The Broadcasting Act is fundamentally flawed

We've had our blackout online protest.  We have done our offline protest at Hong Lim Park.  The blogging community has made a loud enough statement to be heard.  But, as with many things in Singapore, though we might shout out loud, we may still not be heard. 

I was at Speakers' Corner on Saturday, 8 June 2013.  It was a remarkable job by the #FreeMyInternet chaps.  They managed to get themselves organized within a short time frame and got the message out to enough people to gather a decent crowd on Saturday. 

I know that the #FreeMyInternet movement made it very clear that their primary goal for the time being is the revocation of the MDA's latest licensing rules.  But, I am sure their ultimate desire is also to see greater freedom in terms of the traditional media as well. 

There is one thing that we need to be very clear about.  The current licensing rules are set out in the Broadcasting (Class Licence) (Amendment) Notification 2013.  By virtue of this notification, MDA can, at its discretion, remove any website from the Class Licence and require it to obtain a specific licence.  The problem is not really a result of this subsidiary legislation.  The problem is in the parent Act of Parliament itself.  Parliament has drawn up a provision that is so broad that it has authorised lawlessness. 

Under Section 8(2) of the Broadcasting Act,
"Every broadcasting licence, other than a class licence, granted by the Authority shall be in such form and for such period and may contain such terms and conditions as the Authority may determine"

This is equivalent to saying that the licence will be in 'x' form, for 'y' period and contain 'w' terms, where x, y and w will be determined by MDA. 

As for Class licenses, section 9 deals states the following:

9(1) The Authority may, by notification published in the Gazette, determine a class licence, being a broadcasting licence, for the provision of such subscription broadcasting services and other licensable broadcasting services as the Authority may specify.

(2) The Authority may include in a class licence such conditions as it thinks fit.

 

 

MDA may issue any form of class licence and impose any conditions. 

 

Sometimes when a legislative provision is vague and open to interpretation and there exists a danger that it could be interpreted too broadly, we might caricature that legislation by stating that Parliament could have simply given unfettered discretion to a public body to do as it pleases.  The Broadcasting Act has been drafted in such a manner that it literally gives that unfettered power to the MDA. 

 

In Chng Suan Tze v Minister of Home Affairs (1988), Wee CJ stated:

 

"All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so."

 

 

 

Ordinarily, the kind of case that the Courts would face involves a government body that exceeds the discretionary power that has been given to it by an Act of Parliament.  Clearly, the Courts would restrain any government body that attempts to do so.  But, the relationship between the Broadcasting Act and the MDA is such that the "four corners" that the Chief Justice referred to in the quotation above is missing from the legislation.  The legislation literally states that the MDA can do whatever it wants.  How did Parliament enact such a law in the first place? 

For Parliament to make a law stating that the Executive arm of government may do as it pleases is as good as signing off on a blank cheque.  The Broadcasting Act is MDA's blank cheque.  It is the hallmark of the rule of law that a government must be subject to and act in accordance with the law.  But, the Broadcasting Act makes a mockery of this principle.  MDA can easily impose any kind of licensing conditions and still claim that it is acting in accordance with the law.  A law that facilitates absolute discretion is only a law in form.  It fails to fulfill its true role in restraining the arbitrary exercise of power. 

In a kingdom, when a king wields absolute power and is not restrained in any way by the law we say that the king is the law, meaning that there is no rule of law in such a state.  What if the king decides to subject himself to the law and he forms a Parliament that would make the law and that Parliament makes a law stating that the King may do as he pleases?  Would we say that there is the rule of law in such a state?  We wouldn't. 

The Broadcasting Act must not facilitate discretion and the arbitrary exercise of power.  It must restrict the MDA's power. 

It is not about the Internet alone. We need to free the media as a whole.

Singapore has come some way since the days of near absolute information control and a pervasive climate of fear.  As a teenager in the 1980s, I remember clearly the oppressive political environment within which alternative voices and opposition politicians were operating.  Even when engaging in coffee shop conversation, there was a tendency amongst many of us to speak less audibly when it came to politics (or not at all) or to cast glances at possible undercover ISD officers.  This was especially so in the wake of the arrests and detention of alleged Marxist conspirators in 1987.  There were many that believed in the official version.  There were many that didn't.  But, one thing was for sure.  We knew that Big Brother was watching. 

From the time that JBJ broke through in the Anson by-election in 1981, there arose a certain excitement and expectation that more alternative voices would enter Parliament.  In the years that followed, there was a growing interest in opposition politics and alternative news.  Those days, with absolute control of the print media being exercised by the state, there was very little by way of alternative sources.  Many of us read in between the lines to make up our minds.  Newspapers that appeared to display an independent streak quickly disappeared.  I managed to get much of my independant information from foreign publications or books available across the causeway. 

Growing up in Singapore against the backdrop of constant propaganda and an undeniably constant climate of fear, the last ten years or so of online information availability has been a truly liberating experience.  For those of us that crave for different perspectives in a debate, the internet has provided us with not only access to information but also an avenue to express our opinion.  There was the often inevitable problem that letters to forum page of the main English daily that were too critical or against the national narrative would not see the light of day.  Those amongst us that had alternative views or perspectives were effectively shut out from the 'national conversion' (to borrow the current national cliche) of the past.

Blogging has provided many articulate Singaporeans an avenue for free expression and other Singaporeans who crave for alternative news a source of information.  Online content providers such as The Online Citizen have emerged as political game changers in many ways.  I am sure that many Singaporeans were relying heavily on alternative online sources for information during the last General Elections in 2011.  My blogs traffic increased tremendously during the GE and also the Presidential Elections.  I can only imagine the kind of increase in traffic that sites like TOC would have experienced.  Singaporeans have been increasingly consuming news online and let's be honest about it, many Singaporeans could well be influenced by the opinion and commentary that they read online. 

When the MDA's new licensing regime was announced last week, I was a little hesitant to brand it immediately as a regressive step and to brand it as an attack on the larger blogging community.  I wanted to read the wording of the regulations to understand whether legally it was possible for MDA to clamp down on alternative news sites.  At first, based on the MDA press release I wrote speculatively about what the government might be trying to accomplish and how it might accomplish it from a legislative standpoint.  http://www.article14.blogspot.sg/2013/05/from-licensing-to-regulation-of-content.html
Subsequently, when the MDA issued the Broadcasting (Class Licence) (Amendment) Notification 2013, the framework of MDA's action became much clearer and I blogged on this here: http://www.article14.blogspot.sg/2013/05/making-sense-of-legislative-framework.html

The way that I see it the new licensing regime is sufficiently vague to allow for future licensing notices to be directed at sites such as TOC.  MDA has made assurances that the measure is not targetted at blogs.  The issue for me is not so much as to who is targetted now.  The question is whether alternative sites providing unfavourable content can be subject to licensing in the future.  During the Talking Point show that was aired on ChannelNewsAsia, Minister Tan Chuan Jin did allude to the fact that blogs reporting news could come within the ambit of the licensing requirement.  To be frank, TOC is a site that does not merely publish opinion and commentary on local events.  Some of their activities does involve news reporting.  During the last General Elections, we saw quite a fair bit of reporting from on the ground that was done by TOC.

Considering the fact that there are linguistic loopholes in the subsidiary legislation for the authorities to exploit, the blogging community has very little to go on except to hope that the PAP government will act in good faith.  The main reason for the online uproar is that the past political record of the PAP hasn't been positive from the standpoint of freedom of speech and expression.  Citizens are generally skeptical about the Ministerial assurances.  (Perhaps, as citizens we might have to wonder whether we are unfairly forcing the current generation of PAP leaders to bear the historical burden of their party.  I have reflected upon this often and tried my best to give the present PAP leaders a clean sheet to work from.  But, the historical baggage is difficult to erase from memory.) 

We don't know the real reason for the sudden announcement surrounding the introduction of the new licensing rules.  We suspect a hidden agenda.  We may or may not be right.  But, one thing is for sure.  If there had been a hidden agenda of gradually subjecting popular alternative sites to a regime of licensing (which involves financial constraints and take-down notices), then the uproar from the blogging community has certaintly acted as a persuasive force in preventing the MDA from taking such steps in the future.  If anything, a concession has been forced in the form of a public statement that the licensing regime is not targeted at bloggers.  It is a minor victory.  But, a victory nevertheless. 

If there was no hidden agenda, the bare mimimum that has been achieved this week is that the blogging community has sent a clear message that we value our limited space and are not willing to give it up easily.  Some of my friends asked me about the point of participating in a 'blackout' (on 6 June 2013) and whether it was a futile and self-defeating exercise.  My take on it is that if websites went on an indefinite blackout until the licensing regime is withdrawn, the blackout action would have been futile and stupid.  What was done yesterday was, in my view, symbolic.  It helped to demonstrate the broad cross-section of support that exists for the freedom of online space.  It was not merely the socio-political bloggers that participated in the blackout. 

Tomorrow, it is time to turn up at Hong Lim Park.  I am going down to show support.  I don't think that the task at hand is merely about reversing the licensing regime.  The current regulations as framed and as explained (defensively) appear unlikely to prevent online discourse and debate.  There are two broad tasks that we as a nation need to focus upon:

1.  Firstly, we have to recognise that the Broadcasting Act enacted by Parliament grants to the MDA too broad a power to institute a licensing regime with any restrictive conditions of licensing whatsoever and all of this can be done without any need for Parliamentary debate.  Just as MDA has introduced the current licensing regime, the MDA can replace it and introduce another licensing regime with entirely different conditions.  The Broadcasting Act has given too much discretionary power to the MDA and discretionary power with improper or no legal contraints is always a dangerous tool in the hands of those that might be bent on abusing that power.  To prevent such future abuse the Broadcasting Act must be amended to take away the general power of the MDA to set licensing conditions in a discretionary fashion. 

2.  Secondly, the traditional print media in Singapore has to be freed up.  The Newspapers and Printing Presses Act has to be either amended or repealed.  The key control mechanisms in this Act that prevent our mainstream media from acting in an independant fashion must be removed.  I have previously blogged about the legal structures that limit the press:  http://article14.blogspot.sg/2012/05/media-in-singapore-structural-problem.html
Minister Yacoob Ibrahim spoke about creating a parity of mainstream media and the online media.  Rather than taking the regressive step of introducing controls upon the online media to bring it on par with our MSM, we should take the progressive step of removing the controls on our traditional media.

Anyone interested in understanding the mechanics of legal control in relation to the press should read this book by Francis Seow entitled "Media Enthralled" 

In my reading of the current political situation I would not approach it with a sense of doom and gloom.  I believe that the political awakening of our citizens that has been going on over the last few years will be met and matched by a gradual political rehabilitation of our politicians.  As a country we have every reason to be optimistic since citizens are beginning to show a willingness to stand up for issues that affect the broader community instead of pursuing their own selfish goals.  The juggernaut of the popular desire for greater freedom has started moving.  Nothing can stop it now.  Singapore in 2013 is very different from the Singapore of the 1960s or the 1980s.

We take our pledge seriously and believe in it entirely.  We will strive towards a "democratic society based on justice and equality."

Race, Responsible Speech and a Hasty Response

If we desire freedom, we must take the verbal 'shit' that comes with it and be able to walk on unfazed, unbothered and unconcerned.  Remember this:  Sticks and stones may break my bones.  Words can never hurt me. 

Let me start this out with the following images.  I am a Hindu.  There'd be some expectation that I should be offended by the following images:

The image of a Hindu deity on a pair of shoes can be quite insulting.  Shoes are often accorded a 'lowly' status and taking out one's shoes and waving it at another is considered both an insult as well as a threat.  So, an image of Lord Vishnu on a pair of shoes would ordinarily (and should, objectively speaking) offend a Hindu.

If having an image of a deity on shoes is bad, this image of Lord Ganesha on slippers takes the cake.  Most Hindus are brought up to avoid stepping on any holy symbol or image.  In fact, most would scrupulously avoid stepping on books, newspapers and any other written material as well (as embodiments of the Goddess Saraswati).  If one accidentally steps on any of these, it is customary to touch the article with one's hand and to place the hand on one's closed eyes (as a mark of apologetic respect).  You can imagine how the slippers above would offend a Hindu.

This image shows some Hindus in India protesting against a swimsuit (or rather protesting against the designer of the swimsuit) containing the image of Goddess Lakshmi.  Hindus were clearly offended by the swimsuit.  No necessity here to explain why they would be. 



Where am I heading with this?  Well, there are 2 aspects to the issue of offensive acts or remarks.  There is the perpetrator and his/her act/remark.  There is then, the reaction of the group of persons maligned by the act/remark. 

The Perpetrator

The person that made the offensive remark or gesture could have done so privately with no intention for the remark or gesture to be communicated in public.  That person could have done so publicly with the intention to shock or offend.  Alternatively, although the person made the remark or gesture in public, he/she did so without realising that it is capable of offending/hurting someone. 

Whilst the perpetrator enjoys the freedom (or ought to be permitted to enjoy the freedom) to say what he wants, we do recognise that some types of speech can cause harm to society (not merely causing offense).  Incitement to commit acts of violence, incitement to commit murder and generally any form of incitement to commit criminal offences should rightly be prohibited.  The person making remarks or gestures must be prohibited by law from inciting crimes.  But, I believe that speech that is capable of offending groups or communities should not be banned. 

Whilst advocating freedom, I do not advocate irresponsibility.  It is axiomatic that the freedom enjoyed by a person must be used responsibly.  Whilst I might advocate the freedom of speech as a matter of law, I strongly believe that this freedom is one that comes with great responsibility.  My blog itself gets its name from Article 14 of Singapore's Constitution (Freedom of Speech and Expression).  I have repeatedly maintained the need for liberalisation of our laws insofar as freedom of speech is concerned. 

If the law permits me to speak freely, I would still not feel that I have a right to say anything I want.  If I may be permitted to do so, there is an ancient Tamil saying from Thirukkural: 

இனிய உளவாக இன்னாத கூறல்

கனிஇருப்பக் காய்கவர்ந் தற்று

Uttering insults whilst there are constructive words is

equivalent to eating unripe fruits when ripe ones are available. 

With a soft word, a kind utterance and a gentle smile, we generate goodwill and harmony around  us.  With harsh words, insults and derogatory comments we manifest sourness and spread hate and misunderstanding.  It is important to remember that the freedom to say what we want should be used responsibly to ideally create a positive environment around us all the time or at least to avoid creating sourness. 

Of course, sometimes when we state the truth, it can hurt.  I am not exhorting the idea of being untruthful.  But, even truth can be presented in a way that is less harsh.  One can be critical without being hurtful.  Sometimes, we have to state the truth forcefully in the face of state power or in the face of social injustice.  But, stating the truth forcefully can be done with compassion and understanding.  Even in the political context, leaders such as Mohandas K. Gandhi, Martin Luther King and Bishop Desmond Tutu were capable of rendering forceful anti-establishment rhetoric without violence of thought, speech or action. 

The responsible use of free speech is an ideal.  However, irresponsible use of free speech is not uncommon in those societies that provide for legal protection of speech.  That a person says something irresponsible, however, should not be the basis of legally censoring him. 

That brings me to Amy Cheong.  She has made some facebook remarks that have been objectively acknowledged by many individuals (politicians, public figures and citizens) as being offensive.  In Singapore, her comments could be construed as falling within the definition of Sedition under the Sedition Act.  A seditious tendency is defined in s.3(1) of the Act as including a tendency to promote feelings of ill-will and hostility between different races or classes of the population of Singapore.

I am not a big fan of this provision in the Sedition Act although I understand the historical context of its origin.  In many Western democracies hurling racial and religious insults is not considered an offence even though it might be offensive to those that are the targets of those insults.  Having said that, one should not condone such behaviour.  The state has no business in proscribing such conduct.  But, the individuals in such a society must aspire to moderate their speech in way that would not be hurtful.   It is for this reason that I do not consider it proper for Amy Cheong to say the things that she said (though she should not be legally prevented from doing so).  

The perpetrators should examine themselves.  The ones that use hate speech and peddle hateful perspectives should question themselves and see where these views are coming from.  They should see for themselves the hurt that they cause to others.  Freedom of speech brings with it the need to express responsible views.  Those that put out their views for public consumption must consider how those views would impact the rest of the community. 

Whether it is Amy Cheong, Shimun Lai, the director of "Innocence of Muslims", Lisa Burke, Sun Xu or any other person engaging in objectively offensive activity, they have to reassess themselves and the hatred that they peddle.  Racist viewpoints and racial stereotypes are often a product of ignorance, limited exposure and re-inforcement of prejudiced perspectives through anecdotal evidence. 

The victims of the insult

Those that end up at the receiving at of the stick when it comes to offensive words/actions have to ask themselves how they want to react.  To begin with, some of us are easily offended as opposed to others.  Some of my fellow Hindus would be really riled up by the images above.  The bikini design would have been particularly offensive.  As the protest image indicates, enough people were upset in India to engage in demonstrations and even Court actions.  Some would react with anger and would then let it pass as not being uppermost on their agenda.  Some would feel offended and yet decide that there is no point in pursuing the perpetrators legally or otherwise.  Yet others like me would brush it aside as inconsequential and not really take offense. 

My own perspective is that the insults, malicious comments, racist views, sacreligious actions and other negative acts are incapable of defining the person that I am.  I don't construct my identity through the perception of others and I don't draw comfort from the high regard that others have of me.  I am comfortable with my own identity on the basis of who I am.  Objectively insulting words/actions have little impact on me.  Something offensive comes my way.  I read, I hear, I observe, I ponder upon it and then I release it.  I do not see the need to react to it.  I wasn't always like this and when I was younger i used to get riled up over quite a number of racist remarks and actions.  Perhaps, age has caused me to mellow down.  Perhaps, I have simply come to recognise that no amount of external attempts by others at constructing an image of me is going to change who I am. 

I believe that those of us that advocate the freedom to criticise the state and its policies should acknowledge the freedom of others to make comments, however negative.  We will not accept incitement to crime.  But surely we can live with the messiness of the rude and crude persons amongst us.  If a person is racist and denies us a job or school or university admission on account of our race, we should rightly make that an issue to be remedied even through the use of the law.  If it just a racist comment or insult, I am sure we can grow a layer of thick skin and not acknowledge or give credence to the racist's comments.

In response to some of the hateful stuff that has been posted, some people have thrown insults and strongly worded condemnations at the perpetrators.  The perpetrators should have expected it.  There is nothing to be shocked about the reaction of anger.  It doesn't lie in the mouth of the perpetrators to suggest that victims of the insult are overly sensitive.  After all, you are being spared the long arm of the law and you merely need to contend with vitriol. 

As for the victims of the insult, I would hope that everyone would exercise restraint.  Whilst anger is understandable, violence is not justifiable.  (Earlier this year I had blogged about my views on the Shimun Lai incident when she made remarks about Indians  http://article14.blogspot.sg/2012/03/shimun-lai-whats-her-crime.html)

The Amy Cheong Affair

In Singapore, in relation to the Amy Cheong affair, the online response has been to turn on Amy Cheong like a lynch mob.  I understand the angry reaction.  But, I fail to see the need for raising the matter up to Amy Cheong's employer (NTUC).  Someone has also filed a police report.  Did we really need to resort to such measures.  Amy Cheong might have made racist remarks (some would say classist as well) but should that be the reason for having her sacked?  Just imagine if every person that makes a racist remark were to be dismissed by the employer.  Where would that leave us as a country. 

I am sure that many of us will realistically acknowledge that racist views are pretty common in Singapore and it is merely a case that much of these views have not been publicly articulated (except when those views are peddled as 'hard truths' by a certain elderly gentleman) or there have been no real avenues for the articulation of these views till now.  Today, with the availability of social media, it is possible for one's narrow-minded views to go viral.  Should every company in Singapore sack its publicly racist employee?

From what I have seen online, some individuals that have in the past written pretty nasty stuff about 'PRC' individuals and FTs, have now turned holier-than-thou and are hurling brikbats at Amy Cheong. 

Some of our Ministers that had advised Singaporeans to be accomodating towards Sun Xu have now condemned Amy Cheong's FB post and even applauded NTUC's decision to fire her. 

Firstly, we have to recognise that no human being is perfect.  Everyone has some level of stereotypical views about other races, religions, communities, nationalities, etc.  Even the best amongst us would have at some point in time expressed racial/racist comments.  We have to have the wisdom to understand that the real racism that we want to fight is the kind that deprives communities of opportunities.  Insults cannot break our bones. 

Secondly, if we must respond to insults, it would be best to do so by pointing out to the person the error of his/her ways.  There is no necessity to descend into the gutter with that person. 

Thirdly, (and this is why I decided to blog on this matter) we have to ask ourselves whether an employee should be sacked on account of his/her facebook comments (however racist they may be)?

Was NTUC right in sacking Amy Cheong? 

On Sunday night when I saw Amy Cheong's FB post going viral, I thought to myself how sad it is that this nation is still finding it difficult to rise above race.  I then came across Amy Cheong's apology (which curiously was a PAP style apology that says, "I am sorry that my actions hurt you" as opposed to "I am sorry about what I did.").   I noticed that there were those calling on NTUC to take some action against her.  I expected NTUC to state that they do not approve of what Amy Cheong said and that they have asked her to deliver a public apology.  I was honestly caught off-guard on Monday when I saw the breaking news online that NTUC had fired Amy Cheong. 

There must be an unfair dismissal somewhere in there.  How did a comment on FB spiral out of control to a point where the very next day (being the 1st working day of the week), the employers sacked the writer on the spot.  Whatever happened to giving notice of termination?  Fine.  It is possible that the contract would have provided for some eventuality that would entitle the Employers' to terminate forthwith.  Assuming that the condition for immediate termination was pertaining to discipline or for bringing NTUC into disrepute, it is still shocking that within a period of less than 24 hours NTUC was able to arrive at a decision that the relevant contractual provision had been infringed.  No due process.  No attempt to notify the employee of the intention of NTUC to fire her on account of the allegation.  No attempt to afford the employee an opportunity to explain herself or to make amends. 

In its swiftness, NTUC probably estimated that it would seize this opportunity to perform a public relations coup.  I can imagine that the close association between the PAP leadership and the NTUC would have meant that criticism of Amy Cheong would have tainted the NTUC and that tainting would then have tainted the PAP as well.  There must have been a flurry of activity within the Cabinet and the decision must have been taken to sack Amy Cheong.  A calculation could have been made that this would portray Lim Swee Say (PAP Minister and Labour Chief) in a good light as a decisive individual willing to make the right decision.  It would have been calculated that this would add to  PAP's reputation for a no-nonsense approach to race related issues. 

Of course, I could be wrong.  Lim Swee Say could have acted on his own and felt that this was the right thing to do. 

Whatever the reason for the sacking, it is truly a step in the wrong direction and a very bad precedent to be set for all employers.  The National Trade Unions Congress, more than any other company, institution or organization should be intimately aware of and highly protective of the rights of employees.  Instead, NTUC (or Lim Swee Say) has acted in a high handed fashion in the manner of a large corporation willing to run roughshod over its employees. 

Apart from the question of whether NTUC conducted a proper investigation of the issues at hand before sacking Amy Cheong, there is the issue of whether a person's personal Facebook posting should be the basis of an employer's decision to sack that person.  It would have been a different matter if Amy Cheong had in the course of her employment insulted a customer by using a racist statement.  (Recently, a SMRT bus driver was disciplined (not sacked) for referring to a passenger as Ah Kua.)  Clearly, Amy Cheong's comment was not made in the course of employment. 

What could NTUC have done?  Since a police report had been made and assuming Amy Cheong was being investigated for sedition, NTUC could have suspended her pending the criminal proceedings.  If she was eventually convicted, NTUC could then have relied on an appropriate contractual clause to terminate her. 

Now that NTUC has decided to behave like a high handed employer, what kind of example does that set?  Well, I guess some of the more cynical amongst us would say that NTUC was never really a worker's union.  It was a body set up to manage workers' expectations whilst bending over backwards for business/corporate interests.   I am, therefore, not surprised, after some reflection, that NTUC sought to 'save face' and to avoid the ire of the lynch mob. 

The reaction against Amy Cheong was speedily and irrationally turning against NTUC and had the potential to turn against the PAP.  Perhaps, Amy Cheong was the sacrifical lamb. 

Who got the facts wrong? Kenneth Jeyaretnam or the MICA Press Secretary?

I did a double take when I read the rebuttal letter written by Mr Peer M Akbar to the Wall Street Journal. Firstly, a little bit of context: On 7th March 2012, a letter written by Kenneth Jeyaretnam to the Wall Street Journal was published. "Challenging Singapore’s Defamation Laws" In that letter, Mr Jeyaretnam made reference to his father's bankruptcy. The relevant part of the letter is as follows:

"As The Wall Street Journal is aware, my father, Reform Party founder Joshua Benjamin Jeyaretnam, was sued numerous times for defamation, culminating in being bankrupted over a few words in an article published in the Workers’ Party newspaper that he did not write and in a language (Tamil) whose written form he did not understand. This resulted in him losing his seat in Parliament and not being able to stand again before he died..."

My observation: KJ makes no reference to the timing of the defamation suit involving that article in the "Hammer" which was written in Tamil. He states that JBJ's bankruptcy resulted from a suit arising out of the Tamil article in the "Hammer". This bankruptcy resulted in him losing the seat in Parliament. I don't remember the events very accurately. But, I have a vague recollection that JBJ was in Parliament when he was declared bankrupt and that resulted in his disqualification. I also remember that there was a suit by some members of the Indian community against JBJ and one of the chaps was a lawyer. I used to hear a fair amount of Bar room talk about that lawyer being instrumental in JBJ's bankruptcy. So, Kenneth Jeyaretnam's letter did not shock me or surprise me. On 12 March 2012, Peer Akbur (the Press Secretary to the Minister for Information, Communications and the Arts) attempted a rebuttal of KJ's letter. The full letter is as follows:

Defending Singapore’s Defamation Laws 12 March 2012 Mr. Kenneth Jeyaretnam’s Mar. 7 letter to the editor, “Challenging Singapore’s Defamation Laws,” misrepresents basic facts. The article that he referred to was published in the August 1995 issue of the Workers’ Party publication The Hammer. J.B. Jeyaretnam was then the secretary-general of the party. The author of the article, the editor of The Hammer, and the Executive Council of the Workers’ Party (of which J.B. Jeyaretnam was a member) acknowledged that the article was “completely false and baseless” and accepted responsibility for it. They published an unqualified apology in The Straits Times on Nov. 23, 1995 and agreed to pay costs and damages. Contrary to Mr. Kenneth Jeyaratnam’s claim, this episode did not cause J.B. Jeyaretnam to lose his seat in parliament—he was not even a member of parliament at that time. Nor did it prevent J.B. Jeyaretnam from contesting the subsequent general elections in 1997, and being selected as a non-constituency member of parliament. Singapore holds its public officials to the highest standards of probity and integrity. Ministers and officials who have committed offences have been charged and jailed. Court judgments in all these cases are published, and fully open to scrutiny. At the same time, ministers who are defamed will sue to clear their name and take the stand to be cross examined. The right of individuals to protect their reputation is as important as free speech. In a healthy democracy, vigorous political debate does not involve defamatory attacks. In Singapore’s 2011 general elections, the same Workers’ Party that J.B. Jeyaretnam once led achieved its best performance since independence, with several MPs elected into parliament. It faced no lawsuits. Mr. Kenneth Jeyaretnam and his party also contested the general elections, albeit less successfully. . Peer M. Akbur Press Secretary to the Minister for Information, Communications and the Arts

This article caused me to question my own memory. On the face of it, everything appeared to be factually accurate. A quick check on the net showed that in 1995 JBJ was not in Parliament. He entered Parliament again in 1997 as a Non-Constituency MP via Cheng San GRC. So, MICA's assertion appeared to be accurate and KJ appeared to have got his facts mixed up. But, I was confused. I still carried a vague memory of the bankruptcy resulting from that particular claim. Thank God for the internet, I have proof postive that I have my memory and sanity intact. Firstly, this is a Reuters article reproduced by "Singapore-Window": Secondly, in 2009 the Ministry of Law had responded to a White Paper on Repression of Political Freedoms in Singapore by Amsterdam and Peroff. In that response, under Annex 2 the following assertions were made by the Ministry:

Mr Jeyaretnam’s bankruptcy in 2001 had nothing to do with the Government. It arose from a defamation action brought against Mr Jeyaretnam by the Organising Committee for the 1995 Tamil Language Week, the majority of whom were not politicians. They had argued that Mr Jeyaretnam had committed a very serious libel when he alleged that the Committee was seeking political gains by “nakedly prostituting itself”. Mr Jeyaretnam refused to withdraw or apologise when sued. The court found against him and ordered him to pay damages, but he was unable to pay. Mr Jeyaretnam also had other outstanding debts. Arising from the bankruptcy, Mr Jeyaretnam’s expulsion from Parliament followed due process as provided for under Article 46(2) of the Singapore Constitution. As a bankrupt, Mr Jeyaretnam would have been disqualified from practicing as a solicitor; however, he had not renewed his practicing certificate and had ceased to practise law at the point of his bankruptcy.

So, the facts as the turn out.... KJ was not wrong in his assertion about the defamatory article that led to his father's bankruptcy. Peer Akbur is wrong to state that the episode did not result in JBJ losing his seat in Parliament. It did result in the loss of the Parliamentary seat. In fact, I would have expected the MICA response to play the safe tune that MinLaw played which was to state that the bankruptcy was not brought on by a defamation suit by the PAP leaders but rather by members of the Organising Committee for the Tamil Language Week. Mr Peer Akbur. You have to do better fact checking than that when you are trying to represent the Ministry's position. It's ok. It is not too late to come forward and say that you stand corrected. :-)

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?

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!

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.

Papmandering alert: SPH will brief Singaporeans on the right way to vote on the day before polling day. Every other person: Shut up and Sit Down!

The PAP is at it again: Papmandering - a form of gerrymandering unique to Singapore.

As I defined it in an earlier blog article: Papmandering: 'The art/science of redrawing electoral boundaries, electoral laws and/or the constitution for the purpose of maintaining overwhelming control of Parliament through the mechanics of clearly articulated arguments in favour of an inclusive form of democracy'.

The Prime Minister has chosen to announce, curiously from a faraway place, that a 'cooling off' day would be incorporated into the election process. This, it appears, is to prevent irrational voting. We the voters might be swayed by uplifting, exciting but misleading rhetoric and we might vote against the PAP erroneously. We the voters might be whipped into a frenzy of anger against the PAP and might commit the grave error of delivering a 'freak' election result.

Looks like the PAP has decided that the SPH in its infinite wisdom would be the sole source of information for us all. SPH would 'analyse' the campaign, 'summarise' the issues and present a profile/caricature of all the candidates in the elections. There will be no campaigning on the day before elections. But, will blogosphere remain silent?

The PM has left the Internet as a grey area for now. We would discover once the draft legislation is released. I wouldn't rule out the possibility that they may get so kiasu that they would prevent all unauthorised commentary on the elections either online or through other means. The other real possibility is that recognising that the internet does not possess a sufficient outreach to influence voters, they would take a hands-off approach to bloggers.

Any law that seeks to prevent commentary on elections (where such commentary is not pursuing a party objective but intended to be informative or insightful or even plainy supportive of a political party) would be undermining Article 14 of our Constitution, which provides for the Freedom of Speech. This freedom may be limited under the following circumstances:

Art 14(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;

It would be interesting to see the justification raised in parliament for such a limitation on free speech. The usual public order and security rant may not be viable. A clever argument could be constructed along the lines of 'the privileges of Parliament' vis a vis the electoral system and that might become the basis the restriction.

I don't know. I'm just speculating.

On the assumption that they do restrict online discussion on the day before polling day, the interesting question is: Will blogosphere remain silent?

The Wisdom of a 15 year old

This is definitely the quotation of the week (maybe, it might even be the quotation of the year):
Jarret Huang (Secondary 3 student from Raffles Institution): "The sense of persecution is not a reactive measure in my situation but rather it is a pre-emptive measure taken such that certain things which are deemed incorrect cannot be said in certain situations.”

The red-herring that is often thrown at us if we directly question a minister about the curtailment of the freedom of expression is that we have false perceptions of persecution/restricions/etc. The restrictions that exist are purely in the interest of public order and safety and also national security. The restrictions do not prevent legitimate criticism.

Jarret Huang's response to Dr Vivian Balakrishnan's question about whether he feels persecuted hits the mark perfectly.

There is a political climate that has been carefully constructed and repeatedly reinforced that ensures that we practice self-censorship most of the time. It is not persecution but the fear of possible persecution that drives the self-imposed silence that many of us are guilty of.

Once in a while, a little boy would stand up and tell the Emperor that he is not wearing any clothes. :-)

Judging those who judge the judiciary

Chee Soon Juan's strenuous and persistent questioning of witnesses whilst the court had disallowed those questions gave rise to a contempt conviction.
Gopalan Nair's vitriolic verbal assualt making reference to the judge who presided over the case has resulted in a charge under the Penal Code of insulting a public officer. Both of these cases give rise to the fact that there is an interest in protecting the integrity of the judicial system and an opposing public interest in being able to engage in free criticism of the judiciary and to subject them to scrutiny.

Here are some interesting quotes about insults leveled against the judiciary or contempt of court generally. It is quite a task to balance the need for an unimpugned judicial system as a cornerstone of constitutional governance and the need for free expression and free speech so that a little boy can still cry out that the emperor wears no clothes.


In Re S.Mulgaokar(1978) 3 SCC 339.
“The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment, because Judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection – for a wide discretion, range of circumspection and rainbow or public considerations benignantly guide that power” - Justice Krishna Iyer


Ambard v. Attorney General for Triandad and Tobago, 1936 AC 322.
"The path of criticism is a public way. The wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men." – Lord Atkin

In Re S.Mulgaokar(1978) 3 SCC 339.
“A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to public regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage – a delicate but sacred duty whose discharge demands tolerance and detachment of a higher order”. – Justice Krishna Iyer

What can I say? (without being charged?)

The Gopalan Nair saga (whatever the wisdom or lack of it that got it started) highlights another more important issue: The freedom to express one's views. How important is this right? What is the extent to which this right can be stretched?

Rights are the antidotes to power.

Often it has been stated that the freedom of speech cannot be unlimited; that freedom must be accompanied by responsibility. Whilst a person has the freedom to speak, he doesn’t have the freedom to hurt or harm. Instigating racial and religious hatred and creating social tensions in the name of free speech is a misguided use of the freedom. So far so good. I’m willing to concede.

What about the use of free speech against public officials?

Constitutional Rights are not rights operating in a vacuum. They are relational. The citizenry’s relationship with the state is spelled out in the form of rights. These are not weapons that we use against our fellow men nor are these empty propositions that we can claim as the badge of a free people. These rights are protections. Protections against potential abuse. Governance entails giving power to a few to administer the many. Societies are complex and governance of all by all is impracticable. So, for want of a better alternative, we confer authority upon those who govern to govern for out benefit. In recognition of the fragile and fallible nature of the human will, we have created systems. The objective and abstract system is intended to ensure that even if human fallibility were to creep into governance, the system would extract and terminate that virus. The Constitution is the anti-virus software running in the background and assisting us in isolating human failings as and when they crop up.

The Freedom of Speech is one such tool. This freedom’s purpose is not to enable an individual citizen to cause harm to others. Its purpose is, amongst others, to enable a citizen to call out and name officials who have allowed their personal frailties to compromise the responsibilities they bear as officials. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not an invitation for chaos to visit the nation. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role does not result in a riot. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not even a case of tiptoeing onto the slippery slope leading towards the ‘Hock Lee Bus Riots’ (the caricature of chaos within our nation’s collective meta-narrative).

The very purpose of the constitutional right to free speech is to question the actions of those who govern; if necessary, to question the integrity of individual officials. There is no higher purpose that this right serves than to enable the citizen to speak truth to power. Of course, just as the citizen has the right to allege, the official has the right to defend himself against such allegation. The defence against such allegations ought to be conducted in the public sphere through clarifications by the official of the position he adopts.

Criminalization of criticism of public officials runs counter to the fundamental purpose behind the freedom of speech. A threat of force or a threat to the safety of a public official is not a legitimate exercise of one’s freedom of speech. But, an insult is nothing more than a forceful expression of one’s disgust with an official or a system. The Freedom of speech bestowed upon the citizenry is a mechanism for dissent and criticism to be voiced and accommodated within a system of consensual governance. To criminalise the criticism is to nullify the freedom.

I am not trumpeting this freedom as a religion here. (Yes, that is a reference to the Attorney General’s recent comment.) I am merely asserting that it is a practical tool in the hands of the citizenry to make sure that the human failings of those who govern do not compromise the collective good. Often there is a tendency to argue that the freedom of speech is an individual right and that sometimes it has to be compromised in the interest of the greater good of society. But, when the freedom is exercised as a critique of those who govern, it is in fact acting as a tool furthering the collective interest. It is the suppression of criticism that tends to serve individual interests and as a consequence fails to advance the collective good.

Salus populi est suprema lex. Public welfare is the highest law.

Of Rice and Rights

The price of rice is so high
My mom decided not to buy anymore.
But, how could I survive
Without any rice?
“Men shall not live by rice alone”
she preached sagely.
Right!
And I suppose I have to wait for the miraculous appearance of gunnysacks in my kitchen tonight.
My rabble-rousing cousin had another take on it.
“You are bitter about rice?
Get yourself some rights!”
“You can’t eat those,”
retorted by mom.
Age often breeds wisdom
And I should have listened to her.
Article 14 was hard to chew.
Tasteless and soaked in saliva,
I had a tough customer in my mouth.
In the end, a glass of water and a quick gulp
Was all it took to flush it down.
It didn’t seem all that bad.
So, I went in search of more rights.
I wasn’t disappointed.
There were plenty of those
And I could print an endless supply.
God bless the Internet!
Papa splashed a smirk
From the side of my hospital bed.
“You should have listened to your mother,”
the smirk seemed to say.

My cousin’s blog entry for that day read:
“He failed to digest what I said.”