| Yawning
Bread. 19 April 2008
Prosecute or nothing
|
|
||
|
Quite rightly, lots of people have spoken up against the many, often highly intrusive, laws and regulations that Singapore has over expression. However, it's not just the specific laws. There is another side to the problem: The whole architecture of the regulatory system is designed to be a loaded one, allowing the citizen little room to defend his rights. Focussing on the laws is not enough. The whole system must be dismantled. What is this system? In a nutshell, the system is one that gives bureaucrats in the MDA wide discretion to write and interpret the rules (called Codes of Practice), then to judge whether you have violated them, and to either fine you or ban your work. The MDA thus acts as prosecutor, judge and jury.
|
|
||
|
If you feel aggrieved, the only recourse open to you is to appeal to the minister. The minister's decision is final (as if anyone ever believes that he will reverse his own bureaucrats' decisions). The regulatory process explicitly does not provide any route to a court-based review. Even worse, bureaucrats can make decisions affecting you and your work in secret, under cover of the Official Secrets Act. They do not have to explain how they have arrived at the interpretation they are using, or the decision finding you guilty, or the quantum of the fine. In short, it denies you due process. The system is completely antithetical to basic principles of natural justice. Hence, we need to make two demands:
Even if imperfect, the justice system we have, with its checks and balances, is far better than the MDA's arbitrary, secretive and closed regulatory system. In other words, prosecute or nothing. Whoa, you may say, for if you read the above too quickly, you'd think I'm recommending that MDA's administrative regulation should be replaced by prosecution. I am not. I said, "If regulation is justified". Most of MDA's rules are not; they should be abolished without being replaced. * * * * *
|
|
||
|
Let me now expand on the above: The regulatory system that we have is a mix of two methods:
More specifically, this administrative regulatory system in Singapore works in this form:
As I've said above, the system anoints the MDA as prosecutor, judge and jury. Actually, it's worse than that. The MDA, unlike a proper judge, can keep the reasons behind its decisions secret. And its decisions cannot be appealed to a higher court. * * * * * Section 4.2 of the Subscription Television Programme Code says,
You'd notice that the word "kiss" is not there. The MDA made an interpretation of the words "promote, justify or glamourise" to encompass a kiss. It attempted to justify its interpretation by saying, in its press release, that "MDA also consulted the Advisory Committee for Chinese Programmes and the Committee concurred that the commercial had promoted lesbianism as acceptable and romantic, especially when shown together with the lyrics featured", except that the committee's deliberations are secret. In fact, I can't even see who the people on the committee are. Needless to say, it's the government who appointed them. On what criteria? Who knows? (Actually, my objection is much more fundamental: There shouldn't even be a rule about "promote,. justify or glamourise", let alone how to interpret it.) Starhub was fined S$10,000. There is no explanation either how this quantum was arrived at. What avenues were open to Starhub to contest the decision? Section 59 of the Broadcasting Act says that
Then, subsections (3) and (4) say,
Isn't it striking how the regulatory system gives the minister the final say, not a court of justice? Take another recent example: Martyn See's film Speakers Cornered was given an NC16 rating by the MDA, but he still cannot screen it in public unless he puts up a hefty bond.
Do you trust them with a bond? Because the MDA is free to decide anytime that you have violated one or more of its conditions and that the bond should be forfeited. The regulatory regime for the internet takes a similar form. There is a Class Licence scheme and it's up to the MDA to decide who is covered by it. There is a Code of Practice (which the MDA can change at any time, quietly) and it's up to the MDA to decide whether you have violated it. There is no role for the courts, and without a court process, how do you contest the charge or the penalty that the MDA wants to impose? Singapore's justice system has weaknesses, but even so, it is clearly better than the MDA's self-serving system. If charged in court, you can be represented by a lawyer who can present evidence or expert witnesses (for example, to persuade the court as to changing social attitudes or correct interpretation of the law). The trial must be open to public scrutiny and the reasoning behind a judge's decision must be made public. Moreover, there is an appeal route to a higher court. Also, if you lose the case, you pay the fine afterwards, unlike the MDA system, where you in effect pay your fine in advance in the form of a performance bond. * * * * *
|
|
||
|
To summarise, the principle of "prosecute or nothing" includes:
Examples of the kinds of laws that could remain would be those that criminalise depiction of child pornography, promotion of child trafficking and prostitution, or speech that incites racial and religious rioting. These are offences which are not controversial if made illegal. Much of the rest, for example, the
regulations restricting political speech during
elections, or permitting the MDA to ban films, videogames and websites as
they please, should simply be junked. All these should be the
"nothing" part of "prosecute or nothing". © Yawning Bread
|
|
||
|
Footnotes None Addenda None
|
|
This site has documented numerous instances where the Media Development
Authority (MDA), in its role as the state censors, has banned websites,
films and videos. It has also levied heavy fines on websites and
television stations and is now threatening to license videogame sellers,
and fine them if they breach its new rules.
