User:Sgconlaw/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.

Despite the practice in other jurisdictions, 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. Despite the many forms it may take, contempt of court can be divided into two broad categories, contempt by interference and contempt by disobedience.

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.

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. 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.

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. 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. However, inherent jurisdiction to punish contempt committed outside court resides exclusively in the superior courts.

The High Court and the Court of Appeal are empowered by section 7(1) of the Supreme Court of Judicature Act 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. The Subordinate Courts' power to punish acts of contempt can be found principally in two statutes, section 8 of the Subordinate Courts Act, and section 410 of the Criminal Procedure Code 2010.

Constitutionality

The 1999 Reprint of the Constitution of the Republic of Singapore

Article 14(1)(a) of the Constitution of the Republic of Singapore 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. 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". 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 in order to punish acts of contempt. 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".

Rationale for the law of contempt of court

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 this process, which is crucial for the rule of law and the maintenance of law and order in any democratic society. The relationship between the courts and the public is also symbiotic and it is posited that courts require the confidence of the public for the laws to embody the collective will of the community.It is not intended to protect the dignity of the courts or judges. 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. 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.

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. 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. 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. 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.

Test for the offence

"Real risk" test

A "real risk" test applies in many common law countries, including Hong Kong, New Zealand, and the United Kingdom. The real risk test requires that a complainant prove that the act or words created a real risk of prejudicing the administration of justice. 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.

The Singapore High Court in the 2010 decision of Attorney-General v Shadrake Alan departed from the 'inherent tendency' test and instead adopted the 'real risk' test. The court applied the 'real risk' test "for good measure" to the previous cases of Wain, Attorney-General v Chee Soon Juan, Hertzberg and Tan Liang Joo, the court in held that the facts of those cases would have fulfilled this test as well. As such, the difference in application between the two tests in Singapore remain theoretical and the practical difference of having departed from the 'inherent tendency' to the 'real risk' test remains largely to be seen. The case is currently on appeal, and it is unclear if the Singapore Court of Appeal would affirm this departure from the previously-upheld 'inherent tendency' test.

In Shadrake, Loh J recognised that the difference between the 'inherent tendency' and 'real risk' tests were not a matter of semantics. He opined that the 'inherent tendency' formula is contentious because the literal meaning of 'inherent tendency' would "obscure the fact that a contextual analysis is actually required.". To unambiguously exclude publications which lack the potential effect on reducing public confidence in the administration of justice, Loh J thus adopted the 'real risk' test, thus effectively departing from the previously held 'inherent tendency' test in earlier Singapore cases.

The court in Shadrake emphasized several aspects of this test.

1. A real risk is "something more than a de minimis, remote or fanciful risk. It must have substance, but need not be substantial." Thus, a small likelihood would also be considered a real risk.
2. Whether a real risk was posed was a question of fact to be determined objectively taking all the circumstances of the case into consideration. This would include "local conditions" and the scope of the publication's dissemination. Since local conditions may mean that those who come into contact with the impugned publication or words may not be average reasonable persons, the court must be open to take reference from such affected groups, instead of the objective reasonable man.
3. The focus of the real risk test would be whether there was a real risk to public confidence in the administration of justice, and not affecting the judge's hearing the case affected, nor whether a judge is personally offended by the publication.
4. Again highlighting the focus of the real risk test - whether public confidence in the administration of justice has the real risk of being reduced - the court maintained that the requirement for such a real risk, "while very wide, is not illusory". Here, Loh J cites the hypothetical found in Hertzberg and opined as follows: "if rants made at a dinner party are shown to have been ignored, i cannot see that they would pose a real risk to public confidence in the administration of justice"

"Inherent tendency" test

Despite the practice in other jurisdictions, 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. 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. Thus, it is scandalizing the court to allege that it can be swayed by external pressures and made servile to others.

The Singapore High Court prior to Shadrake preferred 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 Hertzberg, the following justifications for the inherent tendency test were given:

• Small geographical size. The small geographical size of Singapore renders its courts more susceptible to unjustified attacks.
• No jury system. Judges in Singapore decide both questions of law and fact, which renders the administration of justice "wholly in the hands of judges". Thus, any attacks on a judge's impartiality have to be "firmly dealt with".
• Proof of damage unnecessary. The inherent tendency test does not call for detailed proof of what in many instances will be unprovable, namely, that public confidence in the administration of justice was really impaired by the relevant publication. In addition, the test enables the court to step in before the damage – the impairment of public confidence in the administration of justice – actually occurs.

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. 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].

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.

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. 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. 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.

In Shadrake, Loh J identified two problems with the ‘inherent tendency’ test as set out in Wain. First, the Court in Wain refers to interference with the “administration of justice” as opposed to “scandalising the court”. The former is the concern of sub judice contempt while the latter is concerned with public confidence in the administration of justice. Second, such a test means that the words in the impugned publication or speech are to be looked alone. This has the effect of ignoring the circumstances surrounding the uttering or publication of the words, and would potentially make for too harsh a rule.

Characteristics

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

• a publication in a print medium;
• a television or radio broadcast;
• pictures;
• physical acts;
• spoken words; or
• words displayed on a poster.

Allegations may scandalize the court by implication and association when contextually perceived by an average person. 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. The intention of the contemnor is irrelevant in establishing liability for contempt. Intention only becomes relevant when the court determines the appropriate sentence after having found the contemnor guilty. 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.

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. In order 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:

• the nature of the contempt (that is, the seriousness of the imputations);
• who the contemnor is;
• the degree of his culpability (for instance, whether he is a repeat offender);
• how the contempt was published; and
• the kind of publication and the extent of the publication (that is, the number of publications over a period of time).

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.

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

Defence of fair criticism

The only defence available to the offence of scandalising the court is to prove that the allegedly contemptuous act or statement amounts to fair criticism. Any risk posed to public confidence as a result of fair criticism is justified and the burden of proof lies with the defendant to show that he was acting within his right of fair criticism. The necessary elements of the defence of fair criticism are as follows:

1. There should be some objective basis for the allegation made and it must be stated together with the criticism. Proof of the allegation is not necessary, merely some rational basis for it;
2. The person must genuinely believe in the truth of the criticism he made (made in good faith), which necessitates that the person must know the factual basis for his criticism before the allegation is made;
3. While outspoken language is acceptable, abusive, intemperate or outrageous language is not. The requirement for respectfulness must be balanced by the fact that the law in this area applies to everyone, and that the man in the street is entitled to criticise the courts as well;
4. There is no limit to the kind of criticisms which can be made against the court subject to the above three criteria being met. People who genuinely believe that the court is partial and corrupt and have a rational basis for this belief should be able to say so without fear of being held in contempt. There is a powerful public interest that has been applied time and again in Singapore, of exposing and rooting out impropriety and corruption on the part of those who hold public office, wherever or whoever they may be.

The traditional defamation 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, 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". 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".

References

Cases

• Ahnee v. Director of Public Prosecutions [1999] 2 A.C. [Appeal Cases] 294, Privy Council (on appeal from Mauritius).
• Attorney-General v. Chee Soon Juan [2006] 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 650, High Court.
• Attorney-General v. Hertzberg [2009] 1 S.L.R.(R.) 1103, H.C.
• Attorney-General v. Shadrake Alan [2010] SGHC 327
• Attorney-General v. Tan Liang Joo John [2009] 2 S.L.R.(R.) 1132, H.C.
• Attorney General v. Times Newspapers Ltd. [1974] A.C. 273, House of Lords.
• Attorney-General v. Wain [1991] 1 S.L.R.(R.) 85, H.C.
• You Xin v. Public Prosecutor [2007] 4 S.L.R.(R.) 17, H.C.

Other materials

• Hor, Michael; Seah, Collin (1991), "Selected Issues in the Freedom of Speech and Expression in Singapore", Singapore Law Review, 12: 296–339 at 305–311.
• Thio, Li-ann (2008), "Administrative and Constitutional Law", Singapore Academy of Law Annual Review of Singapore Cases, 9: 1–53 at 49–53, paras. 1.162–1.180.

Further reading

Articles

• Bates, Frank (July 1994), "Scandalising the Court: Some Peculiarly Australian Developments", Civil Justice Quarterly, 13: 241–252{{citation}}: CS1 maint: date and year (link).
• Groves, H[arry] E. (1963), "Scandalizing the Court – A Comparative Study", Malaya Law Review, 5 (1): 58–73.
• Litaba, Oyiela (2003), "Does the 'Offence' of Contempt by Scandalising the Court have a Valid Place in the Law of Modern Day Australia?", Deakin Law Review, 8 (1): 113–146.
• Pearson, Mark (April 2008), "Scandalising Media Freedom: Resurrection of an Ancient Contempt" (PDF), Pacific Journalism Review, 14 (1): 64–78{{citation}}: CS1 maint: date and year (link).
• Sathe, S.P. (17 October 1970), "Freedom of Speech and Contempt of Court", Economic and Political Weekly: 1741–1742, archived from the original (PDF) on 28 July 2010.
• Tilford, Rahsaan J. (2002), "S. v. Mamabolo: Post-trial Speech in Post-Apartheid South Africa", Tulane Journal of International and Comparative Law, 10: 445–462.
• Williams, D.G.T. (1969), "Contempt of Court", Cambridge Law Journal, 27 (1): 9–12, doi:10.1017/S0008197300088759.

Books

• Australian Law Reform Commission (1987), Contempt [Report No. 35], Canberra: Australian Government Publishing Service, OCLC 18243066.
• Eady, David; Smith, A.T.H. (2005), Arlidge, Eady & Smith on Contempt (3rd ed.), London: Sweet & Maxwell, ISBN 978-0-421-88340-6.
• Lowe, N[igel] V.; Sufrin, B[renda] E. (1996), The Law of Contempt (3rd ed.), London: Butterworths, ISBN 978-0-406-02677-4.
• Miller, C[hristopher] J. (2000), Contempt of Court (3rd ed.), Oxford; New York, N.Y.: Oxford University Press, ISBN 978-0-198-25697-7.

External links

• Official website of the Supreme Court of Singapore