The Protection of Administration (Justice) Bill

During a recent trip to China, I was thumbing through Jothie Rajah’s excellent book – Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore. By examining case studies ranging from the Vandalism Act to the Public Order Act, Rajah forcefully argues her thesis that “the Singapore state (has reconfigured) the profoundly liberal concept of ‘rule of law’ into an illiberal ‘rule by law’  through the state’s manipulation of legislation and public discourse.”

One need not look too hard for evidence that Rajah is right. The state has long used the law as a finessed instrument of political suppression, hounding opponents into bankruptcy or exile. I have previously written about the aftermath of the 1997 General Election, where J. B. Jeyaretnam was struck with 11 defamation suits and his fellow Cheng San GRC candidate Tang Liang Hoong was accused of being a Chinese chauvinist. In his later years, Jeyaretnam could be found hawking self-written books on the street, while Tang sought refuge in Australia. More recently, anti-CPF blogger Roy Ngerng found himself in the crosshairs of a fearsome defamation suit launched by the Prime Minister himself. For alleging that the political establishment was ‘corrupt’, Ngerng had to pay $150,000 in damages to PM Lee. No small sum, especially for an unemployed man with a humble background.

The unrelenting ferocity with which our leadership pursues its targets is chilling. In 2012, Alex Au was served with a lawyer’s letter which threatened legal action unless he removed a baseless accusation left on an article regarding the Yaw Shin Leong affair. An anonymous reader of Au’s blog had commented, “Indeed, I think the role of the mainstream press in this issue needs to be contrasted with the relative silence when it came to allegations swirling around K Shanmugam and Foo Mee Har at various points in the recent past … the mainstream media’s interest in the Yaw affair does not look like neutral journalism.” Not only did Minister Shanmugam decide to hold Au responsible for a comment left by a third party on his blog, one of the most powerful men in Singapore had felt the need to expunge a solitary comment probably read by no more than a few thousand people.

Singapore may be governed by the ‘rule of law’ in form, but the consistent use of legislation to advance illiberal conceptions of social good point towards us being ‘ruled by law’ in substance. In all of these case studies, the accused individuals were not innocent. They did, to varying degrees, unfairly defame or slander key leaders. But by choosing to consistently go after their attackers rather than let stray remarks slide, the government has shown a track record of enforcing implicit authoritarianism under the guise of law. At least those who obediently acquiesce to the demands laid out in the initial lawyer’s letter are let off with a slap on the wrist. Those who choose to rebel are hauled to court, subjected to the withering scrutiny of the best litigators in Singapore, and served with eye-watering damages or punishments.

It would hence be disingenuous to separate the Administration of Justice (Protection) Bill from this unpleasant context. No one doubts the Government’s intention to crystallise existing standards for contempt of court. In fact, the liberal in me would celebrate this outcome, as it would mean a partial departure from the traditionally murky ‘out-of-bounds’ markers which have characterised discourse in Singapore. But what the Bill’s critics are arguing is that this isn’t the Government’s only intention. That along with trying to protect the integrity and reputation of the judiciary, the establishment seeks to further socialise Singaporeans into silence. The state has long used the law to chisel the contours of permissible free speech in its favour – it would take a naive optimist to believe that this bill will not suffocate what little remains of free political dialogue online.

The most concerning portion of the bill is where it modifies the test for scandalising the judiciary from one of ‘real risk’ to one of mere ‘risk’. In responding to criticism from the Workers’ Party, Minister Shanmugam provided the riposte, “If one calls a Judge a ‘biased swine’, then let us not have arguments as to whether he only risked undermining the sanctity of the Judiciary, as opposed to whether he really risked undermining the sanctity of the Judiciary.” An intuitive response, but one which elegantly evades the key point being made: that the lower the bar for ‘contempt’ is set, the higher the propensity for individuals to self-censor – particularly those who already know they have incurred the ire of the administration in one way or another.

And in direct reply to MP Sylvia Lim’s remark that this is a law which “protect(s) the ruling elites at the expense of ordinary Singaporeans”, Minister Shanmugam tellingly replied, “I think people who know me know that I am quite careful about what I say … I know exactly what I’m saying. And if I am guilty of contempt then, this law is not going to help me. If I am not guilty of contempt, this law is completely irrelevant.” In a strict legalistic sense, it is true that something either constitutes contempt, or it does not. But laws have impacts which reverberate far beyond the cloistered chambers of the court. When bloggers like myself weigh in on controversial socio-political issues, how would be know whether we fall foul of the law? How much evidence, and what quality of said evidence, would inure me from the threat of legal action? Should I delete a comment made by an anonymous reader which claims that the judiciary has a track record of ruling in favour of the political leadership? Free speech in the public sphere and civil society does not neatly divide itself into dichotomous categories of ‘Correct Speech’ and ‘Punishable Speech’. It is a minefield of grey areas and linguistic technicalities, which present us with innumerable dilemmas whenever we decide to speak up. And it is when the long arm of the law looms large that people will choose to shut up and keep their heads down.

It has long been observed that the Government keeps the mainstream media within its orbit of influence. Singapore is infamous for placing 154th on the Press Freedom Index, a dubious distinction which ranks us lower than Erdogan’s pseudo-democratic Turkey and Mugabe’s kleptocratic Zimbabwe. When the state has been so deliberate in shackling the editorial liberties of the mainstream media, it stands to reason that it has long desired to bring its online equivalents to heel. But plainly autocratic measures such as China’s Great Firewall would be too politically costly and economically nonsensical. Instead, what we have seen is the persecution of individual bloggers (Alex Au, Roy Ngerng, Amos Yee) and independent media outlets (The Real  Singapore, The Independent Singapore, The Online Citizen) through a diverse bevy of legal challenges and lawsuits. I worry that the Administration of Justice (Protection) Bill is an extension of such behaviour.

When PM Lee rose to speak at the President’s Address earlier this year, the notion of an ‘open and contestable’ political system was a central theme. Yes, come and compete at the General Elections if you are intelligent and have good alternatives to bring Singapore forward. Come and contribute to discourse and debate if you are credentialed and can present impeccably-researched arguments. Come and legislate as an NMP if you have an elite position within your community. But if you’re an agitator, if you’re a loose cannon, if you shoot your mouth without thinking, then the system will forever remain closed and hostile to you. If you are uneducated and go on Facebook to slam the Ministry of Home Affairs for how it handled the Benjamin Lim case, it’s better if you keep quiet and let the judicial process run its course. If you are angry, are disenfranchised, if you feel like the system has failed you but don’t know precisely why, don’t you dare lash out.

Later you kena contempt.

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