SINGAPORE — The two articles published last year by blogger Alex Au Wai Pang — which were at the centre of a court hearing today (Oct 21) to determine whether he was in contempt of court — were not fair criticism and posed a real risk of undermining public confidence in the administration of justice in Singapore, the Attorney-General’s Chambers (AGC) argued. 

The AGC also charged that the articles are baseless attacks against the authority of the court and have crossed the legal line. 

But Au’s lawyers Peter Low and Choo Zheng Xi contended that his actions were in good faith, to encourage debate and discussion on issues of public importance. They added that the AGC’s case relied heavily on innuendo, insinuation and imputation — which do not make a contempt charge. 

Justice Belinda Ang reserved judgment on the case. 

The two October 2013 posts on Au’s Yawning Bread blog are titled “377 wheels come off Supreme Court’s best laid plans” and “Church sacks employee and sues government — on one ground right, on another wrong”.

The first article discussed two separate but related challenges of the constitutionality of Section 377A of the Penal Code, which criminalises gay sex. The challenges were mounted by Mr Tan Eng Hong in one case, and Mr Lim Meng Suang and Mr Chee Mun-Leon in the other. Au had written that lawyer M Ravi, who represented Mr Tan, might disrupt the Supreme Court’s “plans” by applying to consolidate the appeals of both cases. The second article referred to two related cases involving former Robinson & Company employee Lawrence Wee, who alleged that he was constructively dismissed on the grounds of his sexuality.

Senior State Counsel Tai Wei Shyong, who represented the AGC, argued that the first article insinuates that the Chief Justice had a “vested and improper interest” in the issue of the constitutionality of s377A, and that the Supreme Court had deliberately and improperly engaged in subterfuge to enable the Chief Justice to be on the panel of judges determining the issue of s377A’s constitutionality.

The tenor and tone of the first article leave the average reader with the impression that it is “an expose of the maladministration of justice by the Supreme Court”, said Mr Tai. He said Au’s use of the terms “strange calendaring” — to describe how Mr Tan’s case was given a later hearing date although launched earlier than Mr Lim’s and Mr Chee’s case — and the court being known to “fly off into logic of their own” show his intention to attack the impartiality of the Chief Justice and the Supreme Court, at least for cases relating to homosexuality.

In the second article, Au, 61, wrote that he did not have high hopes for  Mr Wee’s application for a court declaration that Article 12 of the constitution prohibits discrimination on the basis of sexual orientation, “mostly because my confidence in the Singapore judiciary is as limp as a flag on a windless day”.

The expression of lack of confidence in the judiciary, attributable to its inadequacy or bias, is contemptuous, argued Mr Tai. Contemptuous remarks are not necessarily made in an explicit or direct manner, he added.

Mr Choo pointed out that Au — who was present in court and jotted down notes throughout the hearing — did not suggest that the timing of release of court judgments, and the appointment of judges to panels to hear cases, would adversely affect the outcome of cases. “It cannot be said that the court being a master of its own proceedings is in any way contempt of court. In fact, suggesting or stating that a particular judge might want to hear a certain case is par for the course in legal writing and commentary,” Au’s lawyers said in their submissions.

Au had written the first article to describe a theory that some legally-trained acquaintances had shared with him, said Mr Choo, who argued that there was no risk of it undermining public confidence in the judiciary. 

He added that the AGC’s description of the tenor and tone of Au’s first article was hyperbole. In their submissions, Au’s lawyers also argued that the courts here should have a “wide margin of tolerance for criticism even in cases where trenchant and vehement language is used”.