To Speak or Not to Speak: Balancing Freedom of Expression & the Administration of Justice
It is now almost inconceivable in the United Kingdom for a finding of contempt to flow from a criticism of the courts, however distasteful the criticism may be. No prosecution arose from a 1987 publication by the Daily Mirror which included inverted photos of the Law Lords under the headline ‘YOU FOOLS!’. A charge against hysterical claims in pamphlets about corrupt judges was dropped by the Attorney General and affirmed by Simon Brown L.J. on the grounds that such insults are much better ignored. UNIQUELY SINGAPOREAN: JUSTIFYING THE LOCAL APPROACH Having explored the offence in both jurisdictions, the question as to why the offence ceases to exist in its birthplace of the United Kingdom yet remains very well alive in Singapore remains. In this regard, I purport to put forth two plausible explanations. Although the local conditions facing Singapore have been described by the Court of Appeal in Shadrake to be neutral factors at best,20 it is my opinion that they are still useful in explaining why the offence of scandalising the court has been hitherto preserved by our judiciary. In the case of AG v Hertzberg, Tay J explained that the small geographical size and the fact that judges in Singapore were triers of both fact and of law ‘necessitate that we deal more firmly with attacks on the integrity and impartiality of our courts’.21 The ‘local conditions’ argument was a brainchild of the Privy Council in a 1999 case concerning the validity of the offence in Mauritius. Using England as a basis for comparison, the Lordships was of the opinion that ‘it is permissible to take into account that on a small island such as Mauritius, the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater’.22 That being said, we must not lose sight of the fact that the Court of Appeal has chosen to shift away from the parochial stance of using local conditions to conclusively overwhelm the right to freedom of speech. With the advent of the technological age, information can still be widely and quickly disseminated regardless of how large a jurisdiction may be. Furthermore, whether judges are triers of fact or law, public confidence in the justice system is equally paramount. This brings us to the second and perhaps more convincing explanation: Singapore’s unique constitutional position. The Singapore courts have, as part of their decision-making process, comprehensively examined judicial approaches in foreign jurisdictions by assessing the weight of the merits of the arguments raised, or the distinguishing features which make foreign cases inapplicable in Singapore. For example, in one of the most liberal of democracies, we see the First Amendment of the United States Constitution granting freedom of speech the trump where courts have chosen to adopt a more stringent ‘clear and present danger’ test in establishing liability. In this regard, the Court of Appeal in Shadrake has cautioned that because the ‘concept of freedom of speech is inextricably linked to the unique culture as well as constitutional position in the US…the US First Amendment is clearly quite different from 20 Shadrake Alan v Attorney-General [2011] 3 SLR 778; [2011] SGCA 26 at [31]. 21 Attorney-General v Hertzberg Daniel and others [2009] 1 SLR(R) 1103; [2008] SGHC 218 at [33]. 22 Gilbert Ahnee and Others Appellants v Director of Public Prosecutions Respondent Privy [1999] 2 W.L.R. 1305 [1999] 2 A.C. 305-306.
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the corresponding articles in the respective constitutions of Commonwealth jurisdictions (of which Art 14 of the Singapore Constitution is a representative illustration)’.23 Although the right to free speech can be seen to be of utmost importance in liberal democracies such as the United States, the American experience simply cannot be replicated in Singapore for the simple fact that such an unfettered emphasis on free speech is simply not present in Singapore’s constitutional history. That being said, this does not mean that freedom of speech has no place in a Commonwealth state such as Singapore. Instead, it is suggested that ‘far more attention is accorded to the issue of balance between the right to freedom of speech on the one hand and its abuse on the other (inter alia, by conduct amounting to contempt of court)’.24 The nuances of such a balancing exercise is of course, also specific to a state’s constitutional position. Being a signatory to the European Convention of Human Rights (ECHR), the United Kingdom has since opted to give further effect to the rights and freedoms guaranteed under the ECHR through the passing of the Human Rights Act in 1998. Similar to Article 14(1)(a) of the Singapore Constitution, Article 10(1) ECHR sets out that ‘everyone has the right to freedom of expression’. However, in a case concerning the defence of qualified privilege in a defamation action, the Court of Appeal made cogent and relevant points regarding the second qualifying paragraphs to the right to free expression found in the ECHR and the Singapore Constitution respectively. The Court was of the opinion that ‘para 2 of Art 10 [of the ECHR] is in no way similar to cl (2) of Art 14: para 2 provides that the exercise of the freedom under para 1 is subject to “restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”. Clearly, the terms allowing restrictions to be imposed under Art 10(2) are not as wide as those under Art 14(2)’.25 Evidently, Art 14(2) only requires a restriction on free speech to be ‘necessary or expedient’. For this reason, the Singapore Constitution explicitly permits legislative limitations on the right to freedom of speech and expression, in particular to provide against contempt of court. As Assistant Professor Jack Lee opines, ‘this suggests that the right is not intended to be paramount over other interests,26 thus explaining Singapore’s constitutional position in relation to preserving the said offence. CONCLUSION & THE WAY FORWARD In light of the above discussion, it is clear that the right to freedom of expression, although a fundamental liberty in a democracy, is a complex institution which engenders specific constitutional considerations insofar as its restrictions are concerned. Some might argue that in a developed legal system, the judiciary is in a position to defend itself. However, it is my opinion that the highest degree of trust in our courts is necessary for the rule of law to be effected and this transcends the mere compliance of orders through sanctions; the justice system must be viewed 23 Shadrake Alan v Attorney-General [2011] 3 SLR 778; [2011] SGCA 26 at [41]. 24 Ibid. 25 Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791; [1992] SGCA 27 at [56]. 26 Jack Tsen-Ta Lee, ‘Freedom of Speech and Contempt by Scandalizing the Court in Singapore’ (2009) International Association of Law Schools (IALS), Conference on Constitutional Law, Research Collection School Of Law.