Tan Liang Joo John v Attorney-General

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 06 November 2019
• Neutral Citation: [2019] SGHC 263
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Date: 06 November 2019
• Docket Number: Originating Summons No 911 of 2019
• Hearing Date: 07 October 2019
• Subject Matter: Statutory Interpretation,Constitutional provisions
• Published date: 09 November 2019
• Defendant Counsel: Shivani Retnam, Tang Shangjun and Beulah Li (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 263
• Year: 2019

Aedit Abdullah J: Introduction

The applicant seeks a declaration that he is not disqualified from standing for election because of his conviction for contempt by scandalising the court, and the imposition of a fine of $5,000.

Background

The applicant, the vice-chairman of the Singapore Democratic Party, was found guilty by Woo Bih Li J of contempt by scandalising the court under s 3(1)(a) of the Administration of Justice (Protection) Act (No 19 of 2016) (“AJPA”): see AG v Wham Kwok Han Jolovan and another matter [2018] SGHC 222 (“Jolovan Wham (Conviction)”). A sentence of a $5,000 fine, with 1 week’s imprisonment in default, was imposed on him: see AG v Wham Kwok Han Jolovan and another matter [2019] SGHC 111 (“Jolovan Wham (Sentencing)”).

The applicant plans to run in the next general election, which apparently must be held by the first half of 2021. He seeks a declaration under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) that he meets the eligibility requirements to stand for election as a Member of Parliament under Art 44 of the Constitution of the Republic of Singapore (1999 Reprint) (“the Constitution”).

Before Woo J, the position taken by the applicant’s former counsel was that a fine of $2,000 or more would indeed disqualify the applicant from running.¹ This was, the applicant now contends, an error. In any event, the position taken by the applicant in those proceedings does not bar him from making the present application.

It is not disputed between the parties that the offence of scandalising contempt is a form of criminal contempt. This judgment thus uses the term “criminal contempt” to refer to the offence of scandalising contempt.

Summary of the applicant’s case

The applicant seeks a declaration that he is not disqualified from standing for election by virtue of the punishment imposed on him for criminal contempt. Article 45(1)(e) of the Constitution only applies to criminal offences and not criminal contempt. The phrase “has been convicted of an offence” is ambiguous and can be read as being confined to criminal offences, excluding quasi-criminal offences such as criminal contempt.² Interpreting Art 45(1)(e) to cover quasi-criminal offences would mean that even disciplinary offences potentially fall within its ambit.³ Such an interpretation would further render Art 45(1)(g) tautologous.⁴ Eligibility to run for Parliament should not be taken narrowly, and only a serious offence would result in disqualification. Furthermore, Art 45(1)(e) should only apply to offences for which a free pardon is available. No free pardon is available for contempt, which demonstrates that it is not an offence caught by Art 45(1)(e).⁵ The extraneous materials relied upon by the respondent do not assist the court. A purposive reading should be adopted, taking into account the whole of the Constitution.⁶

The applicant also relies on the position previously taken in respect of Mr Jufrie Mahmood. In 1988, the then Returning Officer, Mr Ong Kok Min (“the RO”), informed the Straits Times that Mr Jufrie Mahmood’s nomination paper would not be rejected if he attempted to stand for election. Mr Jufrie Mahmood had earlier been fined $3,000 for contempt of court.⁷ The RO took the position that disqualification in Art 45(1)(e) only applied to criminal offences, and that the offence of contempt of court was not criminal in nature. The applicant argues that a presumption of legality should apply to the position taken by the RO, a senior government officer.⁸ In oral arguments, the applicant also raised the issue of estoppel, as well as Art 9 and Art 12 of the Constitution.

Summary of the respondent’s case

The respondent argues that the declaration sought by the applicant should not be granted. Article 45(1)(e) applies since the applicant has been convicted of an offence of criminal contempt and fined more than $2,000. The ordinary meaning of the term “offence” in Art 45(1)(e) would cover quasi-criminal offences, such as criminal contempt.⁹ The legislative purpose of the article is to filter out unsuitable candidates,¹⁰ and interpreting “offences” to include contempt furthers this legislative purpose.¹¹ The available extraneous materials are neutral as to whether the term “offence” in Art 45(1)(e) is limited to criminal offences.¹² The respondent’s position is that the position taken in respect of Mr Jufrie Mahmood’s nomination in 1988 does not assist in the interpretation of Art 45(1)(e).¹³ Finally, the enactment of the AJPA does not affect the analysis of Art 45(1)(e).¹⁴

The decision

The declaration that is sought is for the applicant to be declared eligible to stand for an election as a Member of Parliament under Art 44 of the Constitution.¹⁵ This is a broad prayer, as many factors could affect eligibility. However, the applicant’s affidavit and arguments make it clear that the concern raised is only as regards the finding of criminal contempt and the punishment imposed, which potentially engages Art 45(1)(e). My decision will thus be on that basis only.

I have not been persuaded that the declaration sought should be granted. Considering the plain words of Art 45(1)(e) of the Constitution, I am satisfied that the disqualification applies to convictions for criminal contempt. The applicant is thus disqualified by the sentence imposed for the criminal contempt which the court in Jolovan Wham (Conviction) found had been committed by him. I do not consider that the purpose can be properly construed in a way to assist beyond the plain words of the text. Neither do I find that the position taken in respect of Mr Jufrie Mahmood binds the government in any way.

Analysis

The distinction between civil and criminal contempt was examined in Li Shengwu v AG [2019] 1 SLR 1081 (“Li Shengwu”) by the Court of Appeal. The Court of Appeal concluded that civil and criminal contempt are quasi-criminal, and that the jurisdictional basis for the law of contempt is sui generis: Li Shengwu at [123]. That decision was made in the context of determining how the court’s jurisdiction was established in respect of an overseas contemnor. The Court of Appeal recognised that there could be differences between the two although the AJPA itself dispenses with the labels of “civil” and “criminal” contempt: Li Shengwu at [122]–[123]. It suffices for me to determine whether or not Art 45(1)(e) covers criminal contempt, without going into whether civil contempt is also caught. There is something to be said for the proposition that civil contempt is of a different nature; the question whether that then means that civil contempt is an offence caught under Art 45(1)(e) or otherwise is one that should be dealt with by another court, seised of a case actually involving civil contempt.

The analysis in this judgment will examine the following in turn: the interpretation to be given to the term “offence” in Art 45(1)(e) of the Constitution; whether the government is bound by the position taken in the prior instance involving Mr Jufrie Mahmood; and other arguments raised by the applicant.

Requirements for a declaration

The parties did not go into this and the requirements would seem to be made out here in any event. A declaration may be obtained if the following requirements are made out, as laid down in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal [2006] 1 SLR(R) 112 (“Karaha Bodas”) at [14]:

…the following are the requirements that must be satisfied before the court grants [declaratory relief]: (a) the court must have the jurisdiction and power to award the remedy; (b) the matter must be justiciable in the court; (c) as a declaration is a discretionary remedy, it must be justified by the circumstances of the case; (d) the plaintiff must have locus standi to bring the suit and there must be a real controversy for the court to resolve; (e) any person whose interests might be affected by the declaration should be before the court; and (f) there must be some ambiguity or uncertainty about the issue in respect of which the declaration is asked for so that the court’s determination would have the effect of laying such doubts to rest.

The Court of Appeal further elaborated on the requirement that a plaintiff have locus standi to bring the action, holding that the plaintiff must be “asserting the recognition of a ‘right’ that is personal to him”: see Karaha Bodas at [15]. The test laid down in Karaha Bodas is applicable in cases involving constitutional rights: see Tan Eng Hong v AG [2012] 4 SLR 476 (“Tan Eng Hong”) at [115].

To my mind, the applicant satisfies the requirements to apply for declaratory relief in the present case. Article 44 of the Constitution states that a person is qualified to stand for election as a Member of Parliament if he fulfils the requirements therein and is not disqualified under Art 45. It thus appears that the right to stand for election (provided the necessary pre-requisites are met) is properly characterised as a personal one. There is thus no need for the applicant to show that he has suffered special damage, which would have been required had declaratory relief been sought on the basis of a public right: see Vellama d/o Marie Muthu v AG [2013] 4 SLR 1 (“Vellama”) at [29]–[33]. One issue which arises is that the application in the present case can arguably be described as theoretical. The applicant has not yet had an application to stand for election as a Member of Parliament rejected on the basis of his being disqualified under Art 45(1)(e). However, I do not think that this prevents him from bringing the present application. In Tan Eng Hong, the Court of Appeal held that the court may exercise its discretion to hear cases involving applications for declaratory relief even though the facts on which the action is based are theoretical: see Tan Eng Hong at [143]. Here, I am satisfied that the hearing of a...