Whether a Facebook post has scandalised the courts depends on how an average person interpreted the post, and not what the author intended to say, a senior state counsel argued yesterday at an open hearing in the proceedings against civil activist Jolovan Wham and opposition politician John Tan.
Mr Wham is alleged to have made a contemptuous post in April stating that Singapore's courts are not as independent as Malaysia's on cases with political implications. The remarks accompanied a link to an online article: "Malaysiakini mounts constitutional challenge against Anti-Fake News Act."
The Attorney-General's Chambers (AGC) then initiated contempt of court action against him.
Later, Singapore Democratic Party politician John Tan Liang Joo stated on Facebook that the AGC's actions confirmed the truth of Mr Wham's comment. Mr Tan's case was also heard in the Supreme Court yesterday.
Mr Wham and Mr Tan have not taken down their Facebook posts.
The cases against the duo are the first to be brought under new contempt laws that took effect last October under the Administration of Justice (Protection) Act 2016.
There was "no conceivable reason" for Mr Wham to single out the independence of Singapore's judiciary, said AGC's Senior State Counsel Francis Ng, who added that the remarks implied to an average person that if the constitutional challenge in Malaysia were to happen in Singapore, it would fail due to a lack of judicial independence here.
Mr Wham had hence "impugned the impartiality and integrity of Singapore's judicial system", he said.
Mr Wham's main defence yesterday - argued by his lawyers Eugene Thuraisingam and Choo Zheng Xi - was that he never intended to imply that the Singapore courts were not independent. He was merely comparing the two judicial systems, which constitutes fair critique, they added.
Mr Thuraisingam said Mr Wham had seen the World Economic Forum's rankings on judicial independence and thus believed that it was legitimate to compare the two countries' legal systems.
In addition, Mr Choo argued that Mr Wham is a layperson whose profile is of "a different tenor and complexion" than those previously found in contempt of court, such as journalist Alan Shadrake and sociopolitical blogger Alex Au.
On this point, Justice Woo Bih Li asked if people would take Mr Wham more seriously since he regards himself as an activist. Mr Choo said in response that the post garnered only 29 "likes", or reactions, from other users as of April.
Mr Wham, a social worker at Community Action Network and former executive director of Home, a local non-government organisation, has over 7,000 followers on the social networking site.
The defence lawyers also argued that the Administration of Justice (Protection) Act violates the constitutional right to freedom of speech as it effectively criminalises speech that only has a small likelihood of undermining confidence in the administration of justice, they said in their submissions.
In response, Mr Ng said Parliament is empowered to enact laws restricting freedom of speech to protect against contempt of court. It is up to Parliament, not the courts, to decide on where to strike the appropriate balance, he said.
Mr Ng also pointed out that the World Economic Forum report that Mr Thuraisingam referred to ranks Singapore's judiciary 22 places above Malaysia's.
In his representations on behalf of Mr Tan, Mr Thuraisingam said his statement was not directed at the courts but at AGC.
Both cases have been adjourned to a later date for judgment.