Editorial
The Alex Au v AGC debate raises some pertinent points about contempt of court laws.
Abstruse as it sounds, the ongoing debate between activist and writer Alex Au (of the Yawning Bread blog) and the Attorney-General’s Chambers (AGC) over the latter’s use of “contempt of court” charges is an important one that raises key issues about scrutiny of the judicial system and the parameters for political debate in Singapore.
It began with a blog post in June 2012 in which Mr Au noted that there had been questions circulating about the AGC’s treatment earlier in the month of a prominent doctor found guilty of lying to the police about a traffic incident the doctor was involved in. Criticising what he thought were the AGC’s poor explanations over the matter, Mr Au argued that the “reason netizens took interest…was because it resonated with a widespread feeling that there is one law for the rich and powerful and another for ordinary blokes” and that the AGC was unlikely to “disabuse anyone of his belief that…the police, prosecutors and judges are indulgent towards the well-connected.”
The AGC objected to this on the basis that it “scandalises our Courts” and warned that it would proceed with contempt of court charges if the offending post was not taken down. Several days after receiving the AGC’s letter, Mr Au removed the post and apologised.
But that did not prove to be the end of the matter. Mr Au subsequently posted an article in July criticising what he thought was the authorities’ liberal use of contempt of court charges to stifle debate about possible defects in the judicial system, arguing that “more leeway” should be given to comment in matters about public institutions. This triggered a typically belligerent reply from the AGC insisting that there had been “no curtailment of free speech” but that Mr Au had “deliberately misrepresented the facts” in his original post.
Mr Au responded again, arguing that the AGC was taking too stringent an approach to criticism: revelations about abuses are usually built on accusations that might not at first be fully supportable by facts, but which may lead to further inquiries that eventually uncover wrongdoings. Furthermore, he pointed out that the AGC’s position was that only the judiciary should be allowed to police itself, which may not be prudent as public scrutiny has to be an important element in probing things that the people within the institutions may not be able – or willing – to own up to.
The exchange has raised some important questions, the first of which is over the boundaries for debate. In recent years the AGC has adopted the mantra (which it invoked in its letter to Mr Au) that any “accusation of bias” in the judiciary would “diminish it in the eyes of the citizen, lower it and ultimately damage the nation”. This, as Mr Au has rightly pointed out, is virtually a zero tolerance approach towards criticism of the judiciary.
Yet surely the legitimacy of a public institution is best served by winning the argument against its critics rather than by proactively stifling them. Taking the latter course will only foster resentment while doing little to correct prejudices – a cursory look at the online reactions to the AGC’s treatment of Mr Au would provide some evidence of that. It should be pointed out that the courts in countries such as the US and UK are frequently the objects of political haranguing but are among the most well-regarded public institutions in those countries. If the authorities are as confident about the integrity of Singapore’s judiciary as they claim, there is little to suggest that the same would not happen in Singapore if debate about the courts is given a wider berth.
The second key issue is over the AGC’s use of contempt of court charges against critics of the judiciary. Its invocation of the charge over Mr Au’s original article is somewhat curious: while it claimed that it was doing so to protect the reputation of the courts because of judges “not being to respond”, it is instructive that Mr Au mentioned the judiciary exactly once in his piece (in his sentence that “the police, prosecutors and judges are indulgent…” quoted in the second paragraph above; the other mentions of “courts” were when he quoted statements made by other people). The bulk of Mr Au’s article was largely devoted to questioning the AGC’s conduct, in particular its decisions (in cases both past and present) on what to charge defendants with, rather than criticising judicial decisions on the cases. In this regard, it does not seem clear whose reputation the AGC was out to protect.
The problem is that contempt of court laws, as they currently stand in the statutes, seem like an unusually blunt instrument. The authorities have prosecuted in this manner with varying degrees of severity: British writer Alan Shadrake was imprisoned for several weeks in 2010 for alleging judicial bias in death row cases; the Wall Street Journal suffered financial penalties in 2008 for publishing letters from opposition leader that incidentally criticised the judiciary; in a slight variation, the AGC brought charges of “insulting” a judge against ex-Singaporean Gopalan Nair in 2008, which resulted in a jail term of several months.
Such an approach seems to be bounded by few limits, which is likely to have an unhealthily negative effect not just on public debate but possibly on the reputation of Singapore’s judicial system as well. It may be prudent to put some restrictions on contempt of court laws: for instance, the UK’s Contempt of Court Act in 1981 established a benchmark for “strict liability”, allowing contempt charges against publications that have created “a substantial risk” that the course of justice would be “seriously impeded or prejudiced”. The Act also applies only to “active” or ongoing cases; past cases, such as the one raised by Mr Au in June 2012, would not be applicable.
Furthermore, the precedent established by the UK courts in cases since the Act was passed in the 1980s has given much latitude to publications made as part of a discussion in “good faith” of matters of general public interest. A similar reform in Singapore is sorely needed if Singaporeans are to have a proper debate on one of the most important public institutions in the country. Guaranteeing that, in turn, can only be salubrious for the reputation and legitimacy of the courts.
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