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What’s this sub-judice?

By Tan Wah Piow

For weeks, Singaporeans were screaming for the Minister K Shanmugam to respond to the death of 14-year-old Benjamin Lim. The young lad who was accused of molestation, was arrested and interviewed by the police in the absence of his parents. And upon his release, apparently committed suicide soon after returning home. The collective shock over this unfortunate incident led to the public furore over the official silence on the issue.

When Shanmugam, who is both the Minister of Home Affairs and Minister of Law eventually opened his mouth, he defended the police, alleged that the government’s critics were wrong on the facts, and hinted that some might have committed the offence of sub-judice.

But what is this sub-judice?

Sub-judice in Latin means under judgement. It is a law which forbids public discussions of a court case once it is pending. The theory is that apart from factual reporting, any discussion could potentially prejudice the course of justice.

Fundamentalists insist that this rule is necessary to protect the rule of law, which is the bedrock of democracy. They argue that this is especially relevant in jury trials, or where cases in the lower courts are decided by lay justices who are not professional judges. This will ensure that decision makers are not subject to public pressure.

Freedom of speech advocates, however, argue that sub-judice law is an affront to free speech. The risk of interference to the due process is exaggerated because professional judges are capable of ignoring irrelevant opinions, and would guide the jurors to exclude from their deliberations any information or views which were not produced in court. Lay justices could likewise be trained with the mental discipline to decide on a case based exclusively on the evidence in a case. The freedom of speech school would like to restrict the application of the sub-judice law only to a very small number of exceptional cases where there is a real and serious risk of prejudice.

Both are respectable competing arguments in democracies where there are proper check and balances. Sub-judice when narrowly and responsibly applied, is a tool to protect the due process in the legal system.

However, when sub-judice law is applied in a dictatorship, it becomes a tool for repression. In an authoritarian society, the judiciary, and the legal profession operate under entirely different circumstances, and ethos. The distinction between the State and the dominant party is blurred.

For example in trials involving senior party officials say in China, the invisible hands of the security forces are known to work in mysterious way to secure the intended outcome, with judges toeing the party line.  In such a society, sub-judice law, where it exists, would simply function as a silencer to avert any scrutiny of the wrongdoings by the State and the dominant party.

In a sophisticated authoritarian society ruled by a dominant party, sub-judice lies alongside scandalizing the court legislation, and libel law as part of the arsenal used to criminalize and clobber its critics.  Discussions and pressures through social media on cases which attract public interests are often the only outlets beyond the regime’s control. Such forum acts as a positive counter-balance to the State-controlled media, and the insidious influence of the dominant party. They do at times achieve the right result, at least in exposing any miscarriages of justice. It is in those moments that sub-judice is invoked to suppress freedom of expression.

if the sub-judice law is correctly applied in an authoritarian society, the guilty would be the dominant party, the security forces, and the State media.

How different is Singapore from such a dictatorship? It is worth noting that even the more ‘liberal’ wing of the PAP unashamedly supports the dominant party ideology.

Anyway, it is ironic that Shanmugam should decry about sub-judice when what he said in Parliament on the Benjamin case would be frown upon by the standards of British Parliamentary practice. The Minister detailed statement exonerating the police and the school, and his remarks on the conduct of Benjamin are precisely the type of sub-judice which should be avoided even if he claimed that he got the green light from the Attorney General.

I would dismiss Shanmugan’s proposal to tinker with the sub-judice law as yet another  attempt to further narrow the political space for expressions of dissent. His targets are clearly the independent social media, and civil society. This will ultimately lead to the criminalization of yet another generation of activists who dare stand up against the dominant party.

To ensure a better system, we need to return to the rule of law, increase the democratic space for civil society and shackle the government to a democratic Constitution.

Only through people’s power can this vision be realized as Parliament has clearly failed to protect the citizens’ constitutional right to freedom of expression.