TOC writer accused of defaming Cabinet fails in bid to refer constitutional issues to High Court
Terry Xu Yuan Chen (left), the chief editor of socio-political website The Online Citizen (TOC), and Daniel De Costa Augustin are charged with criminal defamation of the Cabinet.
SINGAPORE — A man accused of criminal defamation by alleging there was corruption in the Cabinet, in an article for socio-political website The Online Citizen (TOC), has failed in a bid to have preliminary constitutional questions referred to the High Court.
Daniel De Costa Augustin, 36, who allegedly wrote the article in question, has been charged with criminal defamation along with TOC chief editor Terry Xu Yuan Chen, 37.
The trial of the pair was due to start on Wednesday (Nov 27) in the State Courts, but De Costa’s lawyer M Ravi argued that the charges were unlawful on constitutional grounds, and that these issues should be referred to the High Court.
The main question Mr Ravi raised was whether the Cabinet should be considered a “person” with a reputation to be protected under the law.
He argued that it should not be, as the Court of Appeal had previously held that the Government could not have been a “person” within the ambit of Section 15 of the Protection from Harassment Act (Poha).
But District Judge Christopher Tan rejected Mr Ravi’s application, pointing out that defamation is “quite different” from that piece of Poha legislation.
Harassment entails an emotional or psychological impact that “should rightly be restricted to human victims”, whereas defamation, which comes under Section 499 of the Penal Code, is not, the judge said.
With the dismissal, the trial involving Xu and De Costa is set to begin on Jan 2, next year.
The trial might yet be postponed, however, as Mr Ravi, who is with Carson Law Chambers, indicated that he would be filing a criminal motion directly to the High Court in the next seven days, seeking to have the same application considered.
Xu, who is separately represented by Mr Remy Choo and Ms Priscilla Chia from Peter Loh & Choo, was also charged with criminal defamation in December last year for publishing De Costa’s article, which was titled “The Take Away from Seah Kian Ping’s Facebook Post”.
De Costa had alleged “corruption at the highest echelons”, when he referred to comments made by Member of Parliament Seah Kian Peng, whose name was misspelt, and Law and Home Affairs Minister K Shanmugam on a meeting in August last year between Malaysian Prime Minister Mahathir Mohamad and some Singaporean activists.
If convicted of criminal defamation, the two men may be jailed for up to two years, fined, or both.
COURT SHOULD ‘ANXIOUSLY SCRUTINISE’ THE CHARGES: M RAVI
Mr Ravi and the prosecution, led by Deputy Chief Prosecutor (DCP) Mohamed Faizal Mohamed Abdul Kadir, took turns to make their submissions on Wednesday in a three-hour hearing that became charged at times.
When opening his case, Mr Ravi said his application pertains to a “complex matter” that includes a constitutional question that should be referred to the High Court to prevent the District Court from being inundated with referrals from the lower courts.
His submissions covered how Article 23 and 24 of the Singapore Constitution informed the meaning of the phrase “reputation of such person” under Section 499 of the Penal Code. He also argued that the charges brought against De Costa had contravened Article 9, which protects Singaporeans against unlawful deprivation of personal liberty, and Article 14, which entitles citizens to the right to freedom of speech and expression.
In view of these arguments, the court should “anxiously scrutinise the charges” against De Costa on their constitutionality, he said.
‘SIMPLE LEGAL QUESTION COUCHED MISLEADINGLY’, SAYS PROSECUTOR
But DCP Faizal called his application “a futile exercise” that was a “flagrant abuse of process”, as it was frivolous and without any merit, as he tried turning Mr Ravi’s words against himself.
“My learned friend asked the court to anxiously scrutinise the charges. We ask the court to do the same… My learned friend says it is a complex matter, it is not,” he said, framing Mr Ravi’s question as “nothing more than a simple legal question couched misleadingly in constitutional language”.
DCP Faizal then charged that Mr Ravi and his client had an ulterior motive to change Singapore law, so as to align it to the outcome of a 1964 landmark decision of the US Supreme Court, which ruled that the freedom of speech protections in the First Amendment to the US Constitution restrict the ability of American public officials to sue for defamation.
Stressing that the application “must fail”, DCP Faizal said: “At the end of the day, we have ultimately an applicant who knows too well that the question he posed is not engaged in the present facts… We say it is nothing more than a smokescreen.”
He also argued that Mr Ravi’s question is a “complete nonstarter” since De Costa’s defamation charge states that he had defamed members of the Cabinet, and not the Cabinet as an entity.
Further pointing out that it is “completely untenable” for Mr Ravi to assert that no non-natural person ought to have the right to apply to protect their reputations, he said: “It is so absurd (considering) that no Commonwealth jurisdiction has even suggested that (a company or society) cannot sue for defamation.”
M RAVI’S COMEBACKS
Mr Ravi, in response, asked why four public prosecutors were working on this if the application was not complex. DCP Faizal, Deputy Senior State Counsel Shivani Retnam and Deputy Public Prosecutors Ho Lian-Yi and Sheryl Yeo penned the Attorney-General’s Chamber’s submissions in response to Mr Ravi’s application.
This line of argument was met by a protest from DCP Faizal.
Mr Ravi also said that if the prosecution truly meant individuals when referring to the Cabinet in their charges, they should indicate which particular members of the Cabinet they are basing their charges on.
As for the ulterior motive he was accused of, Mr Ravi’s comeback was: "I understand they are clutching at straws because they are making personal attacks on my client."
