I didn’t think that there was much hope for Vui Kong in the recent application before the High Court. Even if the Court had decided that the President may exercise his discretion, it would not have won Vui Kong a reprieve. But, the decision appears to have aroused a primal cry from netizens and armed critics with another weapon with which to mock the highly paid and allegedly powerless ‘Elected President’.
Many decry the legal confirmation of the President as a figurehead. Some have taken the Court ruling to mean that the President has no legal authority at all under the Constitution and that he is nothing more than a puppet. At the other end of the spectrum, there are lawyers and legally trained persons who are puzzled as to why M Ravi attempted this outrageous application when a ‘plain’ reading of Article 21 and Article 22P of the Constitution is supposed to reveal that the President does not have discretion in the matter of the Pardon.
I think that it is important to understand the Constitutional position.
1) Is the President a powerless figurehead under the Constitution?
No. By virtue of Art 21(2), the President has a number of discretionary powers.
Art 21(2) is as follows:
(2) The President may act in his discretion in the performance of the following functions:
(a) the appointment of the Prime Minister in accordance with Article 25;
(b) the withholding of consent to a request for a dissolution of Parliament;
(c) the withholding of assent to any Bill under Article *5A, 22E, 22H, 144 (2) or 148A;
(d) the withholding of concurrence under Article 144 to any guarantee or loan to be given or raised by the Government;
(e) the withholding of concurrence and approval to the appointments and budgets of the statutory boards and Government companies to which Articles 22A and 22C, respectively, apply;
(f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G;
(g) the withholding of concurrence under Article 151 (4) in relation to the detention or further detention of any person under any law or ordinance made or promulgated in pursuance of Part XII;
(h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony Act (Cap. 167A); and
(i) any other function the performance of which the President is authorised by this Constitution to act in his discretion.
Some netizens have gone overboard in making remarks that the High Court’s decision confirms what everyone privately feared… that the President is just an expensive rubber stamp. I find this to be an extreme response to the Court’s decision. The judge was examining one of the President’s powers and made a ruling that this power was constrained and the President had to act in accordance with the Cabinet’s advice.
Activists have to act with care not to make the assertion that the President is a rubber stamp (period). On the question of the pardon, the President is required to rubber stamp the Cabinet’s decision and not in relation to all functions.
2) Did the Court get it obviously wrong in deciding that the President had no discretion in the granting of the pardon?
No. There is a strong and irresistible conclusion that one can arrive at in reading the Constitution plainly that the President has no discretion in the use of the Art 22P power.
Arguments have been brandished (without reading the Constitution properly, I believe) that Art 22P states that the President ‘may on the advise of the Cabinet’ grant a pardon. Art 22P read in isolation leads one to conclude that the President has full discretion in the grant of the pardon.
Art 22P is as follows:
22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet —
(a) grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;
(b) grant to any offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence pronounced on such offender; or
(c) remit the whole or any part of such sentence or of any penalty or forfeiture imposed by law.
(2) Where any offender has been condemned to death by the sentence of any court and in the event of an appeal such sentence has been confirmed by the appellate court, the President shall cause the reports which are made to him by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General with instructions that, after the Attorney-General has given his opinion thereon, the reports shall be sent, together with the Attorney-General’s opinion, to the Cabinet so that the Cabinet may advise the President on the exercise of the power conferred on him by clause (1).
I understand perfectly well that the plain reading of this provision indicates that when the clemency issue arises, the President will call for reports from the judges to be sent to the AG who will send these reports together with his opinion to the Cabinet for the Cabinet to advise the President. The provision appears to leave the exercise of discretion by the President hanging ambiguously in the background.
Many lawyers and even law students will point out quickly that interpretive problem can be easily unravelled by reading Art 21.
21. —(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.
So, Art 22P confers on the President the function of granting the Presidential Pardon. Art 21 states that in the exercise of this and other functions, the President ‘shall’ act in accordance with the advice of the Cabinet. The use of the word ‘shall’ is mandatory and affords no discretion in the matter.
Art 21(2) lists out the different powers that are given to the President and that can be exercised with full discretion contrary to what is stated in Art 21(1). The list of these powers has been reproduced above. Art 22P is not listed nor is the granting of pardon referred to expressly. Therefore, quite justifiably there is a camp of lawyers who would assert boldly that the President has no discretion in clemency matters.
3) Did M Ravi miss the obvious and get his arguments wildly off the mark?
No. He raises an equally viable argument vis a vis Art 22P.
I have seen some comments posted by some individuals questioning M Ravi’s failure to see the obvious: i.e. the Constitution is clear and unambiguous in Art 21(1) and 21(2). But, I think they have failed to see the thrust of Ravi’s submissions to the Court. The interpretation that he proposed of Art 22P is a plausible reading of Art 21(1), Art 21(2)(i) and Art 22P.
Art 21(1) suggests that the President shall act in accordance with the Cabinet’s advice.
Art 21(2) provides for exceptions where the President can exercise his discretion.
One of the exceptions is as follows:
Art 21(2)(i) - any other function the performance of which the President is authorised by this Constitution to act in his discretion.
‘authorised… to act in his discretion’
Whilst Ravi’s argument is not the most obvious way to read the Constitution, it presents a perfectly valid legal argument that stands in competition with the simplistic reading of the Constitution as requiring the President to exercise no discretion in the granting of the pardon. Ravi claims that the function of granting pardons falls within the kind of functions referred to at Art 21(2)(i) (any other function the performance of which the President is authorised by this Constitution to act in his discretion).
The Constitution spells out the President’s powers in a number of ways. I have selected 3 provisions to illustrate the different approaches:
Article 25. —(1) The President shall appoint as Prime Minister a Member of Parliament who in his judgment is likely to command the confidence of the majority of the Members of Parliament, and shall, acting in accordance with the advice of the Prime Minister, appoint other Ministers from among the Members of Parliament
Article 22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet — (a) grant a pardon………..
Article 22A. —(1) Notwithstanding any other provision of this Constitution — (a) where the President is authorised by any written law to appoint the chairman, member or chief executive officer of any statutory board to which this Article applies, the President, acting in his discretion, may refuse to make any such appointment or to revoke such appointment if he does not concur with the advice or recommendation of the authority on whose advice or recommendation he is required to act…
The salient parts of the 3 provisions can be set out in the following way:
(1). The President shall, acting in accordance with the advice of the PM, ……
(2). The President may on the advice of the Cabinet…
(3). The President, acting in his discretion, may…
There are two ways of dealing with these three phrases. The first argument would be that the word ‘shall’ is a prescription to the President to do something and that it affords no discretion to him. The word ‘may’ presents an option to the President so that he now has discretion and the advise of the Cabinet that he considers goes towards the exercise of his discretion. Therefore, (1) is a provision that gives no discretion and (2) and (3) confer a discretion on the President. Interpreted in this manner Art 22P (the granting of the pardon) is arguably within the ambit of Art 21(2)(i) and therefore, Vui Kong’s counsel has a valid point in stating that the President has discretion.
The second way of dealing with the 3 phrases is to assert that only those provisions that state specifically that the President is ‘acting in his discretion’ would qualify under the proviso in Art 21(2)(i). Eventually, it appears that the Court has interpreted the Constitution in this manner. There are a number of provision that state ‘the President, acting in his discretion, may”. These provisions were contrasted from Art 22P which states that the ‘President may on the advice of the Cabinet’ grant the pardon. The Court, therefore, concluded that Art 22P does not provide for the President to act in his discretion.
The short of the long story?
The power under Article 22P was open to interpretation. The High Court has interpreted it. Let us see how the Court of Appeal views the provision and whether it is declared that the President does or does not have discretion in the grant of the pardon.
Friday, August 20, 2010
Thursday, August 05, 2010
What did Shadrake really say?
What did Shadrake really say?
I haven’t read the book. So, I think it would be really premature to judge on the contempt of court charges.
I have previously written about my views on criminal defamation. Looks like things are moving slowly on that front. But, it is really contempt of court where the action is at. As the law stands right now and as it has been interpreted by the Courts so far, contempt law would be based on English Common Law as it existed at the time that our Constitution was adopted.
If Shadrake avoided any allegation against the judiciary or if he refrained from imputing any wrongdoing or partiality on the part of the judiciary, the contempt charge may be difficult to make out. But, this is not entirely clear to me right now. It is entirely possible that the author might have taken a wild swing at the judiciary. That would be quite consistent with sensationalistic writing that some ‘investigative journalists’ are prone to and quite legitimately some of us would suspect that even Shadrake might have been guilty of. (Again, without reading the book I am really speculating here.)
For Shadrake to be on safe ground, the book must have referred to the cases in a factual reporting style and any allegation of unequal treatment under the law must have avoided allegations against the judiciary. Such a method of writing could have been accomplished without difficulty in relation the drug cases that Shadrake has reportedly addressed in his book. Based on Alex Au’s review of the book in his Yawning Bread blog, the following cases have been examined:
Vignes Mourthi case: The issue here appears to be evidence that was unavailable at the trial. Apparently, a key prosecution witness was involved in some impropriety and evidence of credibility of this witness was not available at the trial of Vigness Mourthi. I wouldn’t lay any blame on the judiciary. From my reading of the review by Alex Au, it doesn’t appear that Shadrake was blaming the judiciary.
Amara Tochi case: This case is more of an indictment of the reversal of the burden of proof in the Misuse of Drugs Act rather than an indictment of the judiciary. This is what opponents of the mandatory death penalty have been saying all along. The judge’s hands are tied. Once the presumption in the statute kicks in, it is virtually impossible for the Defendant to prove his position. Again, on the face of it, this case cannot possibly be an indictment of the judiciary.
Julia Bohl case: This is a trafficker against whom CNB appears to have had a good deal of evidence. However, in what is allegedly a deal between the German government and the Singapore government, the charge against Julia Bohl described a quantity of cannabis that was below the statutory presumption. Now, this is definitely a scandalous allegation. But, in any event, this is also not an allegation leveled against the judiciary. What has allegedly transpired could not be a stain on the judiciary.
I am not going into, and I should not go into (given the fact that I have not read the book), each of the other examples raised by Alex Au in his review of the book. A quick glance of each of the instances mentioned reveals that there may not have been any imputation against the judiciary to begin with in the book. This is something that I can ascertain for myself only if I read the book.
If the content of the book had the ‘inherent tendency’ to create prejudice, the contempt offence could be made out. The inherent tendency test is satisfied if a statement "conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function." Whether any allegations were true is not an issue that can be raised as a defence. If Shadrake had merely dealt with individual cases by highlighting that different offenders were charged differently and this resulted in the inconsistent application of the death penalty, I don’t see how the contempt charge could be made out. It is, at most, an indictment of the law enforcement end of the system and in no way impugns the judiciary or its integrity.
Of course, the sneaking suspicion that I have is that somewhere along the way Shadrake might have made a sweeping statement that might have tied the judiciary to the inconsistency in the application of the death penalty. If he had done that, the contempt charge would be made out easily. This, I would not know until I have read the book.
I am left wondering…. What, exactly, did Shadrake say?
I haven’t read the book. So, I think it would be really premature to judge on the contempt of court charges.
I have previously written about my views on criminal defamation. Looks like things are moving slowly on that front. But, it is really contempt of court where the action is at. As the law stands right now and as it has been interpreted by the Courts so far, contempt law would be based on English Common Law as it existed at the time that our Constitution was adopted.
If Shadrake avoided any allegation against the judiciary or if he refrained from imputing any wrongdoing or partiality on the part of the judiciary, the contempt charge may be difficult to make out. But, this is not entirely clear to me right now. It is entirely possible that the author might have taken a wild swing at the judiciary. That would be quite consistent with sensationalistic writing that some ‘investigative journalists’ are prone to and quite legitimately some of us would suspect that even Shadrake might have been guilty of. (Again, without reading the book I am really speculating here.)
For Shadrake to be on safe ground, the book must have referred to the cases in a factual reporting style and any allegation of unequal treatment under the law must have avoided allegations against the judiciary. Such a method of writing could have been accomplished without difficulty in relation the drug cases that Shadrake has reportedly addressed in his book. Based on Alex Au’s review of the book in his Yawning Bread blog, the following cases have been examined:
Vignes Mourthi case: The issue here appears to be evidence that was unavailable at the trial. Apparently, a key prosecution witness was involved in some impropriety and evidence of credibility of this witness was not available at the trial of Vigness Mourthi. I wouldn’t lay any blame on the judiciary. From my reading of the review by Alex Au, it doesn’t appear that Shadrake was blaming the judiciary.
Amara Tochi case: This case is more of an indictment of the reversal of the burden of proof in the Misuse of Drugs Act rather than an indictment of the judiciary. This is what opponents of the mandatory death penalty have been saying all along. The judge’s hands are tied. Once the presumption in the statute kicks in, it is virtually impossible for the Defendant to prove his position. Again, on the face of it, this case cannot possibly be an indictment of the judiciary.
Julia Bohl case: This is a trafficker against whom CNB appears to have had a good deal of evidence. However, in what is allegedly a deal between the German government and the Singapore government, the charge against Julia Bohl described a quantity of cannabis that was below the statutory presumption. Now, this is definitely a scandalous allegation. But, in any event, this is also not an allegation leveled against the judiciary. What has allegedly transpired could not be a stain on the judiciary.
I am not going into, and I should not go into (given the fact that I have not read the book), each of the other examples raised by Alex Au in his review of the book. A quick glance of each of the instances mentioned reveals that there may not have been any imputation against the judiciary to begin with in the book. This is something that I can ascertain for myself only if I read the book.
If the content of the book had the ‘inherent tendency’ to create prejudice, the contempt offence could be made out. The inherent tendency test is satisfied if a statement "conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function." Whether any allegations were true is not an issue that can be raised as a defence. If Shadrake had merely dealt with individual cases by highlighting that different offenders were charged differently and this resulted in the inconsistent application of the death penalty, I don’t see how the contempt charge could be made out. It is, at most, an indictment of the law enforcement end of the system and in no way impugns the judiciary or its integrity.
Of course, the sneaking suspicion that I have is that somewhere along the way Shadrake might have made a sweeping statement that might have tied the judiciary to the inconsistency in the application of the death penalty. If he had done that, the contempt charge would be made out easily. This, I would not know until I have read the book.
I am left wondering…. What, exactly, did Shadrake say?
Wednesday, July 28, 2010
S.35 of the Films Act is Unconstitutional
I am sure that constitutional scholars would agree with me when I assert that a strong case can be made for the view that Section 35 of the Films Act is unconstitutional.
This is the provision under which the video recording of Dr Lim Hock Siew’s speech was prohibited recently.
The relevant part of Article 14 of our Constitution that deals, inter alia, with Freedom of Speech is as follows:
“14. —(1) Subject to clauses (2) and (3) —
(a) every citizen of Singapore has the right to freedom of speech and expression;
……………
(2) Parliament may by law impose —
(a) on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;
………………. “
Section 35 of the Films Act reads as follows:
35. —(1) Notwithstanding the provisions of this Act if the Minister is of the opinion that the possession or distribution of any film would be contrary to the public interest, he may, in his discretion, by order published in the Gazette prohibit the possession or distribution of that film by any person.
S.35 is a blanket provision giving the Minister discretion to prohibit any film that he considers to be contrary to public interest. One ought to ask the rather important question whether s.35 is unconstitutional in the first place. The Constitution protects freedom of speech. The permissible reasons for limiting free speech is spelled out in Art 14(2)(a):
- security of Singapore
- friendly relations with other countries
- public order
- morality
- parliamentary privilege
- contempt of court
- defamation
- incitement to any offence
‘Public Interest’ is not on the list of reasons that the Constitution prescribes. The Films Act is, prima facie, in contravention of Art 14 of the Constitution by placing limits on Freedom of Speech and Expression in a manner that was not permitted. Of course, if the validity of s.35 were called into question in a court of law, an argument could be made out that ‘public interest’ in that provision was intended by Parliament to be a reference to the ‘security of Singapore’ or ‘public order’ or ‘morality’ or for that matter (whilst we are at it) an argument could be advanced that ‘public interest’ should be construed (though it would be an extremely strained construction) as any matter that would be in consonance with the grounds for restriction spelled out in the Constitution.
There is one possibility that a Court of law might consider s.35 to be a blatant infringement of the Constitutional right of Freedom of Speech and Expression. Equally, there is the other possibility that ‘public interest’ can be read to be consistent with the Constitution if one construes that Parliament intended public interest to include the grounds set out in Art 14(2)(a) of the Constitution.
I am in favour of the first option. Any restriction enacted by Parliament in relation to the Freedoms expressly provided for in the Constitution must be screened with suspicion by the Courts. The clear role of the Courts in the interpretation of laws is to err on the side of the Constitution. However, I understand that it is equally possible to adopt the argument that the s.35 of the Films Act is valid if one construes ‘public interest’ narrowly as being in consonance with the grounds in Art 14(2)(a) of the Films Act and not too broadly defined.
Working on the 2nd assumption that the Films Act can be construed to be valid (if ‘public interest’ is restrictively interpreted), then the power conferred on the Minister by s.35 cannot be utilised too broadly with unfettered discretion. S.35 permits the Minister to prohibit a film if it is in the public interest to do so. ‘Public interest’, construed restrictively, in order not to fall foul of the Constitution must relate to the matters set out at Art 14(2)(a).
- security of Singapore – Dr Lim was not exhorting any riot, uprising or terrorist action
- friendly relations with other countries – I don’t see anything in the speech that traverses this ground
- public order – hmm… again, no dramatic call to arms or instigation to riot or stuff like that. In fact, some might even say that the speech was monotonous and likely to be sleep inducing.
- Morality – Was Dr Lim doing a striptease? I must have missed that part.
- Parliamentary privilege – nothing that he said could be impinging on the privileges of parliament
- Contempt of Court – a remote case can be constructed around this limb. Dr Lim makes a reference to appearing before an Advisory Board headed by Judge Winslow. He comments as follows: “You see, the whole thing is a judicial farce. I mean, it's incredible that anyone has to face this kind of mockery, this kind of so-called justice, and the fact that a High court judge is being put as the chairman of this Advisory Board gives the public an illusion that there is judgement, there is justice. And I told him that if I were a High court judge, I would not lend credence to this mockery by my presence.” One could argue that this is a Contempt of Court. It appears that at that Advisory Board hearing Dr Lim was threatened with Contempt. Then, according to Dr Lim, Judge Winslow said: "No, no, let the doctor have his say, there's no question of contempt of court." In any event, it cannot be the case that every tribunal formed and constituted under the law could claim the ‘contempt’ jurisdiction. It may be that the High Court might claim contempt. Surely, the Advisory Board constituted under the ISA could not similarly claim a contempt jurisdiction.
- Defamation – There are some allegations relating to Lee Kuan Yew that could be construed as being defamatory. This is going to be a tricky one. Firstly, we have to construe ‘public interest’ as being inclusive of defamation. Whilst public interest could be moulded to be ‘national security’, ‘public order’, etc., it would be quite a stretch to say that ‘public interest’ in the Films Act was a reference to restrictions providing for ‘defamation’. Laws relating to defamation, invariably, protect private reputations. I would not lean towards the argument that there is a public interest in this though I can imagine that some would argue as such. Secondly, even if defamation can be a limb covered by ‘public interest’ in the Films Act, did the Minister in the exercise of his discretion consider ‘defamation’ as the basis of his decision? No.
- Incitement to commit an offence – I don’t see any instance of this in the speech.
One fact, observed by several bloggers, is that Dr Lim’s speech has not been banned. Dr Lim is not accused of any offence nor has he been sued. Instead, the video recording of the speech has been banned. This might be an unspoken acknowledgement of the legality of the speech. The Films (Prohibited Film) Order 2010 states:
. The Minister, being of the opinion that the possession or distribution of the following film would be contrary to the public interest, hereby prohibits the possession and distribution of that film by any person:
Title: “Dr Lim Hock Siew”
Director: See Tong Ming
Year of production: 2009
Rest assured that if any one of the 8 grounds stipulated in the Constitution were fulfilled, Dr Lim himself would be facing some legal consequences and his speech would similarly have been restricted, banned or subject to an injunction. The Prohibition Order itself does not set out the reason that constitutes ‘public interest’. The reason is set out in the Press Release from MICA dated 12 July 2010:
“The film gives a distorted and misleading portrayal of Dr Lim’s arrests and detention under the Internal Security Act (ISA) in 1963. The Singapore Government will not allow individuals who have posed a security threat to Singapore’s interests in the past, to use media platforms such as films to make baseless accusations against the authorities, give a false portrayal of their previous activities in order to exculpate their guilt, and undermine public confidence in the Government in the process.”
‘making baseless accusations’, ‘giving a false portrayal of activities’ & ‘undermine public confidence in the Government’ in the process. That’s the key. Not any one of the Constitutional reasons for limiting the exercise of Free Speech. But, these reasons provided in the media release from MICA.
That, in my humble opinion, is unconstitutional.
The Minister cannot claim unrestricted and total discretionary power. The statute grants him the discretion under s.35. The discretion must be exercised within clear constitutional parameters.
I believe that either s.35 of the Films Act is itself unconstitutional or if a court were to construe that provision to be consistent with the Constitution, then the act of prohibiting the video recording on the basis of the grounds revealed would be a contravention fo the Constitution. One cannot assert that just because the statute provides for ‘public interest’ as a ground, any assertion of a broadly defined public interest would suffice as a basis for the Prohibition Order.
As an aside, I felt that readers might benefit from reading the following extracts from Parliamentary reports of the 2nd reading of the Films (Amendment) Bill last year. Note that the amendment being debated was about the relaxation of the prohibition on party political films (s.33). But, MPs also addressed the catch-all nature of s.35.
A few interesting points: Siew Kum Hong and Thio Li An raised the constitutional point early in both their speeches. The constitutional issue was brushed aside by the Minister and the PAP MP without too much of a bother.
s.35 was pointed out as being too broad and as being an avenue to circumvent s.33. But, the Minister dismisses that with a rather puzzling stance.
Senior Minister of State for Information, Communications and the Arts (RAdm [NS] Lui Tuck Yew: during the 2nd reading of FILMS (AMENDMENT) BILL on 23 March 2009
“We should not prevent people from recording video clips of political events held in accordance with the law or from making factual documentary videos of political issues and events. But we must continue to have limits against undesirable political materials, for example, fictionalised accounts or political commercials, even though it may not be possible to enforce these limits completely. “
“With the amendments, the following will no longer be considered as party political films:
(i) Live recordings of events held in accordance with the law;
(ii) Anniversary and commemorative videos of political parties;
(iii) Factual documentaries, biographies or autobiographies;
(iv) Manifestoes of political parties produced by or on behalf of a political party; and
(v) Candidate's declaration of policies or ideology produced by or on behalf of the candidate.”
Thio Li An questioned the minister on section 35:
“Sir, I note that Section 35 which empowers the Minister to prohibit the possession or distribution of any film considered contrary to the public interest still applies. This is a catch-all clause, wide enough to catch party political films which the Board of Film Censors considers has passed the test of being non-partisan and unbiased. It is a very broad power. Will further guidelines be provided to limit the Minister's discretion in this respect, to prevent section 35 from being a backdoor way to ban films which are found to escape the jaws of section 33?”
Siew Kum Hong questioned minister on section 35:
The final point I would make on this Bill, is that it does not amend section 35, as recommended by AIMS. Section 35 allows the Minister to ban any film that he considers to be “against the public interest”, without giving any reason. AIMS had recommended that the permissible reasons for banning films under section 35 be spelt out clearly, that an independent advisory panel be formed to advise the Minister before a film is banned under Section 35, and that the Minister be obliged to give reasons for the ban. All three proposals have been rejected.
Ms Irene Ng Phek Hoong on the constitutional point raised by Thio Li An and Siew Kum Hong about the freedom of speech:
“I hear Prof. Thio Li-ann and Mr Siew Kum Hong talk in terms of freedom of speech. I think that is a worthy topic but I would urge the Members to perhaps move a separate motion on freedom of speech and deal with it holistically to do with publications, films and all other media, and not use that argument for the Films Act which is one aspect of freedom of speech.
And I think it is, in a way, confusing the debate to bring in what you call "a constitutional right" to freedom of speech. All of us value the freedom of speech. The question is: What serves society? And it is up to this society to decide what limits we place, what we think is valuable. I think it merits a deeper and wider debate.”
Minister RAdm Lui Tuck Yew’s response to the constitutional point:
Prof. Thio Li-ann had also queried about the Bill vis-a-vis article 14(2) of the Constitution and I know that Ms Irene Ng had suggested to her and others to table a proper motion to debate this. I am not a constitutional expert but my take on this is that I am fairly sure that this must have been deliberated quite extensively by our predecessors when the Bill was first moved in 1998. But, again, back to the fundamentals and principles which are to keep our political debates rational, non-emotive and serious to preserve the integrity of the election process, I think disallowing certain types of films does not affect the overall freedom of political debate in Singapore. My take is that there are sufficient avenues for political parties and individuals to get their views and manifestos across to the public. They can rely on the mainstream media. They can publish magazines, print newspapers if they are licensed to do so, host web pages online as well as debate about such issues in Parliament.
Minister RAdm Lui Tuck Yew’s response to the issue of using s.35 to circumvent s.33:
Again, same members have raised their issues and comments on section 35. Let me clarify a misconception that this is a so-called backdoor way to catch the rest of the films that would otherwise have passed, because section 35 is not against PPFs; it is not to be used against party political films. PPFs, unless they fall under the exceptions, will already be banned from the onset, and there is no need to apply section 35 to such films. Section 35 is meant and reserved for serious situations where due to the circumstances of the day, the possession or distribution of the film would actually be contrary to public interest - presenting a threat to national security, danger to racial or religious harmony, and perhaps affecting even the very fabric of our multi-racial, multi-cultural society. Members have noted that so far, we have only used section 35 once and that was on "Zahari's 17 Years", and the Minister had come up with a press statement to fully explain why he issued the ban. We did not want to impose on the Minister the need to make such a press statement or to have to explain every time he exercises the jurisdiction to impose such a ban. But, where possible, he will indeed do so. But for those who have forgotten what "Zahari's 17 Years " was all about, the film was a revisionist attempt to have a distorted and misleading portrayal of Zahari's arrest and detention. It was an attempt to exculpate himself from his involvement in communist activities against the interest of Singapore. He had posed a security threat for which he was detained under the ISA, and he now wanted to exploit the use of film to project false and distorted picture of his past actions, and that is why the ban was made. It was not a political film.
Res Ipsa Loquitur - The thing speaks for itself!
This is the provision under which the video recording of Dr Lim Hock Siew’s speech was prohibited recently.
The relevant part of Article 14 of our Constitution that deals, inter alia, with Freedom of Speech is as follows:
“14. —(1) Subject to clauses (2) and (3) —
(a) every citizen of Singapore has the right to freedom of speech and expression;
……………
(2) Parliament may by law impose —
(a) on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;
………………. “
Section 35 of the Films Act reads as follows:
35. —(1) Notwithstanding the provisions of this Act if the Minister is of the opinion that the possession or distribution of any film would be contrary to the public interest, he may, in his discretion, by order published in the Gazette prohibit the possession or distribution of that film by any person.
S.35 is a blanket provision giving the Minister discretion to prohibit any film that he considers to be contrary to public interest. One ought to ask the rather important question whether s.35 is unconstitutional in the first place. The Constitution protects freedom of speech. The permissible reasons for limiting free speech is spelled out in Art 14(2)(a):
- security of Singapore
- friendly relations with other countries
- public order
- morality
- parliamentary privilege
- contempt of court
- defamation
- incitement to any offence
‘Public Interest’ is not on the list of reasons that the Constitution prescribes. The Films Act is, prima facie, in contravention of Art 14 of the Constitution by placing limits on Freedom of Speech and Expression in a manner that was not permitted. Of course, if the validity of s.35 were called into question in a court of law, an argument could be made out that ‘public interest’ in that provision was intended by Parliament to be a reference to the ‘security of Singapore’ or ‘public order’ or ‘morality’ or for that matter (whilst we are at it) an argument could be advanced that ‘public interest’ should be construed (though it would be an extremely strained construction) as any matter that would be in consonance with the grounds for restriction spelled out in the Constitution.
There is one possibility that a Court of law might consider s.35 to be a blatant infringement of the Constitutional right of Freedom of Speech and Expression. Equally, there is the other possibility that ‘public interest’ can be read to be consistent with the Constitution if one construes that Parliament intended public interest to include the grounds set out in Art 14(2)(a) of the Constitution.
I am in favour of the first option. Any restriction enacted by Parliament in relation to the Freedoms expressly provided for in the Constitution must be screened with suspicion by the Courts. The clear role of the Courts in the interpretation of laws is to err on the side of the Constitution. However, I understand that it is equally possible to adopt the argument that the s.35 of the Films Act is valid if one construes ‘public interest’ narrowly as being in consonance with the grounds in Art 14(2)(a) of the Films Act and not too broadly defined.
Working on the 2nd assumption that the Films Act can be construed to be valid (if ‘public interest’ is restrictively interpreted), then the power conferred on the Minister by s.35 cannot be utilised too broadly with unfettered discretion. S.35 permits the Minister to prohibit a film if it is in the public interest to do so. ‘Public interest’, construed restrictively, in order not to fall foul of the Constitution must relate to the matters set out at Art 14(2)(a).
- security of Singapore – Dr Lim was not exhorting any riot, uprising or terrorist action
- friendly relations with other countries – I don’t see anything in the speech that traverses this ground
- public order – hmm… again, no dramatic call to arms or instigation to riot or stuff like that. In fact, some might even say that the speech was monotonous and likely to be sleep inducing.
- Morality – Was Dr Lim doing a striptease? I must have missed that part.
- Parliamentary privilege – nothing that he said could be impinging on the privileges of parliament
- Contempt of Court – a remote case can be constructed around this limb. Dr Lim makes a reference to appearing before an Advisory Board headed by Judge Winslow. He comments as follows: “You see, the whole thing is a judicial farce. I mean, it's incredible that anyone has to face this kind of mockery, this kind of so-called justice, and the fact that a High court judge is being put as the chairman of this Advisory Board gives the public an illusion that there is judgement, there is justice. And I told him that if I were a High court judge, I would not lend credence to this mockery by my presence.” One could argue that this is a Contempt of Court. It appears that at that Advisory Board hearing Dr Lim was threatened with Contempt. Then, according to Dr Lim, Judge Winslow said: "No, no, let the doctor have his say, there's no question of contempt of court." In any event, it cannot be the case that every tribunal formed and constituted under the law could claim the ‘contempt’ jurisdiction. It may be that the High Court might claim contempt. Surely, the Advisory Board constituted under the ISA could not similarly claim a contempt jurisdiction.
- Defamation – There are some allegations relating to Lee Kuan Yew that could be construed as being defamatory. This is going to be a tricky one. Firstly, we have to construe ‘public interest’ as being inclusive of defamation. Whilst public interest could be moulded to be ‘national security’, ‘public order’, etc., it would be quite a stretch to say that ‘public interest’ in the Films Act was a reference to restrictions providing for ‘defamation’. Laws relating to defamation, invariably, protect private reputations. I would not lean towards the argument that there is a public interest in this though I can imagine that some would argue as such. Secondly, even if defamation can be a limb covered by ‘public interest’ in the Films Act, did the Minister in the exercise of his discretion consider ‘defamation’ as the basis of his decision? No.
- Incitement to commit an offence – I don’t see any instance of this in the speech.
One fact, observed by several bloggers, is that Dr Lim’s speech has not been banned. Dr Lim is not accused of any offence nor has he been sued. Instead, the video recording of the speech has been banned. This might be an unspoken acknowledgement of the legality of the speech. The Films (Prohibited Film) Order 2010 states:
. The Minister, being of the opinion that the possession or distribution of the following film would be contrary to the public interest, hereby prohibits the possession and distribution of that film by any person:
Title: “Dr Lim Hock Siew”
Director: See Tong Ming
Year of production: 2009
Rest assured that if any one of the 8 grounds stipulated in the Constitution were fulfilled, Dr Lim himself would be facing some legal consequences and his speech would similarly have been restricted, banned or subject to an injunction. The Prohibition Order itself does not set out the reason that constitutes ‘public interest’. The reason is set out in the Press Release from MICA dated 12 July 2010:
“The film gives a distorted and misleading portrayal of Dr Lim’s arrests and detention under the Internal Security Act (ISA) in 1963. The Singapore Government will not allow individuals who have posed a security threat to Singapore’s interests in the past, to use media platforms such as films to make baseless accusations against the authorities, give a false portrayal of their previous activities in order to exculpate their guilt, and undermine public confidence in the Government in the process.”
‘making baseless accusations’, ‘giving a false portrayal of activities’ & ‘undermine public confidence in the Government’ in the process. That’s the key. Not any one of the Constitutional reasons for limiting the exercise of Free Speech. But, these reasons provided in the media release from MICA.
That, in my humble opinion, is unconstitutional.
The Minister cannot claim unrestricted and total discretionary power. The statute grants him the discretion under s.35. The discretion must be exercised within clear constitutional parameters.
I believe that either s.35 of the Films Act is itself unconstitutional or if a court were to construe that provision to be consistent with the Constitution, then the act of prohibiting the video recording on the basis of the grounds revealed would be a contravention fo the Constitution. One cannot assert that just because the statute provides for ‘public interest’ as a ground, any assertion of a broadly defined public interest would suffice as a basis for the Prohibition Order.
As an aside, I felt that readers might benefit from reading the following extracts from Parliamentary reports of the 2nd reading of the Films (Amendment) Bill last year. Note that the amendment being debated was about the relaxation of the prohibition on party political films (s.33). But, MPs also addressed the catch-all nature of s.35.
A few interesting points: Siew Kum Hong and Thio Li An raised the constitutional point early in both their speeches. The constitutional issue was brushed aside by the Minister and the PAP MP without too much of a bother.
s.35 was pointed out as being too broad and as being an avenue to circumvent s.33. But, the Minister dismisses that with a rather puzzling stance.
Senior Minister of State for Information, Communications and the Arts (RAdm [NS] Lui Tuck Yew: during the 2nd reading of FILMS (AMENDMENT) BILL on 23 March 2009
“We should not prevent people from recording video clips of political events held in accordance with the law or from making factual documentary videos of political issues and events. But we must continue to have limits against undesirable political materials, for example, fictionalised accounts or political commercials, even though it may not be possible to enforce these limits completely. “
“With the amendments, the following will no longer be considered as party political films:
(i) Live recordings of events held in accordance with the law;
(ii) Anniversary and commemorative videos of political parties;
(iii) Factual documentaries, biographies or autobiographies;
(iv) Manifestoes of political parties produced by or on behalf of a political party; and
(v) Candidate's declaration of policies or ideology produced by or on behalf of the candidate.”
Thio Li An questioned the minister on section 35:
“Sir, I note that Section 35 which empowers the Minister to prohibit the possession or distribution of any film considered contrary to the public interest still applies. This is a catch-all clause, wide enough to catch party political films which the Board of Film Censors considers has passed the test of being non-partisan and unbiased. It is a very broad power. Will further guidelines be provided to limit the Minister's discretion in this respect, to prevent section 35 from being a backdoor way to ban films which are found to escape the jaws of section 33?”
Siew Kum Hong questioned minister on section 35:
The final point I would make on this Bill, is that it does not amend section 35, as recommended by AIMS. Section 35 allows the Minister to ban any film that he considers to be “against the public interest”, without giving any reason. AIMS had recommended that the permissible reasons for banning films under section 35 be spelt out clearly, that an independent advisory panel be formed to advise the Minister before a film is banned under Section 35, and that the Minister be obliged to give reasons for the ban. All three proposals have been rejected.
Ms Irene Ng Phek Hoong on the constitutional point raised by Thio Li An and Siew Kum Hong about the freedom of speech:
“I hear Prof. Thio Li-ann and Mr Siew Kum Hong talk in terms of freedom of speech. I think that is a worthy topic but I would urge the Members to perhaps move a separate motion on freedom of speech and deal with it holistically to do with publications, films and all other media, and not use that argument for the Films Act which is one aspect of freedom of speech.
And I think it is, in a way, confusing the debate to bring in what you call "a constitutional right" to freedom of speech. All of us value the freedom of speech. The question is: What serves society? And it is up to this society to decide what limits we place, what we think is valuable. I think it merits a deeper and wider debate.”
Minister RAdm Lui Tuck Yew’s response to the constitutional point:
Prof. Thio Li-ann had also queried about the Bill vis-a-vis article 14(2) of the Constitution and I know that Ms Irene Ng had suggested to her and others to table a proper motion to debate this. I am not a constitutional expert but my take on this is that I am fairly sure that this must have been deliberated quite extensively by our predecessors when the Bill was first moved in 1998. But, again, back to the fundamentals and principles which are to keep our political debates rational, non-emotive and serious to preserve the integrity of the election process, I think disallowing certain types of films does not affect the overall freedom of political debate in Singapore. My take is that there are sufficient avenues for political parties and individuals to get their views and manifestos across to the public. They can rely on the mainstream media. They can publish magazines, print newspapers if they are licensed to do so, host web pages online as well as debate about such issues in Parliament.
Minister RAdm Lui Tuck Yew’s response to the issue of using s.35 to circumvent s.33:
Again, same members have raised their issues and comments on section 35. Let me clarify a misconception that this is a so-called backdoor way to catch the rest of the films that would otherwise have passed, because section 35 is not against PPFs; it is not to be used against party political films. PPFs, unless they fall under the exceptions, will already be banned from the onset, and there is no need to apply section 35 to such films. Section 35 is meant and reserved for serious situations where due to the circumstances of the day, the possession or distribution of the film would actually be contrary to public interest - presenting a threat to national security, danger to racial or religious harmony, and perhaps affecting even the very fabric of our multi-racial, multi-cultural society. Members have noted that so far, we have only used section 35 once and that was on "Zahari's 17 Years", and the Minister had come up with a press statement to fully explain why he issued the ban. We did not want to impose on the Minister the need to make such a press statement or to have to explain every time he exercises the jurisdiction to impose such a ban. But, where possible, he will indeed do so. But for those who have forgotten what "Zahari's 17 Years " was all about, the film was a revisionist attempt to have a distorted and misleading portrayal of Zahari's arrest and detention. It was an attempt to exculpate himself from his involvement in communist activities against the interest of Singapore. He had posed a security threat for which he was detained under the ISA, and he now wanted to exploit the use of film to project false and distorted picture of his past actions, and that is why the ban was made. It was not a political film.
Res Ipsa Loquitur - The thing speaks for itself!
Wednesday, July 21, 2010
The Shadrake Affair
The Shadrake Affair
“If they do anything, it’ll just draw more attention to it all, and they have no defence,” – This is what Allan Shadrake had reportedly said on the day before he was arrested. Well, Shadrake has thrown down the gauntlet and our authorities have taken up the challenge. It would be interesting to see how this plays out.
From the information that has emerged thus far from official sources and from international news reports, the following is clear:
a) The basis of the arrest was criminal defamation which is an offence under s,488 of the Penal Code which reads as follows:
Section 499 of the Penal Code: Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
b) The AG’s chambers is proceeding with a Contempt of Court application against Shadrake because statements in the book are alleged to impugn the impartiality, integrity and independence of the judiciary
c) Shadrake has been released on bail and his passport has been impounded
d) The contempt of Court matter has been fixed to be heard on July 30
A Home Ministry spokesman has reportedly stated:
"His anti-death-penalty views are not the issue in these investigations; it is his violation of the laws of Singapore which are.” "Anyone, Singaporean or otherwise, who breaks the law regardless of the cause he touts, will be taken to task. Shadrake is no exception."
According to the Today newspaper:
In court documents obtained by MediaCorp yesterday, the AGC is alleging that several passages in Shadrake's book contain allegations and insinuations that the Singapore Judiciary "in determining whether to sentence an accused person to death, succumbs to political and economic pressures" and therefore "lacks independence".
Shadrake also insinuated that the Judiciary "has been facilitating the suppression of political dissent and criticism in Singapore through the award of heavy damages in defamation actions brought without legal basis by the People's Action Party", the AGC says.
According to the Telegraph, a British newspaper, Allan Shadrake has spoken after his release and he has said the following:
"I have to stay in Singapore, I can't leave till the trial," "I've been awake almost the entire time since they dragged me out of bed at 6 a.m. Sunday morning. I've had a few hours sleep on a very hard floor. I've been sitting at a desk being interrogated all day long explaining all the chapters of the book, going into the history of the book, my research, why I did the book."
With very little facts out and having no access to the book, I can’t make any useful assessment of the issues at hand.
However, I do believe that this ‘criminal defamation’ offence is worth some discussion. As with many of our Penal Code provisions, this particular offence was created by the British. The origins of the offence can be traced back to the 17th century. The Star Chamber dealt with any form of libel critical of the state as a breach of peace. The common law courts subsequently adopted the tests formulated by the Star Chamber for criminal defamation. Prosecution for criminal defamation disappeared in the UK in the 20th century. Last year, the UK parliament abolished the offence. Defamation today raises the possibility of civil liability only and not criminal liability.
In the course of the discussion surrounding the abolition of the offence, some views expressed by academics, jurists, parliamentarians and NGOs are instructive:
Lord Lester (member of the House of Lords and also a leading QC) of Herne Hill said:
"Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere …..”
Jonathan Heawood, director of ‘English PEN’ (a British charity involved in protection of literature and human rights):
“We are delighted that the government accepts our case for abolition. This news will be of comfort to the hundreds of writers around the world who have been persecuted for criticising their governments. Time and again, we have found that sedition laws in the UK provide a convenient excuse for regimes around the world to retain their own oppressive laws. Abolition in the UK removes that excuse, and is a great symbolic victory for our shared human right to freedom of expression.”
One can see that criminal defamation had become a redundant law in the UK and there had been no known prosecution in the 20th century. As such, the debate in the UK last year was largely about setting an example rather than about the rationale for the law. It is true that sometimes it is convenient for countries to assert that the UK has such-and-such law and therefore we are justified in having it. Clearly, the repeal of criminal defamation in UK removes that argument from the picture. But, equally an argument might be advanced that we don’t have to follow what the English do; we ought to adapt our laws to suit our unique socio-cultural circumstances.
Well, in the local context, our Attorney General has intervened to prevent a party from proceeding with criminal defamation in the not too distant past. The AG’s explanation is as follows:
“The law of criminal defamation is not to be resorted to lightly. A person who feels
that he has been defamed may institute a civil action against the alleged defendant. If his claim is well-founded, the court will award the appropriate damages and costs. Should his claim fail, however, he will be liable to pay the legal costs of the defendant. The prospect of payment of costs ensures that defamation suits are not instituted lightly.
No such limiting mechanism exists in respect of criminal defamation. Although the courts have power to award costs in criminal proceedings, this is uncommon; and unlike in civil proceedings, costs do not automatically follow the event. Moreover, it is only in the most serious cases that a person who has allegedly defamed another should face the prospect of a jail sentence.”
- Media Background Brief dated 16th October 2009
My view on criminal defamation is that it is an offence that relates to reputational damage. If a person’s reputation is affected or a corporate entity’s reputation is affected, it is appropriate for that person or body to commence proceedings to safeguard its reputation and to seek damages. The state ought to have no vested interest in safeguarding the reputation of persons (natural or legal). It is a waste of state resources to prosecute a person for the offence of criminal defamation. Such resources are better utilised in protecting the general community from harm.
Reputational damage should be subject solely to a regime of civil remedies. Criminal law should have no part to play in protecting a person’s reputation.
To put it another way: If I am defamed, I’ll sue. But, I don’t expect the taxpayer to cover my legal costs.
“If they do anything, it’ll just draw more attention to it all, and they have no defence,” – This is what Allan Shadrake had reportedly said on the day before he was arrested. Well, Shadrake has thrown down the gauntlet and our authorities have taken up the challenge. It would be interesting to see how this plays out.
From the information that has emerged thus far from official sources and from international news reports, the following is clear:
a) The basis of the arrest was criminal defamation which is an offence under s,488 of the Penal Code which reads as follows:
Section 499 of the Penal Code: Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
b) The AG’s chambers is proceeding with a Contempt of Court application against Shadrake because statements in the book are alleged to impugn the impartiality, integrity and independence of the judiciary
c) Shadrake has been released on bail and his passport has been impounded
d) The contempt of Court matter has been fixed to be heard on July 30
A Home Ministry spokesman has reportedly stated:
"His anti-death-penalty views are not the issue in these investigations; it is his violation of the laws of Singapore which are.” "Anyone, Singaporean or otherwise, who breaks the law regardless of the cause he touts, will be taken to task. Shadrake is no exception."
According to the Today newspaper:
In court documents obtained by MediaCorp yesterday, the AGC is alleging that several passages in Shadrake's book contain allegations and insinuations that the Singapore Judiciary "in determining whether to sentence an accused person to death, succumbs to political and economic pressures" and therefore "lacks independence".
Shadrake also insinuated that the Judiciary "has been facilitating the suppression of political dissent and criticism in Singapore through the award of heavy damages in defamation actions brought without legal basis by the People's Action Party", the AGC says.
According to the Telegraph, a British newspaper, Allan Shadrake has spoken after his release and he has said the following:
"I have to stay in Singapore, I can't leave till the trial," "I've been awake almost the entire time since they dragged me out of bed at 6 a.m. Sunday morning. I've had a few hours sleep on a very hard floor. I've been sitting at a desk being interrogated all day long explaining all the chapters of the book, going into the history of the book, my research, why I did the book."
With very little facts out and having no access to the book, I can’t make any useful assessment of the issues at hand.
However, I do believe that this ‘criminal defamation’ offence is worth some discussion. As with many of our Penal Code provisions, this particular offence was created by the British. The origins of the offence can be traced back to the 17th century. The Star Chamber dealt with any form of libel critical of the state as a breach of peace. The common law courts subsequently adopted the tests formulated by the Star Chamber for criminal defamation. Prosecution for criminal defamation disappeared in the UK in the 20th century. Last year, the UK parliament abolished the offence. Defamation today raises the possibility of civil liability only and not criminal liability.
In the course of the discussion surrounding the abolition of the offence, some views expressed by academics, jurists, parliamentarians and NGOs are instructive:
Lord Lester (member of the House of Lords and also a leading QC) of Herne Hill said:
"Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere …..”
Jonathan Heawood, director of ‘English PEN’ (a British charity involved in protection of literature and human rights):
“We are delighted that the government accepts our case for abolition. This news will be of comfort to the hundreds of writers around the world who have been persecuted for criticising their governments. Time and again, we have found that sedition laws in the UK provide a convenient excuse for regimes around the world to retain their own oppressive laws. Abolition in the UK removes that excuse, and is a great symbolic victory for our shared human right to freedom of expression.”
One can see that criminal defamation had become a redundant law in the UK and there had been no known prosecution in the 20th century. As such, the debate in the UK last year was largely about setting an example rather than about the rationale for the law. It is true that sometimes it is convenient for countries to assert that the UK has such-and-such law and therefore we are justified in having it. Clearly, the repeal of criminal defamation in UK removes that argument from the picture. But, equally an argument might be advanced that we don’t have to follow what the English do; we ought to adapt our laws to suit our unique socio-cultural circumstances.
Well, in the local context, our Attorney General has intervened to prevent a party from proceeding with criminal defamation in the not too distant past. The AG’s explanation is as follows:
“The law of criminal defamation is not to be resorted to lightly. A person who feels
that he has been defamed may institute a civil action against the alleged defendant. If his claim is well-founded, the court will award the appropriate damages and costs. Should his claim fail, however, he will be liable to pay the legal costs of the defendant. The prospect of payment of costs ensures that defamation suits are not instituted lightly.
No such limiting mechanism exists in respect of criminal defamation. Although the courts have power to award costs in criminal proceedings, this is uncommon; and unlike in civil proceedings, costs do not automatically follow the event. Moreover, it is only in the most serious cases that a person who has allegedly defamed another should face the prospect of a jail sentence.”
- Media Background Brief dated 16th October 2009
My view on criminal defamation is that it is an offence that relates to reputational damage. If a person’s reputation is affected or a corporate entity’s reputation is affected, it is appropriate for that person or body to commence proceedings to safeguard its reputation and to seek damages. The state ought to have no vested interest in safeguarding the reputation of persons (natural or legal). It is a waste of state resources to prosecute a person for the offence of criminal defamation. Such resources are better utilised in protecting the general community from harm.
Reputational damage should be subject solely to a regime of civil remedies. Criminal law should have no part to play in protecting a person’s reputation.
To put it another way: If I am defamed, I’ll sue. But, I don’t expect the taxpayer to cover my legal costs.
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