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Fine balance between competing rights

The right to a fair trial versus free speech. The sanctity of the judiciary versus someone who might want to "abuse the judiciary".

Law Minister K. Shanmugam raised these two sets of competing rights yesterday, when addressing concerns about a Bill that codifies Singapore's contempt of court laws.

It was an important recognition that the things we value as a society can, and will, come into conflict.

Yet, which of these rights should we prioritise?

Mr Shanmugam's assessment of how the scales should tip was arguably more convincing in the first instance - coming down on the side of a fair trial - than in the second, on the potential threat to public confidence in the judiciary.

The first balancing act was in the context of sub judice contempt, which deals with conduct that pre-judges an issue in ongoing court proceedings, and either prejudices or interferes with it, or poses a real risk of doing so.

Mr Shanmugam noted a suggestion to add the word "seriously" into the wording of the law, so that something counts as sub judice contempt only if it "seriously prejudices" court proceedings.

There might be sufficient reasons for the scales to tip in favour of tightening the law here. The NMPs who initially called for certain changes to the law ultimately voted in favour of it, withdrawing their proposed amendments.

But here, the right to a fair trial is weighed against free speech.

Or as the minister put it: "You balance the chap in court, who is facing the criminal charge; you balance his rights against somebody else's desire to comment on those proceedings.

"Not just comment, comment in a way that prejudices those proceedings."

Framed in those terms, it is hard to object to Mr Shanmugam's stance. Even the most ardent defender of free speech would probably baulk at arguing that it should trump the right to a fair trial.

Principles aside, the stakes are also different, as Mr Shanmugam highlighted when he made a contrast between the person who is commenting while "sitting in the security of his home" and the defendant facing a jail sentence.

Here, the balance must surely tip in favour of the right to a fair trial.

Mr Shanmugam's choice of weights, however, could be contested with regard to another form of contempt: scandalising the judiciary.This occurs when one imputes improper motives or impugns the integrity, propriety or impartiality of any court, and when doing so, "poses a risk that public confidence in the administration of justice will be undermined".

What is being weighed here? Mr Shanmugam said: "So you weigh, on one side, you have the sanctity of the judiciary, and the confidence reposed in the judiciary. On the other side, we have some people's desire to launch personal attacks against judges."

This seems a harsh assessment of anyone who might question the impartiality of the courts.

Mr Shanmugam repeatedly framed the issue as the sanctity of the judiciary versus someone who might want to "abuse the judiciary" or call judges "biased swine".

But that does not allow for the possibility that allegations of bias could be made in good faith.

Indeed, Nominated MP Mahdev Mohan asked what recourse someone has if he has "a good faith suspicion that a court proceeding is tainted by impropriety or bias."

This weighing exercise is especially significant because yesterday's Bill was proposing a change to existing case law on what constitutes scandalising the court.

Previous case law required there to be a "real risk" that public confidence will be undermined, rather than merely "a risk".

The change may sound like semantics. But it significantly lowers the burden of proof, and thus, has implications for how the law could apply.

Mr Mohan, who is an assistant professor of law at Singapore Management University (SMU), noted the Court of Appeal's 2011 judgment in the Alan Shadrake case, in which the "real risk" test must avoid finding contempt "where there is only a remote or fanciful possibility" that public confidence is undermined.

Workers' Party Non-Constituency MP Dennis Tan quoted SMU law professor Gary Chan's analysis of the same judgment, that "real risk" is more than just a "small likelihood".

What if, for instance, a blogger with barely any readers makes a post that alleges bias in court proceedings?

This might not pass the "real risk" test, since an unknown blogger is unlikely to dent public confidence.

But under the Bill's new formulation, if "remote" or "fanciful" possibilities suffice, then even such small fry could be hauled up for contempt of court.

And what is this weighed up against? Mr Shanmugam argued that reducing the test to mere "risk" rather than "real risk" will help Singapore be the pre-eminent legal centre in the region.

But Singapore is already doing well on that front, as Mr Shanmugam himself went on to elaborate.

In yesterday's debate, he repeatedly said that where the Bill makes no changes to existing law, it should not have new effects. By a similar logic, retaining the "real risk" test rather than lowering the bar should not jeopardise Singapore's position as a legal hub.

When weighing competing priorities, it is best to avoid being seen as stacking the deck in favour of one's preferred assessment.

After all, there might be sufficient reasons for the scales to tip in favour of tightening the law here. The NMPs who initially called for certain changes to the law ultimately voted in favour of it, withdrawing their proposed amendments.

Critics may still take issue with the law.

Regardless, if doubting members of the public are to be convinced that it is not aimed at restricting speech, the test will be in how it is implemented and enforced.

A version of this article appeared in the print edition of The Straits Times on August 16, 2016, with the headline 'Fine balance between competing rights'. Subscribe