By: Howard Lee

Few would have expected the amended Administration of Justice (Protection) Bill – some might even call it the Contempt of Court Bill on Steroids – to be passed with anything short of the hasty efficiency of our People’s Action Party government. In fact, anyone who thought that there would be any reconsideration, re-evaluation or further amendment probably had their hopes in the wrong places.

Nevertheless, the spirited debate in Parliament gave heart to those who wanted to see a more robust Parliament, even if the intensity and quality was only coming from one side of the House. For more than six hours, we saw Members of Parliament from the Workers’ Party and Nominated MPs rise to probe, challenge, tear apart and basically made a complete mockery of the Bill.

Credit, too, to the Don’t Kena Contempt petitioners, who forged much of the arguments we saw took place in Parliament. They have demonstrated what a few committed people can do, for the benefit of the nation.

To me, some of the most notable speeches came from Sylvia Lim, Pritam Singh, Dennis Tan and Leon Perera from the Workers’ Party, and Nominated MPs Kok Heng Leun, Kuik Shiao-Yin and Mahdev Mohan, and it was a pity that they were not adequately covered in mainstream media. It is also debatable whether their queries and dissatisfaction with the Bill have been adequately answered by Law Minister K Shanmugum, but whatever clarifications he has offered in Parliament would be, as Asst Prof Mahdev said, recorded in Hansard to inform court decisions.

It is still useful, however, to reflect on the debate and point out specific areas where the new law should make us concerned.

What should stay is what makes sense

The enforcement of court orders was arguably the only good bit in the Bill, and many MPs have given it credit on this count. We need it. It is a pity that currently, there is reason to believe that they are not effectively enforced either.

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The real question to ask, however, is whether the revised laws of contempt would help ensure court orders are adhered to. For sure, the penalties have increased, and the Attorney-General’s Chambers (AGC) has been empowered to call for police action as if it were an arrestable offence. But as Sylvia Lim pointed out, given the limited police resources we already have, how much more effective would this be? How would it cover, for instance, former spouses who did not pay alimonies but have fled overseas?

Essentially, we have to ask if the current laws for enforcing court orders are not already sufficient to cover this, without making further amendments. Conversely, as Daniel Yap from The Middle Ground have aptly pointed out, mixing this critical part of the Bill with the non-critical part of sub-judice feels suspiciously like a deliberate strategy to slip in something bad on the pretext of something good. That is something we should not tolerate in our law-making process.

Unbridled power handed to government

One of the key criticisms levelled at the Bill was that it gave the government unfettered access to pretty much say what it wants on an on-going court case without consequence of reprimand. Kuik Shiao-Yin had noted that even some of the youths she has approached found this to be fundamentally unjust: Why can the government say their piece, but no one else can?

At best, such preferential treatment for the government only serves to amplifies the disconnect of our PAP government – the belief that they are always better, smarter and more sensible than citizens. At worst, pure arrogance and power-lust.

The Law Minister would argue that the government is entitled to present the facts of the case, but this is really treading on eggs. Supposed there is a case of procurement corruption involving the Ministry of Law. If the Law Minister announces to media that the tender was called through GeBiz, all procedures were followed, and all documents were appropriately signed off – all factual, mind – would it unfairly influence the judges?

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Another example: Supposed there is an investigation involving police abuse of power in apprehending an under aged suspect. If the Minister of Home affairs announces to media that all current procedures were followed, the police were acting on all evidence available to them, and the correct approvals were all given – all factual, mind – would it unfairly influence the judges?

From “real risk” to real risk

Ironically, this is where the other key contention of the Bill – the move from the “real risk test” to a “risk test” for cases of sub-judice – kicks in. If there is even a remove risk that whatever the government says might influence a case, why even take the risk? Why, then, allow the government to say anything it wants?

However, the Law Minister’s argument for the move to a risk test – which means anything that could potentially influence the views of judges can be considered sub-judice – has focused purely on the “misdeeds” of anguished citizens or media (particularly the online variant, as can be inferred from his Parliamentary speech) seeking answers and justice. Why so?

The move to a risk test has significantly lowered the bar for what constitutes sub-judice, something noted by Slyvia Lim, Mahdev Mohan, Dennis Tan and others. This has indeed significantly changed the very nature of sub-judice laws, as anything that is slightly against a judgement can be deemed risky.

The power to make the call

To this end, many MPs have noted the disproportionate power given the AGC in deciding sub-judice. Pritam Singh has noted that the AGC retains full discretion to decide who has run afoul of the law based on prima farcie proof – in other words, if the AGC for whatever reason so decides that any article or statement about an impending court case, it is left to the author or speaker to defend himself and prove his innocence. The burden of proof rests on him, not the much better resourced AGC.

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Various WP MPs have also pointed out that the power given to AGC to pre-judge a case of sub-judice effectively, and ironically, renders the courts powerless. So long as the AGC can show some reason to justify a case, the courts have to accept it as contempt (against itself). This law has become little more than a weapon to silence disagreement with the judiciary before it even happens. Dennis Tan has even saw fit to called this excessive power “pure intimidation”.

The effects of the Bill have serious implications for all of us. Sub-judice is no longer just the concern of the few who want to “exercise their freedom of speech”, “say anything they want” or “are intent on discrediting the judiciary”, as some would have us believe.

The phrasing of the revised Administration of Justice Bill makes it deliberately easy for anyone who has any reason to venture online to fall foul of sub-judice laws; and if anything, that seems to be the one true purpose of the Bill. It is no longer about what we want to say, but about the creation of an entire environment that discourages critique of the judiciary. We are encouraged – perhaps even coerced – to watch our words, no matter how safe we might think they are, on any platform that can ever be remotely public.

Failure to do so runs the risk of a scandalising our judiciary, so hunkering down becomes the best policy. This chilling effect on free expression has already begun, and can only get worse in time to come.

The worst part is not that it can happen to us, but that we have put ourselves at the mercy of a supposedly benevolent and fair government, without any assurance that it will always be so. If power corrupts, then this unfettered power can only corrupt uninhibitedly.