Free expression in the dock in Singapore
Criminal contempt of court case against an activist and opposition politician is testing the legal threshold for 'scandalizing' the judiciary
Two Facebook posts are under the microscope this week in Singapore as lawyers present opposing arguments to the island state’s High Court in the first proceedings to take place under a new contempt of court law that came into force in 2017.
The proceedings highlight issues raised during the marathon debate that took place in parliament in 2016 before the passage of the Administration of Justice (Protection) Act, including a lowering of the legal threshold for “scandalizing” the judiciary from a “real risk” to merely a “risk.”
At the time, critics argued that the legal change would have serious implications for freedom of speech in Singapore. Almost two years later, those concerns are being put to a legal test as lawyers on Tuesday argued the change was unconstitutional.
The Attorney General’s Chambers (AGC) applied for orders of committal against activist Jolovan Wham and opposition politician John Tan for posts they made on their respective Facebook pages that the charges claim “impugns the integrity and impartiality of the Singapore courts, and poses a risk that public confidence in the administration of justice in Singapore would be undermined.”
On April 27, Wham shared a link to news of a constitutional challenge against the Anti-Fake News Act in Malaysia alongside a comment he wrote that “Malaysian judges are more independent than Singapore’s for cases with political implications” and that it would be “interesting to see” how the case turned out.
After the AGC requested the court to commence contempt of court proceedings against Wham, Tan, a member of the opposition Singapore Democratic Party, posted on Facebook: “By charging Jolovan for scandalizing the judiciary, the AGC only confirms what he said was true.”
The AGC then also applied for an order of committal against Tan.
Neither post had garnered much attention or response when published, despite Wham having over 7,000 Facebook followers. The post in question received only 29 Facebook reactions, and had not been shared by anyone else on their own Facebook profiles, but lawyers on both sides plunged into analyzing the minutiae of the post in a day-long court hearing on Tuesday.
In their written submissions, the AGC argued that Wham had “intentionally published” his Facebook post, making it accessible to anyone on the Internet, thus posing a risk to public confidence in the courts. They added that it is “not necessary to prove that [Wham] had an intention to undermine public confidence in the administration of justice.”
Senior State Counsel Francis Ng asserted in court that Wham had committed the offense of scandalizing the judiciary—a type of contempt of court violation—as an “average reasonable person” reading his post would understand that he was saying that Singapore’s courts lacked independence.
Ng also argued that Tan’s post had claimed that Wham’s statements in his Facebook post were true, and was therefore also in contempt of court.
Wham and Tan’s defense lawyers argued that there were other ways to read the statements. Eugene Thuraisingam, who acted for both men, asserted that Tan was saying that the AGC’s actions against Wham had been “unduly defensive”, and could actually have the effect of signaling to the public that Wham’s comments had been right.
It was therefore not an attack on the courts, but a critique of the AGC’s actions, he said.
Acting on behalf of Wham, lawyer Choo Zheng Xi also argued that Wham had at no point asserted that Singapore’s courts were not independent, and that his client had merely made a comparison between the courts in two countries.
“When one asserts, as [Wham] did, that Country A’s judiciary is more independent that Country B’s judiciary when it comes to adjudicating cases with political implications, such an assertion presupposes that the judiciaries in both countries are independent when it comes to adjudicating cases with political implications,” Wham’s lawyers wrote in their submissions to the court.
“The difference between both countries is merely in the level of judicial independence enjoyed by both countries, and there is no assertion that Country B’s judiciary lacks objectivity or is not independent at all.”
Tuesday’s hearing was the first contempt of court proceeding to take place after the Administration of Justice (Protection) Act, which was passed in 2016 and came into force in October last year.
While the government justified the Act as codifying Singapore’s contempt of court laws, the statute lowers the legal test used in relation to the offense of scandalizing the judiciary.
Singapore’s courts had previously adopted a “real risk” test when it comes to cases of scandalizing contempt, meaning that the prosecution will have to prove that the risk is neither remote nor fanciful. The threshold was then lowered in the Act.
This lowering of the bar, questioned by a number of parliamentarians in 2016, was explained by K Shanmugam, Minister for Law and Home Affairs:
“I want to make sure that the integrity of the Judiciary is pristine. This will give us a strong anchoring in the rule of law which, in itself, is of basic fundamental importance for our people.”
He added that the judiciary’s integrity “allows Singapore to be the pre-eminent, vibrant legal center in the region.”
Wham’s lawyers argued that reducing the standard of proof from “real risk” to “risk” runs counter to Singapore’s constitution, which guarantees every citizen the right to free speech and expression.
In response, Ng pointed to a clause that allows parliament to impose “such restrictions as it considers necessary or expedient… to provide against contempt of court.”
The senior state counsel said that it was up to Parliament, and not the courts, to decide the appropriate balance between freedom of speech and protecting reputations.
The High Court reserved judgement on the case and will rule at a later date.
Under the law, the maximum penalty for contempt of court is a fine of S$100,000 (US$73,394) and/or a jail term of up to three years.
This stipulated maximum is higher than in previous cases: in 2010, British journalists Alan Shadrake was fined S$20,000 and sentenced to six weeks’ imprisonment for scandalizing the judiciary.