Good article on it.
http://themiddleground.sg/2016/08/16/contempt-court-bill-shan-versus-wp-brits-thrown/
Contempt of Court Bill: Shan versus WP – with the Brits thrown in
Aug 16, 2016 07.56PM | Wan Ting Koh linkedin
by Wan Ting Koh
IT TOOK some seven hours of debate before the Administration of Justice Bill was put to the vote. Not just a voice vote but a division which required every MP to say yes, no or abstain. Nineteen MPs, including five Opposition MPs and four NMPs rose to speak on the Bill, which the G said was to codify the law on contempt and which critics countered was an attempt to muzzle criticism.
Introduced in Parliament last month, the Bill pulls together disparate laws on contempt now based on common law or previous rulings. It covers three main aspects: disobeying court orders, publishing material that interferes with on-going judicial proceedings and making allegations of bias against the judges.
It has since stirred much comment, with three NMPs – Assistant Professor Mahdev Mohan, Mr Kok Heng Leun and Ms Kuik Shiao-Yin – submitting a petition for 14 amendments to the Bill which were withdrawn after the debate. In all, 72 MPs including all the NMPs, voted in favour. All the nine WP MPs said no.
The real change, which Home Affairs and Law Minister K Shanmugam admitted to, was the concept of “risk” and “real risk”, which NMP Mahdev and WP MPs Dennis Tan and Sylvia Low said would lower the threshold for scandalising the court, as the court no longer had to take into account whether the risk posted by the offending state was “real” or not.
Assistant Professor Mahdev asked if there was a proper distinction between real risk and risk, or if the Bill may be “moving backwards to a test which has a lower threshold by only using the word ‘risk'”. The MPs referred to past precedents which put a higher threshold on the offence.
Mr Shanmugam acknowledged the change 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 added.
Said Mr Shanmugam: “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.” So yes, the G was going on the offensive to maintain the sanctity and reputation of the judiciary.
Mr Shanmugam’s most aggressive statements, however, were directed at the British High Commission rather than parliamentary critics. The high commission had on Friday released a statement urging countries, including Singapore, to abolish laws relating to scandalising the judiciary. The minister questioned the timing of the statement – “quite improper” – on the weekend before the Bill was due to be debated in Parliament. Was Britain trying to influence the debate, he asked.
While Britain had itself abolished the law, it did so under undesirable circumstances, he said. Contempt had spiralled to the point that the British Judiciary was no longer respected as “everyone was scandalising the court anyway”.
Said Mr Shanmugam: “The Law Commission, reluctantly, recommended that the offence of scandalising the Courts be abolished, because the situation had gotten to a stage where it was no longer possible to reverse what was happening.”
In his speech, which lasted an hour, he reiterated that the Bill was a mere codification of the common law, with maximum penalties identified.
PAP MPs spoke in support of the Bill, agreeing that it was needed to prevent unfair influence of court proceedings and to provide greater clarity and certainty as to what constituted contempt of court.
But the opposition had several points which Mr Shanmugam had to respond to.
Existing law is sufficient
The five Workers’ Party MPs who spoke were unanimous in asserting that the current law was adequate to deal with cases of contempt.
Said Mr Leon Perera (NCMP): “There has not been a rash of cases that make administration of the common law position on contempt of court difficult.”
WP chief Low Thia Kiang (Aljunied GRC) said that there was “no evidence to say that the current law is not effective”.
In his reply, Mr Shanmugam said that crystallising the law in writing would make it less confusing to the public. And he has yet to hear a single argument on why he should not crystallise the law.
Restricts freedom of speech
Said Mr Pritam Singh (Aljunied GRC): “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.”
NMP Ms Kuik said: “The overriding interest that many young Singaporeans have in this Bill is how it impacts their freedom of speech. Their questions sound like this: ‘But what if the guy in Government gets it wrong?’ Isn’t there always a possibility that those in power will get what’s in the public interest wrong some of the time? And if one of us regular guys can see it and wants to point it out to them, shouldn’t we get a safe space to do so as well without fear of being labelled as the enemy of the courts or worse, the enemy of the state?”
Speaking in Mandarin, Mr Low said: “According to the term ‘publication’, even private talk, be it expressing your opinion to friends on Facebook, or talking or sending a message to another person, can be contempt of court. Ordinary citizens talking about case in a coffee shop might infringe contempt of court and may be liable for prosecution.”
To allegations of infringing freedom of speech, Mr Shanmugam argued that the law remains the same as it is before and after the Bill. He asked members to point out which clause impacted democracy more than it did already.
He said: “You can comment on policies, you can debate public issues. What you cannot do is to say something that actually prejudices a specific case, or has a serious, real risk of prejudicing a specific case…That legal position has worked well for us all these years.”
No need for such harsh penalties
NCMP Dennis Tan said that the proposed maximum punishments in the Bill, a fine of up to $100,000 and jail of up to three years, “far exceed” current practices.
Citing the case of Briton Alan Shadrake, which the judge described as the worst case of contempt Singapore has ever faced, he pointed out that Shadrake was only given a sentence of six weeks’ jail and fined $20,000 in 2010, far less than the maximum penalty proposed by the Bill.
Said his fellow WP MP Pritam Singh: “If Alan Shadrake stands for the worst case of scandalising contempt in Singapore’s 51-year history, how can the Government justify increasing the prison term and fine by such a wide margin?”
Mr Perera gave examples of past cases where fines ranged between $5,000 and $10,000. He was concerned that such penalties would now be viewed as the minimum threshold: “The result for our democracy from the passage of this Bill and the attendant publicity could well be that no one who does not have $100,000 in cash to spare will dare speak up about any issue where there is even the slightest risk or perceived risk of prosecution under this law.”
To those who opposed the maximum punishment for being “too harsh”, Mr Shanmugam said that there was an “unhealthy obsession with one aspect of contempt”.
He said that Mr Tan had been focusing on the aspect of scandalising the court, rather than the “totality of contempt”, which included those who disobey court orders. Mr Shanmugam raised the example of a man defaulting on payment to his ex-wife or a party who, despite court orders to freeze accounts, continues to draw funds and does it repeatedly, saying that more serious punishments should suffice in these cases.
As for maximum penalties, Mr Shanmugam said it is up to the court to decide how to mete out penalties depending on the seriousness of the offence based on facts. “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.”
Creates a police state
Ms Sylvia Lim (Aljunied GRC) questioned the need to rope in policemen: “In recent years, we have been talking so much about the heavy workload and manpower shortages faced by the Police. Why are we getting them involved in yet another non-core function, when they should be focusing on keeping us safe from rockets from Batam?”
Mr Pritam Singh (Aljunied GRC), perhaps referring to a recent case where civil activist Teo Soh Lung had her computers confiscated by policemen, said: “Making sub-judice contempt arrestable… 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.”
In reply, Mr Shanmugam asked Ms Lim to point out which part of the Bill turns Singapore into a police state. “Contempt has always been an offence. Contempt has always been investigated by the police with leave of the Attorney-General, and now that we are putting it into statute, who else but the police can investigate an offence?”
Casts shadow of fear
Ms Lim used strong words while speaking out against the Bill, claiming that it was mere “state machinery to intimidate Singaporeans”. Adding to that, Associate Professor Daniel Goh (NCMP) said that the Bill cast a “chilling effect” on citizens and would “scare the public into silence”.
Said Dr Goh: “Scaring the citizens into silence is not something any Government should want because it breeds an inner contempt for the authorities and our public institutions.”
To this, Mr Shanmugam said that the supposed “chilling effect” would be the same before and after the Bill is passed in Parliament, and that only those who wish to make accusations against the court and judges everyday would feel it.
Parliamentary critics insisted that the Bill was not a mere crystalisation and codification as Mr Shanmugam had portrayed. Besides the lower threshold for scandalising the judiciary, Ms Lim also referred to the “draconian enforcement muscle being given to the government” and the “new power” given to the AG to issue a “non-publication direction”. The new power gives the AG the authority to stop a person or website from publishing something, if it is satisfied that it is in the public interest to do so, she said.
Mr Shanmugam added in his second reading speech that the Bill would provide a “fast remedy that would allow contemptuous material to be removed before widespread harm is caused.” However, the publisher may contest the order by applying to court and if the court agrees, the publisher is free to publish the material again.
Heated exchanges
Ms Sylvia Lim “Are we not using a sledgehammer to kill an ant? It would be intimidating not just to persons on the receiving end of such investigations but to society at large. The upshot of reducing the role of the courts and investing draconian powers in the executive is to leave Singaporeans at the mercy of administrative discretion. We would be one step closer to being a police state. Are we an exceptional nation when we say that our professionally trained judges need to be protected from public opinion? Are we an exceptional nation by making Government officials exempt from contempt laws? To me, these are matters we should be ashamed of. By all means, uphold respect for the administration of justice but laws which protect the ruling elites at the expense of ordinary Singaporeans have no place in this House.”
Mr Shanmugam: “I think people who know me know that I am quite careful about what I say … I know exactly what I’m saying. And if I am guilty of contempt then, this law is not going to help me. If I am not guilty of contempt, this law is completely irrelevant. And if Ms Lim believes that I committed contempt, (you) don’t have to wait for the law – put up a complaint to the Attorney-General.”
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Mr Shanmugam: “If you want to put up a conspiracy theory, I think you’ve got to try harder. And we don’t normally take six years. The reason we didn’t push on with the Bill is very simple.
“As I said, even in the absence of the Bill, the law is there.
“But it’s just that it’s better for it to be in writing because… it’s the only criminal law not set out in statute…”
Directing his comments specifically at Mr Perera later, the Law Minister said: “I didn’t know you’d consider six years to be a rush to legislate. It’s slow by our Government’s standards…
