Offence of scandalizing the court in Singapore
Encyclopedia
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 to punish for contempt of court. This provision is statutory recognition of the superior court
s' 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
.
" 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
.
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 court
s.
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.
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". 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. 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 centre
s. Through these informal channels, suspicions of the judiciary may fester and grow.
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 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:
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:
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 trial
s, 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.
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.
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.
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.
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, 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".
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
, 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
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
and the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
are empowered by section 7(1) of the Supreme Court of Judicature Act to punish for contempt of court. This provision is statutory recognition of the superior court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
s' inherent jurisdiction
Inherent jurisdiction
Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal...
to uphold the proper administration of justice. The Subordinate Courts
Subordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
are also empowered by statute to punish acts of contempt. Although Article 14(1)(a) of the Constitution of the Republic of Singapore
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
protects every citizen
Singaporean nationality law
Singaporean nationality law is derived from the Constitution of Singapore and is based on jus sanguinis and a modified form of jus soli...
'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
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
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
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
system and that judges have to decide both questions of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
and fact
Question of fact
In law, a question of fact is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles...
, 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
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
.
Nature
"Contempt of courtContempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
" 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
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
.
Source of power to punish contempt
Fundamentally, the power to punish contempt is not derived from statute or from the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Inherent jurisdiction
Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal...
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 court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
s.
The High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
and the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
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
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
of contempt of court. The Subordinate Courts
Subordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
' 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
Article 14(1)(a) of the Constitution of the Republic of SingaporeConstitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
protects every citizen
Singaporean nationality law
Singaporean nationality law is derived from the Constitution of Singapore and is based on jus sanguinis and a modified form of jus soli...
's right to freedom of speech and expression. This fundamental liberty was derived from the Federal Constitution of Malaysia
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
when Singapore separated from Malaysia with effect from 9 August 1965. The Reid
James Reid, Baron Reid
James Scott Cumberland Reid, Baron Reid, CH, KC FRSE was a Scottish Unionist politician and judge. His reputation is as one of the most outstanding judges of the 20th century....
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
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
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
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
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
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
. 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". 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
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and the maintenance of law and order in any democratic society. 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
Fair comment
Fair comment is a legal term for a common law defense in defamation cases .-United States:In the United States, the traditional privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures...
which are available to the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
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 centre
Hawker centre
A hawker centre or cooked food centre is the name given to open-air complexes in Hong Kong, Malaysia, Singapore and Riau Islands housing many stalls that sell a variety of inexpensive food...
s. Through these informal channels, suspicions of the judiciary may fester and grow.
"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."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 doubtReasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
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 fortiori argument
The Latin phrase ' denotes "argument 'from [the] stronger [reason]'." For example, if it has been established that a person is deceased, then one can, with equal or greater certainty, argue that the person is not breathing.-Usage:...
, 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 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:
- 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 lawQuestion of lawIn jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
and factQuestion of factIn law, a question of fact is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles...
, 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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
's judgment in an appeal from Mauritius
Mauritius
Mauritius , officially the Republic of Mauritius is an island nation off the southeast coast of the African continent in the southwest Indian Ocean, about east of Madagascar...
, Ahnee v. Director of Public Prosecutions, where it was said:
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 trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
s, 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.
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
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
is destabilized when the cornerstones of the judiciary – impartiality and independence – are attacked. As such, imprisonment serves as a deterrent
Deterrence (legal)
Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can...
tool.
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 faithGood faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
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.
The defences of justification and fair comment
Fair comment
Fair comment is a legal term for a common law defense in defamation cases .-United States:In the United States, the traditional privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures...
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".
Cases
- Ahnee v. Director of Public Prosecutions [1999] 2 A.C. [Appeal Cases] 294, Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
(on appeal from MauritiusMauritiusMauritius , officially the Republic of Mauritius is an island nation off the southeast coast of the African continent in the southwest Indian Ocean, about east of Madagascar...
). - Attorney-General v. Chee Soon Juan [2006] 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 650, High CourtHigh Court of SingaporeThe High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
. - Attorney-General v. Hertzberg [2009] 1 S.L.R.(R.) 1103, H.C.
- 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 LordsJudicial functions of the House of LordsThe House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
. - 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.