Tuesday, June 11, 2013

The Broadcasting Act is fundamentally flawed

We've had our blackout online protest.  We have done our offline protest at Hong Lim Park.  The blogging community has made a loud enough statement to be heard.  But, as with many things in Singapore, though we might shout out loud, we may still not be heard. 

I was at Speakers' Corner on Saturday, 8 June 2013.  It was a remarkable job by the #FreeMyInternet chaps.  They managed to get themselves organized within a short time frame and got the message out to enough people to gather a decent crowd on Saturday. 

I know that the #FreeMyInternet movement made it very clear that their primary goal for the time being is the revocation of the MDA's latest licensing rules.  But, I am sure their ultimate desire is also to see greater freedom in terms of the traditional media as well. 

There is one thing that we need to be very clear about.  The current licensing rules are set out in the Broadcasting (Class Licence) (Amendment) Notification 2013.  By virtue of this notification, MDA can, at its discretion, remove any website from the Class Licence and require it to obtain a specific licence.  The problem is not really a result of this subsidiary legislation.  The problem is in the parent Act of Parliament itself.  Parliament has drawn up a provision that is so broad that it has authorised lawlessness. 

Under Section 8(2) of the Broadcasting Act,
"Every broadcasting licence, other than a class licence, granted by the Authority shall be in such form and for such period and may contain such terms and conditions as the Authority may determine"

This is equivalent to saying that the licence will be in 'x' form, for 'y' period and contain 'w' terms, where x, y and w will be determined by MDA. 

As for Class licenses, section 9 deals states the following:

9(1) The Authority may, by notification published in the Gazette, determine a class licence, being a broadcasting licence, for the provision of such subscription broadcasting services and other licensable broadcasting services as the Authority may specify.
(2) The Authority may include in a class licence such conditions as it thinks fit.
MDA may issue any form of class licence and impose any conditions. 
Sometimes when a legislative provision is vague and open to interpretation and there exists a danger that it could be interpreted too broadly, we might caricature that legislation by stating that Parliament could have simply given unfettered discretion to a public body to do as it pleases.  The Broadcasting Act has been drafted in such a manner that it literally gives that unfettered power to the MDA. 
In Chng Suan Tze v Minister of Home Affairs (1988), Wee CJ stated:
"All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so."
Ordinarily, the kind of case that the Courts would face involves a government body that exceeds the discretionary power that has been given to it by an Act of Parliament.  Clearly, the Courts would restrain any government body that attempts to do so.  But, the relationship between the Broadcasting Act and the MDA is such that the "four corners" that the Chief Justice referred to in the quotation above is missing from the legislation.  The legislation literally states that the MDA can do whatever it wants.  How did Parliament enact such a law in the first place? 

For Parliament to make a law stating that the Executive arm of government may do as it pleases is as good as signing off on a blank cheque.  The Broadcasting Act is MDA's blank cheque.  It is the hallmark of the rule of law that a government must be subject to and act in accordance with the law.  But, the Broadcasting Act makes a mockery of this principle.  MDA can easily impose any kind of licensing conditions and still claim that it is acting in accordance with the law.  A law that facilitates absolute discretion is only a law in form.  It fails to fulfill its true role in restraining the arbitrary exercise of power. 

In a kingdom, when a king wields absolute power and is not restrained in any way by the law we say that the king is the law, meaning that there is no rule of law in such a state.  What if the king decides to subject himself to the law and he forms a Parliament that would make the law and that Parliament makes a law stating that the King may do as he pleases?  Would we say that there is the rule of law in such a state?  We wouldn't. 

The Broadcasting Act must not facilitate discretion and the arbitrary exercise of power.  It must restrict the MDA's power. 

Friday, June 07, 2013

It is not about the Internet alone. We need to free the media as a whole.

Singapore has come some way since the days of near absolute information control and a pervasive climate of fear.  As a teenager in the 1980s, I remember clearly the oppressive political environment within which alternative voices and opposition politicians were operating.  Even when engaging in coffee shop conversation, there was a tendency amongst many of us to speak less audibly when it came to politics (or not at all) or to cast glances at possible undercover ISD officers.  This was especially so in the wake of the arrests and detention of alleged Marxist conspirators in 1987.  There were many that believed in the official version.  There were many that didn't.  But, one thing was for sure.  We knew that Big Brother was watching. 

From the time that JBJ broke through in the Anson by-election in 1981, there arose a certain excitement and expectation that more alternative voices would enter Parliament.  In the years that followed, there was a growing interest in opposition politics and alternative news.  Those days, with absolute control of the print media being exercised by the state, there was very little by way of alternative sources.  Many of us read in between the lines to make up our minds.  Newspapers that appeared to display an independent streak quickly disappeared.  I managed to get much of my independant information from foreign publications or books available across the causeway. 

Growing up in Singapore against the backdrop of constant propaganda and an undeniably constant climate of fear, the last ten years or so of online information availability has been a truly liberating experience.  For those of us that crave for different perspectives in a debate, the internet has provided us with not only access to information but also an avenue to express our opinion.  There was the often inevitable problem that letters to forum page of the main English daily that were too critical or against the national narrative would not see the light of day.  Those amongst us that had alternative views or perspectives were effectively shut out from the 'national conversion' (to borrow the current national cliche) of the past.

Blogging has provided many articulate Singaporeans an avenue for free expression and other Singaporeans who crave for alternative news a source of information.  Online content providers such as The Online Citizen have emerged as political game changers in many ways.  I am sure that many Singaporeans were relying heavily on alternative online sources for information during the last General Elections in 2011.  My blogs traffic increased tremendously during the GE and also the Presidential Elections.  I can only imagine the kind of increase in traffic that sites like TOC would have experienced.  Singaporeans have been increasingly consuming news online and let's be honest about it, many Singaporeans could well be influenced by the opinion and commentary that they read online. 

When the MDA's new licensing regime was announced last week, I was a little hesitant to brand it immediately as a regressive step and to brand it as an attack on the larger blogging community.  I wanted to read the wording of the regulations to understand whether legally it was possible for MDA to clamp down on alternative news sites.  At first, based on the MDA press release I wrote speculatively about what the government might be trying to accomplish and how it might accomplish it from a legislative standpoint.
Subsequently, when the MDA issued the Broadcasting (Class Licence) (Amendment) Notification 2013, the framework of MDA's action became much clearer and I blogged on this here:

The way that I see it the new licensing regime is sufficiently vague to allow for future licensing notices to be directed at sites such as TOC.  MDA has made assurances that the measure is not targetted at blogs.  The issue for me is not so much as to who is targetted now.  The question is whether alternative sites providing unfavourable content can be subject to licensing in the future.  During the Talking Point show that was aired on ChannelNewsAsia, Minister Tan Chuan Jin did allude to the fact that blogs reporting news could come within the ambit of the licensing requirement.  To be frank, TOC is a site that does not merely publish opinion and commentary on local events.  Some of their activities does involve news reporting.  During the last General Elections, we saw quite a fair bit of reporting from on the ground that was done by TOC.

Considering the fact that there are linguistic loopholes in the subsidiary legislation for the authorities to exploit, the blogging community has very little to go on except to hope that the PAP government will act in good faith.  The main reason for the online uproar is that the past political record of the PAP hasn't been positive from the standpoint of freedom of speech and expression.  Citizens are generally skeptical about the Ministerial assurances.  (Perhaps, as citizens we might have to wonder whether we are unfairly forcing the current generation of PAP leaders to bear the historical burden of their party.  I have reflected upon this often and tried my best to give the present PAP leaders a clean sheet to work from.  But, the historical baggage is difficult to erase from memory.) 

We don't know the real reason for the sudden announcement surrounding the introduction of the new licensing rules.  We suspect a hidden agenda.  We may or may not be right.  But, one thing is for sure.  If there had been a hidden agenda of gradually subjecting popular alternative sites to a regime of licensing (which involves financial constraints and take-down notices), then the uproar from the blogging community has certaintly acted as a persuasive force in preventing the MDA from taking such steps in the future.  If anything, a concession has been forced in the form of a public statement that the licensing regime is not targeted at bloggers.  It is a minor victory.  But, a victory nevertheless. 

If there was no hidden agenda, the bare mimimum that has been achieved this week is that the blogging community has sent a clear message that we value our limited space and are not willing to give it up easily.  Some of my friends asked me about the point of participating in a 'blackout' (on 6 June 2013) and whether it was a futile and self-defeating exercise.  My take on it is that if websites went on an indefinite blackout until the licensing regime is withdrawn, the blackout action would have been futile and stupid.  What was done yesterday was, in my view, symbolic.  It helped to demonstrate the broad cross-section of support that exists for the freedom of online space.  It was not merely the socio-political bloggers that participated in the blackout. 

Tomorrow, it is time to turn up at Hong Lim Park.  I am going down to show support.  I don't think that the task at hand is merely about reversing the licensing regime.  The current regulations as framed and as explained (defensively) appear unlikely to prevent online discourse and debate.  There are two broad tasks that we as a nation need to focus upon:

1.  Firstly, we have to recognise that the Broadcasting Act enacted by Parliament grants to the MDA too broad a power to institute a licensing regime with any restrictive conditions of licensing whatsoever and all of this can be done without any need for Parliamentary debate.  Just as MDA has introduced the current licensing regime, the MDA can replace it and introduce another licensing regime with entirely different conditions.  The Broadcasting Act has given too much discretionary power to the MDA and discretionary power with improper or no legal contraints is always a dangerous tool in the hands of those that might be bent on abusing that power.  To prevent such future abuse the Broadcasting Act must be amended to take away the general power of the MDA to set licensing conditions in a discretionary fashion. 

2.  Secondly, the traditional print media in Singapore has to be freed up.  The Newspapers and Printing Presses Act has to be either amended or repealed.  The key control mechanisms in this Act that prevent our mainstream media from acting in an independant fashion must be removed.  I have previously blogged about the legal structures that limit the press:
Minister Yacoob Ibrahim spoke about creating a parity of mainstream media and the online media.  Rather than taking the regressive step of introducing controls upon the online media to bring it on par with our MSM, we should take the progressive step of removing the controls on our traditional media.

Anyone interested in understanding the mechanics of legal control in relation to the press should read this book by Francis Seow entitled "Media Enthralled" 

In my reading of the current political situation I would not approach it with a sense of doom and gloom.  I believe that the political awakening of our citizens that has been going on over the last few years will be met and matched by a gradual political rehabilitation of our politicians.  As a country we have every reason to be optimistic since citizens are beginning to show a willingness to stand up for issues that affect the broader community instead of pursuing their own selfish goals.  The juggernaut of the popular desire for greater freedom has started moving.  Nothing can stop it now.  Singapore in 2013 is very different from the Singapore of the 1960s or the 1980s.

We take our pledge seriously and believe in it entirely.  We will strive towards a "democratic society based on justice and equality."