by Khush Chopra
SCANDALISING THE JUDICIARY; let the public say what they want.
The law making this an offence should be removed from our statute books.
I attended an interesting talk entitled “JUDGING THE JUDICIARY – The Unsaid and the Unsayable” by my learned friend Dr. Kevin Tan yesterday afternoon, organised by Function 8 held at The Agora’s premises.
I thank the organisers for the useful talk.
Here’s my brief view on the law as to the offence of “scandalising the judiciary” in Singapore.
Contempt of court can be defined generally as any disobedience or disrespect with regards the judiciary or judicial proceedings.
There is clearly a need for contempt laws especially to safeguard against the perversion of justice in active ongoing cases and one has to take care and be responsible when discussing or posting any material connected to an active case and otherwise obey judicial orders or face contempt charges.
However, it is my view that the law on contempt of court in Singapore and especially with respect the contempt offence of “scandalising the judiciary “ as it is expressed and codified by the recently minted Administration of Justice (Protection) Act (AJPA), which came into operation on 1 October 2017 are increasingly antiquated and inappropriate in our modern society.
RIGHT TO FREE SPEECH
First and foremost contempt laws are a threat to the fundamental rights to personal liberty and freedom of expression.
The offence of “scandalising the judiciary” in particular is an ancient law which originated in Britain and dates from 1765 that prohibits criticism of a judge.
Britain recently abolished it as a form of contempt of court and there are similar calls to abolish it in many other common law jurisdictions such as Australia, New Zealand and Hong Kong.
While other countries have and otherwise seek to abolish this contempt offence, Singapore ironically took the draconian decision to widen its scope to ridiculous proportions.
The contempt offence of “scandalising the judiciary” has not been successfully prosecuted in England and Wales since 1931, but is fairly common in Singapore with about 20 cases prosecuted todate we are told.
While the constitutionality of the law as to the contempt offence of “scandalising the judiciary” is clear by virtue of Article 14(2)(a) of the Singapore Constitution which 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, there is a need to balance the guarantee of freedom of speech to Singapore citizens under Article 14 of the Singapore Constitution and the national interest in preserving public confidence in the administration of justice.
However it is my view nevertheless that the offence as currently proscribed should be abolished as it conflicts with the right to free speech. There is no question of balance to be struck when the scales are in fact tipped to one side.
We must undertake a first principles review of the law of contempt of court to ensure the law is appropriate for modern Singapore. Singapore’s antiquated law on contempt of court restricts personal liberty and must be overhauled if not altogether repealed.
TRUST THE PUBLIC
One such first principle is that we should have more faith in people’s judgment.
It’s not trust in the judiciary that we should legislate for but rather we should trust the people’s judgment of the judiciary.
In Singapore we are told that if you allow baseless attacks on the judiciary trust in the judiciary will be eroded. This is neither a self evident truth nor a necessary consequence of baseless attacks. This is an assumption.
Common sense tells us that If our courts are neither corrupt nor biased (which is clearly generally the current perception) then why are we so insecure about baseless attacks?
What I am suggesting is that the more sensitive we are about baseless attacks, the more likely people will think some thing is wrong.
In other words, in my considered opinion rather than protect the judiciary and the administration of justice, the over zealous protection in terms of stringent laws and rabid enforcement of these draconian laws only serves ironically to raise doubt and create the opposite effect.
The fixation on forcing trust in the judiciary will have the opposite effect of undermining trust in the judiciary.
The more you say trust me the less people will trust you; it’s as simple as that. We need to instead trust the people and their common sense prevailing upon baseless attacks.
STICKS AND STONES
Perhaps most importantly, justice should have a thicker skin. We should all learn that there is a better response to the offence of “scandalising the judiciary.”
A distinction should be drawn in law and in our minds between an unacceptable viewpoint or baseless attack and the substantive subversion of justice.
It is the latter that we should react to and should simply learn to respond calmly to the former if one cannot ignore that unacceptable viewpoint or baseless attack.
There should simply not be a law protecting the “scandalising of the judiciary”
A law against the flagrant disobedience of judicial order is perfectly understood but a law for “wounding”judicial “sentiments” or “feelings” is totally unnecessary.
We should be guided by the maxim “sticks and stones may break my bones but words will never harm me”.
I equally take the view that prevention is better than cure. However I differ from the Government in our view of what prevention in this context means.
The law essentially operates as a cure. It operates after the judiciary has been scandalised.
Needless to say that in theory a contemot offence and and it’s punishment do provide some deterrence but are not entirely effective in preventing scandalising of the judiciary and affecting public perceptions at Yo the integrity of the judiciary.
It is rather silly to think that a law punishing the scandalising of the judiciary can achieve this aim effectively. People will say what they think but perhaps not publicly.
People must be educated to entertain two opposing thoughts in their minds without taking to heart one which unjustifiably scandalises the judiciary. This is the best answer to any offence of scandalising the judiciary.
This Victorian idea of being mortally wounded by someone’s insults belongs to the dustbins of a bygone era. Modern man is more enlightened and less affected by what other people say.
True courage consists in doing what is right, despite the jeers and sneers of our compatriots. Justice will prevail over baseless insults.
The fact of the matter is that the use of contempt laws have in Singapore hitherto been inherently intertwined with politics. The offence of contempt is highly politicised and the prosecution of several dissidents was doomed to be construed as a political enterprise.
Therefore the prosecutions do not advance the protection of the judiciary but rather have had the opposite effect to hurt the judiciary.
JUSTICE NOT JUDGES
Contempt of court should always only involve an interference with the due administration of justice and not the sensibility of any particular judge.
Justice is the victim of contempt not any individual judge or court even if such judge is scandalised.
Contempt is committed by those who disrupt court business, interfere with fair trials, fail to comply with court orders or make false and egregious attacks on the judiciary as an institution.
Contempt is never to be concerned with preventing legitimate criticism of judges or their decisions or with protecting the sensibilities or feelings of individual judges. The purpose of this offence is not the protection of a judges self esteem.
We are therefore talking about disruption either in a particular case or more generally in the administration of justice. It is justice itself that is flouted by Contempt of court. It’s about the integrity of legal proceedings.
However our contempt laws and their enforcement seem more concerned about petty baseless insults.
Surely there is absolutely no real risk or likelihood or tendency of justice being impaired by baseless attacks; by the very definition a baseless attack is simply that – baseless.
It is my view that justice and perceptions of justice would not be mortally wounded by the blunt sword of a baseless attack.
We are all made of sterner stuff and it’s the public you need to trust more rather than worry about trust in the judiciary being undermined by baseless attacks.
As Singapore has not abolished the law of contempt by scandalsing when other countries have or are in the process of doing this, the question that arises is this: what amounts to scandalising the judiciary?
The law uses a risk threshold test to determine the answer to this question. The threshold is always about the degree of risk that the statement has to pose to the public confidence in the administration of justice.
Different jurisdictions have different risk thresholds as to what will amount to scandalising the court. Some use an inherent tendency test, others use a real likelihood test. The courts in Singapore prior to the change in the law used a real likelihood test.
There is a significant difference between the tests for contempt by scandalising the court as stated in section 3(1)(a) of the AJPA and as stated in judicial precedents around the world including Singapore prior to the change in the law by statutory enactment.
In Singapore, the offence of scandalising the court is committed by any one who “by intentionally publishing any matter or doing any act that imputes improper motives to or impugns the integrity, propriety or impartiality of any court; and poses a risk that public confidence in the administration of justice would be undermined.”
We therefore did away with the real risk test. The scandalising contempt offence of publishing untrue allegations or accusations against the judiciary when there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or courts was what would have triggered sanction.
Singapore however significantly widened the scope by lowering the standard of proof required from “real risk” to any risk whatsoever “that public confidence in the administration of justice would be undermined.”
It is my view that any risk would include even the slightest risk which makes it impossible to criticise the judiciary.
This very low threshold is in my opinion absurd as almost anything one says that is critical of the judiciary can arguably be held to carry the risk “that public confidence in the administration of justice would be undermined.”
This absurdity begs the question : If our judiciary is so pristine as everyone thinks, why enact a law to make it such that you will be held to be in contempt of court if anything you say or do poses ANY risk whatsoever of scandalising the court?
Why would it be necessary to lower the risk threshold when we are said to have the most pristine judiciary?
It is my contention that rather than protect the integrity of the judiciary, it sends instead the wrong and opposite signal. What it says to the public is that the Government is terrified of protestations against the judiciary.
This over zealous extreme and over protective stance is in my opinion counterproductive and will have in the long term the opposite effect of people losing faith in the administration of justice as no one is able to meaningfully criticise the judiciary without fear of sanction.
Infact, fair criticism is a defence specifically in relation to contempt by scandalising the court. It can be found in Explanation 1 to section 3(1) of the AJPA.
Infact 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.
Fair criticism is evaluated through an analysis of a number of factors articulated in the provision.
The problem with the defence is that if the law is that any risk of scandalising the judiciary is the threshold than almost all criticism can be argued to carry that risk.
The line between temperate supportable fair criticism in good faith and any risk of scandalising the judiciary is a blurred one that injects a high degree of uncertainty and is unhelpful in delivering the gecessary confidence need to criticise the administration of justice.
Unless and until this repressive law is repealed the only hope we have of a fair and reasonable discourse as to the court cases is in terms of a wide berth for allowing fair criticism of judicial pronouncements.
The offence is not meant to avoid criticism of judicial decisions. The widest latitude should be allowed for reasoned criticism of judicial pronouncements. The court of public opinion needs that voice.
The law as it now stands has an undesirable chilling effect on public discussion and criticism of the administration of justice as one has to take extra care when publishing or disseminating any article which could be seen as showing contempt towards the judiciary.
Bearing in mind the “any risk threshold” discussed above, the question that arises is who will take the risk of criticism even if they think their criticism fair that meets the legal requirements?
It is my view that the fair criticism defence in Singapore is essentially for all practical purposes illusory.
Finally, the entire point of the law is to essentially ensure that we respect our Judiciary. The objective is to ensure that public confidence in the administration of justice is not undermined.
Contempt of court is about demeaning the court and frustrating the effective administration of justice. The main aim is to punish whosoever attacks the dignity and authority of courts including disobedience of court orders.
However we are all taught that respect must be earned not ‘demanded’ or legislated. Courts must be worthy of the respect. To command respect is to have others behave appropriately of their own volition. If the courts desire respect, the courts must be respectable in the first place. By and large this is certainly the case in Singapore with some notable exceptions in some difficult cases.
I think it’s about time Singapore do away with the offence of scandalising the courts and encourage the public to discuss judicial proceedings and the administration of justice here.
The current law is a most retrograde step and will have the opposite to intended effect and hinder confidence in the judiciary in the long term.
Reproduced from Mr Khush Chopra’s Facebook page with permission.