(Delivered in Parliament on 15 August 2016)
Madam Speaker the government has said that the Administration of Justice (Protection) Bill aims to consolidate common law on contempt of Court. However in so doing, it poses unsatisfactory and problematic solutions to a non-existent problem. And in so doing, it generates grave dangers to the freedom of speech that is a part and parcel of our Singaporean way of life and is enshrined in Article 14 of our Constitution.
How? By creating the potential for abuse of the excessive powers that this bill confers on the government, allowing the government of the day to initiate investigations as a means to chill, stifle and ultimately strangle debate on matters of public concern while reserving for itself the right to comment on such cases.
Why the need for this bill?
First of all, I would like to address the fundamental necessity for this bill.
All legislation exists to fill a gap and address a real issue in such a way as to generate improved outcomes.
In this case, the Ministry of Law has stated that the bill primarily seeks to merely consolidate common law on the subject of contempt of court. My colleagues and I argue that his Bill actually goes beyond mere codification and makes real expansive changes to the current common law landscape on contempt.
Madam, there is presently no need for this Bill.
There has not been a rash of cases that make administration of the common law position on contempt of court difficult.
Why the rush to legislate?
What is the necessity for this Bill? Why legislate? Why now?
To cite some unrelated but illustrative examples – the government has refrained from legislating a quantum on retrenchment benefits into the Employment Act. It has refrained from legislating penalties for discriminatory hiring and human resource practices by employers.
Yet in this case the government has decided to rush to legislate, with no formal consultative process on the text of the bill prior to first reading.
There is no evidence for any substantive risk to the functioning of the Courts and to judicial process to justify such a measure.
I do not argue that such a risk cannot exist by definition. But the government needs to make the case that the risk justifies such an extreme measure.
What consultation occurred?
If indeed such a law were necessary, surely it is not extremely time-sensitive.
Therefore, I would like to ask why there was not more widespread consultation both within the legal fraternity and among the wider public before this bill was tabled for the first reading? Why was a green paper not tabled in Parliament given the very grave issues at stake?
In other jurisdictions, before significant changes to important legislation is tabled, law commissions are convened to seek public feedback and advise the Government and Parliament on the best approach to take.
Surely, a Bill that substantially affects the constitutional right to free speech under Article 14 deserves much more public consideration and debate than has been accorded to this Bill.
Sub Judice
Next, as regards the offence of sub-judice, what is the urgency and necessity for this Bill? Our cases are decided by professional judges rather than juries. Is our confidence in our judges so weak as to suppose that they cannot disentangle fact from misinformation and hence need to be protected from public statements about their ongoing cases? Surely our Judges are well trained in the rules of what constitutes relevant evidence to be admitted and considered by the Courts.
As regards sub-judice again, if the concern is with witnesses and experts being influenced by published misinformation, isn’t the Court process designed so as to elicit a finding of fact disentangled from the undue influence of misinformation? For instance, under cross-examination, the subjective can and should be distinguished from the objective in any eyewitness testimony.
More specifically have there been concrete cases of witnesses and experts being unduly influenced by published misinformation to such an extent as to generate a real risk to which this bill is a response?
In recent years, we have seen many sensational cases which have drawn heated public debate and discussion: the trial of the former head of the CNB, Ng Boon Gay. The trial of the former Law Professor Tey Tsun Hang. The trial of the members of the City Harvest Church. The Little India riot commission of inquiry. Have there been any specific examples or complaints of witnesses not stepping forward or tailoring their testimony as a result of public pressure? If not, why the impetus for the Bill?
If there are such cases, I urge the Minister to share such concrete cases under the protection of Parliamentary privilege so that the Singapore public can better understand what circumstances have provoked the tabling of this bill.
Scandalizing the Judiciary
Next on the offence of scandalizing the judiciary. Madam Speaker, the Minister has spoken in detail about the case of the UK and New Zealand.
But it does not appear that any other country is doing what the government is doing with this bill, namely prescribing harsh penalties to statute and defining contempt of court expansively, namely through the real risk test being replaced by merely a risk test. The Minister cited no example of other first world countries doing this.
This underlines the need for the government to explain why it is opting to move aggressively in the reverse direction by committing this offence to statute.
What facts support the view that there is a real risk to the functioning and standing of the Courts so as to justify why we are bucking a trend seen in other jurisdictions?
Given the high trust our population reposes in our judiciary, as the Law Minister has pointed out, should we not be more confident that the administration of justice in Singapore is made of sterner stuff, and is less prone to risks of being undermined?
The risk posed by the Government exception clause
The government exception set out in Section 3(4) also creates a real risk of government abuse. The one-sidedness of this clause lies in the fact that only the government enjoys a public interest exception to sub judice and not anyone else involved in a case.
An unscrupulous government could exploit this provision to initiate investigations against a person, so as to shut down public discussion of any politically inconvenient or embarrassing issue until such a time as the issue is rendered moot or public concern has dissipated.
Or consecutive investigations could in theory be launched on trivial charges or technical infarctions to keep the matter permanently off-limits to public discussion. An unscrupulous government could use this to suppress public discussion of its failings or wrong-doings in every platform, forum and institution other than Parliament itself.
It could be argued that under current common law, the government could do this anyway so the bill does not change anything.
But this bill does change things. Firstly with its setting out of maximum penalties, which I will go on to argue is intimidating. And second, by strengthening the executive government at the expense of the Courts in contempt proceedings and enabling the use of the Police to investigate contempt, which is not the case now.
Intimidating penalties
Next I would like to speak about the penalties which the Bill prescribes.
In setting out penalties, I fear that the maximum penalty stipulated in Section 12 – of a S$100,000 fine or up to three years in prison – may come to be seen as the minimum penalty.
In particular I fear that the $100,000 figure will attract undue attention and become fixed in the public mind as the liability one must be prepared to pay if a citizen wants to express his or her opinion on a matter of public interest that could potentially be subject to the contempt of court law.
Moreover this maximum cap is not aligned with past precedent. The sentence in the Alan Shadrake case was 6 weeks and a $20,000 fine. In Alex Au’s case, which involved scandalizing contempt of the Chief Justice, a fine of S$8,000 was meted out. Other fines have ranged from S$500 – $10,000. This is a far cry from 3 years imprisonment and $100,000 in fines.
The result for our democracy from the passage of this Bill and the attendant publicity could well be that no one who does not have $100,000 in cash to spare will dare speak up about any issue where there is even the slightest risk or perceived risk of prosecution under this law.
What does that mean for our democratic society, for the voices and contribution to public debate and consensus formation by Singaporeans with limited means? In a climate of high income inequality, do we really want to deepen the view that free speech is only something that the rich can afford?
Conclusion
Madam Speaker, in the absence of any clear and compelling reason why this law is necessary, why now and why the rush to legislate; when the bill as it stands poses such grave dangers to our climate of free speech and debate on matters of public concern; it is difficult to resist the conclusion that this bill will suffocate dissent, debate and democratic politics in Singapore to the detriment of balanced, accountable politics, civil society and freedom of speech.
In conclusion, Madam Speaker, I join my Workers’ Party colleagues in opposing this bill.