Any comment can be deemed in contempt of court
Under the new Administration of Justice (Protection) Bill, any comment can be deemed in contempt. The definition of “publish” is extremely broad: it includes disseminating, exhibiting or communicating to even one member of the public, your friend, your relative or to a stranger.
This means that if you share or retweet a Facebook post or tweet that is in contempt, you, too, will be liable for contempt of court charges. This is true even if you did not realise it was in contempt. If you make a comment to even one other member of the public – such as making a comment over WhatsApp, sending a Facebook message or tweeting directly to that person – you could also be in contempt of court. Since the bill also covers all sorts of communication (oral, visual, written, even online), you could technically be in contempt of court just by making a comment to a friend or family member over a meal! It would be solely up to the Attorney-General whether to commence proceedings against you.
Even comments made outside of Singapore can be deemed in contempt Comments made overseas about ongoing cases in Singapore can also be deemed in contempt, as long as the comments are accessible by members of the public in Singapore. If you share a comment made by someone overseas, you could also be in contempt, even if it was not your intention.
When does contempt begin?
It is not very clear within the bill whether comments relating to police investigations would be in contempt if the person has not yet been arrested.
For example, Roy Ngerng and Teo Soh Lung were investigated earlier this year for the alleged violation of Cooling-Off Day rules. Although they were questioned, their homes searched and their property seized, neither have been arrested by the police. Have proceedings begun? Would it be contempt of court if people were to talk about their case or criticise police behaviour? The bill is vague about this.
What is contempt?
The government’s intention with the Administration of Justice (Protection) Bill is to promote clarity on the law of contempt. But important provisions within the bill are still vague.
For instance, it is unclear when a publication poses a “risk” of scandalising the court. This legal requirement for being convicted for scandalising the court is of a lower threshold than the current test established by judicial precedents.
To be fair, the bill does provide some defences against contempt. For instance, it says that “fair criticism” would not be in contempt of court.
But how is “fair criticism” defined?
When the language of the bill is so vague, it blurs the lines between what is or isn’t permissible discussion when it comes to pending court cases. This could lead to people thinking that it is better not to say anything at all, so as not to risk getting in trouble. This would defeat the purpose of having a bill that is meant to provide clarity and allow for discussion that is in the public interest.
The government is allowed to comment
The bill allows a person on behalf of the government to comment on an issue in an ongoing court proceeding if the government believes it is necessary in the public interest. This means that as long as the government thinks it is in the public interest, they will be able to comment, whereas the ordinary citizen might be held in contempt.
This creates a very unequal relationship where public discourse on an ongoing case could be dominated by the state. In 2013, while the High Court was scheduled to hear two cases challenging the constitutionality of Section 377A – which criminalises sex between men – Prime Minister Lee Hsien Loong said, “Why is that law on the books? Because it’s always been there and I think we just leave it.” This was about a week after the Attorney-General issued a statement warning members of the public to refrain from making any comment about the upcoming cases, as it could be sub judice contempt.
This incident illustrates the imbalance between the power and voice of the government and that of the people. The Administration of Justice (Protection) Bill would enshrine this imbalance in legislation.
The Attorney-General can order you to take things down with no warning
The bill allows the Attorney-General to order an individual to take down publications that could potentially be in contempt. The Attorney-General is not required to inform this individual that it has applied for a court order to take down the publication; the individual will only find out once the order has been granted and served.
The only recourse this person will have is to apply to the court to have the order set aside. This process is both complex and expensive, and the individual will have to satisfy the court that the publication is not in contempt. The failure to comply with the take-down order is a criminal offence, and an arrestable one too. If convicted, the maximum penalty is a fine of $20,000, up to 12 months in prison, or both.
The penalty is really harsh and disproportionate to previous rulings
Under the bill, the maximum penalty for contempt of court is a fine of $100,000, up to 3 months in prison, or both. This is far higher than the current legal precedent. British journalist Alan Shadrake’s case was described as the “worst case of contempt”, but even then his sentence was a fine of $20,000 and 6 weeks’ imprisonment.