Sub judice contempt has no place in our Courts
On 11 July 2016, the Government tabled the Administration of Justice (Protection) Bill ("Proposed Legislation") for first reading in parliament. According to a Straits Times report, the Minister for Law claimed that the Proposed Legislation does not expand the definition of contempt of court. Instead, he is of the view that the bill merely “crystallises” the current position. (See: http://www.straitstimes.com/politics/parliament-new-law-spells-out-penalties-for-contempt-of-court-failure-to-comply-with-orders)
The Minister has posited the nature of the Proposed Legislation as a mere statement of the current position of our laws on contempt of court. In truth, the Proposed Legislation has severe adverse consequences to our already limited freedom of speech, and will have chilling effect on all legitimate commentary on legal proceedings and legal process. This is especially the case in the provisions regarding the sub judice contempt of Court. Sub judice contempt of court is described as “acts which risk prejudicing or interfering with particular legal proceedings” in Part 2 of the Explanatory Statement of the Proposed Legislation.
Sub judice contempt applicability debatable As a preliminary issue of policy, sub judice contempt should be abolished as a concept in Singapore. Our country relies on a bench of distinguished judges and judicial officers to apply our laws in a fair and just way. Our judges and judicial officers are highly-trained individuals who have expertise and legal knowledge to siphon relevant material from prejudicial material. A professional judge is expected to be unaffected by prejudicial material, given the benefit of their knowledge and professional experience. It was for this very reason that professional judges were favoured over jury trials by the Government in Singapore’s early years.
It naturally follows that statements or criticisms of ongoing proceedings, regardless of what they may be, should not pose any “real risk” of prejudice to or interference with the course of these proceedings. As the rules of sub judice contempt has its roots in the UK which tried matters by jury, the question of its applicability in Singapore has been the subject of much academic and popular debate.
Illustrations of sub judice contempt too wide The Proposed Legislation also sets out 2 Illustrations of when a publication may fall foul of Section 3(1)(b). These are:
A is charged for rape of B. Z publishes in a newspaper an interview with A's ex-girlfriend, Y. In the interview, Y claims that A had previously brutally raped her and that A had served a long prison sentence for raping and molesting other women. The prosecution is not permitted to disclose A's previous conviction sduring A's pending rape trial. Z's publication of this interview poses a real risk of prejudice to or interference with the course of pending court proceedings against A.
A is charged for inflicting serious bodily harm on B outside a pub. As it was darl, B had difficulty recognisiong B's assailant. Z posts on an Internet news site, a photo of A with fists clenched outside the pub with the caption, "Vicious Pub Bully Caught". The identity of B's assailant is an issue in A's pending trial. Z's publication of A's photo and caption poses a real risk of prejudice to or interference with the course of the pending court proceedings against A.
The illustrations provided under section 3(1)(b) of the Proposed Legislation are widely drafted and presents the risk of placing too much prosecutorial discretion in the hands of the Attorney General. For obvious reasons, this is open to misuse. Coupled with the fact that section 22 provides for the Attorney General to conduct investigations on the alleged contempt “an arrestable offence”, the Proposed Legislation makes critics of the government and police action vulnerable to potential harassment, including requests for “interviews” with the police, searching of the person and his/her premises, and the confiscation of certain personal items including their laptops, mobile phones, correspondence, etc.
We have recently seen the police use its widely drafted powers to interfere with the privacy of several prominent activists and critics of the Government. It is deeply worrying that the Government is now seeking to further expand these powers to members of the public who comment on ongoing court proceedings. (See: http://www.theonlinecitizen.com/2016/05/police-conducting-extensive-investigations-on-two-individuals-who-allegedly-violate-cooling-off-day-regulation/)
Government exemption unfair Part 2 of the Explanatory Statement states: "Clause 3 (4) contains an exception to sub judice contempt under 3(1)(b). A statement made by a person on behalf of the Government about the subject matter of or issue in a pending court proceeding is not contempt if the Government believes that such statement is necessary in the public interest"
The exception accorded to the Government under section 3(4) of the Proposed Legislation is plainly unacceptable. It runs totally contradictory to the rationale of sub judice rules, which is to ensure a fair trial for an accused person or litigant. Insofar as a judge or judicial officer may be unduly influenced by information extrinsic to the evidence in Court, it cannot be denied that any statement made by the Government on ongoing proceedings can pose a risk of prejudice or interfering with the course of proceedings. It is common sense that such risk is much greater any threat posed by a statement made by layperson regardless of the popularity of his blog, publication or facebook page. The fact that a Government official may be excused for making statements which would ordinarily be sub judice “if the Government believes that such statement is necessary in the public interest” opens the doors to abuse. Practically speaking, and taking the exception to its logical extreme, the Government will have the power to dominate public discourse on a pending court matter as long as it believes it is in the public interest to do so.
Crucially, section 3(4) implements a subjective test to the question of whether such a statement is “necessary in the public interest” - in other words, it does not matter if the Court disagrees that such statements were not in the public interest - as long as the Government thinks so, it is in the clear. This is exactly the Government’s “Ownself check Ownself” attitude that the Worker’s Party campaigned strongly and passionately against in GE 2015, and on which platform it was re-elected in Hougang SMC and Aljunied GRC.
Although the illustrations stated under the section appear innocuous, it suffices to point out that such instances would not fall under the current ambit of our sub judice rules even without the Government carve-out. In any event, these are not necessarily the statements that accused persons need to be protected from. The Government has on several recent occasions gone much further than simply “factually describing” the events and circumstances of subject matter before the Courts.
Regaining our common space The Proposed Legislation is just one of the many instances of the Government expanding its executive power in order to control and silence its critics. Given recent episodes such as the questionable investigation procedures used on Benjamin Lee, the Army’s actions leading up to and following the death of Dominic Lee, and the investigations conducted over Teo Soh Lung and Roy Nerng over potential breaches of the Parliamentary Elections Act, the Government should invite scrutiny, not seek to prevent it. The already-constrained space for public discourse on Government action and functions of the state is steadily shrinking - we need to urgently protect our freedom of speech before it is too late. This Proposed Legislation cannot be allowed to pass without debate in Parliament and deliberation by a select committee which will have the opportunity to explore its full impact.