Singapore Democratic Party (SDP) vice-chairman John Tan Liang Joo, who was convicted for the offence of contempt of court last Oct, is seeking a declaration of his eligibility to contest in the next General Election (GE) from the High Court via an originating summons filed in the High Court on Tue (16 Jul).
In an affidavit dated 8 Jul, Tan listed his grounds for applying for a court declaration and his locus standi or the right to bring a legal challenge in court, namely:
- ‘Real interest’, as Tan is the vice-chairman and assistant secretary-general of SDP, as well as one of SDP’s candidates for the Marsiling-Yew Tee Group Representation Constituency in GE2015, in addition to intending to run for the next election;
- ‘Real controversy’, in which Tan argued that his right to contest in the next elections is now “prejudiced” due to his counsel Eugene Thuraisingam’s “erroneous submissions” and Justice Woo’s acceptance of the submissions.
Thuraisingam submitted that “a sentence of a fine of not less than S$2,000 would disqualify” Tan “from being a Member of Parliament for a time period of up to five years” if his client receives no free pardon, as stipulated by Article 45(2) of the Constitution.
Citing Chief Justice Sundaresh Menon’s “other professional or contractual consequences should not be relevant in the sentencing court” including political ones, Justice Woo, in rejecting Tan’s argument that it would be unjust to impose a fine of at least S$2,000, said that “a person who breaches the criminal law must expect to face the consequences under the criminal law whether or not he also suffers collateral consequences”.
Article 45(1)(e) of the Constitution of the Republic stipulates that a person convicted of an offence by a court of law in Singapore or Malaysia, and jailed for at least one year or fined at least S$2,000, and has not received a free pardon will be disqualified from being an Member of Parliament (MP).
The particular provision however, as advised by his acting solicitor M Ravi of Carson Law Chambers, “only disqualifies otherwise eligible citizens on convictions for criminal offences” [emphasis by Tan] – thus, scandalising contempt, he argued, is not a criminal offence under s3(1)(a) of the Administration of Justice (Protection) Act (AJPA).
“As such, I am eligible to qualify as a Member of Parliament and Woo J’s acceptance of my counsel’s submission was premised on an erroneous interpretation,” he said in his submission.
He did, however, attribute Thuraisingam’s “erroneous interpretation” to negligence or impropriety;
- Violation of personal rights, in that the a nomination of an election candidate under Section 27(2) of the Parliamentary Elections Act may be rejected if an objection made under section section 30(1)(c) of the same Act by either an opposing candidate in same electoral division or a Returning Officer is upheld. Tan fears that the amount of the fine imposed against him by Justice Woo will become the primary ground of objection for his nomination.
Citing a report by The Straits Times, Tan highlighted that SDP exco member Jufrie Mahmood was fined S$3,000 for scandalising contempt in 1988, which is the same offence as the one he was convicted for.
However, Ong Kian Min, the Returning Officer for the GE held that year, said that Mahmood’s nomination paper would not be rejected, as Article 45(1)(e) of the Constitution only relates to criminal offences, and that Mahmood’s scandalising contempt was not a criminal offence.
Tan also pointed out that based on his solicitor’s advice, the offence of scandalising the judiciary “is not a criminal offence per se, but quasi-criminal in nature”.
Section 22 of AJPA states that the Attorney-General has the power to compel police in writing to “investigate the alleged contempt as if it were an arrestable offence”. Tan, in his affidavit, argued that the “as if it were” suggests that contempt of court as stipulated under 3(1)(a) of the same Act is not an arrestable offence, and is subsequently not a criminal offence.
Section 33 of AJPA, he added, stipulates that the court may order “in like manner as a fine imposed by a court in criminal proceedings” the payment of a fine upon someone convicted of contempt, which he also argued suggests that proceedings for contempt are “not properly characterised as criminal proceedings”.
In summarising his application to the court for a declaration of relief, Tan said: “I humbly urge this Honourable Court to grant the relief sought in order to preserve my Constitutional right under Article 44 to stand in the upcoming General Elections.
“As it stands, my candidacy to stand for elections is also affected by the judgement in Jolovan Wham (Sentencing) as my party will not be able to nominate me to contest in the upcoming General Elections,” he added.
On 29 Apr, Justice Woo Bih Li imposed a S$5,000 fine against Tan and social worker Jolovan Wham respectively for the offence of scandalising contempt.
In addition to the fine, Wham and Tan were required by Justice Woo Bih Li to pay S$2997.82 and S$1966.39 respectively in legal costs and disbursements to the Attorney-General’s Chambers (AGC).
Eugene Thuraisingam, their defence lawyer at the time, stated that both Wham and Tan will be appealing against the fines and disbursement fees.
On the same day their sentences were doled out, Mr Thuraisingam sought lighter penalties on behalf of the two men, namely a fine of S$4,000 to S$6,000 for Wham and a shorter jail term of seven days for Tan instead of a fine.
Tan is expected to make his next appearance for a pre-trial conference scheduled to be held this 25 Jul.