Apex court dismisses appeals by SDP’s John Tan, activist for scandalising the judiciary

SINGAPORE — The highest court in the land on Monday (March 16) upheld the convictions and sentences of opposition politician John Tan and civil rights activist Jolovan Wham for scandalising contempt, effectively ending Tan’s goal of running in the upcoming General Election (GE).

Tan, who is the Singapore Democratic Party’s (SDP’s) vice-chairman, previously sought a jail term instead of a S$5,000 fine so that he could contest the GE, which must be called by April next year.

Under the Constitution, a person is disqualified from standing for election to become a Member of Parliament (MP) if he is jailed for at least one year or fined at least S$2,000.

In November last year, Tan’s application to the High Court to declare that he is eligible to run in the GE was rejected after a judge found that scandalising contempt is a form of criminal contempt.

Tan and Wham were the first to be convicted under new contempt of court laws that came into effect in October 2017. They were each fined S$5,000 in April last year.

The duo were hauled to court over a Facebook post that Wham published on April 27, 2018, stating that Malaysia’s judges were more independent than Singapore’s when it came to cases with political implications.

After the AGC began contempt of court proceedings against Wham, Tan responded in a Facebook post: “By charging Wham for scandalising the judiciary, the AGC (Attorney-General’s Chambers) only confirms what he said to be true.”

The AGC then took action against Tan.

FACEBOOK POST TO BE TAKEN DOWN

On Monday, the five-judge Court of Appeal ordered Wham to take down the Facebook post in question, as well as to stop re-publishing it.

Tan had already taken his down in March last year.

“We are satisfied that there are no good reasons for leaving Wham’s post online on Facebook. There is no suggestion that taking down the post would be disproportionately costly or technically difficult,” Chief Justice Sundaresh Menon said, adding that Wham had repeatedly referred to it in more Facebook posts earlier this year.

Separately, the judges ruled that offenders should not be allowed to choose their sentence based on their political aspirations. Tan did not indicate that he could not pay a fine, but rather than he preferred a jail term of one week.

They noted that Parliament had also enacted laws to sieve out candidates deemed unsuitable to be MPs, and that there is public interest in ensuring the law is “applied fairly and equally”.

“After all, a court that chooses to impose an inappropriate sentence in order to avoid disqualifying a candidate from standing for election as a Member of Parliament could just as easily do the same thing to achieve the opposite end,” the Chief Justice said.

“Ironically, it seems that Tan is inviting us to do the very thing that he and Wham have improperly accused the judiciary of, namely, to decide his appeal otherwise than in accordance with its merits. We do not condone and will not do that,” the Chief Justice added.

Tan’s removal of his post was not a mitigating factor, the judges said, as he had admitted to doing so in order for his lawyer to more easily seek a lighter sentence.

This was not Tan’s first contempt of court offence. In 2008, he was one of three men who got into trouble for showing up at the High Court wearing T-shirts that depicted a kangaroo dressed in a judge’s robes. A photo of them was also posted online.

Tan was sentenced to 15 days behind bars for that.

WHAM’S STATEMENT ‘AMONG THE MOST SERIOUS ASPERSIONS’

The apex court further rejected Wham’s argument that he did not intend to scandalise the court, calling his statement “among the most serious aspersions that one could cast upon a judiciary”.

About two weeks after putting up the Facebook post, Wham had published another post, saying that his views were based on several Malaysian cases and a book by Francis Seow — Singapore’s former Solicitor-General and later a political exile, who died in 2016.

“He stood by (the initial post), repeated it on several occasions and declined to retract or apologise for it. Moreover, he tried to defend that statement by purportedly comparing some cases which… were neither legally nor factually comparable,” Chief Justice Menon noted.

While the Attorney-General sought an apology from Wham and Tan, saying that this would help deter future offenders, the judges said that mandated apologies should be considered in only exceptional circumstances.

This is when the contemptuous content and the offender’s conduct are “so egregious” that imposing the usual punishments — a fine, imprisonment or both — is not enough.

The five judges also upheld Justice Woo Bih Li’s ruling that Wham and Tan should each pay S$5,000 in costs to the Attorney-General, as well as disbursements of S$2,297 and S$1,966 respectively.

In a Facebook post after the decision, Wham maintained that he had done nothing wrong.

"We should have the right to criticise (the judiciary). A government that rules by fear intimidates its people. We should refuse to be cowed," he wrote.

As at 5pm on Monday, Wham had not complied with the court's order to take down the earlier post.