court was necessarily contemptuous. He recognised the ‘powerful public interest’
in ‘exposing and rooting out impropriety and corruption’ by those holding public
office,^154 which the Court of Appeal affirmed.^155
While questioning whether fair criticism was a defence against or element of
liability, the Court of Appeal inShadrake 2 recognised that scandalising contempt
should not stifle fair, reasonable criticism, referring to a series of Commonwealth
cases which emphasised the ‘right’ of fair criticism.^156 This right is a welcome change
from a prior reticence towards affirming free-speech values. In addition, it endorsed
the utility of the guidelines on fair criticism articulated inTan Joo Liang.^157
political defamation.Singapore case law on political defamation has attracted
much criticism for unduly chilling free speech critical of political actors and
institutions, through the award of astronomically high damages, rejecting a
public-figure doctrine and underprotecting free speech, in contrast to highly valued
reputational rights. In this context, the free-speech rationale rests on the role of
robust and free debate within democratic societies.
There were a spate of cases relating to political libel in the first decade, and
extensive consideration of Commonwealth decisions from the United Kingdom,
New Zealand and Australia. In 1993 the Court of Appeal inJB Jeyaretnamv.Lee
Kuan Yew
158
rejected the ‘actual-malice’ test inNew York Timesv.Sullivan
159
and the
‘public-figure’, doctrine which requires a politician to have a thicker skin when it
comes to criticism, because of the public interest involved. The fear was that the
insufficient protection of reputation would deter honourable and sensitive men from
entering politics, to the public detriment. This public good outweighed the public
good of free speech in a democracy in relation to speech critical of politicians.
Notably the courts, in balancing competing interests, have begun to develop a
theory of reputational rights. Judge Ang inLee Hsien Loongv.SDP^160 underscored
the importance of reputation, a non-constitutional interest, noting that defamation
law ‘presumes the good reputation of the plaintiff’. Ang J quoted the Greek
rhetorician Isocrates, who noted that ‘the stronger a man’s desire to persuade his
hearers, the more zealously will he strive to be honourable and to have the esteem
of his fellow citizens’.^161
Singapore has adopted a public-figure doctrine of sorts, but one that does not
require toleration of more criticism. InTang Liang Hongv.Lee Kuan Yew,^162
the court rejected the argument that damages awarded against an opposition
politician, who was sued by thirteen members of the PAP government, should be
reduced where the successful plaintiff is a politician or the case has a political
flavour. Thean JA argued that this was ‘untenable and wrong’ as it would ‘allow a
(^154) Shadrake 1 ,[ 76 ]. (^155) Shadrake 2 ,[ 84 ]. (^156) Shadrake 2 ,[ 65 ]–[ 66 ].
(^157) Shadrake 2 ,[ 81 ]–[ 82 ]. (^158) [ 1990 ] 2 MLJ 65. (^159) ( 1964 ) 376 US 254.
(^160) [ 2009 ] 1 SLR 642 ,[ 102 ]. (^161) [ 2009 ] 1 SLR 642 ,[ 102 ]. (^162) [ 1998 ] 1 SLR 97.