountants, and merchant-bankers to destabilise the State by writing articles and plays which drew attention to unemployment figures and the low pay of Filipino maids. Under the icy blasts of the air conditioner, these terrified middle-class detainees had ‘confessed’ to various contacts with Vincent and in some cases to telephonic contacts with Tan. Most importantly for the plot, they admitted to having been encouraged by a number of Catholic priests.

  Although only six per cent of the island was Catholic, it was this religion which Kuan Yew had come to fear more than communism. Not, let me make abundantly clear, that he had any concern at all about the Catholic Church: he was as fluent in Machiavelli as the Vatican, and was rightly proud of his tolerance of all religions as long as they did nothing more than worship. What frightened him was ‘liberation theology’ – a phenomenon that he credited with toppling Marcos in the Philippines and seemed afraid might topple him. Thus his secret police targeted all Catholics preaching the poison of ‘liberation theology’ with its subversive concern for human rights. Lee had personally begged the Pope to cut this cancer out of Singapore; his ISD director had warned the Archbishop that there were too many ‘truth and justice’ columns in Catholic publications. When the Archbishop failed to act, the ISD and the government decided to force his hand. They did not arrest the priests, but they detained in prison twenty-two young Catholic activists for participating in ‘a Marxist conspiracy to subvert the existing social and political system in Singapore through communist united-front tactics’.

  The Archbishop wavered. His diocese was in a state of terror, and packed the cathedral to pray for God to guide the government. This infuriated Lee Kuan Yew, who regarded himself as Singapore’s only God in matters temporal. He summoned the nearest Vatican diplomat and told him to keep the Church out of Singapore politics, or else he would arrest the priests. The Archbishop was paraded at a press conference with Lee in order to say that the detentions had nothing to do with the Church – incautiously he added his hope that the government could prove its allegations against the detainees. ‘I have never said that I was going to prove anything in a court of law,’ Kuan Yew shot back. ‘It is not the practice, nor will I allow subversives to get away by insisting that I produce evidence that will stand up in a court of law.’ So the detainees underwent their trial not in a court of law, but in a television programme co-produced by the government-controlled media and the secret police.

  The detainees were broken very quickly. Lee was later to sneer about this – how pathetic they were, compared with communists of the past. It did not strike him that this was because they were not communists, but middle-class liberals who wanted to do their bit for the poor. They were shamed by the very fact of their arrests, mortified at the discredit the publicity had brought on their respectable families. They were arrested at 2 a.m. and taken to the Whitely Road Detention Centre, where they were blasted with freezing air and slapped in a way which stung rather than bruised. Recalcitrance or drowsiness was punished with a basin of cold water. The interrogators indicated what they wanted – long written apologies about how their actions had been influenced by Tan or Vincent. Then they were required to read their confessions in front of television cameras. Various sound-bites were extracted, often out of context, and carefully edited for their television trial.

  These twenty-two Catholics were initially detained for six months, but after their release some of them issued a press statement, describing the torture they had undergone: sleep deprivation for up to seventy hours; standing for up to twenty hours’ interrogation at a time under the full blast of a freezing air conditioner; dousing with cold water; hard slaps to the face; threats to friends and loved ones; warnings that release would depend on their command performance. (They had been ordered to make statements such as ‘I am Marxist-inclined . . .’ and ‘My ideal society is a classless society’ and ‘I was made use of by so
and so’.) The signatories to this statement were immediately arrested and detained indefinitely ‘to get to the bottom of the whole picture’, as Deputy Prime Minister Goh Chok Tong explained. That meant extracting more confessions from them. Lee’s son and presumed heir, government minister B G Lee (the B G stood for ‘Brigadier General’ although it was popularly translated as ‘Baby God’), was sufficiently arrogant to admit to the BBC World Service: ‘The government does not ill-treat detainees. It does however apply psychological pressure to detainees to get to the truth of the matter . . . the truth would not be known unless psychological pressure was used during interrogation.’

  Predictably, it was soon announced that the eight detainees had ‘withdrawn’ their statements, but there seemed no immediate prospect of their release. As the months went by, I was approached to act for most of them in applications for habeas corpus, the greatest invention of English law, which requires immediate liberty for a person whose detention the State cannot lawfully justify.

  Never have I acted for such good people. There were young Catholic lawyers, like Tang Lay Lee and Kevin de Souza, whose subversiveness had been inferred from ‘forsaking a well-paid legal career for a lowly paid job of a helper with the Catholic Students Union’. There were two female dramatists, authors of the mildly satirical No Foul Play and Oh Singapore, who were charged with ‘singing progressive songs and performing plays which exaggerated the plight of the poor and the inadequacies of the existing system’. What was so shocking about these detentions, and ultimately so thuggish, was that the dissidents were (as Lee himself described them, although contemptuously) ‘do-gooders’ who wanted to help the poor and the dispossessed. Their weak satire and obscure columns in Catholic News entirely lacked the mass appeal of the Jazz Section, or even the anarchic ebullience of Oz with its reference to sex and drugs which would have utterly horrified these detainees. It was, I think, their simple goodness which rebuked Lee Kuan Yew: for all his materialist might, and his determination to be mentor and role-model to his people, he feared that they were setting the better example.

  The struggle to free the detainees was conducted in a country where litigation was a game which Lee Kuan Yew, himself an able lawyer, regularly played and always won. He had abolished jury trial as unreliable, but kept the Privy Council so long as it displayed no interest in upsetting pro-government decisions. Lee used English libel law to bludgeon and bankrupt political opponents for any personal criticism of him made on the hustings. For this task he would import leading QCs from London. John Mortimer would sometimes try to even the odds, by defending Lee’s particular bête noire, Ben Jeyaretnam. Ben had incurred Lee’s enmity by winning a seat in Parliament in 1981 on behalf of the Workers Party – the only seat not held by Lee’s PAP. In due course Ben was prosecuted on trumped-up charges of fraud, and jailed for just long enough to be disqualified as an MP. The Privy Council reviewed the whole course of the case and issued a devastating condemnation of the Singapore judges who had handled it. It expressed ‘deep disquiet that by a series of misjudgments’ Ben and his co-accused had ‘suffered a grievous injustice. They have been fined, imprisoned and disgraced for offences of which they were not guilty.’

  The robing room of the High Court in Singapore was just like the robing room of the High Court in the Strand, and contained much the same people – English QCs dressing for forensic battles over commercial contracts. The only difference was not apparent: it was bugged by the secret police. This was an apt metaphor for the justice on offer: a surface fairness, with legal submissions dotted with English precedents listened to politely by black-robed judges. When it came to locking up palpably innocent people without trial, or convicting journalists for mild criticism of the courts, there were plenty of English precedents these judges could rely upon to justify the State’s action. Only when you sit in a courtroom in Singapore – or Kuala Lumpur or Nairobi or Venda – and listen to State attorneys endlessly quoting decisions of the House of Lords, do you realise just how poor are parts of the human rights legacy of British law and British Law Lords. With few exceptions, before the Privy Council decision in Jeyaretnam in 1988, they showed little conception of the importance of freedom of speech, and always allowed the State’s assertion of ‘the interests of national security’ to block any examination of the rightfulness of detention. In our habeus corpus case, the State counsel lingered lovingly over every word of Lord Denning’s judgment in Hosenball, using it to support his argument that these lawyers and dramatists could be kept in prison without trial for the rest of their lives, were this deemed by the secret police to be ‘in the best interests of national security’.

  And yet . . . judges throughout the common-law world were becoming conscious of being watched. Their judgments were increasingly published in law reports and commented upon at legal conferences and in law reviews. Some were State lackeys, but they did not like this to be pointed out – especially by the Privy Council. That court’s condemnation of the judges in Jeyaretnam’s case had deeply embarrassed the Singapore judiciary: since we could still appeal to the Privy Council, they had to watch their step. Especially since I had spotted a fundamental error which had been made by the government when detaining my clients indefinitely. The law required, as clearly as daylight, for the detention to be authorised by a government minister. Instead, it had been authorised by the head of the ISD – a secret policeman. This was such a basic mistake that no decent court could excuse it (although the first-instance judges did) and the Privy Council would, on appeal, be certain to grant habeas corpus. So on 8 December 1988 the Chief Justice of Singapore took a deep breath and announced, in a 107-page judgment, that because of what he described as a ‘mere technicality’ (it was nothing of the sort), the detainees must be released. For five hours on that day, it seemed to them, and to their deliriously happy families and friends, that the rule of law really prevailed in Singapore.

  The judgment was delivered at 11a.m. The release papers were not signed for some hours because the State prosecutor could not be found to agree the order. It was 4 p.m. before the detainees’ lawyers arrived at the Whitely Road Detention Centre, where they were greeted by smiling policemen who actually offered them drinks to celebrate our historic victory. These gaolors had been helping the happy detainees to pack up their belongings, even taking care to wrap the pictures they had hung in their tiny cells. They were escorted to police cars which drove them out of the inner gates and down the long sloping road and through the second security gate at the bottom, where their families were waiting. The cars drove past the families and went onto the road to freedom, over a roundabout and back past the families and through the security gate and up the long slope and through the first gate. Now back where they had started, my clients were served with new detention orders, drawn up earlier that day and signed this time by the appropriate government minister. The punishment for their court victory was to be detained again, indefinitely.

  In Singapore, the State could not lose, even when it lost. And the prospect of it losing was immediately foreclosed by the Internal Security (Amendment) Act which provided ‘There shall be no judicial review in any court of any act done or decision made by the President or the Minister’. That meant no more habeus corpus. And for good measure: ‘No appeal shall lie to the Judicial Committee of Her Britannic Majesty’s Privy Council . . .’ That meant no more damaging criticism from independent judges. It was a double whammy, to show the world who was boss in Singapore – the Government of Lee Kuan Yew.

  The government next launched a bizarre attack on the Western press for ‘meddling in Singapore politics’ (i.e. coverage of the opposition parties or criticising the government or reporting the plight of the detainees): Time, Asia Week, The Asian Wall Street Journal and the Far Eastern Economic Review suffered what was termed ‘gazettal’, a punishment which the government insisted did not amount to censorship. Their circulation was cut from up to 10,000 to a mere 400, confined to government libraries and tourist hotels. It was a chil
dish pretence that such a limit on circulation did not amount to an attack on free speech. This was not, however, sufficient for revenge on the Far Eastern Economic Review, which had reported on Lee’s clash with the Catholic Church. Lee sued the magazine for libel – not in Hong Kong where it was based and where appeal lay to the Privy Council, but in his own courts where such an appeal had just been abolished. Dow Jones, proprietor of the Review, believed there was an important principle – freedom of expression – at stake. ‘Have fun’ was the only instruction I received from its President, Peter Kann, as he sent me off to play the justice game against Singapore’s grand master.

  ‘Fun’ is not something normally associated with Singapore, and certainly not with cross-examining its Prime Minister. As in Czechoslovakia, my movements were followed, although much more discreetly, except where the purpose of the surveillance was to intimidate. Father Joachim Kang, a priest of enormous courage, was prepared to give evidence to support the Review’s story. When I visited him, a police surveillance van was ostentatiously stationed outside his church. A pupil from my chambers, whom I had invited to Singapore to further his legal education, made the mistake of handing me a law book in court: a few hours later he was under interrogation for working without a permit, and had to leave on the next plane. Worse was in store for my junior, Howard Cashin, a highly respected member of the local Bar. To dispel any aura of sanctity about the defence, since we were on the side of the Church, it had been arranged for an ultra-loyal PAP member to allege that his wife had committed adultery with Howard, in a divorce petition filed on the first day of the trial. As the assembled journalists awaited the arrival of the judge, the Prime Minister’s press secretary solemnly handed out copies. Greater love for the party hath no man, that he would lay out his wife’s infidelity to serve its interests.