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Protecting our Judiciary and Free Speech

By Teo Soh Lung

The forum on the Administration of Justice (Protection) Bill at Wee Kim Wee Centre was an eye opener. The law on contempt of court has always been a petrifying and disturbing subject, one that opposes our right to free speech and expression guaranteed by our Constitution. Its application has been arbitrary and it is sometimes used in tandem with sedition laws which gives wide powers to the police including the power to arrest and seize properties.

The United Kingdom from where we copied the law have to their credit, abolished much of this archaic and undemocratic law despite their reliance on jury trials where lay persons are supposedly more influenced by public opinion. In Singapore, we have highly qualified professional judges who time and again have declared that they are independent and are not concerned with public criticisms or comments. With this bill, it is clear that Singapore has chosen to further curb free speech and expression.

We can accept that refusal to obey orders given by our courts constitute contempt of court. We can to a limited extent, accept that when a case is pending before the judge, we should be mindful when reporting or commenting on it so as not to prejudice or interfere with the course of justice. To proscribe free speech and expression to the extent spelt out in the new bill which no doubt will become law in August 2016, is unacceptable and unjust to the people of Singapore who have always been law abiding.

Peter Low explained the law of scandalising the court with illustrations of past cases affecting prominent activists and politicians. Young lawyer, Sui Yi Siong clarified the law on sub judice or intentionally commenting on a case which “prejudges, interferes or poses a real risk of prejudice to or interference with, the course of any court proceeding that is pending”. Jolovan Wham, an activist, spoke of his fears that the new bill which targets socio-political websites, activists and those with a significant following on social media will entrench self-censorship even further. Activists had, in the past been harassed for what they had published. They had to spend days in police lockups and had their computers and mobile phones seized, only to be returned as and when the police pleases.

DESIST AND REMOVE ORDERS

A member of the audience questioned the wide power of the attorney-general to direct anyone to refrain or cease publishing. Such orders can easily be granted by the High Court which is not permitted to hear out the defence of the aggrieved party. In applying for such an order, the attorney general need only raise a “prima facie” case i.e. show some evidence that in the interest of the public, the direction must be given.

The gross injustice to the aggrieved party is that he is not given the opportunity to explain to the judge why the direction should not be granted. Unless he takes up an application to set aside or vary the direction served on him by the attorney general, he has to comply with the order. We all know that taking out an application involves huge sums of money and time. I suspect that most recipients of such orders will quietly comply and do nothing.

This law is really gross. Why must the court be compelled to give the attorney general the order without hearing out the aggrieved party? Can we call the dishing of such orders "administration of justice"? Clearly, the new bill undermines our judiciary. Indeed, it allows the attorney general to make use of our judiciary.

INSTITUTIONAL BIAS

While the bill forbids the public from commenting on a pending case, the government is free to flout the law and do whatever it pleases. This has been the practice of the government for some time now. We see frequent press releases issued by ministers and ministries while cases are pending in court. Ministers comment freely and openly on pending court cases. Take for instance the Yong Vui Kong’s appeal in 2010. Yong was sentenced to death and had appealed against the sentence. One week before the judgement of the court of appeal was released, the Law Minister, Mr K Shanmugam, in response to a question from a member of the audience at a public event, said: “Yong Vui Kong is young. But if we say 'We let you go', what is the signal we are sending?” These remarks were widely reported in the media. Clearly, the minister was in contempt of court but no action was taken by the attorney general. See http://www.theonlinecitizen.com/…/prejudicing-a-fair-trial…/

The new bill legalises sub judice contempt of court committed by ministers and any person representing the government. The public on the other hand will suffer severe consequences if they comment on pending cases. They will be investigated by the police and have their computers and mobile phones forfeited, causing them huge monetary losses and grave inconvenience. While the police mine all the data in these devices, the privacy of the individuals concerned is invaded.

IS THE PUBLIC AFFECTED WHEN THE NEW BILL BECOMES LAW?

A member of the audience told me that the public will not be affected by the Administration of Justice (Protection) Act. While it is true that the new bill is targeted at activists, it does not mean that the public will not be affected. Activists speak out against injustices faced by the public and often the voiceless members of society. If they are all hauled up to the police station and have their computers and mobile phones seized, will they be able to speak up against injustices?

Function 8 invited the Law Society of Singapore as well as opposition members of parliament to share their views on the bill. The invitation was extended a couple of days before the forum. None attended or responded. I sincerely hope that they will speak up against the bill at the second reading.

Let me conclude with the words of Pastor Martin Niemoller’s. They are relevant today as they were in Adolph Hitler’s time:

First they came for the Jews
and I did not speak out
because I was not a Jew.

Then they came for the communists
and I did not speak out
because I was not a communist.

Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.

Then they came for me
and there was no one left
to speak for me.