Administration of Justice (Protection) Bill

What's okay, what's not?

Mr Shanmugam

A coffee-shop discussion on the guilt of an accused in an ongoing trial is not against the law - unless one of those in the group is a potential witness, and there is an attempt to influence him. Law Minister K. Shanmugam (above) also assured the House yesterday, during the debate on a Bill codifying current contempt of court laws, that after a judgment is passed, people can comment as they wish on the trial - including the merits of the decisions and the conduct of the parties.

He also stressed that the public and media are free to debate the merits or demerits of any law, even while cases concerning such legislation are before a court. He pointed out how academics and media outlets already publish commentaries on a judge's decision even when the case is being appealed.

"These are not prohibited," he said. "Commenting on a judge's reasoning is unlikely to pose a real risk of prejudicing the appeal outcome."

Comments in public space

Nominated MP Kok Heng Leun, who submitted a public petition on the Bill signed by 249 Singaporeans, suggested that public debate over certain cases, such as that of full-time national serviceman Dominique Lee, who died after suffering an allergic reaction to smoke grenades, had in part led to the army tightening safety rules.

Public concern over the Benjamin Lim case, in which a 14-year- old, who was questioned by police in a case of molestation involving an 11-year-old, jumped out of a flat, also led to the Education Ministry and police reviewing procedures.

He also explained how in 2014, as part of a project dealing with end-of-life issues, he held public talks, one of which was on wills and the Lasting Power of Attorney.

"In the same period, the case of Yang Yin, the ex-tour guide accused of misappropriating $1.1 million from a wealthy Singaporean widow, made the news. Inevitably... there were comments made by members of the audience in a public space.

"Would their comments have been considered sub judice?"

And what about humorists such as Mr Brown and satirical site newnation, he added, given how they are quick to comment on issues of the day.

He asked: "Will our local funnymen be in contempt of court for their sense of humour?"

While saying that the authorities' decision to review procedures relating to Benjamin's case was made early and was not due to the public discussion, Mr Shanmugam said the Bill "does not intend to, does not prevent the public or civil society from discussing or advocating change of the law, but to just keep away from prejudicing or real risk of prejudicing the proceedings".

Given Mr Kok's description of his project, the minister said it was probably not in contempt.

As for the likes of Mr Brown, the minister highlighted how they have never been cited for contempt, and that the law is not changing.

Mr Kok also asked if someone is in contempt for writing on Facebook that "I hope the truth will be revealed" in relation to a case.

Mr Shanmugam replied: "Simply stating a hope that justice be done - how can that be contempt? I think, stop seeing shadows."

Coffee-shop discussion

Workers' Party chief Low Thia Khiang (Aljunied GRC), in stating his party's opposition to the Bill, argued that it was meant to deter members of the public from voicing their views "even if they are reasonable and legal". And as "the Bill includes private communication", even people discussing a trial at a coffee shop "can be liable".

But Mr Shanmugam was flabbergasted that the Bill could be construed that way. He explained that for comments to be sub judice, it has to present a real risk of prejudicing a trial and coffee-shop talk clearly falls far short.

"How does ordinary citizens sitting in a coffee shop having a beer and talking about a case pose a real risk of prejudicing any proceedings?" he asked.

"Does anyone believe that? The law today is the same as the law tomorrow. Have you seen anyone being charged for sitting in a coffee shop and talking about cases?"

He did, however, highlight an instance where coffee-shop talk can fall foul of contempt laws. "You catch hold of a witness, you bring him to the coffee shop and you threaten him, yes, it is publication and it is interference of proceedings." Otherwise, he told Mr Low, "let's get real".

A measured view

WP Non-Constituency MP Daniel Goh, clearly referring to the Benjamin Lim case, raised the example of a young person who has died "in an event following the acts of public officials".

"Would I, as the father in question, be risking sub judice contempt if I asked fair questions about the event?" he asked.

Mr Shanmugam said the Attorney-General will take a measured view.

"So if a father who has lost his son or daughter, he's grieving and he comes out and says all these things, I think the likelihood that that would amount to a serious or a real risk of interfering with any subsequent proceedings, most people can look at it and discount that for the purpose of the proceedings.

"Even if somebody were to take a view that that interferes with the court proceedings often in the context of the discussions, it is not likely that any A-G will think contempt is warranted."

Concerns of youth

Nominated MP Kuik Shiao-Yin expressed her worries on the possible impact the Bill may have on youth's active participation in socio-political discussions online.

She said that "even youth not predisposed to distrust the Government feel some low level of anxiety over the uncertainties in the Bill".

"Even after they read it... they are still uncertain about how easy it will be for them to commit sub judice.... they are uncertain about whether their one single 'prejudicial' WhatsApp message communicated to just one other friend could be construed as a mass publication of contempt."

Mr Shanmugam replied that "the law tomorrow is the same as the law yesterday on this area, has no change, and in fact they can discuss a great deal. I think for a start, you can tell them it doesn't really affect what they do or what they have been doing unless they want to start thinking in terms of going public and attacking witnesses and attacking judges and trying to get certain results from the court".

Ms Kuik later asked to clarify: "So can I confirm that a publication made as a part of a discussion in good faith on a matter of general public affairs is not contempt of court if there is no prejudice or interference or real risk of prejudice or interference?"

Mr Shanmugam replied: "That's correct."

Defining 'publications'

Mr Louis Ng (Nee Soon GRC) asked whether the definition of "publications" in the Bill also include academic articles, or a private Facebook post? "In this age of social media, where flurries of spontaneous conversation fill the Internet, the layperson may not fully understand where the line is drawn and what he or she cannot say," he said.

But Mr Shanmugam said he cannot see how putting up a Facebook post poses a real risk of prejudicing proceedings, "unless you're the Prime Minister with a million followers and everybody reads what you say. So you look at who is saying it, you look at the reach, you look at the possibility of influencing the court, you look at a whole host of factors and these are best left to the court. But in the broad types of cases you mentioned... just ask yourself, what's the real risk of prejudicing a proceeding?"

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A version of this article appeared in the print edition of The Straits Times on August 16, 2016, with the headline What's okay, what's not?. Subscribe