10 May 2006

Singapore Judiciary Under Attack

This is about a legal suit in Canada which could potentially have very serious consequences for Singapore's business community. In its over-eagerness to defend the Singapore position, the Straits Times has reported the legal suit rather badly (in my view). I think many lay readers will simply get confused. Anyway, my own explanation is set out later in this post.
ST May 10, 2006
Law Ministry rejects Canadian firm's charges of 'biased judiciary'
By K.C. Vijayan

THE Law Ministry has roundly rejected allegations about a 'biased Singapore judiciary', which has come under intense scrutiny in a case in Canada.

The Canadian company making the allegations has already lost a court battle on its home ground in Canada, it pointed out.

Ontario-based EnerNorth Industries, an oil and gas company, is arguing that it never got a fair trial in Singapore after it was ordered to pay US$2.79 million (S$4.39 million) by the courts here to its former Singapore-based partner, Oakwell Engineering.

But Oakwell won in Canada too, pointed out a Law Ministry spokesman.

Justice Gerald Day of the Ontario Superior Court of Justice ruled in its favour when it applied to have the award enforced in Canada last August.

But EnerNorth appealed.

It asked the Ontario Court of Appeal to decide if legal decisions made in Singapore are fair and impartial enough to meet Canadian standards of justice.

The appeals court reserved judgment after hearing the case last month.

Oakwell is a Singapore corporation that supplies engineering works and products in the marine industry while EnerNorth is an Ontario corporation engaged in shipbuilding, engineering, construction and power generation around the world.

In June 1997, the two firms agreed to jointly finance, construct and operate two mobile power plants to generate electricity in the state of Andhra Pradesh, India.

But 14 months later the project soured and EnerNorth bought out Oakwell's stake in exchange for US$2.79 million, royalty payments, and shares in EnerNorth.

EnerNorth did not stick to the deal and in August 2002, Oakwell sued for US$2.79 million in Singapore. The case was heard by the late Justice Lai Kew Chai. EnerNorth brought a counterclaim against Oakwell for US$175 million but its claim was dismissed and it was ordered to pay the money demanded by Oakwell.

EnerNorth's appeal in Singapore was dismissed by a three-man court headed by former Chief Justice Yong Pung How in April 2004.

EnerNorth's allegations in Canada have been dismissed by Oakwell's lawyers.

'This is not a political case. It is a commercial matter. It was heard before the courts of a country built on foreign investment, with an impeccable reputation for fairness to foreign firms like EnerNorth,' said Oakwell's lawyers.

In Singapore, EnerNorth was represented by lawyers from Drew & Napier and Oakwell by Mr Philip Jeyaretnam.

Contacted yesterday, a Law Ministry spokesman said: 'These allegations have been roundly rejected by the Ontario Superior Court of Justice.'

She noted the court had 'refused to lend any credence to EnerNorth's spurious allegation of a biased Singapore judiciary'.

Judge Day had said he was satisfied 'that there is no reason to doubt the impartiality of the judges who heard the case in Singapore'.

'Singapore prides itself on having an independent and impartial judiciary,' said the Law Ministry spokesman.

She added that the Political and Economic Risk Consultancy in Hong Kong has 'consistently rated the Singapore judicial system as one of the best in the region, and emphasised that Singapore has one of the most fair and transparent legal systems in the world'.
Now Mr Wang will proceed to explain what this matter is all about.

Let's say X is a Singapore company. X sues a foreign company Y in the courts of Singapore. The judge hears the case, the lawyers fight it out for 20 days in court, and at the end of it, the judge says, "Okay, X wins. I order Y to pay X $1 million dollars."

Y might refuse to pay. If Y had assets in Singapore, the Singapore court will then order those assets to be seized. However, if Y has no assets in Singapore, then the Singapore court can't do much. X, in order to get his money, would have to go to Y's country (because that's where Y has assets).

X goes to Y's country, and goes to the court there, and tells the judge: "Look, I won a court case against Y in Singapore. Y owes me $1 million. Please make Y pay me."

What usually happens is that the judge in Y's country would look at the Singapore court's judgment (for $1 million) and then say: "Ok, I see that this matter has already been heard and decided by the Singapore judge. Therefore I order Y to pay X $1 million. Oh, and if Y still doesn't pay, you can seize Y's assets in this country."

The judge in Y's country will not bother to re-examine the whole case again. In other words, X and Y do not need to go through another 20 days of fighting in court, and explaining to the judge what the whole case was about. The judge in Y's country will simply assume that the Singapore judge made the correct decision.

This is what lawyers refer to as "the reciprocal enforcement of foreign judgments". Courts in most countries respect the decisions made by courts in most other countries.

Once in a while, however, a hiccup occurs.

For example, if you won a court case against ABC in a country like Iraq, Cuba or North Korea, you might not be able to get the judge in another country to help enforce your judgment against ABC.

That's because the courts of a country like Iraq, Cuba or North Korea might be regarded as not quite reliable, not quite fair and not quite trustworthy - therefore there is a concern that ABC might not have been treated fairly.

What's happening in the EnerNorth case?

Well, the Singapore company has gone to the Canadian court, but EnerNorth, the Canadian company, is telling the Canadian judge, "Hey, please disregard the Singapore court judgment, because the Singapore judiciary is just not trustworthy."

In other words, the defence is that the Singapore judiciary is something like the courts of North Korea, Iraq etc.

To me, the most interesting feature is that EnerNorth is NOT arguing that the Singapore court had acted unfairly in handling the case. In fact, EnerNorth agrees that the Singapore court DID act fairly in hearing that particular case.

Instead, EnerNorth's argument is basically that the entire Singapore judiciary is so fundamentally corrupt and rotten and unreliable that the Canadian court should just ignore ANY judgment from a Singapore court in ANY case.

And why is the Singapore judiciary said to be so rotten?

Click here for the full legal arguments. For a more succinct summary, click here.

It includes allegations such as how Singapore's judges are beholden to the executive; how the executive uses the Singapore courts to sue opposition MPs for defamation to make them bankrupt and disqualify them from Parliament etc etc.

You get the idea.

The matter is now under consideration by an appellate court in Canada. The fact that they reserved judgment means that this isn't an "open-&-shut" case. "Reserving judgment" basically means that the appellate court thinks that hmmmmm, there are some serious, real issues to consider here.

The potential implications are quite enormous.

If the Canadian court decides that the judgments of the Singapore courts should not be respected, then this may well open the floodgates. The same kind of arguments could be raised again and again, in the courts of other countries - where the plaintiff has already successfully sued the defendant in Singapore and is trying to enforce the judgment in the defendant's home country.

Ironically, it was Singapore law firm Drew & Napier which represented EnerNorth in Singapore. Drew & Napier is well-known to be the "PAP law firm" with several lawyer who are/were PAP-MPs, such as Davinder Singh, Indranee Rajah, Ong Kian Min, Sin Boon Ann and Hri Kumar.

Drew & Napier represented EnerNorth in the litigation proceedings in Singapore, and in the usual course of events, would usually be involved in the Canadian legal action (note - I don't know this for a fact).

The Drew lawyers would not be able to actually appear in the Canadian court, but in the normal course of things, one would expect them to be involved in liaising with EnerNorth's Canadian lawyers and discussing court strategy etc (again, note that I'm assuming this - it would be consistent with the usual legal practice, but may not actually have happened in this particular case).

The other irony, of course, is that Oakwell's lawyer in Singapore was Philip Jeyaretnam. Philip is the son of ex-Opposition MP JB Jeyaretnam, who was the unfortunate victim of several many PAP defamation suits. We would expect that Philip is now working closely with Oakwell's lawyers in Canada, to try to win the case there. In a way, that makes Philip the defender in Canada, of the Singapore judiciary.

14 comments:

Cobalt Paladin said...

EnerNorth failed to pay $2.79 million and royalties to Oakwell. EnerNorth did not fufil their end of the commercial deal. Now Canadian courts is thinking our judiciary system is not trustworthy?

Goodness! In fact, I'll be doubting the Canadian judiciary system if they rule against Oakwell.

If the Canadian courts rule against Oakwell, Singapore companies better don't do business with any Canadian companies in future. Canadian companies can always back-out of a commercial deal and need not honour their deal. And the Singapore company will be short-changed when the Canadian companies run back to Canadian courts. There is no way Singapore company can get a fair deal then.

Anonymous said...

Same story but from a more reputable publication.

www.iht.com/articles/2006/05/09/business/courts.php

No mention of this part in the Skewed Times:

In large part, Wingfield based his allegations on the record of prosecutions of political critics of the People's Action Party, including Joshua Benjamin Jeyaretnam, a lawyer of Sri Lankan descent, who for a time was Singapore's sole opposition member of Parliament. Jeyaretnam was convicted of fraud in a series of trials in Singapore in the 1980s in connection with donations made to his Workers' Party. He later managed to appeal to the judicial committee of the Privy Council in London over a decision to have him struck off the Singapore Law Society's rolls. The Privy Council, which was then the final court of appeal for such professional disciplinary actions, decided to review the initial conviction against Jeyaretnam. In a celebrated judgment in October 1988, it expressed "deep disquiet that by a series of misjudgments," Jeyaretnam and a co-defendant had suffered "a grievous injustice."

and

Still, EnerNorth's lawyers produced a number of affidavits from its own experts, including Francis Seow, a former Singapore solicitor general and judge turned prominent critic of the government; and Ross Worthington, a professor of governance and World Bank consultant. Both asserted that the People's Action Party, or PAP, and the executive controlled all aspects of public life, including the judiciary.

Matrix said...

Cobalt paladin,

I think the issue in question now in the Canadian court is not about EnerNorth paying up. It is about whether Singaporean court has an unbias judiciary system especially towards companies/parties that have links with the government, and from this, whether EnerNorth has been granted a fair hearing in the Singaporean court.

Cobalt Paladin said...

Matrix, I know what the case is about. But I also know and understand what EnerNorth is trying to do. They are hiding behind Singapore's critics of our judiciary system for something that they are clearly in the wrong and didn't honour.

If the verdict is against Oakwell, it will have great impact on the commercial agreements of Singapore companies with any Canadian companies. Basically, Canadian companies can dishounr the commercial agreements and there is nothing Singapore companies can do.

Anonymous said...

Cobalt, if it comes to that all i can say is...





Too bad! Wan to blame, blame PAP's 3rd world politics for the whole mess! PAP is doing S'pore in!

Matrix said...

Cobalt, I'm not very sure why you are insistent that Canada is a critic of Singapore judiciary system. I am not clear and aware of what each side has presented so I am not in a position to judge.

Even if Canada rule in favour of EnerNorth (just for example), perhaps, it can moltivate Singapore to come up with measures to ensure that all hearing are carried out in a more unbias manner, in order to maintain it's good standing in the global business world . This could also mean entrepreneur like you would be better protected when you enter into an agreement with a GLC.

Anthony said...

Just to throw in some analysis here.

The threshhold for showing that a foreign country's judgment should not be entered tends to be very high. The reason for this is that the judiciary tends not to want to prejudice foreign relations. It's one thing to sue a national of another country. It's another to call the judiciary of another country corrupt.

There's another complication that enters into the equation, one that -might- explain why this issue is not an open-shut case. It's the question of sovereign immunity. Simplified, the question is whether the Canadian courts can even put the Singapore courts "on trial".

This issue arose in the US in the context of Iran's nationalization of AT&T's assets in the 1970's. The specific argument AT&T raised in that case (tried in the US) was that Iran's expropriation compensation tribunal was fundamentally biased towards the Iran government. The US courts held this to be a non-judiciable issue (as in, the courts could NOT decide on it) due to sovereignty issues. There is strong academic dissent that these arguments -can- be raised though.

In short, it may just be that the Canadian Courts have to decide whether they -can- decide on the issues raised.

Mr Wang Says So said...

Anthony, I agree with you that the threshold for showing that a foreign country's judgment should not be entered tends to be very high.

It is not an easy argument to make at all. You'd have to put together a lot of compelling evidence.

The fact that there are lawyers somewhere in the world who are making this argument at all, who think that they really have a chance of putting together all this compelling evidence -

and who think that the argument is worthy of an appellate court's consideration -

well, that should give us serious cause for reflection, about our judiciary.

And that's regardless of whether EnerNorth ultimately wins or loses.

Cobalt Paladin said...

Hi Matrix,

Erm. I'm not insistent that Canada is a critic of Singapore judiciary system. I'm referring to critics from Western countries in general.

In general, I don't think our judiciary system has a problem. The part that Western countries is critical revolves around cases involving political representatives. EnerNorth vs Oakwell case is purely a commercial and non-policitical case.

I'm just surprised at the audacity that EnerNorth is using the angle of attacking our judiciary system to wiggle out of their end of a commercial deal which they have dishonoured.

THAT is not right.

Gerry said...

The part that interests me is that
"Under Singapore contract law it was not open to Lai Kew Chai to imply into the Settlement an unconditional obligation to procure financial closure for th project within 6 months of the Settlement Agreement; in doing so, Lai Kew Chai committed a clear legal error under Singapore law."
Is this technically correct?

Matrix said...

Personally, I think EnerNorth would not be able to win this appeal. Given that the charges about our judiciary system has little or no interference with their case and as anthony points out, Canada would not want to seen as accusing us of a corrupted system especially since that Singapore has always been in positive light in the global commercial stage.

But however, I think some damage has already been done to our reputation when they brought to light about what has transpired before in our court room.

Mr Wang Says So said...

I should add that if EnerNorth wins the appeal, it does not mean that Oakwell will definitely fail to get its money back.

It merely means that Oakwell must sue EnerNorth all over again, in Canada this time, and prove its case again before a Canadian judge.

lee hsien tau said...

Ever since I heard James Gomez had his passport and boarding pass impounded, and his sorry ass prevented from leaving for Sweden, I have been staring at the ceiling, the words 'what the fuck' pounding through my brain. And it is Section 506 & 507 of the penal code that had got me near berserk. I had to write this.

I was slapped with 8 email harassment charges back in 2000. Because 8 email harassment charges couldn't have kept me locked up, Investigating Officer Oem Prakash Singh of Clementi Police Division (hereafter referred to as 'the modern singh') slapped an additional charge of criminal intimidation on me so as to raise the bail amount the judge then pegged at $50K (the same amount which, may I remind you, TT Durai is presently running around loose on). Of course the modern singh counted on me not having a bailer with $50K, so I spent 5 months inside awaiting trial.

The excuse for the criminal intimidation charge was a phone call I made to Koh Chong Huat (a cousin of mine) telling him in exact words 'You are 50+, sooner or later, you have to die'. I thought it was a given, nothing being more certain than death and taxes, that reminding somebody, anybody, of his age couldn't possibly constitute a criminal offense, especially since the guy was actually 50+ (I'd admit Lee Kuan Yew may be offended to be reminded of his age, and that death was likely to be knocking on his door anytime, but not enough to constitute a criminal offense, especially when he's going to be continuing to be having birthday parties, and his cronies are going to be showing up not trying to pretend, I hope, that it is something other than birthdays that they are going to be celebrating.)

But not to digress. The reason why I was locked up was because I had finally found something I was looking for on and off since 1995. And I was showing up at all the awkward places, the CPIB, the Law Society of Singapore, and the Legal Aid. They all found excuses of one sort or another. Sooner or later I was going to latch on to a lawyer, yes?

I latched onto the wrong lawyer, however. Someone by the name of Chiam See Tong. He suggested leaving Hoo Sheau Farn out of the lawsuit, and sue principally Koh Thong (Koh Chong Huat's old man), and Lim Swee Ying (my late father's old hag), and he also told me that he didn't want to figure in the case, and therefore would be helping me sue my relatives in my own name. Who's to know Chiam See Tong would be colluding with Yik Tze Kong, the lawyer representing the respondents to the suit.

Time was of essence. If I wasn't latching onto Chaim See Tong, I would've to latch onto some other lawyer pretty quick. The plan was to have this Chiam See Tong set up a case for me, I land in jail, and the case applied to be struck out by the respondents, the lawyers acting for the parties being in collusion.

So Koh Chong Huat made a complaint against me. That made me a 'wanted' person. And I was supposed to know that (not that I did). Then Yik Tze Kong applied to have the case that Chiam See Tong set up for me struck off by the civil court expecting me not to show up to defend.

But I got arrested at Changi cargo complex going through the check-point reporting to my first day of temporary work. And I was held for 5 months awaiting trial. I made calls to Chiam See Tong then at the police lockup, wrote to Chiam See Tong whilst I was remanded, met Chiam See Tong whilst I was at the Subordinate Court, and Chiam See Tong visited me whilst I was held at Buangkok Chalet, but he wouldn't help me with these fresh charges I was up against, and resisted suggestions that the civil case he was helping me with and the criminal case I was facing were connected.

Topmost in the mind of the modern singh must've been whether I had knowledge of the application by Yik Tze Kong to have the case set up for me by Chiam See Tong struck off. If so, and I apprised the court of the fact, the judge would likely find that I have no case to answer. So was it a coincidence then, that when I was finally released, my laptop and papers pertaining to my civil suit were missing from my rented room, and I had to cough up $50 to get them back, and later, when I thought it wise to ask for a receipt for the $50, was refused, and the $50 returned instead?

Because I was arrested in the wrong sequence, and the all important letter was left undiscovered in my post office mailbox, Yik Tze Kong didn't show up at the civil court to have the civil case set up for me by Chiam See Tong struck out (references to it at my blog).

You may be asking me why the modern singh would have me arrested in the wrong sequence. The modern singh didn't have me arrested. I was arrested by the police division (Bedok) in charge of the Changi cargo complex. I cannot be 'wanted' unless there was an APB out for me. With an APB out on me, it was always possible for me to be arrested in the wrong sequence.

There is a lesson in all this for James Gomez.

Even though I was remanded without having visitors (except for the one-time visit by Chiam See Tong at Buangkok Chalet - now upgraded to Buangkok Recreational Club - where I was also warned by Dr George Fernandez to be careful of what I say in Court or face institutionalization on Christmas Day, 2000 - bloody arse hole showed up just to warn me), and therefore could not otherwise seek representation, had the criminal intimidation charge struck off by the kangaroo of a judge in half a day of deliberation.

The trial was scheduled for a 2 day hearing. There was a lot of shenanigan going on in Remand. I was being threatened (and the irony was that I was in there for Section 506 & 507) such that I was disinclined to drag proceedings beyond the day. All that seemed to be coming out of the mouth of Koh Chong Huat was that he was felt 'very harassed'. For nearly half the morning I was standing in the dock with my hands cuffed behind my back (and who said our legal system was just? and there is no kangaroo jumping around in Court?) until the judge noticed.

The judge was screwing me left and right for everything that was coming out of my mouth until Koh Chong Huat said that he had a pretty good idea who was at the other end of the phone (that being me). The judge made certain he heard right what Koh Chong Huat said, then struck out the criminal intimidation charge. As I'm no lawyer, I don't actually know what the fuck happened. But I will try to figure it out here. Section 506 & 507 cannot be liberally applied or else a Pandora’s Box would be opened, and total anarchy will ensue. There must be a threshold above which genuine fear can reasonably be deemed to be inculcated in the criminally intimidated, such as where the victim doesn't know who is victimizing him. A fear transformed into terror by some unknown quantity.

After that the DPP started to sweat like a pig, and Koh Chong Huat started to need a microphone to be heard, and the judge started turning on me. It was as if a big concession had been made to me, and the kangaroo had begun jumping all over the Court again. The biggest problem going for the trial was Koh Chong Huat needed a microphone, I complained to the judge I couldn't hear him without a microphone, and the judge sitting practically next to Koh Chong Huat couldn't understand what the fuck I was unhappy about (and who said our legal system was just? and there is no kangaroo jumping around in Court?). I was practically forced to abdicate my defense.

The judge offered, before his lunch break, to lynch me on 4 charges of email harassment, if I capitulated, or on all 8, if I continued with my defense. What troubled me was my cousin needing a microphone, the DPP needing a towel, and the kangaroo jumping all over the court room. Something just wasn't right. I wondered what was in my post office box (which had rental renewal coming up), and I didn't want to go back to Remand where I was being threatened. So I capitulated, and the judge fined me $6000, and stretched me for more than 30+ days in lieu (which Dr Chee Soon Juan, may I remind you, got off for just a week).

Out of jail, Chiam See Tong was a little scared to meet me along North Bridge Road outside his law office. Until I had a talk with Chan Fook Meng, I wasn't too clear why. Then there was the 2001 general election. But Chiam See Tong was dragging his feet with the case he was 'helping' me with even after that. So I had to start writing my own letters.

A letter I wrote to Standard Chartered Bank caused Ow Koon Thiam to threaten to sue me for defamation through his lawyer Hoh & Partners (now Hoh Law Corp). So I went along to Chiam See Tong to consult (until I had a talk with Chan Fook Meng, I didn't see why not), and he offered to help me with the defamation suit. Even though I hadn't had my talk with Chan Fook Meng yet, I saw a problem. Chiam See Tong was dragging his feet with my civil suit, did not defend me in my criminal case, and now was offering to represent me in this defamation suit.

I told Chiam See Tong I was getting the hang of it with this Court thing, fresh from my victory against the modern singh and his Section 506 & 507 and all that, and since a defamation suit is something somebody else set up for me, and all I have to do is show up and get fucked by the judge, I'd handle it myself, thank you very much. And I was pressing him to carry on with the original civil suit. I wrote to Ow Koon Thiam's lawyer, a Ms Petula Wong, that I would've been most pleased to see them in Court (and you should read the reply I got at my blog). And you can understand why Chiam See Tong decided to be a full time member of parliament after that. And you can understand why I have a price on my head.

Can you understand why Lee Kuan Yew and Wong Kan Seng are such mother fucking idiots? (and those people who voted for them as well?) If you can gerrymander the laws just to keep yourself in power (for whatever honorable or dishonorable intentions), you cannot then call to account those certainly more dishonorable persons from using the same laws to their own personal advantage.

If Lee Kuan Yew is going to be troubled by James Gomez not suing for being called a liar, the mother fucker is going to have a hard time going to sleep every night. The Cantonment Complex, even if it is re-built into the Cantonment Catacomb, is not going to be able to handle half the lying population asked to show up every day justifying themselves. And would he then be going to be going after Ow Koon Thiam because he didn't after all sue me and SOMETHING HERE IS GENUINELY NOT RIGHT.

And worse still, which fucking moron came up with the idea that Section 506 & 507 would stick on James Gomez when it didn't even glue on me for half a day in Court? And me not even being represented? And should Section 506 & 507 be bounced around all over the place from now on when somebody tells a lie such as when a student is late for school and fib to his principal?

Is James Gomez and his 'lie' such a big issue to the MIW that they have to scrape barrel bottom for something as inappropriate as Section 506 & 507. Or is Lee Kuan Yew trying to cover up for his one, ever, and only election strategy gone berserk (which even the UMNO deceased would be sick of by now). From my own personal affront at the wrong end of Section 506 & 507, I can assure you that everybody in the know, including Dr Chee Soon Juan, just have to be uncontrollably laughing their socks off. And the courtroom is caught between a pit bull and a lapping dog. How is the court ever going to placate Lee Kuan Yew and Wong Kan Seng over the James Gomez non-event without losing its dignity?

I do not pretend to not to know that should Lee Kuan Yew, if he were to read all this, whether he'd pin me up together with Dr Chee and his sister. It would've been my privilege, my honor. Go tell him. I need political asylum to live beyond of next month. There is after all a price on my head, whether I keep my trap shut or not. So I'm not worse off by it.

Anonymous said...

wow siao liao.. this time the singapore judiciary system going to exposé.. all the skeletons going to be dug from the closet..