ART 14: FREEDOM OF SPEECH (Defamation: Written restriction under Art…
ART 14: FREEDOM OF SPEECH
Applies only to
(Dow Jones, Review Publishing)
Non-citizens: Can only enjoy common law free speech. This makes sense if we consider that the rationale for free speech to have a well informed democracy (LHL v Roy Ngerng)
Contempt of Court (Restriction under Art 14(2)(a))
Rationale is to protect public confidence in judiciary but have to acknowledge that objective criticism is still beneficial.
Test for finding contempt? Real risk (case law) vs Risk (Parliament): Dissonance in the view of courts and politicians
Rationale for just risk? "vibrant legal centre" --> Statis economic interest trumping Freedom of Speech
Justified? Maybe. Insofar as the judiciary is a key institution in the administration of justice and must function as a check on Executive and Parliament
Rationale for Free Speech: (i) Democracy, speech results in informed voters (ii) Discovering truth through debate (iii) Aids personal growth and development
They suffer from their own flaws
(ii) is disavowed in Singapore (LHL v Roy Ngerng)
The restrictions must be "necessary and expedient". Expedient imports convenience Cf: India where the restriction must be "reasonable".
Ultimately Parliament strikes the balance (Review Publishing).
Doesn't make sense
given that this a fundamental liberty and courts should be the one doing the balancing - they are the guardians of fundamental liberties.
Legal vs political constitutionalism
generous interpretation to limitation
is given (Chee Siok Chin) vs India where the restrictions are subject to greater scrutiny. Chee Siok Chin talks about delicate balancing but this is inconsistent with the generous interpretation dicta since a generous interpretation would allow the restrictions to take on the characteristic of a trump to freedom of speech
Presumption of constitutionality also not lightly displaced
Sedition Act. Not an explicit restriction under Art 14(2)(a) so it must fit within public order or security of Singapore
Traditionally must be to stir up opposition against the state but now used to manage
racial and religious harmony
Ong Kian Cheong: No mens rea requirements all that needs to be shown is a "tendency" to incite feelings of ill-will. This test is
and therefore has a chilling effect on free speech.
Reform: there must be intention to incite to violence
strikes the balance more in favour of free speech
Related to Ong Kian Cheong "freedom from offense" this is an
unwritten limitation to freedom of speech
. Public law interest cannot be co-equal with constitutional right AND it is functioning as a trump
Defamation: Written restriction under Art 14(2)(a)
Should we shift the existing balance in favour of free speech where there is public interest?
Contextual balancing based on socio-political context: Four walls doctrine?
Role of Singapore's press:
To report news accurately and objectively (Review Publishing) and
contribute to nation building
. Promote public debate but let the audience judge for themselves See: Goh Chok Tong's rejection of the watchdog role vs Western conception of the press as the 4th estate and a check against the government
Western model rejected because (i) sensationalisation (ii) doesn't contribute to nation building
Damages in defamation chill free speech:
Changes over time to give greater weight to free speech. Tang Liang Hong (give heavy damages for political leaders) --> Lim Eng Hock (public leaders should be subject to criticism) --> Roy Ngerng (calibrated approach to assessing damages)
Actual malice test/ public figures doctrine rejected
(JBJ v LKY): Elitist mindset? And inconsistent with consultative approach for dispute resolution?
Why? (i) Politicians have a right to have their reputation protected as well (ii) don't want to deter people from becoming politicians
Qualified privilege for political matters
rejected (JBJ v LKY) But should this be revisited? Socio-political conditions in NZ and Singapore similar?
(i) Nature of NZ's democracy means that the wider public may have a proper interest in respect of generally-published statements which directly concern the functioning of representative and responsible government
Parallels in Singapore: When investment losses were incurred by Temasek Holdings arising out of its failed acquisition Thailand's Shin Corp, Parliament called for the Government and Temasek Holdings (owned by the Ministry for Finance) to account for the incident.
(ii) Official statements "Towards More Open Government: Government stressed popular participation in the making and administration of laws and politics, the promotion of the accountability of those in office
Parallels in Singapore: Harvard Club Speech shift in free speech culture
(iii) Responsible Press "It is possible to say that New Zealand has not encountered the worst excesses and irresponsibilities of the English national daily tabloids".
Parallels in Singapore: See Role of SG's press
But there are differences: See Hairul Hakim
Reynolds Privilege: Media Defendant
Might not be a full defence but can mitigate damages (Roy Ngerng). IMO doesn't go far enough. Reynolds Privilege NA for non-citizens but might be for citizens
Have to show evidence of change in political, social and cultural values to show that there is a greater demand for accountability amongst politicians. Should it be recognised? Yes (David Tan & Hairul Hakim)... but is this evidence compelling See Fake News Bill and emasculation of the EP