Throwing out socio-political blogger Alex Au Wai Pang’s appeal against his conviction for contempt of court, the Court of Appeal issued strong words against his attempt to pass off the content in his offending blog post as fair criticism.
By using insinuations, rather than express statements, to allege that hearing dates for two challenges against laws criminalising homosexuality had been manipulated, Au’s blog posting on Oct 2, 2013 was an “even more insidious” attack on the judiciary’s independence, the court ruled, in its judgment released yesterday.
“It was carefully crafted so as to take the form of insinuations that were just as effective as (if not more effective than) overt or express statements. There was, in addition to the very nature and tenor of the article itself, a total absence of a rational basis on the part of (Au) when he wrote the article, and it follows that the article clearly did not constitute fair criticism,” the three-judge court said.
“This insidious attack on the independence as well as impartiality of the judiciary goes to the very heart of what the (indeed, any) judiciary stands for and clearly undermines public confidence in the administration of justice.”
Au had appealed against an S$8,000 fine for the blog post titled 377 wheels come off Supreme Court’s best-laid plans, which alleged that the Supreme Court’s “strange calendaring” had allowed a gay couple’s constitutionality challenge against Section 377A to be heard first, although they had launched the bid after a similar contest by Mr Tan Eng Hong, 51, who was caught having oral sex with a man in a public toilet.
This, Au alleged, was because Chief Justice Sundaresh Menon wanted to be on the three-judge Court of Appeal to hear the constitutional challenge against Section 377A. CJ Menon could not do this otherwise because of conflict of interest, as he was Attorney-General when Tan’s criminal case was heard in court.
In arguing against the conviction for contempt of court, Au said he had not engaged in mere descriptive reporting in the article. Instead, it was based on what he called logical deductions arising from a set of objective facts.
But his argument was dismissed by Judge of Appeal Andrew Phang, who delivered the judgment on behalf of the three-court judge. From a “plain reading” of the title of the article, “the implication — or rather, insinuation — is that there was something untoward or even sinister in the alleged deliberate scheduling” of the cases, said the court, which comprised Judge of Appeal Chao Hick Tin and Justice Tay Yong Kwang.
“Put simply, why would the ‘wheels’ need to come off a perfectly functioning vehicle which was presumably headed in the correct direction to begin with?” the judges wrote.
Au also did not have “even a shadow of objective facts upon which to premise what he claims is fair criticism”, they added, referring to the blogger’s argument that his article was based on conversations with several unnamed sources. “The alleged sources – or, rather, their rank absence – bear this out. They were nothing more than general as well as vague references.”
Justice Phang noted that this was not simply a case of Au getting his version of events incorrect or off the mark, as he had claimed. Neither was it a case of Au being misled by these so-called sources,” he added.
“It should also be noted that in his affidavit, Au even attempted to rely on ‘sources’ that post-dated the publication of the article. His efforts in this regard – viewed in their totality – come across as disingenuous. It is clear that the Article did not constitute fair criticism,” the judge added.