(Delivered in Parliament on 15 August 2016)
Mdm Speaker, at paragraph 17 of the judgment in Alan Shadrake, the Singapore Court of Appeal notes that the balance between freedom of speech on the one hand and protection of the administration of justice on the other is at the heart of the law relating to contempt. But rather than to merely codify the common law on contempt in Singapore, this Bill threatens to upset this delicate balance by extending extraordinary powers to the Government.
Contempt by Sub-Judice
The Minister publically remarked after the first reading of the Bill that it merely crystallizes the current legal position on contempt and “does not create anything new”. However, the drafting of Clause 3 suggests this far from the case. If it were so, one would have expected specific reference to the “real risk” test as established in the Alan Shadrake judgment to preface the explanatory statement covering Clause 3. In view of the Minister’s second reading speech, it is now clear that clause 3 does indeed envisage a more stringent test that the “real risk” test in cases of scandalising the court.
However, clause 3(1)(b)(i) on sub-judice contempt, on a plain reading, is also open to interpretation and is hardly determinative. A broad reading of the clause with the conjunction “or” suggests that an individual could be guilty of sub-judice contempt by publishing something that prejudges a pending court proceeding by firstly, prejudicing; secondly, interfering with; or thirdly posing a real risk of prejudice or interference with, that proceeding.
Does this not potentially create different thresholds for sub-judice contempt especially since there is a dearth of Singapore case law on this matter? It also leaves room for the courts to potentially introduce a test other than the “real risk” test, such as the “inherent tendency” test, which has been summarily rejected by the Court of Appeal, albeit in cases of scandalizing contempt, but not sub-judice contempt.
Compounding this ambiguity is the introduction of the term “prejudgment”, a term that is curiously not defined in the interpretation section of the Bill. What does prejudgment entail? Should the Minister argue that it would depend on each case, does he not agree that leaving it open-ended would give the Government significant powers to alter the balance between freedom of speech and the administration of justice to its whim and fancy.
Madam Speaker, on sub-judice contempt in particular, this Bill will legislate vagueness. At best, it would only serve to confuse the public, and does nothing to educate the layman about what qualifies as sub-judice contempt. In reality, it will shrink the common space for discussion on matters of public interest as is typical of human behaviour to be safe rather than sorry. That alone already makes this Bill bad law, negating its very purpose.
No place for fair comment of pending cases?
Furthermore, the concerns many Singaporeans have raised over the clause on sub-judice contempt ought to bring members back to fundamental purpose of the sub-judice contempt in the first place – which is to protect the right to a fair trial.
In his remarks to the media shortly after the first reading, the Minister raised a recent case the 2-year old toddler, Daniel who was abused by his caregivers before he passed away. Minister correctly observed many people were angered by the facts of the case, and Minister queried in such circumstances whether a Defendant would get a fair trial. Interestingly, Minister conceded that the judge – the facilitator in chief in ensuring a free trial – may not be influenced, but instead the witnesses, and the whole environment may be prejudiced or influenced. However, has such a doubt ever been raised in the Singapore context where our judiciary was so helpless as to be unable to oversee a fair trial, and to assess the veracity of the evidence of witnesses? Under the current legislation, it can be argued that many Singaporeans would have conceivably been in contempt when the City Harvest trial was on-going. But did their public comments compromise a fair trial?
Coming back to the toddler’s case, what actually happened and how fast did public anger blow over? Was the judge actually influenced? Were witnesses influenced in spite of negative feedback? And most importantly, did the Daniel’s parents not have a fair trial? To quote the Minister, has the situation “gotten out of control”?
Mdm Speaker, as it stands, there is a “real risk” this Bill would have an unnecessarily detrimental effect on public discourse of matters central to the effective functioning of a participative democracy, and that is why it is so objectionable as it stands.
In reality, there are benefits in allowing the public to comment on cases pending before the courts. For example, in the recent Benjamin Lim case, no reasonable person would argue that the Coroner would not have been able to rule fairly, and this is a testament to the standing of the judicial and legal service, which are already held in the highest esteem not just locally, but internationally as well.
In the Benjamin Lim case, it was the very feedback and concerns raised by the public that contributed to a review of police procedures involving young people and minors before the case was concluded. For most lay Singaporeans, the reality is that criticising policies and the facts central to a pending case will inevitably overlap to varying degrees. That is the very nature of public communication and for the common man, it is not easy to always neatly differentiate between the two. Surely there is a place for fair comment and criticism of pending cases and it does not necessarily follow that freedom of speech has to be curtailed as a result.
Relying on the common law to address sub-judice contempt in egregious cases of sub-judice would more than suffice, so as to preserve a healthy balance between freedom of speech and public confidence in the administration of justice. There is simply no overwhelming reason to pass this Bill when Singapore’s experience with sub-judice contempt in particular has not compromised the conduct of fair trials – the near absence of case law on this matter in our legal history provides the strongest evidence of this.
More Power to the Government
With the passage of this Bill into Law, the Government, and specifically the Attorney-General by virtue of clause 13 now has a potentially overwhelming role in the determining the balance between freedom of speech and the administration of justice. Worse, the Attorney-General only has to prove a prima facie case of contempt, an exceedingly low standard of proof. Even our judges, in whom we have so much respect, are prevented by law from refusing to grant leave should he deem the prima facie standard of proof to be too low and not in correspondence with the public interest in a particular case. In fact, the Government, through the Attorney-General could conceivably abuse the law by virtue of the unclear and highly interpretative words such as prejudge in clause 13(7), and suggestions of a test with a lower burden of proof than the real risk test, which mirrors the identical problematic drafting in clause 3. This vagueness suggests a clear and present danger for civil liberties should the Government decide to interpret the law strictly as drafted, to muzzle alternative voices.
Even worse, making sub-judice contempt arrestable by way of clause 22 and thereby giving the police powers to confiscate personal computers amongst other things appears to be specifically targeted at civil society activists who are not afraid to challenge the Government, and who play their part in serving Singapore by contributing to a diverse public space of voices and views. Proceeding on this course will not only compromise trust between the Government and people in the long run, but between the people and the police as well.
At this stage Madam Speaker, it is useful to review the Government’s record on civil liberties over the last few years in particular.
In 2013 when Parliament passed the Protection against Harassment Bill, the Government canvassed many justifiable reasons for the passage of the Bill. Many were legitimate, such as protecting individuals and public servants from (I quote) “indecent, threatening, abusive, insulting words or behaviour” (unquote). One would have expected sexual harassment, stalking, bullying in schools to be brought to task under the law, as predicted and in step with the tone of public consultation on the Bill.
But after the Protection of Harassment Bill was passed into law, it was the Government that used the Act to claim harassment from a member of the public in a dispute over a mere patent! It is instructive to recall that during the second reading of the Protection against Harassment Bill, the Minister was silent about the Protection of Harassment Act envisaging the Government as a plaintiff. To then turn around as sue individuals, was a completely unexpected use of the Act by the Government. And if suing an individual was not enough, the Government then proceeded to sue an online news site under the same law!
Earlier this year, the Government proposed and passed amendments to the Government Proceedings Act that allowed the Government to claim costs for more than two legal officers from a plaintiff knowing that the Government has limitless resources to hire the most expensive lawyers and an entire army of civil servants and legal service officers behind it to defend any civil suit. The Minister-in-charge did not even address why it was amending clause 9 of the Government Proceedings Act, until Ms Sylvia Lim brought it to the attention of the Minister. This seemingly innocuous amendment would inevitably cause an individual to think twice about taking on the Government because of the prohibitive costs involved.
Madam Speaker, even the so-called “sharp edge” of judicial review is blunted when Parliament passes laws that cause ordinary citizens to think twice about mounting a judicial review action, or further strengthens the Government’s hands, as it can conveniently make the case that its actions are within the form and substance of the law as determined by Parliament. This is especially the case for Bills like the Administration of Justice Bill, which is to give the Government maximum scope of action.
In this vein, there are other pieces of legislation over the years that directly impact freedom of speech too, and which have been amended to give the Government greater powers, such as the amendments to the Public Entertainments and Meetings Act of 2014, the Broadcasting (Class Licence) Notifications of 2013, and of course the Public Order Bill of 2009.
Upon a closer analysis, it is increasingly clear that the Government’s recent record on civil liberties mirror what was known in the heyday of Cold War as “salami tactics” – only that the Singapore version is slightly different and a tad more sophisticated, with the curtailing of civil liberties occurring incrementally, bit by bit or slice by slice, one law at a time which appear justifiable and innocuous when analysed in isolation. Taken together however, they portend a clear and consistent ability to control the public discourse, fair comment and criticism should the Government choose to up the ante to tighten its stranglehold on the public discourse. Viewed in totality, the Government’s approach gives it significant powers to strike fear in the hearts of ordinary citizens.
To conclude Madam Speaker, how much confidence is one supposed take from a Bill which criminalises contempt by a fine of up to $100,000 at the High Court, and a three-year imprisonment term when the Court of Appeal in Alan Shadrake affirmed a sentence of six weeks imprisonment and a $20,000 fine in what the Court of Appeal called and I quote, “the worst case of scandalizing contempt that has hitherto come before the Singapore courts” unquote. If Alan Shadrake stands for the worse case of scandalizing contempt in Singapore’s 51-year history, how can the Government justify increasing the prison term and fine by such a wide margin? The Minister commented on a recent civil case where the High Court imposed an imprisonment term of eight months. It would appear that the common law is working fine. Does the Government envisage a higher quantum of fines and imprisonment terms for other contempt scenarios, like sub-judice contempt for example?
Madam Speaker, the Workers’ Party objects to this Bill that overstates the case for the administration of justice to the detriment of freedom of speech.