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To keep election chances alive, SDP’s John Tan would rather go to jail than pay S$5,000 fine

SINGAPORE — Opposition politician John Tan is willing to be jailed for contempt of court, instead of being fined S$5,000, so that he could still run in the upcoming General Election, the highest court in the land heard on Wednesday (Jan 22).

John Tan (left) and Jolovan Wham.

John Tan (left) and Jolovan Wham.

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SINGAPORE — Opposition politician John Tan is willing to be jailed for contempt of court, instead of being fined S$5,000, so that he could still run in the upcoming General Election, the highest court in the land heard on Wednesday (Jan 22).

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

Speaking to a panel of five judges at the Court of Appeal, Tan’s lawyer, Mr Eugene Thuraisingam, stated that while the court is not obligated to convenience Tan, he is “willing to serve” a harsher sentence.

“I am asking the court to exercise discretion and mercy to (grant) him a jail sentence,” he said.

Tan, who is part of the leadership of the Singapore Democratic Party (SDP), was hauled to court over a statement he made on May 6, 2018 in response to news that the Attorney-General had initiated contempt of court action against civil rights activist Jolovan Wham.

The action was over a Facebook post Wham published on April 27 that year stating that Malaysia’s judges were more independent than Singapore’s when it came to cases with political implications.

Tan’s response then, as expressed in a Facebook post, was: “By charging Jolovan for scandalising the judiciary, the AGC (Attorney-General’s Chambers) only confirms what he said to be true.”

The pair subsequently became the first to be convicted under new contempt of court laws that came into effect in October 2017, and were fined S$5,000 each.

They were back in court on Wednesday as the Attorney-General has appealed against the penalty imposed on the pair. Wham and Tan have also appealed against both their conviction for contempt of court and the penalty imposed.

Responding to the request for Tan to be jailed rather than fined, Deputy Chief Prosecutor (DCP) Mohamed Faizal Mohamed Abdul Kadir, representing the Attorney-General, said that the court should not become a platform where accused persons can ask for a certain course to be meted out according to their political aspirations.

The five judges – Chief Justice (CJ) Sundaresh Menon and Judges of Appeal (JA) Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – reserved their judgments on the appeals on Wednesday.

THE ATTORNEY-GENERAL’S CASE

The Attorney-General on Wednesday contended that the fines imposed on Wham and Tan are “clearly inadequate” and even permit the pair to “steal what they no doubt believe to be a moral victory and to continue to rob the court of its legitimacy and moral authority”.

To resolve that, the legal team for the Attorney-General submitted that the court should order Wham and Tan to each publish a notice to apologise for their contemptuous posts. Alternatively, they said the court could impose an injunction requiring the pair to cease further publication of their contemptuous posts.

In their written submissions, they argued that even after the court found that their posts amounted to acts of contempt, they “refused to take responsibility for their actions and/or acknowledge their wrongdoing”.

For Wham, this can be seen in his “staunch refusal” to remove his contemptuous post, they said. This is “as though the continued existence of the post online was his banner of victory brandishing an ability to continue denigrating the courts with little effective recourse”, they added.

Tan, they said, removed his contemptuous post only “at the very last moment”.

“It is important that the court send a strong signal to the public that such contempt will not be condoned and that contemnors (persons found to have committed contempt of court) are expected to, and must, correct their behaviour,” they said.

In response to the arguments, which were presented by DCP Faizal on Wednesday, CJ Menon said: “An apology is an expression of regret or remorse. If a contemnor does not have those emotions, I don’t think ordering (an apology) makes a lot of sense.”

JA Prakash added that ordering an apology would merely show the “coercive powers of the court”, that “you can be forced to do something that you don’t believe in”.

“Is that a deterrent?” she asked.

DCP Faizal continued to argue that an apology would act to signal to the wider public that they would be made to apologise for their conduct, while CJ Menon said: “I am still trying to see what an apology (on orders of the court) does.”

THE APPEAL ARGUMENTS OF WHAM AND TAN

Lawyers for Wham and Tan, on the other hand, appealed against both their clients’ convictions and fines, urging the court to see that their fines are “manifestly excessive”.

The two men are represented by Mr Thuraisingam of Eugene Thuraisingam LLP and Mr Remy Choo of Peter Low & Choo LLC on Wednesday.

In their joint written submission, the lawyers reiterated their argument that Wham’s Facebook post does not impugn the integrity of the Singapore courts as Wham was “merely comparing the relative judicial independence of the Malaysian courts with the Singapore courts”.

Wham’s statement also “constitutes fair criticism and was made in good faith”, they asserted.

As for Tan, they argued along similar lines, and added that Tan’s statement was a criticism of the AGC, and not the courts, so action could not be taken against him for contempt of court.

“Attacking the Attorney-General is not contempt (of court),” Mr Thuraisingam told the court. “It is rude, but it is not contempt, therefore (Tan’s case) is not more serious.”

He further argued that Tan was not aligning himself to the contents of Wham’s post by making his statement. Rather, it came about as Tan was “extremely upset because the Attorney-General is bringing people to court (for doing) what he thinks is freedom of speech”.

“That has always been his message, and his party’s (SDP’s) message,” Mr Thuraisingam added.

But CJ Menon expressed difficulty in seeing that Tan’s case is not more serious as Wham’s, pointing out that Tan appeared to have “broadened the attack” as he attacked the Attorney-General on top of attacking the judiciary.

On the Attorney-General’s request for an apology, Wham and Tan’s lawyers argued that such an order is not necessary to protect public confidence in the administration of justice.

They said the High Court judge had already taken into account the insincerity of any apology when meting out Wham’s sentence.

Furthermore, an apology would “needlessly draw the public’s attention to the throwaway comment contained in the post that, in reality, has long faded from the headlines and the public’s memory”, they said.

An injunction would also, “ironically, only draw attention to the otherwise forgotten statements, and further a perception that judicial time and resources are being wasted”, they added.

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