Judging the judicary – The Unsaid and the Unsayable

by Teo Soh Lung

We had a very interesting lecture on the above subject by Dr Kevin Tan yesterday.

Many of us who blog don’t really spend a lot of time on the words we use online. Even if we are exceedingly cautious as Alex Au was, there is no guarantee that we will not get into trouble with the law as the government wants to ensure that the judiciary is “pristine”. (That was the word used by the minister in parliament).

According to Dr Tan, every prosecution for contempt of the court had been successful.

But remember, Alex Au was hauled before the High Court for his excellent article “377 wheels come off Supreme Court’s best laid plans”, in Oct 2013. He was convicted of one of two charges for contempt of court. Therefore Alex can be considered as being very lucky to escape one charge!

England, the country which gave us this law abolished it in 2012, a year before Alex Au’s case. Perhaps to prove that we have nothing more in common with our colonial ruler, our parliament not only swiftly entrenched this law but also lowered the old standard of proof from “real risk” to a mere “risk” when it comes to deciding whether words undermine the administration of justice. And so we have the Administration of Justice (Protection) Act 2016.

Pre-2016, Dr Tan was of the opinion that all cases on defamation were rightly decided, except for the case of Tang Liang Hong. So there is no reason to accuse our judges of being pro-government, influenced by the executive or allowing themselves to be used for political purposes.

Dr Tan discussed how our constitution guarantees judicial independence and made several recommendations as to how these safeguards could be improved.

One of his suggestions is the setting up of a judicial commission for the appointment of judges. It was interesting to learn how our government solved the problem of the shortage of judges in the late 1970s. The appointment of judicial commissioners and the raising of salaries of judges to make it worth the while for high earning lawyers to quit the bar were implemented. Today, Singapore judges are the highest paid in the world and judicial commissioners are like judges on probation!

Finally, Dr Tan made several important suggestions as to how our courts may be more accessible to the public. He has 3 proposals:

(1) Relax locus standi rule
(2) Nominal costs for public interest case
(3) Relax rule of appeal for public interest case.

So armed with some knowledge of what is contempt of court, I hope we can all steer clear of trouble!