A district judge on Wed (27 Nov) has dismissed lawyer M Ravi’s application to bring a constitutional challenge pertaining to his client’s criminal defamation case to the High Court.
District Judge Christopher Tan, during the open court hearing, decided that the issue “does not merit” a referral to the High Court.
In making a case for the constitutional challenge, Mr M Ravi, the instructing solicitor for Daniel Augustin de Costa, cited a Court of Appeal ruling in Attorney General v Ting Choon Meng , in which the court held that the Government could not have been a “person”, based on Section 15 of the Protection from Harassment Act (POHA).
Judge Tan, however, said that defamation is “quite different” from the POHA legislation cited by Mr M Ravi, as harassment results in emotional or psychological consequences that “should rightly be restricted to human victims”, whereas defamation — under Section 499 of the Penal Code — is not.
Mr M Ravi also argued that the Cabinet, an organ of the Government, does not have a reputation to protect, as it is not a ‘person’ who is entitled to “non-derogable rights as found in Article 9(1) of the Constitution”.
Article 9(1) of the Constitution provides that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law.
The expression “life”, Mr M Ravi argued, has a wider meaning than “animal existence or a continued drudgery through life”, where therefore “the outcome of departmental inquiry is likely to adversely affect reputation or livelihood of a person”.
Citing the Indian case of Municipal Board Konch v Ganesh Prasad Chaturvedi , in which the the Defendant was alleged to have defamed the Board and he was found guilty at the trial stage, Mr M Ravi highlighted that the conviction was later reversed, as the Municipal Board is a governing body and does not have a reputation to protect.
Mr M Ravi pointed out that it was held in the case that ‘A Municipal Board, per se has hardly a reputation…where the minority party attacks the majority party for inefficiency then such an attack does not amount to a defamation. The imputation held did not harm reputation of the Board, the intention being to improve the administration.’ [emphasis by Mr M Ravi]
Consequently, Mr M Ravi argued that the Municipal Board in the aforementioned case is “of a similar nature” to the Cabinet in the present case, and thus the Cabinet — in Mr De Costa’s case — does not have a reputation to protect “as an organ of the Government”.
“By being an organ of the Government, the Cabinet shouldn’t be held differently from a local municipal body, as seen in Municipal.
“Hence, when applying Municipal to the Cabinet, it is submitted that the Cabinet should not have the power to sue,” Mr M Ravi argued.
On the other hand, Mr M Ravi argued that his client is deprived of his liberty not in accordance with law, “as the charge against him is a violation of his rights under Article 9(1)” of the Singapore Constitution.
“The implication here is that, while a private citizen has a right to defend their personal reputation, it is unseemly for a government body, with all its authority, to likewise claim to need such protection,” Mr M Ravi argued.
Criticisms of govt cannot constitute defamation; not in the interest of the public and freedom of speech to allow organs of government to curtail criticism: Lawyer M Ravi
Mr M Ravi also argued that “there is no Constitutional restriction on free speech on grounds of “defamation” within the current context”.
Citing the legal principle outlined in Derbyshire County Council v Times Newspapers Ltd , which holds that:-
(a) Under Common Law, a local authority does not have the right to maintain an action for damages for defamation as it would be contrary to the public interest for the organs of government, whether central or local, to have that right; and
(b) It was of the highest public importance that a governmental body should be open to uninhibited public criticism, and a right to sue for defamation would place an undesirable fetter on freedom of speech,
The word “defamation” in Article 14(2) of the Singapore Constitution “cannot include criticisms of governmental bodies” in order to “preserve the substance of Article 14(1)(a)’s protections of free speech”.
Article 14(2)(a) of the Constitution provides that Parliament may by law impose — based on Article 14(1) — “such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof […] and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence”.
Article 14(1)(a) provides for the right of every citizen of Singapore to freedom of speech and expression.
Consequently, Mr M Ravi contends that “criticisms of the government cannot constitute a “defamation” of the government that allows Parliament to restrict free speech”.
Question posed by defence lawyer “a simple legal question couched misleadingly in constitutional language”: Lead prosecutor
In response to Mr M Ravi’s application to refer the matter to the High Court, Deputy Chief Prosecutor Mohamed Faizal — the lead State Counsel in the present case — argued that “the question posed in this case is nothing more than a simple legal question couched misleadingly in constitutional language”.
The defence’s lawyer’s act of posing the question, therefore, was “a flagrant abuse of (court) process, frivolous and without merit”, alleged DCP Faizal.
Mr M Ravi, however, argued that “such questions are relevant and important not only to the Accused, but to all of Singapore”.
“Left without an answer, they create gross ambiguity in how the citizenry should engage with and comment on the actions of their elected governments, and the ambit of their rights under the Constitution,” he added.
DCP Faizal argued that the question of whether the word “person” under criminal defamation law specifically refers to “natural persons” is “a conventional exercise of statutory interpretation, and has absolutely nothing to do with the Constitution”.
The public prosecutor also said, “at the risk of reiterating the obvious”, that Mr De Costa’s charge entails not the defamation of Cabinet per se, but members of the Cabinet, as the latter are “individual persons”. The question posed, he added, is “squarely met” by this fact.
Citing a previous Court of Appeal ruling, he highlighted: “It is Parliament that has the final say on how the balance between constitutional free speech and protection of reputation should be struck.”
“What is the appropriate balance between the right of freedom of speech and the right to protection of reputation in the UK, or any other common law countries for that matter, may not necessarily be the correct balance in Singapore,” DCP Faizal said, in reference to Mr M Ravi’s citation of several legal authority — among them the legal principle or reasoning in the English Derbyshire and the Indian Municipal Board cases — in the defence lawyer’s earlier submissions.
The Singapore courts, the lead prosecutor argued, have ensured “that the protection of reputation should prevail over the freedom of expression”.
“The public policy underlying defamation law in Singapore is that the freedom of expression is circumscribed by the right of others to the protection of reputation,” said DCP Faizal.
Lead prosecutor claims the application is not “a complex matter”; defence lawyer points out the need for four public prosecutors if such is the case
DCP Faizal also rejected the notion that Mr M Ravi’s application for a constitutional challenge is based on the complex issues in the present case.
“My learned friend asked the court to anxiously scrutinise the charges. We ask the court to do the same… My learned friend says it is a complex matter, it is not,” he said.
DCP Faizal added that Mr M Ravi’s question is a “complete nonstarter”, as Mr De Costa’s defamation charge states that he had defamed members of the Cabinet, and not the Cabinet as an entity.
“At the end of the day, we have ultimately an applicant who knows too well that the question he posed is not engaged in the present facts… We say it is nothing more than a smokescreen,” the public prosecutor charged.
Mr M Ravi, in turn, questioned the need for the State to have four public prosecutors working on the immediate case if the questions raised in his application were not complex.
Mr M Ravi also said that if the prosecution were truly referring to members of the Cabinet as individuals when referring to the Cabinet in their charges against Mr De Costa, they should consequently indicate which members of the Cabinet in particular that they are basing their charges against his client on.
“I understand they are clutching at straws because they are making personal attacks on my client,” Mr M Ravi replied, in response to DCP Faizal’s accusation that the defence lawyer and Mr De Costa have “an ulterior motive to change Singapore law, so as to align it to the outcome of a 1964 landmark decision of the US Supreme Court”.
In the 1964 US Supreme Court ruling, it was decided that the freedom of speech protections in the First Amendment to the US Constitution places limitations on the ability of American public officials to sue for defamation.
Defence lawyer “surprised” by court’s acceptance of prosecution’s argument that “individual cabinet members are distinct from the cabinet as an an entity”
In response to the judge’s rejection of his application for Mr De Costa, Mr M Ravi said that he is “somewhat surprised that the court accepted the Prosecution’s position that individual cabinet members are distinct from the cabinet as an an entity”.
“This is somewhat disturbing that those like Ministers who exercise governmental authority are artificially distinguished as government or cabinet as such.”
The trial is expected to resume in Jan next year.
Background on De Costa’s application for the constitutional challenge
Mr De Costa filed an application on 27 Aug this year for a case to be stated to the High Court on the following question:
8 the phrase ‘the reputation of such person’ is to be read as being limited to natural persons only having regard to the decision of the Court of Appeal in Attorney General v Ting Choon Meng , and does not extend to the Cabinet having regard to the Articles 235 and 246 of the Singapore Constitution.
Mr M Ravi, via the Carson Law Chambers Facebook page, previously said that its constitutional question before the court is whether the phrase “the reputation of such person” under Section 499 of the Penal Code is to be read as being limited to “natural persons only” — having regard to an earlier decision of the Court of Appeal decided in 2017 — and that the Cabinet is not a “natural person” by any definition and in accordance with Articles 23 and 24 of the Constitution.
If the court had allowed Mr De Costa’s application and issued a ruling in his favour, it was possible to have the criminal defamation charge against him quashed under the inherent jurisdiction of the Court.
According to Carson Law Chambers, the court had asked Mr De Costa for the following on 11 Sep this year:
a. The defence’s interpretation on the meaning of what is a constitutional question of law;
b. If the defence is arguing whether the case stated relates to a constitutional question; and
c. The basis in support of such an argument, if they are indeed arguing that the issue is a question in constitutionality.
Further background on De Costa’s case
Mr De Costa was arrested on 12 Dec 2018 under Section 499 of the Penal Code, which states that “whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.
He was subsequently charged under the same Penal Code provision at State Courts the following day under Section 500 of the Penal Code (Cap 224, Rev. Ed. 2008) for criminal defamation, the following of which is the full charge:
‘… that you on 4th September 2018, at about 7:24pm, at an Internet café located in Chinatown, Singapore had defamed members of the Cabinet of Singapore by making an imputation concerning members of the Cabinet of Singapore by words intended to be read, to wit, by sending an email titled ‘PAP MP apologises to SP’ from [email protected] to [email protected] which you had written and which stated that there was ‘corruption at the highest echelons’ intending that the contents of the said email would be published on the website www.theonlinecitizen.com, knowing that such imputation would harm the reputation of members of the Cabinet of Singapore […]”
Willy Sum was a pseudonym used by Mr De Costa.
Mr De Costa was alleged to have sent an email titled “PAP MP apologises to SDP” on 4 Sep 2018 from [email protected], with the intention of having the contents of that email to be published on TOC.
Mr De Costa was additionally charged for committing an offence under the Computer Misuse Act of Singapore.
Published on 4 Sep 2018, the article submitted by Mr De Costa alleged that “we have seen multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers ever since the demise of founding father Lee Kuan Yew”.
The offending article was taken down under the orders of Infocomms and Media Development Authority (IMDA) on 18 Sep 2018. IMDA then reported the article to the Singapore Police Force the following month on 8 Oct 2018.
On 20 Nov 2018, the police seized electronic devices from TOC‘s editor-in-chief Terry Xu’s and Mr De Costa’s respective residences under court orders.
Mr Xu was subjected to an eight-hour interview with the police on the day itself, while Mr De Costa was interviewed at a later date.
Under Section 500 of the Penal Code, those found guilty of criminal defamation may be subject to maximum sentence of two years’ imprisonment or a fine or both.