This post was originally published as a press release on 10 August 2016.

AWARE statement on the Administration of Justice (Protection) Bill

AWARE would like to express our support of the general intention and principle behind the Administration of Justice (Protection) Bill.  However, we have some concerns about the Bill’s potential negative impact on civil society and free speech.

Broadly, we support the aim of the Bill, which is “to state and consolidate the law of contempt of court”.  This law is intended to maintain public confidence in the legal and judicial system.  Setting it out on a statutory footing provides greater certainty for all members of society and is therefore to be welcomed.  In particular, we are pleased to see provisions setting out consequences for breach or disobedience of court orders, as this will strengthen the protections against gender-based violence offered by the Protection from Harassment Act and the Women’s Charter.

However, we have concerns about the Bill’s implications for free expression.  Singapore needs robust public discussion to cultivate mutual understanding and forge consensus.  AWARE’s work for gender equality often requires us to publicly engage social and legal issues thrown up by court proceedings.  In our view, additional restraints on expression should be imposed only where absolutely necessary, and with strict proportionality.

In addition, there is great public confusion about the scope and nature of contempt of court prohibitions.  We urge the government to reassure the public that it welcomes critical engagement with legal proceedings and to clarify the permissible forms of speech, so that the Bill does not inadvertently encourage groups or individuals to self-censor and deprive society of the full range of perspectives that can enrich our public discourse.

In particular, we would welcome clarification as to the scope of “fair criticism” which is not prohibited by the offence of “scandalising the courts”.  AWARE has a strong interest in making and encouraging commentary on family and criminal law matters.  As a group which is primarily concerned about discrimination, we may even need to raise questions about potential systematic or unconscious biases in the legal system.

For instance, we publicly criticised the outcome and legal reasoning of a case where a defendant was acquitted on charges of sexual penetration of a minor, due to the judge’s decision that the crime could only be committed by a person with a penis.  Some members of the public speculated that prejudicial ideas about gender played a role in this outcome.  Would the Bill prohibit these important discussions, especially when the “real risk” test for undermining public confidence has been lowered to a mere “risk” test?

Similarly, to raise awareness about gender equality, we may comment on the social implications of ongoing proceedings.  For instance, news reports frequently furnish illustrations of poorly understood aspects of sexual assault, e.g. how supportive family figures make a difference to victims, or how authority figures can abuse their power over minors.  Discussing concrete examples while they are live in the public mind can improve public understanding of sexual assault, and thus create a more supportive environment for victims, in a way that more theoretical or historical discussion cannot.  Sometimes we may even have to point to deficiencies in the law.  It is hard to imagine that appropriately trained judges can be unduly influenced by AWARE raising such matters.  Yet it is unclear if this kind of public advocacy would be caught by the Bill.

The uncertainty that well-intentioned commenters will face is exacerbated by the fact that it provides no defence for good faith comment, but lays out severe penalties – a maximum fine of $100,000, three years in prison, or both. By contrast, the Sedition Act provides for a $5,000 fine, three years in prison or both.  The Bill thus seems especially  severe.

In summary, while we strongly welcome and support the principles behind the Bill, we are concerned that it raises many complex questions that will affect the ability of ordinary people to engage in public conversation on matters of general interest.  As highlighted in the Explanatory Statement at the end, it does not merely codify but also changes the law.  For this reason, we hope that the government will do more to explain the parameters of permissible speech.  In our view, a wider public consultation should have taken place before the Bill was introduced, and should still be instituted before it is passed.  We urge Members of Parliament to debate the Bill robustly at the second reading.