(Delivered in Parliament on 15 August 2016)
Madam speaker, I do recognise the need for us to have laws to help maintain public confidence in our judiciary or the protection of the administration of justice. However I would like to share with this House some grave concerns I have about this Bill.
New test of risk?
Clause 3(1)(a)(ii) of this Bill provides for liability for anyone who scandalises the court by intentionally publishing any matter or doing any act that includes posing “a risk that public confidence in the administration of justice may be undermined”.
In the case of Alan Shadrake v AG , the Court of Appeal rejected the ‘inherent tendency’ test and accepted the ‘real risk’ test. Let me quote from Professor Gary Chan’s helpful analysis in his article on the judgment published in the Oxford University Commonwealth Law Journal: “According to the Court of Appeal, real risk does not mean ‘remote possibility’. It is also not equivalent to ‘clear and present danger’ or a ‘serious or grave risk’. Significantly, the CA disagreed with the HC’s description of real risk as any degree of risk above the de minimis level, including ‘a small likelihood’. Taking a more liberal attitude towards the law of contempt of court than the HC, the CA added that a ‘small likelihood’ of risk would ‘merely be a “technical” contempt that may not even attract any sanction at all’.
The proposed wording in clause 3(1)(a) provides for “a risk that public confidence in the administration of justice may be undermined” and not just ‘a real risk’ as per previous common law.
I think the omission of the word ‘real’ makes the bar for contempt significantly lower than the real risk test. To me, it seems to be everything that the Court of Appeal has said about what a real risk test should not be. We should not depart from the learned decision and analysis of the Court of Appeal.
Prejudging an issue
I next go on to Clause 3(b)(i). This clause provides for the possibility of a person who “prejudges an issue in a court proceeding that is pending and such prejudgment prejudices, interferes with or poses a real risk of prejudice to or interference with, the course of any court proceeding that is pending”. This test of prejudgment in this clause goes against developments in the common law world. In UK and Australia, such prejudgment test or principle has been rejected as being too restrictive to free speech. If introduced in Singapore, it also infringes on our constitutional right to freedom of speech and expression in Article 14 of our Constitution.
I am also concerned with Explanation 2 in Clause 3 which in effect meant that when considering what is capable of “prejudicing or interfering with or posing a real risk of prejudice to or interference with any pending court proceedings”, the fact that the proceedings are heard by professional judges is irrelevant. So there can be a finding of real risk of prejudice even if in actual fact, no competent judge would be affected by what was said.
Professional judges, unlike juries (which we do not have anyway), should and will not be easily prejudiced by comments made publicly or in the media. I thought that was what the earlier PAP government under Mr Lee Kuan Yew had sought to achieve when they did away with juries? Madam, I have full confidence in our judges that they will not be easily prejudiced by comments made publicly or in the media. I find the provisions in Clause 3(b) to be extremely patronising to our judges.
Exceptions in favour of the Government
I next refer to Clause 3(4) which provides that 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 contempt under Section (1)(b) if the Government believes that such statement is necessary in the public sphere. I have two reservations to this provision:
Firstly, this exception makes the clause a totally one sided provision under the sub judice part of our Contempt of Court law. The effect of the proposed law is this: subject to prosecutorial discretion, no one else can say anything even if there may be public interest or other legitimate reasons. In contrast, the Government has a complete and unquestionable right to do so.
Secondly, the clause provides that “if the Government believes that such statement is necessary in the public interest”- this is entirely subjective. What if a government spokesperson decide to say it, not in the public interest but in the narrow interest of the ruling party? What if the Government is wrong in its belief or the spokesperson makes a mistake, even honest mistake, but to the detriment of some poor individual? The clause does not provide any protection or remedy to persons who may be prejudiced by such comments. It is entirely one sided. It does not even allow the Courts to disagree and/or to rule on whether the Government was right or wrong. It is potentially unjust and capable of being abused.
Madam, let us not forget that the Government is not the only person who can speak out “in the public interest”. This is and ought to be a shared space for everyone in our country, including individual citizens or civil society groups.
Madam, I believe that for purpose of this clause, the Courts should be the sole arbiter, to decide what was said by anyone including the government and any individual, is in the public interest or not, or is contemptuous or not. The test must be an objective one allowing anyone who speaks in the interest of the public.
And even if the Government insists on giving itself the sole right to comment, which I don’t agree with anyway, it should at least allow an objective test here and let the Courts to decide, in the event of any complaints by any individual, whether the Government’s comments were correct or made in good faith.
Proposed maximum punishments far exceed current sentencing practices
Madam, the proposed maximum punishments in the Bill far exceed current sentencing practices. Clause 12(a) of the Bill provides for maximum imprisonment of 3 years, maximum fines of $100,000 or with both such fine and imprisonment together. In the State, Family or Youth Courts, the maximum punishments to be prescribed are 12 months’ imprisonment and fine of $20,000.
Madam, let me to refer to just three serious Contempt of Court cases in recent years. In the case of Alan Shadrake v AG  the Court of Appeal noted that it was “still the worst case of scandalising contempt that has hitherto come before the Singapore courts” and yet the Court saw fit to affirm the sentence given by the trial judge in the High Court which was a fine of $20,000 and imprisonment of 6 weeks.
In 2008, Mr Gopalan Nair was convicted of insulting a High Court judge by his comments on a defamation case involving the Singapore Democratic Party and the late Mr Lee Kuan Yew in his blog where he said that the judge “was throughout prostituting herself during the entire proceedings by being nothing more than an employee of Mr Lee Kuan Yew and his son and carrying out their orders”. He was sentenced to 3 months’ imprisonment.
In the case of Attorney-General v Hertzberg Daniel and others  SGHC 218 (WSJ), a fine of $25,000 was awarded.
Comparing the sentences awarded in the three cases I cited with the proposed punishments in Bill, it is clear that the maximum sentences provided in the Bill are significantly higher. $20,000 or $25,000 fines compared with the proposed maximum fine of $100,000. Jail of 3 months compared to proposed maximum imprisonment jail of 3 years. This is definitely no mere codification of existing common law: the maximum sentences are way above current sentencing practices.
Why make the offences under the Act arrestable offences
Madam, clause 23 of the Bill effectively makes all offences under the Act arrestable offences. Current arrestable offences include offences like unlawful assemblies or rioting, affray (fighting in public places), rape, theft and robbery, use of criminal force to a person with intent to outrage modesty (molest), voluntarily causing grievious hurt, etc, etc. This is most peculiar given the nature of Contempt of Court offences. It is not necessary at all. We are not talking about violent crimes. There is no risk to the physical safety of the public. If this House were to allow such provisions, the effect, whether intended or not, will be to intimidate not just potential accused persons under this Bill but also to cast fear on the public in respect of their rights to criticise or comment in both private and public discussions.
Attorney General can apply for non-publication order on ex parte basis with no right from defendant to attend the hearing
Clause 13(1) has also allowed the Attorney-General to direct an individual to refrain from publishing any matter or to take down publications that could potentially be in contempt. This will be a new procedure which is currently not available. The Attorney-General is not required to inform this individual that it has applied for a court order for non-publication. The individual concerned will only find out once the order has been granted and served. He cannot therefore be present in court to make submissions to the judge before the order is granted. He can only apply to the court after the order has been granted and served on him, to have the order set aside. This process is complex and costly especially to lay people. The failure to comply with the order is a criminal offence. More than that, it will also be an arrestable offence. If convicted, the maximum penalty is a fine of $20,000, up to 12 months in prison, or both.
Why does the Government wish to bar the defendant from attending the hearing of the AG’s application? What harm would it do to the AG’s case if it is a justifiable one to start with? Why does the Government wish to shut out the defendant’s defences completely at the onset?
On the other hand, by shutting out the defendant before a decision is reached, this is a violation of an individual’s right to a fair hearing. If the Government wishes to criminalise acts of Contempt of Court by such a procedure and by such provisions, the defendant must be given the right to defend himself at the hearing of the application. I have full confidence in our judges that they can make the appropriate decision after hearing the merits of each party’s case. The Bill’s provision for the defendant to have to set aside the order cannot be equated with the defendant’s right to defend his case at the time of application by the Government. It was never his application and he had no notice of the hearing. Furthermore, by forbidding him to attend the hearing of the application where the burden of proof rests with the Government and requiring the defendant to apply to set aside the order, the Bill has cleverly and effectively reversed the burden to the defendant to discharge the order!
To make matters worse, clause 13(7) mandates that the High Court must allow the Government’s application if it is satisfied that a standard of proof of ‘prima facie’ case have been met. This requirement is too low and easy for the AG. If we are codifying this as part of our criminal law, why do we not apply the criminal procedure standard of proof of ‘beyond reasonable doubt’ for the Government? And ‘prima facie’ is still below the civil standard of proof of ‘balance of probabilities’ which according to this Bill, is the burden the defendant has to overcome when he applies to set aside the order! Bizarrely, the defendant ended up having a higher standard of proof! Why not ‘prima facie’ for the defendant?
So in short, according to clause 13 of the Bill, the Government is proposing to deprive a defendant his right to defend himself before the court makes the decision, gives the Government a low standard of proof to help the Government achieve what is effectively a gagging order, allows the defendant a higher standard of proof when he applies to set aside the order, and finally making his failure to comply with such an order an arrestable offence punishable by up to 12 months’ imprisonment or fine of $20,000 or both.
Madam, this is pure intimidation and it is an unjust and draconian piece of law.
Shutting out criticism and freedom of speech
Madam, yes, the former Chief Justice, Mr Chan Sek Keong, may have suggested codification of the Contempt of Court Law. The Minister has also said that it is a “crystallisation of the law”. But this Bill goes far, far beyond mere codification and consolidation of the present common law on Contempt of Court.
Madam, I have raised various issues arising from this Bill which I regard as troubling. My party colleagues in this House have also raised other issues. If this Bill is passed, our Contempt of Court law will become needlessly draconian without necessarily enhancing respect for the judiciary.
The Bill, if passed, will be entirely one sided in favour of the government with no redress or remedy for an individual should the Government makes a wrongful or unfair comment to the detriment of the individual.
This Bill, if passed, create a huge shadow of fear hanging over Singaporeans who may otherwise have justified opinions of certain topical issues where the handling by the Government or a public body has been subject to criticism or controversy like what we saw in the case of Benjamin Lim which actually created awareness among Singaporeans of how police interviews of juvenile persons is conducted and generated positive discussions of how the procedure can be improved upon. The Government does not necessarily need to view such incidents in a totally negative way and react by clamping down on comments and discussion on the basis of ongoing investigations but should look at the positive lessons that it can learn from.
Section 5 of UK’s Contempt of Court Act 1981 provides that: “A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.” I have heard the minister on this section, but I am respectfully of the view that such a provision can form part of our law if the government wishes to codify our laws on Contempt of Court.
I am concerned that this Bill will curb freedom of speech and expression among Singaporeans, in particular, commentary on current issues which may embarrass the Government.
Madam, the Workers’ Party opposes this Bill because common law has already provided for the protection of the administration of justice. This Bill goes beyond the existing common law. It is not only unnecessary. It also gives to the executive and the police, new powers that they currently do not have, which have a chilling effect on fair criticism and public discussion by Singaporeans. If enacted, this law runs a very high risk of causing the consequence of undermining the public’s trust in the Government. Let’s not bring our country a step backwards.