Sunday 5 May 2013

Safeguarding free speech and confidence in judiciary

Singapore's contempt of court laws allow the courts to take into account whether statements are 'fair criticism' and if there is a 'real risk' of scandalising the judiciary. This provides a middle ground in protecting free speech while not undermining public confidence in the administration of justice
By David Tan, Published The Straits Times, 4 May 2013

THE Straits Times reported on April 27 that the Attorney-General's Chambers has maintained its position that the contempt of court laws will stay in place in Singapore.

Last December, Lord Pannick moved a Bill in the British House of Lords to abolish the offence of scandalising the judiciary as a form of contempt of court. The debate attracted a number of vigorous responses, and in particular, from Lord Anthony Lester, who was of the view that changing the law in the United Kingdom "will send an important message across the common law world" especially to countries that apply English case law.

But in fact, a closer look at Singapore laws will show the soundness of retaining this law on our books, especially after a high-profile Alan Shadrake case led to a significant judgment on the law of contempt.

Scandalising contempt

BUT first, a primer on contempt law.

The offence of contempt of court has many categories that include breach of an order of a court, misconduct in the face or the hearing of the court, interference with a particular case and scandalising the judiciary.

Scandalising the court or judiciary ("scandalising contempt") generally embodies any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower its authority.

However, it can be a fine line between what qualifies as fair or justified criticism of the conduct of the courts or the individual judges in their administration of justice; and what constitutes an undue interference with the administration of justice that amounts to contempt.

Nonetheless, the highest appellate courts in other countries like the United States, the UK and Australia have recognised scandalising contempt to be a justifiable restriction on the right to freedom of speech. In Australia, it was noted that scandalising is thriving and this type of contempt is becoming increasingly potent there.

Even in a highly pro-speech jurisdiction like the US, state and federal courts do not always appreciate having their integrity questioned. The US Supreme Court has observed that preserving the public's confidence in the integrity and impartiality of its judiciary is a compelling state interest.

There is always a danger that scandalising contempt will have a significant chilling effect on speech, especially speech that implicates public interest in the administration of justice by the courts.

The Court of Appeal in the Shadrake case acknowledged this concern, when it commented that "it should be noted that the law relating to contempt of court operates against the broader legal canvass of the right to freedom of speech that is embodied both within Article 14 of the Constitution of the Republic of Singapore… as well as the common law".

Shadrake case

IT IS important to recap the salient facts in the Shadrake case.

Alan Shadrake was the author of a book titled Once A Jolly Hangman: Singapore Justice In The Dock. It was alleged that 14 statements from the book scandalised the judiciary and were in contempt of the court. The Court of Appeal decided that nine of the statements were contemptuous.

Shadrake held himself out to be an "investigative journalist" and claimed, on the back cover of his book, that the book "cuts through the facade of official silence to reveal disturbing truths about Singapore's use of the death penalty… (and) reveals the cruelty and imprudence of an entire judicial system".

The publication also purported to contain "in-depth interviews" and "meticulously researched accounts of numerous high-profile cases", but Shadrake failed to produce any evidence of his investigations during the hearing.

In the High Court, Justice Quentin Loh found Shadrake in contempt. It was found that the author, in accusing the courts of grave misconduct, had made sweeping statements not supported by a rational basis, and had made or insinuated his claims "against a dissembling and selective background of truths and half- truths, and sometimes outright falsehoods".

Justice Loh gave the parties one week to consider the judgment, and in the case of Shadrake, to consider whether he wished to make amends for his contempt.

However, four days after the judgment was handed down, the Guardian newspaper published an article quoting Shadrake's insistence that the book was "devastatingly accurate" and his declaration that: "This story is never going away. I'll keep it on the boil for as long as I live. They're going to regret they ever started this."

The Court of Appeal emphasised that the courts are not restricting debate on the death penalty. But it added that while Shadrake is free to engage in the debate for or against capital punishment, he is not free to deliberately and systematically scandalise the courts in attempting to substantiate his case against capital punishment.

The courts considered previous sentencing precedents in Singapore, Hong Kong and Australia, as well as Shadrake's "complete lack of remorse" and his stated intent to repeat his contempt by publishing an expanded second edition of the book. It sentenced Shadrake to six weeks' imprisonment and a fine of $20,000, in default of which he shall serve a further two weeks in prison.

Foreign media reports on the case tended to see the verdict as oppressive against free speech.

In fact, the Singapore legal position on contempt is far more nuanced.

Protecting free speech

FORMER chief justice Chan Sek Keong had pointed out in separate comments outside court hearings that mechanisms such as scandalising contempt should not be used to stifle fair and reasonable criticism of the work of the judiciary and also judicial decisions.

He emphasised that the right to criticise is part of the freedom of speech and expression the citizen enjoys in a democracy and its exercise will encourage or ensure that judges are independent in their decision-making.

Mr Chan also cautioned that the final appellate court has a responsibility to ensure a judicial restraint in the use of this power to punish contempt, since fair and objective criticism of judicial decisions will instil accountability and greater discipline in decision-making. Furthermore, "if no one is allowed to judge judges, there could be lawless courts and irresponsible judging", he said.

Less well-known outside legal circles is that the Court of Appeal in the Shadrake case made two important decisions that together safeguarded free speech while upholding public confidence in the administration of justice in Singapore.

First, it introduced the notion that to be in contempt, a statement had to have a "real risk" of scandalising the judiciary. This was a higher threshold than the earlier "inherent tendency" test, thus bringing the law of scandalising contempt in Singapore closer to places like Australia, New Zealand and Hong Kong.

Second, it built in the concept of fair criticism to be evaluated within the ambit of liability for scandalising contempt.

This approach does not elevate fair criticism to an independent legal defence, like qualified privilege in defamation laws. What it does is allow the court to consider if a statement that is allegedly in contempt can be considered as fair criticism and can be rationally supported by argument and evidence. The court can also consider the manner in which the alleged criticism is made; the party's attitude in court; and the number of instances of contemning conduct.

The effect of the appeal judgment is that the onus is thus on the prosecution - the Attorney- General - to prove beyond a reasonable doubt that an offending statement does not constitute fair criticism, and that it presents a "real risk" of undermining public confidence in the administration of justice.

This gives scope for a more nuanced judgment of scandalising contempt cases which allows room for fair criticism.

The Court of Appeal in fact took pains to emphasise that this approach has the additional benefit of ensuring that the alleged contemnor is not disadvantaged with regard to the burden of proof, since the onus of proof lies with the prosecution.

Nonetheless, the Court of Appeal also stated that the Singapore Parliament ought to consider making legislative changes to allow for defences to scandalising contempt.

This has been done in India in the Indian Contempt of Courts Act 1971. For example, Section 5 of the Act explicitly states that: "A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided."

The Act unfortunately does not define what is "fair comment", and it is a matter of judicial interpretation. It is likely that a well- researched scholarly article that points out possible errors that a court might have made in arriving at a decision is fair comment; but a bare assertion by a journalist or blogger of blind judicial compliance with executive policy or of institutional bias because of the judicial appointment process will not be fair comment.

The "real risk" standard, coupled with an onerous burden of proof of "beyond a reasonable doubt", arguably do strike an adequate balance between freedom of speech and the constitutional interest in ensuring that public confidence in the administration of justice does not falter as a result of scandalous publications.

It is irresponsible journalism to publish scurrilous comments and hide behind the shield of free speech.

Contrary to what Shadrake may argue, the requirement for a rational basis to argue that a statement amounts to fair criticism surely does not spell the death penalty for freedom of speech in Singapore.

The writer is an associate professor at the Faculty of Law, National University of Singapore.

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