Government retains the same old climate of administrative discretion with regards to political films

Written by Ng E-Jay
11 January 2009

As my readers probably are aware by now, the Government, in its response to the recommendations made by the Advisory Council on the Impact of New Media (AIMS) on addressing the legal and regulatory issues associated with the Internet and New Media, has made it clear that the liberalization of the Films Act should be carried out in stages, and that only certain political films will not be banned. The Government’s detailed response, which was summarized by Dr Lee Boon Yang at a media conference on Fri 09 Jan, is uploaded here.

The philosophy underlying the Bloggers 13 recommendations on the liberalization of online political content is that attempts to prohibit or curtail the manufacture or distribution of online political content is unjustified in principle in the interest of free speech, and that the freewheeling and borderless nature of the Internet has rendered any attempts at Government control of online media ineffective. If rules are unenforceable in practice, they should be abolished. Furthermore, there are already adequate laws governing the areas of racial and religious hate speech and criminal defamation. These laws apply equally to both offline and online content, and hence there is no need for further laws over and above existing ones which give the Government too much administrative leeway to decide what content is permissible or not.

In AIMS’ own words: “Government regulation should be used only as a last resort, because using laws as a first measure to deal with online problems is unwise as the Internet and its users are continuously evolving and can creatively route around laws and regulations, especially if they are not well thought-through.”

To some extent, each of these ideas are espoused in the AIMS recommendations to the Ministry of Information, Communication and the Arts (MICA). However, they appear to have very limited influence on the Government’s response to those recommendations, as the Government has still insisted on retaining much of the same old climate of administrative discretion with regards to political films. Essentially then, the same tools of suppressing political dissent and curtailing free political discourse that existed before are still equally available for use by the Government at its own discretion.

Only certain party political films allowed

The Government has accepted the AIMS’ proposal to take a phased approach in liberalizing the Films Act. As a first step under the phased approach, the Government will amend the Films Act (Section 33 in particular) to allow for certain types of party political films that it deems to be “factual and objective, and do not dramatise and/or present a distorted picture”. These will include factual documentaries and footages, recordings of actual events, and biographies or autobiographies.

The Government has accepted AIMS’ recommendation to establish an “independent” advisory panel consisting of “citizens of high standing who are non-partisan” to decide if films are party political films and if they should be allowed under the amended Films Act. The advisory panel will be chaired by Mr Richard Magnus, retired Senior District Judge and Chairman of the Casino Regulatory Authority.

It is perhaps fitting that a person involved in Singapore’s future casinos is appointed to chair this advisory panel as the Government certainly is gambling on the naivete and patience of Singaporeans in seeing whether lipstick put on a pig can turn bacon into caviar.

Aside from my own strong personal convictions that political content, whether offline or online, should never be regulated, it is natural to ask what the exactly the Government means by “factual and objective”, or “do not dramatise or present a distorted picture”?

Perhaps films like “One Nation Under Lee“, “Zahari’s 17 Years” and “Speaker’s Cornered” produced by Mr Martyn See, or “Burmese staged peaceful demonstration in Singapore” and “Roo boys hip hop from Queenstown prison” shot by Mr Ho Choon Hiong, or “Singapore Democratic Party’s petition to Malaysian Government” would be deemed as “dramatizing or presenting a distorted picture”, whilst films of PAP MPs doing their walk abouts, hugging and kissing babies, or the video of Mr Lee Hsien Loong telling a lunchtime crowd in the run up to the June 2006 General Elections that he would spend time fixing the Opposition should 10, 20 of them be elected into Parliament would be deemed “factual and objective”.

In Singapore’s fight for Independence five decades ago, many rousing campaigns were carried out by political parties existing at that time, including the PAP which took power in 1959. Emotions were high as people fought not just for Independence and dealt with issues such as the communist insurgency, but also contended with daily struggles such as poverty and education. Would political films from that era be deemed too “emotional” to the extent that they have the potential to mislead the people?

Perhaps Ms Chua Lee Hoong’s claim that Dr Chee appears to be suffering from anti-social personality disorder (see here and here) will be deemed “factual and objective”, but SDP’s claims that Singaporeans are being denied their basic rights “dramatises and presents a distorted picture”.

In the words of blogger Molly Meek:

The (Government) is probably unmatched in the world for making oppression sound noble whilst pretending that there is increasing openness. As if it is not enough to throttle you, it will gently inform you that it is loosening its grip while giving a pathetic excuse for continuing the strangulation, as if to further mock your helplessness.

… …

Try saying that the PAP has unscrupulously bankrupted opposition politicians through defamation suits. That’s probably not factual, not objective and distorting the truth.

But if the PAP smugly calls Chee Soon Juan a cheat and a liar, they are stating facts objectively.

… …

As far as I can see, in Singapore “non-partisan” has always been roughly synonymous with a predisposition towards the PAP, a reflex of being paranoid about all that opposes it, and a general acceptance of the dominant ideology.

Source: Nobly Oppressive by Molly Meek

I wrote in my views of AIMS final recommendations regarding online political content that:

… it is unreasonable and unconscionable to allow an arbitrary committee formed by the Government to decide whether a film is misleading or not misleading. The onus is on the public and on private researchers to make that conclusion, and EVEN SO, whether a film is deemed misleading or not should not be used as a justification to infringe on the right of a person to produce and distribute it.

Any Government-formed committee with the power to decide whether a political film is misleading and to ban it on that account will bring us right back to square one.

The Government seems intent on “disallowing what would be dramatised, sensationalistic and emotive party political films which will do harm to rational and objective political debate”. Yet all the adjectives “dramatic”, “sensationalistic”, “emotional”, cannot never be precisely defined in a legal sense, and as such are open to a wide range of interpretation. Imagine having an advisory panel with the power to apply its interpretation of these adjectives selectively and with the ability to recommend to the film censors that a film be banned based solely on its subjective interpretations.

Furthermore, there is the implicit assumption that highly charged emotional political debate is necessarily detrimental. In mature democracies, politicians debate each other and trash out the issues with a great deal of rhetoric and emotion, but society is made more lively by such discourse. President-elect Barack Obama won the hearts of minds of millions with his “audacity of hope”, by promoting “change we can believe in”, and by telling Americans “YES, we can!” I wonder if the PAP will deem this detrimental.

Section 35 of the Films Act

The Government has also accepted AIMS’ recommendation to retain Section 35 of the Films Act, which gives the authorities discretion to prohibit the possession or distribution of any film that they deem contrary to “public interest”.

Ostensibly, the retention of this part of the Films Act is to give the authorities the ability to ban harmful films like the “Finta” video. Films banned under Section 35 will not be party political films.

But more insidiously, the Government has said that “there is no need to consult the advisory panel” before banning a film under Section 35, and that the authorities are neither required to spell out the basis of any ban nor give reasons.

The spurious logic applied by the Government is highly questionable. If there is a good reason why a non-party political film must be banned, why should the reason for the ban be withheld from the public? Why is so wrong about revealing that a film is banned because it is racially inflammatory, or that it incites violence and hatred?

Unless of course one of the underlying reasons for retaining Section 35 and for the authorities to be given leeway not to disclose the reason behind the ban is to give them the ability to apply this ruling selectively to silence political dissent at their own private discretion.

I wrote in my views of AIMS final recommendations that:

Martyn See’s video documentary “Zahari’s 17 years” was not banned under Section 33, but under Section 35 of the Films Act. This example should alone show that even in the absence of Section 33, the authorities can easily fall back on Section 35 to continue their agenda of repression.

For his film “Singapore Rebel”, Martyn See was placed under police investigations, had his tapes and camera confiscated, and even his friends and acquaintances were called up for interviews. (See here.) This was all because he produced a film which the authorities decided were in contrary to “public interest”.

Extending positive list for election advertising

The Government accepts the AIMS’ recommendation to extend the positive list for Internet election advertising. It will allow election candidates and their political parties and agents to use podcasts, vodcasts, blogs and other new media tools for Internet election advertising. Examples include producing podcasts or vodcasts on election manifestos, election rally speeches, the party’s press conferences and constituency tours to promote the election candidates. Individuals will also be allowed to participate in Internet election advertising.

Retention of registration requirement for individuals, bodies of persons and political parties

Currently, the Class Licence Scheme compels political parties and organizations that engage in the discussion of political or religious issues through the Internet to register with the MDA. The MDA also has the discretion of compelling registration from individuals whom it deems “persistently propagate, promote or circulate political issues relating to Singapore” through the Internet.

The Government will retain the registration requirement for websites of political parties as well as for individuals or bodies of persons who provide any programme for the propagation, promotion or discussion of political or religious issues on the Internet. The MICA writeup says that: “This is to maintain a higher level of responsibility and accountability of those behind such websites, as some members of the public had also advocated, and to remind them of the need to be responsible in such matters of public discourse.”

AIMS had previously proposed that the registration requirement be removed as there is already adequate legislation in place, applying equally to both online and offline content, to deal with abhorrent behaviour such as as racial or religious hate speech or criminal defamation. I agree with AIMS’ stand on this. It is disheartening that the Government does not see this point.

In my view, Section 78A(1)(b) of the Parliamentary Elections Act which allows the authorities to regulate election advertising on the Internet at their discretion should also be repealed in the interest of freedom of speech and expression, and because the legislation gives the authorities too much leeway to discriminate between different political parties. Neither AIMS’ original report nor the Government touched on this piece of legislation.

Retaining the Class License Scheme

The Internet Class Licence Scheme covers both Internet Content Providers as well as Internet Service Providers and deals with undesirable content like child pornography or extreme violence in addition to political content.

Under the so-called “light touch approach”, Internet Content Providers are first given a warning or take-down notice by the MDA to take down any offensive content. They would usually comply and there would be no prosecution.

The MICA writeup states: “This is an appropriate measure against the less serious offenders. Abolishing the Class Licence Scheme would remove this less severe option. All errant content providers would then have to face prosecution under other laws like the Sedition Act or the Penal Code. This may not be desirable.”

I wrote in my views of AIMS final recommendations that:

To me, this sounds as nefarious as a watered down version of the Internal Security Act.

(The authorities believe) that without the “option of a light-touch administrative discretion” such as issuing a warning to the offender, the only choice for the Government would be to charge the person in Court. However, we have witnessed on several occasions bloggers being dragged to Court and charged under the Sedition Act for posting racially offensive comments without ever having the benefit of a “light-touch”.

On the other hand, in 2005, the MDA issued take-down notices to Fridae.com for depicting incest and blacklisted Fluffboy.com for paedophilia, without resorting to Court action.

If the Class Licence Scheme does provide the Government the means of using a “light-touch”, it seems to me the Government is not exploring that option consistently.

In my opinion, the entire class Licence Scheme should be dismantled. The reasons are as articulated in the Bloggers 13 response to the initial AIMS consultation paper in August (2008):

The Class Licensing Scheme is distinct from the registration requirement, in that it treats all Internet sites as automatically licensed even if owners are not called on to register. As automatically licensed sites, the Media Development Authority (MDA) treats them as coming within the scope of the Internet Code of Practice, and sees itself as having the power to impose fines on any website for violating its Code of Practice. It is this kind of regulation through administrative discretion that we have argued against, for it is characterized by an opacity of process, and the free hand given by the MDA to itself to write and interpret the Code of Practice. As the AIMS’ paper says, there is already adequate legislation in place, whether to deal with child pornography or racial and religious hate-mongering, so there is no remaining rationale for resorting to an automatic Class Licence Scheme administered by the MDA. The continuance of such a scheme, with its inherent lack of certainty in interpretation and avenues for recourse promotes self-censorship, which is the antithesis of the engagement and active participation that the consultation paper calls for, where “processes are more transparent, eliciting the trust of its citizens.”

The conclusion to all this is best expressed in Molly Meek’s blog post:

Not only does the (Government) has power, it also stands on the Mt Everest of morality. Its intentions are so noble and unquestionable that you can only grit your teeth hoping that your arteries do not burst in frustration because your oppression is denied and rendered utterly inarticulable. It is different from being trapped in Stalin’s Russia or Pol Pot’s killing fields where you can state your condition and gain international recognition. The acme of oppression is reached when your tears of angst flow inwards to flood your lungs and drown the heart throbbing with injustice. But no one will now hear the heartbeat. “Kill me,” you say. But you, and you alone, feel the tremors of your pulse.