From contempt of court to fake news: public legitimisation and governance in mediated Singapore

The laws and public criticism

This article focuses on the four pieces of legislation cited above, as they are noted to have an impact on freedom of expression. It attempts to provide an understanding of the role played by publicised discourse for these laws, in the broader context of political legitimisation. There have been instances post-2015, where citizens have been charged and arrested under other laws that were deemed to curtail freedom of expression – human rights activist Jolovan Wham and artist Seelan Palay being two such individuals who have run afoul of the Public Order Act (Han, 2017). However, this article takes the view that, while the exercise of laws holds immense power, it is also in justifying the enactment and use of laws that grants the PAP government greater political legitimacy.

The Administration of Justice (Protection) Act, passed in 2016, was meant to ‘consolidate the key elements of the law of contempt into statute’ (Lim, 2016). These include ensuring that court orders are being followed, the right to fair trial and preserving trust in the judiciary. Cited advantages of the amendments to the Act include ensuring the subjects of pending court cases were not unduly disadvantaged during the trial and to protect the integrity of judges by clamping down on accusations of judicial bias. However, Members of Parliament from the opposing Workers’ Party (WP, 2016) have raised concerns about the Bill, which include excessive powers granted to the executive, a disproportionate increase in penalties for offenders and reducing the threshold for contempt of court. A local ground movement (The Online Citizen, 2016) and statements from two international human rights non-governmental organizations (NGOs), Human Rights Watch (2016) and Amnesty International (2016), have highlighted how the law violated freedom of expression and held the potential for political abuse, and have sought to point out issues with the Parliament debate. It is also worth highlighting that media observers have suggested that the Bill was ‘bundling popular and unpopular laws in policymaking … to ease the passage of controversial laws’ (Yap, 2016) in Parliament.

Amendments to the Films Act, passed in 2018, gave the Infocomm Media Development Authority (IMDA) – the government department responsible for regulating the media environment in Singapore – powers to enter private premises to search for and seize evidence without a warrant, if it suspects that there is a breach to existing laws, such as prohibited films and unlicensed screenings. The amendment to the Act was justified by the government based on the need to preserve Singapore’s racial and religious harmony, as it would grant the government greater latitude to take action against “undesirable content” that “can easily be disseminated locally, through the rapid and mass reproduction of films” (Abu Bakar, 2018). The amendments were preceded by a public consultation exercise conducted by IMDA, and witnessed a push-back by the film industry stating concerns that the amendments “will erode public confidence in the processes that regulate access to films in Singapore” (Seow, 2017). Activists from the arts community have also submitted a petition highlighting that the changes would “confer far too much power to IMDA officers” that purportedly “goes beyond what is expected of a media regulator” (Au-Yong, 2017). Members of Parliament also raised concerns about the tolerance levels of perceived breaches that would trigger IMDA to exercise such enforcement, and the ‘training and internal process … put in place “to ensure that these officers are equipped with the relevant knowledge to exercise their authority appropriately”’ (Abu Bakar, 2018). The opposition Singapore Democratic Party (2018) suggested that the law can be used against party political films in a bid to stifle and dismantle democracy.

The Public Order and Safety (Special Powers) Act or POSSPA, passed in 2018, drew much unease and criticisms from civil society. POSSPA proposed a Communications Stop Order (CSO) that aimed to minimise access to information by perpetrators during a terrorist incident that might grant them an advantage, allowing the police to stop citizens in the vicinity of the incident from filming and sharing videos of police and counter-terrorism operations, at risk of a hefty fine and prison time. Various incidents were cited in Parliament to justify the need for this law, including the Boston marathon bombing in April 2013 and the Paris terror attack in January 2015 (Moktat, 2018). The law was justified primarily on concerns that a compromise to security operations would lead to loss of lives. Members of the opposition raised concerns about the scope of the law, as it casts a wide net over the type of ‘serious incidents’ that can trigger the use of this law (Ong, 2018a). Civil society group have also raised concerns about this definition as well as what constitutes ‘public disorder’, suggesting that the government might use the law to give the police sweeping and excessive powers to quell peaceful protests. They also pointed out the risk that a ‘communications blackout’ during an incident might ‘heighten public distrust and undermine social cohesion’ (Rashith, 2018). In the debate, the government sought to allay fears by indicating that the law would have little effect on civilians, as it was meant to target terrorist incidents and downplaying the extent of powers given to the police (Ong, 2018b).

The government tabled the Protection from Online Falsehoods and Manipulation Bill (POFMA) in Parliament on 1 April 2019, with subsequent readings and the actual Act anticipated to be passed by the mid-2019. Even so, the intention for a law against online fake news was flagged by law minister K Shanmugam back in June 2017, calling its necessity a ‘no-brainer’ (Ng, 2017). Given the definitive tone used, it caught many by surprise that the government opted in January 2018 to appoint a Select Committee on Deliberate Online Falsehoods to study the issue through an open and public consultation process (BY Seow, 2018). This resulted in a total of 167 written submissions received by the Committee, of which 79 representors were called to give evidence at the hearings that lasted more than 50 hours over 8 days. In the lead up to and during the hearings, the government robustly defended the need for such legislation, citing the need to preserve Singapore’s fragile racial and religious harmony and democratic institutions from the violence and electoral manipulation that plagued other nations.

In spite of the broadly consultative look-and-feel of the exercise, the Select Committee received criticism from segments of the public at the close of the hearings about how the hearings were conducted. A number of those who gave evidence claimed that their views were misrepresented (Yahya, 2018), while civil society groups that champion human rights cited their unhappiness about how the hearings essentially became interrogation sessions for selected individuals (Yusof, 2018). More than 170 local and foreign academics also submitted a petition to the committee, calling for the chairman to apologise to Singaporean historian Dr Thum Ping Tjin, who gave evidence based on his academic research on Singapore history but was subjected to an extensive 6-hour-long interrogation that the petitioners felt was a threat to academic freedom (J Seow, 2018). Resistance from civil society and the international community continued after the POFMA Bill was tabled (The Online Citizen, 2019), with many citing concerns with the political over reach the law would give government ministers, and the harm such legislation would inflict on freedom of speech.

Despite strong public reaction against these new or revised laws, the Bills were eventually passed; and in the case of POFMA, the government has shown no signs of reneging on its earlier commitment for a ‘no-brainer’ law. Indeed, following the conclusion of the Select Committee hearings, the committee published its report indicating clearly a need for legislation (Sim, 2018), while committee member and Senior Minister of State for Law Edwin Tong had already signalled that these new laws would be passed in the first half of 2019 (Lee, 2018). However, while the super majority that the PAP holds in Parliament (83 of 89 seats) facilitates the rapid passing of laws, it would be prudent to examine the debate that surround these laws, as they are instructive to our understanding of Singapore’s parliamentary processes and how the political discourses that accompany these processes serve as a means of public legitimisation.

It is worth noting that the debate surrounding the Administration of Justice (Protection) Act, Films Act and POSSPA took place with much rigour in Parliament, with members from both the ruling and opposition parties rising to question and challenging the validity of the new laws. In the case of the Select Committee hearings on Deliberate Online Falsehoods, contentious views were held in many public submissions to the Committee, and a number of those who submitted their views were given the opportunity to air their views during the hearings. Each of these four legislations and, in the case of fake news, would-be legislation saw robust opposition and involved varying degrees of participation in the debate by opposing political parties, local and international civil rights groups and stakeholders. The public and much-publicised participation for each of the four cases have demonstrated that such debates and consultations were aimed mainly at presenting a semblance of democratic policy-making where the PAP government can be seen to take a consultative rather than authoritative approach towards its political opponents and lobbyists. The effect that such debates have on actual policy outcomes, however, is highly debatable. The case of POFMA, for instance, demonstrated that strong legislation was a matter of fact rather than a point of consultative deliberation – despite the protest from various groups and organisations, the government continued to argue that legislation was necessary (Lai, 2019), downplaying the concerns of these groups (Tong, 2019).

Law, power and narrative practices

Based on the above examples, it might appear that the PAP government is using its parliamentary super majority to hotfoot the passing of laws that would cement its political power, dismissing dissent in its path. However, the process of consultation does not suggest that the PAP intends to steamroll democracy, although government leaders have been forceful in putting their views across. As Foucault (1991a) notes, the modern state seeks to exercise ‘patience rather than wrath, and it is not the right to kill, to employ force, that forms the essence of the figure of the governor’ (p. 96). Indeed, in all of these cases, it is not the insistence that the PAP government owns the law-making agenda, but the incorporation of democratic elements into the formulation of these laws that grants the PAP, not supreme power, but a legitimised right to govern.

While the effect that the consultation process had on the wider Singapore population needs to be tested, what is clear is that the process itself was an attempt by the government to affirm its right to govern. The PAP has learnt that its authority cannot be secured and maintained by force alone – Cherian George (2007) pointed out that ‘even as it maintains and updates its arsenal of coercive powers, the Singapore government appears to have committed itself to the principle of strategic self-restraint, calibrating its coercion to get the job done with as little force as necessary’ (p. 140). Even so, it would be unwise to believe that such efforts at control have given way to a more consultative approach to governance. As Terence Lee (2008) noted, ‘popular rhetoric and buzzwords like “openness” and “inclusiveness” – cryptic terms that are politically correct and that “sound good” to most people’ are essentially the PAP’s effort to create ‘gestural politics’ (p. 172) that do little more than give a semblance of openness, without embodying the substance of democracy.

In essence, attempting to identify whether the PAP government is authoritarian or democratic is not as critical as understanding its desire to maintain control, and that this effort often does not take the form of coercive power but discursive engagement. Media governance in Singapore has skirted the boundaries between being draconian and liberal, where the market liberalism applied generously to the media industry as a whole, while deploying targeted measure to keep media practitioners in check. This approach similarly resonates with how the PAP manages other aspects of governance, where social and political pragmatism – that is informed by what Beng-Huat Chua (2017) calls an ‘antipathy to liberalism’ – dictates public policy ideology. However, attempts at disciplining media are far less the ham-fisted, direct applications of legal frameworks as popularly perceived. Terence Lee (2010) pointed out that media governance in Singapore required ‘a combination of regulatory instruments and strategies of co-optation and auto-regulation’ (p. 129), whereby the strategic use of policies, regulatory regimes and laws serve to encourage and convince, rather than dictate, the media’s and the public’s compliance with the government’s nation-building agenda.

Summarily, this attempted control cannot be seen in win-lose or tough-weak binaries, whereby an assertive executive is seen as a battle lost for democracy while an open consultative approach is seen as a defeat for authoritarianism. As all four cases above have demonstrated, it is possible to have tough laws while maintaining a consultative façade that is deemed acceptable to most, including the PAP’s political opposition and strongest critics. After all, ‘power is always a discursive relation rather than something which a person or group wields or bears’ (McHoul and Grace, 1993: 21). In Foucauldian terms, it is just as critical to see narrative practices – not just the forms of speech, but also the conditions in which such speech can take place – as an integral component of how power is exercised, an ‘open and doubtless indefinitely describable field of relationships’ (Foucault, 1991b: 55) where the practice of ‘establishing the positions occupied and modes of actions used by each of the forces at work, the possibilities of resistance and counter-attack on either side’ (Foucault, 1980: 163–164) enables power to be exercised.

As such, there is a need to examine the discursive practices that the PAP government engages in to win consent for it to exercise control and to win it from precisely the very subjects of its control. In the four cases cited, this happens using two interrelated approaches – the use of legal discourse where law is subservient to power; and the use of combative discourse where battle lines are drawn to entrench an ‘us versus them’ mentality between combatants and among intended audiences. Together, these approaches serve to entrench the legitimate right of the PAP government to govern on one hand and on the other hand to establish broad social consensus about the difference between a majority that agrees with this apparent right to govern, versus a critical and disruptive minority. In essence, it is about ‘the cultivation of a well-disciplined, hardworking, morally-minded, technology-savvy and well-tempered or regulated politically compliant citizen’ (Lee, 2014: 38) who willingly agrees with the rationalisation put forward by the government, as much as fear the effects of the laws that are meant to keep them docile and in check. In this system of political discourse, the PAP government is the legitimised governor not because it is the supreme law-making body – although it clearly is – but because it painstakingly justifies its use of law for the greater good, to which the majority rationally subjects itself to its exercise of power.

Law as subservient to power

In the discourse surrounding the four pieces of legislation cited above, while the key topic of discussion was the implementation and execution of laws, the laws themselves were subservient to the purpose of consolidating power for the government. The Administration of Justice (Protection) Act, Films Act and POSSPA were all to be enforced by the state, to the extent that the executive holds the sole discretion of what constitutes a breach of law that requires action. For instance, concerns over the potential for political abuse of POSSPA was allayed by a supposedly two-step check, where the home affairs minister activates the Act, which then allows the police commissioner to order a communications blackout. A court order is not necessary for this to take place – indeed, it was deemed a ‘better approach to enable the police to act swiftly, effectively and in good faith, and be held to account after the crisis is over’ (Ong, 2018b). Similarly for POFMA, the public was asked to put trust in the government’s prudent use of the law to quell falsehoods against government bodies, failing which the government ‘will be subject to costs and consequences’ (Tham, 2019). In effect, parliamentarians, civil society and the public are asked to put faith in the government that they will exercise the laws with due diligence with no independent oversight.

From the perspective of functioning democracies, this might appear to be granting inordinate power to the authorities, but there is a need to understand that laws remain subservient to governance, to the extent that laws are little more than tools of power to be exercised. As Foucault (1991a) notes,

with government it is a question not of imposing law on men, but of disposing things: that is to say, employing tactics rather than laws, and even of using laws themselves as tactics – to arrange things in such a way that, through a certain number of means, such and such ends may be achieved. (p. 95)

The purpose of this is not to use laws to demonstrate power; instead, it is the legislation process that allows governance to be achieved. In this way, we deviate slightly from Rajah (2018), who opined that ‘discourses that engage with questions of legitimacy might also be regarded as inherently legal in nature’ (p. 484). Conversely, legal discourses are by themselves a form of engagement with questions of legitimacy.

At times, this relationship need not be clear, and there are hints that power gives in to laws. Such was the case with the 2018 hearings of the Select Committee on Deliberate Online Falsehoods – even before legislation had been passed, clear attempts were already made to use the process of legislation as a tactic to legitimise power. In her critique of Singapore’s political use of its legal framework, Rajah (2018) noted the executive’s intent to ‘demarcate a specific enactment as beyond the expertise of the legal profession is to discursively subordinate “law” to power’, to the extent that ‘“law” lacks the capacity to scrutinise and limit power’ (p. 489). Rajah was describing the processes that revolved around the Select Committee hearings during the 1986 amendments to the Legal Profession Bill, but the hearings in 2018 for deliberate online falsehoods were similar in substance to what Rajah has outlined. For instance, law professor Thio Li-ann was asked to comment on the ability of the legal due process to identify fact from falsehoods, to which she responded affirmatively:

Lawyers and law academics at the hearings generally agreed that it was possible to define a deliberate online falsehood.

On this, Mr Shanmugam said falsehoods are already defined in various places in Singapore’s current laws, and the courts have ‘no difficulty identifying what is false and what is true’.

National University of Singapore law professor Thio Li-ann agreed, saying: ‘It is a question of evidence and procedure and certain facts are easier to establish than others, but we have to do it’.(The Straits Times, 2018)

While the above exchange might appear that the political elite were seeking advice from the legal fraternity, it was more indicative of an intent to gain consensus among those with legal expertise to assist with the definition of falsehoods. It is worth noting that at the time of this exchange, laws to tackle fake news has yet to be passed, but political power has clearly sought the concurrence of the legal fraternity on the necessity of such laws, to the extent of defining what ‘falsehood’ constitutes. After all, ‘(c)laiming a specialist knowledge of the law and a capacity to judge its application is itself a basis of authoritative talk’ (Fairclough, 1998: 158). Even so, the purpose of this legalisation process is not to locate a nexus of power in law. Instead, the significance of the process is to render all governable aspects of life – of the legal fraternity and the general population alike – as ‘matters for sophisticated regimes of government and complex forms of knowledge and expertise, and that all this is linked to the exercise of the sovereign power of the state’ (Dean, 2010: 115).

The use of the legislative process is by no means the only way that the PAP government attempts to affirm power and maintain control. Morgenbesser (2017) suggests that parliamentary elections have been used as a ‘faux version of democracy’ that works together with other institutions such as economic benefits and laws to maintain the PAP’s political stability, an inter-related process that also relies on ‘mutual reinforcement between co-optation, repression and … legitimation’ (p. 206). The legal system, and more specifically the legislation process, is but one of the many tools that the PAP government uses to establish control. Where the legislation process works best is its connotations that Singapore is a nation that abides by the rule of law, such that legitimisation is affirmed through a legal system that has the semblance of championing the rights of individuals but in essence seeks to subjugate the population, who are ‘instructed to be dutiful and subordinate to the knowing and authoritative state’ (Rajah, 2018: 486).

Battles of ‘us versus them’

However, what legitimises political power is not just the use of law and legal process but in defining boundaries and categorisations such that it is possible to draw sides in a debate, pit one side against the other, and to define an ‘us versus them’ framework such that audiences are called to align with ‘us’ in opposition to a ‘them’ that is generally perceived to be deviant and causing harm (even if only potentially). This process has the result of establishing social norms, which then ‘creates differences and inequalities in so far as it enables each to be individualized and hierarchically ordered in relation to it’ (Dean, 2010: 141). While the PAP government has within its capacity – by means of its super majority in Parliament and full control of the civil service – to assert its authority, it also recognises that naked authority will have no resonance with a population that obeys but does not agree with it. True legitimisation of political power occurs when the governed willingly consents to be governed, preferably with the view that such subjugation is for their own benefit, and in doing so are empowered to confer upon the government a genuine right to govern.

As the four cases cited above have demonstrated, much of this legitimisation is heavily dependent on the use of media discourse, which configures and established a distinction between ‘specialised roles of decision makers, on the one hand, and a diffuse citizenry as a source of legitimation, on the other’ (Goode, 2005: 94). Mediated discourse establishes legitimacy that has all the symptoms of democratic participation where the audience is called upon to affirm their own governance. The highlighting of certain issues and the mediated debate that ensues has a structuring effect on society, where the expertise to govern is placed on the governor/state, and the response to that governance is placed on the governed/audience. This should not be seen as mediated indoctrination that uses media as a source of state-led propaganda. Conversely, it is about focusing on the ‘relationships of tension and flow across as well as within various local orders of discourse in an (open) system that we might call the “societal order of discourse”’ (Fairclough, 1998: 145).

In the four cases cited above, the PAP government faced much resistance to the implementation of laws. While it has within its capacity to enact these legislative changes at will, given its parliamentary dominance, the government took pains to explain and elaborate on its position to the opposition and the public. Part of this was to allay concerns about executive over reach and political abuse of the new laws, but within the narrative were distinct attempts to narrow the perceived scope of harm, while at the same time elucidating on their benefits to the population. Each of these cases has demonstrated the PAP government’s intent not only to have its way with the laws but also to woo and win public opinion. McBeth et al. (2007) have noted that defining a policy decision as one, that is, maximising benefits – in the four cases, these were national security, social harmony and confidence in the judiciary – at the potential cost to a very narrow group of people – in the four cases, agitators, law-breakers and dissidents – typified a winning narrative that political agents use to convince the public about the strength of their position and to obtain buy in. For the PAP, it is not enough that the law comes into being, but that the population consents (typically by casting electoral votes) that the PAP has done well for their benefit, and by extension is amenable to the passing of such laws.

For instance, during the debate for the Administration of Justice (Protection) Bill, Shanmugam took pains to dismiss concerns brought up by the political opposition and activists, stressing that the law is meant to protect judges and would only affect those who are ‘attacking witnesses and judges, and trying to get certain results from the court’ (Lee, 2016). Shanmugam would continue to justify the need for the law in relation to a need for a high-quality and infallible judiciary (Ng, 2018). The new law was further exemplified in 2018 when a few Facebook users criticised a high-profile court case and received demands from the Attorney General’s Chambers to take down their post and apologise for ‘scandalising the Court of Appeal’ (Channel NewsAsia, 2018).

Addressing concerns about POSSPA, second minister for home affairs Josephine Teo stressed the importance of the law in ensuring that police operations are not compromised by terrorists using modern technology to film police activities, who might in turn ‘start to harm the victims in anticipation of police’s response’ (Ong, 2018b). Similarly for the passing of amendments to the Films Act, then communications minister Yaacob Ibrahim stressed Singapore’s vulnerability to ‘foreign influences and information campaigns that can undermine social values or sow discord among communities’ and downplayed accusations of excessive power given to the authorities since the law will only be exercised for ‘more serious offences’ and IMDA’s right to ‘enter and search without warrant will only be exercised on certain conditions’ (Abu Bakar, 2018). In the case of the Select Committee on Deliberate Online Falsehoods, not only has the government gone out of the way to prove and justify the need for new laws, but it has also sought to discredit those who hold a differing opinion by drawing references to their partiality and credibility by casting them as perpetrators of falsehoods (Lee and Puthucheary, 2018). As POFMA was debated, Shanmugam also sought to segregate offenders from the rest of the population, assuring the public that ‘ninety-nine per cent of the people don’t have to worry about what they do ninety-nine per cent of the time’ (Ho and Kwang, 2019).

From these examples, it would appear that the PAP government has demonstrated two qualities that Foucault (1991a) has identified as critical for effective governance: the governor must have ‘knowledge of things, of the objectives that can and should be attained, and the disposition of things required to reach them’; and the governor ‘should only govern in such a way that he thinks and acts as though he were in the service of those who are governed’ (p. 96). In passing the Administration of Justice (Protection) Act, Films Act and POSSPA and in the public debate on fake news, the PAP government has clearly identified the extent to which it can and will exercise its authority, as much as it has granted itself the right to full surveillance of the governed to fulfil this end. However, it is also careful to couch such extensive powers as necessary for the benefit of the governed and to exercise them prudently to serve those same citizens. It matters little that the powers granted the PAP government are indeed over reaching, pervasive and open for political abuse. Mediated discourse legitimises the PAP’s use of such powers for and often on behalf of the population, which marginalises those that fall within a purposeful definition of ‘the other’ or ‘the normal’. This is because, ‘(r)ather than functioning as law, which defines prohibited actions, a norm establishes a continuum within which one falls’, and ‘normalizing judgment selects individuals as its targets and objects of manipulation’ (Pickett, 2005: 13).

Conclusion

Accusations that the use of the legal system in Singapore as a means of stifling dissent are not completely unfounded. However, far more significant is that this legalisation process often involves discursive media practices aimed at affirming the PAP government’s right to govern, as much as set up discourses of conflict that marginalise dissent, even before such dissent can be disciplined using such laws. Viewed holistically, it would be insufficient to merely look at laws as the leading edge of power and control, as it matters just as much to the PAP government that this control is legitimised. This legitimisation is done through the legislation process more than laws themselves; and through the semblance of open engagement, such as debating with opposition politicians in Parliament and with other representatives at Select Committee hearings. Such engagements also construct ‘us versus them’ debates that affirm governance more so than the laws that are passed as a result.

Political critics have also criticised the PAP government for playing ‘rule by law’ rather than following the rule of law. But it would be more productive for academia and activists alike to focus less on the effects of the laws that are put in place. While such laws have a chilling effect of free speech and other civil liberties, it is of greater importance to examine the processes by which such laws are passed. The dual action of making law subservient to power and the creation of ‘us-them’ social binaries points to a sophisticated process of governance that is unique to Singapore, in that the PAP government genuinely believes in the need to establish such public legitimisation when it realistically does not need to, and that such legitimacy is willingly granted by a citizenry that by-and-large believe such domination in governance is to the benefit of the nation and themselves. It is even more unique that such methods of governance and legitimisation are earnestly played out in media, no less encouraged and fuelled by the PAP government. As such, scholarship about the PAP government might be looking at the wrong place if it only attempts to point out unjust laws and curbs to freedom that a sycophantic media ignore. Attention should instead be focused on why the governed do not mind, see as necessary or even desire such curbs to their own freedom, and how an engaged – even critical – media environment plays a pivotal role in establishing such a mindset.