TODAY published an excellent article on Sunday which sheds light on the recent decision by the Media Development Authority (MDA) to shut down The Real Singapore (TRS). MDA argues that there is no sub judice involved because the court case is irrelevant to its decision. It says that the court case is about sedition, whereas the MDA’s action is prompted by TRS’s broadcasting of material that violated the Internet Code of Practice. But this is really potato potato, tomato tomato—a semantic quibble. The substance of both the court case and MDA’s action are the same.
TRS’s editors are being prosecuted under the Sedition Act, not the Internet Code of Practice—that much is true. But Singapore, like most other commonwealth countries, has laws and regulations that overlap each other. The Sedition Act is one of them. For instance, it overlaps with other laws governing public order. So if you attempt to incite a rebellion against the state, you can either be charged under the Sedition Act or you can be charged under the Penal Code for conspiring to commit assault (or even for conspiring to damage property).
The Internet Code of Practice likewise regulates many of the same actions that the Sedition Act criminalises—namely any action that could threaten public order or national harmony (don’t we just love this word, “national harmony”). TRS’s editors are not being prosecuted for attempting to incite an uprising against the state (the traditional definition of sedition); they are being prosecuted under the expanded definition of sedition.
According to the charge sheet, the duo are being prosecuted for publishing articles that have the “tendency to promote feelings of ill-will and hostility between different groups of people in Singapore”. With no small irony, the MDA argues that TRS published material that is “objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited by applicable Singapore laws.” The two are essentially the same in substance.
Both the Attorney General’s Chambers and the MDA accuse TRS of threatening public order (and national harmony bla bla bla… seriously, what’s with the word salad) in Singapore.
Both believe that TRS does so by posting articles that inflame race relations.
And both see the falsehood in the articles as a damning factor. For the AGC, the fact that it is false means TRS cannot assert truth as a defence to the charge of sedition (mind you, my limited legal opinion is that truth is not a valid defence against Singapore’s near-omnipotent sedition laws; so though truth cannot be asserted as a defence as a matter of fact, it also cannot be as a matter of law; but my initial argument stands since it’s clear from the selection of charges that the AGC is only prosecuting TRS for articles which involve falsehood). For the MDA, TRS’ falsehood is problematic because it comes at the expense of Singapore’s “public interest and national harmony” (vague much?). So for both, falsehood is a damning matter, and the MDA is not unique in that it is targeting the TRS mainly for its falsehood.
Besides, if falsehood is the criteria for taking down a website, I cannot imagine why the MDA would allow STOMP to continue broadcasting material posted by users that is sometimes blatantly false. And for that matter, why weren’t sanctions issued against the Straits Times and TODAY when they falsely attributed words to Low Thia Khiang that he hadn’t said? Surely those words, if seized upon by fanatic Lee Kuan Yew mourners, could have led to some kind of threat to public order and national security? (By now it should be clear to the reader that there is really no need whatsoever to prove that there is a conceivable threat; there need only be the mere possibility, no matter how slight; this, again in my limited legal opinion and corroborated by the fine minds of legal experts, is the state of our laws on Sedition etc.)
So what are we left with to explain the MDA’s decision? On the face of things, it is acting lawfully with the authority vested in it by our Parliament, in its infinite wisdom. The MDA really does have the power to shut down websites. This is a rude shock to many of us—I know. But once upon a time we did really say yes (if the occasional general elections count) to giving the MDA this immense regulatory power.
Yet, MDA’s action may be unlawful if we consider how it assumes what the AGC has yet to prove. That is, the AGC is arguing that TRS threatens public order and the court has yet to decide on whether that is true. Now MDA is saying that it is shutting TRS down because it threatens public order. The whole question of whether TRS really does threaten public order is precisely the issue before the courts—an issue that the MDA ought not to presume as settled in the Government’s favour, no matter how much it may enjoy the fireworks.
Or in other words, MDA’s action is only lawful if TRS does really threaten public order. If it does not, its actions are not lawful. In asserting that TRS does really threaten public order, and acting accordingly, MDA demonstrates blatant disregard for the integrity of ongoing court proceedings by presuming that the court will render a verdict that says: TRS does really threaten public order. But the court has yet to render its verdict. Such an assertion by MDA therefore places the court in an awkward position. If it decides in favour of TRS, it contradicts the MDA. If it decides against TRS, it risks being accused of cowing to pressure from the executive branch of Government. More than that, the MDA’s action in effect suggests that the only right decision for the court is a decision against TRS. But surely the “right” decision is for the court to choose, not MDA.
Contrary to the unsound opinions of various parliamentarians, a mere comment on the validity of the prosecution’s case does not constitute sub judice. We have judges not juries, and they are trained to ignore non-legal opinions that have no merit. The MDA’s actions go beyond a mere comment though, for it involves a decidedly decisive action—the shutting down of a website 10% of Singaporeans frequent. All this is not to say that I think the MDA should be held in contempt of court (as if you could do that to a statutory board), but I do think it should either reverse its decision or provide a sound explanation for it.
This episode has done little more than reveal the nakedness of our understanding of what sedition means vis-à-vis the notion of a threat to public order. When does MDA regulation go from necessary to capricious? Where’s the line? MDA’s haphazard explanation does little to clarify issues. If anything, the line seems to be: you can put up inflammatory stuff all you want (like STOMP or The New Paper) so long as you don’t face severe allegations under the Sedition Act in court. The moment you do, MDA will shut you down.
But wait. If the initiation of court proceedings and the AGC’s assertion of severe allegations are where the line should be drawn, has the MDA become judge, jury and executioner? If the point of prosecuting someone in the courts is to let an impartial judiciary decide on the merits of the prosecution’s argument, why does the MDA usurp that role? Shouldn’t it do the opposite instead? If court proceedings have begun, shouldn’t it wait till the independent branch of government has reached a decision arrived at through due process?
Sure, the MDA grants an appeal process, and it’s probably unfair to impute political motivations to its decision to shut down TRS given how egregious some of TRS’ offences have been. But the reason why we entrust a separate branch of government—the judiciary—with the task of determining matters of fact and law is because we want an impartial body to act as a check and balance on the abuse of power by the executive branch. If the Government must not merely be impartial in fact, but must also maintain the appearance of impartiality, surely it should not undermine the separation of powers so vital to that end. If the judiciary is tardy in its pronouncement that the named TRS articles are seditious, then surely it is the fault of the judiciary and the solution must lie there.
In clothing its decision to shut down TRS in the exact same rhetoric used by the prosecution in its court case against TRS’s editors, the MDA has achieved something remarkable. It has shown how vacuous these vague notions of sedition and “threat to public order” are. There is indeed a place for laws against actions that threaten public order, but it must be clearly shown that the threat is a serious one (perhaps imminence should be the test) that is the result of the accused’s actions. A mere possibility is not a threat in any meaningful sense. It is an emperor without clothes.Follow me on Facebook or Twitter.