Excerpts from “Scandalising the Singapore Judiciary”

by Tsun Hang Tey (2010)

PDF Link to Journal Article: Informit.com.au | Ebscohost

Definitions:

1. Rule of Law: The legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials (Wiki).

2. Scandalise: To dishonor and disgrace (TFD).

3. Jurisprudence: Legal system.

Extracts from Article:

1) [This article] hopes to open up a new line of debate over the extent to which it is ‘rule of law’ or ‘rule by law’ that is adopted in matters where criticisms of the ruling party and its leaders in Singapore are involved.

2) Scandalising the Singapore judiciary [is] an archaic phrase which embodies ‘any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority’.

3) The Singapore courts have dealt firmly with these contemnors through the contempt of court committals, shaping a jurisprudence that places [emphasis on] maintaining good public perception of its ‘integrity and impartiality’, at the expense of freedom of political speech and critical reporting.

4) It is said that the rationale behind the law of contempt is ‘not to vindicate the dignity of the court or [judge], but to prevent undue interference with the administration of justice’, as well as to preserve public confidence in the integrity and competence of the judiciary.

5) The 11 November 1974 issue of Newsweek magazine that was alleged to have had the effect of scandalising the court of Singapore. . .ended with the shocking allegation – that ‘in the courts in Singapore it makes a vital difference whether it is the government or the opposition that is in the dock.’

6) Christopher Lingle, the author of an article published in the International Herald Tribune was convicted [of] contempt by scandalising the court [by] suggesting that the Singapore judiciary was ‘compliant’ to its government.

7) [The Singapore judiciary] has failed to undertake a searching or meaningful analysis of the issue of the permissibility of derogation from the constitutional right of free speech, and has also failed to appreciate the importance of achieving an appropriate balance between the social benefit of preserving its integrity, and the freedom to report critically.

8) The Singapore judges have sworn to ‘preserve, protect and defend the Constitution’, [where] the purpose of the Constitution is in protecting and guaranteeing the rights of citizens. Where freedom of speech and expression is considered to be a basic human right, it is all the more important that the courts provide a proper rationale for derogation of such a right.

9) It is common to observe the courts citing from other judgments without giving much input into the rationales and reasons for doing so. . .the rigour and depth in the reasoning employed in judgments pertaining to other areas of the law seem to be lacking in contempt of court judgments handed down in Singapore.

10) One’s right to freedom of speech and expression can be abrogated rather easily – so long as the criticism made is ‘scurrilous abuse’ or ‘excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office’, one would be found guilty of scandalising the court.

11) It does not matter if one had made such criticisms honestly in exercise of one’s recognised right to freedom of speech and expression. Such an approach amounts to the imposition of a strict liability offence and renders the right to freedom of speech and expression almost obsolete (at least with regard to criticisms one can make of the courts). This renders the recognition of the right to freedom of speech and expression superfluous and meaningless.

12) While the court will expressly recognise a right to freedom of speech and expression, it will be quick to note that such a right is not absolute and subject to multiple limitations.

13) While no right can be absolute, the courts ought to engage in a rigorous analysis to find the right balance between the competing interests, and before setting down limitations on the rights it is sworn to protect.

14) The rights of the people should be given its maximum space and recognition, for the entire purpose of rights is to guarantee the fundamental liberties of the people. If such rights were to be curtailed and limited right from the start, there is not going to be much to guarantee and uphold.

15) An accused, regardless of whether he or she was justified in their statements, would be found guilty as long as the statements scandalised the judiciary. Therefore, in effect, no one can make any adverse comments on the judiciary, regardless of the extent of truth there is in the comments. This is an untenable position for it amounts to a derogation from the right to freedom of speech and expression without a proper justification, and it may potentially assist judges who do not act in the best interests of justice.

16) This right to criticise is explained by Lord Atkin in Ambard v A-G of Trinidad and Tobago [[1936] AC 322]:

. . .no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. . .Justice [must] be allowed to suffer the scrutiny and respectful, even though outspoken, comments, of ordinary men.

17) See article 19 of the Universal Declaration of Human Rights:

‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’.

While Singapore is not a member of the Human Rights Council in the United Nations, it has obligations with respect to the adoption of the Universal Declaration of Human Rights made by the General Assembly on 10 December 1948.

18) Recent developments indicate that the law enforcers are swiftly and decisively enforcing Singapore’s law of contempt against contemnors exhibiting behaviour of various types, namely, contemptuous blogging on the internet and the writing of insulting emails to judges (as seen in [Mr Gopalan Nair]; the wearing of T-shirts imprinted with images of a kangaroo dressed in a judge’s robe while appearing at [the] Supreme Court courtroom; and the Attorney-General’s committal for contempt proceedings [for] three allegedly contemptuous articles published in Wall Street Journal Asia in June and July 2008).

19) Harsh allegations made by a range of international bodies in questioning the integrity of the Singapore judiciary:

What emerges … is a government that has been willing to decimate the rule of law for the benefit of its political interests. Lawyers have been cowed to passivity, judges are kept on a short leash, and the law has been manipulated so that gaping holes exist in the system of restraints on government action toward the individual. Singapore is not a country in which individual rights have significant meaning.
— The New York City Bar Association (1990)

Source: “Scandalising the Singapore Judiciary,” by Tsun Hang Tey (2010)

PDF Download: Informit.com.au | Ebscohost

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AUTHOR:

Prof Tey obtained first class honours from Oxford University and practised law in Malaysia before being hired to teach at NUS Law faculty. Prof Tey entered the legal service in the Supreme Court as a Justice Law Clerk during the tenure of then Chief Justice Yong Pung How. Prof Tey went on to become a District Judge, after which he returned to academia at NUS Law Faculty.

In 2011, Tey decided to go ahead with publishing a number of articles highly critical of Singapore’s judiciary without approval from the ISD. “I am no longer willing to self-censor,” he wrote. “I certainly do not want [to] compromise my intellectual honesty.”

Of the 2014 sex-for-favours case against him, Tey maintains that the case was politically motivated from the start.

Tey Online: TOC | Yahoo | The Monthly (AU) | Legal Consensus (Tey’s book on Singapore’s judiciary) | Singapore Consensus (Tey’s articles)

Tey’s Court Actions: NUS | Singapore ICA (to show how high-handed and well-coordinated the executions were)