Wednesday, 17 August 2016

Contempt of court Bill passed after seven-hour debate in Parliament

Administration of Justice (Protection) Bill
By Chong Zi Liang, The Straits Times, 16 Aug 2016

Parliament passed a Bill on contempt of court laws yesterday, but not before a seven-hour debate that stretched past 9pm, beyond the usual time the House wraps up its business.

A total of 19 MPs spoke on the Bill after the hour-long opening speech by Law Minister K. Shanmugam, who later addressed their concerns point by point.



He reiterated that the aim of the Administration of Justice (Protection) Bill was not to change the laws on contempt of court substantively. Instead, it sought to set out the existing common law, based on judgments in previous cases, in statutes.

But the new Act differs in one area - it takes a stricter view of what scandalises the courts, he said. Previously, a "real risk" of scandalising the judiciary had to be established for contempt. Now it just has to be a "risk".

This approach would maintain the sanctity and reputation of the judiciary, he said, and added: "If one calls a judge a 'biased swine', then let us not have arguments as to whether he only risked undermining the sanctity of the judiciary, as opposed to whether he really risked undermining the sanctity of the judiciary."



The new Act also set out the maximum penalties for contempt of court: For cases involving the Supreme Court, the fine is up to $100,000 and/or jail of up to three years. For cases in the lower courts, the fine is up to $20,000 and/or jail of up to 12 months. Under the existing law, there were no limits.

Workers' Party (WP) MPs argued it would have a chilling effect on public discussion. They also contended existing laws were adequate for the administration of justice, and the Bill gave the Government extra powers.



Mr Shanmugam assured the House that these fears were unfounded. He said: "The law today is the same as the law tomorrow."

He added that a survey by his ministry found most people supported the move to codify contempt laws.

At the end of the debate, three Nominated MPs - Mr Mahdev Mohan, Mr Kok Heng Leun and Ms Kuik Shiao-Yin - withdrew proposed changes to the Bill.

All MPs, except the nine from WP, voted for the legislation.













Law on contempt remains largely the same: Shanmugam
He stresses that the legislation does not stop discussions on policy or what the law ought to be
By Chong Zi Liang, The Straits Times, 16 Aug 2016

The Bill on the laws of contempt of court does not substantively change the legal position on what one is permitted to say about the judiciary and ongoing court proceedings, Law Minister K. Shanmugam said yesterday.

It was a point he emphasised throughout the second reading of the Administration of Justice (Protection) Bill, which was passed after a nearly seven-hour debate in Parliament.

He said one could still have discussions on the merit of a law, and one could still criticise a judgment, as long as the integrity of a judge was not called into question.

Several Nominated MPs (NMPs) and Workers' Party (WP) MPs disagreed, contending that the Bill went far beyond its stated aim of codifying in statutes the existing common law, which is based on judgments of previous cases.

At the start of the debate, Mr Shanmugam, who is also Home Affairs Minister, noted that the law on contempt was the only criminal law here based on case law.

The move to correct this anomaly began in 2010, when then Chief Justice Chan Sek Keong raised the idea of putting contempt of court laws in statutory form.



The Bill covers three main areas of the law of contempt: prejudicing court matters, disobeying court orders and scandalising the courts.

To those who feel that curbing comment on an ongoing trial would curtail free speech, Mr Shanmugam said a person's right to the presumption of innocence should come first.

"It will be quite shocking for us to say that the rights of someone who wishes to comment should be put above the rights of the person who is facing a trial, for a fair trial," he said.

He stressed that the legislation does not stop discussions on policy or what the law ought to be. For instance, he said, one can advocate one's position on the death penalty even if a capital trial is going on.

On scandalising the courts, the Bill sets out that this is committed if a publication "poses a risk that public confidence in the administration of justice would be undermined".

But High Court judge Quentin Loh ruled in 2010 that for a statement to be in contempt, it had to have a "real risk" of scandalising the judiciary.

Mr Shanmugam explained that while judges develop common law based on strict legal precedence, the Government looked at the larger implications of the law on the country.

Different interests were weighed against each other. The benefits that Singapore reaps as a legal hub, thanks to the prestige of its judiciary, were compared against the rights of a few who wish to attack the integrity of the courts.

"You weigh the public good against what is being proscribed and, in my view, the balance is clear," he said.

Mr Shanmugam also highlighted that the Bill makes it easier to enforce court orders, and sets out maximum penalties for contempt of court. Under common law, the punishment was limitless.

A total of 19 MPs rose to speak on the Bill. The WP MPs opposed it, taking aim at several aspects, including the change in what amounts to scandalising the courts.

WP chairman Sylvia Lim (Aljunied GRC) said the Bill "unnecessarily lowers the threshold on what constitutes scandalising the court".

Non-Constituency MP Leon Perera added that the Bill "will suffocate dissent, debate and democratic politics in Singapore to the detriment of balanced, accountable politics, civil society and freedom of speech".

After the debate, three NMPs who had submitted amendments to clauses in the Bill last week withdrew them. They are Mr Mahdev Mohan, Mr Kok Heng Leun and Ms Kuik Shiao-Yin.

Before the Bill was passed, WP chief Low Thia Khiang (Aljunied GRC) called for a division - which means each MP's vote is recorded - at both its second and third reading. All but the nine WP MPs in the House backed the legislation.










Worries raised over limits on speaking freely about cases
The Straits Times, 16 Aug 2016

Several MPs felt that sub judice contempt under the Administration of Justice (Protection) Bill would restrict people's right to comment freely on ongoing police investigations or court cases.

Such contempt deals with comment and conduct that would prejudice or interfere with ongoing cases, or pose a real risk of doing so.

Nominated MP Kok Heng Leun felt the law could affect the airing of opinion on matters of public interest, citing the recent deaths of full-time national serviceman Dominique Sarron Lee and 14-year- old student Benjamin Lim. Mr Lee's case led to the Singapore Armed Forces reviewing its training procedure, while Benjamin's saw police review their protocol for dealing with minors.

"The public may become overly cautious. Severe penalties may deter people from discussing such cases," he said.

Fellow NMP Kuik Shiao-Yin said the Bill was interpreted by some as a "despairing signal to shut up and sit down", and called for a guarantee that people would not be caught by the law if their comments are not made in bad faith.

Workers' Party MPs also raised concerns about what they saw as an attempt to muzzle free speech.

"Reading this Bill sends a chill down my spine," said Non-Constituency MP Daniel Goh, who described the proposed law as "subversive of trust between the Government and the people".

He also questioned what he saw as an "immunity" for the Government: The law provides for the Government to comment on ongoing cases, as long as it believes there is a public interest in doing so.

WP chief Low Thia Khiang (Aljunied GRC) said it seemed that the real purpose of the new Bill was not to protect the fairness of the judicial system but to deter members of the public from voicing their views, while allowing the Government to voice its view.

"The ruling party is the only judge of what is contempt, and all they have to say is it is in the public interest," he added. "Is it really to protect the dignity of the judiciary or to protect the Government?"

Mr Pritam Singh (Aljunied GRC), a lawyer, also said the common man may not find it "so easy and neat" to differentiate between commenting on a case, and criticising policy and law, which is allowed.

On the other hand, People's Action Party MPs like Mr Darryl David (Ang Mo Kio GRC) welcomed the law for protecting people's right to a fair trial. He said intense media speculation on ongoing cases could colour the views of witnesses and result in trial by media.

Mr Edwin Tong (Marine Parade GRC) added that the proliferation of comments on social media could also affect and influence witnesses.

Mr Tong, a lawyer, also said that fears about free speech raised by opposition MPs were "completely unwarranted, alarmist, and show fundamental lack of understanding about the law".

Minister's response

Similarly, Law Minister K. Shanmugam in his reply said people can continue to discuss court cases as they already do now.

For example, many of the comments on the Benjamin Lim case, like whether the police should interview young offenders without an adult around, would not be considered sub judice.

Also, not every comment on ongoing cases is sub judice, he said. "The test is whether (the comment) prejudices or interferes with ongoing court proceedings, or poses a real risk of doing so," he added.

A number of MPs had also cited a scenario of people sitting in coffee shops and commenting on ongoing court cases being prosecuted for sub judice.

The minister replied: "How does ordinary citizens sitting in a coffee shop having a beer and talking about a case pose a real risk of prejudicing any proceedings? Does anyone believe that? The law today is the same as the law tomorrow."

On the clause that provides for the Government to comment on ongoing cases, Mr Shanmugam said it was not a free pass for the Government to say anything it deems fit.

But there was a need for such a provision as the Government cannot be expected to keep mum on issues of public interest just because of legal proceedings - for instance, during a public health emergency or a riot.

Also, the courts were the "final arbiters of any provision in the law", and the Government would have to "act in accordance with the law" or may face prosecution, he added.

This also means if a minister spoke about a case in a manner calculated to prejudice proceedings, and did not do so in the public interest, he could be charged with contempt as well, Mr Shanmugam said.






MPs raise concerns over lower bar for scandalising the court
By Lim Yan Liang, The Straits Times, 16 Aug 2016

Several MPs yesterday took issue with the Administration of Justice (Protection) Bill over how it relaxes the requirements for the offence of scandalising the judiciary.

Workers' Party (WP) chairman Sylvia Lim (Aljunied GRC) said she found "several things abhorrent about this Bill and the way it is being bulldozed through Parliament". She also said it was "unnecessarily lowering the threshold for what amounts to scandalising the courts".

The Bill modifies the test of scandalising the judiciary from one of "real risk" to one of just "risk".

Nominated MP Mahdev Mohan, an assistant professor of law at Singapore Management University, said the Court of Appeal had carefully decided that the "real risk" test should be the applicable test, and asked why the House should statutorily depart from a rule followed by the apex court. He asked: "Are we moving backwards to a test which has a lower threshold by only using the word 'risk'?"

Mr Pritam Singh (Aljunied GRC) raised a similar point, pointing to how the "real risk" test strikes a balance between freedom of speech and contempt of court.

He said the Bill gives "extraordinary power" to the Government and risks upsetting this balance.

Non-Constituency MP (NCMP) Dennis Tan said the move from a "real risk" test to one of just "risk" significantly lowers the bar for liability when it comes to scandalising the court.

"To me, it seems to be everything that the Court of Appeal has said about what a real risk test should not be. We should not depart from the learned decision and analysis of the Court of Appeal," he argued.

The proposed maximum punishments - a fine of up to $100,000 and jail of up to three years - "far exceed" current practices, he added.

NCMP Leon Perera said the Government is "prescribing harsh penalties to statute and defining contempt of court expansively".

He added that the Government has to explain why it is "opting to move aggressively in the reverse direction" by codifying the offence.

People's Action Party MPs like Mr Edwin Tong (Marine Parade GRC) spoke in favour of the law, but sought clarity on the difference between internal discussion and public dissemination when it comes to whether one, say, imputes improper motives or impugns the impartiality of a court.

Minister's response

Mr Shanmugam agreed that the one change the Bill makes to the law is that the test for scandalising the court has "come down" from "real risk" to one of "risk".

While it is a reasonable view that lawmakers should stick to what the courts have said, he added that the executive "is uniquely placed to take a broader policy perspective, including how we develop or how we should protect" the judiciary.

"The courts fundamentally are engaged not in a policy exercise: They don't weigh up economic considerations, the larger social policy considerations, they look very narrowly at case law and say this is the law," he said.

Singapore's reputation as a jurisdiction known for unchallenged independence and impartiality has drawn eminent judges from across the world to the Singapore International Commercial Court, he noted.

"It's a weighing exercise: On the one side, it's the integrity of the institution and on the other side, the need for a very small number of people to say judges are biased, judges are corrupt," he said, adding that the House is "in a better position as a matter of policy to decide what the law ought to be".

He also replied to Mr Mohan that there is "no backsliding" of the law, and that the way case law has defined it will provide the best guide.

As for maximum penalties, Mr Shanmugam said the House sets them out, but it is for the court to sensibly apply different penalties, based on facts, depending on how egregious the contempt is.

The law actually narrows maximum penalties by defining them: "Previously, it was unlimited, and today, if the Bill is passed, once it comes into force, it will be limited.

"And that's a change to be welcomed," he added.











Administration of Justice (Protection) Bill: What's okay, what's not?
The Straits Times, 16 Aug 2016

A coffee-shop discussion on the guilt of an accused in an ongoing trial is not against the law - unless one of those in the group is a potential witness, and there is an attempt to influence him. Law Minister K. Shanmugam also assured the House yesterday, during the debate on a Bill codifying current contempt of court laws, that after a judgment is passed, people can comment as they wish on the trial - including the merits of the decisions and the conduct of the parties.

He also stressed that the public and media are free to debate the merits or demerits of any law, even while cases concerning such legislation are before a court. He pointed out how academics and media outlets already publish commentaries on a judge's decision even when the case is being appealed.

"These are not prohibited," he said. "Commenting on a judge's reasoning is unlikely to pose a real risk of prejudicing the appeal outcome."

Comments in public space

Nominated MP Kok Heng Leun, who submitted a public petition on the Bill signed by 249 Singaporeans, suggested that public debate over certain cases, such as that of full-time national serviceman Dominique Lee, who died after suffering an allergic reaction to smoke grenades, had in part led to the army tightening safety rules.

Public concern over the Benjamin Lim case, in which a 14-year- old, who was questioned by police in a case of molestation involving an 11-year-old, jumped out of a flat, also led to the Education Ministry and police reviewing procedures.

He also explained how in 2014, as part of a project dealing with end-of-life issues, he held public talks, one of which was on wills and the Lasting Power of Attorney.

"In the same period, the case of Yang Yin, the ex-tour guide accused of misappropriating $1.1 million from a wealthy Singaporean widow, made the news. Inevitably... there were comments made by members of the audience in a public space.

"Would their comments have been considered sub judice?"

And what about humorists such as Mr Brown and satirical site newnation, he added, given how they are quick to comment on issues of the day.

He asked: "Will our local funnymen be in contempt of court for their sense of humour?"

While saying that the authorities' decision to review procedures relating to Benjamin's case was made early and was not due to the public discussion, Mr Shanmugam said the Bill "does not intend to, does not prevent the public or civil society from discussing or advocating change of the law, but to just keep away from prejudicing or real risk of prejudicing the proceedings".

Given Mr Kok's description of his project, the minister said it was probably not in contempt.

As for the likes of Mr Brown, the minister highlighted how they have never been cited for contempt, and that the law is not changing.

Mr Kok also asked if someone is in contempt for writing on Facebook that "I hope the truth will be revealed" in relation to a case.

Mr Shanmugam replied: "Simply stating a hope that justice be done - how can that be contempt? I think, stop seeing shadows."

Coffee-shop discussion

Workers' Party chief Low Thia Khiang (Aljunied GRC), in stating his party's opposition to the Bill, argued that it was meant to deter members of the public from voicing their views "even if they are reasonable and legal". And as "the Bill includes private communication", even people discussing a trial at a coffee shop "can be liable".



But Mr Shanmugam was flabbergasted that the Bill could be construed that way. He explained that for comments to be sub judice, it has to present a real risk of prejudicing a trial and coffee-shop talk clearly falls far short.

"How does ordinary citizens sitting in a coffee shop having a beer and talking about a case pose a real risk of prejudicing any proceedings?" he asked.

"Does anyone believe that? The law today is the same as the law tomorrow. Have you seen anyone being charged for sitting in a coffee shop and talking about cases?"

He did, however, highlight an instance where coffee-shop talk can fall foul of contempt laws. "You catch hold of a witness, you bring him to the coffee shop and you threaten him, yes, it is publication and it is interference of proceedings." Otherwise, he told Mr Low, "let's get real".

A measured view

WP Non-Constituency MP Daniel Goh, clearly referring to the Benjamin Lim case, raised the example of a young person who has died "in an event following the acts of public officials".

"Would I, as the father in question, be risking sub judice contempt if I asked fair questions about the event?" he asked.

Mr Shanmugam said the Attorney-General will take a measured view.

"So if a father who has lost his son or daughter, he's grieving and he comes out and says all these things, I think the likelihood that that would amount to a serious or a real risk of interfering with any subsequent proceedings, most people can look at it and discount that for the purpose of the proceedings.

"Even if somebody were to take a view that that interferes with the court proceedings often in the context of the discussions, it is not likely that any A-G will think contempt is warranted."

Concerns of youth

Nominated MP Kuik Shiao-Yin expressed her worries on the possible impact the Bill may have on youth's active participation in socio-political discussions online.

She said that "even youth not predisposed to distrust the Government feel some low level of anxiety over the uncertainties in the Bill".

"Even after they read it... they are still uncertain about how easy it will be for them to commit sub judice.... they are uncertain about whether their one single 'prejudicial' WhatsApp message communicated to just one other friend could be construed as a mass publication of contempt."

Mr Shanmugam replied that "the law tomorrow is the same as the law yesterday on this area, has no change, and in fact they can discuss a great deal. I think for a start, you can tell them it doesn't really affect what they do or what they have been doing unless they want to start thinking in terms of going public and attacking witnesses and attacking judges and trying to get certain results from the court".

Ms Kuik later asked to clarify: "So can I confirm that a publication made as a part of a discussion in good faith on a matter of general public affairs is not contempt of court if there is no prejudice or interference or real risk of prejudice or interference?"

Mr Shanmugam replied: "That's correct."

Defining 'publications'

Mr Louis Ng (Nee Soon GRC) asked whether the definition of "publications" in the Bill also include academic articles, or a private Facebook post? "In this age of social media, where flurries of spontaneous conversation fill the Internet, the layperson may not fully understand where the line is drawn and what he or she cannot say," he said.

But Mr Shanmugam said he cannot see how putting up a Facebook post poses a real risk of prejudicing proceedings, "unless you're the Prime Minister with a million followers and everybody reads what you say. So you look at who is saying it, you look at the reach, you look at the possibility of influencing the court, you look at a whole host of factors and these are best left to the court. But in the broad types of cases you mentioned... just ask yourself, what's the real risk of prejudicing a proceeding?"






More teeth to court orders, protection for the vulnerable
By Charissa Yong, The Straits Times, 16 Aug 2016

A new law on contempt of court will give more teeth to court orders and provide more protection to vulnerable people, several MPs said yesterday.

The Administration of Justice (Protection) Bill, which was passed yesterday, sets out the kind of behaviour that constitutes contempt of court when court orders are disobeyed. It also spells out the penalties for offenders, such as a maximum fine of up to $100,000, a jail term of up to three years, or both, in cases involving the higher courts.

In this way, the MPs said, the law will deter those who intend to intentionally disobey court orders, and also lend weight to the enforcement of such orders. This will benefit vulnerable Singaporeans, such as children and divorced single parents who are denied maintenance payments by their former spouses.

The MPs were speaking during the debate on the Bill.

Law and Home Affairs Minister K. Shanmugam said the law dovetails with other changes to the family justice system that have improved the enforcement of maintenance orders. He added that his ministry was looking into the related issue of how to better enforce civil orders.

Ms Rahayu Mazam (Jurong GRC) and Mr Edwin Tong (Marine Parade GRC) said the new law sends a signal to those who deliberately disobey court orders.

"I have had to... face many clients expressing their disappointment with the 'paper judgments' they received, which may be in their favour but did not improve the situation they were in," said Ms Rahayu, a family lawyer.

Agreeing, Dr Lily Neo (Jalan Besar GRC) said that since 2009, the courts received 3,000 applications a year from divorcees for the enforcement of alimony payments.

Most of the applicants were women with custody of their children, and many of them do not have jobs or they earn a meagre income, she said.

"These families suffer in silence ... and their daily survival needs are in jeopardy," she added.

But while she supported the new law, she asked if there could be "more appropriate" forms of punishment.

She suggested that the courts be given the power to appoint an officer to oversee and distribute the defaulter's income, so that the aggrieved parties get paid.

Other MPs, like Ms Denise Phua (Jalan Besar GRC), welcomed the leeway the law gives to those who offend because they genuinely do not understand their obligations, such as people who are illiterate. The courts can choose to excuse such people, and their disobedience will not be ruled as contempt of court.





Fine balance between competing rights
By Janice Heng, The Straits Times, 16 Aug 2016

The right to a fair trial versus free speech. The sanctity of the judiciary versus someone who might want to "abuse the judiciary".

Law Minister K. Shanmugam raised these two sets of competing rights yesterday, when addressing concerns about a Bill that codifies Singapore's contempt of court laws.

It was an important recognition that the things we value as a society can, and will, come into conflict.

Yet, which of these rights should we prioritise?

Mr Shanmugam's assessment of how the scales should tip was arguably more convincing in the first instance - coming down on the side of a fair trial - than in the second, on the potential threat to public confidence in the judiciary.

The first balancing act was in the context of sub judice contempt, which deals with conduct that pre-judges an issue in ongoing court proceedings, and either prejudices or interferes with it, or poses a real risk of doing so.

Mr Shanmugam noted a suggestion to add the word "seriously" into the wording of the law, so that something counts as sub judice contempt only if it "seriously prejudices" court proceedings.

But here, the right to a fair trial is weighed against free speech.



Or as the minister put it: "You balance the chap in court, who is facing the criminal charge; you balance his rights against somebody else's desire to comment on those proceedings.

"Not just comment, comment in a way that prejudices those proceedings."

Framed in those terms, it is hard to object to Mr Shanmugam's stance. Even the most ardent defender of free speech would probably baulk at arguing that it should trump the right to a fair trial.

Principles aside, the stakes are also different, as Mr Shanmugam highlighted when he made a contrast between the person who is commenting while "sitting in the security of his home" and the defendant facing a jail sentence.

Here, the balance must surely tip in favour of the right to a fair trial.

Mr Shanmugam's choice of weights, however, could be contested with regard to another form of contempt: scandalising the judiciary.This occurs when one imputes improper motives or impugns the integrity, propriety or impartiality of any court, and when doing so, "poses a risk that public confidence in the administration of justice will be undermined".

What is being weighed here? Mr Shanmugam said: "So you weigh, on one side, you have the sanctity of the judiciary, and the confidence reposed in the judiciary. On the other side, we have some people's desire to launch personal attacks against judges."

This seems a harsh assessment of anyone who might question the impartiality of the courts.

Mr Shanmugam repeatedly framed the issue as the sanctity of the judiciary versus someone who might want to "abuse the judiciary" or call judges "biased swine".

But that does not allow for the possibility that allegations of bias could be made in good faith.

Indeed, Nominated MP Mahdev Mohan asked what recourse someone has if he has "a good faith suspicion that a court proceeding is tainted by impropriety or bias."

This weighing exercise is especially significant because yesterday's Bill was proposing a change to existing case law on what constitutes scandalising the court.

Previous case law required there to be a "real risk" that public confidence will be undermined, rather than merely "a risk".

The change may sound like semantics. But it significantly lowers the burden of proof, and thus, has implications for how the law could apply.

Mr Mohan, who is an assistant professor of law at Singapore Management University (SMU), noted the Court of Appeal's 2011 judgment in the Alan Shadrake case, in which the "real risk" test must avoid finding contempt "where there is only a remote or fanciful possibility" that public confidence is undermined.

Workers' Party Non-Constituency MP Dennis Tan quoted SMU law professor Gary Chan's analysis of the same judgment, that "real risk" is more than just a "small likelihood".

What if, for instance, a blogger with barely any readers makes a post that alleges bias in court proceedings?

This might not pass the "real risk" test, since an unknown blogger is unlikely to dent public confidence.

But under the Bill's new formulation, if "remote" or "fanciful" possibilities suffice, then even such small fry could be hauled up for contempt of court.

And what is this weighed up against? Mr Shanmugam argued that reducing the test to mere "risk" rather than "real risk" will help Singapore be the pre-eminent legal centre in the region.

But Singapore is already doing well on that front, as Mr Shanmugam himself went on to elaborate.

In yesterday's debate, he repeatedly said that where the Bill makes no changes to existing law, it should not have new effects. By a similar logic, retaining the "real risk" test rather than lowering the bar should not jeopardise Singapore's position as a legal hub.

When weighing competing priorities, it is best to avoid being seen as stacking the deck in favour of one's preferred assessment.

After all, there might be sufficient reasons for the scales to tip in favour of tightening the law here. The NMPs who initially called for certain changes to the law ultimately voted in favour of it, withdrawing their proposed amendments.

Critics may still take issue with the law.

Regardless, if doubting members of the public are to be convinced that it is not aimed at restricting speech, the test will be in how it is implemented and enforced.








Law Minister K. Shanmugam slams UK High Comm for improper comments
The Straits Times, 16 Aug 2016

Law Minister K. Shanmugam has rapped the British High Commission here for urging countries, including Singapore, to abolish the offence of scandalising the judiciary - and accused it of improperly trying to influence parliamentary debate.

He said it was "quite astonishing" that the British High Commission should try to give Singapore advice to follow Britain in abolishing its laws on scandalising the judiciary, and questioned if the commission was aware of the facts that led to Britain's own decision to scrap them.



Singapore today is in a different position from Britain when it did so in 2013, he said.

"We are upholding standards that have gone down in Britain; standards which have gone down, and have led to a loss of respect and coarsening of society."



The British High Commission told Reuters last Friday that Britain "will continue to urge Singapore and all countries which retain 'Scandalising the Judiciary' to abolish it".

Mr Shanmugam said Britain had to abolish the offence three years ago because its judiciary had "lost the deferential respect it used to enjoy", as evidenced by plentiful online material hurling abuse at the judges.

"The offence had limited symbolic value, as everyone was scandalising the court anyway. It was happening frequently, and was rarely prosecuted."

And while the offence was also "in principle an infringement of freedom of expression" - a basic right under the European Convention on Human Rights - the key reason for abolishing it was that the court's standing was already damaged in the public's view, said Mr Shanmugam.

Such damaged reputation has affected the British judiciary and its work, said the minister, quoting from a 2014 survey of all serving and salaried judges there.

Nearly two in three had said members of the judiciary there were less respected by society compared to a decade ago, and more than half felt the way they were portrayed in the media, and public misunderstanding of the judiciary were factors driving this change. Falling judicial morale has also made it harder for Britain to recruit and retain judges, especially senior ones.

But Singapore does not have this problem as it tries to retain the prestige of the judiciary, keeps it well-resourced, protects it from being scandalised, and ensures its judges are paid properly, said Mr Shanmugam.

"We are in a healthy, good and enviable position, and we are not about to short-change our judiciary," he said. "We are not struggling, or swimming against the tide of public opinion, as Britain was."

He added: "Did the British High Commissioner know these facts when the advice was offered? If the High Commissioner knew the facts, then that does not speak well of them because we are not in the position Britain found itself in."

Mr Shanmugam said that when Singapore's Foreign Ministry asked why the British High Commission made the remarks, High Commissioner Scott Wightman said it was a reply by his press officer to Reuters' query, and was not specific to Singapore.

Said Mr Shanmugam: "With the deepest respect to the High Commissioner, one can only say there is considerable disingenuity in that answer. If you want to intervene and make a comment, then at least have the courage of your conviction and not beat a hasty retreat at the first question." He added: "Did the British High Commission see fit to make such comments to the Australians? To the New Zealanders? To the Irish? They also criminalise scandalising the court."

When contacted, the British High Commission declined further comment.










NMPs explain support for Bill on contempt of court
By Chong Zi Liang, The Straits Times, 18 Aug 2016

Three Nominated MPs, who had been worried that a proposed law would curb freedom of speech, explained yesterday why they changed their views and voted for the legislation on contempt of court at Monday's parliamentary session.

A week earlier, the trio - Mr Kok Heng Leun, Mr Mahdev Mohan and Ms Kuik Shiao-Yin - had submitted to Parliament what they viewed as vital changes for the Administration of Justice (Protection) Bill.

But yesterday, they said Law Minister K. Shanmugam's responses to their questions during the debate on the Bill allayed their fears. They pointed particularly to two clarifications he made.

One, people can continue to speak on matters of public interest as long as they do not prejudice a trial's outcome.

For instance, one can start a campaign on the death penalty even if a trial of a capital offence is going on.

Two, if the Government comments on an issue in a case before the court, it can be challenged in court to show why it believes it is in the public interest to do so.

Said Mr Kok, a theatre group's artistic director: "It's about checks and balances, and it was confirmed that the courts can check on the Government's interpretation of public interest."

The NMPs had also been concerned that the Bill lowers the bar on what constitutes scandalising the courts. Previously, a "real risk" of scandalising the judiciary had to be established for contempt. Now, it is just a "risk".

Mr Mohan had earlier felt the "real risk" test, established in judgments made by the Supreme Court, should be retained.

But yesterday, he said the "force of my arguments was taken away" when Mr Shanmugam told Parliament the Bill had been shown to the Supreme Court judges.

Also, Mr Shanmugam had explained that the change was a policy decision to maintain the sanctity and reputation of the courts.

"It was a thorough exchange the MPs had during the debate, and reasons were given," said Mr Mohan, a Singapore Management University (SMU) assistant professor of law.

The NMPs also said it was important to get the clarifications they sought because the official parliamentary record, known as the Hansard, will be used by judges and lawyers to interpret the law.

Agreeing, assistant professor of law Jack Lee of SMU said: "Legislation is always going to be interpreted in a way that achieves its purpose... One of the ways to establish the purpose is to look at parliamentary speeches."

Ultimately, the trio voted in support of the Bill as the parliamentary debate clarified that discussions of matters of public interest will not be stifled. "There was no purpose in abstaining from or voting against a Bill we had wished only to amend or seek detailed clarifications," Mr Mohan said.

Since the Bill was passed, Mr Kok and Ms Kuik have posted on Facebook their reasons for supporting the Bill. Mr Kok also apologised to those who "feel anger or disappointment" about his vote.



But the decision drew derisive remarks on social media, with Facebook user Kirsten Han saying they "have been played... Unfortunately, the (parliamentary) clarifications don't give us very much at all".

Human rights groups also slammed the law. Amnesty International said it would impose undue restrictions on freedom of expression, while Human Rights Watch said it would suppress critical speech on the judiciary.

Ms Kuik, however, said those who still fear the new law curtails their freedom of speech should read the Bill and the Hansard to find out for themselves the law's actual purpose. "Read the original Bill and the Hansard in full. Then decide whether your fears are legitimate. But don't chill your own speech because of a misinterpretation of the Bill based on someone else's second- or third-hand account," she said.





Keep calm and carry on commenting responsibly
A new law on contempt of court gives more leeway to order a publisher to take down an article. It also reduces the threshold in scandalising contempt. Despite critics' misgivings, the changes need not stifle responsible debate.
By Selina Lum, The Straits Times, 18 Aug 2016

Parliament on Monday approved a law on contempt of court. But throughout the seven-hour debate, Law Minister K. Shanmugam kept pointing out that, in fact, little had changed with the new law.

Yet many MPs expressed reservations about parts of the new law. The nine Workers' Party MPs all voted against it.

So what, if anything, has changed with the passing of the Administration of Justice (Protection) Bill?

CODIFYING CASE LAW

First, the Bill puts into written law contempt of court offences that used to come under case law.

Until now, the law of contempt in Singapore was based on case law, that is, laws that are not passed by elected legislators and enacted into statute but instead based on judgments made in a body of court cases over the years.

In 2010, then Chief Justice Chan Sek Keong said he had asked the Law Minister to consider enacting a law on contempt, adding that laymen, and even lawyers, have to read the case law to find out what the law is. He noted that even though "the courts have exercised great restraint in the past", punishment for contempt is unlimited, unlike other criminal offences which come with prescribed punishments. Putting the law in statutory form will allow potential offenders to know what they can be in for, he said.

Now, the prescribed maximum punishment is a $100,000 fine and three years' jail.

CONTEMPT

Contempt of court falls into four categories.

First, the straightforward situation of someone disrupting court proceedings or intimidating judges, lawyers or witnesses.

The second is disobeying court judgments. Hence one prong of the Bill makes it clear that going against court orders is a criminal offence. For example, a man who doesn't pay his ex-wife maintenance as ordered, or a woman who refuses her ex-husband access to see their children.

The third part of contempt is scandalising the judiciary.

The fourth is sub judice, which is publishing anything that prejudges court proceedings.

SCANDALISING CONTEMPT

When it comes to the offence of "scandalising the judiciary", the bar has been lowered from that of a real risk to a risk of scandalising the judiciary.

Examples of scandalising contempt include alleging bias or impropriety against the courts or individual judges.

Several people have fallen foul of contempt laws in this category for impugning the integrity and reputation of the Singapore judiciary, including opposition politician Chee Soon Juan, American academic Christopher Lingle, British author Alan Shadrake and sociopolitical blogger Alex Au.

In Shadrake's case, Justice Quentin Loh ruled in 2010 that for a statement to be in contempt, it had to have a "real risk" of scandalising the judiciary. This was affirmed by the Court of Appeal. In other words, a statement must carry a real likelihood of undermining public confidence in the justice system.

The Bill modifies the test for scandalising the judiciary from one of "real risk" to one of just "risk".

In response to WP MP Sylvia Lim, Mr Shanmugam explained that while judges develop common law based strictly on legal precedents, the Government looked at the larger implications of the law on the country, including the need to protect the judiciary as an institution, given Singapore's reputation as a jurisdiction known for independence and impartiality.

Protecting the integrity of the judiciary has to be weighed against the need for a small group of people to allege - without basis - that the courts are biased or corrupt. Parliament is well placed to do so, he said, defending the lower threshold of risk.

Will this chill public debate, as critics fear? To be sure, it raises the bar for anyone who wants to accuse the courts of bias or misconduct. The person will have to be very sure of his or her facts and evidence to make such a charge, and be prepared to be held responsible and accountable for those views.

This doesn't mean that no one can criticise or report a bad judge. A person who, in good faith, reports a corrupt judge to the chief justice, the police or any other authority will not be in contempt. Litigants who make statements about a judge in court filings when lodging an appeal or applying to disqualify the judge from hearing a case will also not be in contempt.

Fair criticism also does not amount to scandalising contempt under the new law.

So this law should not dampen legitimate debate and responsible discussion of the law, court judgments or public interest issues. It should, if it works well, weed out the kind of casual attack on character so common on social media these days, and remove the judiciary - a key national institution - from being the target of such mud-slinging.

SUB JUDICE

The fourth category of contempt law is called sub judice (Latin for "under judicial consideration"). It deals with statements or information published about a case yet to be decided by the court.

The premise is that an accused person should be given a fair trial based only on the evidence that is before the court, and not go through a "trial by media".

The Bill makes it an offence for anyone to publish any matter that prejudges an issue, or otherwise prejudices or interferes with the course of any pending court proceedings.

But here, the threshold remains that of a "real risk" , not just "risk".

The classic scenario of sub judice contempt is the publication of an accused person's past convictions while he is on trial.

Sub judice contempt cases occur periodically in some other jurisdictions.

In one case in Britain in 2012, the Daily Mail and Daily Mirror tabloid newspapers were each fined £10,000 for their "avalanche" of adverse publicity following a murder conviction while the verdict was pending on a separate abduction charge.

In Australia, media personality Derryn Hinch has had multiple run-ins for contempt, his first being 12 days in jail and a A$15,000 fine after he revealed the prior convictions of a Catholic priest while a trial was still pending.

On Monday, Mr Shanmugam highlighted the Amanda Knox case as an example of a justice system Singapore does not want. Ms Knox, now 29, was an American accused of murdering her 22-year-old British roommate in 2007 while staying in Italy. She was found guilty initially before being acquitted after spending four years in jail. Italian media had portrayed her in a very negative light. "Some newspapers labelled her a 'killer' or 'psycho-killer' before the courts had finally determined the matter," said Mr Shanmugam.

He said it would be natural for a reader of these articles to conclude that the suspect was guilty even before investigations had been completed, adding: "Ask yourselves, was this fair?"

He said that Italy's highest court found that the media attention caused "the investigations to suffer a sudden acceleration, which in the frantic search for one or more culprits to be delivered to international public opinion certainly did not facilitate seeking the substantial truth".

In Singapore, there is no reported case of an attorney-general launching a prosecution for sub judice contempt.

In June 2013, the Attorney-General issued a warning to independent film-maker Lynn Lee over video interviews she conducted with two former SMRT bus drivers from China investigated for their roles in Singapore's first strike in 26 years. The pair alleged that police officers had assaulted them to extract confessions. The Attorney-General's Chambers (AGC) said Ms Lee's conduct created a real risk that the the trial judge would be improperly influenced and that witnesses and co-accused persons would be influenced in their testimonies.

A spokesman for the AGC said that its "records do not suggest any prosecutions for sub judice contempt in recent times", only the warning to Ms Lee.

The AGC has, however, released media statements asking the public to refrain from making contemptuous statements, following online discussions over the case of three men charged with offences allegedly committed during a Thaipusam procession.

Exactly when investigative reporting or comment crosses into sub judice remains to be tested. For now, as lawyer Amolat Singh points out, the lack of prosecutions shows two things: that the Singapore media has, by and large, been responsible in reporting court trials, and that the AGC is not "trigger happy" in throwing the book at those who run foul of sub judice contempt.

AGE OF SOCIAL MEDIA

With contempt laws shaped in the age before social media turned every citizen into a publisher, Singapore has decided to update its own laws to deal with the speed with which contemptuous information can spread virally within minutes.

Thus, one major change under the new law is that it allows the Attorney-General to ask the court for permission to direct the takedown of an article in ex parte proceedings, that is, in the absence of the publisher.

This applies to articles deemed to have breached both scandalising or sub judicecontempt. Previously, the AG did not have explicit powers to do so.

Mr Shanmugam explained that this is a practical way to balance the defendant's right to be heard and the possible irreparable damage caused by a publication rapidly circulating unchecked.

The order means that the defendant is compelled to take down an offending article, but he has the right to challenge the order and put the article back if he persuades the court it is not harmful.

"If he succeeds, he puts it back up. So what's the loss?" asked Mr Shanmugam. "So you got to look at it like that. Whereas if you don't allow the quick remedy, interim relief, that article could be there for weeks, by which point in time there is no point taking it down anyway."

To sum up, what has changed with the law? For most citizens, not much. People can still debate the innocence or guilt of an accused person in an ongoing trial at coffeeshops - unless they are trying to influence a potential witness or making claims on facts not before the court.

After the verdict is passed, people are free to criticise the merit of the judgment, as long as they steer clear of implying that the decision was arrived at due to improper motives.

If larger social issues surface in an ongoing court case, people do not have to curb discussions of any government policy. Just don't prejudice the actual trial.

What has changed is that contempt has become codified law, and penalties are spelt out.

As for public discussion - to paraphrase a popular meme, keep calm and carry on commenting responsibly.



Related
New Bill on Protection of the Administration of Justice
New law defines contempt of court, spells out penalties
Don't turn court trials into public circuses
Second Reading Speech by Minister for Law, Mr K Shanmugam, on the Administration of Justice (Protection) Bill

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