Offence of scandalizing the court in Singapore

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.

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.

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.

[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.

[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.

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.

[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.

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.

[24] A "real risk" test applies in many common law countries, including Hong Kong,[25] New Zealand,[26] and the United Kingdom.

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.

[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.

[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.

[54] 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.

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".