Contempt of court: Apex court dismisses appeals by opposition politician John Tan, activist Jolovan Wham

SINGAPORE: The Court of Appeal on Monday (Mar 16) dismissed appeals by social activist Jolovan Wham and opposition politician John Tan against their convictions and sentences for contempt of court.

This means that Tan, who was re-elected into the Singapore Democratic Party's (SDP) Central Executive Committee last October, cannot contest the next General Election.

Anyone who is fined at least S$2,000 or jailed a year or more for an offence would be disqualified from running for election as a member of parliament for five years, under Singapore's Constitution.

Wham and Tan were each fined S$5,000 in April last year over a Facebook post that Wham penned and Tan referred to in another post on his own page.

Wham had said in his public post in April 2018 that Malaysia's judges "are more independent than Singapore's for cases with political implications".

After the Attorney-General's Chambers (AGC) commenced contempt proceedings against Wham, Tan published a post saying that "by charging Jolovan for scandalising the judiciary, the AGC only confirms what he said was true".

The two men were found guilty of contempt by scandalising the court and fined, but appealed against the conviction and sentence, as well as against the order to pay the AG costs for court proceedings.

Explaining the decision by a five-judge court consisting Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong, CJ Menon said there are two elements of scandalising contempt.

First, that the person intentionally made a publication that impugned the integrity, propriety or impartiality of any court, and second, that this posed a risk that public confidence in the administration of justice would be undermined. It has to be proven that this publication did not amount to fair criticism.

NOT FAIR CRITICISM

The court found that the defence of fair criticism did not apply for both men, as neither of their posts had an objective or rational basis.

Wham's post "objectively and plainly entails a direct attack on the independence and integrity of Singapore's judiciary", the court found.

"Wham plainly intended to make that statement and to have it taken seriously. He stood by it, repeated it on several occasions and declined to retract or apologise for it," said CJ Menon.

Defence lawyer Eugene Thuraisingam, who represented both men, argued that Tan's sentence was manifestly excessive.

He said that Tan had taken down his post after the sentencing, and that anyone reading his post would form the view that he was merely "lashing out in anger".

They would opine that Tan had been upset with the AG for taking Wham to court, and not that Tan had been acting with the primary intention of undermining the judiciary.

Mr Thuraisingam also pointed out that a fine of S$2,000 or more would disqualify Tan from contesting the upcoming General Election.

He argued that Tan was willing to accept a harsher sentence of several days' jail rather than bear a fine, since the jail term was under a year and would not disqualify him from taking part in elections.

The report by the Electoral Boundaries Review Committee was released on Mar 13, a sign that elections could be called soon. 

Tan had stood as a candidate in Marsiling-Yew Tee GRC with an SDP team in the 2015 General Election.

ON DISQUALIFICATION FOR ELECTIONS

The court rejected the arguments against the fine and found that there were no precedent cases where a sentence was changed from a fine to jail after taking into account the offender's desire to run for electoral office.

CJ Menon said that Tan's potential disqualification from standing in the next General Election was not a relevant factor in sentencing.

The court found that the judiciary and the administration of justice would be brought into disrepute "if we were to impose sentences with an eye towards the political process".

"After all, a court that chooses to impose an inappropriate sentence in order to avoid disqualifying a candidate from standing for election as a Member of Parliament could just as easily do the same thing to achieve the opposite end," said the chief justice. "In truth, both outcomes are equally abhorrent and impermissible."

The court also dismissed an appeal by the AG for an order to be given to both men for a mandated apology, but granted its appeal for an injunction to be given to Wham to cease publication, as his offending post was still up. Tan had removed his post.

The court ordered both men and the AG to file submissions on costs.

In response to CNA's queries, the SDP said that it was "disappointed" with the outcome of the appeal. 

Tan will continue to play a crucial role in the party's electoral campaign, said Surayah Akbar, an SDP spokesperson.

"He remains an integral part of SDP family and his commitment and passion to bring democracy to our nation remains undiminished," Ms Akbar said.