Ahead of the second reading of the Administration of Justice (Protection) Bill in Parliament on Monday, a law professor argues that the public's wish for information and comment on court cases must be weighed against an accused person's right to a fair trial.
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More than a decade has passed since the media frenzy surrounding "King of Pop" Michael Jackson's 2005 child molestation trial. Many of us will recall that the coverage of the trial by some media outlets appeared to be motivated more by sensationalism and scandal than for any real concern for the truth.
This sort of coverage went far beyond balanced reporting on the court proceedings: Breathless headlines such as "Peter Pan or Pervert" were designed to imply that Jackson was guilty as charged, and confidential evidence from police investigations was purchased and "leaked" by various tabloids. The effect on Jackson's public image was devastating.
Ultimately, the jury unanimously acquitted Jackson of the charges, but perhaps the verdict did not come soon enough. Jackson's courtroom battle had evolved into a worldwide obsession and a full-blown "trial by media", which created a widespread perception of Jackson's guilt or innocence even before the jury had reached its verdict.
In the aftermath of the trial, some of these media outlets were criticised for their exploitation of Jackson's trial and for their unabashedly biased coverage.
Yet, many media outlets around the world continue to survive and thrive on sensationalistic and exploitative coverage. Amanda Knox (an American student tried in the Italian courts for the alleged murder of her British flatmate, and ultimately acquitted) and Oscar Pistorius (a South African Paralympics track star who has been convicted of the murder of his girlfriend) are just some of the more contemporary examples that come to mind.
Both cases were heavily sensationalised and there was intensive media speculation on the guilt or innocence of Ms Knox and Pistorius. In Ms Knox's case, certain tabloid newspapers painted a portrait of her as a "sex-crazed" student, feeding on the Italian prosecution's theory that the murder was the outcome of a sex game that went too far .
TRIAL BY MEDIA CAN HAPPEN HERE
In Singapore, we are fortunate that journalists who cover the courts strive for accuracy in their stories and the courts welcome this as it is in the public interest for members of the public to be informed of the workings of the legal system. After all, the trial process is intended to be an open one which members of the public can attend. Trial by media of the degree in countries famous for their tabloid journalism (like the United States and the United Kingdom) has not occurred in Singapore to date.
But there are warning signs - the amount of attention showered on the trials of the six former City Harvest Church leaders for various charges, including criminal breach of trust (appeals against their convictions and sentences are still pending) and of former Central Narcotics Bureau director Ng Boon Gay for corruption charges (he was acquitted), for example. Such highly charged circumstances may tempt media outlets, eager to be the first to publish a major "scoop" or viral commentary, to test the boundaries of acceptable behaviour.
In addition to mainstream media, alternative news sources and social media channels are also significant today. Being a highly wired society, anyone in Singapore has the means to weigh in on a court case, and to have his or her comments widely amplified with the help of social media. A single comment on Facebook or a "share" of a friend's post may be perceived to be of little significance, but cumulatively such comments can have a real impact in shaping public opinion towards a person on trial. Both mainstream and social media can therefore shape the "court" of public opinion.
The power of the media to cast a spotlight on legal proceedings is one which can be used for both good and ill. It is entirely legitimate to report on court cases and to highlight the important legal, political and social implications arising from such proceedings. But that same power also can be used to distort, vilify and mislead the public.
Some may not perceive this as a problem because many accused persons do turn out to be guilty, or were at least morally culpable. But what if these people were, in fact, innocent?
IT'S NOT JUST ABOUT JURIES
While the conventional objection towards trial by media is that it has the potential to influence the outcome of jury trials, its negative effects extend far beyond that. Trial by media could lead to a severe miscarriage of justice, even in Singapore, where we do not have a jury system.
Juries are assumed to be more susceptible to media pressure or influence because they are laypersons in the law. But juries are not the only laypersons involved in a trial. Witnesses and experts who give their opinion on technical issues (like forensic evidence) continue to be essential players in any court case.
Like juries, witnesses and experts could feel pressured by the views expressed in the media to alter their evidence when they take the stand, to avoid a public backlash.
More dangerously, the evidence they give on the stand could be coloured by post-event media coverage, particularly biased or one-sided reports. They may not even realise that their evidence has been contaminated.
For example, in the case of the murder of Yale University student Annie Le in 2009, certain media outlets published articles with unverified claims that DNA tests had shown that the suspect Raymond Clark's DNA was found on Le's body and clothing, and which declared that this was the evidence that would put Clark behind bars. All this before Clark's trial had even begun. One can only imagine what sort of effect such articles would have on witnesses who are due to take the stand, especially if they are repeatedly published.
In some cases, a party involved in litigation could also be pressured to settle a suit out of court for less favourable terms in order to avoid public scrutiny, even though he or she has a meritorious case.
JUSTICE MUST BE SEEN TO BE DONE
In a society governed by the rule of law, judges must come to an independent decision based on the law and his or her objective assessment of the evidence presented in court. In doing so, the judge is assisted by opposing counsel and must be free of influence from outside the courtroom. It would be worrying if the people with the loudest voices or deepest pockets can appear to apply pressure on our judges to reach a certain decision.
Professional judges, being legally trained, are assumed to be immune to pressures from the media or from public opinion. But where there was a media circus leading up to a judge's decision, questions are bound to be raised as to the objectivity of the final outcome, even if the judge was not in fact so influenced.
An important tenet of our justice system is that justice must not only be done, but also be seen to be done. If the public perceives that there is a possibility that a legal outcome may be influenced by public lobbying, the level of trust in our judiciary as a neutral arbiter of disputes will be affected. Furthermore, everyone with an interest or view in the outcome will feel obliged or free to weigh in, especially if others are expressing a contrary view.
Do we really want a potentially unruly public debate about the guilt or liability of an individual or are we better off with the present system where the judge attempts to come to the outcome he or she best feels fits the law and the evidence without the danger of any undue external influence?
GUILTY UNTIL PROVEN INNOCENT?
Even if no actual prejudice is caused to the trial, this is often of little comfort to parties caught in the cross-hairs of excessive public speculation on the outcome of the trial.
A court of law presumes a suspect to be innocent until proven guilty, but the court of public opinion often operates the opposite way.
The infringement into the privacy of the individual is also irreparable. Netizens nowadays are formidable in using their "CSI" skills (a term inspired by the popular US drama series CSI: Crime Scene Investigation) for online vigilantism. Before the courts have even pronounced on the guilt of the suspect, netizens have dug up and posted personal information of the suspect online to name and shame them, sometimes actively encouraging other netizens to join in the campaign. Often, innocent family members and friends are also dragged into the media spotlight.
THE ROLE OF SUB JUDICE
To prevent the injustices caused by trial by media, there exists in our common law (that is, judge-made law) rules prohibiting sub judice. Sub judice is considered a form of contempt of court as it threatens due process and the integrity of our justice system.
For the same reasons that trial by media should not be permitted, I believe that rules against sub judice continue to be essential to our society. In the ideal world, witnesses and other people involved in ongoing trials would be able to insulate themselves fully from public opinion such that public discussion can continue in parallel without causing any interference or prejudice to the ongoing case. But we must be realistic - witnesses and experts are all human and public opinion is bound to produce some effect on them. In an imperfect world, we can only seek to strike the best balance we can by ensuring that the public adheres to certain boundaries and decorum when discussing ongoing cases.
There is some uncertainty in our existing law as to the exact scope of sub judice, partly because of the dearth of local case law on this subject. This is an uncomfortable position because a person could run afoul of the law even without knowing it.
For this reason, I was heartened to read that the new Administration of Justice (Protection) Bill will crystallise and clarify the law of contempt of court, including rules against sub judice. It is certainly a step in the right direction.
The Bill defines sub judice as a publication that interferes with or prejudices an ongoing court case, or poses a real risk of doing so. This includes prejudging the outcome of a case in a manner which causes such interference or prejudice.
For example, if there is an ongoing capital trial, it is likely to be sub judice to discuss in a public forum whether the accused person is guilty of murder or not because the nature of the forum suggests there is a real risk that such discussions will prejudice the ongoing trial. I stress that the communication must be public. So it would not be sub judice to discuss whether the accused person is guilty of murder with your spouse or friends in private.
The Bill also provides definitive guidelines on when court proceedings are considered to have commenced and concluded so that it is clear to the public when discussion concerning a court case could amount to sub judice. The Bill expressly states that it is not sub judice if the person who made the comment did not know and had no reason to believe that there were ongoing court proceedings.
Perhaps more importantly, the Bill clears the air on what sort of public discussions do not amount to sub judice, as there is a lot of potential for misunderstanding in this area.
Under the Bill, public discussion of the policy underlying the law which an accused person is charged with is not sub judice because the policy is not the issue being determined in the ongoing case. So for example, death penalty activists are not prevented from campaigning for the abolition of the death penalty while a capital case is ongoing, so long as they do not declare that the accused person in the capital case should not be found guilty of murder.
The public is also free to criticise the judge's verdict and the sentence imposed by the judge after court proceedings have concluded. This is not sub judice. In fact, that is what law academics like myself do.
I believe that members of the public in Singapore are largely well-meaning when they comment on ongoing court cases, but their views, if made publicly, could nonetheless prejudice ongoing court cases. As such, our laws should continue to ensure that comments that can have the effect of prejudicing a trial remain extraneous, and do not affect the right of Singaporeans to receive a fair trial.
It is no exaggeration to say that a person could very well be fighting for his life and liberty. The law must ensure that an individual's right to receive a fair trial is preserved.
At the same time, the law does not prevent criticism of judicial decisions or the policies underlying various laws. This is a reasonable way to achieve an optimal balance between competing interests.
At the same time, let us also remember that trials are not entertainment for the masses, and any media outlet which trivialises them as such will seriously undermine our justice system.
The writer, a former dean of law at the National University of Singapore, is chairman of the university's Centre for Law and Business.
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