The Workers’ Party believes that Parliament has an important role to play in scrutinising and improving laws in their draft form. This process is key to a functioning parliamentary democracy.
We are glad to have had the opportunity to debate the Administration of Justice (Protection) Bill in some detail, and regret that the Bill passed 72 votes to 9 votes with the 9 dissenting votes coming from the WP MPs and NCMPs.
The Workers’ Party opposes the Administration of Justice (Protection) Act as there are several areas that continue to be of grave concern.
As articulated in Parliament, we reject the government’s characterisation of the new Act as business as usual, and its claim that no significant changes were made to existing common law by this Bill.
The government exception clause [Section 3(4)]
Clause 3(4): A statement made by a person on behalf of the Government about the subject matter of or an issue in a court proceeding that is pending is not in contempt of court under subsection (1)(b) if the Government believes that such statement is necessary in the public interest.
This clause permits the government of the day to comment on ongoing proceedings. The clause gives practical immunity to the government to make statements so long as it deems those statements to be in the public interest; the public does not have a corresponding right.
In the debate, the Minister claimed that despite the wording of the clause, the court would be the final arbiter of what constitutes contempt. However, the wording of this clause makes it extremely difficult for anyone to make a case that the government has acted in bad faith. There is no independent check in the Act to determine if what the government “believes” to be in the public interest is indeed so. It is telling that the public is not accorded the same right to the public interest defence. The Minister did not adequately explain why the wording of the clause had not been changed to make the Court rather than the government the decider of what is in the public interest.
Harsh maximum penalties [Section 12(1)]
The maximum punishment under the Act is a fine of $100,000, a 3 year prison term, or both. This far exceeds the current maximum punishment courts in Singapore meted out for the “worst” case of contempt, a fine of $25,000 and a 6 week jail term. It also exceeds by far past sentencing precedents for contempt of court cases. The harsh penalties may have a chilling effect on fair criticism and stifle discussion on matters of public interest in a way that the previous common law of contempt of court did not. The maximum penalty may come to be seen as the standard for punishment under the Act, in the eyes of the public and could fuel perception that freedom of expression is a right reserved for those who have $100,000 in spare cash to protect themselves against the risk of prosecution for contempt of court, however remote. The Minister’s response to this point during the debate – that the act sets a ceiling to the fine and jail term whereas none had existed before – does not address the fear that this maximum penalty, which goes so far beyond past sentencing norms, may create among law-abiding citizens.
Inadequate public consultation
The Ministry had said that there had been active consultation in drafting the Bill. From the debate, we conclude that consultation on the Bill was done behind closed doors, and public opinion was sought only after the Bill in its current form was first tabled in Parliament a month ago. Few members of the public had the chance to see and critique the actual text prior to this First Reading.
Nonetheless, the Minister asserted that the Bill had the support of the majority of Singaporeans as seen from a scientifically conducted survey of the public. However, he conceded that the survey was likely conducted without the actual Bill being shown to the participants.
Given the ramifications of the Bill, it is imperative for a government introducing the Bill to not only consult widely and openly, but also share the results of its consultations including reasons for taking on certain suggestions and leaving others out.
Lower threshold for scandalising the judiciary [Section 3(1)(a)(ii)]
The Act significantly lowers the legal threshold for scandalising the judiciary from ‘real risk’ to ‘risk’, which the Minister admitted in Parliament is a departure from the decision of the courts that the test for scandalising the judiciary should be ‘real risk’. This makes it much easier for people to find themselves on the wrong side of the law when engaging in public discussion. The Minister justified his decision to deviate from precedent by citing the need to protect Singapore’s international legal reputation and ensure a fair trial for everyone. However, he did not provide compelling evidence to show how past cases of contempt under previously established common law have compromised the conduct of fair trials in Singapore or damaged the standing of our judiciary.
The fact that the police are now being empowered to investigate contempt of court allegations as if they were arrestable offences under the Criminal Procedure Code is an overkill, and sets us apart from the developed world.
Public engagement is crucial in a functioning democracy and enabling an active citizenry. The participatory element of active citizenry is something that this government recently claimed to recognise as important. The Workers’ Party encourages members of the public to pay continued attention to this Act and highlight any issues relating to its implementation and effects.
THE WORKERS’ PARTY
19 August 2016