Parliament: Administration of Justice (Protection) Bill (Pritam Singh) – 15 August 2016

Introduction

Mdm Speaker, at paragraph 17 of the judgment in Alan Shadrake, the Singapore Court of Appeal notes that the balance between freedom of speech on the one hand and protection of the administration of justice on the other is at the heart of the law relating to contempt. But rather than to merely codify the common law on contempt in Singapore, this Bill threatens to upset this delicate balance by extending extraordinary powers to the Government.

Contempt by Sub-Judice

The Minister publically remarked after the first reading of the Bill that it merely crystallizes the current legal position on contempt and “does not create anything new”. However, the drafting of Clause 3 suggests this far from the case. If it were so, one would have expected specific reference to the “real risk” test as established in the Alan Shadrake judgment to preface the explanatory statement covering Clause 3. In view of the Minister’s second reading speech, it is now clear that clause 3 does indeed envisage a more stringent test that the “real risk” test in cases of scandalising the court.

However, clause 3(1)(b)(i) on sub-judice contempt, on a plain reading, is also open to interpretation and is hardly determinative. A broad reading of the clause with the conjunction “or” suggests that an individual could be guilty of sub-judice contempt by publishing something that prejudges a pending court proceeding by firstly, prejudicing; secondly, interfering with; or thirdly posing a real risk of prejudice or interference with, that proceeding.

Does this not potentially create different thresholds for sub-judice contempt especially since there is a dearth of Singapore case law on this matter? It also leaves room for the courts to potentially introduce a test other than the “real risk” test, such as the “inherent tendency” test, which has been summarily rejected by the Court of Appeal, albeit in cases of scandalizing contempt, but not sub-judice contempt.

Compounding this ambiguity is the introduction of the term “prejudgment”, a term that is curiously not defined in the interpretation section of the Bill. What does prejudgment entail? Should the Minister argue that it would depend on each case, does he not agree that leaving it open-ended would give the Government significant powers to alter the balance between freedom of speech and the administration of justice to its whim and fancy.

Madam Speaker, on sub-judice contempt in particular, this Bill will legislate vagueness. At best, it would only serve to confuse the public, and does nothing to educate the layman about what qualifies as sub-judice contempt. In reality, it will shrink the common space for discussion on matters of public interest as is typical of human behaviour to be safe rather than sorry. That alone already makes this Bill bad law, negating its very purpose.

No place for fair comment of pending cases?

Furthermore, the concerns many Singaporeans have raised over the clause on sub-judice contempt ought to bring members back to fundamental purpose of the sub-judice contempt in the first place – which is to protect the right to a fair trial.

In his remarks to the media shortly after the first reading, the Minister raised a recent case the 2-year old toddler, Daniel who was abused by his caregivers before he passed away. Minister correctly observed many people were angered by the facts of the case, and Minister queried in such circumstances whether a Defendant would get a fair trial. Interestingly, Minister conceded that the judge – the facilitator in chief in ensuring a free trial – may not be influenced, but instead the witnesses, and the whole environment may be prejudiced or influenced. However, has such a doubt ever been raised in the Singapore context where our judiciary was so helpless as to be unable to oversee a fair trial, and to assess the veracity of the evidence of witnesses? Under the current legislation, it can be argued that many Singaporeans would have conceivably been in contempt when the City Harvest trial was on-going. But did their public comments compromise a fair trial?

Coming back to the toddler’s case, what actually happened and how fast did public anger blow over? Was the judge actually influenced? Were witnesses influenced in spite of negative feedback? And most importantly, did the Daniel’s parents not have a fair trial? To quote the Minister, has the situation “gotten out of control”?

Mdm Speaker, as it stands, there is a “real risk” this Bill would have an unnecessarily detrimental effect on public discourse of matters central to the effective functioning of a participative democracy, and that is why it is so objectionable as it stands.

In reality, there are benefits in allowing the public to comment on cases pending before the courts. For example, in the recent Benjamin Lim case, no reasonable person would argue that the Coroner would not have been able to rule fairly, and this is a testament to the standing of the judicial and legal service, which are already held in the highest esteem not just locally, but internationally as well.

In the Benjamin Lim case, it was the very feedback and concerns raised by the public that contributed to a review of police procedures involving young people and minors before the case was concluded. For most lay Singaporeans, the reality is that criticising policies and the facts central to a pending case will inevitably overlap to varying degrees. That is the very nature of public communication and for the common man, it is not easy to always neatly differentiate between the two. Surely there is a place for fair comment and criticism of pending cases and it does not necessarily follow that freedom of speech has to be curtailed as a result.

Relying on the common law to address sub-judice contempt in egregious cases of sub-judice would more than suffice, so as to preserve a healthy balance between freedom of speech and public confidence in the administration of justice. There is simply no overwhelming reason to pass this Bill when Singapore’s experience with sub-judice contempt in particular has not compromised the conduct of fair trials – the near absence of case law on this matter in our legal history provides the strongest evidence of this.

More Power to the Government

With the passage of this Bill into Law, the Government, and specifically the Attorney-General by virtue of clause 13 now has a potentially overwhelming role in the determining the balance between freedom of speech and the administration of justice. Worse, the Attorney-General only has to prove a prima facie case of contempt, an exceedingly low standard of proof. Even our judges, in whom we have so much respect, are prevented by law from refusing to grant leave should he deem the prima facie standard of proof to be too low and not in correspondence with the public interest in a particular case. In fact, the Government, through the Attorney-General could conceivably abuse the law by virtue of the unclear and highly interpretative words such as prejudge in clause 13(7), and suggestions of a test with a lower burden of proof than the real risk test, which mirrors the identical problematic drafting in clause 3. This vagueness suggests a clear and present danger for civil liberties should the Government decide to interpret the law strictly as drafted, to muzzle alternative voices.

Even worse, making sub-judice contempt arrestable by way of clause 22 and thereby giving the police powers to confiscate personal computers amongst other things appears to be specifically targeted at civil society activists who are not afraid to challenge the Government, and who play their part in serving Singapore by contributing to a diverse public space of voices and views. Proceeding on this course will not only compromise trust between the Government and people in the long run, but between the people and the police as well.

At this stage Madam Speaker, it is useful to review the Government’s record on civil liberties over the last few years in particular.

In 2013 when Parliament passed the Protection against Harassment Bill, the Government canvassed many justifiable reasons for the passage of the Bill. Many were legitimate, such as protecting individuals and public servants from (I quote) “indecent, threatening, abusive, insulting words or behaviour” (unquote). One would have expected sexual harassment, stalking, bullying in schools to be brought to task under the law, as predicted and in step with the tone of public consultation on the Bill.

But after the Protection of Harassment Bill was passed into law, it was the Government that used the Act to claim harassment from a member of the public in a dispute over a mere patent! It is instructive to recall that during the second reading of the Protection against Harassment Bill, the Minister was silent about the Protection of Harassment Act envisaging the Government as a plaintiff. To then turn around as sue individuals, was a completely unexpected use of the Act by the Government. And if suing an individual was not enough, the Government then proceeded to sue an online news site under the same law!

Earlier this year, the Government proposed and passed amendments to the Government Proceedings Act that allowed the Government to claim costs for more than two legal officers from a plaintiff knowing that the Government has limitless resources to hire the most expensive lawyers and an entire army of civil servants and legal service officers behind it to defend any civil suit.  The Minister-in-charge did not even address why it was amending clause 9 of the Government Proceedings Act, until Ms Sylvia Lim brought it to the attention of the Minister. This seemingly innocuous amendment would inevitably cause an individual to think twice about taking on the Government because of the prohibitive costs involved.

Madam Speaker, even the so-called “sharp edge” of judicial review is blunted when Parliament passes laws that cause ordinary citizens to think twice about mounting a judicial review action, or further strengthens the Government’s hands, as it can conveniently make the case that its actions are within the form and substance of the law as determined by Parliament. This is especially the case for Bills like the Administration of Justice Bill, which is to give the Government maximum scope of action.

In this vein, there are other pieces of legislation over the years that directly impact freedom of speech too, and which have been amended to give the Government greater powers, such as the amendments to the Public Entertainments and Meetings Act of 2014, the Broadcasting (Class Licence) Notifications of 2013, and of course the Public Order Bill of 2009.

Upon a closer analysis, it is increasingly clear that the Government’s recent record on civil liberties mirror what was known in the heyday of Cold War as “salami tactics” – only that the Singapore version is slightly different and a tad more sophisticated, with the curtailing of civil liberties occurring incrementally, bit by bit or slice by slice, one law at a time which appear justifiable and innocuous when analysed in isolation. Taken together however, they portend a clear and consistent ability to control the public discourse, fair comment and criticism should the Government choose to up the ante to tighten its stranglehold on the public discourse. Viewed in totality, the Government’s approach gives it significant powers to strike fear in the hearts of ordinary citizens.

Conclusion

To conclude Madam Speaker, how much confidence is one supposed take from a Bill which criminalises contempt by a fine of up to $100,000 at the High Court, and a three-year imprisonment term when the Court of Appeal in Alan Shadrake affirmed a sentence of six weeks imprisonment and a $20,000 fine in what the Court of Appeal called and I quote, “the worst case of scandalizing contempt that has hitherto come before the Singapore courts” unquote. IfAlan Shadrake stands for the worse case of scandalizing contempt in Singapore’s 51-year history, how can the Government justify increasing the prison term and fine by such a wide margin? The Minister commented on a recent civil case where the High Court imposed an imprisonment term of eight months. It would appear that the common law is working fine. Does the Government envisage a higher quantum of fines and imprisonment terms for other contempt scenarios, like sub-judice contempt for example?

Madam Speaker, the Workers’ Party objects to this Bill that overstates the case for the administration of justice to the detriment of freedom of speech.

Interview with Lianhe Wanbao (7 Aug 2016)

Original Wanbao Interview (Mandarin): Pritam Singh

REFLECTIONS BY PRITAM SINGH ON THE FACTORS INFLUENCING THE 2015 ELECTION RESULTS: OPPOSITION UNDERESTIMATED THE IMPORTANCE OF GRASSROOTS WORK

Pritam Singh (40 years old) attracted some attention after being elected into the Workers’ Party’s (WP) Central Executive Committee (CEC) with the highest number of votes in June. He was also appointed to the position of Assistant Secretary General, and officially took office on the 7^th of July.

Four days later (11^th of July), he agreed readily in the morning to be interviewed by this newspaper in the evening. He did not ask for the interview questions to be sent to him beforehand, but instead attended the interview with candour, at a coffeeshop near his Meet-the-People Session (MPS) venue.

Singh looked back on the year after the General Election (GE). He spoke vividly when talking about the moment when the election results were announced.

“I was at the assembly centre at Hougang Stadium when I saw the look of disappointment on the faces of our volunteers of Punggol East. After the results of GE 2011 and the two by-elections in the following 2 years, many young volunteers and members, including myself, have not tasted “blood in our mouth”. This defeat is an important lesson. I feel that in the face of uncertainty, keeping faith is very important. But sometimes, no matter how hard you try, you may not be able to cross the finishing line”.

On the factors which affected the opposition’s performance, he said: “2015 was a unique year, the passing of our founding prime minister was still fresh in people’s mind, the nation was in a somber mood, and this was an affirmation to the many contributions he made to Singapore”.

He also revealed that discussions within WP concluded that the impact of the Pioneer Generation (PG) Package on many elderly Singaporeans was very significant.

He believes that the Town Council (TC) issue is also a factor, but “I’m not certain as to whether it really affected the voting outcome as compared to the PG Package.”

He thinks another “extremely underrated factor” is that PAP changed course after GE 2011 to invest more on social spending through the budget.

Finally, he felt that most importantly, the PAP had been work harder and putting more effort into grassroots activities.

“There has been very little discussion on this, but I believe it (grassroots activities) has a great influence, whether through publicity in social media or through other channels. The opposition should remind ourselves that it is not sufficient just to appear when the GE is round the corner, publish your manifesto, and expect the public to vote for you.”

SINCERITY IS THE KEY TO THE SELECTION OF CANDIDATES

Pritam Singh admitted bluntly that Singaporeans are “seasoned” voters.

“You really need to do house visits and knock on doors earlier if you have interest in a constituency. This is an important lesson for the opposition. Winning the elections is not as simple as appearing on nomination day.”

He emphasized that this was a lesson the opposition must ponder over, “The key is that we have to internalize these lessons.”

Speaking about preparations for the next GE, “It depends on whether we can find enough candidates, and now, even the so-called blue-collar workers have a better understanding of politics than we imagine them to have. They can tell whether a person is sincere. If the candidate is judged to be insincere, even with impressive qualifications, I think the people will not vote for him”.

He also pointed out that WP looks out for candidates who can interact well with people and who love the country.

“If one does not have impressive qualifications or experience, but is able to interact well with and is passionate about serving people, we are also interested in you. The key qualities are service to the people and the country.”

DOES NOT MIND TO BE LIKENED TO THE PAP

Pritam Singh said that because of low unemployment, the anti-establishment sentiment is not strong in Singapore. “This is credit to the PAP, and they do well at many levels. It is difficult to say whether the next generation will crave for more checks and balances and a pluralistic political system. However as the ruling party, the PAP has the advantage of incumbency”.

The reporter pointed out that the PAP often say they represent the whole population. In this context, what is the population segment that WP represents?

“If you want to be a nationally inclusive political party, you must represent everyone. It is obvious that we have much fewer MPs. However, we will try to do as good a job with our existing resources despite the asymmetry of information and resources. We play the game according to the cards that we have been dealt. Even if the cards are not good, we have to fight this battle and try our best to represent the voices of Singaporeans.”

When talking about the future of the opposition, Pritam Singh highlighted that impact of new citizens should not be underestimated.

“If you come from another country to sink roots in Singapore, and the government gives you the red passport, it is normal for new citizens to be grateful. I cannot say that they will definitely vote for the PAP, but I certainly know that it is a natural advantage for the ruling party. Since 2007, we have seen an annual inflow of twenty thousand new citizens (and many before that). You do not know how they vote, but I feel that the PAP has an advantage in this. Looking at this situation, we may have fewer or even no opposition representation in the future”.

In response to criticisms that the WP is becoming more and more like the PAP, he said “If the purpose of politics is to oppose the ruling party, then we have to ask ourselves why we want to participate in politics. Our aim should be to improve the lives of the people. If this means that we have to be subjected to criticisms that we are too similar to the PAP, then so be it. The responsibility of my party colleagues and I is the welfare of Singaporeans, so even if the opposition is accused of not opposing enough, and being too similar to the PAP, we will continue to work towards that end”.

He believes that the value of the WP to Singapore should be judged using a different set of standards.

“I believe that a rational, responsible and honorable opposition still has a role to play in Singapore”.

ON BEING A FULL-TIME MP

Pritam Singh did not renew his practicing license as a lawyer in March this year to take on the role as the Chairman of Aljunied-Hougang Town Council (AHTC), and became a full-time MP.

“The next few months are quite critical for the Town Council (TC). In addition to ensuring the smooth delivery of daily operations to serve the residents, we have to also remedy the problems pointed out by the Auditor General, and audit all transactions made with our former managing agent FMSS. If it is established that there were fraudulent transactions, I, as Chairman of the TC, have the responsibility, together with my team, to get back the lost monies”.

“If I continue to practice law, I will inevitably have no time for the TC. I would rather focus on public service. As WP MPs do not have an extensive grassroots network and strong financial support, we have to spend more time and energy to serve the constituents. Having chosen to serve the public through the opposition, I have voluntary chosen to embark on a road full of obstacles. No one forced me with a gun to my head. Along the way, there will be challenges and we will have to endure some knocks, but my party colleagues and I are willing to go through these for the sake of attaining our objective. We must also remember that whatever we do, we have to accept that we are imperfect, and that sometimes we will make mistakes, but we should always have the mentality of serving Singaporeans as we continue on this path”.

ON FAMILY AND DAUGHTER

“My wife and family know why I chose this path, and they also respect my decision. I’m quite thankful for this. Some people face difficulties and resistance from their family members and loved ones in joining the opposition. This has caused immense pressure and difficulties. Fortunately, my family supported my decision, and my wife is a pillar”.

“I have a 15-month-old daughter, and she is a jovial baby. We all hope she can continue like this. I have to manage my time better. For example, reserving Friday evenings or one day a week for my family”.

“I was 38 years old when I became a father, and I always thought that raising children while having a busy career can be difficult. But with the baby, I feel it is a blessing. It opens your mind into another world, and you become more sensitive. It feels good. I will let nature take its course as to whether I want to have a second child, but I will not rule it out”.

ON MR LOW THIA KHIANG

As the WP Secretary-General, Mr Low is not a one-man show. He has the ability to attract people who are patriotic and believe in political pluralism to join us.

“Since joining politics, Mr Low influenced me the most. I watched him for years before joining the party. I understand what he has experienced, as well as his contributions to WP. I admire him, he prefers to walk the talk. He once told Aljunied team, “Please do not disappoint Singaporeans”. We cannot guarantee the election results, but what he meant is for us to do our best. It is a very simple message, but it tells us what to do, and what we are fighting for, in a profound manner. He also encouraged everyone to “not let ourselves down”. Also, do not expect him to encourage you by giving you a pat on your shoulders. He encourages people the old-school way.”

Ends.