AHTC trial: Public should be mindful of comments to avoid sub judice, say experts

SINGAPORE — Amid keen public interest in the ongoing high profile trial involving three Workers’ Party (WP) Members of Parliament (MPs), which has triggered partisan debate online due to the political dimension of the case, lawyers and legal experts have cautioned the public to exercise restraint when commenting on the trial.

This is because there are, at times, grey areas as to whether a statement might be prejudicial in nature, they said. Premature assertions about individuals could also amount to defamation if they turn out to be false, one of them pointed out.

A number of supporters of the opposition party and the ruling People’s Action Party (PAP) have been posting online remarks on the case since the trial began on Oct 5.

With new contempt of court laws taking effect last October, the nature of some of the comments has also raised a key question about whether they are sub judice, and in contempt of court.

Lawyers and legal experts told TODAY that by and large, the online comments — while “colourful” — are not sub judice, which refers to public discussion of a case under judicial consideration which may affect or prejudice the outcome of proceedings.

They said that this is because most of the comments are reiterations of various arguments made as part of the case, which would be brought up in court proceedings. Therefore, these comments would not prejudice, or pose a real risk of interfering with court proceedings, they added.

However, they noted that it would be best for the public to be mindful when commenting on the case on social media.

Last October, new contempt of court laws under the Administration of Justice (Protection) Act 2016 came into effect, spelling out conduct which amount to contempt: Disobeying court orders, interfering with proceedings, sub judice, and scandalising the court. Contempt of court is a criminal offence under the new laws.

The new laws, for instance, state that as soon as a writ is filed for civil proceedings or when a suspect has been charged with a criminal offence, individuals cannot comment on the case — relating to guilt or facts that have not been established by a court — or it would constitute sub judice, which falls under contempt of court.

The move to introduce these laws was made against a backdrop where social media could quickly amplify opinions on ongoing court cases.

COURT CASE WITH A ‘POLITICAL ACCENT’

On Facebook, the Fabrications About The PAP (FAP) page — largely regarded as pro-PAP — are among those that are closely following the trial. Some of its posts, for example, claimed that the three WP MPs — former leader Low Thia Khiang, chairman Sylvia Lim and secretary-general Pritam Singh — had acted “in bad faith”, and there was a conflict of interest.

The founder of the Facebook page, Mr Jason Chua Chin Seng, did not respond to TODAY’s queries.

The WP MPs, who run Aljunied-Hougang Town Council (AHTC), are facing trial to account for alleged wrongful payments made to the town council’s service providers and then-managing agent between 2011 and 2015. An independent panel acting on behalf of AHTC and the Pasir-Ris Punggol Town Council (PRPTC) have filed lawsuits against them.   

Meanwhile, the opposition party’s supporters have also commented on WP’s Facebook page, saying among other things that the alleged conflict of interest also extends to PAP-run town councils.

The onslaught of comments prompted WP’s Non-Constituency MP Daniel Goh, who is a sociology professor at the National University of Singapore, to post a reminder on his Facebook page.

Associate Professor Goh, who has also been posting updates on the trial, said he will delete comments “that show any disrespect to the court, and our political institutions such as the President”.

“Also, please take note, this is AHTC and PRPTC suing the WP MPs, not the PAP. Let’s be respectful,” he added.

Political analyst Eugene Tan of the Singapore Management University (SMU) noted that the trial is unlike any other court case as there “is a political accent to it” since it involves heavyweight WP MPs.

The stakes are also high for both AHTC and WP, he added. For AHTC, it is about the credibility of their claims that the individuals sued have failed in their fiduciary duties. As for the WP, the MPs’ political future and well-being of the party “can be significantly affected by the lawsuits”.

Assoc Prof Tan, who is a legal academic, said: “Ultimately, town councils are political creatures. While the court case is about the legal issues, one can't draw a bright line between the legal and the political.”

PUBLIC SHOULD ‘KEEP AN OPEN MIND’

Lawyer Amolat Singh said that the online comments relating to the trial appear to contain “some added colour”, which is “wholly unnecessary if the intent is merely to report the facts”.

He added: “While there does not appear to be an attempt to sway or influence the court in its decision, there may be some hint of swaying public opinion.”

Asked about some of the Facebook posts by the FAP page on the trial, SMU law lecturer Benjamin Joshua Ong said that in general, the comments, while “ineloquent”, are not sub judice and in contempt of court, as they “are merely repetitions of what is claimed against the WP MPs”.

Pointing out that the current laws are clear in drawing the line on what constitutes sub judice, Mr Singh, however, noted that there is a challenge in sifting out “inadvertent” offenders from those with ulterior motives.

Though it is “understandable not to prosecute those who simply got carried away in their innocent zeal”, Mr Singh said those with ulterior motives must be dealt with decisively to serve as a deterrent, “lest there be an erosion in the respect for the due process of law and its proper functioning in society”.    

But the lawyers and legal experts stressed that the public should refrain from speculating on contested issues of fact before the court, and from jumping to conclusions.

Lawyer Diana Ngiam said there are “inevitably grey areas as to what statement will constitute prejudice to court proceedings or whether it poses a real risk of prejudicing court proceedings”. It boils down to whether it is a factual exercise or a matter of interpretation, she added.

Not jumping to conclusions is “simply a matter of good sense and rationality in public discourse”, said Mr Ong, as he noted that new evidence might emerge during trials.

He cautioned: “Just as the court has a duty to keep an open mind at all times, so, too, should the public. I would add that premature assertions about particular persons, if they turn out to be untrue, could well amount to defamation.”

If there is doubt over whether a comment might be sub judice or not, the “clearest advice is to desist from making any comments”, said Mr Singh. “There will be time aplenty to make as many comments after the case has been decided.”

The Attorney-General’s Chambers did not respond to queries from TODAY.

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