A less restrictive bail condition would have sufficed to prevent Amos from posting on certain topics. The gag order is too broad and it is unnecessary. This is part 2 of 3 of a legal commentary on the bail conditions imposed on Amos Yee. In part 1 I show how the Court’s reasoning is flawed and how it possibly evinces a failure to presume Amos Yee’s innocence. In part 3 I will consider how the protection of Amos Yee’s interests should be balanced against the public interest.
Just as prosecutors must prove their case in any criminal trial, so also must they provide a reasonable justification for the bail conditions which they seek to impose on alleged criminals. The condition that restricts Amos Yee from posting any online content that can be viewed by the general public (henceforth referred to as “gag order”) is one such instance of a failure by the prosecution to provide a reasonable justification. Likewise, and with respect, the High Court erred in its decision to uphold the conditions of Amos’ bail in three ways—it failed to adequately grant Amos the presumption of innocence, it failed to ensure that the gag order is necessary and is the least restrictive way to protect the public interest, and it failed to ensure that the gag order is not excessive.
Presumption of innocence
At this point, it is only meaningful to consider the legal merits of the prosecution’s argument if we presume the innocence of Amos Yee. To reiterate my earlier point: If we do not presume Amos’ innocence, any consideration of what kind of bail condition to impose would be irrelevant since convicted criminals have no right to bail. Therefore, as a matter of intellectual clarity and as a matter of law, we must put aside any preconceived notions of Amos’ guilt or innocence, no matter how obviously guilty we may think him to be. We must treat him as someone whose fate rests in the hands of the judge who has yet to determine his guilt or innocence.
Since he is legally innocent, we ought to presume that Amos deserves all the rights and protections that are granted to any other citizen in Singapore. This means that if other citizens can blog about the trial, Amos should be able to as well. If other citizens can solicit funds online, Amos should be able to as well. In the same way that our freedoms may only be restricted if there is a legitimate reason, Amos’ freedoms may only be restricted if it is necessary for the protection of some legitimate public interest. This presumption is important because it prevents the state from arbitrarily using the judicial process to impose illegitimate restrictions on the rights of alleged criminals who may turn out to be innocent.
Question of scope
In general, the Court may impose bail conditions that seek to secure the accused person’s attendance in Court (in the interests of justice) or it may seek to ensure that potentially dangerous individuals do not recommit their alleged offences (in the interests of public safety).[i] But Courts rarely impose a blanket ban on all online public communications as a bail condition, and for good reason—they are rarely necessary. In previous instances, unnecessary restrictions have been overturned in Malaysia and in Canada.[ii]
A blanket restriction is a prior restraint, a prospective gag order that is not closely tailored to prevent only the kind of speech that is considered criminal. Rather, it seeks to impose a wide restriction on free speech because it is supposedly conceivable that a closely tailored restriction would not be sufficient, perhaps because the criminal type of speech may inadvertently be made in the course of making other noncriminal types of speech. Such prior restraints are considered “particularly severe restrictions on speech,”[iii] and the Court ought to consider whether they “infringe rights more than is reasonably necessary to achieve the legislative objective.”[iv] (I rely here on Canadian case law because of a lack of established precedents in Singapore and because Canada too has laws against hate speech, although they are not as restrictive as ours).
Question of necessity
The test of necessity is therefore an established one. The case of Dagenais v. Canadian Broadcasting Corp. is instructive in this respect. In it, the Canadian Supreme Court outlined the following rule:
A publication ban should only be ordered when:
Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.[v]
It is with the first criteria of necessity that we are primarily concerned with in this section. With respect, Justice Tay erred by failing to apply this test of necessity despite the defendant’s argument that the gag order was unnecessary. If he had, he ought to have concluded that the gag order does not prevent a real threat to the public interest—that is, preventing Amos from commenting on his trial or from soliciting for donations does not protect any legitimate public interest. If such actions do indeed threaten the public interest, no one else should be allowed to comment on his trial nor should anyone be allowed to solicit for donations when they are being prosecuted.
There is also no justification for such a prior restraint on the grounds that Amos may inadvertently recommit the same alleged offences if he is allowed to post on the internet. Amos is capable of distinguishing between his insinuations about Christianity, the posting of his allegedly obscene pictures, his alleged harassment of Lee Kuan Yew mourners, and his reporting of his own trial and his appeal for donations. In fact, his blog post soliciting for donations recommitted none of these allegedly criminal acts.[vi] Moreover, if the contrary were true, it is the onus of the prosecution to prove it, not the defendant’s to disprove it, given how the presumption of innocence should work in Amos Yee’s favour.
Finally, it would have sufficed for the prosecution to impose the bail condition that Amos Yee not post anything relating to Christianity or Lee Kuan Yew. There was no need to impose the blanket restriction. This is the most unreasonable aspect of the bail condition—the fact that a less restrictive, but equally effective, alternative existed which the prosecution did not utilise. It takes only a little more effort to see whether Amos Yee posts something in the offending areas than it does to see if he has posted something. The prosecution’s indiscriminate approach towards imposing the bail condition is so heavy-handed that it appears like an attempt to penalise the defendant rather than protect the public interest. I doubt the public prosecutors acted in good faith.
Up to this point, there are several grounds on which the High Court’s decision may be overturned—on the basis of Justice Tay’s flawed reasoning, on the basis of the lack of necessity and the existence of a less restrictive alternative, or on the basis of the prosecution’s failure to act in good faith.
[i] For instance, the Court may impose travel restrictions if the accused is deemed a flight risk as it considers it more important for the accused to stand trial than for him to be able to attend his cousin’s wedding in Australia and possibly seek asylum there. The Court may also consider an alleged murderer a threat to public safety and deny bail entirely. This does not necessarily constitute a denial of his innocence although it suggests some form of predetermination on the part of the judge of his guilt based solely on the seriousness of the allegations and on the face value of the evidence. In Amos Yee’s case, Justice Tay has neither reasoned that the allegations against Amos Yee are severe enough as to warrant strict restrictions, nor has he reasoned that the evidence is so compelling as to warrant his decision to uphold the bail conditions. Such reasoning necessarily incurs the risk of prejudging the defendant’s case and therefore ought to be exercised cautiously. As the Court of Appeal wrote in its decision in Public Prosecutor v Sollihin bin Anhar  SGCA 16, “it is essential that a court should avoid making such findings of fact in interlocutory applications because any such finding, if made, could potentially have a bearing on the ultimate questions that might have to be decided at trial. As seen from this case itself, it could certainly prejudice the accused in the present proceedings if the court were to make a finding of fact, based on either standard of proof, that he had breached the Bail Condition by tampering with witnesses, especially given that the accused has also been charged for the very offence of tampering with witnesses which has not yet been tried. In our judgment, given the nature of bail proceedings, which are in a sense, sui generis, it would be inappropriate to apply any specific standard of proof of the sort that a court usually takes reference from in the context of a trial where it is called upon to make determinative findings of fact.” However, failing to specify a standard of proof has its own risks too—in particular, the arbitrary exercise of judicial discretion during the bail proceedings.
[ii] In Canada, Arthur Topham was accused of wilfully promoting hatred against Jewish people through the information he posted on the internet. The prosecution wanted the court to impose a bail condition on him that would prohibit him from posting any information on the internet. No exception was to be made even if the posting was of no relevance to the case and was not inflammatory in nature. It was to be a blanket prohibition on any posting that “can be read by members of the general public”. The judge dismissed the prosecution’s demand because they were excessive and did more than was necessary to protect the public. Or in other words, the conditions were a disproportionate and unnecessary violation of the defendant’s rights. (See Memorandum of Argument by Arthur Topham). In Malaysia, the High Court lifted a gag order on 15 protesters because it was not in line with the bail’s purpose. (See Court lifts gag order on 15 charged with Lynas rioting)
[iii] Little Sisters Book and Art Emporium v. Canada. (Minister of Justice), 2000 SCC 69 at para 232, in Merorandum of Argument by Arthur Topham.
[iv] Her Majesty the Queen v. Glad Day Bookshops Inc. et al.,  O.J. No. 1766 at para 116, in Merorandum of Argument by Arthur Topham.
[v] Dagenais v. Canadian Broadcasting Corp.,  S.C.J. No. 104 at para 73, in Merorandum of Argument by Arthur Topham.
[vi] Amos did embed the video which is the subject of the court case, however so have many others on the internet. The purpose here is clearly to point viewers to the evidence which is being used in an ongoing trial not to repeat the claims made in the video. It would take a stretch of the imagination to claim Amos wanted to continue offending Christians and harassing Lee Kuan Yew mourners by providing these links in his blog post.