Offence of scandalizing the court in Singapore

The courtroom in the Old Supreme Court Building that was used for sittings of the Court of Appeal, photographed in August 2008

In Singapore, the offence of scandalizing the court is committed when a person performs any act or publishes any writing that is calculated to bring a court or a judge of the court into contempt, or to lower his authority. An act or statement that alleges bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function falls within the offence. The High Court and the Court of Appeal are empowered by section 7(1) of the Supreme Court of Judicature Act (Cap. 322, 2007 Rev. Ed.) to punish for contempt of court. This provision is statutory recognition of the superior courts' inherent jurisdiction to uphold the proper administration of justice. The Subordinate Courts are also empowered by statute to punish acts of contempt. Although Article 14(1)(a) of the Constitution of the Republic of Singapore protects every citizen's right to freedom of speech and expression, the High Court has held that the offence of scandalizing the court falls within the category of exceptions from the right to free speech expressly stipulated in Article 14(2)(a). Some commentators have expressed the view that the courts have placed excessive value on protecting the independence of the judiciary, and have given insufficient weight to free speech.

In Singapore, an "inherent tendency" test has been held to strike the right balance between the right to freedom of speech and the need to protect the dignity and integrity of the courts. To establish the offence, the claimant must prove beyond reasonable doubt that the act or words complained of have an inherent tendency to interfere with the administration of justice. The inherent tendency test has been held to be justified by the small geographical size of Singapore, the fact that there is no jury system and that judges have to decide both questions of law and fact, and that the test renders proof of damage to the administration of justice unnecessary.

Although Singapore law does not set out the sanctions that may be imposed for contempt of court, it is accepted that the courts may impose reasonable fines and imprisonment. To decide what punishment is appropriate, the culpability of the offender and the likely interference with the administration of justice are considered. The only defence available to the offence of scandalizing the court is to prove that the allegedly contemptuous act or statement amounts to fair criticism, which involves showing that the criticism was made respectfully and in good faith.

Nature

"Contempt of court" is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes.[1] Despite the many forms it may take, contempt of court can be divided into two broad categories, contempt by interference and contempt by disobedience.[2]

Scandalizing the court is an example of the first category. It comprises matters such as disrupting the court process itself (contempt in facie curiae – in the face of the court), publications or acts which risk prejudicing or interfering with particular legal proceedings, and publications or acts which interfere with the course of justice as a continuing process (for example, publications which "scandalize" the court). The second category comprises disobeying court orders and breaching undertakings given to the court.[3]

The criminal offence of scandalizing the court is committed by any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority.[4] Any publication which alleges bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function falls within the offence of scandalizing the court in Singapore.[5]

Source of power to punish contempt

Fundamentally, the power to punish contempt is not derived from statute or from the common law per se but instead flows from the very raison d'être for a court of law: to uphold the proper administration of justice.[6] All courts have an inherent jurisdiction to punish contempt committed when the court is in session by invoking a "summary process", meaning that the judge in front of whom the contemptuous act is committed may speedily order the contemnor to be punished.[7] However, inherent jurisdiction to punish contempt committed outside court resides exclusively in the superior courts.[8]

The High Court and the Court of Appeal are empowered by section 7(1) of the Supreme Court of Judicature Act[9] to punish for contempt of court. In a 1991 case, the High Court held that this was statutory recognition of the common law misdemeanour of contempt of court.[10] The Subordinate Courts' power to punish acts of contempt can be found principally in two statutes, section 8 of the Subordinate Courts Act,[11] and section 410 of the Criminal Procedure Code 2010.[12]

Constitutionality

The 1999 Reprint of the Constitution of the Republic of Singapore

Article 14(1)(a) of the Constitution of the Republic of Singapore[13] protects every citizen's right to freedom of speech and expression. This fundamental liberty was derived from the Federal Constitution of Malaysia when Singapore separated from Malaysia with effect from 9 August 1965.[14] The Reid Constitutional Commission of 1957, which recommended that this provision be included in Malaysia's independence constitution, thought that this freedom was an "essential condition for a free and democratic way of life".[15] However, as such a freedom cannot be unfettered, Article 14(2)(a) of the Singapore Constitution states, inter alia, that Parliament may by law impose on the rights conferred by clause (1)(a) restrictions designed to provide against contempt of court.

In 2006, the High Court held in Attorney-General v. Chee Soon Juan that the offence of scandalizing the court falls within the category of exceptions from the right to free speech expressly stipulated in Article 14(2)(a), and that the Article clearly confers on Parliament the power to restrict a person's right of free speech to punish acts of contempt.[16] As a democratic society, Singapore has always recognized the need to ensure the independence of the judiciary. As the judiciary acts as a check and balance on the Cabinet and the Parliament, its integrity is of utmost concern in ensuring legitimacy of the Westminster model of governance. It is within this context that, in a 1991 decision, the Court expressed the view that freedom of speech "must be balanced against the needs of the administration of justice, one of which is to protect the integrity of the courts".[17] The rationale for the law of contempt is rooted firmly in the public interest. It aims to protect the administration of justice as well as public confidence in it, which is crucial for the rule of law and the maintenance of law and order in any democratic society. It is not intended to protect the dignity of the courts or judges.[18] When such interference is suppressed, it is because the structure of ordered life is at risk if the judiciary are so flouted and their authority wanes and is supplanted.[19] Though the right to freedom of speech and expression is guaranteed under the Constitution, it does not mean that anyone is entitled under the guise of that freedom to make irresponsible accusations against the judiciary so as to undermine public confidence in the administration of justice.[20]

Some commentators have expressed the view that excessive value has been placed by the courts on protecting the independence of the judiciary, and that insufficient weight has been given to the right to freedom of speech. One assumption said to be incorrect is that undermining public confidence in the administration of justice is in all circumstances harmful to the public interest. Arguably, if the scandalizing allegation is true or is an opinion honestly and reasonably held, then it is in the public interest that such speech be heard precisely because of the importance of the judiciary to society.[21] However, common law rules of contempt do not recognize the defence of either justification or fair comment which are available to the tort of defamation.[22] Secondly, the claim that scandalizing the court may undermine public confidence in the judiciary represents an unduly pessimistic view of the maturity and ability of the Singapore public to assess for itself whether or not the scandalizing speech is true, and is perhaps a sweeping statement as to general public awareness.[23] Lastly, it is also assumed that public confidence in the judiciary can be preserved by the suppression of scandalizing speech. However, it is unlikely that such speech can ever be completely suppressed. It would be impossible to monitor speech that goes on in homes, coffee shops and hawker centres. Through these informal channels, suspicions of the judiciary may fester and grow.[24]

Test for the offence

"Real risk" test

A "real risk" test applies in many common law countries, including Hong Kong,[25] New Zealand,[26] and the United Kingdom.[27][28] The real risk test requires that a complainant prove that the act or words created a real risk of prejudicing the administration of justice.[29] The main reason for the adoption of the more liberal real risk test in these jurisdictions is the need to protect the right to freedom of speech and expression, as the broader test of inherent tendency is seen to inhibit the right to an unjustifiable degree.[28]

"Inherent tendency" test

In Singapore, an "inherent tendency" test has been held to strike the right balance between the right to freedom of speech and expression, and the need to protect the dignity and integrity of the courts. To establish the offence, it is sufficient if the claimant can prove beyond reasonable doubt that the act or words complained of have an inherent tendency to interfere with the administration of justice.[30] An act or statement has such an inherent tendency if it conveys to an average reasonable reader or viewer allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge (and a fortiori, a court) in the exercise of his judicial function.[31] Thus, it is scandalizing the court to allege that it can be swayed by external pressures and made servile to others.[32]

The Singapore courts prefer the inherent tendency test to the real risk test on the ground that Singapore's unique conditions necessitate that attacks on the integrity and impartiality of the courts be dealt with more firmly. In the 2009 decision Attorney-General v. Hertzberg, the following justifications for the inherent tendency test were given:[33]

It has been noted that the relevance of Singapore's small geographical size to the application of the inherent tendency test is not self-evident and requires further explanation.[37] The authority for this proposition was the Privy Council's judgment in an appeal from Mauritius, Ahnee v. Director of Public Prosecutions, where it was said:

In England [proceedings for scandalizing the court] are rare and none has been successfully brought for more than 60 years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalizing the court on a small island is greater ... [emphasis added].[34]

However, the test for scandalizing the court applied in Ahnee was the real risk and not the inherent tendency test. It has been pointed out that this shows the value of free speech in democratic societies is a factor appropriate to a small island.[38]

Further, the distinction between a legal system which utilizes judges as triers of both law and fact, as opposed to a system which incorporates jury trials, has been termed artificial. In a jurisdiction such as the United Kingdom, the same test applies to both jury and non-jury cases.[39] Arguably in a non-jury legal system, there is more public interest in ensuring that judges remain accountable to the people. Hence, there should be greater freedom to discuss the manner in which judges carry out their functions.[40] Finally, it has been said that the preference for the inherent tendency test because it allows the court to take action before the administration of justice is affected should be evaluated carefully, as it may have an undue chilling effect on speech.[41]

Characteristics

The offence of scandalizing the court can be committed in various ways, including the following:[42]

Allegations may scandalize the court by implication and association when contextually perceived by an average person.[43] For printed publications, the failure to publish a fair or adequate summary of the reasons of the court and/or the omission of crucial facts may scandalize the court.[44] The intention of the contemnor is irrelevant in establishing liability for contempt.[45][46] Intention only becomes relevant when the court determines the appropriate sentence after having found the contemnor guilty.[45][47] A publisher has a duty to ensure that his or her publication does not encompass matters that are in contempt of court, even if the contemptuous material in the publication represents the views of a third party and are not held or endorsed by the publisher.[48]

Sentencing

Singapore law does not set out the sanctions that may be imposed for contempt of court. It is accepted that reasonable fines and imprisonment are permissible.[49] To decide the severity of the punishment, the courts consider the culpability of the offender and the likely interference with the administration of justice. When determining the culpability of the contemnor, the courts may take the following factors into account:[50]

Other relevant considerations that may mitigate the severity of the sentence include the conduct of the respondent, for example, whether he argued against culpability, expressed regret over his conduct, and made an apology for his contempt of court. Although the real risk test has no bearing on liability, the likelihood that the respondent's acts or statements pose a real risk of harm to the administration of justice may be relevant for mitigation or aggravation of the punishment. These considerations are non-exhaustive and the importance and relevance of these factors is dependent on the facts of each case, although guidance may be drawn from previous cases.[51]

Imprisonment is warranted when a contemptuous insult strikes at the "foundation, the body and the spirit of the justice system in Singapore".[52] The High Court has reasoned that the rule of law is destabilized when the cornerstones of the judiciary – impartiality and independence – are attacked.[53] As such, imprisonment serves as a deterrent tool.[54]

Defence of fair criticism

The only defence available to the offence of scandalizing the court is to prove that the allegedly contemptuous act or statement amounts to fair criticism. In order for criticism to be considered fair, it must be made in good faith and be respectful. Factors that a court will take into account to determine if the accused was acting in good faith include whether there are arguments and evidence backing up the act or statement, whether it is expressed in a temperate and dispassionate manner, the accused's attitude in court, and the number of instances of contemning conduct.[55]

The defences of justification and fair comment are not applicable to the offence of scandalizing the court. The High Court has stated that since a belief published in good faith and not for an ulterior motive can amount to fair comment even though it is not a reasonable belief,[56] permitting the defence of fair comment would "expose the integrity of the courts to unwarranted attacks", particularly since "Singapore judges do not have the habit of issuing public statements to defend themselves ... Our judges feel constrained by their position not to react to criticism and have no official forum in which they can respond".[57] As for justification, it has been said that permitting the defence to be run would "give malicious parties an added opportunity to subject the dignity of the courts to more bouts of attacks; that is unacceptable".[58]

Notes

  1. ↑ Attorney General v. Times Newspapers Ltd. [1974] A.C. [Appeal Cases] 273 at 307, House of Lords, per Lord Diplock, cited in You Xin v. Public Prosecutor [2007] 4 S.L.R.(R.) [Singapore Law Reports (Reissue)] 17 at 25, para. 15, High Court.
  2. ↑ Nigel Lowe; Brenda Sufrin (1996), The Law of Contempt (3rd ed.), London: Butterworths, p. 2, ISBN 978-0-406-02677-4, cited in You Xin at pp. 25–26, para. 16.
  3. ↑ You Xin at pp. 25–26, para. 16.
  4. ↑ R. v. Gray [1900] 2 Q.B. [Queen's Bench] 36 at 40, Queen's Bench Division, per Lord Russell of Killowen, cited in Attorney-General v. Chee Soon Juan [2006] SGHC 54, [2006] 2 S.L.R.(R.) 650 at 658–659, para. 22, H.C. (Singapore); and in Attorney-General v. Tan Liang Joo John [2009] 2 S.L.R.(R.) 1132 at 1137–1138, para. 10, H.C.
  5. ↑ Chee Soon Juan at 661, para. 30.
  6. ↑ You Xin, pp. 30–31, para. 29.
  7. ↑ You Xin, pp. 32–33, paras. 34–35.
  8. ↑ R. v. Lefroy (1873) L.R. [Law Reports] 8 Q.B. 134, cited in Chee Soon Juan, p. 655, para. 9.
  9. ↑ Supreme Court of Judicature Act (Cap. 322, 2007 Rev. Ed.).
  10. ↑ Attorney-General v. Wain [1991] 1 S.L.R.(R.) 85 at 97, para. 39, H.C.
  11. ↑ Subordinate Courts Act (Cap. 321, 1999 Rev. Ed.).
  12. ↑ Criminal Procedure Code 2010 (No. 15 of 2010).
  13. ↑ Constitution of the Republic of Singapore (1999 Reprint).
  14. ↑ Republic of Singapore Independence Act (No. 9 of 1965, 1985 Rev. Ed.), s. 6(1).
  15. ↑ Report of the Federation of Malaya Constitutional Commission [Chairman: Lord Reid], London: Her Majesty's Stationery Office, 1957, OCLC 59031390, para. 161.
  16. ↑ Chee Soon Juan, p. 660, para. 29.
  17. ↑ Wain, p. 101, para. 56.
  18. ↑ Attorney-General v. Hertzberg [2009] 1 S.L.R.(R.) 1103 at 1118, para. 20.
  19. ↑ Times Newspapers, p. 302, cited in Hertzberg, p. 1119, para. 20.
  20. ↑ Hertzberg, p. 1119, para. 21.
  21. ↑ Michael Hor; Collin Seah (1991), "Selected Issues in the Freedom of Speech and Expression in Singapore", Singapore Law Review, 12: 296–339 at 308.
  22. ↑ Wain, p. 101, para. 56; Chee Soon Juan, pp. 664–665, para. 44–47.
  23. ↑ Hor & Seah, p. 309.
  24. ↑ Hor & Seah, p. 310.
  25. ↑ Wong Yeung Ng v. Secretary of State for Justice [1999] 2 H.K.C. [Hong Kong Cases] 24 at 59, Court of Appeal (Hong Kong).
  26. ↑ Solicitor-General v. Radio Avon Ltd. [1978] 1 N.Z.L.R. 225 at 229, Court of Appeal (New Zealand).
  27. ↑ Times Newspapers, p. 299, H.L. See also Ahnee v. Director of Public Prosecutions [1999] 2 A.C. 294 at 306, P.C. (on appeal from Mauritius).
  28. 1 2 Hertzberg, p. 1125, para. 32.
  29. ↑ Tan Liang Joo John, p. 1138, para. 12. See also Ahnee, p. 306: "There must be a real risk of undermining public confidence in the administration of justice."
  30. ↑ Wain, p. 101, para. 54; Chee Soon Juan, p. 661, para. 31; Hertzberg, pp. 1125–1126, para. 34.
  31. ↑ Hertzberg, pp. 1124–1125, para. 31.
  32. ↑ Gallagher v. Durack (1983) 45 A.L.R. 53 at paras. 55–56, High Court (Australia), Attorney-General v. Zimmerman [1985–1986] S.L.R.(R.) 476 at 479, para. 9, H.C.; Attorney-General v. Lingle [1995] 1 S.L.R.(R.) 199 at 202–203, paras. 3–8, H.C., cite in Hertzberg, p. 1128, para. 43.
  33. ↑ Hertzberg, pp. 1125–1126, para. 33–34.
  34. 1 2 Ahnee, pp. 305–306, cited in Chee Soon Juan, p. 659, para. 25.
  35. ↑ Wain, pp. 96–97, para. 38.
  36. ↑ Hertzberg, p. 1125, para. 33.
  37. ↑ Thio Li-ann (2008), "Administrative and Constitutional Law", Singapore Academy of Law Annual Review of Singapore Cases, 9: 52, para. 1.174.
  38. ↑ Thio, "Administrative and Constitutional Law", p. 53, para. 1.177.
  39. ↑ Hor & Seah, p. 307.
  40. ↑ Thio Li-Ann (1997), "An 'i' for an 'I'? Singapore's Communitarian Model of Constitutional Adjudication", Hong Kong Law Journal, 27: 152 at 175.
  41. ↑ Thio, "Administrative and Constitutional Law", p. 53, para. 1.178.
  42. ↑ Tan Liang Joo John, p. 1142, para. 27.
  43. ↑ Tan Liang Joo John, p. 1142, para. 28.
  44. ↑ R. v. Fletcher [1935] 52 C.L.R. 248 at 257–258, cited in Hertzberg, p. 1133, para. 54.
  45. 1 2 Wain, p. 98, para. 44.
  46. ↑ Chee Soon Juan, p. 661, para. 31; Lee Hsien Loong v. Singapore Democratic Party [2009] 1 S.L.R.(R.) 642 at 730, para. 221.
  47. ↑ Lingle, p. 205, para. 15.
  48. ↑ Hertzberg, p. 1130, para. 48.
  49. ↑ Hertzberg, p. 1136, para. 62.
  50. ↑ Attorney-General v. Zimmerman [1985–1986] S.L.R.(R.) 476 at 488, para. 50, cited in Hertzberg, pp. 1134–1135, para. 58.
  51. ↑ Hertzberg, pp. 1134–1135, para. 58.
  52. ↑ Tan Liang Joo John, p. 1145, para. 38.
  53. ↑ Hertzberg, p. 1135, para. 59.
  54. ↑ Tan Liang Joo John, p. 1143, para. 31.
  55. ↑ Tan Liang Joo John, pp. 1139–1140, para. 15–20.
  56. ↑ Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157.
  57. ↑ Chee Soon Juan, p. 664, para. 46, cited in Hertzberg, pp. 1120–1121, para. 23.
  58. ↑ Chee Soon Juan, pp. 664–665, para. 47, cited in Hertzberg, pp. 1120–1121, para. 23.

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