By Ng Yi Shu
Being a socio-political blogger in Singapore is not an easy job.
In an era where controls over freedom of speech exist in legislation and where such controls hang over controversial (perhaps untrue) remarks about the establishment, critical speech needs to be better thought out to prevent falling foul of contempt of court, defamation laws, or even less clear cut OB markers.
The National Solidarity Party (NSP) forum, held on 10 November 2012 at the RELC International Hotel, helped shine some light on the risks socio-political bloggers faced in political discourse, be it legal or political. In attendance was about 80 members of the public and members of the NSP.
Speakers included Dr Jack Tsen-Ta Lee, a professor at Singapore Management University’s law faculty, Peter Cuthbert Low, former president of the Singapore Law Society, Dr Cherian George, associate professor of Wee Kim Wee School of Communication and Information, Nanyang Technological University, as well as Choo Zheng Xi, lawyer and co-founder of The Online Citizen (TOC).
While a host of issues with regards to online speech was discussed ranging from copyright issues to defamation laws, here are the highlights (the full speeches will be available on YouTube soon).
The effects of the Singapore Constitution on laws that restrict fundamental rights such as freedom of speech: Dr Jack Lee
Part IV of the Singapore Constitution provides for fundamental liberties, such as freedom of speech, assembly and association.
These rights have not been removed, but restrictions on them have been imposed as Parliament considers necessary for various reasons (for instance, ‘the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence’).
This is not only unique to our country though, as most liberal democracies today continue to have defamation and libel laws and restrictions on freedom of speech.
However, in Singapore, according to Dr Lee, these restrictions permit the executive to wield wide discretionary power, as decided in the case Chee Siok Chin v. Public Prosecutor (PP).
There, the High Court ruled that ‘the phrase necessary or expedient’ conferred ‘upon Parliament “an extremely wide discretionary power and remit that permits a multifarious and multifaceted approach towards achieving any of the purposes specified in Art 14(2) of the Constitution”.
However, in the case Yong Vui Kong v. PP, where it was determined that the mandatory death penalty did not infringe upon Articles 9(1) of the Constitution of Singapore (which guarantees one to the right to life save in accordance with law), the Court of Appeal ruled that the term ‘save in accordance with law’ in Article 9(1) of the Constitution might not encompass ‘legislation “of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being ‘law’ when they crafted the constitutional provisions protecting fundamental liberties”’, thereby giving some hope that perhaps in future challenges on the constitutionality of laws pertaining to freedom of speech and expression our judicial system may succeed on the basis that such laws are absurd and arbitrary.
Defamation law – Responsible journalism in the UK and Singapore: Peter Cuthbert Low
In the Lee Kuan Yew v. Far Eastern Economic Review case (which the former MM eventually won and was awarded $405,000 in damages), the Court of Appeal rejected FEER’s ‘defence of qualified privilege’ under the English “Reynolds’ privilege” test of responsible journalism, as described by senior lawyer Peter Cuthbert Low.
The Court held that this defence did not exist in Singapore law and that – even if it did – FEER was not considered to be Singaporean citizen (if a corporation could be considered as citizens of any nationality) and that “they had not undertaken the steps necessary to fulfil the ‘responsible journalism’ test”.
Therefore, Low asked, is the defence of responsible journalism available to Singapore citizens?
The answer is, no.
However, the Reynolds’ Privilege has since been applied in 10 countries, notably in Malaysia and Brunei. But unless a similar court case comes around to be decided in the Singapore Court of Appeal, we may never know the definitive answer to this question.
What contempt of court looks like: Choo Zheng Xi
Next up, lawyer and co-founder of TOC Choo Zheng Xi walked the audience through the law on Contempt of Court.
Striking a positive note, Mr Choo noted that contempt of court cases have to meet the test of (since Alan Shadrake v. PP) the ‘real risk’ in order to be found in contempt of Court. This means that statements that are charged for contempt of court are analyzed on the basis of whether they ‘pose a real risk’ of ‘undermining public confidence in the administration of justice.’
This was a departure from the previous “inherent tendency” test that the Courts adopted, which was a lower threshold to meet.
Mr Choo emphasized that the law of contempt of court, as formulated by the Courrs, was not meant to stifle public debate. As stated by Justice Quentin Loh (PP v. Alan Shadrake): “(The law) does so for the sake of the dignity of the judges… to ensure public confidence in the administration of justice does not falter, and this… is the surest guarantee that justice will in fact be administered, in accordance with law.”
Using three case studies to illustrate to the audience what constitutes contempt of Court, Mr Choo attempted explain to his lay audience what could constitute contempt of Court.
Mr Choo explained to the audience that it was open to ordinary citizens to critique the law, critique prosecutorial discretion and critique judicial reasoning without falling foul of laws on scandalizing the Court.
Mr Choo also noted that while it might not be entirely clear to the audience what exactly contempt of Court looked like, they could draw some comfort in the fact that even Judges disagree.
As an example, he noted that in the Court of Appeal case of Alan Shadrake v. PP, the judges of Appeal disagreed with the High Court Judge hearing PP v. Alan Shadrake as to whether Mr Shadrake’s 2nd and 14th statements of Mr Shadrake’s book cited by the AGC for contempt constituted contempt.
Further, Mr Choo noted that it was a positive development that in the case of Mr Alex Au’s criticism of the Judicial process in relation to the case of Woffles Wu, the AGC forewarned Mr Au with a stern warning letter instead of proceeding with charges immediately.
Managing Political Risks: Out-of-Bound Markers: Dr Cherian George
Dr Cherian George classified political discourse into several classes, each nested within the other through their degrees of legality and acceptability in political circles.
First, he noted that there was the non-legal civil disobedience practiced by SDP activists in the past, notably during 2006’s IMF-WB protests – challenging restrictions on freedom of assembly.
Then, there is the legal critical discourse that falls out of the OB markers dictated by society and government (think the Temasek Review Emeritus).
Going inward, there is critical discourse that falls within the OB markers, and at the centre of safe discourse,pro-establishment discourse that supports the government (think the Fabrications About the PAP website).
So what are exactly OB markers?
Dr George defined these as lines of political acceptability. These are highly tricky to identifyas they are not written down anywhere, highly contextual, and depending on political cultures and context, they move. They do exist elsewhere (anti-establishment Tea Party or Occupy Wall Street speech could be considered outside of American OB markers, for instance), but in liberal countries the space is wider and the risks are lower. Even elsewhere in the East, OB markers are not as hypersensitive and dominating as ours – Dr George notes jokingly that ‘Singapore is the only ‘Asian’ country left with ‘Asian’ values of governance’.
What are the consequences of overstepping OB markers?
Crossing the OB markers may mean loss of political access for news groups and citizen journalists. It may mean a loss of employment opportunities with the government, or economic opportunities in terms of funding.
Things that may formerly be considered out of OB markers include: personal attacks, questioning government competency and legitimacy, support for opposition and a support for human rights. But with massive participation of such discourse through last year’s GE2011, a silent shift has occurred, making some activities listed above acceptable. Perhaps organizing and mobilising for causes that challenge government’s ability to set the agenda and selling causes that the government may find problematic will not be out of OB markers in the future.
The larger challenge that we face today to extend the political/cultural and legal limits to freedom of speech requires independent institutions that are not influenced by political blacklists of individuals and groups.
Perhaps in partaking in socio-political discourse, citizens should not be intimidated by the rules and regulations surrounding it. What may be more important is the opportunity to partake in the country’s future instead.
Recognising the legal and political obstacles to speech may help in navigating the socio-political blogosphere, but we should not let these obstacles consume us with fear.
What is interesting about the talk was the balance the speakers attempted to strike between explaining restrictions on freedom of speech and suggesting how the new generation of vocal bloggers could navigate them.
Perhaps what might be necessary is for all of us to continue to call for change and reform in the legal and cultural restrictions that limit us from freedom of speech, allowing us for constructive discourse for the next generation.
By Ng Yi Shu