My understanding is that this Bill was motivated by certain matters that came before our courts. Two matters come to mind. First, there were the two claims filed by a spurned boyfriend, which a court found were commenced with the ulterior motive of pressuring a girlfriend not to terminate the relationship. Second, there was a criminal case where a convicted drug trafficker was found to have filed a meritless court application, for the purpose of delaying his sentence of caning till he reached 50 years of age when he could not legally be caned – the Farid Batra case.
In Farid Batra’s case, he was initially sentenced to death for drug trafficking, but was later certified by the prosecution to be a courier who had rendered substantive assistance, which led to the court re-sentencing him to life imprisonment and 15 strokes of the cane. Since then, he filed several applications for review of his conviction as well as to bring a prisoner to court, which were dismissed by the Court of Appeal either as speculative or an abuse of process. In the latest application in 2022, he applied for permission to commence a judicial review, on the basis that a co-accused person should have faced an additional charge and received a heavier punishment. The court found that Mr Farid did not have sufficient interest to start that action, and that his real purpose was to delay his sentence of caning till he passed his 50th birthday and could not be caned.
The judge there expressed frustration that he did not have any options to punish Farid Batra for his abuse of court process, as he was a prisoner already serving life imprisonment, for whom there would be no “downside” in mounting meritless applications. The court further stated that he “would leave it to the executive and legislature to consider whether and what action can be taken in future instances of abusive applications by litigants and those advising, assisting, or egging them on”. So there appears to be a gap that needs to be addressed.
So what does this Bill provide?
Clause 2 of the Bill introduces a new Section 3 (da), which will make it a contempt of court for any person to conduct or commence a court proceeding when he knows or ought to know that the proceeding involves a deception of the court, is fictitious or constitutes a mere sham; it will also be a contempt if the proceeding is manifestly groundless and involves the process of the court being employed for an ulterior or improper purpose. The spurned boyfriend comes to mind here. The Bill also introduces a proposed Section 3 (db), where it will also amount to contempt if a person conducts or commences multiple or successive court proceedings when he knows or ought to know that such proceedings are manifestly groundless and without foundation. Farid Batra’s case appears to possibly fall within this provision.
In assessing whether this Bill is needed, it is useful to take stock of the tools already available to handle court applications that amount to an abuse of process. In this light, I have four queries on the Bill.
First, on capital cases. Two years ago, Parliament passed the Post-Appeal Applications in Capital Cases Act (PACC), which came into effect in June this year. Under the PACC, strict conditions have been imposed on when additional applications can be made to the court in capital cases where the usual avenues of appeal have been exhausted. As this Act has just been operationalised, it is only fair to wait and see whether it is adequate to manage court proceedings in capital cases.
This Bill presents a factual scenario in Illustration 4 where the offender is convicted of rape, which is a non-capital offence. Is this an indication that the new provisions are really targeted at non-capital cases?
Secondly, on how the Bill will solve the problem in cases like Farid Batra’s. As mentioned earlier, Farid Batra was sentenced to jail for life. Even if he were to be convicted for contempt of court, an additional jail term imposed may not have any deterrent effect. How will the new contempt provisions discourage the filing of meritless applications in such situations?
Thirdly, the impact on civil cases. No doubt, the use of “lawfare” to oppress Defendants is a concern. At the same time, MinLaw recognises that there are existing court procedures that enable typical civil cases to be struck out for lacking merit and for the losing party to be ordered to pay legal costs. So where do we draw the line as to which cases are tantamount to a contempt of court and which are better off being dealt with by the usual rules of civil procedure?
One must remember that contempt of court is a very serious matter which carries a heavy punishment. E.g. a contempt of the High Court carries a potential fine of up to $100,000 and a jail term of up to 3 years. Therefore, these provisions must not be triggered lightly, and the bar must be set very high.
MinLaw has stated that the contempt law will not cover cases where litigants and lawyers have acted with reasonable car and good faith; neither should the contempt laws be invoked in cases where existing procedures to deal with the situation are adequate. Would it not be preferable to codify these carve-outs, so as to give further confidence to those acting in good faith?
My fourth and final query relates to why lawyers are specifically being included in the provisions. Here, I declare that I am an advocate and solicitor.
As we know, lawyers are officers of the court and already subject to the control of the Supreme Court through the Legal Profession Act. We see this disciplinary aspect exercised every day in various ways. For instance, whenever lawyers are assessed by the court to have conducted a case in a way that amounts to an abuse of the court process, the court may order them to pay costs personally i.e. out of their own pockets. Alternatively, lawyers are periodically referred by the Courts or the Attorney-General to face disciplinary proceedings for any misconduct; the outcome of such proceedings could be a striking off the Roll, suspension, financial penalties etc. These are hardly trivial.
In the case of Farid Batra, who had no lawyer representing him, the judge observed that if he were represented by a lawyer, “the lawyer could expect substantial, severe consequences”. This appears to be an acknowledgment by the court that there are already sufficient disciplinary and deterrent measures against lawyers. Earlier the Minister of State highlighted an extra-judicial lecture by the Chief Justice where he spoke about “truth decay” and how lawyers might have been complicit in it. However, it is not clear that the CJ was calling on further measures above what is already available for lawyers.
MinLaw has stated in its October press release that key stakeholders had been consulted on the Bill, including the Judiciary. Earlier the Minister of State mentioned that he spoke to members of the Bar. I wish to ask whether the Law Society itself was consulted, and if so, what were its views? Could Ministry clarify why the existing framework for disciplining lawyers is not adequate to handle the scenarios envisaged by the Bill?
In summary, Sir, I do not oppose this
Bill, but the clarifications I have sought would be useful and necessary.