Debated in Parliament on 15 Aug 2016.
Order for Second Reading read.
Mdm Speaker, I beg to move, "That the Bill be now read a Second time".
Mdm Speaker, this Bill seeks to set out in statutory form the law of contempt and the processes in enforcing the law. In my speech, I will deal with the need to set out the laws in written form. I will then take Members through the clauses in the Bill. And in doing so, I will deal with concerns that have been raised and some of the points that have been made, as reflected in the Motion of Amendment which has been filed.
Mdm Speaker, contempt of Court was famously described by a jurist as "the Proteus of the legal world, assuming an almost infinite diversity of forms". He said this because the law on contempt developed through the common law over several hundred years and covering different facets. Thus, to many, including lawyers, it is often a mystery. They do not understand it fully because of its diverse forms. It is the only criminal law in Singapore that is based on case law. That is not satisfactory because criminal laws must be set out in statute.
Former Chief Justice Chan Sek Keong made this point. He pointed out that the law on contempt in Singapore was an anomaly and he said all our criminal laws are based on statutes, whereas the law on contempt was not. The punishment for contempt is unlimited, unlike other criminal laws. The Chief Justice (CJ) requested that I consider putting it in statutory form and I agreed with him that I would do so.
In many Commonwealth countries, such as the United Kingdom, Australia and New Zealand, the law started as a common law offence, and the need for setting it out in writing has been recognised.
Let me now turn to the Bill. Clause 2 of the Bill sets out the interpretation of the key terms used in the Bill, for example, the Courts to which the Bill applies; and when a Court proceeding is "pending".
The heart of the Bill is found in clauses 3 and 4. These clauses set out conduct which amounts to contempt: disobeying Court orders, interfering with Court proceedings, sub judice contempt; and scandalising the Court. There are other ancillary types of contempt which are also dealt with in this Bill.
Let me deal, first, with contempt that is committed by disobeying Court orders. The Court often directs a person to do something or not to do something. If he intentionally disobeys, that is contempt. That, in essence, is the current law. Clause 4 sets that out. For example, take a case where a former spouse applies for maintenance for herself and her children. In cases where the Court orders maintenance, and if the husband refuses to comply and deliberately chooses not to pay, his former wife and the children suffer. They may depend on the maintenance to pay for their schooling needs or even their basic necessities.
We undertook significant reforms to the family justice system. Amongst other things, we improved the enforcement of maintenance orders. That has helped. But there are ex-spouses who simply refuse to obey maintenance orders, despite their ability to pay. There are also those cases where, for example, the wife disobeys an order granting the husband access to the children. For such people, the threat of a significant jail term can help. They may become more likely to obey Court orders. Under this law, the defaulter can be punished if he intentionally chooses to disobey the Court's order.
On the other hand, there is a need to be fair to the person if he honestly and reasonably did not understand what the Court had ordered and the Court takes the view that he ought reasonably to be excused. Clause 21 of the Bill provides a defence in such a case.
The provision is intended for those who intentionally disobey Court orders. The Court will have to take into account the seriousness of the breach and whether the breach is intentional, in deciding whether to proceed and how to proceed. I have given an example of an order from the Family Court which is disobeyed. The rule, of course, applies to other types of Court orders as well.
To sum up, defaulting parties will face serious consequences if they intentionally disobey the Court's orders. Such disobedience often takes place in the lower Courts, including the Family Court. Most disputes are heard and resolved in the lower Courts.
We have, therefore, raised the maximum punishment vis-a-vis the lower Courts, to send a clear signal that such conduct will not be tolerated. The intent is to allow the lower Courts to deal with the more serious contemptuous conduct that can occur before those Courts. This will complement other changes we are making to the civil and family justice systems. And the intent is to protect the more vulnerable parties. They can then receive the full protection of the law.
Let me now deal with contempt by interfering with Court proceedings. Clause 3(1)(c) deals with the situation where there is interference with Court proceedings. It is a fairly straightforward provision. This can occur where someone disrupts Court proceedings, interferes with witnesses or intimidates them. Likewise, when someone interferes with, or intimidates judges, parties, lawyers and witnesses. Court proceedings should be sacrosanct. They should be free from all of these extraneous interferences.
Secondly, within the same rubric, clause 3(1)(d) deals with the situation when someone disrupts Court proceedings by his own conduct. The offence is made out where a person intentionally insults or causes any interruption or intervention to any judge who is sitting in any stage of a Court proceeding, for example, where a person shows up in Court, starts shouting from the public gallery of the Court room, and interrupting ongoing Court proceedings. The Court is a place where serious issues are dealt with, some affecting life and liberty, and there is no place for disruptive or insulting behaviour.
Similarly, clause 3(1)(e) also deals with the situation where any other act would interfere, obstruct or cause a real risk of interfering or obstructing, with the administration of justice. The overarching purpose is to ensure Court proceedings are respected and allowed to complete their full course, without facing obstruction or interference from persons. These provisions reflect the current law.
I will now turn to discuss sub judice contempt, set out in clause 3(1)(b) of the Bill. In essence, sub judice contempt deals with conduct, for example publishing something, that would prejudge an issue in pending Court proceedings; and such prejudgment either prejudices or interferes with ongoing Court proceedings, or poses the real risk of doing so. So, it is conjunctive. This clause, again, reflects the current law.
Every year, approximately 60,000 criminal charges are dealt with by the State Courts. Others are dealt with by the High Court. There are thousands of civil cases in the lower Courts and in the High Court. Every party to a criminal or civil trial is entitled to a fair trial and everyone facing a criminal charge is entitled to the benefit or the presumption of innocence. These are fundamental pillars of our justice system. Persons in Court cases should not face prejudgment by the media or the public in a way which whips up sentiment and creates a real risk of interfering with their trials.
Not every comment will be sub judice. Parties to civil proceedings frequently make comments. Lawyers do as well while their client's case is ongoing. The test is whether it prejudices or interferes with ongoing Court proceedings or poses a real risk of doing so. So, you have to show that it prejudices or interferes or poses a real risk.
On these questions, one may have to consider a whole host of factors, including who made the comment, the content of the comment, the extent of the publication, the likely impact on the trial. These are all matters for the Court.
Let me deal with some of the questions that have been raised about this provision. As I do so, I should make clear that the clause reflects the existing common law; it does not change the common law. So, the suggestions and the requests are, therefore, requests to change the law as it now stands.
One suggestion is to add the word "seriously" before "prejudice" in clause 3(1)(b) so that the contempt is actionable only if it "seriously prejudices" Court proceedings.
I would say this is not right. Consider what, in effect, is being proposed with such a suggestion. If we agree to it, we are then saying it is acceptable for the trial to be prejudiced, so long as it is not seriously prejudiced.
Think about it. A person who is a defendant in a criminal trial could face years in prison. Do we really want to say that it is acceptable to prejudice his right to a fair trial? What happens to the presumption of innocence and the basic right to a fair trial?
You balance that against someone's wish to comment on the proceedings, which prejudices the proceedings. You balance the chap in Court who is facing a criminal charge, you balance his rights against somebody else's desire to comment on those proceedings; not just comment, but comment in a way that prejudices those proceedings. That is the right that we have to balance against the right of free trial and presumption of innocence. Is it acceptable for such a commentator to say, "Yes, I prejudiced the trial, but I didn't seriously prejudice the trial"? Do we want that?
Why should someone's right to comment, sitting in the security of his home, be given precedence over the right to a fair trial and prejudice a person who faces a jail sentence? Is it not better to wait for the trial to be over, for the facts to be established, before comments are allowed?
Again, I emphasise, it is not all comments. What are the proscribed comments? They are those which prejudice a fair trial or pose a real risk of doing so. Comments which do not fall into that category are not within the clause.
After the judgment, one can comment as he or she wishes on the judgment on the conduct of the parties. The words of a New Zealand Chief Justice put it well: "If Joe Public is accused of an offence of which he believes he is innocent, he will not wish to be tried in the media. When charges are laid in court, the public must be assured the issues will be decided in the court and nowhere else."
As Members of the House, ask yourself, each one of you, to bring it to the personal level. Say someone you know is facing a criminal trial. Do you want the world saying he is guilty before his guilt or innocence is established? Do you want his right to a fair trial to be prejudiced and then someone to come and say, "Yes, I prejudiced it, but I did not seriously prejudice it." Do you think that makes good policy?
Another comment that is made against this provision is it "curtails free speech". You know, to raise this spectre is, by itself, not an argument. One has to go beyond the rhetoric, get to the specifics. What is being curtailed? What does the clause provide? What is the right that is being curtailed? You can comment on policies. You can debate public issues. What you cannot do is to say something that actually prejudices a specific case. Or has a serious risk – real risk – I should use the words in the Bill – real risk of prejudicing a specific case. This legal position has worked well for us all these years.
If you want to change the law, if you want the right to prejudice ongoing cases, you have to put out cogent reasons why; why your right to speak and prejudice an ongoing trial should override someone else's right to a fair trial. It is for the same reason I cannot agree to any suggestion that clause 3(1)(b) be qualified by some general provision that provides for discussion by the public as a defence.
Again, what you are saying is that an observer's right to speak as he wishes should override a person's right to a fair trial; it does not matter if the trial itself is prejudiced as a result.
You know, most of the people who get charged in the State Courts, they are ordinary folks. They do not write fancy blogs. They are not lawyers, Members of Parliament or journalists – not usually anyway. They find themselves on the wrong side of the law. Do we really want to say, in this House, to the ordinary man in the street that it is okay for his trial to be prejudiced and it is okay for him to be unfairly treated because it is incidental to someone else's right to comment?
Hon Members, the people who are the loudest on these issues are usually the people who can take care of themselves. We are here to protect all Singaporeans, including those voices which are not heard – the majority. We are trustees of their interests. It will be quite shocking for us to say that the rights of someone who wishes to comment should be put above the rights of the person who is facing a trial, for a fair trial. I say it is shocking for us to say to such a defendant, "It is okay, my friend, your trial has only been a little bit prejudiced. So what if the chances of you being found guilty have increased?"
If we are not strict, it can easily get out of control and the Courts will lose control, as has happened in other places.
Let us say there is a high profile child rape case. The child is dead, there is obviously a lot of unhappiness among the general public, and it is high profile, and there is a lot of interest. Let us say the defendant comes from a certain background, it can be race, it can be religion, it can be education level, sexual preferences – it does not matter, he comes from some background.
Assume the national media were to publish prominent articles on a daily basis saying that people of that particular background, race, religion, educational level or sexual preference are prone to committing these types of offences; and such people should be severely dealt with. Can such a campaign colour the public mood?
We do not have juries, true, but we have witnesses and we have expert witnesses as well; people who go to court to give evidence. Do we want them to be put under pressure? Say an expert takes the view on the mental state of the defendant which will potentially give the defendant a defence. Do you want the mass media to carry articles which suggest that such defences are phoney and should not be allowed, that such defendants should be severely punished?
Do we want to get into arguments discussing the media's right to discuss matters of public interest versus the individual's right to a fair trial? Because the media will say and has said in other countries that the defence, through psychologists and psychiatrists, is a matter of public interest. And, of course, they are matters of public interest. But there is a time and place to discuss it. Can we discuss it after the trial is over? It is not as if these discussions are prevented entirely.
When a public mood is created, everyone in the trial will be under pressure, including the judge. They are human, too. Any expert who wants to give evidence on behalf of the accused runs the risk of being tainted in the opinion of the public. He does it first time, and, say, he gets a lot of flak. Do you think he will want to do it a second time or a third time? The prosecution will also be placed under enormous pressure to charge and secure a conviction. The Public Prosecutor's decision to charge should not depend on public opinion.
I had earlier talked about expert witnesses, so in the conduct of the trial, think of other witnesses. Would they become reluctant to testify because their evidence is contrary to public opinion? Or would they modify their perception of the evidence?
And the public, having already formed an opinion of guilt, would they be able to accept the Court's decision to acquit? Would they even bother reading the Court's judgment or just assume the Court must have been wrong?
Whatever the outcome, the credibility of the trial and the Court would be damaged. If the Court orders a severe sentence, the public will assume this was because of the media campaign. If the Court acquits the defendant and says the defence succeeded, the public will assume the opposite – that the judge wanted to show that he had not been influenced by the media. At least some members of the public could assume that.
In either case, the public will question the integrity of the outcome. How then is the judge to react in the face of all these conflicting sources of pressure? That is why our law provides that you can make your comments, just wait for the proceedings to be over. These are comments which can prejudice the trial. Other comments you can make at any time. Wait for the facts to be established; do not create your own facts. Those have to be established by the Court, whether it is a Coroner's inquiry or a trial. Then, you can comment on the defendant, the case, the judgment, the general practice, the general policies, on any matter really, subject to other laws.
Our judicial system has worked for us. Let us keep the system as pristine as possible and protect it from outside influence. That way, you know you have a good system, a system that will deliver justice and give everyone a fair trial.
There are many examples from other countries where trial by media takes place. Some of you would find the name "Amanda Knox" familiar. She, together with two others, was accused of killing her flatmate. The international media went to town with the story. Barely a month after the incident, one newspaper published that the victim "it seems, died for no other reason than that she had the terrible misfortune to find herself sharing an apartment with ‘Foxy Knoxy'". That is the moniker they gave her – "Foxy Knoxy". This conclusion was based on comments that were passed by some unidentified persons.
Some newspapers labelled her as a "killer" or "psycho-killer" before the courts had fully determined the matter. Reading these articles, the natural inclination would be for a member of the public to agree with the tone of the articles, to conclude that the suspect was guilty even before the investigations had been completed.
Ask yourselves, was this fair? Is this fair? Often, they are based on assertions and evidence that would not stand the scrutiny of a court process. And, in fact, Ms Knox was eventually acquitted. How does all this hype affect proceedings? Italy's highest court, the Supreme Court of Cassation, observed that: "Certainly, the unusual hype of the story, caused not only by the dramatic mode of death of a 22-year-old…but also by the nationality of the people involved…and therefore by the international repercussions of the story, caused the investigations to suffer a sudden acceleration, which, in the frantic search for one or more culprits to be delivered to international public opinion, certainly did not facilitate seeking the substantial truth."
This is not the type of justice system we want. We do not want to get into arguments with commentators as to whether what they said may have prejudiced the trial, but it was necessary in public interest; nor do we want to get into an argument where they say, "Well, you know, prejudicing the trial was incidental to my right to speak".
Those with more resources or better access to the media can also abuse such a system. They will take advantage if we are not strict. For example, by starting media campaigns to pressure an accused to plead guilty, or a victim to settle out of Court, justice can become a function of how closely connected one is to media sources or how wealthy one is.
And what happens after the media prints an article that unfairly assumes you are guilty, when you are, in fact, innocent? The public would not be able to tell which facts are true, which facts are false or irrelevant. How then will you clear your name in public? Will the public believe what you say after a series of articles of such a nature? It can affect you, your safety, your family's safety, your career, your standing in society. All these before the Court has decided on your guilt or innocence. And if the defendant complains, it will be argued that the matters were discussed in the public interest and the prejudice was only incidental.
In effect, the question, therefore, when considering these other suggestions, is whether you want to undermine the presumption of innocence and whether it is fair to do so. If you want to reverse burdens, that has to be done statutorily for specific public policy reasons.
It is for these reasons that we have a process for determining guilt or innocence before the Courts where evidence is tested and scrutinised, where unreliable evidence is excluded, and where the Court makes findings based on a detailed analysis of the law and facts.
The public and media are also free to debate the merits or demerits of our legislation, even if there are ongoing cases involving such legislation. Current law and the law as set out in the Bill are the same, and one is not prevented from advocating one's position, for example, on the death penalty even if a capital trial is going on.
Academics or media outlets publish commentaries on a judge's decision, even where an appeal is pending. These are not prohibited. Commenting on a judge's reasoning is unlikely to pose a real risk of prejudicing the appeal outcome. We have not changed the law. Such commentaries are allowed today. If the Bill gets passed, they will continue to be allowed under the Act.
In coming up with this approach, we have, of course, considered the approach in other jurisdictions. The United Kingdom (UK) has set a higher bar before you can find a person guilty of sub judice contempt. It did so, at least partly, to bring its law in line with European law.
The UK Act came about after the European Court of Human Rights decided, in one case, that the decision of the UK courts did not satisfy the test under the European Convention of Human Rights (ECHR). However, the Australian and New Zealand courts have taken a different position from that of the UK.
Each country will decide for itself what is best in its own interests. Our Courts have set out what the test is for us. We have to chart our course and decide what is in our best interests. Our Courts have expressly rejected the approach taken in the UK, inter alia, for the reason that the UK position has been impacted by it being subject to ECHR.
I now turn to clause 3(4) of the Bill, which says "A person who issues a statement on behalf of the Government will not be liable for sub judice, notwithstanding pending Court proceedings, if it is in the public interest to do so". What does this clause cover? This happens today on a regular basis even before the law. Take the example where there is a spread of infectious diseases, maybe something like the severe acute respiratory syndrome (SARS), and say it could potentially be due to negligence, maybe even fraud, on the part of some hospital staff. And let us say the Police are investigating and proceedings are likely and, say, a Coroner's inquiry has been announced. Nevertheless, the Government must be able to come out and to set out the facts, as it knows them. The public needs to know what is happening, what is the likely infection spread, crucially, what are the risks to individuals and what happened at the hospital, as best known at that point in time by the Government.
Take another example. Say, a bank suffers a run due to a massive fraud by an employee. The bank may have commenced action immediately and may have obtained injunctions. Meanwhile, bank runs can be contagious, dangerous. They can have serious consequences for the economy. The Government must come out and state the facts and the position and, hopefully, reassure the public. It cannot wait for ongoing Court proceedings to end before informing the public about some matters. As I said, if we look back, it is not unusual for the Government to come out and make these statements. It is not targeted at any particular individual. It is not targeted at the case per se. It is about what happened so that the public can go about their affairs in a more informed way where there is a specific public interest to do so.
The Government statements are usually crafted sensitively to try and avoid prejudicing proceedings, while informing the public, because their own lives, well-being also need to be protected. And so far, for all the statements that the Government has issued, there has been no suggestion that these actions have prejudiced any proceedings.
The Bill seeks to set out what is happening and what has happened for many years. In one or two cases, it was alleged that the statement should not have been made and the Courts have clarified the position. For example, in Re Application of Lau Swee Song [1967] SGHC 16, the Court considered the Government's responsibility to come out and deal with matters publicly. The Government will only be allowed to give a factual account and state its position, and that statement will not preclude the Court from exercising its judicial power in relation to the issues at hand.
Clause 14 of the Bill permits a fair and accurate report of ongoing proceedings that is in good faith; published contemporaneously or within a reasonable time after the proceedings, unless such publication would otherwise be contrary to the law, order of court or relates to confidential matters. It also provides that there is no liability if the publisher did not know or have reason to believe that the proceedings were pending.
Let me now turn to contempt by scandalising the Court. That is set out in clause 3(1)(a). The Courts are integral to a well-functioning democracy. People must have faith and confidence in them. People must have faith and confidence in the administration of justice. That is critical for any society. Baseless attacks on the Judiciary erode trust and affect confidence in the administration of justice. This principle is well-recognised.
Let me quote former Chief Justice Chan Sek Keong. In 2011, he said this: "The rationale of punishing such kind of contempt is to uphold the authority of the Court which is an indispensable institution for the administration of justice... We do not mind criticism, even harsh criticism, of the merits or justice of our decisions, on grounds that are not related to our fitness to hold judicial office... Those who do not hold judicial office may not fully appreciate or share the same sense of responsibility that a judge holds with regard to his office. Scurrilous remarks, unless firmly dealt with, would inevitably undermine public confidence in the Judiciary."
The High Court of Australia has observed that: "The authority of the law rests on public confidence, and it is important for the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges."
The New Zealand courts have said: "Extravagant and inflammatory language, calculated not only to incite disapproval of particular decisions, but also to shake confidence in the courts themselves, and provoke discontent and ill-feeling, is considered so plainly contrary to the public interest as to constitute an offence calling, in proper cases, for the application of the summary power for punishing for contempt... Criticism may be strong and forceful, but it is not to be couched in the language of abuse and invective ".
I have quoted from other jurisdictions to explain the rationale for the rule. The precise application of the law, of course, varies from country to country.
Clause 3(1)(a) provides that it is contempt of Court to impute improper motives, or impugns the integrity, propriety or impartiality of any Court, and, so, this is conjunctive – if what you do or publish poses a risk that public confidence in the administration of justice will be undermined.
So, you have got to show that the statements impugned the integrity, propriety or impartiality, or imputed improper motives, and you also have to show that there was a risk that public confidence and the administration of justice would be impacted.
Two questions: why do we need this? And what exactly is being curtailed? If you allow constant attacks – attacks, say, of bias and corruption – over time, the public perception of the judiciary will be affected. This, I think, is self-evident. I will explain later with reference to one country.
I asked for some research in related fields. There is a recent psychological study led by a Vanderbilt University researcher. It showed that false statements which were repeated even when the participants knew better caused participants to later believe the statements were true. This is called the "illusory truth" effect. Assume there are blatant and unsubstantiated falsehoods about the judiciary repeated often enough, it will affect public confidence in the judiciary.
Let me give another example. An empirical analysis was conducted of British press coverage of the 2009 Ian Tomlinson scandal. This involved a newspaper vendor who died in the midst of police handling protesters at London's G20 summit. He died after being pushed by a police officer. Based on the empirical analysis, commentators concluded that "the emergence of the press politics of outrage is undermining trust not just in the political class as individuals, now a well-rehearsed debate, but in entire institutions". That means it is undermining confidence and trust in the entire institutions, beyond the politicians. Politicians are already assumed to be "gone cases", if I can use a colloquial term.
Likewise, in Singapore, if you allow baseless attacks on the Judiciary, you get erosion of trust in the Judiciary.
This does not mean no criticism of the Judiciary is allowed. I read out the extracts from the different judges, including former Chief Justice Chan Sek Keong. So, that is not understood much by people, they think that it precludes any kind of criticism. It does not mean protecting judges from being criticised in their personal conduct, for example, outside of their conduct as judges. If they behave badly, they can be criticised. It does not mean you cannot criticise their judgments. It does not mean that you cannot criticise the way they conducted trials, as long as no improper motives are ascribed.
When people lose confidence in the Judiciary, your entire administration of justice gets affected. That is on one side. Weigh that against what is it that you are seeking to proscribe? You are proscribing specific attacks of bias, corruption, favouritism, scurrilous abuse and other allegations of such nature.
Nothing prevents you from attacking the reasoning of the judge, attacking policies reflected in the judgments. And you are entitled to the full latitude of fair criticism.
What is prohibited, therefore, is quite narrow. And there is a further condition, before the offence is made out. What you say must pose a risk of erosion of public confidence.
Under common law in Singapore, the test is "real risk". In the Bill, the test is "risk." The different heads of contempt, clauses 3 and 4, what amounts to contempt, the Bill sets out the law as it stands now. This is the one change to the current law in the clauses on the substantive elements of contempt. I will discuss the reasons for our approach in the Bill.
The Judiciary and the administration of justice are hugely precious assets for us. We inherited them from the UK and have made them better. And we must continue to protect it.
The common law as it is applied in Singapore does not allow our Courts to be debased or scandalised. Singaporeans, as well as international institutions, hold our Courts in very high regard.
Let me give Members some statistics. My Ministry conducted a survey recently on how Singaporeans view our Courts. And 92% said they had trust and confidence in our legal system; 96% agreed that Singapore was governed by rule of law.
Separately, the State Courts conducted a survey on Court users last year. More than 90% had confidence in the fair administration of justice by the State Courts; agreed that the State Courts independently carried out justice according to the law; and agreed that the State Courts administered justice with integrity. That is an enviable position to be in.
The Judiciary is truly an institution that is held in the highest esteem by Singaporeans. That is the very foundation of the rule of law. The greater the prestige of the Courts, the greater the authority, and the greater the respect from everyone for that authority.
As was stated by an Australian Court in 1994:"…it is important to remember that … the justification for proceedings for contempt of court… lies not in the protection of the reputation of the individual judge… but in the need to ensure that… courts are able effectively to discharge the functions, duties and powers entrusted to them by the people".
As another court, this time in Ireland in 1991, put it: "[The contempt] is not committed by mere criticism of judges as judges, or by the expression of disagreement – even emphatic disagreement – with what has been decided by the courts. The right of citizens to express freely, subject to public order, convictions and opinions is wide enough to comprehend such criticism or expressed disagreement. Such contempt occurs where wild and baseless allegations of corruption or malpractice are made against a court so as to hold the judges to the odium of the people as actors playing a sinister part in a caricature of justice."
Again, I refer to these cases: mainly for the expression of the principle on why we have this rule – scandalising the Court.
Singaporean cases are the ones that matter and the underlying philosophy of the Singaporean cases is similar. When you have a situation where the Courts are respected, then the administration of justice proceeds smoothly. Justice can be delivered fairly and firmly. And people, whether or not they are satisfied with a judgment, nevertheless, trust the system.
Internationally, what is the standing of our Courts? There are many published papers on this. The World Bank ranked us in the 95th percentile for the rule of law. According to the Political and Economic Risk Consultancy (PERC), we are second in Asia for the quality of our judicial and legal system.
The point is this: on one side, the Courts administer justice. Respect for them, respect for their authority, are a key pillar of society, a fundamental public good for the well-functioning of society.
On the other hand, weighing against that, what is being curbed? The right of an individual to abuse the Judiciary, to say judges are biased and corrupt, to scandalise the Courts.
People have the right, as I said more than once, to criticise judgments, to criticise policies, to disagree with rulings and to discuss all of them.
And remember that those who attack the judges fall within a wide spectrum – from the idealistic, to those who are constitutionally sour, to those who are outright dishonest. Some will criticise out of true idealism. Some will keep repeating falsehoods or manufacturing facts. Some will exploit the position by making personal attacks, sensationalising based on falsehoods for pecuniary profit. It has happened.
So, you weigh it. On one side, you have the sanctity of the Judiciary and the confidence reposed in the Judiciary. On the other side, we have some people's desire to launch personal attacks against judges. Which is more important? That is the weighing that one has to do.
In a case in Hong Kong, a newspaper accused the local judiciary of being biased against them. Among other things, it described the judges as "swinish white-skinned judges", "pigs" and "judicial scumbags and evil remnants of the British Hong Kong government". Ask yourself, what is the benefit of publishing this sort of thing, apart from some perverse form of personal satisfaction from the writer's perspective? It is that which is prohibited in Singapore.
The Bill makes clear that fair criticism is not prohibited and "fair criticism" is defined in case law. Academics have for many years written articles to criticise judgments.
As I have earlier explained, fair and accurate reporting that is made in good faith will also not be caught.
Let me emphasise again: this Bill is not about protecting judges. And I should say, by the way, this is also not about protecting the Government. It has nothing to do with the Government. It is about the administration of justice.
Judges should be held to high standards of accountability, like other public servants. Clause 16 allows a report to be made to the Chief Justice or relevant authorities on the judges' conduct. That can include the Corrupt Practices Investigation Bureau (CPIB). If there is judicial misconduct, report them. This is Singapore; it will be investigated.
Similarly, clause 17 allows any aggrieved party to file a case or application in Court to seek the disqualification of a judge.
Weighing the importance of maintaining the sanctity and reputation of the Judiciary, we have decided that it should be contempt if one imputes improper motives, impugns the integrity, propriety or impartiality of a Court; and that poses a risk of undermining public confidence in the Judiciary.
If one calls a judge a biased swine, then let us not have arguments as to whether he only risked undermining the sanctity of the Judiciary, as opposed to whether he really risked undermining the sanctity of the Judiciary. Our Judiciary is of fundamental importance. I have laid out for Members the different factors, and this is a policy call if we want to go this way. It is for us to decide which is the right approach.
It is not about the Government. It is not about Members of Parliament. It is about the Judiciary. Judges, not in their personal capacity, but judges performing functions. Judges who cannot respond and defend themselves. It is a policy call as to why we should give them protection.
Members may say, yes, but why not the current layer of protection as in the common law, which is "real risk"? I have explained why. I want to make sure that the integrity of the Judiciary is pristine. This will give us a strong anchoring in the rule of law which, in itself, is of basic fundamental importance for our people.
Second, quite importantly – the first is the fundamental reason, that alone is enough, but going beyond it – it allows Singapore to be the pre-eminent, vibrant legal centre in the region. That is of tremendous value to Singapore. Look at the number of large law firms in Singapore ‒ substantial, given the size of our economy. Larger economies do not have as many large law firms. Look at the quality of the profession in Singapore and the international work it gets. Look at the number of foreign lawyers who are here. Look at the work that gets done out of Singapore, benefiting us and our economy, which has got no connection to Singapore. We stand out in Asia as the jurisdiction of unchallenged independence, impartiality, great judiciary, good lawyers. That is what I am seeking to protect.
Look at the Singapore International Commercial Court (SICC). We invited some of the eminent judges from around the world to sit on it and they agreed. Why did they agree? Because they have a reputation, and we will protect them, too. They accept and hear international cases which have little or no connection to Singapore. I do not think any other country in Asia could have set up an SICC. They could have set it up, but it would not succeed. It will succeed in Singapore.
There are tremendous benefits from the confidence that comes from us being a vibrant, strong, first-rate legal centre with the Judiciary as its central core. Look at the Singapore International Arbitration Centre (SIAC). It is now the top arbitration body in Asia. Why did you think that has happened? If we did not have a reputation for the rule of law, that would not have happened. Again, if you allow baseless attacks on a regular basis, you will not have the same perception.
So, I looked at all of this. I looked at the common law. The judges developed the common law based on a strict legal precedent perspective. But we, the Ministry, have a larger policy perspective in terms of the other bits and pieces and aspects of the whole legal spectrum. And, on that basis, we said, on this one area, let us make it even stricter.
Look at the impact on the economy ‒ travel, tourism, hospitality. If we succeed in making Singapore a legal hub, it will have a tremendous positive impact on the economy. And we have a real chance to do that, provided we get it right. And weigh that, again – I keep coming back to this point – what is it that is being curbed? Most of us would not want to get out of bed and say something about a judge being a "swine". It is that which is being curbed ‒ allegations that a judge is biased. You weigh the public good against what is being proscribed and, in my view, the balance is quite clear.
There are countries where a view has been taken, that more latitude should be given to attack judges. It is a question for each society, each country to decide, as these other countries have themselves acknowledged. In the words of the New Zealand court, "The complex process of balancing the values underlying free expression and fair trial rights may vary from country to country, even though there is a common and genuine commitment to international human rights norms. The balancing will be influenced by the culture and values of the particular community… The result of the balancing process will necessarily reflect the court's assessment of society's values."
Hon Members, let me now turn to what the British High Commission said last week, and I will deal with that. It appears that on 12 August 2016, the British High Commission issued a statement, and I quote: "The UK will continue to urge Singapore and all countries which retain 'scandalising the judiciary' to abolish it." This is surprising. If the British High Commission was really serious and sincere, one would have expected them to touch base and talk to us.
So, what is the purpose of issuing a public statement the weekend before the Parliament debate? The purpose seems to be to try and influence the debate, which is quite improper. It gets more curious.
The Ministry of Foreign Affairs contacted the British High Commission and asked the High Commissioner what this was all about. He said that the comment was made by his press office in response to a question posed by Reuters and was not specific to Singapore. It was issued on Friday, on the eve of this debate. It says it urges Singapore and all countries to abolish the "scandalising the judiciary" offence, and he said it was not specific to Singapore. With the deepest respect to the High Commissioner, one can only say this answer is extremely intriguing. Very interesting, very intriguing. If you want to intervene in a debate and make a comment, then at least have the courage of your convictions and not beat a hasty retreat at the first question.
There are a few points I would like to make about the comment from the British High Commission.
First, which countries did the British High Commission make this comment to? Did the British High Commission see fit to make such comments to the Australians? To the New Zealanders? To the Irish? They also criminalise scandalising the court. Or is it that only some ex-colonies are privileged to get such advice from the British High Commission? If so, I wonder what is the distinction, that we are so privileged?
I should make clear that the laws in respect of scandalising and the defences available vary from country to country, even between Australia, New Zealand, Ireland and us. We have consciously chosen to stick to the law as developed by the Singapore Courts, except for the one change I have mentioned.
I am not sure the British High Commission is aware of the circumstances in which the offence of scandalising the court had been abolished in the UK in 2013. The UK Law Commission Report of 2012 recommended the abolishment of this offence for the following reasons.
The Law Commission noted that "There [was] a great deal of extremely abusive online material concerning judges". That was the situation in the UK. The Law Commission also acknowledged that the UK judiciary had lost the deferential respect it used to enjoy and noted that "this change is one to be regretted". They were of the view that such a situation could no longer be reversed. The offence had limited symbolic value as everyone was scandalising the court anyway. It was happening frequently and was rarely prosecuted. The Law Commission also considered that the offence was, in principle, an infringement of freedom of expression, which was a basic right under the European Convention on Human Rights. While the Law Commission did not believe that the existence of the offence was contrary to the European Convention, they felt that there was a risk that particular prosecutions may be disapproved by reason of ECHR.
So, they recommended that the offence be abolished because the standing of the courts was already damaged in public opinion, a point, which as I said earlier, they noted with "regret". And keeping the law in the books under such circumstances served no purpose. The damage was irreversible. It was beyond repair.
Britain, of course, has had an interesting history, as with its membership in the EU. But I am not sure Britain's experience of changing the law to conform with European human rights laws is completely relevant to us. And the statistics and surrounding facts suggest that what the Law Commission said about the standing of the UK courts is, in fact, true. The Lord Chief Justice of the UK said, in his Report to Parliament earlier this year, "There has, overall, been a widespread feeling [amongst judges] of not being valued or appreciated for their work."
A Judicial Attitude Survey among salaried judges in England and Wales courts and UK tribunals was conducted in September 2014. The results showed this. Almost two-thirds of all the judges (62%) said that members of the judiciary are respected by society less than they were 10 years ago. Respect had gone down. Two-thirds thought that. Only 4% thought that they were valued and 96% thought that they were not valued by the media. Only 4% thought that they were valued by the media. So, almost every single one felt not valued and two-thirds thought that they were less respected. Half of all the judges saw media representation of judges, 56%; and public misunderstanding of the judiciary was 59% as factors driving the changes.
Decline in judicial morale has been reflected in the increasing difficulty in recruiting and retaining judges, especially senior judges, in the UK. A public perception survey on the UK criminal justice system was conducted in 2013/2014. And 64% of the respondents were confident of the fairness of the criminal justice system in the UK, meaning 36% did not say that they were confident. One-third did not say they were confident in the fairness of the system. And only 31% of the respondents were confident that the courts were effective at giving punishments which fit the crime.
Do not get me wrong. I have the highest regard for the higher courts of the UK and the quality of their best lawyers. They are truly amongst the best in the world. But it does not follow that how the UK government has treated its judges, how it has paid them, how it has resourced them, how it has protected the judiciary as an institution, offers a good model for us to follow.
We have taken a different approach. Our judges are paid properly. The Judiciary is protected from being scandalised. The Judiciary is properly resourced, and we try and retain the prestige of our Judiciary. These are the facts.
It is quite astonishing that the British High Commission should give us advice to follow what Britain did. Britain found itself in an untenable position, a difficult situation. Their judiciary did not have the standing or respect that it used to enjoy. And then the Law Commission reluctantly recommended that the offence of scandalising the courts be abolished because the situation had gotten to a stage where it was no longer possible to reverse what was happening. Did the British High Commission know these facts when the advice was offered?
If the High Commission knew the facts, then that does not speak well of them, because we are not in the position Britain found itself in. I have given Members the survey data on how our Courts are viewed by our public. We are in a healthy, good, enviable position. And we are not about to shortchange our Judiciary. We are not struggling or swimming against the tide of public opinion as Britain was. If the British High Commission did not know these facts and yet gave the advice, then, again, it does not speak too well.
Before I leave this point, I should deal with one other point. Everyone knows the best British lawyers are extremely good and their senior judges are exceptional, world-class. And their system is known for its independence. Then why is it that their judges feel undervalued, under attack, and public confidence is not exceptionally high? A significant part of the reason is because of the media. It wields an undue amount of power in Britain, with significant influence on politics and finds profit in attacking the judiciary and has been allowed to attack the judiciary. The uncomfortably close relationship between the British media and the political leaders and its impact on public policies are widely acknowledged and criticised.
In one of his final speeches as British Prime Minister, Mr Tony Blair lamented that in the UK, and I quote, the "relationship between public life and media is now damaged in a manner that requires repair. The damage saps the country's confidence and self-belief; it undermines its assessment of itself, its institutions; and above all, it reduces our capacity to take the right decisions, in the right spirit for our future."
In 2011, the British Government commissioned the Leveson Inquiry. That Inquiry said, "The evidence clearly demonstrates that, over the last 30 to 35 years and probably much longer, the political parties of UK national Government and of UK official Opposition, have had or developed too close a relationship with the press in a way which has not been in the public interest". That politicians considered that their control of the supply of news and information to the public, in return for the hope of favourable treatment by sections of the press, was "necessary to counteract the attempts of some sections of the press to discredit their motives and distort the policies that they seek to promote". When he was asked why he was so opposed to the European Union in an interview a few years ago, Murdoch famously said: "That's easy. When I go into Downing Street they do what I say; when I go to Brussels they take no notice."
There have been numerous commentaries examining the impact of corrosive criticism by the British media on the public perception of institutions. It is a fairly straightforward point: you let the media attack institutions, including the judiciary, over time, trust in the institutions will erode. A judiciary which is not protected, which is underpaid and which feels undervalued, over time, it will take its toll. Britain may be able to face all of this and still be successful. We will not be so lucky. The changes in Britain have not been for the better. And we have decided, consciously, not to go that way. We are upholding standards that have gone down in Britain and have led to a loss of respect and coarsening of society.
The Dutch Prime Minister this year described Britain as a country that "has collapsed – politically, economically, monetarily and constitutionally". Britain may well succeed despite reaching a situation where it was described in these terms. It is one of the largest economies in the world. It has the capacity to deal with the issues it faces and succeed. But for us, if we are ever in a situation where a serious person like the Dutch Prime Minister describes us as a collapsed state, we will truly be in trouble.
Let me turn from this larger background, to the specific: on the offence of scandalising the Courts. I think I have been clear to Members why I reject the British approach. And as for the British High Commissioner, I think he should spend some time studying the facts. We have a good Judiciary. It can be world-class. Let us make it happen. This Bill alone is not going to make it happen. But it is a part of the total picture.
Mdm Speaker, apart from setting out the tests on contempt, there are also a number of provisions of general applicability. First, clause 12 of the Bill sets out the maximum punishment for committing contempt. Currently, the common law imposes no limits on punishing an offender for committing contempt of Court, although certain statutory limits are imposed on the State Courts.
Clause 12 sets out what the maximum punishments are. The Court of Appeal and High Court can punish contempt with a fine not exceeding $100,000, or not exceeding three years of imprisonment, or both. For other Courts, the maximum punishments are lower, namely, a fine not exceeding $20,000, or not exceeding 12 months' imprisonment, or both.
These are maximum punishments. It is for the Courts to determine the appropriate punishment, after taking into account all the facts of the case before them, for example, how serious or aggravated the conduct was. These maximum punishments apply to all types of contempt, including those who fail to comply with Court orders, some of which involve corporate defendants and potentially large sums of monies. For example, they could have moved millions of dollars in contempt of Court. The maximum punishments are not far off from punishments which have previously been meted out by our Courts for contempt.
Earlier this year, the Court of Appeal sentenced a man to eight months' imprisonment for disobeying a Court order to pay his wife maintenance and for failing to pay her share of matrimonial assets in divorce proceedings.
The prescribed maximum punishment must take into account the possibility of even more egregious acts of contempt being brought before our Courts and also repeated contempt – second time, third time, fourth time. As I said earlier, former Chief Justice Chan Sek Keong had also requested that the statute set out the limits.
Second, the Bill provides that contempt of Court can be committed in Singapore, even if some of the acts had occurred outside Singapore. That is similar to criminal law in Singapore in other contexts as well. We live in an increasingly interconnected world. Contemptuous conduct can occur outside of Singapore, but its harmful effects on the administration of justice may be felt in Singapore and by Singaporeans, for example, if a plaintiff decides to wage a media campaign against the defendant from outside Singapore, when proceedings are ongoing in Singapore, or where one party prevents a witness from travelling to Singapore to give evidence in a Singapore trial. But, of course, all the limbs as to what amounts to contempt must be satisfied.
Where contemptuous articles are published through the Internet, contempt of Court is committed if it is accessed by a member of the public in Singapore. Under clause 19 of the Bill, for publications taking place outside Singapore, the publisher is not guilty of contempt if he or she did not know and had no reason to believe that the publication would be seen or heard by members of the public in Singapore. Contempt of Court is also committed where the disobedience or failure to comply with our Court's order occurred outside Singapore. The key test is whether the contemptuous act directly interferes with, obstructs or poses a real risk of interference with or obstruction of the administration of justice in Singapore. There is no reason why a person should be permitted to circumvent contempt laws by publishing contemptuous statement or performing contemptuous acts overseas if the intention is to impact in Singapore.
Third, there is a need to provide a quick remedy that would allow contemptuous material to be removed before widespread harm is caused. Clause 13 of the Bill permits the Attorney-General (AG) to apply to the High Court for leave to direct a publisher to not publish, or stop publishing, material that is contemptuous. The AG must be satisfied that it would be in the public interest to do so before making such an application. The High Court will grant leave if, prima facie, the identity of the publisher and the contemptuous nature of the material are shown. The author of the statement or the publisher can apply to the High Court to set aside or vary the directions. If the publisher takes the view that it is not contemptuous, he can apply to Court to set aside the direction or order. If the Court takes the view that the material is not contemptuous after hearing the publisher, the publisher would be free to publish the material without restriction.
Fourthly, there is a defence of innocent publication or distribution under clause 18 of the Bill. A person, who is not the author, but otherwise has control over a publication would not be guilty of committing scandalising contempt or sub judice contempt, if the publication or distribution was done without that person's authority, consent or knowledge; and if that person had acted with due care or caution.
Finally, the Bill has written the rules on contempt of Court into statute which I have already explained and all the available defences, to provide certainty to the public. To avoid ambiguity, the Bill provides that the Act, when passed, will prevail over any rules of the common law that would be inconsistent with the Bill. However, there is a need to maintain flexibility for the Courts to develop other areas of laws on contempt, especially given the pace of change, so the Courts have that power.
Mdm Speaker, we have a strong justice system, one that is well-respected by Singaporeans and those around the world. This Bill will help maintain the integrity of the system, and I have taken some care to deal with every clause and all the different arguments and explained our rationale. So, I know Members have come with pre-prepared speeches but I would ask that, in the light of the explanations that I have given, Members may want to consider your speeches and deal with the points I have raised as well. That will make the response much more efficient. Mdm Speaker, I beg to move.
*Question proposed. (proc text)]
Mr Christopher de Souza.
Madam, I rise in support of the Bill.
Over the past week, we celebrated Singapore's 51st birthday and the Olympic accomplishments of our athletes, including that of Joseph Isaac Schooling. We have been blessed with relative peace in our country. But we cannot be complacent.
During the State Visit to Washington DC, many people shared with me that current affairs, globally, show that the world is becoming increasingly uncertain and the course of events even more unpredictable. This is not confined to a particular country but is the general tenor of many regions around the world. Almost on a daily basis, we are engulfed by news of shootings, bombings, terrorist attacks and political unrest. Against such a capricious backdrop, how can Singapore retain its unicorn-like uniqueness? How can we maintain this crucial stability as a nation? How? We must deploy and use a workable formula. And part of this formula includes strong institutions.
Our state institutions, also known as Organs of State, are respectable and respected. One such institution is our Judiciary. The acclaim of our Judiciary within the region, and, if I dare say, its increasing respect in the world, has allowed for the setting up of the SICC. Another natural consequence of the strong rule of law is the growing stature of the SIAC. These are classic examples of the consequence of the strong rule of law. A direct result of such international recognition of our Courts and the application and development of Singapore law through our Courts have encouraged economic investments in Singapore.
Let us face it. International and Singapore investors have the assurance that their contractual rights will be recognised and adjudicated upon by an impartial, incorruptible set of Courts in Singapore, which is largely viewed as competent. The rule of law in Singapore is alive and vital for stability.
But let us drill down on what this actually means. It means that the Singapore Court must be given the space and intellectual autonomy to apply Parliament's intentions which reflect the collective will of the people in the cases that are heard before it.
Therefore, the Court's reputation and how it is perceived by members of the public are critical. Why? Because if untruths are allowed to flourish, which run the risk of impugning the reputation of an Organ of State, such as the Judiciary, this will jeopardise the ability of the Courts to act as effective adjudicators of rights, whether to private citizens or bodies corporate.
So, let us face it. Our Judiciary plays a key role in the stability that Singapore enjoys. Do we want to preserve that by putting in measures to protect the institution, which is the intention of this Bill, or do we want to weaken that by allowing statements that risk the Judiciary's ability to dispense and be seen to dispense with justice? That is the hard junction that we are at. What we decide today will impact this stability we hold dear.
Let us face one more fact. What this Bill seeks to do, from a macro point, is to introduce legal mechanisms to preserve the already excellent reputation of the Singapore Courts. Where is my authority on this point? In a survey conducted at the end of last year, 92% of Singaporeans have trust and confidence in our legal system, and 96% of Singaporeans agree that Singapore is governed by the rule of law.
This is why I stand, Mdm Speaker, in support of the Bill. A strong Judiciary, through which justice is not just done but also seen to be done, is of central importance for Singapore to reach SG 100. With that set out, let me now drill down into certain elements of the Bill which, in my view, are justifiable.
The Bill sets out what would amount to "scandalising the Court". These are such comments that can erode the public's confidence in the judicial system, if not checked. It is a form of contempt of Court. When faced with scandalous allegations, it is difficult for judges to rebut them. Some have commented that the inability to scandalise the Judiciary infringes freedom of speech. Really? Does it really? The law of contempt does not disallow criticisms of judgments. Fair criticism is allowed. What the Bill seeks to protect is the public's confidence in the administration of justice by disallowing allegations that the judge is privately motivated or partial. But, if you have something fair to say in criticism of the judgment, you can. Furthermore, if you think the judgment is wrong, an appeal can be filed if the client decides to.
I studied the Petition. It seems to suggest that the test for when an allegation scandalises the Court should be that there is a "real risk" that the allegation or assertion scandalises the Court rather than a risk that the allegation or assertion scandalises the Court. While this argument may be well-meaning, I am afraid I am unable to agree with it.
What is the difference between a risk and a real risk? I read and reread paragraph 10 of the Petition. It seems that the formula proposed is to insert real before risk. Let me drill down on this.
A risk, by itself, already means that there is a possibility that the Courts will be scandalised. Should that not be sufficient? That we do not want an untruthful allegation or a scandalous misrepresentation to be made against the Court, such as to risk the ill-repute of the institution, is the intent of this law. And as I have said above, we are starting from high ground; the Courts are already well-regarded as impartial adjudicators of rights. All we seek to do is to preserve this. And even though we are preserving and protecting the repute of the institution, an individual can still offer fair criticism of judgments.
Furthermore, criminal statutes, generally, do not have qualifiers, such as "real". In the Penal Code, the offences that criminalise negligent or rash acts that endanger lives and safety do not say, there must be "real negligence" or "real rashness" or even "really endangering".
Instead, the statutes read like this: "Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished…" under section 336, Penal Code, Chapter 224. And another quote, "Whoever causes the death of any person by doing any rash or negligent act amounting to culpable homicide, shall be punished" under section 304A, Penal Code, Chapter 224.
The statutes are clear in this way, without qualifiers, such as "real". We need to ensure that we can act fast if there is a risk. That should be the only pertinent question. If there is no risk, then there would be no danger of lowering public confidence in our Judiciary. But if there is a risk, then do we want arguments on whether it is a real risk or a risk to hinder effective action under the statute? After all, cases still have to proceed when untruthful statements are swirling around. Cases do not halt just because it receives fair or unfair attention. And at this stage, I declare my interest as a practising advocate in Singapore at the Singapore Bar.
In a dynamic Court room setting, Madam, time is of the essence, cases do go on. This Bill gives effective tools to preserve the repute of our Courts. Do we want to be distracted by every current question, such as real risk or risk, especially when time is of the essence? I think the answer is plainly obvious.
I started my legal career as a judicial officer working with exceptionally capable and committed judges of the High Court and State Courts. At a young age, it was impressed on us by exemplary senior judges, like Justice Chao Hick Tin, Judge of Appeal, that our decisions had to be well thought through, fair, impartial, thorough and even in language. Justice Chao still possesses these traits and still sits on the Court of Appeal. Yes, we can afford protection to the courts. We have to, in order to preserve the rule of law and the good standing of the Singapore Judiciary. This protection should be reciprocated by the Courts in the form of impartial and well-considered judgments of even language. For this, role models, such as Justice Chao, Judge of Appeal, are key.
Back to contempt of Court. You see, a little doubt can go a long way to cause irreparable damage. Hypothetically, there may be a situation in which the risk of that publication is bordering on, what may be called a small risk. But this insidious publication is part of a host of other publications released at almost a daily rate. What if that happens? The cumulative effect may lead to the last straw on the camel's back that shakes the public's confidence in our judicial system. Would we want such a situation in which the intention of this Bill cannot be borne to fruition? The point I am making here is that we would never be able to predict what this last straw is and when it will be placed on the camel's back. The answer to this question would most probably differ even among a small group of well-meaning commentators. Just as "little strokes fell great oaks", let us not allow cumulative small risks to cause the public's confidence in our Courts to fall.
I conclude by going back to my point on the contempt of scandalising the Court. What do we really want? An institution upheld for the stature it holds or a blanket licence for people to denigrate it? Do we want to cultivate an ecosystem which allows risks but not real risks to scandalise the judiciary? What if one day those risks add up and cause a freefall of the Court's reputation in the eyes of Singaporeans? What then? Turn back the clock? It would be an arduous task. We are today preserving the repute of the Judiciary and I support the Bill.
Ms Sylvia Lim.
Mdm Speaker, I rise to register the Workers' Party's (WP's) objection to this Bill. As acknowledged by the Ministry, our existing law on contempt of Court already protects the due administration of Justice. The law is to be found in case law and it has worked thus far. I have seen no evidence of the law's inadequacy. While codification of the contempt laws is not of itself objectionable, there are several things abhorrent about this Bill and the way it is being bulldozed through Parliament.
The WP rejects the Bill as we reject several of its key effects, such as: (a) unnecessarily lowering the threshold for what amounts to scandalising the Courts; (b) muzzling discussion on pending Court cases while giving the Government immunity to say what it deems fit, however prejudicial; and (c) the potential utilisation of the state machinery to intimidate Singaporeans who, in good faith, wish to discuss current affairs.
Madam, in our view, and contrary to what the Minister asserts about protecting the common man, this Bill will protect the ruling classes at the expense of ordinary citizens. My party colleagues will elaborate further on our objections. For my part, I will focus on two aspects: (a) the Government's inaccurate characterisation of the Bill as largely business as usual; and (b) the self-serving nature of the Bill for the Government and, in particular, how the Bill is designed to protect and empower the Minister himself.
Madam, first, let me talk about the Government's characterisation of the Bill. In my view, the Government had not been frank in its characterisation of the Bill as nothing more than a consolidation of the existing law and a crystallisation of processes. According to the Ministry of Law (MinLaw) press release on 11 July, "The Bill will consolidate the key elements of the law of contempt into statute. The boundaries of contempt, what is permissible or not permissible to do or say, will not change".
According to the Minister for Law before the Sitting, he has said that the law on contempt will remain broadly the same. Is this true? I am glad that today the Minister has acknowledged that at least one clear change is being made under the Bill in relation to clause 3(1)(a), where it is stated that a person scandalises the Court if he publishes any matter or does any act that imputes improper motives or alleges impropriety of any Court and that publication or act poses a risk that public confidence in the administration of justice would be undermined. This is a clear change from the existing case law, which is that, it is only contempt if such statement or act poses a real risk that the administration of justice will be undermined.
The test of real risk has been explained by the Court of Appeal in the Alan Shadrake case to mean that the risk must not be remote or fanciful. By changing the test to requiring the offending statement or act to carry just a risk that public confidence in the administration of justice would be undermined, the Bill has lowered the bar for contempt of Court.
I have not read anything that says that the Court of Appeal or any Court has recommended that it needs more protection in this regard. Thus, I am wondering whether the Minister in his own words is "chasing shadows". After all, scandalising contempt is still being retained in our laws so long as there is a real risk that public confidence in the Judiciary will be undermined.
Madam, another significant change is the draconian enforcement muscle being given to the Government. A new power is given to the AG to issue a non-publication direction. Under this new power, the AG may issue such a direction to a person to stop publishing something if the AG is satisfied that it is in the public interest to do so. Disturbingly, the Police are also being brought in to investigate contempt allegations. I will speak more about this later.
Madam, the Government had earlier said that this Bill does not change the law, but this is clearly not so.
The Ministry has also been insisting that stakeholders were actively consulted on the Bill. How far is this true? What does active consultation mean and who are these stakeholders? This Bill will impact not just selected stakeholders like judges, lawyers or bloggers, but society at large. As pointed out by the Court of Appeal in the Alan Shadrake case, the law of contempt operates against a broader legal canvas that touches on freedom of speech which is enshrined under Article 14 of the Constitution as a Fundamental Liberty. Given how the Bill will impact society as a whole, there should at least have been a proper public consultation before the Bill was tabled in Parliament. Was there?
What I know is that the Bill came up for First Reading on 11 July. It was only the next day, 12 July, that the Bill was put up on the Government feedback portal REACH. It was also only on 12 July that the Law Society sent out an email asking Council and all Standing Committees of the Law Society for feedback by 18 July to enable the Minister to prepare his Second Reading speech. Is this what is meant by active consultation, to ask people for their feedback after the Bill has already been tabled in Parliament?
Madam, there are several disturbing aspects of this Bill that consolidate the powers of the Executive Government, the AG and the Minister that are simply not acceptable, if we want to call ourselves a democratic society.
First, clause 3(4) introduces a new exception to sub judice contempt which can only be used by the Government, and I would like to quote the phrasing, "A statement by a person on behalf of the Government about an aspect of a pending Court proceeding is not contempt if the Government believes that such statement is necessary in the public interest." What is this exception for? Who is this exception for?
Earlier, the Minister gave examples of infectious disease outbreaks and bank runs. But when one looks at the illustrations in the Bill, two recent incidents spring to mind. Illustration 1 covers a Government statement about the circumstances leading to the death of a person when the Coroner's inquiry into the death is pending. To my mind, this is a striking reference to the Minister's utterances on the Benjamin Lim case. The Minister had strongly criticised the President of the Law Society for speaking out, but said that public officials like himself, on the other hand, could make statements.
Illustration 2 may refer to the Thaipusam riots in 2015 where three men were charged with disruptive behaviour. The Minister again made comments on what the three accused persons had allegedly done while their criminal cases were still pending. He told the media that one of the men had assaulted the Police and all three had used vulgarities, matters which were then yet to be decided by the Courts.
Therefore, would the Minister confirm the exception in clause 3(4) is really meant to benefit himself? Has he been facing accusations that he has acted in contempt of Court and wants blanket licence to say what he likes?
Madam, the other disturbing aspect is that under this clause, the Government can make statements on pending cases so long as the Government believes that such statements are necessary in the public interest. This means that the Government will be sole judge of what is necessary; the test is subjective and the Government's assessment is not open to challenge.
But the existing law is clear that the Government is subject to the contempt of Court laws. One of the only reported cases of sub judice contempt was in 1967. That case was brought by a student activist Mr Lau Swee Soong against the then Minister of the Interior and Defence Dr Goh Keng Swee. Dr Goh had issued a press release after a student demonstration on 4 November 1966 and Mr Lau unsuccessfully brought an application for contempt of Court against Dr Goh. Even though Mr Lau's application was dismissed by the Court, Justice Choor Singh was careful to state in his judgment that: "It does not follow that a statement made or issued by a Government Minister can never constitute contempt of Court or that the Government Minister should never be punished for contempt of Court. A Minister of the Government is not above the law and if a statement made by him is calculated to prejudice the fair trial of an accused person and if the risk of interference with the proper administration of justice is a real and grave one, such a contempt will be met with the necessary punishment in order to restrain such conduct."
Madam, the present Bill replaces the oversight of the Courts with a subjective test of what the Government believes is necessary in the public interest. This is a change in the law which will give the Government practical immunity.
I come now to my next point – the increased powers given to the AG under the Bill. Under clause 13, a new power is given to the AG to issue a non-publication direction to the publisher of any matter to refrain from publishing it if the AG is satisfied that it is in the public interest to do so. Disobedience to such a direction carries a fine of up $20,000 or imprisonment of up to 12 months, or both.
On the face of it, the AG can only issue the non-publication direction with the leave of the High Court. But disturbingly, the High Court's hands have been tied in this matter. According to clause 13(7), once the AG shows that the case satisfies certain conditions, the High Court must grant leave to the AG to issue the non-publication direction. This lack of discretion given to the Court is in sharp contrast with the discretion given to the AG under clause 13(1) to commence proceedings. The Ministry said that there was active consultation on the Bill with stakeholders including the Judiciary. Did the Judiciary concur with the wording of clause 13(7)?
Madam, the AG does not always get it right in deciding whether or not to commence proceedings for contempt of Court. For instance, in the case of Public Prosecutor vs Au Wai Pang or Alex Au, Mr Au was cleared of contempt for one of the two statements which the AG began contempt proceedings against him for.
Finally, Madam, I am most worried about how Part V of the Bill brings the Police into the picture. The Bill provides that the Police may now investigate potential offences under the Bill. Clauses 22 to 24 enable the Police to arrest suspects, take statements and use all powers available to it as it would when investigating an arrestable case under the Criminal Procedure Code.
In recent years, we have been talking so much about the heavy workload and manpower shortages faced by the Police. Why are we getting them involved in yet another non-core function when they should be focusing on keeping us safe from rockets from Batam? More fundamentally, what are Singaporeans supposed to expect? Will the Police knock on your door for a critical comment that you have just posted on Facebook?
This is not a fanciful scenario. Recently, seven to eight Police Officers turned up at a house of an activist being investigated for breaches of the Parliamentary Elections Act for postings on a personal Facebook page. Such a spectacle, if applied to this Bill, will clearly have a chilling effect on public discourse.
If this law had been in place when the Law Society President had spoken about the Benjamin Lim case, we might have seen a spectacle of the Police raiding his home for possible offences relating to sub judice contempt. Are we not using a sledgehammer to kill an ant? It would be intimidating not just to persons on the receiving end of such investigations but to society at large. The upshot of reducing the role of the Courts and vesting draconian powers in the Executive is to leave Singaporeans at the mercy of administration discretion. We would be one step closer to being a Police state.
Madam, we should reflect on the President's Address in 2016 setting out the Government's aim of Singapore being an exceptional nation. Are we an exceptional nation when we say that our professionally trained judges need to be protected from public opinion? Are we an exceptional nation by making Government officials exempt from contempt laws? To me, these are matters we should be ashamed of. By all means, uphold respect for the administration of justice, but laws which protect the ruling elites at the expense of ordinary Singaporeans have no place in this House.
Mr Kok Heng Leun.
Madam, I will be speaking in Mandarin for most of my speech.
(In Mandarin): [Please refer to Vernacular Speech.] Mdm Speaker, thank you for the opportunity to speak on such an important Bill. To a newcomer like me, today is very special. Earlier on, we witnessed a very exciting and passionate moment. However now, we are debating a Bill which hit many nerves.
First of all, I do believe that the Bill can, to a certain degree, ensure that the Court's orders are obeyed and providing legal sanctions on individuals who disrupt and impede the administration of justice.
Secondly, the Bill aims to enshrine the integrity of the Court in the public eye, so that we – both the public and the Government – continue to hold it in the highest esteem as a fair arbiter of disputes. As such, the terminology used in the Bill must be clarified so that we collectively understand them and adhere to the Bill to the letter of the law.
Furthermore, as the Bill states, it serves to protect the people across all strata of society, be they large corporations and people of standing, or the common man on the street. In the situation where they are involved in a Court proceeding, this Bill protects them and ensures they are given a fair trial that is untainted by public discussion on the case at hand.
Hence, while I am not fundamentally opposed to codifying the law of contempt into the statute, I am concerned that the current provisions of the Bill may unintentionally result in undue restriction on legitimate debate of important matters that affect the public. This is specifically in relation to sub judice and contempt by scandalising the Court.
Before I elaborate on my reasons for saying so, I would like to express my gratitude to the Minister for providing some clarification on what has remained fundamentally unchanged in this codification of the Bill. As I understand, there are two main changes to note, specifically: first, lowering the test for scandalising the Court from the previous term, "real risk" to just "risk"; and second, investing more power in AGC in this Bill with regard to contempt of Court. I will discuss these areas of concern in my speech and hope the Minister can clarify.
Mdm Speaker, I believe the House can agree that this is not an esoteric Bill. This Bill has a wide-ranging impact on the public's ability to legitimately comment, discuss and debate on matters of public interest that affect each and all our lives. The Government's encouragement of active citizenry has seen more Singaporeans becoming increasingly involved and interested in public matters, with individuals and civil societies alike stepping up to raise – if not address – concerns. In many ways, their commitment to the betterment of society has helped the Government make some very good decisions in the interest of the public. Likewise, the petition that I have submitted on the Bill highlights the concerns of many Singaporeans with regard to how it will impact their lives and society at large.
Let me now speak on the provisions of the Bill dealing with sub judice. I will give some examples to demonstrate how the public has benefited from discussions on pending Court proceedings.
The first is the Dominic Lee case. Dominic Lee was a full-time National Serviceman who passed away in a training accident due to an allergic reaction. Public discussion on Dominique's case had, in part, led to the Singapore Armed Forces reviewing and improving their safety management.
The second is the Benjamin Lim case. Considerable public outcry and concern over the death of Benjamin Lim had also led the Ministry of Education and the Singapore Police Force to review their procedures when the Police conduct interviews with young persons. In particular, I wish to highlight Acting Minister Ng Chee Meng's Ministerial Statement on this matter. The Minister acknowledged that questions and concerns were raised as to whether Benjamin's school's protocol was adequate in protecting Benjamin. The Minister also said that such public concern was fully understandable, but had chosen not to respond earlier because a Coroner's inquiry was about to be held; in other words, comments made on this case could be considered sub judice. The public concern over Benjamin Lim's case led to the Police reviewing their procedures when interviewing young persons.
Again, Mdm Speaker, as the Minister has himself acknowledged, there is value in permitting the public to discuss pending Court matters or, in this case, when there is a Coroner's inquiry. In fact, I believe it to be necessary for the public to have the right to comment on such cases, especially when the issues intimately affect their lives.
Although the purpose of the Bill is not to ban discussion on pending cases except for that which might potentially be sub judice, unfortunately, a combination of factors might lead the public to err on the side of caution by not commenting on cases at all. These include the severe punishment, the overreach of who may be liable for contempt, the vague definition of sub judice – which I will touch on later – and AGC's ability to obtain a Court order to require a takedown of potentially sub judice publications.
One issue with the Bill is that it prescribes severe and disproportionate punishment for contempt of Court. Under the Bill, the prescribed maximum punishment for contempt of Court of up to $100,000 and/or a term of imprisonment of not more than three years is exceedingly harsh and disproportionate for a non-violent offence. In contrast, a person who has voluntarily caused hurt or caused another person to be unconscious is only punishable for no more than two years in prison and/or a fine of not up to $5,000. Such high penalties might deter the public from participating in discussion or be imposed on members of the public who participated unknowingly.
Under what circumstance would a person be liable for contempt?
Mdm Speaker, the definition of what constitutes a "publication" with respect to the Bill is also a cause for concern. According to the Bill, a person is said to have "published" if he merely disseminates or communicates by oral, visual or electronic means a potentially contemptuous matter to a member of the public.
To put it simply, if I shared a potentially contemptuous publication on Facebook, even if I had no intention to interfere with the course of any pending Court proceedings, I could potentially be prosecuted. Such a wide definition of the term "publication" further gives the public reason not to comment on pending Court cases.
What constitutes sub judice?
The Singapore Court has only had one instance where it contemplated the legal requirement for sub judice to be made out. In that case, it was held that a statement would only be sub judice when the risk of interference with the proper administration of justice was a real and grave one.
Hence, I would like the Minister to clarify what would pose real risk to, or prejudice and be sub judice to the whole proceeding.
To give an example, if a relative of the accused were to write on her Facebook page, "I hope the truth will be revealed", will she be in contempt of Court? It would seem like a very reasonable post to make. Or what if the post said, "I don't agree with how the case is being handled"? Would that be considered "fair criticism"?
Let me share a real-life example to elaborate on this. As an art-maker, in 2014, I made a work entitled "Both Sides now", dealing with end-of-life issues. During the same period, the case of Yang Yin, the ex-tour guide accused of misappropriating $1.1million from a wealthy Singaporean widow, made the news. As part of my project, we held public talks at outdoor spaces, one of which was on wills and the Lasting Power of Attorney (LPA). Inevitably, given how the case was topical, there were comments made by audience members in a public space. Would their comments have been considered sub judice?
Within civil society, certain ongoing campaigns aim to protect the interest of the common people, even if they are minorities or belong to marginalised groups. I am very glad to hear from the Minister that, if a civil society group that advocates the abolishment of the death penalty and there was a Court case that sought to repeal the death sentence, their campaign would not be seen as sub judice.
The same question can be asked of humorists Mr Brown, Mr Miyagi and the satirical site, Newnation. They are often quick to comment on issues of the day with hilarious effect, which many Singaporeans enjoy. These light-hearted moments, sometimes on current Court cases, do nothing more than raise a chuckle. Will our local funnymen be in contempt of Court for their sense of humour?
Mdm Speaker, public interest is better served when the public is not prohibited from discussing important public matters arising from pending Court cases. In the Dominique Lee and Benjamin Lim cases that I have mentioned, public concern and outcry over the pending Court cases have encouraged the authorities to re-examine internal procedures and policy. We, as a nation, would be much poorer off without such discussions.
Mdm Speaker, another point which I wish to make pertains to the empowerment of the AG to apply to the Court for an order to require particular persons to take down their publications, if the AG deems it in the public interest to do so.
What is of particular concern is that the order may be granted even though such publications may not actually pose a "real risk" in undermining the public confidence of the administration of justice. The publications are in contempt as long as the AG deems them so at first sight.
Furthermore, the AG does not have to inform the person to whom the order is directed at before it applies to the Court. The affected person, therefore, cannot be present at the Court application. One would have thought that the Court would have benefited if it was able to hear from both parties as to whether the takedown order should be granted.
From what I know, the accused should only be tried by evidence led in Court, and not by extrajudicial evidence. Mdm Speaker, there should be enough substantive safeguards within our legal system to protect the right of the accused, including access to counsel and a highly qualified Judiciary – a judiciary more than capable of insulating itself from the taint of extrajudicial materials and comments.
The sub judice rule also seeks to prevent witnesses from being influenced by extrajudicial material. However, witnesses' testimonies are not the only evidence which the Courts have before them. Evidence given by witnesses must also be tested against the body of objective documentary evidence tendered in Court. Furthermore, the Court has the discretion to evaluate the veracity of the evidence before relying on it.
Given the above, it is not clear how compelling the justification of the sub judice rule is, especially when we have an eminently qualified Judiciary that can ensure that evidence which have a greater prejudicial rather than probative value is not admitted at trial.
Another point I would like to raise is the exception given to the Government. The Bill states in clause 3(4) that a statement made by a person on behalf of the Government on a pending Court proceeding is exempt from contempt of Court if the Government believes such a statement is necessary in the public interest. I would like to seek clarification from the Minister on this exception.
While I recognise the importance of having the Government make statements when necessary in the public interest, this clause seems to imply that the Government would be the final arbiter of facts and what constitute public interests. I believe it is necessary to remind ourselves that it is the Court, not the Government, that is the ultimate arbiter of facts in all disputes, both among civilians, and between the Government and the people. It is for this very reason that we are debating this Bill, so that it reinforces public trust in the Court and protect its integrity.
Given that the Government's statement undoubtedly wields great impact on the people, will its comments pending Court proceedings influence witnesses?
Furthermore, new evidence might later emerge, either through the trial or through other sources, which the Government may not be privy to at the time of making the statement. This might render previous accounts given by the Government to be factually inaccurate. In such cases, would such an account of wrong facts, even if it was done in good faith, not be prejudicial to the parties involved in the Court proceedings?
While this Bill provides opportunities and defence for the Government and the AGC to voice their positions, should there not be provision of a defence for public interest raised by individuals or the common man?
Lastly, I would like to touch on the part on scandalising the Court. I would like to thank the Minister for clarifying why we need to lower the test for scandalising the Court. What I want to ask is, after lowering the test, what has changed exactly? For example, would what was allowed before be no longer allowed in the future? Can the Minister explain more?
(In English): Mdm Speaker, I have detailed my concerns pertaining to the Administration of Justice (Protection) Bill in my speech. There are various clarifications that the Ministry has provided and can provide in layman's terms, so that the public can better understand the impact of the Bill on their daily lives. Failure to do so will inevitably cause undue augmented fear in the public to discuss matters of public interest, in case they are accused of sub judice.
We have had clear instances where public debate is beneficial and constructive in that it guides institutions to relook at existing regulations and revise them accordingly for the betterment of all. It would, therefore, be helpful for the public and the House to have clear definitions of what the public can or cannot do in its own interest.
Mdm Speaker, I believe that the Bill is important in enshrining the powers of the Court and serving the public interest by allowing legal sanctions against anyone impeding the administration of justice. Nevertheless, the queries I have raised are not unique. They are shared by various members of the public via petitions, conversations, dialogues with bloggers, civil society people and art makers. Such discourses are essential in any healthy democracy. We need to protect the public space that allows us to seek clarifications and make suggestions towards the improvement of our institutions, modus operandi and guidelines which, in themselves, are meant to protect public interests.
A meaningful dialogue goes a long way to help us understand complex issues better and, especially one that holds so much interest at stake. More consultations and earlier consultations would help make people better informed. In fact, we ought to think about how to make all these conversations that we have here reach out to the public.
I am reminded of a game that I have played in theatre called the "Trust Circle" whereby there will be a person in the centre with people around him. As he falls, the people will hold him up. It is a game that is about trust. But what is important as we learn through this game is that the people around them must have the responsibility to take care of the person in the middle, but the person in the middle must be able to have the tenacity and the strength to take the robustness of this exercise. And that will only help to build a very robust and strong Judiciary system.
Mr Patrick Tay.
Mdm Speaker, I rise in strong support of the Administration of Justice (Protection) Bill which consolidates the key elements of the law of contempt into statute, which is currently based on previous Court rulings. It provides greater clarity and certainty on what constitutes contempt. It will also ensure that Court orders are obeyed, that the right to a fair trial is preserved for everyone, and that the trust in the Judiciary is not eroded by attacks on its integrity.
The new Bill sets out the definition of contempt of Court, defences available, as well as a framework of punishments that can be meted out. I appreciate this Bill. On the whole, it is a positive step forward. However, I have two observations and suggestions to make, not to reduce its weight and its punitive effect, but to further augment and strengthen the Bill and for it to stretch further.
First, speaking as a labour Member of Parliament and practitioner of employment and industrial relations law, I had hoped that judgments awarded by the Industrial Arbitration Court (IAC) which is presided by a High Court judge would be covered within the definition of "Court" in section 2 of this Bill to give full force and weight to ensure compliance of the judgment.
I say this with conviction because I was representing one of our unions in IAC two years ago where the Court had given a judgment for the union. In that case, the employer who was supposed to make due payment failed to do so despite reminders and dragged their feet for an extended period of time, to the detriment of the workers affected.
Although the Industrial Relations Act does provide for a specific procedure to follow for contempt proceedings, it is a two-step process which, I submit, can be better aligned with what is provided in this Bill and made more robust, effective and speedy.
In the same vein, the sanctions offered in this new Bill also create a greater deterrent effect on those who contemplate to ignore the judgment and not treat it seriously. I submit we can do more to better align what is provided in the Industrial Relations Act to address contempt of Court with what is provided in this Bill, which will become law once passed. I have sounded the tripartite partners prior to this Sitting and they are supportive of this.
Second, decisions and judgments by tribunals, such as the Small Claims Tribunal, Community Disputes Resolution Tribunal as well as the upcoming Employment Claims Tribunal, have also been left out of the ambit of this Bill. Taking into cognisance the fact that there are specific provisions in the respective legislation to address contempt, I submit that a more effective and robust enforcement and deterrence regime, such as those provided in this Bill, would have made enforcement of tribunal orders even more efficacious, expeditious and economical for the laymen to utilise such tribunals to resolve their disputes. In this respect, I urge more be done to strengthen and streamline the enforcement of tribunal orders and judgments. Notwithstanding, I strongly support the Bill.
Assoc Professor Mahdev Mohan. Not here. Assoc Prof Daniel Goh.
Mdm Speaker, I join my WP colleagues to oppose this Bill. As an ordinary person who relies on the law to protect my family, I find this proposed law casts too large and fearful a shadow on the whole of Singapore and diminishes my sense of security for my family.
First, the timing for this Bill is most unfortunate. The suicide of 14-year-old Benjamin Lim in January this year is still fresh in the minds of many members of the public. It was only five months ago on 1 March this year that Minister Shanmugam laid out the facts of the case in response to online statements and reported comments about the events leading to the suicide. The Minister was careful to point out that he consulted AGC to make sure he would not be in sub judice contempt. He also said that the Ministry of Home Affairs (MHA) would study how the Police and other institutions could respond in future to such allegations. Is this Bill the response that he had promised?
If it is, how can this Bill claim to merely codify common law rules when it is coming so quick on the heels of what the Minister had said in Parliament just five months ago? If it is, is the response not too fast, too furious, too hasty, given that the Benjamin Lim case is still pending? If it is, should such a Bill with all its terrifying consequences not be given an airing for public debate? Surely, given the potentially far-reaching impact of the Bill, all Singaporeans should be considered stakeholders to be widely consulted, and not just selected legal and judicial fraternities.
Reading this Bill as an ordinary person sends a chill down my spine. I sincerely hope this is not the intended effect of the Bill. The chilling part is sub judice contempt. The meaning of "publish" here is so broad that it covers personal electronic communication and social messaging between friends. It is also not clear what is meant by, I quote, "a real risk of prejudice to or interference with, the course of any Court proceeding that is pending".
For example, a young person has died in an event following the acts of public officials, and members of the public empathise with the parents' loss. Would I, as the father in question, be risking sub judice contempt if I asked fair questions about the event? Would I, as a concerned member of the public, be risking sub judice contempt if I questioned and criticise the authorities in good faith?
To make matters worse, clause 4 gives the Government blanket immunity from sub judice contempt. Illustration 1 of this immunity states that "a statement made by a person on behalf of the Government factually describing the events and circumstances relating to and leading up to the death of a person (such as the acts of public officials when a Coroner's inquiry into the person's death is pending) which the Government believes is necessary to address inaccurate and incorrect public allegations, is not contempt of Court". This is clearly referring to the Benjamin Lim case.
Conversely then, would concerned members of the public who made the so-called allegations in the first place be in sub judice contempt? But why should they be? What if the so-called allegations were questions concerning the factual matrix of the events and circumstances, for example, how many public officials were involved, what they were wearing, what they did, what they said, when they did what and said what and where? These so-called allegations are not known to be inaccurate and incorrect until the Government clarifies the facts.
Surely, by common sense then, when the facts are unclear on a case of great public interest, members of the public who question the factual matrix in good faith should not be in sub judice contempt. So, why does the Government get a special clause giving it blanket immunity and a special illustration in this regard? Why not the ordinary citizens, the vast majority of whom would only question the authorities on facts in good faith? In fact, a corresponding illustration should state "a statement by a person questioning or asking for clarifications on the facts of the events and circumstances relating to and leading up to the death of persons (such as the acts of public officials when a Coroner's inquiry into the person's death is pending) made in good faith on a case of public interest is not contempt of Court by virtue that such a statement constitutes fair criticism."
In fact, if this law is not to create a deathly silence among good citizens, then this Bill should include clarifying clauses with illustrations about what constitutes fair criticism and, therefore, is not sub judice contempt. By stating in opaque and ominous terms what the members of the public cannot say without stating what we can say, and, conversely, by giving the Government complete discretion that its officers can say almost anything, this law will scare the public into silence.
Scaring the citizens into silence is not something any Government should want because it breeds an inner contempt for the authorities and our public institutions. In the long run, this inner contempt, unexpressed thus inarticulate, invalid but uncorrected, will undermine trust of the Government. Instead of protecting the Police and other public institutions, as intended, this will ironically erode the foundation that gives the Police and other public institutions their strength: the trust of the people.
Trust is a two-way street and is built on the two-way traffic of communication that is often messy but ultimately coordinated. I am an ordinary citizen who would like to be able to express fair criticism and fair comment on events of public interest that concern me. Above all, as a father who would entrust my two sons to our education system and then the armed forces, I expect the same level of trust to be accorded to me by the Government to be able to express fair criticism and ask fair questions on cases that relate to my sons' safety. I, therefore, do not see the need for this law to be enacted. In fact, this law is not only unnecessary, it also gives the Executive unprecedented powers that would silence public discussion on the facts of cases of great public interest.
The status quo suffices. I was just sworn into this House when the public furore surrounding the Benjamin Lim case reached its crescendo in the online public sphere. Indeed, some unfair allegations were made, but a lot more fair questions and comments were also made, because everyone was concerned, parents were concerned. "What if it were my son?" "It could have been my son." "How could this have happened?" As a new Non-Constituency Member of Parliament still overawed by the moment of being elected, I saw Members of Parliament on both sides of the House picking up on the public concerns and posing questions to the Ministers for Education and Home Affairs, some with emotions audible in their voices. I saw the Ministers answering the questions factually and respectfully. I saw appreciation when the Ministers promised review of processes of investigation.
After the Parliamentary session, I saw the Singaporean public, ever so rational, calming down. For some, their questions were answered. For some, they were willing to submit their doubts to the truth-finding process. For others, questions remained and they continued to ask questions, but in more measured tones. Yes, there were those who were still unhappy, their prejudgment unshakeable. But on the whole, Singaporeans clarified their doubts and affirmed their trust in the Police and our public institutions.
The point I am trying to make here is that this episode saw beneficial communication between the citizens and the Government, and trust was affirmed, perhaps even deepened as a result. It would be a grave mistake to see the episode as an attack on the Government. The Government needs no protection; there was no attack. It was a process that righted and clarified the doubts and affirmed trust.
This is why this Bill is an overreaction. Imagine if this Bill were already law, in January this year. AGC and MHA would have had its hands full trying to warn members of the public genuinely concerned with the Benjamin Lim case that they were risking sub judice contempt. Otherwise rational citizens would get angry seeing the authorities trying to silence the affected parents and other concerned members of the public. Courts may issue a gag order, often to protect persons involved in the case and the judicial process, but it is a different matter when the Executive does the same, because it would be perceived as protecting itself. Fair criticisms, fair questions, fair comments would all be driven underground.
Members of Parliament would find it difficult to adequately represent people in their attempts to raise the issue in the House. The Government would have missed out on the perfect opportunity to clarify the facts and affirm its relationship of trust with the people through the most important communicative platform in the country: Parliament. Fewer allegations and misrepresentations might surface, many people would be technically free of sub judice contempt, but the doubts and questions, uncorrected and unasked, would have rotted in people's hearts into unexpressed contempt for the Government.
This is what I fear would happen when this Bill becomes law. It is utterly unnecessary, counter-productive and ultimately subversive of trust between the Government and the people. If the Government must insist on pushing through this Bill, then, at the very least, we should not be hasty about it. We need to talk, take more time to consult the people, talk about it, debate about the contents and rework it from the vantage point of ordinary citizens who seek the security of the law for their families. Mdm Speaker, I oppose the Bill.
Asst Prof Mahdev Mohan.
Madam, I thank the Minister for outlining what the Bill entails and what it will involve. Allow me to make three points at the outset in agreement with what the Minister has said and one point in connection with what I have just heard from various Members.
In agreement, let me say that ECHR jurisprudence should have no place in this Bill and I do not think anyone who studies ECHR, like some of us do, would think that it should have any place in how this Bill is devised.
Second, we should not heed the advice of any foreign government, especially a foreign High Commission settled in Singapore, as to what any Bill or domestic law in Singapore should say. These are two very important points.
The third point, Madam, is that I do not see a background ominousness about this Bill. I do not see a nefarious purpose to this Bill. What I and other fellow Nominated Members of Parliament seek are further clarifications. When I say there is nothing nefarious behind the Bill, I say this because I have seen and I was in Court at the time in 2010 when the former Chief Justice, whom the Minister mentioned, said that there was a purpose and a need for this Bill.
In his words, he said this: "Laymen and many lawyers have to read the case law or the textbooks to find out what the law of contempt is. Further, punishments for contempt of Court are unlimited and at the discretion of the judges… Putting the law in a statutory form will allow potential offenders to know what they can be in for." There is a legitimate interest in ensuring that the public, people at-large, know what they are in for. And that is an important purpose to have any statute codified in a Bill and then in law.
The Bill sets out, in one place, what the law of contempt of Court entails, the powers of the Courts and the limits on punishment that can be meted out. I agree with the Minister that we must guard against scandalous attacks on the Judiciary. And allow me to quote Justice Quentin Loh in Alan Shadrake vs AG. He said that when we determine whether there is contempt of Court, Courts must bear in mind that in Singapore, "we are a small, crowded, multiracial and multi-religious nation where information travels widely and where social tensions, if developed and brought to boil, will propagate." Not only is Justice Loh's statement good law in Singapore because of that decision, it is also good sense.
Madam, my concerns relate specifically to two clauses and, if I may, I hope the Minister will address these two clauses, or at least my concerns in relation to the clauses, for the sake of clarity and for the Parliamentary reports. I have a feeling that today's Hansard might be closely parsed and interpreted by the Bench and the Bar for time to come.
My concerns relate to three areas where the Bill departs from or tweaks Singapore law as it now stands. Let me reiterate again, we are not looking at comparative jurisdictions, we are not looking at foreign jurisdictions or international law. We are looking at Singapore law when I make these statements. When former Chief Justice Chan Sek Keong said we have to allow potential offenders to know what they can be in for, I look at clauses 3 and 13 and I would like to ensure that we get as much clarification as we can, even if that means restating what has been said before, so that we ensure that the Parliamentary record is absolutely correct, so that it can be interpreted by the Courts as we intend it to be interpreted.
The public should know the bright line that exists between the two types of speech: permissible speech which any member of public can say, which would not be contempt, as opposed to what would amount to contempt of Court. Lawyers and judges might understand this, but, in Parliament, I think we have a duty to ensure the public-at-large will also understand it because of what we say here today.
Most importantly, for me, if I may disclose my interest as a teacher and as a law professor who teaches Year 1 students legal method and system and legal writing, there is an interest for young students to know what they can or cannot say, for them not to imagine that there is a "gag" on any objective critique that they can make.
Let me begin with clause 3(a)(ii). In short, it says that an international publication that impugns the Court and poses a risk that public confidence in the administration of justice would be undermined, would be contempt. My only problem with this is that it departs from the High Court and the Court of Appeal in Alan Shadrake, which was the case I just mentioned earlier.
The Court of Appeal held that the appropriate test is that of "real risk". I understand that other Members, such as Mr Christopher de Souza has mentioned and made a good point as to whether there is really a proper distinction between "real risk" and "risk", or is it just a semantic distinction. I would say that if we were talking about it in the layman's sense, there will be no difference. But if we were looking at it in a Court of law, judges would legitimately find the differences between the two.
Allow me to quote this. Justice Andrew Phang, Judge of Appeal in the Alan Shadrake case at the Court of Appeal said this: "In applying [the real risk] test, the Court must avoid either extreme on the legal spectrum, that is, either finding that contempt has been established whether there is only a remote or fanciful possibility that public confidence is undermined on one hand; or finding that contempt has been established only in the most serious situations on the other."
Permit me, therefore, Madam, to ask the Minister the following points of clarifications, if I may.
One, could the Minister explain why the House or the Ministry would like to statutorily depart from a legal rule followed by the Apex Court? Again, the real risk test is Singapore law as it currently stands for scandalising the Court.
Two, are we moving backwards to a test which has a lower threshold by only using the word "risk"? I say this, for a moment as a lawyer, because I ask whether, looking from case law, we are moving to the "inherent tendency" test of years past.
Three, are we saying that a "risk" will be established if there is just a small likelihood?
Four, can contempt be established where there is only a remote or fanciful possibility that public confidence in the administration of justice might be undermined? It is my assumption that the Minister does not think that is the case. But, Madam, I would like a clarification as to what is the standard that should be applied for risk of scandalising the Court.
Next, Madam, if I may move to clause 3(1)(b) which deals with sub judice. I thank the Minister for explaining in detail that clause 3(b) does not change the law on contempt in Singapore. That puts my mind at ease as far as that clause is concerned.
I only ask one question and, that is, why the word "prejudges" is used in clause 3(1)(b)(i), and whether there is specific meaning to that particular word in the context of this clause. I ask this question because this particular word "prejudges", in the context of "sub judice", as to what would then ultimately be prejudice or real risk of prejudice or interference, comes, in my mind, from The Sunday Times case that the Minister spoke about earlier today. That is not a case that is followed in England or in any other Commonwealth law jurisdiction nor in Singapore. And I would assume that it is not an attempt for us to go back to that case because, under that case, the prejudgement principle states that prejudgement of a pending or ongoing case would amount to contempt regardless of how reasoned and temperate any criticism was. In short, it puts the threshold far lower than even "risk". So, if I may get a clarification, Madam, from the Minister that the real test is not just prejudgement, but prejudgement and actual prejudice or real risk of prejudice or interference.
Can I also get a clarification from the Minister, Madam, that members of the public can express strong opinions in good faith about pending cases as long as the dissemination of these opinions are not calculated to propagate a particular view which would cause actual prejudice or a real risk of prejudice?
Moving on to the next point, Madam. This looks at a point that has been spoken about today in the House and it is specifically with reference to clause 3(4) as to what the Government believes.
I note that this is a special exception for the Government. And in my view, a special exception for the Government while new to Singapore law – it does not exist in common law as far as the Government is concerned in Singapore – that special exception is permissible, but it must be balanced as to what would be then permissible for a member of the public for the purposes of parity.
Ministries should be shielded from unmeritorious contempt of Court proceedings where they speak or make statements in the public interest. The question that nags my conscience is what happens when Ministries speak beyond the three crucial areas that we have no doubt deserve that protection. I am talking about public order, public security and public defence. For those three areas, there is no question that the Government of the day as a whole, and the Ministries in particular, are best placed to figure what is necessary in the public interest.
If I may ask, what happens if a press secretary publishes a statement out of turn on a different matter, or if a Ministry makes a statement that it believes is necessary in the public interest but most Singaporeans disagree, and if an Organ of State, such as the Attorney-General or Auditor-General also thinks otherwise? If that is the case, what is the recourse that a member of the public or a concerned citizen would have in that context as far as contempt of Court proceedings are concerned?
Under our system of Government, which is based on the Westminster model, the task of being the final arbiter must fall on the Judiciary. Judges, after all, whom we all respect in this Bill, are entrusted with the task of ensuring that any exercise of state power is done within legal limits. The Courts, in my opinion, Madam, must be the final arbiters and the guardians. It is my impression that the Courts will have a place in actually looking at whether the Government has a belief, which is necessarily in the public interest, and, therefore, can be clothed by a protection or an exception in this Bill. That is my understanding, but I would like the Minister's clarification.
I ask this because most recently, in 2015, the current Chief Justice Sundaresh Menon said that the rule of law is the bedrock on which our society has been founded. And he mentioned again that one of its core ideas is the notion that the power of the state is vested in the various arms of Government and that such power is subject to legal limits. It would be meaningless to speak of power being limited were there no recourse to determine how and in what circumstances those limits can be exercised. Judges have the specific task of ensuring, Madam, that the arms of Government are held to the law and, in that sense, the ultimate responsibility for maintaining a system which abides by the rule of law must lie with the Judiciary.
This is especially important in a contempt of Court Bill, where we are talking about the respect for the Court, should they will not be the final arbiter? If I may ask the Minister to respond specifically to the question I just asked as to whether the Courts can play a role in ensuring there is no excess in terms of what the Government should believe is in the public interest.
Can I also ask, on a pure drafting point: can the Minister confirm that "Government", for the purposes of this clause, meaning when we say the "Government believes" or persons on behalf of the Government, the word "Government" refers to the Executive, that is, the President and the Cabinet Ministers? I ask this because the Interpretation Act does not define it so. It defines "Government" as the Government of Singapore, which might not be helpful in this case, because we obviously would not want to look beyond, I would say, the Executive, when we talk about what the "Government believes".
Finally on that point, Madam, I do note that there is no reciprocal public affairs exception. Some of us believe that perhaps that exception could be proposed when we suggested an amendment in that context. But may I just ask if the Minister can clarify that even if there is no reciprocal public affairs interest exception that people can rely on, that the Bill, as it currently stands, allows for avenues through which a member of the public can seek recourse if he or she has a good faith suspicion that a Court proceeding is tainted by impropriety or bias?
Madam, I have outlined the points that I have in terms of clarifications. When we look at this Bill, let me say again that there is certainly a need for the statute. Most importantly, in my mind, is because it is a long time coming. It was first outlined in 2010 at the Opening of the Legal Year by the former Chief Justice. So, there is a need for a Bill, where everything is consolidated in one place. But I must say that there are two points that I would like to make in conclusion.
The first is that when we look at the cases that the current Chief Justice and other Justices of Appeal have held, especially in cases like Alan Shadrake, the most recent case for scandalising the Court, the High Court case went up to the Court of Appeal. It is quite clear that the Courts are careful about saying how far the public can speak. They are careful to say that the judges have no interest in stifling debate. These are the words from Justice Quentin Loh again from the High Court in the Alan Shadrake case. He said that judges have no interest in stifling debate and, indeed, debate in the public interest, including of judges' conduct, that they are constitutionally bound to ensure that every citizen has a right to engage in such robust debate, and, in fact, especially debate is critical if it is about judges.
So, if we come from that perspective and we understand that the Judiciary is at the centre of a contempt of Court Bill, and certainly we should look at the most recent decisions, and it has to be strongly emphasised why we would like to depart from them.
Ms Rahayu Mahzam.
Mdm Speaker, Singapore is governed by the rule of law, which basically means that the whole society is subject to the law and there is an understanding that everyone needs to adhere to the rules set. This concept or doctrine of rule of law is, however, not so straightforward and the manner in which it is interpreted and applied in Singapore has been the subject of considerable debate. I do not intend to unravel this debate today but would like to highlight the point made by the late Mr Lee Kuan Yew in his oft-quoted speech in 1962 to the University of Singapore Law Society.
He highlighted the need to bridge the gulf between the ideal principle and its practice, given our sociological and economic milieu. He added that the acid test of any legal system is not the greatness nor the grandeur of its ideal concepts, but whether, in fact, it is able to produce order and justice in the relationships between man and man and between man and the state.
It is against this setting that I would like to make the following points.
One, our laws and rules need to fit the needs and norms of our society and we should not just follow what is set by other countries without appreciating our norms.
Two, the trust and confidence in our legal system, in particular our Judiciary, is exceptionally high and we need to do our utmost to preserve that standing.
Three, people, real people are significantly affected when orders of Court are not complied with and this Bill sends a strong signal that disobedience of Court orders will not be tolerated, especially by recalcitrant judgment debtors.
On my first point, I am of the humble opinion that we should be unabashed with the firm stance taken in relation to contempt of Court, be it by way of disobeying Court orders, sub judice or by scandalising the Court. Our society places great weight in not saying the wrong things and taking responsibility for what one says. This is actually a virtue. This means you have to think more about what you want to say and take ownership and responsibility for your words and actions.
It is not that uncertain. I do not agree that setting the law on contempt would inhibit robust discussions on matters of public interest. On the contrary, such laws would promote a more responsible discussion and reporting on matters before the Court at the appropriate time, which is probably after the trial, with the accurate facts when the facts have been determined. I have faith in our people finding the appropriate forum and manner to raise important and relevant issues that can improve our systems. We have always found a way to do it and will continue to do so.
I note that there have been concerns raised about the exception for the Government to make statements necessary in the public interest. I would highlight that though there are legal limits to these rights and the Government cannot just say anything that it wants, it is circumscribed by what is necessary in the public interest, and the illustrations in the proposed provisions also provide guidance on this.
With regard to my second point, I note that some have raised the argument that if our Judiciary is so well-trusted and respected, then why worry about sub judice and scandalising of the Courts? It is important to emphasise that such high levels of trust cannot be taken for granted. Even baseless accusations, especially if repeatedly made, can affect people's confidence in the Judiciary. We cannot allow for the erosion of this confidence.
The Minister for Law had earlier taken the time to explain that the proposed provisions do not prohibit fair and even harsh criticisms of decisions or reasoning of the Court. What is prohibited is very narrow. It is one thing to disagree with the decisions but another to allow for space to scandalise the Court. We may not see it now, but if we stop being less strict about what is said about the integrity, propriety or impartiality of our Courts, perceptions may be created, even if untrue. Over time, people will lose respect. If this happens, we will jeopardise the sanctity of judgments issued by the Courts.
Moving on to my third point. In the course of my practice, I have seen a significant number of Court orders, especially maintenance orders in the Family Courts, not being obeyed. I had to console and advise many clients on enforcement proceedings and had to face many clients expressing their disappointment with the paper judgments they received, which may be in their favour but did not improve the situation they were in. This is especially heart-wrenching when it involves issues relating to the children.
Significant reforms have been implemented in the Family Courts over the years to improve enforcement of Court orders, with more modes of enforcement of maintenance orders, such as attachment of earnings order. However, we still see judgment debtors who are simply recalcitrant. By putting the existing law clearly into statute and by raising the prescribed maximum punishment which can be imposed by the State Courts and the Family Courts, this creates a greater deterrent effect and sends a strong signal to recalcitrant judgment debtors.
I believe that the Bill will ensure that vulnerable parties like women and children, who are not receiving maintenance that they are entitled to, will receive the full protection of the justice system. In this regard, I would just like to seek a small clarification on one matter. The threat of a fine or imprisonment is a strong deterrent to the recalcitrant debtors but, ultimately, may not lead to the judgment debt being paid. Does the Ministry of Law have any further plans to make enforcement of Court orders more effective? Notwithstanding my request for clarification, Mdm Speaker, I support this Bill.
Mr Pritam Singh.
Mdm Speaker, at paragraph 17 of the Court of Appeal judgment in Alan Shadrake, the Singapore Court of Appeal notes that the balance between freedom of speech on the one hand and the protection of the administration of justice on the other, is at the heart of the law leading 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.
The Minister publicly remarked after the First Reading of the Bill that it merely crystallises the current legal position on contempt, and I quote, "does not create anything new", unquote. However, the drafting of clause 3 suggests this is 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 clear that clause 3 does, indeed, envisage a more stringent test than 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 pending Court proceedings, 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 scandalising contempt but not sub judice contempt.
Compounding this ambiguity is the introduction of the term "prejudgment", a term which 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 the Minister 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?
Mdm 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 it is typical of human behaviour to be safe rather than sorry. That alone makes this Bill bad law, negating its very purpose.
Furthermore, the concerns many Singaporeans have raised over the clause on sub judice contempt ought to bring Members back to the fundamental purpose of sub judice contempt laws 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 of this Bill, the Minister raised the recent case of the two-year-old toddler Daniel who was abused by his caregivers before he sadly passed away. The Minister correctly observed that many people were angered by the facts of the case, and the Minister queried, in such circumstances, whether a defendant would get a free trial. Interestingly, the Minister conceded that the judge, the facilitator in chief, in ensuring a fair 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 going on, but did their 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 the negative feedback? Most importantly, did Daniel's parents not have a fair trial? To quote the Minister, has the situation "gone out of control" in Singapore?
Mdm Speaker, as it stands, there is a real risk that this Bill would have an unnecessarily detrimental effect on public discourse of matters central to the effective functioning of a participatory 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 service, legal service also, which is already held in high 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 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 always easy to neatly differentiate 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 suffer 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.
With the passage of this Bill into law, the Government, and specifically the AG, by virtue of clause 13, has a potentially overwhelming role in determining the balance between freedom of speech and the administration of justice. Worse, the AG 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 a judge deem the prima facie standard of proof to be too low and not in correspondence with the public interest on a particular case.
In fact, the Government, through the AG could conceivably abuse the law by virtue of the unclear and highly interpretative words, such as "prejudge" in clause 13, 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 clause will not only compromise trust between the Government and the people in the long run, but between the people and the Police as well.
At this stage, Mdm Speaker, it is useful to review the Government's record on civil liberties over the past 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 "indecent, threatening, abusive, insulting words or behaviour". 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 of the Bill. But shortly after the Protection from Harassment Bill was passed into law, it was the Government that used the Act to claim harassment from a member of public in a dispute over a mere patent. It is instructive to recall that during the Second Reading of the Protection from Harassment Bill, the Minister was silent about the Protection from Harassment Act envisaging the Government as a plaintiff. To then turn around and 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 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 highly prohibitive costs involved.
Mdm 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 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) Notification 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 mirrors what was known in the heyday of the 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 – all of which appear justifiable and innocuous when analysed in isolation. Taken together, however, they portend a clear and consistent ability of the Government to control public discourse, fair comment and criticism, should the Government choose to up the ante to tighten its stranglehold on public discourse. Viewed in totality, the Government's approach gives it significant powers to strike fear in the hearts of ordinary citizens.
To conclude, Mdm Speaker, how much confidence is one supposed to 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 it called, and I quote, "the worst case of scandalising contempt that has hitherto come before the Singapore Courts", unquote.
If Alan Shadrake's stands for the worst case of scandalising 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 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?
Mdm Speaker, WP objects to this Bill that overstates the case for the administration of justice to the detriment of freedom of speech.
Ms Kuik Shiao-Yin.
Mdm Speaker, the overriding interest that many young Singaporeans have in this Bill is how it impacts their freedom of speech. It does not matter whether they are teenagers or 20-somethings, conservatives or liberals, religious or irreligious, pro- or anti-establishment, politically active or apathetic. Though the range of emotions and points they raised differed widely, the common ground of our youths' concerns usually boiled down to a perception that this Bill was telling them to "sit down and shut up" when it came to discussion of ongoing affairs of public interest.
I have found two groups of reactions worthy of close consideration. One is from a minority section of youths and the other is from the larger majority of youths. First, let me talk about the minority. There is a small but significant group of youths who are active participants in the world of online socio-political discussions. Some of them are active creators of online social political content, others are more like active conduits of the content. They do not create but they actively consume, share and comment on socio-political content instead. This group has a remarkably strong interest in national affairs, and I say "remarkably" because, honestly, it is not yet the norm for the average young Singaporean to think deeply about national affairs.
They are our brightest young writers, editors, journalists, activists, artists and creatives. They are also our most opinionated students in political science, communications, law and other humanities. They are also a group that fundamentally cares. These young people actually heard about the passing of this Bill and bothered to read up something about it and they do have a strong emotional reaction to it because they can see themselves or someone they know and respect, possibly impacted by it. It may be tempting to judge this whole group of youths as cynics of the establishment who are totally prejudiced against any possibility that this law has any good in it. And, certainly, some will quite happily live up to that stereotype. But even so, that should not prejudice us against what they have to say, for it is also an exercise of our own impartiality and desire for justice that we lean into their anger to hear what needs to be heard, clarify what must be clarified and even change what must be changed.
Anger is an off-putting emotion for many of us. We do not like dealing with it. But when we see an angry person, we should pay attention, especially when we disagree because anger is always a revelation of what that person loves. Without love, there is no anger, there is only indifference. When we listen into anger, we are listening into what someone cares most deeply about and what they most long to protect, and some of these youths are angry about the Bill because they, too, care about protecting the common man and about protecting Singapore. They resent what they perceive as an unjust imbalance between the protection of institutional versus individual interests in this Bill.
Clause 3(4) of the Bill carves out an exception for Government representatives making statements on pending Court proceedings, protecting them from accusations of contempt of Court as long as that statement made is believed by the Government as "necessary in the public interest". The quarrel this group of young people have with that clause is not about the reality that a responsible Government must step in from time to time to set the record straight in the face of inaccurate public allegations that are prejudicing an ongoing Court case and that the Government representative should be protected. Their contention is this: as a matter of principle, why then is there no similar exception being carved out to protect the common person?
They are not naively asking for a free pass to be given to irresponsible individuals to say whatever damaging things they want to say about ongoing cases. What they are asking for is a much more obvious signal in the Bill that communicates protection will also be given for fair criticisms on public affairs made by ordinary people who may also have good reason to believe what they say could be construed by a Court as just and necessary in the public interest as a statement from the Government.
Another controversy for them in this clause is that phrase "if the Government believes that such statement is necessary in the public interest". From a layman's reading, that line feels unfair and can be interpreted as the Government placing itself above judicial reproach. Their fears are largely founded upon the uncertainties of who exactly is that "Government" in the sentence who is acting as the final arbiter in determining what constitutes "public interest". Is it the Executive, Legislative or Judiciary branch of the system? And against the backdrop of freak presidential elections and crazy referendums elsewhere in the world, it is not surprising the kids worry over the resilience of our own political system in a future situation of similar nuttiness. They just want to know that if it is, indeed, going to be the Executive branch solely determining what is necessary in the "public interest", is there a legal check and balance to protect the people from an Executive branch gone wrong?
I can empathise with the Government's perspective that figuring out what is necessary in the public interest is complex territory that, frankly, not everyone is equally fit to navigate. It demands expertise on every level – rigorous intelligence, deep domain knowledge, empathy for stakeholders and just the sheer damn courage to do the right and just thing, whatever critics may say. It is not something a random guy on the street can do; it is also what we expect our highest elected officials in power to do. So, why not just give them the space and the trust to do their job?
But it is deeply frustrating to these youths that the Government seems to be insisting that they are the one and only trustworthy arbiter of what is "public interest". What some of the angriest young people are asking is worth hearing and clarifying. Their questions sound like this: "But what if the guy in the Government gets it wrong? Isn't it always a possibility that those in power will get what is in the "public interest" wrong some of the time? And if one of us, regular guys, can see it and want to point it out to them, should we not get the same space to do so as well without fear of being labelled as the enemy of the Court or, worse, the enemy of the state? And would it be so hard to believe I want the best for my country as much as they do?"
The trouble about "public interest" is that there never is just one public interest but many equally good competing public interests. Like this Bill itself, it is essentially about the tension between the public interest of every man's right to free speech with the public interest of every man's right to a fair trial, unsullied by someone's prejudicial campaigning in the media. It is always a hard choice to prioritise one public interest over another, and a thinking people will occasionally dispute that choice.
It would be helpful if the Minister could articulate what is the best recourse then for these young people to handle a situation where they vehemently disagree with the Government's interpretation of what constitutes "public interest" in an ongoing issue.
Unless we imagine that only youths uncomfortable with parts of this Bill are the angry, anti-establishment ones, I must point out that there are also some moderates and pro-establishment youths in this group as well. Because of their active participation in socio-political discussions online, even youths not predisposed to distrust the Government feel some low-level of anxiety over the uncertainties in the Bill. Even after they read it – and some of these youths are legally trained – they are still uncertain about how easy it will be for them to commit sub judice. They do not know when exactly their comments cross over from safe to being a risk. They are still uncertain about what is the definition of "prejudices" and, since the definition of "publications" is so wide, they are uncertain about whether their one single "prejudicial" WhatsApp message communicated to just one other friend could be construed as a mass publication of contempt. So, their anxieties sparked me to request the Ministry of Law create a youth-centric translation of the Bill that reads less as a legal document and more like something written for 16-year-olds to hear. It will be very helpful; and an accompanying youth-centric set of frequently asked questions will help.
I will now move on to the reactions of the majority of young people I spoke to. Most young Singaporeans I talked to are actually completely unaware that this Bill is being passed and even when I made them aware of it and explained it, they still felt emotionally detached from it. They range from either completely indifferent or just feeling at peace with the very same issues that so deeply angered or worried the first group. When I asked them why they were not getting worked up like their peers, their answers varied. Some said public affairs were just not interesting or relevant enough to be part of their daily online conversations anyway. Some assumed they were just never going to be types who could say anything important, controversial or consequential online. And some joked that they never questioned anything because they did not want to put in effort to think that hard and that they trusted the people in the Government to do the thinking for them.
What is curious about this second group is that when I finally asked them whether the passage of this Bill would change the way they spoke online, they all said something casually along the lines of "Aiyah, no big deal, just play safe and don't talk about such things lor. Get into trouble for what?" And this is precisely why I felt I have to speak up on this Bill.
Mdm Speaker and Minister, I did not share about the reactions of these two groups to make one out as the good guy and the other as the bad guy. I shared them to say both groups of young people exist and both groups' reactions must matter to us because they are telling us something important about the future electorate. If I am thinking about what kind of political education and political will our young need to help Singapore thrive, I would say the majority's reaction of indifference should disturb us far more than the former's anger.
I am not convinced it is a win for Singapore if we pass this Bill without inspiring much debate or having much discussion with the majority of our youths. Their silence may not be a sign of approval but of apathy, not a sign of consent but of conditioning. Any law that limits free speech, for better or for worse, will have short-term and long-term cultural impact, sometimes unpredictably so. The Sedition Act, for instance, gives us protection from racist and religious hate speech but it also dovetails with our country's kiasu culture and let many kiasu people to take the kiasu route of simply avoiding all talk about issues of race and religion at any deep and meaningful level in case they get into trouble. So, as a result, the public conversation on race and religion is still underdeveloped.
Any law that limits free speech will have complicated side effects on the maturity level of public discourse. Already, we can hear how the Bill, as it is currently languaged, is being interpreted by some as a despairing signal to sit down and shut up. It may not have been the Ministry's intended message or mission at all. But it is clearly one of the complex outcomes that has already emerged that ought to be addressed.
Minister, broadly speaking, I support the spirit of your Bill. I see the big picture you are driving at. I share your conviction that trust in the Judiciary must be protected, the integrity of the Court process must be kept and our reputation for rule of law is what makes us exceptional in the world. That reputation undergirds the prosperity of our country and should never be casually undermined by absolutist ideals about free speech. I get it. And I am all for safeguarding our country against the culture of contempt as well. I reiterate the need to give people a space for their anger and protect their right to express that anger on things of public interest. But contempt is not something I support because it is distinctly and dangerously different from anger.
Contempt is a dysfunctional version of anger. It is anger that has been allowed to fester, anger gone sour. Anger, at its heart, is still founded upon a desire to protect. But contempt crosses the line into a desire to destroy. Anger can drive us to right a wrong, but contempt drives us to just want to be proven right above all things, above all people. An angry person can still respect the one he disagrees with as his equal. But a contemptuous person will always denigrate those who disagree with him and see them as forever and always beneath him. Contempt does cross a thin red line, to do many injustices in the name of justice. Contempt is the gravest corruption of anger. We must never agree to allow words of contempt to flourish freely. Never.
The people who most love justice can be the most angry of people. Those of us who love justice, who know the passion of righteous anger must be most watchful that we do not allow ourselves to tip into the prideful pit of self-righteous contempt because contempt is the fastest killer of trust and greatest ruin of relationships. In contempt, there will never be compromise, collaboration nor space for solutions across the divide that actually moves the course of justice forward for us all.
I agree with the Minister that nobody, regardless of how justified they believe they are, should be allowed to spread malicious lies, especially under the pretense of free speech, just to run down innocent people, undermine valued institutions or make money online through clickbait articles.
Truly free speech is never truly free. It is a profound paradox. People can only speak freely when there is safety, and safety is always founded upon constraints. We freely choose to put limits upon ourselves to make a space for others to be free and we expect that same favour to be done for us. Like freedom, justice flourishes only when everybody accepts certain limitations on their rights and certain expansions of their responsibilities. But this rule must be seen to apply to individuals as much as the institutions of power meant to oversee them.
I still seek amendments for this Bill because I see phrases within it that create uncertainty in a layman's mind, perhaps unnecessarily so, around the Bill's intentions in this regard.
I will close my speech restating three requests. I apologise to the Minister in advance for having to use Singlish. I speak for youths. It is a language of their heart and they are the audience I most want your answers to travel to.
First point, clause 3(4) of the Bill says "a statement made by a person on behalf of the Government about a Court proceeding that is pending is not contempt of Court if the Government believes that such statement is necessary in the public interest". Could the Minister clarify who exactly is the "Government" that is positioned as the final arbiter of what is necessary in the public interest? Is it the Executive branch, that is, Cabinet and the President: the Judiciary of the Courts; or the Legislative branch, that is, Parliament? And will it be the single belief of an individual or the collective belief of that branch that will be the determiner of "what is necessary in the public interest"?
Number two, following on from question one, some young people are suspicious about that clause I just mentioned because they see it as an example of the Executive branch of Government trying to place itself above the Judiciary's reproach and they worry that there is no check-and-balance in the system. Could the Minister address their worries directly and clarify where in this Bill or elsewhere in the law are the assurances that this is not the case? In other words, would the Minister be able to "double confirm" for them that this is not a situation of "ownself check ownself"?
Lastly, I urge the Minister for Law to reconsider creating a space in this Bill for a discussion of public affairs exception for the smaller individual that parallels the protections currently given to the bigger institution. The philosopher Mengzi observed that in dealing with a small state, a large state ought to use magnanimity; and when in dealing with a large state, a small state ought to use wisdom.
It is an age-old advice that can inform the dealings between any smaller and larger entity. Including this exception for public affairs discussion can be a much clearer communication of the Bill's intent to protect the common man as well as the Judiciary. It is a gesture of magnanimity that speaks volumes and, with all the right constraints, could encourage wisdom. Give both the Singaporeans who work for the ground and the Singaporeans who work for the Government that same powerful assurance that as long as their statements are made fairly and responsibly, in the service of public interest, without real risk or seriously prejudicing the course of justice, they will not be held in contempt. And if making even a gesture of that exception in the Ministry's opinion is not tenable or even really necessary, then could the Minister explain fully why that is so?
There is always going to be a fundamental asymmetry in the relationship between the individual citizen and the larger institutions meant to protect its interests. The inherent imbalance in power provokes a natural level of uncertainty and, thus, fear. So, no matter how well-intentioned or benign the bigger entity perceives itself to be, it must see that the smaller will always struggle with some degree of anxiety in navigating the rules of engagement with the bigger.
So, whilst us individual citizens have a responsibility to own our side of the conversation and navigate our own fears and bias about the bigger institution, the bigger must take the lead to reassure the smaller that they are heard and their interests will be protected. I believe this Government understands intimately the inherent struggle of the small to communicate with the big because that is what it has dealt on the international level every day for 50 years when far older, greater and bigger countries get perplexed and even insulted at why a small annoying red dot like ours keeps insisting on a place at the negotiating table and having a say in larger matters that seem, in their large perspective, to be beyond our size and, thus, understanding.
But the smaller must always speak up as an expression of our dignity, a fight for our interests and an assertion of our passion for the right of self-rule. We are small in the world, but we are here and we will not go unheard and unnoticed. This is true for our country Singapore and it is a spirit that rings true, too, for every citizen who shares their Government's fight to call this place "home".
I appreciate your patience, Mdm Speaker, with my use of slang. I look forward to the Minister's clarifications and fair consideration of the proposed amendments.
Mr Dennis Tan.
Madam, I do recognise the need for us to have laws to 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.
Clause 3(1)(a)(2) 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 administration of justice may be undermined". In the case of Alan Shadrake, the Court of Appeal rejected the "inherent tendency" test and accepted the "real risk" test. And let me just quote a very helpful analysis from Prof Gary Chan in his article in the Oxford University Commonwealth Law Journal, and I quote, "According to the Court of Appeal, real risk does not mean 'remote possibility'. It is also not equivalent to 'clear and present danger' or 'serious or grave risk'. Significantly, the Court of Appeal disagreed with the High Court's description of real risk as any degree of risk above de minimis level, including 'a small likelihood'. Taking a more liberal attitude towards the law of contempt of Court than the High Court, the Court of Appeal 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 administration of justice may be undermined" and not just a real risk. I think the omission of the word "real" – which I now understand is intentional – 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 be departing from the learned analysis and decision of our Court of Appeal.
I next go on to clause 3(b)(1). 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 the UK and Australia, such a 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 or "prejudicing or interfering with or posing a real risk or prejudice to and 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, should and will not be easily prejudiced by comments made publicly or in the media. I thought that was what the earlier People's Action Party 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.
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 about 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 for "if the Government believes that such statement is necessary in the public interest". This is entirely subjective. What if a Government spokesperson decides 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 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 up "in the public interest". This is and ought to be a shared space for everyone in this country including individual citizens and civil society groups.
Madam, I believe that for the purpose of this clause, the Court 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 do not agree with anyway, it should, at least, allow an objective test here. Let the Courts decide, in the event of any complaints by any individual, whether the Government's comments were correct or made in good faith.
I next go on to punishment. Madam, the proposed maximum punishment in the Bill far exceeds current sentencing practices. Clause 12(a) of the Bill provides for maximum imprisonment of three years and maximum fines of $100,000, or with both such fine and imprisonment together. In the State, Family or Youth Courts, the maximum punishment to be prescribed are 12 months' imprisonment and a fine of $20,000.
Madam, let me just refer to three serious contempt of Court cases in recent years. In Alan Shadrake's case, the Court of Appeal noted that it was the "worst case of scandalising contempt that has hitherto come before the Singapore Courts" and yet the Courts 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 six weeks. In 2008, 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 when 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 three months' imprisonment. In the case of Attorney-General vs Hertzberg Daniel and others, a fine of $25,000 was awarded.
Comparing the sentences awarded in the three cases I cited, with the proposed punishment in the Bill, it is clear the maximum sentences provided in the Bill are significantly higher – $20,000 or $25,000 fine compared to the proposed maximum fine of $100,000; jail of three months compared to the proposed maximum imprisonment of three years. This is definitely no mere codification of existing common law. The maximum sentences are way above current sentencing practices.
Madam, clause 23 of the Bill effectively makes all offences under the Act arrestable offences. Current arrestable offences include offences like unlawful assembly or rioting, affray, rape, theft, robbery, use of criminal force on a person with intent to outrage modesty, voluntarily causing grievous hurt and so on. This is most peculiar, given the nature of contempt of Court offences. It is not necessary at all to make contempt of Court offences arrestable offences. 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 right to criticise or comment in both public and private discussions.
Clause 13(1) has also allowed the AG to direct an individual to refrain from publishing any matter or take down publications that could potentially be in contempt. This will be a new procedure which is currently not available. The AG is not required to inform this individual that he has applied for a Court order for non-publication. The individual concerned will only find out once the order has been granted and served on him. 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, a maximum penalty is a fine of $20,000 or up to 12 months' imprisonment, or both. Why does the Government wish to bar the defendant from attending the hearing of the AG's application? What harm will 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, then, 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 the standard of proof of prima facie case has been met. This requirement is just too low and easy for the AG. If we are codifying this as part of criminal law, why do we not apply the criminal procedures' standard of proof of "beyond reasonable doubt"? And prima facie is still below the civil standard of proof of balance of probability, which, accordingly to this Bill, is the burden the defendant has to overcome when he applies to set aside the order. So, bizarrely, the defendant ends up having a higher standard of proof. So, why not "prima facie" for the defendant?
In short, according to clause 13 of the Bill, the Government in proposing to deprive the defendant of 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 a fine of $20,000, or both. Madam, this is pure intimidation and it is an unjust and draconian piece of law.
Madam, yes, former Chief Justice 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 any individual should the Government make a wrongful or unfair comment to the detriment of the individual. This Bill, if passed, creates a huge shadow of fear hanging over Singaporeans who may otherwise have justified opinions on certain topical issues, where the handling by the Government or 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 a juvenile person are conducted and, in fact, generated positive discussion 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 the 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, respectfully, I am of the view that such a provision will still be helpful to our contempt of Court laws if, indeed, the Government wants to codify our contempt of Court law. 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, in conclusion, I join my WP colleagues to oppose this Bill because common law has already provided for the protection of the administration of justice. This Bill goes beyond existing common law. It is not only unnecessary. It also gives 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 us not bring our country a step backward.
Ms Thanaletchimi.
Mdm Speaker, I am, in principle, supportive of the Administration of Justice Bill. Any effort to raise the public's confidence in our judicial system and Court proceedings as well as to ensure individual responsibility and accountability for remarks made through publications or any other avenues to scandalise any party/individual is very much supported. Having a consolidated piece of written law that sets out the consequences of not obeying Court orders will make people sit up and take Court orders more seriously.
I am also heartened that for employees, claims against their employers in the soon to be instituted Employment Claims Tribunal will also have to be taken seriously with these changes. The question is: will the same treatment apply to Industrial Arbitration Court orders?
For those caught in matrimonial disputes, this Bill safeguards the interests of the aggrieved party where a judgment has been passed in favour of them against those tardy spouses who disobey Court orders, such as refusing to pay maintenance in the sum of money ordered by the Court.
Part 4 of the Bill spells out what does not constitute contempt of Court. These include fair and accurate reporting of Court proceedings or disobeying Court order due to the honest and reasonable failure to understand the obligations under the Court order. Should the AG act in discretion of the law, how will this discretion be exercised and is it too wide-ranging a discretion? What constitutes fair and accurate reporting? Does it leave too much room for interpretation? What is meant by good faith? How to prove if the motives are proper or improper?
When can a person comment on a case if it is not concluded and if at all a person can do so, even if there is validity in his grounds to raise concern? In the Bill, it is stated that the curb is only lifted when the Court proceedings have concluded, such as after an appeal has been heard or concluded. Some cases take more than a year to conclude and, if this is so, does it mean that a person or netizens can only comment on the case strictly after the case is concluded? If there is a genuine complaint against the judge while the case is proceeding, is there any other channel available to raise this concern or to deal with it? Though clause 16 provides for channels of complaints to the Chief Justice, Police and other enforcement agencies, are these the only available channels?
Lastly, to provide clarity on the scope of this law for the public, that is, the people, it is important that the people have to be made aware and be educated so that they may act more responsibly and be accountable for what they comment on and not fall foul of contempt of Court.
Mr Leon Perera.
Mdm Speaker, the Government has said that the Administration of Justice (Protection) Bill aims to consolidate common law in contempt of Court. However, in so doing, it poses an unsatisfactory and problematic solution to a non-existent problem and it generates grave dangers to the freedom of speech that is 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.
First of all, I would like to address the fundamental necessity of this Bill. All legislation exists to fill a gap to address the real issue in such a way as to generate improved outcomes. In this case, MinLaw has stated that the Bill primarily seeks to consolidate common law on the subject of contempt of Court. My colleagues and I argue that this Bill actually goes beyond mere consolidation or codification and makes real expansive changes to the current common law landscape on contempt.
Madam, presently, there is 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. What is the necessity for this Bill, why legislate and 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 its First Reading.
Mdm Speaker, there is no evidence of any substantive risk to the functioning of the Courts and the 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. If, indeed, such a law were necessary, surely, it is not 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 First Reading. As my colleagues have argued, 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 are tabled, law commissions are convened to seek public feedback and advise 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 thus far accorded to this Bill.
Next, on the offence of sub judice, what are the urgency and necessity for this Bill in this regard? Our cases are decided by professional judges rather than juries. Is our confidence in our judges so weak as to suppose 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.
If the concern is with witnesses and experts being influenced by published misinformation, is not the Court process designed so as to elicit the finding of fact, disentangled from the undue influence of misinformation? For instance, under cross-examination, the subjective can and should be distinguished and differentiated from the objective in any eye-witness 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, Mdm Speaker, we have seen many sensational cases which have drawn heated public debate and discussion online and offline, such as the trial of the former head of the Central Narcotics Bureau, Mr Ng Boon Gay, the trial of former law professor Tey Tsun Hang, the trial of the members of City Harvest Church, 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 this Bill? If there are such cases, I urge the Minister to share such concrete cases under the protection here of parliamentary privilege so that the Singapore public can better understand what circumstances have provoked the tabling of this Bill.
Next, Mdm Speaker, on the issue of scandalising the Judiciary, the Minister for Law has discussed in some detail the cases of the UK and New Zealand, but it does not appear that any other country in the world is currently doing what the Government seeks to do now, which is to prescribe harsh maximum penalties for contempt of Court offences and to codify in statute, in expansive fashion, the definition of contempt of Court. The expansiveness of it has been elaborated by my colleagues: it comes about as a result of replacing the "real risk" test with merely a "risk" test as well as other points they have touched upon.
I note that the Minister for Law, in his speech, did not talk about any other country that seems to be moving in the direction that the Government plans to move here. This underlines the need for the Government to explain why it is opting to move aggressively in this direction. What facts actually support the view that there is a real risk to the functioning and standing of the Courts so as to justify why we are not acting in accordance with what we see 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 the risk of being undermined?
Next, the Government's exception clause set out in section 3(4) also creates a real risk of Government abuse, as my colleagues have argued. 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 the case. Madam, an unscrupulous government, in theory, could exploit this provision to initiate investigations against people 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, in theory once again, consecutive investigations on trivial charges or technical infractions could be launched to keep the matter permanently off-limits to public discussion.
An unscrupulous government could use the provisions of this law to suppress public discussion of its failings or wrongdoings in every platform, forum and institution in Singapore 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. Secondly, 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.
Next, I would like to speak about the penalties which the Bill prescribes. In setting out penalties, I fear that the maximum penalties stipulated in section 12 of a $100,000 fine or up to three years in prison may come to be seen as the minimum penalty in the public mind. In particular, I fear that the $100,000 figure will attract undue attention and become fixed in the public's 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, as my colleagues have argued, this maximum cap is not aligned with past precedents. The sentence in the Alan Shadrake case was six weeks' imprisonment and a $20,000 fine. In Alex Au's case, which involves scandalising contempt of the Chief Justice, a fine of $8,000 was meted out. Other fines have ranged from $500 to $10,000. Mdm Speaker, this is a far cry from three 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?
In conclusion, Mdm 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 contribute to suffocating dissent, debate in democratic politics in Singapore, to the detriment of balanced accountable politics, civil society and freedom of speech. Mdm Speaker, I join my WP colleagues in opposing this Bill.
Mr Darryl David.
Mdm Speaker, thank you for the opportunity to speak on the Administration of Justice (Protection) Bill. The Bill has certainly received a great deal of attention and I am speaking today to offer my views from the perspective of someone who has spent a few years in the media industry.
I feel that the Bill is an important one because it helps to avoid situations where an accused person may be put on trial by the media. This is a particularly relevant issue today, especially with the advent of social media and citizen journalism. Facebook, Instagram, Twitter, Snapchat, blogs – many Singaporeans use these platforms to share their views and engage on social issues of the day.
The pervasiveness of media outlets is, of course, a double-edged sword. Wider access brings with it wider responsibilities, of course, for debate in a civilised and productive manner.
It is certainly no laughing matter when a person is on trial facing criminal charges, or if he or she is embroiled in a civil case before the Courts. Our sub judice laws, which this Bill largely codifies, serve to ensure that when a person is on trial, no outside interference should come into play to prejudice or obstruct the administration of justice by our judges.
This is a rule that our mainstream media tends to observe strictly, with reporting on Court cases being limited to factual representations until such Court proceedings have come to an end.
However, with the proliferation of different types of media platforms, journalism is no longer the preserve of trained reporters. Again, this comes with advantages and disadvantages. As we have heard from my colleague, Ms Kuik Shiao-Yin, more people are able to air their views and share their thoughts and debate issues. However, I feel that, sometimes, they do so perhaps with less of a sense of what constitutes professional and proper publication for public consumption.
Mdm Speaker, there are a number of legal aspects of this Bill, which my legally-trained Parliamentary colleagues have addressed and will no doubt continue to address in the speeches to come. I am no lawyer and would leave the technical legal points to my learned colleagues.
I am, nevertheless, aware that one argument against sub judice laws is that they are irrelevant in a country like Singapore, as we do not have a jury system. The thinking here is that judges should be impartial enough to consider a case without being influenced by any extraneous material.
While I have full confidence in the quality of our Judges and in our Judiciary, I would like to take a different perspective to consider the wider effects of a trial by media. Consider such a situation that is set out in Illustration 2 listed in clause 3(1) of the Bill. The illustration refers to a situation where an Internet news site might claim to have "discovered" the identity of an unknown assailant while a criminal case for assault is still under investigation. In this type of case, the consequences of factual misrepresentation in the media would be severe.
Sub judice rules would prevent the dissemination of such possibly erroneous information until the evidence has been properly weighed and the Court has made a decision. This is a fair outcome for both the accused and the victim and, in my view, is consistent with the basic principle that a person is innocent until proven guilty in a Court of law. Intense media speculation may also affect witnesses and colour their evidence when they take the stand.
Going back to Illustration 2 in clause 3(1) of the Bill, if the Internet news site had been allowed to run amok with its unprofessional reporting, the accused's name would have been dragged through the mud, regardless of the outcome of the Court case, and on the basis of probably inaccurate information. If the accused were then to be acquitted, this would be a pyrrhic victory, indeed, as he may well have been vilified in the press, long before the delivery of the verdict.
To summarise, while most public discussions of ongoing legal cases are well-meaning, it is possible, in the course of such discussions, that reports can interfere with or prejudice an ongoing case. Such trial by media compromises an accused person's right to a fair trial.
And even if no actual prejudice is caused to the outcome of the Court proceedings, the damage done to the individual's and, indeed, their families' reputation, psychological well-being and privacy may be irreversible.
Mdm Speaker, while I support this Bill, it is important that Singaporeans understand the full significance of it and are assured of their rights and obligations under the law. To this end, I would seek the following clarifications from the Minister.
First, is the Minister able to shed light on the practical enforcement of this Bill? In particular, how will this Bill affect the current reporting practices of the mainstream media and alternative media?
Next, concerns have been raised that the Bill will affect the coverage of activist campaigns related to ongoing Court proceedings. Could the Minister explain how he will ensure that public discussion or advocacy on matters of public interest is not unnecessarily stifled? Will such advocacy be considered as "interfering with" or being "prejudicial to" Court proceedings, as mentioned in clause 3 of the Bill?
Mdm Speaker, this Bill ensures that the right to a fair trial is protected for all Singaporeans. It is also important as it ensures that both mainstream and alternative media are held to similar reporting standards when covering ongoing cases.
As someone who has been involved with the media industry for more than 20 years, I am heartened that these changes will help our media scene raise its standards and avoid descending into sensationalism and tabloid journalism. With that, Madam, I conclude my speech in support of this Bill.
Dr Tan Wu Meng.
Mdm Speaker, the rule of law protects the vulnerable from abuse by the strong. In any civilised society, it prevents the rule of the jungle, the rule of the predator, the rule of the bully. It prevents the rule of inequality, as other Members have raised. It protects the vulnerable.
For example, a wife, abused by her husband, now seeking divorce, safety, maintenance for the children. It protects a young family who have lost their breadwinner, now seeking compensation from the employer. It protects the Pioneer Generation uncle who worked hard all his life, saved up all his life but was cheated out of his retirement savings by unscrupulous businessmen.
Madam, these are real stories of workers, families and from the Meet-the-People Sessions that I have in Clementi, stories which many of our other Members will have seen in their constituencies.
The rule of law is also about social norms. Whether we, as a people, believe that all should be equal before the law; whether we, as a society, believe that the Courts should be the final arbiter of disputes; whether we respect due process and the decisions of the Courts – even and especially when those decisions might go against us.
Madam, there is a moral stature and a moral suasion to the Courts as well. When a judge sentences a conman, it is not just the penalty or the prison sentence that sends a message. It is also that the judges are respected and, so, their judgments have moral weight. This is why it means something in our society. And I am sure both sides of the House will agree on this. It means something when a judge says that someone is suppressing the truth, is dishonest, is a liar, in cases where there has been impropriety, regardless of what sphere they may be in.
So, when we protect the stature of our Courts, it is not just about the judges. It is about justice and protecting justice for Singaporeans from all walks of life. This is why many Members have spoken about Court judgments needing to be enforced, because, otherwise, they are just words on paper without real impact in the real world. It is also why we have to protect against other ways in which justice can be undermined. Someone might interfere with the proceedings, seek to influence the Court process towards an unjust outcome while the trial is still going on, what we have called sub judice contempt.
So, it is very important that once a matter is before the Court or the Coroner, that due process is respected and followed. Imagine, Mdm Speaker, if this were not the case. Imagine if a wealthy person were accused of a crime, someone wealthy enough to own significant equity in a newspaper. What if he used his own privately owned media channel to campaign for his case during the trial? Or if an accused person had a large social media following, campaigning for an outcome during the trial of the case?
Some have argued in this House that sub judice is only relevant to countries with jury trials because judges have professional training and expertise. But witnesses, Mdm Speaker, are lay persons, too, and even though judges weigh evidence, it matters when witnesses are influenced. It matters when witnesses are undermined by what happens in the media.
What happens, for example, if photographs of an accused person are widely published in a case where identification is an issue? Will it make the accused's face seem more familiar in the mind of a witness? What happens if a witness, after reading the media coverage, starts to believe, "Well, maybe this person I have seen him somewhere before".
There is a real example of this. A real example cited in Australia in 1994 when a magazine published photos of a man accused of murdering backpackers. Identification was an issue and the Supreme Court of New South Wales came forward to say this interfered with the due course of justice and could have skewed the recollection, affected the memory of witnesses. And, Madam, witnesses are human beings. They come under pressure, too. Would the witness have second thoughts about what they were going to say if they have been persuaded that everyone else believes a different story because that is what has been published in the media? Would witnesses be less willing to come forward, if they are afraid of being criticised by a newspaper with readership?
Madam, witnesses can be intimidated, sadly, even without overt threats of violence. All it takes is for a website somewhere to publish their identity, home address, phone number, maybe even family photos on Facebook. It seems like an exercise of the imagination. But it is a real-world issue. And it has been mentioned in real situations, even going back many years. The Australia example above and the issue of witnesses were raised in the Irish Law Reform Commission's 1991 consultation paper. Real concerns from overseas; real lessons we can learn in Singapore.
Madam, it is natural for newspapers to want to sell more copies, to reach more people, to send their message further. It is very understandable when members of the public are concerned about what is happening in a Court case and want to discuss it.
But, as has been said earlier, if our loved one were the victim of a crime, would we not want a fair trial? Would we not want witnesses to be protected, so they can testify without fear or favour, without their recollections being affected by media coverage? Or imagine you were wrongly accused of committing a crime and the accuser mobilised a social media network or website to get you a trial-by-media, a guilty conviction in the minds of the public, even though the Court might later find you innocent.
So, we must find a balance. On the one hand, freedom of expression, but we must also be mindful that it does not undermine the right of an accused person to a fair trial. Because when the Courts are diminished, it weakens their ability to protect the weak and the vulnerable.
Madam, let me speak about the idea of "necessary". The idea of "necessity" already exists in the common law of sub judice. That is why restrictions on public discussion are for a limited time only. It continues so long as the limit is necessary. Once the trial is over, discussion can continue.
It also brings me to clause 3(4) of the Bill, which has an exception to the sub judice contempt provisions under clause 3(1)(b). It creates an exception for situations where the Government issues a statement which it deems necessary in the public interest. I accept, Mdm Speaker, that there are situations where there may be public alarm or a threat to public safety and the Government may have to put facts out in the public domain.
In the era of hybrid warfare, non-conventional threats, it is entirely possible that an attack might be followed by a deliberate campaign to publish false information, to turn Singaporeans against one another. But the key word is "necessary". The concept of necessity.
This will help minimise the risk of affecting an ongoing Coroner or Court inquiry. And by ensuring interventions are no more than what is necessary, that check and balance will, in turn, further reassure the public's confidence in the system.
Mdm Speaker, freedom of expression is part of the marketplace of ideas. We should not over-regulate. But neither must we become free market fundamentalists on this. As I have said previously in this House, it is quite possible for market failure to occur when there are inadequate constraints on the market. It has happened with laissez-faire economics. It can happen in the marketplace of ideas as well. And the negative effects can be subtle, eroding confidence in the Judiciary, so that judgments are less and less respected, undermining the Courts' ability to give a fair trial.
And if the justice system is undermined through trial-by-media, it is the least well-off who will be most disadvantaged: (a) Singaporeans whose causes are not glamorous, or who are stigmatised by the public; (b) Singaporeans who do not have big social networks or influential writers on their side; and (c) Singaporeans who do not have a $100,000 budget to pay for advertising, to advocate their position or who are not wealthy enough to buy a private media company with millions of views online. Mdm Speaker, if our Courts are to continue protecting the vulnerable, there must be measures to ensure Court judgments are respected and that due process is not undermined. In this century, Mdm Speaker, the right to a fair trial is as important as ever for Singaporeans from all walks of life. Madam, I stand in support of this Bill.
Mr Louis Ng.
Mdm Speaker, I welcome this Bill which seeks to protect our Judiciary and the integrity of legal proceedings. It is helpful to codify the law of contempt in order to give Singaporeans a better understanding of what actions tantamount to sub judice, disobeying Court orders and scandalising the Courts.
The reality of today's society, where there is easy access to virtual soapboxes, is that there will always be individuals who will be irresponsible and hold extreme views. I support provisions in the Bill to manage media outlets and commentators, some of which are primarily motivated by sensationalism and scandal, rather than the search for the truth. I, however, would like to raise a few questions.
Many Members have already spoken about clause 3(4) where the Government can make a statement, which if it deems is necessary in the public interest. While some illustrations are given, can the Minister provide more clarity on how the Government will decide on whether such a statement is necessary in the public interest and whether "public interest" can be defined more clearly in the Bill?
While I understand the need to address inaccurate or incorrect public allegations, however, following the release of a Government statement, is it possible for exemptions to also be made when a member of the public provides a differing but factual description of events and circumstances? Can the Minister also provide further details on what safeguards will be put in place to ensure that judges are not influenced by the Government statement?
Next, while the Bill seeks to provide clarity for lawyers, the text in its present form may expose the layperson to risks that they may not fully understand. In this age of social media, where flurries of spontaneous conversations fill the Internet, the layperson may not fully understand where the line is drawn and what he or she cannot say.
Clause 3(1)(b) prohibits the publication of material which poses a "real risk" of prejudice or interference. Can the Minister provide a more detailed definition of what "real risk" entails? Clause 11 refers to "publication". Does this also include academic articles or a private Facebook post? And can the Minister also provide a more detailed description or definition of what is considered "fair criticism"?
These are questions relevant to the public which we should have ready answers for. I also propose efforts to raise public awareness in order to help the layperson understand the boundaries of what is legally tolerated and not.
Lastly, instead of a catch-all provision for penalties, it would be useful if penalties for each form of contempt could be spelt out so that there is better clarity for application.
Madam, given the wide-reaching implications of this Bill, I am glad for the robust debate in this House and trust that a well-crafted and thoughtful law will find wide public acceptance and support.
Dr Lily Neo.
Mdm Speaker, I stand to support the Administration of Justice (Protection) Bill. This Bill sets up clarity and certainty on what constitutes contempt. I welcome this as it sets out boundaries so that people are in the know how far they can go with the laws, without running afoul of them, and the consequences that they have to face if they choose to go against it. This will also allow people, especially those who previously tended to err on the side of caution, to now speak with confidence and to speak more freely.
In the context of sub judice, I believe that everyone should have a fair trial. I agree with the majority whose opinion is that the freedom of speech should not lead to "people on trial" being influenced by social media vigilantes' opinions and postings.
As the Minister for Law said earlier, there is one recent survey that showed that 92% of Singaporeans have trust and confidence in our legal system and 96% of Singaporeans agree that Singapore is governed by the rule of law. This Bill will further strengthen our legal system and the integrity of our Courts. This Bill is thus timely and in the right direction. The maximum punishments prescribed in the Bill are appropriately aligned, to be commensurate with the affluence of today and should be sufficiently high enough to be taken by the majority as adequate deterrence.
Under contempt of Court in disobeying Court orders, such as flouting orders on maintenance payments and access to children, this Bill provides a framework for more effective enforcement of Court orders. Most people believe in the need for effective enforcement of Court orders. The greater clarity of this Bill will instil greater confidence that the judicial system is able to enforce Court orders effectively, as such, giving the reassurance to the afflicted parties. The clarity of this Bill will also let people know upfront the consequences of non-compliance.
After divorce, it is frequent for parties not to comply with Court orders on maintenance and access to children. Statistically, since 2009, the Courts had received on an annual basis about 3,000 applications for the enforcement of alimony payments from divorcees and the majority of aggrieved parties were women, mostly with custody of children. The sufferings and pains of the aggrieved divorced parties are hence quite obvious and a solution to ameliorate their difficulties arising from non-payment is necessary. There are also many parties who do not take out Court proceedings because taking out proceedings to enforce Court orders can be stressful, time-consuming and costly. These families suffer in silence.
At my Meet-the-People Sessions (MPS), meeting such afflicted families, usually the female spouses, has always been regular occurrences over the years. Sad to say, due to the demographic profile of my residents, those afflicted with non-compliance of maintenance payments are usually in dire straits. They usually do not have other means to support themselves and their family members. Often, they have many children, some of whom are still young. They usually do not hold jobs or, if they do, they usually get only meagre incomes. Thus, the daily survival needs of their families are in jeopardy. I sympathise with these families. We should send a strong signal that disobedience of the administration of justice on purpose will not be tolerated in matrimonial spats.
All said, the truth is that, very often, social issues are complicated and the Judiciary has to consider all factors before mitigating punishments. Many of my MPS cases have complicated family issues. Some male spouses who came to my MPS told me that they had to flout the maintenance Court orders because of retrenchments; others said they had second families to feed due to subsequent marriages, often with young children as well. Other male spouses had complained to me at my MPS that their ex-spouses had denied them access to their children, causing them agony. Some spouses said access orders were breached, as the children themselves did not want to see the other parent after the divorce. May I ask the Minister how does the Court deal with the judgment on such contempt in matrimonial disputes? Will they be judged with more understanding and sympathy?
In the case of non-compliance for a male spouse due to inability to pay as the result of more commitments from a second or even third marriage, sending them to jail for non-compliance will certainly disadvantage every member in that person's marriages. What is the solution then?
I would like to ask the Minister what his considerations would be on my following views on section 12 on "Punishment for Contempt of Court".
In a scenario where a defaulter is in contempt of Court due to his wanton disobedience of the Court order to pay maintenance to his ex-wife, for instance, the Court can invoke the punishment under section 12 whereby he will be subjected to punishment either by fine, with or without imprisonment, or both.
Although section 12(1) did begin with "Except as otherwise provided in any other written law", it is still not wide enough to capture situations which may not warrant such penal punishment as a fine or custodial sentence or both.
Section 12 does not provide for any other forms of punishment. In the case cited above, perhaps the more appropriate form of punishment may be to make an order for an appointed personnel of the Court, or let us call him a "trusted friend of the Court", to oversee and distribute the defaulter's income, so that all the aggrieved parties receive their payments due in a just and equitable manner. Adding a fine on him or sending this defaulter to prison in such an instance may not serve the course of justice at all.
May I suggest that section 12 be tweaked slightly to provide for the discretion of the judge to order other forms of punishment or remedial actions to better serve the purpose it is intended?
Public education and effective communication on the intent and purpose of this Bill after its Third Reading will be useful. I hope the Minister for Law will spare no effort to dispel the misconstrued idea that curtailment on freedom of speech and on expression of disagreement against the Government is the purpose of this Bill; and this should be done in the social media also. Although the educational level in Singapore is very high, we cannot assume that what is debated and discussed is readily understood and noticed by the general public.
There is also a need to better inform with good and clear communications on the punishments for contempt in matrimonial disputes as doing so may serve as a preventive measure for potential defaulters. Thus, public education in this area will have to be targeted with a simple, easily understood and multilingual message brought to the ground where it matters. Hopefully, success in effective communications will reduce the number of possible contempt of Court cases in matrimonial disputes.
Ms Denise Phua.
Ms Denise Phua Lay Peng (Jalan Besar) : Madam, I stand to support the principles behind the Administration of Justice (Protection) Bill. At the same time, I would like to seek the Minister's clarification on several concerns.
Madam, this is a Bill that seeks to ensure that Court orders are effectively enforced so that persons can receive protection of the law; that persons receive fair trials and that the high level of trust in Singapore's legal system is preserved.
I find it useful that the Bill seeks to codify the current law on contempt so that members of the public will not have to second-guess what constitutes contempt of Court.
For the layman, the Bill clearly lays out in Part 2 the types of conduct that amount to contempt; the key ones being: one, sub judice or publishing content that may interfere with or prejudice an ongoing Court case; two, scandalising the Court through acts that impute improper motives or attack the integrity or impartiality of the Court; the strength of the Judiciary being founded in the confidence and respect of the people in the justice system; and three, intentionally disobeying a Court order or breaching an undertaking to the Court. As someone keenly interested in social service matters, I am particularly glad that the Bill makes it clear on the consequences of defying Court orders when obligations of maintenance payments are not fulfilled.
Just as important for the layman, the Bill provides for defences in Part 4 of the Bill and, through this, clarifies what is not contempt.
One, clause 14, where scandalising the Court is concerned, reports made to the Chief Justice, the Police or a law enforcement agency concerning a judge's alleged misconduct or corruption is not considered contempt. These are avenues by which concerns on the Court can be channelled.
Two, where sub judice is concerned, the Bill provides for the defence of persons who are communicating in private or who have no reasons to believe that their content of discussion would be seen or heard by members of the public. Persons exercising editorial duties are not liable for publishing or distributing contemptuous content, if the latter was done without their authority, content or knowledge.
And one that I fully applaud is that provided in clause 21, where there is honest and reasonable failure to obey a Court order, as in the case of persons who might be illiterate or genuinely unaware of his or her obligations, the Court will consider this to be a strong defence and not rule the act as contempt.
I appreciate the fact that where there is currently no limit on the punishment which may be imposed for contempt of Court, a ceiling is now put in place for punishment.
Madam, I would like to touch on one of the biggest concerns that has been circulating about a potential clamp-down on freedom of expression when citizens and the media are not allowed to publicly express their views on ongoing Court cases.
The freedom to seek, receive and impart information and ideas of all kinds is regarded as a human right in international law. However, it is also a human right to be entitled to a fair trial and the presumption of innocence until proven guilty according to the law.
Therefore, Madam, whilst I fully respect the need for the freedom of expression, I believe that public discourse must not come at the expense of those who should be presumed innocent until proven guilty, upon completion of Court proceedings.
I refer to the accused parties involved in high-profile cases which may or may not have gained public sympathy, such as Mr Yang Yin, the ex-tourist guide, for alleged misappropriation of monies from an elderly widow; and former chief of Central Narcotics Bureau Mr Ng Boon Gay for alleged corruption and who has since been acquitted. In the case of City Harvest, in which six church leaders were prosecuted for alleged misappropriation of funds, the investigation and trial spanning six years had seen much adverse comments being cast in media and by members of the public in public forums. Some observers were of the opinion that the accused might have already been tried and convicted in the Court of public opinion. I especially empathise with those with young children who are paying the price of such conduct.
Regardless of our personal sentiments on those charged and the nature of their charges, the principle of according each defendant the right to remain innocent until proven guilty and a fair trial must be upheld. I am thus supportive of the Bill in defining sub judice as one of the primary acts of contempt of Court. As an American judge once said of unbridled reporting allowed in the name of freedom of speech and expression: that "free speech which is the strength of the nation can be the cause of its destruction".
In conclusion, Madam, I would like to ask the Minister to respond on two major concerns raised in regard to sub judice. The first one is on how the Ministry can ensure that freedom of expression is not unnecessarily muzzled whilst upholding the principle of fair trial and innocence of defendants till proven guilty and, in the process, help ensure that the vulnerable in their lives and the lives of the accused are not subject to trials by courts of media and public opinion.
The second clarification is on how the Bill can prevent abuse of the privilege of government, current and future, to exercise its right to comment on matters in the name of public interest; and for the Minister to provide illustrations of the circumstances, beyond SARS and runs on banks, under which this right is exercised. With that, Madam, I support the Bill.
Mr Edwin Tong.
Madam, the law relating to contempt of Court is of fundamental importance to our legal system and the administration of justice in Singapore. I think that much almost every speaker today agrees on. It is a means by which our Courts can assure that its authority is not undermined and act on to prevent those who do so.
As Lord Denning, a very famous British law lord, once said, "The course of justice must not be deflected or interfered with. Those who strike at it, strike at the very foundation of society." And that is why, when the Petition is brought, which suggest that this Bill stifles active and public discourse, we should sit up and look at it, because these are, indeed, very serious suggestions.
So, let me consider these concerns, outlined in the Petition, in the context of three aspects of the Bill: first, whether the Bill aims to stifle active and responsible discussion; second, the power given to the AG to issue a non-publication direction; and third, the proposed punishments which have been seen or described in the Petition as being out of step with benchmarks.
Let me deal with the first point. It would be useful, first, to understand what is the state of law today. What does it allow? What does it not allow? And the Bill sets this out very clearly with added explanations, illustrations and examples as to what amounts to contempt. These categories of conduct are no different from the conduct which amounts to contempt in common law as it stands today.
There are three aspects to it and I will cover them very briefly. First, a person will be liable for contempt if he or she disobeys the orders of the Court. This is very straightforward, requires no elaboration and can really brook no dissent. Court orders have to be complied with. Second, a person will be liable for contempt for statements which scandalise the Court, or which undermines public confidence in the administration of justice. And third, a person will be liable for contempt for sub judice statements. This means where a person makes a statement which may interfere with or affect a fair trial or which amounts to public prejudgment of a case. The Petition, in fact, regards all of these objectives as "laudable" and I think that must be correct.
Under our current law, lawyers, academics, laypersons are all free to criticise the outcomes of civil and criminal Court proceedings and decisions: to argue that a judge's reasoning was wrong, to say that the Court has misunderstood or ignored the evidence or placed the wrong weight on evidence, to argue that the Court's sentence in a criminal case was too harsh or too lenient in the circumstances. None of these would amount to scandalising, whether under the existing law or in the current Bill.
In fact, in a recent decision by the Court of Appeal, our highest Court, the Court was asked to consider an argument that the Court of Appeal had itself acted improperly in its own previous decision. I was the counsel in this case and the question which arose was whether there might be reservations in mounting a strong challenge against a decision of the Court of Appeal on the ground that the Court of Appeal has itself acted in breach of fair hearing rules. Those are very serious allegations. In considering such an argument, the learned Chief Justice observed that the Court would, in fact, expect "nothing less" than such a case be pursued with the "utmost force". He went on to say, and I quote: "Those who present difficult arguments to the Court with all due vigour but also with all due respect and etiquette that we expect of our officers, have nothing to fear".
So, when the hon Member Asst Prof Mahdev Mohan said the Courts are the final arbiter, this is their view. Our highest Court has made it clear that fierce and vigorous criticism of Court decisions, even those of its own Court of Appeal decisions, they are permitted. And there are clear rules by which this can be done. This happens, in fact, frequently, and our existing common law rules on contempt of Court already permit all kinds of criticism to be levelled at the decisions of the Court. Likewise, under the new Bill, this is no different, and I would ask the Minister simply to confirm this, to quell the disquiet that seems to have been going around this Chamber about what additional measures or additional hurdles this new Bill has put forward.
I now turn to the issue of interference with Court proceedings, whether by publication or by intimidation. The Petition seems to say that because of this that legitimate expression and discussion on public interest will be curtailed. Madam, those fears are, in my view, completely unwarranted. In fact, I would venture to suggest that such statements are alarmist and reveal a fundamental misunderstanding as to what this Bill and the law are all about.
Let me focus on sub judice. Everyone is entitled to a fair trial – the accused, the victim, their families and the potential witnesses. This is the law today and this is what the Bill has encapsulated. The test is found in clause 3(1)(b) of the Bill and has been frequently discussed. There are two limbs to it: first, it has to be an act which risks prejudicing legal proceedings and – this is conjunctive – a publication which tends to prejudice a fair trial of a case.
The real mischief which the existing law on sub judice statements, as codified in the new Bill, seeks to guard against is the prospect of "trial by media" and, as the Minister outlined earlier, the prevention of whipping up of sentiment against or for a particular outcome that a trial is meant to decide on.
In the course of my own practice of the law, I have noticed the marked proliferation – as I am sure all of you have – of social media and its effects on, in this case, the administration of justice, in particular, the increasing risk of trial by media. This is where an individual who is being tried in our Courts is accused, vilified and disparaged in the media or on online platforms which are accessible to many. Such behaviour is prevalent in other jurisdictions, especially where there are tabloid newspapers.
In relation to what has transpired in some overseas jurisdictions, I do not think we need to look beyond some of the highly publicised cases. The Minister mentioned Amanda Knox's case. Further ago, we had Michael Jackson's case, and more recently, we had Oscar Pistorius' case, both of which received significant public media attention which, to some extent, relegated and completely overshadowed the actual Court proceedings from start to finish. There is no shortage of local examples as well, as some of my colleagues have earlier outlined.
The effects of trial by media on the conduct of a fair trial in our Courts and the effect on an individual's life, and the prospects of that individual's chances and merits at a fair trial cannot be underestimated. It undermines the presumption of innocence, it could taint or discourage witnesses from coming forward and affect the evidence they give in Court, and puts the judge under unnecessary public pressure. And this can either be real or perceived.
What is wrong with coming down strongly in this case in favour of a fair trial? Let me quote something from the UK Law Commission 2012 when they were studying the effect of the Internet on the laws of contempt: "The volume of material that can now be stored, the ease with which it can be communicated and redistributed, the size of the audience that can be reached, and the global accessibility of information bring many new challenges, including for the law of contempt. While prejudicial information may historically have faded with the newspaper print, as well as from our collective memory, as data, it is now processed, archived and is retrievable for very much longer periods of time".
So, clause 13 of the Bill, in my view, seeks to address the fresh challenges which the new media poses, whilst at the same time, maintaining the constitutional balance between freedom of speech and the necessary limitations to such freedoms to protect against contempt of Court.
The clause allows the AG to direct a publisher of any matter to refrain from or cease publishing that matter, if he is satisfied that it is in the public interest to do so, and if he has the leave of the High Court.
This has been described as a "new power". But, even under the current law, it is already open to the AG to obtain a Court order, in appropriate cases, to restrain publication of statements which constitute contempt, including on an ex parte basis, and even before publication. The Bill simply makes the process clearer and introduces express safeguards by prescribing the legal test which the AG must satisfy when he goes to Court to seek a non-publication order.
In this case, I believe the issue is one of balance. On the one hand, we cannot shut out legitimate public discourse, which I agree is the hallmark of an engaged, active citizenry which we want in Singapore. But we also cannot allow a small minority of persons, who may have an agenda to insult, vilify, sensationalise, publish with callous abandon, especially with the Internet being what it is. Publication, re-posting and sharing occur instantly and, in a few hours, can become viral. It will be difficult, if not impossible, to completely remove postings, and that is precisely what the UK Law Commission had in mind.
And so, if we are to have any meaning behind our contempt rules, especially as regards the commission of contempt by publication, there has to be some power to stop the publication at source. If we agree that acts of contempt are harmful to the public interest, then the AG ought to be empowered to take swift and decisive action to prevent or stop the publication of such material in appropriate cases.
I accept that there could well be occasions where a Court might subsequently decide that the publication does not actually amount to contempt and sets aside the take-down order.
But this is not a case of absolutes, it is a case about striking the right balance, having regard to how quickly a publication can go viral, and it is in this context alone that clause 13 gives the power to the AG in the form that it does.
It also bears noting that this power is not unfettered, and the AG will require the leave of Court. And in order to get such leave, it will need to satisfy the Court that the acts, in fact, constitute prima facie contempt, and the Court will be guided by the principles set out in this very same Bill, before the order would be granted.
And the burden is on the AG to make an application to obtain ex parte, give full and frank disclosure, disclose all material facts to the Court, which also acts as a safeguard in scrutinising any such application.
Finally, I now turn to the issue of the proposed punishment for contempt. As a starting point, if we accept that our society needs the contempt rules, and that these rules are laudable, then such rules must be capable of enforcement.
Again, the power of our Courts to administer punishment for contempt is also not new. This power is already in our current Supreme Court of Judicature Act and our State Courts Act. Further, as in the case of Alan Shadrake which has been mentioned earlier provides, our law already allows a sentence of both imprisonment and a fine as punishment for contempt. And recently, as the Minister mentioned, there has already been a case where a Court has meted out a sentence of up to eight months' imprisonment for failure to comply with a Court order.
What this Bill does, however, is to prescribe an upper limit on the length of imprisonment and the quantum of the fine. While the State Courts Act prescribes an upper limit for the District and Magistrates Courts, the Supreme Court of Judicature Act does not currently prescribe an upper limit.
So, this Bill directly addresses this ambiguity by setting out the maximum punishment that can be meted for the offence. Clause 12 of the Bill thus states that where the power to punish for contempt is exercised by the High Court or the Court of Appeal, then a person who commits such contempt shall be liable to a fine not exceeding $100,000 or with punishment not exceeding three years, or both. It is important to remember that what the Bill sets out to achieve is to set a maximum punishment permissible by the Courts. This is the case in almost all of our penal statutes; it sets a maximum ceiling but this does not mean, as some speakers in this House seem to suggest, that the maximum will then become the benchmark in all cases.
Our Courts currently have, and under the Bill will continue to have, the discretion to mete out the sentence to fit the crime, to be appropriate, to be proportionate and to consider the relevant facts in each case of offensive conduct. Our judges are well-equipped and experienced in this exercise as there are many offences in the Penal Code and others for which there are maximum sentences and which require our judges to exercise their discretion in sentencing every day. There is, in fact, a whole body of law just on how that discretion ought to be exercised.
It is important for the range of punishments to be set out clearly, as some of my colleagues have acknowledged, and for our Courts to then have the discretion to decide within that range. In some cases, as our Court of Appeal recently did, a contemnor was punished with eight months' imprisonment. In the UK, recently, the punishment ranges from eight to 21 months. But really, one cannot apply one case and say that that becomes the standard for another. It is not cut from the same cloth, and so, it is not one size fits all, and the range simply gives our judges the discretion to apply them in the context of the relevant case.
Notably, and I would like to emphasise too, that the power of punishment applies across the board to all types of contempt, including cases of breach of protection orders for harassment, family violence, as Members have heard from our colleagues earlier, those which relate to the division of assets and for maintenance in the care of children. This will, indeed, ensure that the most vulnerable amongst us will have proper recourse in the event of non-compliance.
And before I leave the point on punishment, quite a number of Members have relied on the disparity in what happened and was meted out in Alan Shadrake being regarded by the Courts as one of the most serious cases of contempt. But what my colleagues may have omitted to take note of is the fact that the Court of Appeal, in that case, actually expressly disagreed with the punishment that was offered.
It, in fact, said that this was an entirely "undeserved discount" and which will and should not be taken as a precedent. The only reason or one of the reasons why the Court of Appeal did not change the sentence in that case was because the Prosecution did not appeal. So, it felt that this was what it would be bound by as a punishment given by the High Court. So, it is not tenable to use Alan Shadrake and the example in the Alan Shadrake case to say that we have moved the benchmark and moved the goalpost significantly.
Finally, two points of clarification which I would like the Minister to consider. First, because of what has been debated in this House and the seriousness of the matter, could the Minister give some further examples of trial by media and explain the damage which could be caused to ordinary citizens, whether to the accused or otherwise, and how the laws might then apply?
Second, in particular, clause 2(1) which defines "publish" to be dissemination or communication to the "public at large, or to a member of the public". Could the Minister clarify what does it mean to publish something "to the public at large or a member of the public", and how would this be distinguished from "private" communications? That is one of the concerns articulated, especially by the Member Ms Kuik earlier, and I think that is a valid point. If a group of friends sitting around in a coffee shop decides to discuss the ongoing criminal trial amongst one another, would that be caught by public communication? I should hope not. With that, I support the Bill, Madam.
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