By Vincent Wijeysingha
This week the news was dominated, at least for those of us who believe that the fundamental freedoms define our citizenship, by the Attorney General’s application to sue the blogger, Alex Au, for scandalising the judiciary. Alex had written a post on his blog, Yawning Bread, in early October where he reported “a common view” – on which I had also speculated – that that the High Court manipulated hearing dates in the two Section 377A constitutional challenges before it.
The bulk of the blog post was dedicated to an analysis of the court processes in the two cases. The timetabling, what he described as a “neat theory”, was only mentioned in passing. Note well that even so, he did not accuse the judiciary, he merely speculated on the “strange calendaring”. Nevertheless, the Attorney decided that Alex scandalised the court and seeks his punishment.
We should note as a necessary preface to the Attorney’s shameful action, that the offense of scandalising the judiciary (a species of contempt of court), which originated in the English legal system where our own finds it roots, was abolished by the British parliament earlier this year. The bringer of the amendment in the House of Lords, Lord Pannick, said, “The judiciary has no need of such protection. The wise judge normally ignores insults out of court.” Another judge, Lord Brown, had said quite sensibly in a case in 2000, “A wry smile is, I think, our usual response.”
In England, the law has fallen into obsolescence: the last conviction was more than a hundred years ago. But Lord Lester, speaking in the debate on 10 December 2012, made an extremely important point:
Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence. By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world.
(Lord Lester is familiar with how our courts do business. He acted for Teo Soh Lung when she was detained under Operation Spectrum until he was barred from Singapore midway through the case.)
The judges on the Singapore bench, it seems, are made of flimsier stuff. Apparently, they are unable to smile wryly. Twice this year contempt laws were invoked against a cartoonist and a filmmaker. In another case the blogger, Han Hui Hui, was threatened with suit by the Council for Private Education, a statutory board, for highlighting poor standards in a private college. The CPE later withdrew its suit.
Why is our government, so beleaguered since the 2011 General Elections, reverting to the juridical bullying that characterised the Lee Kuan Yew administrations? His successors tried to distance themselves from it. Recall that Goh Chok Tong promised a more open-minded and consultative style of government. Recall again that Lee Hsien Loong, speaking in 2004 to the Harvard Club, said,
I have no doubt that our society must open up further…. Looking ahead, one important task of the government will be to promote further civic participation, and continue to progressively widen the limits of openness…. We will promote a political culture which responds to people’s desire for greater participation, in a manner which supports Singapore’s growth as a nation.
Perhaps the timing is telling. It is midway between general elections and the government is getting nervous. In the last two elections the popular vote declined by 15%. The PAP’s performance to date; persistent poor showing in industrial production; prices continuing to rise; corruption in the public service; a slew of protests at Hong Lim Park; and the dismal performance of several ministers, not to mention the loss of another constituency via a by-election, is making it view the internet as the enemy. For it is there that the thoughts and aspirations of citizens, much of it inimical to the government, are expressed.
Ministers, particularly the new ones, began their term of office with such confidence, opening up Facebook accounts, initiating a National Conversation, approaching hitherto taboo policy areas, and even taking upon their lips the words ‘human right’, once so calculated to attract the animus of PAP leaders. But in these last several months, we see a different side to our sorry-saying, promise-making, we-will-do-better cabinet.
The government is insecure. It is not sure what to do or how to do it. The use of the ISA is now all but beyond its reach principally because it no longer has control of the information space. In 1987, all the administration had to do was invent a fiction of Marxist conspiracies and the spectre of state overthrow and a compliant media turned it into fact. There was no internet back then so whatever baloney the government uttered was dutifully reported by the media and – this is the nature of moral panics and scandal mongering – rapidly became truth. Prof Cherian George, in an interview this week suggested,
One of the pillars of PAP dominance was its ability to set the agenda by getting the cooperation of a small number of gatekeepers in the establishment media, and by forcefully keeping everyone else out of the game. Suddenly, there are many more new players and the old legal, political and economic carrots and sticks don’t work.
There is nothing so conducive to oppression as silence. It should surprise nobody that the early PAP administrations worked extremely hard to bring the flow of information under its charge. Control of information meant control of minds which in turn meant subservience and complaisance and quiescence, none of which can withstand the demands that a modern, complex society places upon us. President Kennedy, speaking to the press in 1961 argued,
The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions.
Our current administration views the internet with horror. As far back as 2007, the PAP set up a subcommittee to combat negative information. Its allies went online to put their perspective, usually nothing more than innuendo and character assassination. Following the 2011 GE, the campaign stepped up with dedicated Facebook pages uttering the most preposterous falsehoods.
And then sometime last year, the maladroit minister over at Communications and Information, floated the idea of an internet Code of Conduct. Assuredly the idea went down like a lead balloon with our opinionated bloggers. In his usual way, the Minister blundered through the morass for a few weeks and then quietly dropped the idea. Not even his sister, an editor at The Straits Times, could help him there. For a few months, all became quiet on the Western Front. The government was brooding. They saw that all was not good.
Then came the first assaults. In December last year, when more than 150 bus drivers went on strike, the Minister for Manpower applied the defamation laws to me in response to a long Facebook Note querying his assertion that sufficient avenues existed for labour grievances and therefore the drivers should not have gone on strike.
Later, Alex Au was attacked, this time by the Prime Minister. Then came Lynn Lee, then Han Hui Hui, then Leslie Chew. Later still, new MDA Regulations were made to regulate blogs and news sites. Tessa Wong of The Straits Times dutifully wrote a sordid two-page spread about the blogosphere, complete with photos of the more popular – and therefore, culpable – writers. A little further on and a Minister, in a most unparliamentary display, criticised a popular blogger on the floor of the House during a debate on the Haze. Later still, Minister Tan Chuan Jin issued a mealy-mouthed diatribe against “keyboard warriors”. And in recent weeks we heard that the Law Minister will bring new legislation on cyberbullying next year, citing a weak – indeed extremely weak – survey carried out by Reach Singapore.
But to a highly educated, sophisticated and well-travelled population, the policement of yesteryear is likely to have a diminishing impact. Prof George, in the same online interview I referred to above, suggests a new way forward:
First, it must have confidence in itself that it can win debates fair and square, without recourse to unnecessary force. Second, it must have confidence that democracy works, and that the majority of Singaporeans would support a government that does the right thing in the right way. Third, arising from this confidence, it must relax its grip on the mainstream media and allow professional journalists to do their job of fearlessly serving the public interest. And fourth, stop using laws like defamation or contempt against critics when you could persuade more people by simply engaging the debate. Basically, never pull rank online. Win respect by being right, repeatedly.
The PM spoke eloquently in similar terms to the Harvard Club. In his 2008 National Day Rally speech he again raised this issue, calling for a new dawn. But as we get closer to the next general elections, he is reverting to PAP form and showing the government’s hand clearly. There can be no doubt now that he and his colleagues intend to tame the internet so that “unhappy citizens” cannot, or become afraid again, to put legitimate criticisms against the government. They approach the freedom of expression with a sledgehammer not because they cannot hold their own but because they have never had to do so. The PM and his ministers would do well to hear the words of the UK’s Law Commission which recommended the repeal of the scandalising offense:
Preventing criticism contributes to a public perception that judges are engaged in a cover-up and that there must be something to hide. Conversely, open criticism and investigation in those few cases where something may have gone wrong will confirm public confidence that wrongs can be remedied and that in the generality of cases the system operates correctly.
President Kennedy again: “Without debate, without criticism, no administration and no country can succeed – and no republic can survive.” The Prime Minister must come to understand this. His father’s sledgehammer and knuckleduster cannot be the tools which he will use in the twenty-first century because they will not work.
The Attorney General’s action – and let us be clear, he is not acting at his own instigation but at the behest of the government whom he serves as its lawyer – is an indication that the government has not come to terms with the reality of the internet. It fears the free flow of information; it is afraid to allow its arguments to stand on their own merits. If it allows this legal action against Alex Au to take its full course, it will serve the cause not of discipline but of resentment. It cannot be so witless as to believe that this will reap a dividend at the next elections. It will not.