(Delivered in Parliament on 15 August 2016)
I rise to register the Workers’ Party’s objection to this Bill.
As acknowledged by the Ministry, our existing law on contempt of court already protects the due administration of justice. The law is to be found in case law and it has worked well thus far. I have seen no evidence of the law’s inadequacy.
While codification of the contempt laws is not of itself objectionable, there are several things abhorrent about this Bill and the way it is being bull-dozed through Parliament.
The Workers’ Party rejects the Bill as we reject several of its key effects, such as:
1) Unnecessarily lowering the threshold for what amounts to scandalising the courts;
2) Muzzling discussion on pending court cases, while giving the government immunity to say what it deems fit however prejudicial;
3) The potential utilisation of the State machinery to intimidate Singaporeans who in good faith wish to discuss current affairs.
In our view, and contrary to what the Minister asserts about protecting the common man, this Bill will protect the ruling elites, at the expense of ordinary citizens.
My party colleagues will elaborate further on our objections. For my part, I will focus on 2 aspects:
1) The government’s inaccurate characterization of the Bill, as largely business as usual;
2) The self-serving nature of the Bill for the government and in particular, how the Bill is designed to protect and empower the Minister himself.
The Government’s Inaccurate Characterisation of the Bill
In my view, the government has not been frank in its characterisation of the Bill as nothing more than a consolidation of the existing law and a crystallisation of processes.
According to the MinLaw Press Release on 11 July:
“The Bill will consolidate the key elements of the law of contempt into statute. The boundaries of contempt – what is permissible or not permissible to do or say – will not change.”
According to the Minister for Law, the law on contempt will remain “broadly the same”. Is this true?
I am glad that today, the Minister has acknowledged that there is a clear change that the Bill makes is in Clause 3(1)(a), where it is stated that a person scandalizes the court if he publishes any matter or does any act that imputes improper motives or alleges impropriety of any court and that publication or act poses “a risk” that public confidence in the administration of justice would be undermined. This is a clear change from the existing case law which is that it is only contempt of court if such statement or act poses “a real risk” that the administration of justice will be undermined. The test of “real risk” has been explained by the Court of Appeal in the Alan Shadrake case to mean that the risk must not be remote or fanciful. By changing the test to requiring the offending statement or act to carry just “a risk” that public confidence in the administration of justice would be undermined, the Bill has lowered the bar for contempt of Court. I did not read that the Court of Appeal or any court felt that the courts needed more protection. Thus, I wonder if the Minister is “chasing shadows”? After all, scandalising contempt is being retained in our laws as an offence, so long as there is a real risk that administration of justice may be undermined.
Another significant change is the draconian enforcement muscle being given to the government. A new power is given to the Attorney-General to issue a “non-publication direction”. Under this new power, the AG may issue such a direction to a person to stop publishing something, if the AG is satisfied that it is in the public interest to do so. Disturbingly, the police are also being brought in to investigate contempt allegations. I will speak more about this later.
The government has said that this Bill does not change the law. This is clearly not true.
Active Consultation?
The Ministry has also been insisting that “stakeholders” were “actively consulted” on the Bill. How far is this true? What does “active consultation” mean? Who were these “stakeholders”?
This Bill will impact not just selected stakeholders like judges, lawyers or bloggers, but society at large. As pointed out by the Court of Appeal in the Alan Shadrake case, the law of contempt operates against a broader legal canvass that touches on freedom of speech, which is enshrined under Article 14 of the Constitution as a Fundamental Liberty.
Given how the Bill will impact society as a whole, there should at least have been a proper public consultation before the Bill was tabled in Parliament. Was there? What I know is this: The Bill came up for First Reading on 11 July. It was only the next day, 12 July, that the Bill was put out on the government feedback portal REACH. It was also only on 12 July that the Law Society sent out an email asking Council and All Standing Committees of the Law Society for Feedback by 18 July 2016 to enable Minister to prepare his Second Reading speech. Is this what is meant by active consultation, to ask people for their feedback after the Bill has already been tabled in Parliament?
Self-Serving Bill for the Government and Minister
There are several disturbing aspects of this Bill that consolidate the powers of the Executive Government, the Attorney-General and the Minister, that are simply not acceptable if we want to call ourselves a democratic society.
First, Clause 3(4) introduces a new exception to sub judice contempt, which can only be used by the Government:
“A statement by a person on behalf of the Government about an aspect of a pending court proceeding is not contempt if the Government believes that such statement is necessary in the public interest.”
What is this exception for? Who is this exception for? The Minister gave examples of infectious disease outbreak and bank runs. But when one looks at the Illustrations to Cl 3(4), two recent incidents spring to mind.
Illustration 1 covers a government statement about the circumstances leading to the death of a person when a Coroner’s inquiry into the death was pending. To my mind, this is a striking reference to the Minister’s utterances on Benjamin Lim’s case. The Minister had strongly criticized the President of the Law Society for speaking out, but said that public officials like himself, on the other hand, could make statements.
Illustration 2 may refer to the Thaipusam riots in 2015, where three men were charged with disruptive behaviour. The Minister again made comments on what the three accused persons had allegedly done, while their criminal cases were still pending. He told the media that one of the men had assaulted the police, and all three had used vulgarities – matters which were, then, yet to be decided by the courts.
Therefore, would the Minister confirm that, really, the exception in Clause 3(4) is meant to benefit himself? Has he been facing accusations that he had acted in contempt of court, and wants a blanket licence to say what he likes?
The other disturbing aspect is that under this clause, the government can make statements on pending cases so long as “the Government believes” that such statements are necessary in the public interest. This means that the Government will be the sole judge of what is necessary – the test is subjective and the Government’s assessment is not open to challenge.
But the existing law is clear that the government IS subject to the contempt of court laws. One of the only reported cases of sub judice contempt was in 1967. That case was brought by a student activist, Lau Swee Soong, against then Minister of the Interior and Defence Dr Goh Keng Swee. Dr Goh had issued a press release after a student demonstration on 4 November 1966, and Mr Lau unsuccessfully brought an application for contempt of Court against Dr Goh.
Even though Mr Lau’s application was dismissed by the court, Justice Choor Singh was careful to state in his Judgment that:
“it does not follow that a statement made or issued by a government minister can never constitute contempt of court, or that a government minister should never be punished for contempt of court. A minister of the government is not above the law and if a statement made by him is calculated to prejudice the fair trial of an accused person, and if the risk of interference with the proper administration of justice is a real and grave one, such a contempt will be met with the necessary punishment in order to restrain such conduct”.
The present bill replaces the oversight of the Courts with the subjective test of what the Government believes is necessary in the public interest. This is a change in the law, which will give the Government practical immunity!
I now come to my next point: the increased powers given to the Attorney-General (AG) under the Bill.
Under Clause 13, a new power is given to the AG to issue a non-publication direction to the publisher of any matter to refrain from publishing it, if the AG is satisfied that it is in the public interest to do so. Disobedience to such a direction carries a fine of up to $20,000, or imprisonment of up to 12 months, or both. On the face of it, the AG can only issue the non-publication direction with the leave of the High Court. But, disturbingly, the High Court’s hands have been tied in the matter. According to Clause 13(7), once the AG shows that the case satisfies certain conditions, the High Court MUST grant leave to the AG to issue the non-publication direction. This lack of discretion given to the Court is in sharp contrast with the discretion given to the AG under Clause 13(1) to commence proceedings. The Ministry said there was active consultation with stakeholders including the judiciary. Did the judiciary concur with the wording of Clause 13(7)?
The Attorney-General does not always get it right in deciding whether or not to commence proceedings for contempt of Court. For instance, in the case of PP v Au Wai Pang (Alex Au), Mr Au was cleared for contempt for one of the two statements which the AG began contempt proceedings against him for.
Finally, I am most worried about how Part 5 of the Bill brings the Police into the picture. The Bill provides that the Police may now investigate potential offences under the Bill. Clauses 22 to 24 enable the police to arrest suspects, take statements and use all powers available to it as it would when investigating an arrestable case under the Criminal Procedure Code. In recent years, we have been talking so much about the heavy workload and manpower shortages faced by the Police. Why are we getting them involved in yet another non-core function, when they should be focusing on keeping us safe from rockets from Batam? More fundamentally, what are Singaporeans supposed to expect? Will the police knock on your door for a critical comment you have just posted on FaceBook?
This is not a fanciful scenario: recently 7 to 8 police officers turned up at the house of an activist being investigated for breaches of the Parliamentary Elections Act for postings on her personal Facebook page. Such a spectacle, if applied to this Bill, will clearly have a chilling effect on public discourse.
If this law had been in place when the Law Society President had spoken up about Benjamin Lim’s case, we might have seen the spectacle of the police raiding his home for possible offences relating to sub judice contempt!
Are we not using a sledgehammer to kill an ant? It would be intimidating, not just to persons on the receiving end of such investigations, but to society at large.
The upshot of reducing the role of the Courts and vesting draconian powers in the Executive is to leave Singaporeans at the mercy of administrative discretion. We would be one step closer to being a police state!
Call to Reflection
We should reflect on the President’s Address in 2016, setting out the government’s aim of Singapore being an Exceptional Nation. Are we an exceptional nation when we say that our professionally-trained judges need to be protected from public opinion? Are we an exceptional nation by making government officials exempt from contempt laws? To me, these are matters we should be ashamed of. By all means, uphold respect for the administration of justice. But laws which protect the ruling elites at the expense of ordinary Singaporeans have no place in this House.