In order to not lose his chance of standing in the next General Election, Singapore Democratic Party (SDP) vice-chairman John Tan said that he would rather be given a jail sentence than to pay a fine of S$5000, the Supreme Court heard on Wednesday (22 January).
This is because under the constitution, an individual is automatically disqualified to run in election to become a Member of Parliament if he is jailed for a minimum of one year or fined at least S$2000.
Mr Tan’s lawyer, Eugene Thuraisingam, explained to a panel of five judges at the Court of Appeal that although the court is not required to favour Mr Tan’s request, but he is “willing to serve” a harsher sentence.
“I am asking the court to exercise discretion and mercy to (grant) him a jail sentence,” he noted.
In response to Mr Tan’s request, Deputy Chief Prosecutor (DCP) Mohamed Faizal Mohamed Abdul Kadir, who is representing the Attorney-General, pointed out that the court should not be the place where accused individuals can request for a certain course to be meted out based on their political desires.
All the five judges – Chief Justice (CJ) Sundaresh Menon and Judges of Appeal (JA) Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – reserved their judgments on the appeals on Wednesday.
The opposition politician was dragged to court following a statement he made on a Facebook post on 6 May 2016. Mr Tan’s statement came in response to news that the Attorney-General had initiated contempt of court action against civil rights activist Jolovan Wham.
This action refers to Mr Wham’s Facebook post uploaded on 27 April the same year. In the post, he stated that judges in Malaysia are more independent compared to the ones in Singapore when dealing with cases with political implications.
Following this, Mr Tan expressed in a post saying, “By charging Jolovan for scandalising the judiciary, the AGC (Attorney-General’s Chambers) only confirms what he said to be true”.
Due to their posts, the both of them were slapped with a fine of S$5000 each after they were found guilty under the new contempt of court laws, which came into effect in October 2017.
However, the duo returned to court on Wednesday as the Attorney-General has appealed against the fine imposed on them. Both Mr Wham and Mr Tan have also appealed against both their conviction for contempt of court and the penalty imposed.
Penalty given is “clearly inadequate”
On Wednesday, the Attorney-General argued that the penalty imposed on both Mr Tan and Mr Wham are “clearly inadequate”. In fact, the amount even permitted the duo to “steal what they no doubt believe to be a moral victory and to continue to rob the court of its legitimacy and moral authority”.
In order to fix that, the Attorney-General’s legal team said that both Mr Tan and Mr Wham should be asked by the court to apologise by publishing a notice for their contemptuous posts. Another suggestion that the legal team voiced was for the court to impose an order to get the pair to cease further publication of their contemptuous posts.
They argued that even after the court found that their posts were acts of contempt, they “refused to take responsibility for their actions and/or acknowledge their wrongdoing”.
The team explained that for Mr Wham, this is viewed as a “staunch refusal” to remove his post. They added that this is “as though the continued existence of the post online was his banner of victory brandishing an ability to continue denigrating the courts with little effective recourse”.
As for Mr Tan, the team noted that he only removed his post “at the very last moment”.
“It is important that the court send a strong signal to the public that such contempt will not be condoned and that contemnors (persons found to have committed contempt of court) are expected to, and must, correct their behaviour,” they said.
Following the presentation of the arguments by DCP Faizal on Wednesday, CJ Menon noted, “An apology is an expression of regret or remorse. If a contemnor does not have those emotions, I don’t think ordering (an apology) makes a lot of sense.”
Adding to the point, JA Prakash stated that commanding an apology would just show the “coercive powers of the court”, that “you can be forced to do something that you don’t believe in”.
She continued by asking if this is a deterrent.
However, DCP Faizal went to argue that an apology would send a message across to the public that an apology would be demanded from them for their conduct. To this, CJ Menon said, “I am still trying to see what an apology (on orders of the court) does.”
Fines are “manifestly excessive”
Separately, the lawyers for Mr Tan and Mr Wham requested the court to see that the fines imposed on their clients were “manifestly excessive”.
Remy Choo of Peter Low & Choo LLC is representing Mr Wham, whereas Mr Tan is being represented by Mr Thuraisingam of Eugene Thuraisingam.
In a joint submission, the lawyers repeated their argument that Mr Wham’s Facebook post did not challenge the integrity of Singapore courts. They added that Wham’s statement “constitutes fair criticism and was made in good faith” as it was “merely comparing the relative judicial independence of the Malaysian courts with the Singapore courts”.
They argued ialong the same point for Mr Tan, and added that Mr Tab’s statement was criticising the AGC, and not the courts. As such, he should not be convicted for contempt of court.
“Attacking the Attorney-General is not contempt (of court). It is rude, but it is not contempt, therefore (Tan’s case) is not more serious,” Mr Thuraisingam told the court.
He went on to point out that Mr Tan was not affiliating himself with the contents of Mr Wham’s post when he made his statement. But, Mr Tan wrote the post as he was “extremely upset because the Attorney-General is bringing people to court (for doing) what he thinks is freedom of speech”.
However, CJ Menon highlighted that he don’t see how Mr Tan’s case is not more serious than Mr Wham’s, as Mr Tan basically “broadened the attack” when he condemned the Attorney-General on top of attacking the judiciary.