What you need to know
A new bill, which will undergo a second reading on Aug. 15, could have a chilling effect on freedom of expression in Singapore and abroad.
The Administration of Justice (Protection) Bill tabled in the Singaporean Parliament on July 11 has far-reaching ramifications for freedom of speech, fair comment, arbitrary executive powers, and the vitality of the Singaporean judiciary. The Bill aims to provide clarity on offences related to contempt of court, which is currently based on previous rulings and precedents. Speaking to reporters, Minister of Law K Shanmugam explained that the Bill does not create a new law of contempt but that it “crystallizes current legal position.”
However, a perusal of the Bill suggests that, instead of clarifying, it introduces new uncertainty and potentially obfuscates the meaning of contempt of court. It fails to define some key terms, defines others in ways that are too vague or broad, and expands arbitrary executive powers. Most significantly, it appears to imply that the government lacks faith in its own judiciary.
Firstly, as defined by the Bill, it appears as if any comment on any ongoing court case could potentially be contempt of court. Section 3 of the Bill uses language – such as the word “prejudges” in Section 3(1)(b)(i) – that is very broad and is undefined. It sets “risk” and “real risk” tests to determine contempt, but these are low standards for deciding whether a comment is in contempt or not. Indeed, this legal requirement for being convicted for scandalizing the court is of a lower threshold than the current test established by judicial precedents.
The Bill does provide some defenses to allow particular types of comment. But these defenses are also vague and uninformative. For example, the Bill says “fair criticism” would not be in contempt of the court, but fails to define “fair criticism.” Indeed, academics could also be in contempt of court for analyzing the political economy of an ongoing case, even if we avoid any discussion of the merits of the case.
Nor is it clear when court proceedings would be considered to have begun. Section 2(2)(b) defines a court proceeding, but it is not clear if it begins from the time a person is under investigation, or if a formal arrest has to be made. 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. In this scenario, would it be contempt of court if people were to talk about their case or criticize police behavior? The bill is unclear.
With such vague language, the line between what is or is not permissible discussion when it comes to pending court cases is blurred. This could lead to people deciding to stay silent on issues of massive public importance, out of fear of being found in contempt. This would defeat the purpose of the Bill, which is to provide clarity and allow for discussion in the public interest.
Section 2(1) of the Bill defines “publish” very broadly. It includes disseminating, exhibiting or communicating to even one member of the public. This means that sharing a blog comment, Facebook post, or tweet that is in contempt is also a form of contempt, as is private communication over SMS or WhatsApp, or even discussion over the dinner table. This is true even if none of the parties realize that the comment is in contempt. This could lead to a cascading effect: one person writes a comment in good faith, not realizing it is in contempt, and this comment is shared widely, leading hundreds of other people to find themselves in contempt.
More alarmingly, this includes anything published globally. As long as comment is accessible by members of the public in Singapore, it could be considered in contempt of court. This would discourage commentary and reporting on Singaporean court cases around the world, thus isolating Singapore. Another unintended consequence might be on commercial litigation. Staff of multinational companies involved in civil proceedings in Singapore could be in contempt for discussing the case across borders. A foreign press routinely reporting on the litigation would also be liable for contempt. With the establishment of the Trans-Pacific Partnership (TPP), this could have far-reaching consequences as the TPP expands the ability of companies to seek legal redress across borders.
It would be solely up to the discretion of the Attorney-General whether to commence proceedings. This leads to the third issue, which is that the Bill enshrines an increase in arbitrary executive power.
The Bill empowers 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. This is a new power that is not based on previous rulings or precedents.
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 – they are considered guilty unless they can prove innocence. The failure to comply with the take-down order is a criminal offence, and an arrestable one. If convicted, the maximum penalty is a fine of S$20,000 (US$14,900), up to 12 months in prison, or both.
Along the same vein, the Bill introduces an unequal relationship where public discourse on an ongoing case could be dominated by the state. A representative of the government can comment on an issue in an ongoing court proceeding if the government believes it is necessary in the public interest, but anything an ordinary citizen says might be held in contempt. Potentially, the government could say whatever it wanted - and even if it had inadvertently made a serious mistake, no one would respond, for fear of being in contempt.
In sum, anything you say could be in contempt; it is unclear when contempt starts; and the Attorney-General can declare you are guilty of contempt, leaving you to prove yourself to be innocent.
These far-reaching implications are even more troubling in the context of the proposed maximum penalty, which would be a fine of S$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 S$20,000 and six weeks’ imprisonment. This sentence is the longest imposed for contempt of court, but is far short of the proposed maximum penalty.
Taken in context with recent public criticism of the government’s handling of various court cases, as well as continued debate over Singapore's alleged use of contempt laws to stifle dissent and punish journalists, this law is troubling. It suggests that Singapore’s government lacks confidence in its own judiciary to resist external influence, seeing the judiciary as fundamentally weak and requiring excessive protection to enable it to function properly. This undermines the confidence of Singaporeans in their judiciary.
The Bill will have its second reading on Aug. 15. If the government wishes to achieve greater clarity on contempt, as well as send the message that the judiciary is strong, fair, and independent, it should amend this Bill to have greater clarity and to give greater leeway for honest and fair criticism, including restoring the principle that one is considered innocent unless proven guilty.
Edited by: TNL Staff