(In Mandarin): [Please refer to Vernacular Speeches.] Mdm Speaker: Firstly, the Workers' Party wants to clearly state that we oppose this Administration of Justice (Protection) Bill. We feel that the existing law is sufficient to ensure that those who are held in contempt of Court will be punished accordingly. As of now, there is no evidence to show that the law has lost its effect.
The real purpose behind this new Bill on contempt of Court is not to protect the fairness of our judicial system, but it is to deter members of the public from voicing their fair and reasonable views on cases under trial. At the same time, however, it allows Ministers to make a statement on ongoing cases, which could possibly affect the judge’s judgement on the trial.
According to the definition of “publication” under the Bill, even private discussions, where a view is communicated from one person to another, whether it is through Facebook among friends, verbal words or SMS, could be construed as contempt of Court. Ordinary citizens engaging in small talks at the coffee-shops could possibly be seen as contempt of Court and charged by the Government.
Yet, if the statement is made by a Government official, particularly a Minister, then it is a different matter altogether. Clearly, the new Bill will provide the Government and the Ministers with unfettered power. A statement, which could be considered as contempt of Court when it comes from a member of the public, becomes completely legal when it comes from the mouth of the Minister, as long as the Government believes that it is in the public interest to do so.
The question is: "what is considered to be in the public interest"? There is no clear explanation in this Bill. So who gets to decide? Of course it is the Government that gets to decide. As the saying goes, “The (Chinese) character guan (meaning Government) has two mouths”. So even if the ruling party’s intention is to protect its own interests, as long as they say it is in the public interest, what can the people do about it? That is to say that the ruling party is the sole judge on interpreting what is public interest. It can also justify the elimination of any dissenting voices, including organisations that opposes it, by accusing them of "not being in the public interest”.
In 1967, there was a Contempt of Court case in the High Court. This was regarding the student riot in November 1966. The then Minister for the Interior and Defence, Dr Goh Keng Swee made a press statement, and one student activist sued Dr Goh and accused him of contempt of Court.
Although the High Court eventually acquitted Dr Goh, Justice Choor Singh then made a very clear judgement in principle. What he said was: "it does not follow that a statement made or issued by a Government minister can never constitute contempt of court, or that a Government minister should never be punished for contempt of court. A minister of the Government is not above the law.”
The important principle behind this High Court judgement in 1967 is that the Court will judge whether a Minister‘s statement interferes with the administration of justice or not. However now, Parliament is going to pass this Bill to say that as long as a Government Minister decides that it is in the ‘public interest’, he can make statements without being construed as contempt of Court, free of any restraint by the Court.
In other words, the Government can define by itself what public interest is, and then use this “public interest” as a protection to go beyond the restraints of the law and the Court, and make statements and pass comments freely on ongoing cases. This is very likely to prejudice the trial, seriously interfere with the administration of justice, and undermine people’s trust in the independence of the judiciary.
In addition, under this new Bill, as long as the Attorney-General feels that any individual or organisation has made a comment in contempt of Court, he can apply to the Court for an order to deal with the person making the comment, while the Court, in the whole process, ends up being reduced to be the administrative assistant of the Attorney-General, assisting him to execute his orders. This is the situation where the Attorney-General supersedes the Court.
On 11 July, MinLaw made a statement to say that this Bill is to codify the laws on contempt of Court, and there is no change regarding what can be done and what cannot be done. However, the real effect once the Bill is passed is that Government Ministers’ power will override the Court and the Judiciary, allowing them to do whatever they wish according to their own needs and convenience, with no curtailment from the Court. This bill is a typical case of “pretending to advance along one path while secretly going along another”.
The Worker’s Party oppose this Bill because our existing law has already provided rules on keeping administration of justice fair. This Bill is not only unnecessary, but is also giving the Government additional powers that it does not have now, to intimidate the people from making fair criticisms on the ongoing cases. If the Bill is passed, it will result in the gradual erosion of peoples' trust in the Government in future.
Mr K Shanmugam: Thank you, Mdm Speaker. I thank the Members who spoke on the Bill. We have heard a wide variety of views. I will respond to the issues that have been raised as well as some of the more specific queries.
First is the question of timing and motive of the Bill. Some suggestions that we are rushing this, that what is the rush, does it have to do with Benjamin Lim, are we chasing shadows and so on and so forth. Are we chasing shadows? Former Chief Justice Chan Sek Keong said in an interview five years ago, that scurrilous remarks unless firmly dealt with would inevitably undermine public confidence in the Judiciary.
And what has been the timeline for this Bill – this was first raised by former Chief Justice Chan in 2010 in his Opening of Legal Year speech where he said that he had asked me to consider enacting such a law. In May 2012, I stated that the Ministry of Law intends to put the law of contempt in statutory form and was working on a draft Bill. Former Attorney-General Steven Chong said in Opening of the Legal Year 2013 that the Ministry was working with the AGC on the Bill.
Indeed, there was no rush, and this Bill has taken longer precisely because there was no rush. Why? And I suspect I will be making this point numerous times. The law is already there. The law of contempt is there. There is no urgency. There is only one change in terms of scandalising the court from real risk, it has come down to risk. Otherwise, the other three heads are exactly the same. Please note that. The way it is set out is exactly this. The law tomorrow, if the Bill is passed into an Act, will be exactly the same as the law today in terms of the heads of contempt, except for the test in scandalising the court.
Why are we putting it in writing? I have explained numerous times in my opening speech and really the question is whether you accept it or you do not accept it but the Hansard record is there. I said it in 2012 and I said it in 2013. Former Chief Justice Chan Sek Keong said it in 2010. So, if you want to put up a conspiracy theory, I think you got to try harder.
We do not normally take six years. The reason we did not push on with this Bill is very simple. As I said, even in the absence of the Bill, the law is there. But it is just that it is better for it to be in writing because it is criminal law. It is the only criminal law that is not set out in statute. So, at some point, we have to set it out. So, all these suggestions of democracy under attack, we are going to restrict freedom of speech, makes for fine statements outside if you believe that you can mislead the public. But for a real debate, it does not meet any of the points that I have made. It really raises questions whether the speeches here are meant for a real debate in our First World Parliament or they are made for consumption outside in the belief that the public can be misled.
As for what I said about the Bill when it first came out on 11 July, I have said that the Bill clarifies and crystallises process, the law remains broadly the same. I say that today, too. Now, Ms Lim, I think maybe Assoc Prof Daniel Goh, asked me what sort of consultations were conducted. We spoke with the Judiciary in extenso. We took in their comments. We spoke with the Law Society Council. We spoke with groups of lawyers. We spoke with the academia. We spoke with media. We spoke with some others.
But underlying it all, the fundamental point to remember is when looking at this Bill tomorrow, Tuesday, assuming the Bill gets passed into Act today, the law is essentially the same. Some processes, additional processes are there but the law is essentially the same. I say that and look anybody into the eye and say that. If anyone says that is not true, tell me.
We took into account the feedback received before the First Reading of the Bill and I have to say we made a number of amendments based on the feedback. As regards what was set out by REACH, the article published on REACH invited readers to share their views on the Bill. But a number of consultations had taken place before the First Reading.
Mr Low made a fairly impassioned speech but I have to say the entire speech seems to be based on a misunderstanding of what the Bill is all about because everything you have said is factually untrue and I will explain why. You raised the spectre – that ordinary citizens sitting in coffee shop talking will be charged with contempt. Does one honestly believe that? 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? If the law yesterday is the same as the law tomorrow, have you seen anyone being charged for sitting in a coffee shop and talking about cases?
I think we want a debate that engages honestly on the facts. I will tell you when someone sitting in a coffee shop discussing a case could be contempt. If you catch hold of a witness, have a beer with him and try and influence or threaten him in a coffee shop; that will be contempt. But if you sit with your friends and talk to them about a case, how do you think it impacts on any case? Give me an answer, somebody. Let us get real.
Mr Low also said that the Government can say whatever it likes and the courts cannot do anything. Completely untrue. Under our system of law, the courts are the final arbiters of any provision of the law. The Government has got to act in accordance with the law. Mr Kok, Ms Kuik, Assoc Prof Mahdev Mohan and others asked me. I confirm that. What Justice Choor Singh said - If a Minister stands up and speaks about a particular case in a manner calculated to prejudice the proceedings and if he does it in bad faith, then I think he will committing contempt, and the Attorney-General will be entitled to commence proceedings.
Again, in real terms, what that sub-clause provides is no different from what is happening today and what has been happening all along. Let me give you examples. I told you about bank runs; I told you about hospital incidents.
The last hospital incident, there was an inquiry. The Government came out and made statements. At that time, it was entirely possible, in fact, Coroner's inquiries were going to take place. But nevertheless, the Government came out and made statements. Did anyone here think that was wrong? Does anyone think that the Government should not make those statements? Would it be tenable not to say anything? Let us take a different example.
Let us say a couple of people get killed in an accident involving a public transport company. There will be legal proceedings. But can the Government wait until then to come out and say what it knows, what has happened, what actions it has taken? We just keep quiet, a few people died, and nothing is said? Is that the way the Government can function?
The Government's statements are carefully drafted with advice from the Attorney-General to try and not prejudice on-going proceedings. This has been going on since time immemorial. In Lau Swee Soong's case, the statements were a little bit more direct than the usual Government statements. But I confirm for the record that courts are the final arbiters. They have to be the final arbiters if the rule of law has got any meaning. Whatever our Minister says, whatever a Government agency says, ultimately, you apply, you look at the clause and you see whether the statement comes within the clause. This was specifically discussed between us and the Supreme Court and I put that on record.
So, it makes great buzz when Mr Low says all the people in the coffee shop, they are all now going to commit contempt, ordinary people; whereas the Government can say what it likes; untrue and untrue.
There is a third point Mr Low makes. In the whole process, the Courts have become an assistant to the Government; untrue again. The Attorney-General, if he believes that there is contempt committed, today, has to apply to charge the person. That means he says that you have committed an offence and he charges you. This law in fact allows greater flexibility. What it says is, you do not have to charge in every single case. Instead of charging, what you do is, you go and apply to the court, and you try and persuade the court that there is contempt and the person should take it down. Who is the boss? The court is the boss. The court decides whether or not the Attorney-General satisfies the court. And if the court disagrees, it tells the Attorney-General, go away. Now, second, he gets the order. He serves it on the person who has published. The person who has published is not happy. He can go back to court and says this is not contempt. Who decides? The courts decide. So, please, let us not misrepresent the Bill. We can have disagreements on points of principle, judgment calls, but let us not go out and say things which are completely inaccurate about what the Bill does and does not do.
Mr Leon Perera made an impassioned speech: grave dangers to freedom of speech, rush to legislate. I did not know you would consider six years to be a rush to legislate. It is slow by our Government's standards. Substantially affects public debate; are there any cases where witnesses have not come forward? Why change?
Why did you assume there is a change? Your entire speech, Mr Perera, with respect, proceeds on a fundamental misunderstanding of what this Bill is about. This is your logic: this Bill has been put in to curb freedom of speech. You have rushed it this year. You are trying to curtail freedom and you are trying to do it by stealth. And as a result of this, tomorrow democracy is going to be much poorer. With respect, all untrue. Why?
The law tomorrow is going to be pretty much the same as it is today on contempt. I would not say exactly because of that one change. But other than lawyers, nobody else will argue about real risk and risk and that relates to a specific narrow area, unless you think that the majority of Singaporeans wish to say every day that our judges are biased. I do not think it is a fundamentally important area for most people. It is very important as a matter of principle, but it is not something which happens on a daily basis. If it did, we will be in trouble, we will be like the British. There are probably a couple of prosecutions a year at most. I stand corrected but that is the kind of figures we are talking about.
Fine rhetoric is one thing. Why not get down to the specifics? Which clause makes a change to the law? Which clause impacts on your freedom of speech more than it does today? Which clause affects democracy more than it does today? I heard nothing.
Mr Dennis Tan has made the point that we should not depart from what the Court of Appeal has said in the Alan Shadrake case. I respect your point. It is a reasonable point of view. People can take that point of view that we should stick to what the Courts have said. And I have explained in some considerable detail why I am making that one change, and that is this. And Mr Tan would know this. The courts fundamentally are engaged not in a policy exercise. They do not weigh up economic considerations. They do not weigh up the larger social policy considerations. They look very narrowly at case law and say this is the law. We, the Legislature here and the Executive, are engaged in a broader policy exercise.
I said in my Opening speech, we are the leading legal centre in this region and we have every possibility of being a clear number one in Asia. I have also said how important the rule of law is. Why do we get reputable international judges coming in to sit on our SICC? Why is our SIAC one of the leading centres in the world? Because of our tremendous reputation. In that context, I said it is a weighing exercise. On the one side, it is 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.
When you take that weighing exercise, we are in a better position as a matter of policy to decide what the law ought to be. And if I hear any cogent argument as to how this change from real risk to risk in the narrow context of accusing judges of bias, of personal misconduct as judges, of corruption – we are not talking about other things; only these sorts of areas – the Bill is quite clear. Why the right for some people – who probably will end up at two or three in a year – to say that should outweigh our view that by protecting the Judiciary in this way, and without getting into arguments as to whether when I say the judge is a biased swine in public, in a way that makes an impact on people, whether I should be allowed to say, "Well, you know, I said that. It does undermine the Judiciary, but you know, it is a risk of undermining but it is not a real risk." Do we want to get into that? I agree reasonable people can disagree on this. And I have put to you why I have taken this approach.
The points on clause 3(1)(b)(i) again proceed from misunderstanding. I think Assoc Prof Mahdev Mohan also asked me to confirm. I confirm the law is the same. It crystallises the common law. There is no back-sliding as it were; no going back to the UK case. It is conjunctive. You got to satisfy both limbs. You got to show real risk of prejudice or actual prejudice.
On the Government exception, why we need the Government exception, I have explained. If any Member here thinks that we can run our society and our Government without the Government saying anything when major events happen, just because there is potential litigation, I think please stand up and tell me whether that is possible.
If two people die on the MRT tracks, whether you think it is possible for us to keep quiet. Whether if five people die out of a virus outbreak in a hospital, even if we suspect fraud, whether you think we can keep quiet. If you think we should, please stand up and tell me. But do not bring up bogeymen. As I said, if there is bad faith, if it is calculated deliberately to prejudice on-going proceedings, the courts can look at that clause and intervene.
Mr Tan made the point that the courts should be the sole arbiter. I think the assumption is that under the Bill, the courts are not, and I have clarified the courts are the sole arbiter. Mr Tan also made the point the maximum punishments are too high and goes well beyond that in the Alan Shadrake case and that was a point made by a number of the other Worker's Party Members.
I think there is, if I may say so, an unhealthy obsession with one aspect of contempt – scandalising the court and the Shadrake case. From our perspective, contempt covers a broad area and there are four different heads that I have referred to. The punishment that is set out in the Act must be adequate to deal with any of those. So, when it comes to scandalising the court, yes, the punishments have been a few weeks but when a defaulting husband who does not pay and when he could have paid and he is recalcitrant, the courts have sentenced him for eight months which is not very different from what we are providing.
I will give you a different example. Let us say you have a case where there is an injunction, what is commonly known as a Mareva injunction. You freeze $100 million and the defendant moves out $50 million, in breach of the court order. He is brought before the court and he is charged with contempt. What do you think the penalty ought to be? And supposing he does it a second time and he moves another $25 million. What do you think the penalty ought to be?
So, move away from this obsession with one provision and look at the totality of contempt and then ask yourself, what should be the maximum punishment. Within that, under the different heads, the courts will decide what is the appropriate punishments for scandalising the courts or interfering with the administration of justice. I think in the coffee shop case, if you go and threaten a witness and tell him that you are going to break his leg, I think that person should go to jail, but that is my own view. How long? Depends on the courts.
Mr Dennis Tan also had some viewpoints on the process by which the Attorney-General can go to court and get leave of court to get an order. He said this reverses the burden of proof, it is forbidding and so on and so forth. Let us get to the facts. Somebody publishes something, the Attorney-General believes that this interferes with current proceedings and may cause serious risk or real risk of prejudice to the administration of justice. He has to persuade the court that he should get an order to get the person to take it down. The court decides. If he gets the order, he then serves it. This is common process. Every lawyer who is in the civil arena will know this is standard operating procedure. This is how lawyers get injunctions and mandatory orders. There is nothing unique; this is bread and butter stuff.
What is lost in these arguments is that today the defendant, potential defendant, faces a binary choice. The Attorney-General either charges him or lets him go. But if this Bill is passed into Act, there is a middle way in that the Attorney-General does not necessarily have to charge. In that sense, it lowers the possible downsides for the defendant. It gives another option for the Attorney-General to try and move it without having to charge a person. He may still choose to charge if he thinks it is egregious but it may also be possible he may choose, that once it is taken down, he feels that there is not further risk, and he can take a view, it is within his discretion.
We are giving an additional avenue to lessen the possibility of people being charged. Why should anyone complain about that? What is wrong with that? To turn it on its head and to suggest that it is somehow a major change in the law and it is infringement of people's rights and reverses the burden of proof – all simply not true.
A number of speakers, particularly Assoc Prof Goh and Dennis Tan and a few others spoke about Benjamin Lim. Now again, I am afraid I will have to repeat this ad nauseam. Whatever was the law in March when we discussed Benjamin Lim will be the law tomorrow after this Bill is passed, if it is passed. So, whatever we discussed under the rubric of, within the framework of sub judice, the same law applies. Whatever we could say then, we can say tomorrow. Whatever we could not say then, we cannot say tomorrow. This huge concern that after tomorrow we cannot have these sorts of discussions and somehow things are going to change, I give you the benefit of doubt and assume that you really felt that, but if so, you can be rest assured that is not the law and that is not what the Bill seeks to do. The position is the same.
Now specific to Benjamin Lim, if you went back to read what I said, I had said that it was not ideal to have an extensive discussion in Parliament on the facts at the time when the Coroner's inquiry had not taken place. For obvious reasons – witnesses were going to come and Ministerial Statements were made, people were talking about it, there was a large amount of publicity, and the Minister setting out this is what happened. I did not think it was appropriate, but we had to do it. I took from advice from AGC and I did it.
There is contempt and then there is what is appropriate and not appropriate to be said. I did not think it was appropriate to discuss facts in detail when there was a Coroner's inquiry pending. But that does not preclude us from discussing whether the Police should themselves interview young people or whether they should have an appropriate adult present. It does not preclude us from discussing how schools should handle young people. It does not prevent us from discussing a wide variety of issues.
I think what is not appropriate is to discuss facts specific to what happened. It should wait for the Coroner's inquiry, all the facts are presented, within a certain legal framework, irrelevant stuff is excluded, the evidence is tested, findings are made and then we all discuss the facts. Prior to that we discuss policies. But having said that, my views on what is appropriate or not appropriate, I have set out, but the key point is the law does not change.
Ms Kuik asked about the Government exception on statements. I think I have made a number of points, it happens regularly, up to now, no one has thought that there was anything wrong with it. In a democratic society, in a day-to-day situation, the Government has a duty to come out and say it.
Indeed this is an appropriate time to read out. A number of people cited, including Ms Sylvia Lim, the case of Lau Swee Soong and tried suggesting that it shows in fact the Government does not have right to make statements that it believes to be in public interests. That is, if I may say so, not an accurate reading of the Lau Swee Soong case and let me quote, because rather than me saying it, let me quote and you hear it yourself, what the law is. Justice Choor Singh said, "In my judgment, it is plainly the duty of the Government not only to maintain law and order but also to give the public as much information as it is proper concerning any such disturbance." Can anyone argue with that? "I find that the first respondent in authorising the issue of this statement by his Ministry was merely carrying out this duty."
"To suggest that the Government should not give information to the public by radio and television on matters of great public interest relating to the maintenance of law and order is simply to demand the abandonment by the Government of their duty and the surrender of their authority."
I have extended it, almost every instance I have given you has happened sometime in the past even though I have put it as hypothetical examples. People die on MRT tracks or something happens in a hospital. You just multiply the instances, just think back, each time the Government comes out and says something. But we take advice on AGC and we are quite careful.
Ms Kuik also asked about fair criticism on public affairs. I explained in my speech the moment you say you allow the public discussion on a pending case, as long as it is in public interest – you see, there is a broad range of public opinion. Effectively, what you are saying is it is okay for the trial to be prejudiced. Because if you are not prejudicing the trial, there is nothing to prevent you from discussing it. So, we are actually talking about a very narrow area. Discussion is proscribed only if it will prejudice a fair trial.
Going back to Mr Kok's example, if you gather people round somewhere in a meeting and you sit and discuss an on-going case, I ask you how is that going to prejudice a fair trial? But if you organise a campaign to get the judge to rule in a certain way, you can see that is wrong. I do not think you are suggesting that. What you are suggesting is people come together and there is a topic. Inevitably they will start talking about Yang or the City Harvest case, yes whether they do it in a coffee shop or whether they do it by the seaside, I do not think anyone will suggest that is contempt. The law tomorrow is the same as the law through those years.
Ms Kuik talked about the young people who feel it is restricting free speech. I think you are fair enough to put it as, "It is an emotional reaction". What I am giving you are cold facts, the law tomorrow is the same as the law yesterday. On this area there is no change. In fact, they can discuss a great deal and as reasonable people, they will agree they should not do anything that prejudices the right of somebody else to have a fair trial. I think if you put it in those terms they will understand. We will have to rely on you and others to put out that point as to what this law entails.
For a start, maybe you can tell them it does not 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, I do not think the kind of discussions you are talking about by and large relate to that. Now, that does not mean that after the judgment is over they cannot go and try and organise themselves to say the Government should change the law. They can. They have every right to.
Mr Singh asked about clause 3(1)(b) and I think I have said it is not disjunctive, it is read together, and I think that is quite clear. I suppose the law of contempt confuses a lot of people, and that is one of the reasons we are trying to put it out in writing clearly.
The second point Mr Singh made is that has there been any evidence that witnesses and others have been influenced, why is this law necessary, and were people influenced, and if they were not influenced then why is it necessary. I think Mr Singh has lost the thread of my points. Mr Singh is right if we are doing something through this Bill which is not currently the law. But it is currently the law. That is why you have a certain sanctity to your proceedings. People, witnesses and all are not threatened. Witnesses are not pressured because we already have the law in place. And I am putting it out in writing. If anyone has any objection to me putting out in writing what is the current law, then tell me. I have not heard a single argument so far, I have not heard a single argument as to why we should not crystallise the law.
Mr Singh also said we are bringing in all these legislation, one by one, and we are restricting civil liberties. For Protection of Harassment Act (POHA), it was presented as something for the people, as helping people who are being harassed. And then what happens, the Government itself sued for harassment. I stand corrected but I thought that was what I heard. Now, I think if that is what Mr Singh said then he should check his facts. Because my recollection is that the Government has not sued for harassment. And so the entire façade of arguments that were set up on the basis that POHA – the Government sues for harassment after passing it by stealth, and now this – it breaks fundamentally, because first of all here the law does not change, except in the one way which I suggested.
As for POHA, the Government never sued for harassment. So, I am not sure what the point is. My own recollection is that MINDEF asked for a factual clarification under a different provision, not for harassment. Mr Singh has made many speeches about the importance of transparency. I think in that spirit, he will understand that if somebody publishes something about the Government or any Ministry, and if the Ministry wants to respond and ask the person, "Put up my response. Not asking you to change your article but carry my response" as a champion of transparency and open ideas and free exchange of ideas, surely, he would support it, unless he thinks that everyone should have the right, other than the Government.
Mr Singh made the point as well about the Alan Shadrake case and penalties, and the curtailing of civil liberties. I think I have explained the Alan Shadrake point. If you get away from this obsession with one aspect of contempt and look at it across the spectrum, you will see that maximum penalties have to be set, unless you do not trust the Courts. I say, have confidence in the Courts to impose the appropriate sentence.
Asst Prof Mahdev asked me for the bright line between what is permissible and what is not permissible in clauses 3 and 13. I am going to tell you that we should stick with how the cases have defined it. I think that is the best way. If you look at the Bill, scandalising, if you impugn the integrity of the court, say they are biased, you make those sorts of allegations, it is fairly clear. Plus if you show a risk of undermining confidence in the Judiciary – that is your bright line. The cases have set it out. Sub judice – there are cases, and I have told you and confirmed many times it is conjunctive. You got to show that conduct, the publication and the real risk of interfering, or real risk of prejudice.
“Real risk” versus “risk”, I think I have explained a number of times. The courts apply the law. They develop the law. They do not take the larger policy perspectives. They are not in a position to take the larger policy perspectives. The Executive is uniquely placed to take a broader policy perspective including how we develop, how we should protect. In that context, I have explained why I have decided it should be risk.
I think you asked me whether the public can say anything as long as it is not intended, not calculated by them to prejudge proceedings. You need to be careful there. It is not so much what they think; it is what the impact is. Supposing it seriously prejudices the proceedings and the guy comes and says, "Actually I did not intend that". I do not think the courts have accepted that approach. But I can go along with you in saying that you can say what you like. In fact, you can say about the universe, a whole variety of things. When it comes to a specific case in court, you need to be careful. If you sit in a coffee shop and talk, that is not an issue. Mr Louis Ng asked about putting up a Facebook post. I do not want to be standing here and giving legal advice but I cannot see how putting up a Facebook post poses a real risk of prejudicing proceedings unless you are 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 the whole host of factors and these are best left to the court. But in the broad types of cases that Mr Kok has mentioned, just ask yourself what is the real risk of prejudicing the proceedings. And remember the other point – the law is the same before and tomorrow. So, Mr Miyagi, Mr Brown, whatever they have said, have they been charged?
Ms Lim also raised this point of a Police state. All these phrases – “democracy”, “freedom of speech”, “police state”. What part of this Bill makes it a police state? Contempt has always been an offence, contempt has always been investigated by the Police with leave of the Attorney-General. Now that we are putting it into statute, who else but the Police can investigate an offence?
If you go to a layperson who has not followed the debate and you tell him, "You know, the Government is passing a law which is allowing the police to come in and do all sorts of things to you", it makes good copy but it is not the truth. It is an offence, somebody has got to investigate, and the Police are the parties who will investigate.
Ms Lim also brought it down to the personal level as to whether I am passing this law to protect myself because of statements that I had made in the recent past. I think people who know me know that I am quite careful about what I say. When I say something is unlawful, I mean it. When I go on TV and I talk about the Thaipusam case, I know exactly what I am saying. The law then and the law tomorrow is the same. If I have been guilty of contempt then, this law is not going to help me. If I am not guilty of contempt, this law is completely irrelevant. If Ms Lim believes that I committed contempt, she does not have to wait for the law. Put up a complaint to the Attorney-General.
People went out to attack the Police and made all sorts of allegations while a trial was pending. As the Minister responsible, or one of the Ministers responsible, it was appropriate that when the Police's integrity is being attacked, I go out in response to those allegations to set out some of the facts. Nothing in the law precludes that.
As regards the comment, again quite unnecessary, about Law Society President, I said then that it was not quite appropriate. I felt that the debate was also best avoided. The law is the same then, the law is the same tomorrow. The Law Society President was not charged for contempt.
And then, this phrase, "This law is to protect the ruling elite", I suppose that means the Front Bench, the ruling elite. I fail to understand because it has got nothing to do with us. It has all got to do with the judges and how court proceedings are conducted. How does it protect any of us? What you say has got to have some reference to the matter at hand. Scandalising the court, you go and say something about the court, you say the Judge is biased, what has that got to do with anyone sitting here? You go and interfere with existing court proceedings, what has that got to do with us? I could have well left this law alone except that if I am doing my duty and doing what is right, I would say we need to protect our Judiciary. If you go and shout in court and interrupt court proceedings, what has that got to do with us? How does it protect any of us?
I tell you who will be afraid of this. There are at least two types of people who will be afraid of this. One are people who pose to be responsible in public but privately encourage others to say things about the courts and generally in the belief that as long as you bring down institutions, they benefit. There are people like that whose public presentation is very different from what they do privately. They will be afraid of this Bill.
Assoc Prof Goh also talked about chilling effect and so on, but I think I have dealt with most of the points and have explained that if you did not feel any chilling effect the day before, you should not feel any chilling effect the day after because the law is the same. It is just that it is written out. It may be that in the past, not being a lawyer, you had not, thankfully, have had to deal with the law of contempt. And now seeing it in writing for the first time in your life, perhaps, you say "Oh, is this what the law provides?" That is the law and that is the reason why it should be in writing because imagine how many people would have understood this law if it was not in writing.
Again, you made the point, members of the public talked about Benjamin Lim, you are a concerned father, what about concerned fathers speaking about the matter. Well, the rubric of the law, the framework of the law was set and that same framework applies. In reality, many statements are not in contempt because they do not pose a real risk. Sometimes, they may be in contempt but the likelihood the Attorney-General takes a look at it, as he often does, and then decides not to do anything about it. That is the way the system works. You sort of assess and you just go for the more egregious types of cases. So, if a father who has lost his son or daughter, he is grieving and saying all these things happened 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 Attorney-General will think contempt is warranted. So, the real point is how has it operated all these years? We have not had a problem. Since we have not had a problem, we should not have a problem now and hereafter.
Dr Neo asked how the Court will deal with spouses who disobey court orders because they are unable to pay or due to other reasons which are beyond their control. There are many reasons why people disobey maintenance orders. Contempt proceedings may not always be the most appropriate way to enforce these orders; most effective against spouses who are recalcitrant, able to pay but unwilling to pay. But if they really have no money, then you got to ask whether contempt proceedings is the best.
There are spouses out there to whom we want to send a strong message through this Bill. Strictly speaking, a spouse who disobeys a maintenance order because he or she is unable to pay, commits contempt under the Bill and under the current law. The spouse's motive in breaching the order is irrelevant to the issue of liability, but it may be considered in determining what the appropriate punishment is. Where the spouse is impecunious or there are extenuating circumstances, the court will obviously give proper weight to those issues.
And it does not have to impose a fine in every single case. Even after a person has been found guilty of contempt, the court can suspend the sentence. The court will give the contemnor time to comply with the order of court, and to comply with such conditions as it thinks fit. The Bill also gives the court discretion to fully discharge a contemnor on the condition that he or she satisfies another order made by the court, such as a varied order to pay the maintenance in more manageable instalments.
Dr Neo also suggested that other forms of punishments or remedial actions for contempt should be included to deal with such spouses. Similarly, Ms Rahayu has asked whether my Ministry has further plans to make enforcement of court orders more effective. To better deal with the situation described by Dr Neo, other existing ways to enforce maintenance orders under the Women's Charter such as an attachment order could also be used.
On a broader level, my Ministry is conducting a comprehensive review of the regime for enforcing civil court orders in Singapore. I have asked the Civil Justice Review Committee, led by my Senior Minister of State Ms Indranee Rajah, to look at this issue amongst other issues and more details will be announced in due course.
Mr Louis Ng asked, "What is fair criticism?" The test is set out in case law. It covers, for example, articles written by academics who criticise judgments and of course, criticisms by non-academics as well. The courts have set out what is fair criticism.
Mr Kok set out two examples and asked if these would be contempt. Simply stating a hope that justice is to be done, how can that be contempt? Stop seeing shadows. I think if you take away one thing from the debate, just ask yourself how has the law operated up to now. That is how it is going to operate. There is already a lot of public discussion on cases, on proceedings. The test is: does that prejudice or does that pose a real risk of prejudicing. An obvious example is when you organise to try and pressure the judge or pressure a witness. I do not think that those are the kinds of cases you are talking about.
You have also asked what about merely disagreeing with how a case has been handled, I think the way you have characterised it, that should not be a problem. But if you believe that the judge should not listen to a certain expert witness, that is also disagreeing with how a case should be handled and if you try to pressure the judge into disbelieving a particular witness, I think that crosses the line.
Mr Kok said that it is not clear what is the compelling reason for this sub judice rule in the light of the eminently qualified Judiciary. The first point is this is the current law. This is the law. The reason why we have the system that we have is because we have kept this law and we have enforced it; and Singaporeans have accepted it and we are not changing it.
Mr Kok also said, "Look, I think it comes close to saying it is okay if there is prejudice", in response to my point that witnesses could be influenced by an organised campaign. Mr Kok made this point: witnesses are just one aspect of the testimony and it really does not matter if there is prejudice because the witness changes his mind and does not tell the truth. There, I have strong disagreement. If the witnesses are coerced or otherwise persuaded to change their testimony, that is serious prejudice. I do not think we can lightly disregard it.
Imagine your friend is the person who is charged and let us say there are five witnesses and they change their testimony or some of them change their testimony. You think that is right? Would you be satisfied in saying it does not matter, that is only one aspect, there are other aspects, documents and so on? I do not think I agree. Your friend must have the right for fair trial, the presumption of innocence, and witnesses, all the witnesses, must come and tell the truth. There is no law that can force them to tell the truth but at least we can make sure that we do not have extraneous influences influencing them and changing the way they give evidence.
Public discussions are not per se prohibited. It is really a question of whether the public discussions impose a real risk of prejudicing the proceedings or in fact actually prejudicing. There is some misunderstanding there.
One of the speakers asked if the word "publication" is too wide. Again, it is just crystallising the current law. Publication to a single person will usually not result in any prejudice to proceedings, it is common sense. But publication to a key witness in an on-going case to try and persuade that person, you can see that. That is why we do not try to set it out in detail here, we leave it to the court, the test being "was the trial prejudiced, or is there a real risk?" If you are the key witness and somebody changes your mind, he is interfering with the proceedings.
Mr Darryl David asked whether media outlets, social media companies, other intermediaries will be liable under the Bill for contemptuous material published by their readers or users of their online platforms. The companies will not be liable for such material published by their readers or users if they had no editorial responsibility or control over the material; or even if they had editorial responsibility or control, if they had taken due care to prevent the publication of such material. Innocent online intermediaries should not be liable for contempt. I can assure you Singapore remains an open operating environment for these online intermediaries.
You also asked if public discussion or advocacy on matters of public interest will be unnecessarily stifled and if such advocacy would amount to interference with or prejudice to on-going proceedings; and Ms Thanaletchimi asked if the public and netizens are only permitted to comment on a case after the case is concluded. Basic point: whatever you are allowed to say today, you are allowed to say tomorrow. Just proceed on that basis, that is the law and that is what the Bill provides.
You can comment on general policies, you can debate public issues, you can even debate the proceedings. The Bill does not intend to, does not prevent the public or civil society from discussing or advocating change of the law, but just keep away from prejudicing or real risk of prejudicing the proceedings. So, it depends on how many people, what sort of platform, who are the people involved, how likely it is to prejudice the proceedings.
Mr Kok, like others, made this point that discussions in the Benjamin Lim case were useful and Police started reviewing their procedures. I will make a factual correction – if you go back and you look at our statements, we decided on that early, it was not because of the public discussion.
I agree that there is value to public discussion but the context is when, at what stage, and what sort of discussion. Some sorts of discussions are possible before the proceedings are concluded, some sorts of discussion should be held after the proceedings are concluded. That is the situation today. Even if the kind of discussions relating to, going to the issues as it is discussed before the proceedings are concluded, it does not automatically become contempt unless it is of such a scale and nature to prejudice the proceedings, or a real risk of doing so.
Mr Kok also asked whether your project Both Sides Now, which discussed end-of-life issues would have been in breach of sub judice law. I do not know enough but based on your description, probably not. And again, nobody cited you for contempt and nobody will cite you for contempt hereafter, I assume people knew about what you did.
Ms Thanaletchimi asked if there are channels for making genuine complaints regarding the conduct of a Judge who is hearing an on-going case. Genuine complaints regarding a Judge's conduct can be made to the Chief Justice, and as I said, to the CPIB, and proper investigations can be conducted.
Asst Prof Mahdev, Ms Denise Phua, Dr Tan, Ms Kuik, Mr Louis Ng and others have asked what is necessary in the public interests. I took it earlier on and explained it just now. I said the courts are the ultimate arbiters in the sense that any time Government exercises a power given under a statute, the courts are the ultimate arbiters. They have to see whether the framework for exercise of the power has been conformed with. I can assure Ms Kuik this clause does not extend to anyone beyond the Executive. I was taken aback by that question. It is certainly not the courts or others.
Mr David asked how this Bill will affect the current reporting practices of the mainstream media and the alternative media. As I have said what constitutes contempt has not changed materially under the Bill. The mainstream media in Singapore has generally been responsible, adhered to high standards in terms of what they report of on-going proceedings. The practices which were acceptable up to today will continue to be acceptable tomorrow.
Ms Thanaletchimi asked how the terms like "fair and accurate", "good faith", "honest" and "reasonable" and so on under the various clauses in the Bill would be interpreted. The Courts will have to do it. Some of those terms are already interpreted by the Courts and they are best placed to do it. I think most people reading it will know what they mean.
Mr Kok expressed a concern that a publication will be in contempt as long as the Attorney-General deems them to be so at first sight. It is not for the Attorney-General to decide on his own. He needs to go and persuade the High Court, prima facie at first, and then, if there is a challenge, the court has got to look at it and decide.
As I explained earlier, this is an additional route, in addition to the current routes. If we left it in the current situation, the Attorney-General has only one choice ‒ to charge you for a criminal offence straightaway.
Mr Ng suggested having penalties for each form of contempt for better clarity. I think that would not be appropriate. We just set out the maximum penalties and then leave it to the courts to be sensible and apply different penalties for different types of contempt. It is up to them. It is fact-centric. It all depends on what happened and the particular facts.
Mr Patrick Tay asked whether orders made by the Industrial Arbitration Courts and various other Tribunals would be subject to the Bill. Ms Thanaletchimi raised the same query on Industrial Arbitration Courts orders. The Industrial Relations Act has set out comprehensive provisions for dealing with contempt of the Industrial Arbitration Courts. What we are really asking is why is there a need for the award to be disobeyed at least two times before it can be punished as contempt of court.
I can understand but it, unfortunately, primarily relates to a policy of the Industrial Arbitration Courts. But my Ministry will be happy to work with the Ministry of Manpower and Mr Tay to see how we can ensure effective enforcement of the Industrial Arbitration Courts. Maybe Mr Tay can also discuss with them to see whether the policy can be changed.
Orders by the Small Claims Tribunal are enforceable as orders of a Magistrate's Court and will, therefore, be subject to this Bill. Orders of the Employment Claims Tribunal will be enforceable as an order of a District Court and, therefore, subject to this Bill. As for the Community Disputes Resolution Tribunal (CDRT), it is a State Court, so disobedience of CDRT orders will fall under the Bill.
I think there have been some suggestions on public education, FAQs, and we will release some illustrations of what is and what is not contempt. I think I have covered the questions raised by all the Members. Mdm Speaker, that concludes my response.
For instance, there is a definition of publication. And according to clause 2 of the Bill, a person is said to have published something when he communicates even orally, or even if it is just one member of the public. So, that I think applies to people who talk, discuss at coffee shops.
Clause 13(7) of the Bill says that once the Attorney-General shows the case satisfies certain conditions, the High Court "must" grant leave to the Attorney-General to issue a non-publication order. "Must". And clauses 22 to 24 enable the Police to arrest persons accused for contempt of court, so there are additional Police powers in this field.
Madam, what I am most uncomfortable with is clause 3(4) of the Bill that gives the Government the right to make statements and allows the Government to become the sole interpreter and decision maker of what constitutes public interest. And, this, I smell a similar element in the Internal Security Act.
Mr K Shanmugam: Let us start with the first point, which I think is quite conclusive, because what Mr Low says is that he is not convinced by me. On the face of it, it looks like he is disagreeing, but then that leaves only two interpretations. Either I am right about what the Bill says or I am wrong. He thinks I am wrong. But if I am right, then none of his arguments can stand. Therefore, I think that is the most conclusive point in the debate so far: I am right. And I am right because—Mr Low here is not a lawyer— you look at the three heads of contempt. In clause 3, they set out the current law. You disagree that they do. I am unable to take it further because you disagree without telling me why they are different, whereas I have taken some trouble to explain to you why they are the same. As for the fourth head of contempt, I have said it is a change and I have explained the change. I have explained how it affects very few people, and I have not heard anything else from you.
So, I think, in a way, that it is conclusive, because, if I am right, the Bill makes no change, then you cannot have any objection. But you can have an objection if you believe that I am wrong. So, this is a strange case where a Member of Parliament says the Minister for Law who puts up the Bill, after extensive consultation with the Courts and who says ad nauseam that the law is the same and is intended to be the same. And the argument is, "I do not believe you, I do not trust you, I think you are trying to make a change." How do I argue that point?
Second, you made that point by reference to specific points. One is publication; it applies to publication to one person and, therefore, coffee shop. But, Mr Low, you cannot just look at one clause on publication. Publication to what? And you go back to clause 3. Clause 3 says for the kind of contempt you are talking about, people sit with each other and sit in a coffee shop and say, "That fellow is guilty", and they say that over a beer. But clause 3(1)(b) says you also got to show real risk of prejudicing the proceedings. You have forgotten that. It shows that you must either prejudice or show a real risk of prejudice.
So, how does a person sitting in a coffee shop in Hougang saying that something is wrong in the Courts, how does that statement impact on either the judge or the witnesses or the proceedings? I mean, it is just common sense. I have given you one example where it can impact. 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 the proceedings.
You then said, referring to the powers of the Attorney-General, that the Court "must". But you have not read the rest of it. The Attorney-General has got to prove a number of things. All factual matters. And who do you think decides on whether the Attorney-General has shown or has not shown those things? The Courts. The Attorney-General has got to go there to the Courts and show this, this, this, all these conditions have been satisfied, prima facie, and then the Court has got to decide. If it decides that it does not agree with the Attorney-General, it throws him out. And if it decides that it agrees with the Attorney-General, then it says, "Okay, I give you the order".
Then, the other side is entitled to come back to court and say, "You know, you have not heard everything. I have a side of the story, and this is my story." And if the Court agrees with the respondent, what do you think happens? The order is set aside. So, who is the boss? The courts control the proceedings. The Constitution provides that judicial power is vested in our Courts.
Finding of facts, as provided for in this Bill, requires the Court to make those findings. The Attorney-General cannot go and say, "Look, give me the order. I do not need to satisfy you of anything." If he can say that, you are right. But that is not what the clause says.
You have said the Bill gives the Government the power to be the sole interpreter of public interest. But I spent a fair bit of time explaining to the Nominated Members how that clause is to be interpreted. And I said this was discussed with the Supreme Court. I did not have to disclose it but I put it on record. I said that the courts are the ultimate arbiters as to whether the power of the Executive was exercised in accordance with the clause. So, one has got to go back and look at the rubric and decide. And then, Mr Low has made the suggestion of the Internal Security Act. I was wondering when that would come up. But I can tell you I have not seen any powers of detention without trial in this Bill.
First of all, on clause 3(4) itself, I do think the Minister is wrong in that my reading of the clause is that it actually increases the power of the Government viz-a-viz public interest, and if I may clarify why I say so. The Minister keeps saying that the Court is still the final arbiter of whether the Government has exercised its powers within the clause. But, really, when you look at the phrasing of the clause, the operative words are "the Government believes it is necessary". Would the Minister agree with me that that introduces a subjective element to the test, that it is the Government's opinion that counts and the Court cannot substitute its own opinion as to whether it is necessary? That is the first point.
Secondly, I believe the Minister has actually touched on what is now the actual effect of the clause, and, that is, that the only way that a Minister's or a Government's decision can be challenged is if bad faith is shown. And we all know that this is very difficult to prove. So, I would like the Minister to confirm that this is actually a significant scoping down of the Courts' power to review the Government's assessment of what is necessary.
Next, on a related point, Madam, on the Lau Swee Soong case, I do not think it is anywhere stated in the judgment that bad faith is the only reason for the Court to intervene to curtail Ministers from speaking too much and to be in contempt. We quoted from the judgment of Justice Choor Singh. It is true that Justice Choor Singh mentioned that if a Minister's statement is calculated to prejudice a fair trial, then he would not escape being punished for contempt. And as far as I understand the word "calculated", it does not need the Minister to intend the outcome. But so long as the statement is likely in the circumstances to prejudice a fair trial, then it already will become a potential contentious statement.
So, we have a conflict here between, on the one hand, the new clause which says that the Government's belief is what counts and, on the other hand, Lau Swee Soong does not really say that bad faith is the only way in which the Court can supervise the Minister's assessment.
Ms Sylvia Lim: Okay, Madam, the Minister was earlier saying that in the Lau Swee Soong judgment, the Court recognised that the Government has a duty to act in the public interest, otherwise people might die and so on. But at the same time, does he not agree that in the judgment itself, the Court also expressly said that Dr Goh Keng Swee's statements in those cases were still within the Government's duty because they were referring to the general circumstances of the riot and did not touch on the individuals' actions in the riot. So, Mr Lau did not have a cause to complain because there was no statement made about what Mr Lau did or did not do.
This is in sharp contrast with some of the statements that the Minister himself has made. For example, in the Thaipusam matter in 2015, where he actually referred to the three accused and said that they did various things before the Court came to a conclusion.
Madam, the next set of clarification concerns the Police. The Minister said that the Police have always had the power to investigate contempt on a complaint of the Attorney-General. I would like his clarification on which law he is referring to say that the Police can be mobilised to investigate complaints by the Attorney-General of contempt of court and is there actually any current law which states that contempt is to be treated as an arrestable case under the Criminal Procedure Code (CPC) because I have not seen this myself?
Mr K Shanmugam: Let me deal with that. Clause 3(4) read with Justice Choor Singh's judgment. If you look at clause 3(4), what does it say? A statement made by a person on behalf of the Government is not contempt if the Government believes that such a statement is necessary in the public interest. The Government has got to show that it believes that such a statement is necessary. So, if challenged, the Government would have to show that. Justice Choor Singh said if a statement is calculated to prejudice the proceedings, then the Minister would be liable for contempt. The two are tied together. If a statement is calculated to affect, prejudice proceedings, how can the Government show that it believes that the statement is necessary in the public interest if it is calculated to interfere and prejudice proceedings?
Well, Ms Lim, that is my view and I have stated it. I think clause 3(4) is clear. I do not think the law is that all that the Government has got to show is that it believes. As with any other governmental power, ultimately, that is also a subject for the court to rule on as to whether the Government's belief, Government's statement that it believes is accurate or whether the statement, in fact, had a different motive and a different reason and was intended to prejudice the proceedings.
If we come within the rubric of what Justice Choor Singh had said, that if you make a statement calculated to prejudice on-going proceedings, that will take the Government out of clause 3(4). Ultimately, the courts interpret clause 3(4). You look at all the cases in the past as to what the Government has got to show. The courts will give considerable deference to what the Government states but, ultimately, they decide. The courts decide.
And, next, in terms of the Thaipusam case, I do not know what the relevance is, because if Ms Lim believes that what I have said was contempt, please file the case with the Attorney-General. Let us not debate the merits of what I said. I believe what I said was not contempt and I do not believe that what I said caused prejudice or a real risk of prejudice to anyone's trial. If you believe otherwise, file it but certainly do not link this Bill with that because the genesis of this Bill was six years ago, well before the Thaipusam case, and 2012 and 2013. If I had committed contempt, this Bill is not going to save me because the contempt has already been committed. This law takes effect from tomorrow if we pass it today.
Mr K Shanmugam: A number of situations has been investigated by Police on the directions of the Attorney-General. The general provisions allow the Police because it is a criminal offence. I am not saying it is arrestable. It is not specified in the CPC as an arrestable offence. You are asking two different questions. First of all, who can investigate? Any offence can only be investigated by the Police. Take Attorney-General v Lingle. I argued that case. The Police investigated. The Police went in and took all the documents. And that was, if I am not wrong, 1995. Take the Wall Street Journal case, 1989. I argued it. The Police were involved. The Police handled investigations.
I have handled contempt cases for nearly 25 years. When there is contempt, the Attorney-General gets involved, he asks the Police. But, here, now, we are setting it out in writing and as we set it out in writing, we have made it an arrestable offence, like other arrestable offences but —
Mr K Shanmugam: Well, if you want to make that point, please go ahead and make it, but those are the facts. The Police are the people who always investigate offences. You can argue as to whether it should be arrestable or non-arrestable. That is a different point. That is a process issue.
Ms Kuik Shiao-Yin: So, can I confirm that a publication made as part of a discussion in good faith on a matter of general public affairs is not contempt of court under clause 3(1)(b) if there is no prejudice or interference or real risk of prejudice or interference?
Assoc Prof Daniel Goh Pei Siong: Thank you, Mdm Speaker. I am asking in reference to the March statement that the Minister made. You said something about the "planned, orchestrated campaign" by the Online Citizen in the midst of all the different falsehoods that were being perpetuated. Would you say that with this law now, with clause 13, you could ask the Attorney-General to start proceedings − non-publication viz a viz the Online Citizen? Would you say that the Online Citizen was in contempt at that point of time sub judice? And if they were, why were not proceedings being launched against them and will this law be used against them if it was law then?
Mr K Shanmugam: First of all, this law cannot relate to anything that happened before tomorrow so the question is moot. Second, did the Online Citizen commit contempt? That question has to be answered by reference to the law in place in March which is going to be the same law in place tomorrow. Whether they are in contempt, I should not be giving legal advice from the table but what I can say, as a matter of policy, is that the law has not changed. If what they did was contempt, that is for the Attorney-General to consider. If you have put in a question on that, if public policy considerations allow an answer - because sometimes we should not be answering if the Attorney-General is considering the matter - but subject to that, I will be happy to answer. This law does not change the position nor will it apply to what has happened in the past
Mr Pritam Singh: Thank you, Mdm Speaker. I have three questions for the Minister. First, when was the draft Bill or some form of the draft Bill first circulated publicly? Secondly, does the Minister not agree that its public consultation process leaves a lot of room to be improved in view of the negative feedback the Bill has generated thus far? And, finally, what prevented the Ministry from publishing the feedback it collected over the last six years under the Bill and sharing it with the public as it has on its website in the case of other legislation?
Mr Pritam Singh: The second question was: does the Minister not agree that its public consultation process leaves a lot of room to be desired in view of the negative feedback the Bill has generated thus far?
Do I agree that there is much room for public consultation given the negative feedback that it has generated? I think I do not agree with all the different parts of that question. First of all, I think, and as a lawyer, you would know sometimes it is better to ask a single question, not three questions together. On the negative feedback, we have done surveys. A vast majority of the population supports the Bill. People have tried putting up a Petition. I think you know the number of people who signed it − 249, as far as I can tell.
We have to make a judgment call on what public interest is. And even if people think that something is not correct, then we have the duty to go out and persuade and explain. This Bill has, first of all, as I have been pointing out at various times, no substantive impact on the law. We are essentially crystallising the existing law except for the one change in the substantive law on contempt and some of the changes in process. I do not believe if you tell the truth and you explain it as it is, I do not think there will be negative reaction. But if you go and tell people "you know your rights are going to be curbed, you know that democracy is under attack, do you know that the law substantially curbs your freedom". If you say all those things and they do not read the Bill, of course, then they will get concerned. So, I agree in so far as there is any suggestion in your question that we have to go out and persuade people on what the Bill really involves, which we will try.
Why not circulate the feedback collected over six years? I think you misunderstood my answer. I was not suggesting that we have been collecting feedback over six years. We have been talking to people but it was really in the back burner in terms of leaving it to the AGC to draft and I explained why it was not something that we pushed. Other legislation − changes in Criminal Procedure Code, changes in the Penal Code – they were all important because they make a change to the law. This one is essentially a codification of the law, subject to those changes. And, therefore, it was not essential or necessary for us to rush with it. We took our time, and when we drafted it, we took the views of the people that I had listed. I do not suggest that is comprehensive and some of the feedback is − people when they give us the feedback, they expect us to keep it to ourselves. They expect us not to circulate. Some of the feedback, I think we could consider putting it up but, essentially, we took the approach, we took the view that the Bill − if you look at three of the four heads – it’s the same. If you look at most of the other things, it is the same. And people would welcome it.
Mr Dennis Tan Lip Fong: Thank you, Madam. Madam, I have a clarification for the Minister. This is with regards to the provision for the Attorney-General's right to apply for non-publication order. I think given that we are going to codify this into a criminal statute, personally, I am of the view that it is inappropriate to compare this with a civil injunction. My question remains as per my speech just now which is why does the Government wish to bar the defendant from attending the hearing of the Attorney-General's application. What harm would it do to the Attorney-General's case if it was a justifiable case to start with?
Mr K Shanmugam: It is more the question of speed, Mr Tan, because, nowadays, when something is put up, it can travel at lightning speed all over. The Attorney-General may have to move very quickly to go to court. A recalcitrant defendant, first of all, can play games in terms of avoiding service, avoiding coming to court and try and delay the matter for weeks sometimes.
So, you need to be practical about it and balance both sides' interests. What is the best way of balancing the interests? On the one side, irreparable damage being caused by the publication being on and being circulated. On the other side, the defendant's right to be heard.
You balance that by first giving the Attorney-General a quick right to go to court and get an order if he can satisfy the Court, prima facie. Then, you balance it by giving the defendant the right after he receives the order and takes it down, or he can choose, if he says, "I am going to challenge it, I am not in contempt", then he comes to court and he challenges. If he succeeds, he puts it back up. So, what is the loss? You have got to look at it like that. Whereas, if you do not 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.
Mr Kok Heng Leun: I will just need to do a double confirming. If there is a dispute as to whether the Government believes on an issue is necessary in the public interest, then the judge can take a view and the judge can also refer to the common law especially Judge Choor Singh's case.
Mr K Shanmugam: Mr Kok, I will answer your question in this way. Look at clause 3(4), a statement made by a person on behalf of the Government and so on. If the Government believes that such a statement is necessary in the public interest, so you got to show that the Government believes that it is necessary in the public interest. You have got to show what the public interest is, and that it is necessary, and that the Government believed it. Belief, necessary, public interest.
Now, if it is apparent – and I am just using that passage in Justice Choor Singh's case as an aid – if it is apparent that the statements were really calculated to prejudice the on-going proceedings but the Government is coming to Court and saying that, "I am actually saying it because it is in the public interest and I believe it to be so", then, the Court can make a finding that the Government did not really believe. There is case law on how the Courts arrive at such findings and one has got to go back to those things. Ultimately, the Government's exercise of this power and most powers derive from statute. The courts are the ultimate arbiters of a statutory interpretation, and whether the Government's exercise of the powers come within that provision. The Courts will have to look carefully at the clause and see whether the Government comes within, or outside. Thank you.
Mr Leon Perera: Thank you, Mdm Speaker. Just two points for clarifications to the Minister. One is actually a clarification about the clarification the Minister gave to Ms Sylvia Lim regarding section 3(4). So, if I understand the Minister correctly, what the Minister said is that the Courts will ultimately decide, which means to say that the courts will decide whether something the Government has done because it thinks it is in the national interest is really in the national interest. The Courts are the final arbiter.
So, my question is this. If that is the case, if the Minister is of the view that the court should ultimately decide why was the language chosen, why was it worded such that it says that what the Government thinks is in the national interest rather than what objectively is in the national interest. I believe this also goes to the amendment made by the Nominated Members.
Mr Leon Perera: My second point of clarification is with regard to the penalties. Would the Minister not acknowledge that one difference between the law yesterday and what the law will be tomorrow is that tomorrow, on the statute books, there will be a maximum penalty of $100,000 and three years, a penalty that is very far away from past sentencing precedents for contempt of court cases.
Does the Minister acknowledge that that could well have a chilling effect on Singaporeans of limited means exercising the right to free speech, getting involved in debates and discussions on matters of public interest, if there is even a slightest remotest risk of prosecution under this law?
Mr K Shanmugam: The law yesterday was unlimited. The law tomorrow will limit the penalties. That is a difference. From unlimited, it is now limited. And it was a point made by former Chief Justice Chan Sek Keong. It is a point made in various jurisdictions that the law should limit and set out the maximum penalties as opposed to leaving it unlimited.
Second, it is not correct to say, and I have made the point a number of times, that the penalties provided are at variance with the penalties that the courts have imposed. You are looking at one type of case, but there are many other types of contempt. If I were to ask any reasonable person here, going back to my example just now, $100 million and there is an injunction and the defendant takes out $50 million in breach of the injunction and he is brought to Court, what do you think the penalty ought to be? Five thousand dollars?
Supposing a penalty is imposed, he goes away and then he takes away another $25 million. What do you think the penalty ought to be? So, do you think eight months was excessive for the recalcitrant in the Family Courts? That was the law yesterday. How is this penalty, the maximum penalty that is prescribed here, at substantial variance with that eight months? So, it is not accurate to say it is at variance. The difference is that previously, it was unlimited. Today, if the Bill is passed, once it comes into force, it will be limited. That is a change to be welcomed.
As for this chilling effect, well, it will have a chilling effect on those who would constitutionally want to stand up every day and say that the Judge is biased. But it would have had that same chilling effect yesterday as well. As for the rest who want to discuss matters of public interest in good faith, I do not see why there should be any chilling effect. Now, in fact, the law is set out in writing, whereas yesterday, it was not.
Mr Low Thia Khiang: Thank you, Madam. Minister earlier said that the Bill has the support of the majority of the population. I would like to ask him on what basis he makes a judgement that the majority of our population supports this Bill.
Mr K Shanmugam: I am glad that you asked that. We did a scientifically valid statistical survey and a very substantial majority – the thing is I do not have the survey with me right now – supported it. And I do not want to quote the figures because I cannot remember the figures but it was a survey conducted by us and the results of the survey were that we had substantial support.
Ms Sylvia Lim: Yes. The only thing I want to ask the Minister is he said that there was a survey done and the majority of the people support it. Can he confirm whether the draft Bill was actually shown to these people and were they just asked some general questions about protecting the integrity of our Courts?
Mr K Shanmugam: My understanding – and I do not want to misstate it - my understanding is that the questions related to putting in statutory form the law of contempt and if you look at it, we are now setting it out in writing. So, that was the context. I think there was majority support.
Mdm Speaker: Before I proceed to declare the votes, are there anyone whose name has not been shown on the screen or whose vote is wrongly reflected? I will now proceed to declare the voting results. The question is, "That the Bill be read a Second time." There are 72 "Ayes", 9 "Noes", and no "Abstentions".