Films (Amendment) Bill
23 March 2009
23 March 2009
Mr Siew Kum Hong (Nominated Member): Mr Speaker Sir, this Bill is being introduced in the wake of the report by the Advisory Council on the Impact of New Media on Society (AIMS). AIMS made a total of 26 recommendations to the Government, including recommendations relating to sections 33 and 35 of the Films Act. In particular, AIMS recommended that section 33 be repealed in phases.
These recommendations pertaining to the Act were rejected by the Government. Instead, the Government announced some limited changes to the scope of section 33, while declining to amend Section 35 at all. This Bill introduces those limited changes to the scope of section 33.
Sir, my own view is that AIMS was fundamentally correct in recommending that section 33 be repealed. I am not sure if I agree with AIMS that the repeal should be conducted in phases, but that is now moot. Section 33 prohibits the making, distribution and exhibition of party political films. Section 2 adopts a broad definition of “party political film” that is overly-inclusive, that seeks to censor films based on their format and not on their substantive content, and this results in a potential chilling effect on film-makers. I remain unconvinced by the reasons for singling out film, when the printed word is equally capable of distortion and deception, when a well-written commentary can be even more powerful than a poorly-made film.
This prohibition on party political films is also easily and widely flouted in today’s Web 2.0 world, and maintaining such an unenforceable prohibition simply promotes disrespect for the rule of law, which is an unhealthy state of affairs with insidious, far-reaching repercussions. Finally, Singaporeans are today far more sophisticated and media-savvy than before, and should be trusted to judge the merits and demerits of films for themselves.
Be that as it may, the Government has made it clear that section 33 will not be repealed. Instead, this Bill seeks to make what seems like an incremental liberalisation, with an expanded list of films that are deemed not to be party political films.
However, even as the list seems to be expanded and longer, an important exception has been removed. The existing section 2(3)(a), which will be repealed, provides that films made by anyone solely for the purpose of reporting current affairs are not deemed to be party political films. This has been replaced by four specific, limited exceptions, namely, films made solely for the reporting of news by a licensed broadcasting service; films recording "live" the whole or a material proportion of a lawful performance, assembly or procession that does not depict any event, person or situation in a dramatic way; films designed to provide a record of a lawful event or occasion, for its participants or persons connected with its participants; and documentary films without any animation and composed wholly of an accurate, non-dramatic account depicting actual events, persons or situations, which does not include unscripted or reality-type programmes.
To my mind, these four specific exceptions are narrower in scope than the existing section 2(3)(a). For instance, what is the justification for limiting the exception for the reporting of news, to licensed broadcasters only? This seems completely incongruent with the Senior Minister of State's recognition of the realities in today’s Web 2.0 world, and seems designed to inhibit the work of new media and citizen journalists and bloggers.
More importantly, these four specific exceptions do not seem to represent a true liberalisation of the position on party political films, and in fact could narrow the scope of what is permissible. In particular, the prohibitions on recordings of unlawful events and occasions seems odd. This was not an issue that was canvassed at any point during AIMS’ deliberations. The holding of an unlawful event is prohibited under other existing laws, and it is not clear why the creation of a video recording of such an unlawful event should be illegal.
It is also likely to create what can be called a nation of innocent criminals, eg, bystanders watching an assembly or procession may whip out their mobile phones to record videos of the event. They may not know whether the event was being held in accordance with the law. If it was not, then they would be creating an illegal party political film. If they upload it to a website like YouTube, they would be distributing an illegal party political film. This is the precise problem that AIMS was constituted to address: laws that are out-of-sync with the times and that will invariably be ignored and flouted. So, why are we going out of our way to institute new legislation that we know will be disregarded and broken?
It is arguable that the exception regarding documentary films that accurately depict actual persons and events, including unlawful events, could apply to the situation that I have just described. Yet, the term “documentary film” is not defined, and its use suggests that this exception requires the film to be something more than a mere video recording, since the term “documentary film” must necessarily be something more limited in scope than a “film”, which is the term used in the other exceptions. This exception is also problematic - documentary-makers will invariably have to edit their raw footage, but such editing could potentially remove them from the scope of this exception.
The new exceptions are also difficult from a lawyer’s perspective. Prof. Thio has very ably and cogently pointed out the difficulties with section 33 from a constitutional perspective. On a more technical level, these amendments introduce terms that are not defined, in a way that makes their application of uncertain scope. I have already mentioned the term “documentary film” in the new section 2(3)(e). Other new terms of ambiguous scope include “depiction in a dramatic way” as used in the new sub-sections (3)(c) and (3)(e)(ii), and “dramatic elements” as used in the new sub-sections (3)(f) and (3)(g). It would have been preferable to define what they mean, so that courts seeking to interpret these terms will have some guidance.
The final point I would make on this Bill, is that it does not amend section 35, as recommended by AIMS. Section 35 allows the Minister to ban any film that he considers to be “against the public interest”, without giving any reason. AIMS had recommended that the permissible reasons for banning films under section 35 be spelt out clearly, that an independent advisory panel be formed to advise the Minister before a film is banned under Section 35, and that the Minister be obliged to give reasons for the ban. All three proposals have been rejected.
The status quo gives the Minister broad powers to ban films, while not making him accountable for any decision banning a film. This is wholly imbalanced and does not pay sufficient respect to Singaporeans’ constitutional right to freedom of speech. While we all accept that limitations on constitutional rights do exist, we should also accept that such limitations must be calibrated and limited, and also transparent and accountable. Most of all, they must be constitutional, and limiting the grounds upon which films can be banned under section 35 as proposed by AIMS would go a long way towards ensuring the constitutionality of this provision and its use by the Minister.
True, in the only known instance of a ban under section 35, the Minister did give his reasons for doing so. But giving reasons is at the discretion of the Minister. My view is that since this is a limitation on a constitutional right, the proper position is to require the Minister to justify any ban under section 35, with an exception where the very disclosure of the justification could prejudice national security, in which case the Minister has to explicitly state that and give reasons where practicable.
Sir, I would normally welcome any liberalisation on matters of free speech. But these amendments to the Films Act do not seem to represent a material or true liberalisation of the current position, and they are also potentially problematic in their phrasing. The objective in constituting AIMS was to review existing legislation in the face of advances in digital technology, and to suggest necessary updates to the law. As I have said, it is not healthy to have laws on the books that are consistently and openly broken by Singaporeans. This is the reality with the existing regime under the Films Act. My belief is that it will also be the case with these present amendments, in which case, why bother?
The Senior Minister of State has pointed out that the prohibition on party political films has an offline aspect as well, and that is true. But implicit in that, is the acceptance that the amended prohibition on party political films will continue to be ignored online, and an admission that enforcement will continue to be absent in the online environment. But this is then an unjustifiable and unfair discriminatory practice against the offline population, in a sense that the prohibition is applied against them but not to the online citizens.
Because of this, I cannot support this Bill. It is bad law, it would not fix the problems that need to be fixed, and I cannot in good conscience support such a piece of legislation.
Sir, with that, I oppose this Bill.
The Senior Minister of State for Information, Communications and the Arts (RAdm [NS] Lui Tuck Yew):
Let me touch on sections 33 and 35 because I think many Members have spoken out and raised issues regarding these two particular areas. Prof. Thio Li-ann, Mr Zaqy Mohd, Mr Siew Kum Hong, Ms Sylvia Lim, amongst others, spoke on section 33, why are we not decriminalising the making of party political film as recommended by AIMS. Our position is that the Government is only disallowing what would be dramatised, sensationalised and emotive party political films which will do harm to rational and objective political debate. And so we feel that there is strong reason to maintain the sanction against the making of such films. But bear in mind also that while we retain this clause and we have always had this clause since the inception of the Bill, we have not prosecuted anyone for the making of a PPF to date. That is an important point, that while it is retained, it is there and has been there over the last 10 years, there has been no move to prosecute anybody. So moving forward, whether or not a film-maker will be prosecuted for the making of a PPF, it is not an automatic process but it will have to depend on the facts and the significance and the merits of each case.
Section 35; Again, same members have raised their issues and comments on section 35. Let me clarify a misconception that this is a so-called backdoor way to catch the rest of the films that would otherwise have passed, because section 35 is not against PPFs; it is not to be used against party political films. PPFs, unless they fall under the exceptions, will already be banned from the onset, and there is no need to apply section 35 to such films. Section 35 is meant and reserved for serious situations where due to the circumstances of the day, the possession or distribution of the film would actually be contrary to public interest - presenting a threat to national security, danger to racial or religious harmony, and perhaps affecting even the very fabric of our multi-racial, multi-cultural society. Members have noted that so far, we have only used section 35 once and that was on "Zahari's 17 Years", and the Minister had come up with a press statement to fully explain why he issued the ban. We did not want to impose on the Minister the need to make such a press statement or to have to explain every time he exercises the jurisdiction to impose such a ban. But, where possible, he will indeed do so. But for those who have forgotten what "Zahari's 17 Years" was all about, the film was a revisionist attempt to have a distorted and misleading portrayal of Zahari's arrest and detention. It was an attempt to exculpate himself from his involvement in communist activities against the interest of Singapore. He had posed a security threat for which he was detained under the ISA, and he now wanted to exploit the use of film to project false and distorted picture of his past actions, and that is why the ban was made. It was not a political film.
There were also comments as to whether this signals any change with regard to the way we view the Internet. Let me explain our position with regard to films on the Internet. First of all, the Films Act governs both offline and online films. But the Government had decided to adopt a three-pronged approach towards regulating the Internet. First, we say we will take a light-touch approach via the class licence scheme. Second, that we will couple this with public education and, indeed, we followed up on one of the AIMS' recommendations to have inter-ministry cyber-wellness taskforce. Because we recognise that public education really would lay the foundation for further moves to expand the political space in this area, and to make sure that people exercise the right degree of discernment, judgement, to view things not in isolation but to be able to see things in totality, to recognise the larger picture and not to be misled by seductive arguments narrowly focused on a particular area. And the third limb, besides light touch and public education, was industry's self-regulation and co-regulation. And, basically, we will not deviate from this, going forward. Films that are available on the Internet will have to continue to abide by the class licence scheme as in the past.