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!

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.