Excessive Penalties and Vague Terms Will Lead to Self-Censorship
(Bangkok, 9 August 2016) – The Singapore parliament should recommend a review of the proposed new Administration of Justice (Protection) Act to better protect freedom of expression, as required by international law and the Singapore Constitution, Human Rights Watch said today. The draft legislation, which was tabled in July and will have its second reading in parliament on August 15, 2016, broadly defines the conduct that can be penalized as contempt of court.
“As drafted, this bill could easily become the next handy tool for the government to suppress critical speech in Singapore,” said Phil Robertson, deputy Asia director at Human Rights Watch. “People should be free to express their views of the justice system without fear of being imprisoned or bankrupted by onerous fines.”
The draft act includes broad restrictions on freedom of expression. In particular, the bill codifies the archaic offense of “scandalizing the court,” which prohibits not just disrupting judicial proceedings but criticizing the court or judicial administration generally, as well as reporting on ongoing cases if it could “risk” prejudicing the trial, even if a professional and presumably independent judge presides. The proposed law should be revised to narrow its scope and reduce disproportionate penalties, Human Rights Watch said.
The draft law provides penalties of up to S$100,000 and three years in prison for several forms of contempt of court, including the archaic offense of “scandalising the court.” Moreover, contempt is made an “arrestable” offense, meaning that those suspected of contempt can be subjected to warrantless searches and arrests.
“Scandalizing the court” is a common law offense dating from Singapore’s British colonial past that contradicts the right to free speech, Human Rights Watch said. The United Kingdom and several other Commonwealth states, including New Zealand, Canada, and Brunei Darussalam, have long since ceased to prosecute this type of contempt charge.
Under the draft bill, the “scandalizing the court” offense includes intentionally publishing anything that imputes improper motives to the court or impugns its integrity, or “poses a real risk of prejudice” to any pending case. While the accompanying legislative notes to the bill state that “fair criticism” (which is left undefined) is meant to be exempted, it will be not be an acceptable defense to contend that one didn’t intend to scandalize the court. The vagueness of the offense, combined with the harshness of the potential penalty, will likely cause many persons to self-censor rather than risk prosecution, thereby significantly curtailing open discussion of the administration of justice in Singapore, Human Rights Watch said.
In 2015, blogger and activist Alex Au was found guilty of “scandalizing the court” in a blog post commenting on the scheduling of two constitutional challenges to Singapore’s sodomy law. Au noted that the High Court ruling in the first case had been delayed and speculated that the reason might be so that the new chief justice, who had been the attorney general at the time the first case was filed, could sit on the bench hearing the challenge. The court found that his post suggested that the chief justice was partial, and he was convicted and fined S$8,000 (US$5,935).
In 2013, cartoonist Leslie Chew was charged with “scandalizing the court” in four satirical cartoons posted on his Facebook page “Demon-cratic Singapore.” The cartoons satirized court decisions for allegedly favoring foreigners, ruling for a celebrity and against a serviceman, imposing disparate sentences for the same offense, and joining a government vendetta against an opposition politician. Charges were dropped only after Chew agreed to delete the four cartoons and publicly apologize.
Author Alan Shadrake was sentenced to six weeks in prison and a S$20,000 fine (US$14,840) in 2010, for “scandalizing the court” in his book Once a Jolly Hangman, which suggested that Singapore’s mandatory death penalty for drug trafficking offenses is not always equitably applied.
Article 19 of the Universal Declaration of Human Rights, which is broadly recognized as reflective of customary law, protects the right to freedom of expression. International standards only allow content-based restrictions on expression in extremely narrow circumstances, such as threats to national security or public order. Restrictions must be provided by law, strictly construed, and necessary and proportionate to the interest protected.
The United Nations Human Rights Committee, in its General Comment No. 34 on the right to freedom of expression, states that “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.” The Human Rights Committee monitors the compliance of states parties to the International Covenant on Civil and Political Rights, which Singapore has not joined. Other international bodies interpreting freedom of expression, including the Inter-American Commission on Human Rights, have also disfavored laws that penalize criticism of public authorities.
The Administration of Justice (Protection) Act’s broad restrictions on discussion of ongoing court matters are also problematic. While restrictions on speech that poses a substantial risk of prejudice to a fair trial are permissible under international law, they should be narrowly drawn to interfere with good faith reporting as little as possible. In particular, it should be presumed that a professional judge is generally capable of ignoring or resisting improper influence from commentary outside the courtroom.
In addition, under the draft law, while citizens will be prohibited from discussing ongoing proceedings under the proposed new law, it specifically permits the government to comment whenever it feels it “is necessary in the public interest,” regardless of whether doing so could prejudice the ongoing proceedings and the presumption of innocence.
Finally, the proposed law gives the attorney general the power to seek a court order requiring the removal of potentially “contemptuous” material without giving notice of his application to those most affected. In fact, the law requires that the application be heard “without the presence” of the author or the person who will be ordered to take down the material. The court “must” grant the order if the government makes a prima facie case that the material falls within the law’s broad definition of contempt. Failure to comply with the order can result in a sentence of 12 months in prison, a S$20,000 (US$14,480) fine, or both.
“This proposed legislation is a one-sided law that as drafted will effectively gag any discussion of courts and justice in Singapore, so the government should send it back to the drawing board,” said Robertson. “It demonstrates, once again, just how far Singapore is willing to go to restrict freedom of expression and shield its justice system from scrutiny.”
Human Rights Watch is a nonprofit, nongovernmental human rights organization made up of roughly 400 staff members around the globe. Its staff consists of human rights professionals including country experts, lawyers, journalists, and academics of diverse backgrounds and nationalities. Established in 1978, Human Rights Watch is known for its accurate fact-finding, impartial reporting, effective use of media, and targeted advocacy, often in partnership with local human rights groups. Each year, Human Rights Watch publishes more than 100 reports and briefings on human rights conditions in some 90 countries, generating extensive coverage in local and international media.