Bid to refer TOC defamation case to High Court thrown out

Amir Hussain
·Senior Reporter
Daniel Augustin De Costa, 36, (wearing a tie) was charged with one count of criminal defamation and another count of unauthorised access to computer material last year. (Yahoo News Singapore file photo)
Daniel Augustin De Costa, 36, (wearing a tie) was charged with one count of criminal defamation and another count of unauthorised access to computer material last year. (Yahoo News Singapore file photo)

SINGAPORE — Is the Cabinet susceptible of being defamed and does the phrase “reputation of such person” under the criminal defamation law apply to the governmental body?

A lawyer for a man accused of defaming members of Cabinet argued before a judge at the State Courts on Wednesday (27 November) that the charge against his client was unconstitutional and sought for the matter to be referred to the High Court.

But District Judge Christopher Tan disagreed with lawyer M. Ravi’s contention that there was a question of law relating to the interpretation of the Constitution which merited such a referral.

With the decision, the trial for Ravi’s client, Daniel Augustin De Costa, a 36-year-old Singaporean, is set to proceed at the State Courts before the judge on 2 January.

However, Ravi said he intends to file a criminal motion, or an appeal, against the judge’s decision at the High Court.

Background of the case

In December last year, the editor of socio-political website The Online Citizen (TOC), Terry Xu Yuanchen, 37, and De Costa were both charged with criminal defamation in relation to an article allegedly written by De Costa and published on TOC.

De Costa was also charged with one count of unauthorised access to computer material. He allegedly submitted an article to TOC using the name “Willy Sum”, using an email account which he had purportedly accessed without authorisation.

The article, published on 4 September last year, has since been taken down.

On 5 October last year, the Info-communications Media Development Authority (IMDA) made a police report stating that the article alleged corruption against some persons.

The article stated that “we have seen multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers ever since the demise of founding father Lee Kuan Yew”.

A constitutional question?

At the State Courts on Wednesday, Ravi argued that his client was seeking an answer to a constitutional question: whether the phrase “the reputation of such person” under the criminal defamation law applies to the Cabinet.

Under the law, defamation of a person occurs when “the reputation of such person” is knowingly harmed.

The lawyer said the question raises “wide implications on the rights of private citizens to freely criticise the government without being liable for criminal defamation”.

Ravi added that the question required interpretations of four sections of the Constitution: Article 9 which deals with personal liberty; Article 14 which covers freedom of speech, assembly and association; Article 23 which governs the Executive Authority of Singapore; and Article 24 which concerns the formation of the Cabinet.

Quoting from an English court ruling that a local authority did not have the right to sue for defamation as it would be contrary to public interest, Ravi said, “It was of the highest public importance that a governmental body should be open to uninhibited public criticism. A right to sue for defamation would be an undesirable fetter on freedom of speech.”

He added, “The fundamental principle that the government’s right to reputation should not be paramount over the Constitutional right to freedom of speech is fundamental to a reading of Article 14(1)(a). Without such an interpretation of the Constitution, the protections under Article 14(1)(a) would be rendered hollow, as free speech would be perforce circumscribed by the risk of a criminal prosecution.”

Ravi also argued that democracy recognises criticism as important in keeping a government accountable and efficient. “It goes without saying that allowing the government to sue in defamation invariably leads to some restrictions on the criticism on government,” he added.

He further contended that “the reputation of government institutions and officials are not as easily injured by the political utterances made by private citizens”, and that criticisms of the government do not impact on their reputation as much as they would for a private citizen.

“Criminal defamation is available to individuals but it is not available to government and the Attorney-General is prohibited from maintaining such actions against private citizens,” the lawyer argued.

While the Interpretation Act defines a “person” under the law to include “any company or association or body of persons”, Ravi said, “Governmental bodies cannot be crudely equiparated with private institutions such as companies for two reasons. Firstly, the government purports to serve the public interest, and secondly, the government does not sustain the same injuries from allegedly defamatory statements as private institutions do.”

‘A flagrant abuse of process’

Responding to Ravi’s application to refer the matter to the High Court, Deputy Chief Prosecutor Mohamed Faizal said “the question posed in this case is nothing more than a simple legal question couched misleadingly in constitutional language”.

The prosecutor said the application did not involve any constitutional issue whatsoever and was an unnecessary delay. He added that it was “a flagrant abuse of (court) process, frivolous and without merit”.

Whether the word “person” under the criminal defamation law referred to natural persons involves “a conventional exercise of statutory interpretation, and has absolutely nothing to do with the Constitution”, said DCP Faizal.

He also pointed out that De Costa’s charge states that he had defamed members of the Cabinet who are “clearly natural persons”. The prosecutor added that “regardless the merits of the question (posed), at the risk of reiterating the obvious, such an argument is squarely met by the fact that the charge he faces pertain not to defamation of the Cabinet, but rather of members of the Cabinet. Members of the Cabinet are individual persons”.

He also said that the criminal defamation law makes it “crystal clear” that entities can suffer injury through the loss of standing and/or goodwill.

Quoting from a previous Court of Appeal ruling, DCP Faizal added, “It is Parliament that has the final say on how the balance between constitutional free speech and protection of reputation should be struck.”

The prosecutor said, “What is the appropriate balance between the right of freedom of speech and the right to protection of reputation in the UK, or any other common law countries for that matter, may not necessarily be the correct balance in Singapore.”

The Singapore courts have also made it clear that “the balance struck under the constitutional framework...is that the protection of reputation should prevail over the freedom of expression”, he added.

“The public policy underlying defamation law in Singapore is that the freedom of expression is circumscribed by the right of others to the protection of reputation,” said DCP Faizal.

After the court proceedings, Ravi told Yahoo News Singapore, “I am somewhat surprised that the court accepted the prosecution's position that individual Cabinet members are distinct from the Cabinet as an an entity.

“This is somewhat disturbing that those like ministers who exercise governmental authority are artificially distinguished as government or cabinet as such.”

The maximum punishment for criminal defamation is up to two years’ jail and a fine. For unauthorised access to computer material, the maximum penalty is up to two years’ jail and a fine of up to $5,000.

Related stories:

TOC editor Xu and writer De Costa charged with criminal defamation

The Online Citizen editor and another person to be charged with defamation