Amnesty International (AI) is calling on the Singapore government to drop contempt charges against social worker and activist, Jolovan Wham and politician John Tan following a hearing at the High Court on 17 July 2018.
In its statement on 18 July, AI states that the charges against both individuals are the first use of the Administration of Justice (Protection) Act to suppress freedom of expression. Charges have also been brought against local artist Seelan Palay for a peaceful protest he staged outside Parliament, which AI refers as further evidence of the country’s ongoing crackdown on dissent.
On 11 May 2018, the Attorney-General’s Chambers of Singapore (AGC) charged two activists, Jolovan Wham and John Tan, for “scandalising the judiciary”. Jolovan Wham, a human rights activist was charged for his Facebook post on April 27, 2018 stating that “Malaysia’s judges are more independent than Singapore’s for cases with political implications.” Senior member of opposition Singapore Democratic Party (SDP) John Tan faced the same charge for expressing the opinion on his Facebook page that Wham’s prosecution “only confirms that what he said is true.” The charges are the first of their kind under the new Administration of Justice (Protection) Act, which came into effect in October 2017.
AI has previously expressed concern that the Act would be used to criminalise people for criticising the courts or the administration of justice in Singapore, under the guise of protecting the judicial system.
On 17 May, the AGC charged Seelan Palay, a local artist, for his involvement in a public procession on 1 October 2017. The procession featured a political art piece titled ’32 years: The Interrogation of a mirror”. The art piece commemorated 32 years of detention without trial of former elected Member of Parliament, Chia Thye Poh. Palay obtained a permit for this protest, and walked from Hong Lim Park to Parliament with his art, wherein the police sought to remove him. Police alleged that Palay did not specify in his permit request his intention to move from the park to outside Parliament. He was deemed to have committed an offence punishable under Section 16(2)(a) of the Public Order Act.
The charges against the three individuals take place in a climate where activists regularly face harassment, investigation and charges for no other reason than the peaceful expression of their views, and for organising peaceful gatherings. While international human rights law allows for the exercise of the rights to freedom of expression, association and peaceful assembly to be subject to some restrictions, any such restrictions must be narrowly and precisely defined. They must be, first, provided by law; second, placed for the purpose of protecting certain public interests (national security or public safety, public order, protection of public health or morals) or the rights and freedoms of others; and, third, demonstrably necessary for that purpose. Any restrictions imposed which do not meet all elements of this “three-part test” constitute a violation of these rights. The charges against the three activists mean that the Singapore authorities have clearly failed this test.
AI calls on Singapore authorities to end all criminal proceedings against the three activists, and amend the Administration of Justice (Protection) Act to ensure that the human rights to freedom of expression and peaceful assembly are enjoyed by all and not subject to arbitrary restrictions.
The charges against Wham and Tan were brought under the contempt laws that took effect under the Administration of Justice (Protection) Act 2016, in October 2017. The Act includes a procedural mechanism that deals with publications deemed contemptuous in the social media age – and imposes punishments of fines up to $100,000 SGD and or imprisonment for up to three years. Prior to this, contempt of court was not codified in the statues.
Law Minister: Do not see why there is any chilling effect
During the debate on the passing of the legislation on 15 August 2016 , NCMP Leon Perera from Workers’ Party said,
“In setting out penalties, I fear that the maximum penalty stipulated in Section 12 – of a S$100,000 fine or up to three years in prison – may come to be seen as the minimum penalty.
In particular I fear that the $100,000 figure will attract undue attention and become fixed in the public mind as the liability one must be prepared to pay if a citizen wants to express his or her opinion on a matter of public interest that could potentially be subject to the contempt of court law.
Moreover this maximum cap is not aligned with past precedent. The sentence in the Alan Shadrake case was 6 weeks and a $20,000 fine. In Alex Au’s case, which involved scandalizing contempt of the Chief Justice, a fine of S$8,000 was meted out. Other fines have ranged from S$500 – $10,000. This is a far cry from 3 years imprisonment and $100,000 in fines.
The result for our democracy from the passage of this Bill and the attendant publicity could well be that no one who does not have $100,000 in cash to spare will dare speak up about any issue where there is even the slightest risk or perceived risk of prosecution under this law.
What does that mean for our democratic society, for the voices and contribution to public debate and consensus formation by Singaporeans with limited means? In a climate of high income inequality, do we really want to deepen the view that free speech is only something that the rich can afford?”
In response, the Law and Home Affair Minister, K Shanmugam said,
The law yesterday was unlimited. The law tomorrow will limit the penalties. That is a difference. From unlimited, it is now limited. And it was a point made by former Chief Justice Chan Sek Keong. It is a point made in various jurisdictions that the law should limit and set out the maximum penalties as opposed to leaving it unlimited.
Second, it is not correct to say, and I have made the point a number of times, that the penalties provided are at variance with the penalties that the courts have imposed. You are looking at one type of case, but there are many other types of contempt. If I were to ask any reasonable person here, going back to my example just now, $100 million and there is an injunction and the defendant takes out $50 million in breach of the injunction and he is brought to Court, what do you think the penalty ought to be? Five thousand dollars?
Supposing a penalty is imposed, he goes away and then he takes away another $25 million. What do you think the penalty ought to be? So, do you think eight months was excessive for the recalcitrant in the Family Courts? That was the law yesterday. How is this penalty, the maximum penalty that is prescribed here, at substantial variance with that eight months? So, it is not accurate to say it is at variance. The difference is that previously, it was unlimited. Today, if the Bill is passed, once it comes into force, it will be limited. That is a change to be welcomed.
As for this chilling effect, well, it will have a chilling effect on those who would constitutionally want to stand up every day and say that the Judge is biased. But it would have had that same chilling effect yesterday as well. As for the rest who want to discuss matters of public interest in good faith, I do not see why there should be any chilling effect. Now, in fact, the law is set out in writing, whereas yesterday, it was not.
The bill was passed on that same day with only Members of Parliament from the Workers’ Party which voted against it.