It was hidden in page seven of the Straits Times (ST), and cunningly headlined to give the impression of a mild infraction. “Straits Times taken to task for bus driver story”, whispered the headline.
What the headline should have read, on page one of any objective paper: “Straits Times “plainly” in Contempt of Court”.
Retired High Court Judge and head of the Little India Committee of Inquiry Justice G P Selvam was crystal clear: ST was “in plain Contempt of Court” and was clearly guilty of “plain and simple interference with witnesses”.
This is a serious allegation made by a judicial authority.
If there is no follow-up action or statement from the Attorney-General’s Chambers (AGC), serious questions will rightly be asked by the public about whether the law of Contempt of Court is being applied evenly.
The form of contempt committed by ST is known, in legal language, as “sub judice” contempt. “Sub judice” is latin for “under judgment”, i.e. a case is being considered by a Judge or Court.
The purpose of sub judice contempt is to protect the integrity of ongoing Court proceedings, and to prevent decision makers and witnesses in proceedings from being unduly influenced by media reports.
Sub judice contempt is a species of contempt different from the offence of scandalizing the Court. Scandalizing contempt is committed when one publishes any writing that is calculated to undermine the authority of the Court.
In 2013, filmmaker Lynn Lee was called up in the evening and investigated for several hours by the police after she released an interview with the bus drivers involved in the SMRT strike.
More recently, cartoonist Leslie Chew and activist blogger Alex Au had contempt proceedings commenced against them for online publications. As a footnote, proceedings were commenced against Messers Chew and Au without any prior warning.
The sub judice contempt by ST is arguably more grave. ST is a national newspaper with a print circulation of over 365,000 readers, as well as a significant online presence. The Little India COI is of national importance, and is a far more high profile judicial proceeding than a run-of-the-mill Court case.
If any witness is unduly influenced by the ST’s coverage, this could have a deep impact on the national effort to make sense of a traumatic episode in our country’s history. The integrity and the outcome of the COI’s findings might also potentially be called into question at a later date.
Mr Warren Fernandez has said that it was not the ST’s intention to interfere with the COI. This is legally irrelevant to the issue of whether or not ST is in contempt. If ST is in contempt, the question of “intent” only goes to mitigating a potential sentence.
If no action is taken by AGC or no detailed explanation provided for any inaction, there could be deep and lingering disquiet about whether the law is being evenly applied.
In any action or explanation by AGC, the test of fairness to be met is this: if a sitting Judge had said that a socio-political website or a blogger was “plainly” in contempt of Court, what action would the AGC take?