An Archaic and Repressive Law Corruptly Misused
Hot on the heels of his vexatious libel suit against innocuous blogger Leong Sze Hian, Lee Hsien Loong is now using the AG to dust off an archaic law and use it against another relatively insignificant opponent.
In the last year the Government has brought in new laws such as the Protection from Online Manipulation and Harassment (POFMA) which has been deployed multiple times by Seatwarmer-in-Waiting Heng Swee Keat to try and intimidate critics into not challenging the Government’s version of the truth, particularly where the Government refuses to release statistics that might dispute that version. It was even corruptly deployed to prevent speculation about the PM’s wife’s salary, after a Taiwanese newsite alleged that she was paid $100 million a year, despite Lawrence Wong having said in Parliament that as Temasek was a private company, what it paid Ho Ching was a private matter.
However, when it comes to repressive laws to use against your opponents , it is often a case that the “oldies” are the “goodies”, as in the use of colonial sedition laws to shut down independent media in the case of The Real Singapore, where a husband and wife were jailed for having dared to try to make money out of being a Government critic. Lee Hsien Loong’s guiding principle, as it was his dad’s, is not only that you should not be able to earn a living if you dare to be even mildly critical of him, but that if possible you should be driven into bankruptcy, as was done with my late father, JBJ.
The latest example of the use of archaic laws is shown in the prosecution for criminal defamation of Terry Xu from The Online Citizen (TOC) and Daniel De Costa whose trial for criminal defamation started this week. Xu published an article purporting to come from another person whose email was used allegedly without permission, a distasteful expedient De Costa was presumably driven to by fear of prosecution under Singapore’s repressive laws. The phrase from the article in question is “we have seen multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers ever since the demise of founding father Lee Kuan Yew”.
The AG is arguing that “corruption at the highest levels” refers to the Cabinet. This is not at all clear to me and surely not to any reasonable observer, the hypothetical “man on the Clapham omnibus” or in Singapore’s case, the person on the North-South line. We have seen several high profile corruption cases involving senior civil servants and also the prosecution by the US of several employees of Temasek-controlled companies (Keppel Corp and Sembawang Marine) for offences under the Foreign Corrupt Practices Act. Also no one is specifically mentioned in the phrase and therefore, following the precedent established by Rex v Orme and Nutt, “where a writing … inveighs against mankind in general, or against a particular order of men, as for instance, men of the gown, this is no libel, but it must descend to particulars and individuals to make it libel.”[
In any case Singapore’s criminal defamation laws, like its anti-male homosexaulity law (Section 377A) and its provision of corporal punishment for men, derive from the Indian Penal Code of 1860, written by the colonizers, and long since abolished or reformed both in the UK and most of its former colonies. They have no place in a democracy. The organisation Article 19 ( after the eponymous provision in the Universal Declaration of Human Rights which states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” ) says:
International bodies such as the UN and the OSCE have recognised the threat posed by criminal defamation laws and have recommended that they should be abolished. For example, the OSCE Parliamentary Assembly has called for the abolition of all laws that provide criminal penalties for the defamation of public figures or which penalise defamation of the state or state organs. The UN, OSCE and OAS Special Mandates have gone even further, stating: “Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”
Article 19 also quotes a ruling from the European Court of Human Rights in the case of Castell v Spain:
[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.
This is a similar position to the ruling by the English courts in the case of Derbyshire County Council v Times Newspapers that government bodies do not have the right to sue for defamation, though individual officers can sue. The Cabinet is of course the government, since it consists of the highest ranking ministers headed by the Prime Minister. It should therefore not be able to sue for defamation as a civil tort. Criminal defamation is in any case not an offence in the UK and in the overwhelming majority of democratic countries. Even where it exists Article 19 state that the following safeguards should apply:
- No-one should be convicted for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt, the presence of all the elements of the offence, as set out below;
- The offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed;
- Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official;
- Prison sentences, suspended prison sentences, suspension of the right to express oneself through any particular form of media, or to practise journalism or any other profession, excessive fines and other harsh criminal penalties should never be available as a sanction for breach of defamation laws, no matter how egregious or blatant the defamatory statement.
This malicious prosecution violates points 3 and 4 above. The coercive machinery of the state is being used to silence critics of the Government. Singapore’s penal code provides for up to two years imprisonment, or a fine, or both for anyone convicted of the criminal offence of defamation.
Far from dispelling allegations of corruption this use of the AG for private ends by the PM and his Cabinet is inherently corrupt. The PM is using the archaic and repressive law of criminal defamation and new inventions like POFMA to silence critics. If by doing so he is able to continue in office drawing at least $2.2 million p.a. while his wife, whom he appointed as head of Temasek, continues to be paid a secret salary that the Government has failed to deny could be as much as $100 million p.a., then he has abused state power for his own personal profit. I remember my dear father JBJ was fond of this quotation from John Locke, the English philosopher, “When Political Power Is Used for Private Gain, Tyranny Prevails”. This remains even more true today than it did when he was alive.