When the system asks us to place trust in an institution, that trust needs to be earned, not given. Today I examine why the laws relating to scandalising the judiciary are unnecessary and undemocratic.

Introduction

In the recent month, there was an unusual event in Singapore: a grass-roots pushback against a bill introduced in the Singapore parliament, called the Administration of Justice (Protection) Bill. A Parliamentary Petition was organised against it so as to request the government to undergo wider consultation before passing it. It failed and the bill was passed on the same day after a 7-hour debate, barely a month after introducing it to the public.

The bill itself was controversial for language that seemed to widen the ambit of the offence of “scandalising the judiciary”. I initially wished to write a critique of the bill, but other people have done so admirably. Instead, my thoughts turned to the very concept of Scandalising the Judiciary and the role of the judiciary in Singapore. In particular, I am focusing on the public confidence in the administration of justice. I question the relationship between the existence of the offence and the public confidence in the judiciary.

A Colonial Legacy

I will not bore my readers with a history of the offence of scandalising the judiciary. Being a former commonwealth colony, this law (like many others) was inherited by Singapore from the British. It describes the offence of making statements that are likely to undermine the administration of justice or public confidence in the administration of justice.

It is worth noting that this offence no longer exists in the United Kingdom. In 2012, an amendment was made to abolish it, following upon a report from the Law Commission that recommended it be abolished. The House of Lords debated it and agreed unanimously that it was no longer necessary to maintain this offence.

However, Singapore is not particularly known for following on the more enlightened footsteps of our former colonial masters, who have repealed or reformed a great deal of their legislation in the recent decades. Singapore has instead chosen to keep or even strengthened many of the outdated legislation. The most important example of this is the section 377A of the Penal Code, which criminalises sexual relations between two men.

The Judiciary is an equal actor in Democracy

The second part of the offence of scandalising the judiciary appears to be about protecting the public’s perception of the judiciary.

But this assumes that the perception of the judiciary has to be and is worth protecting. It also assumes that we are all supposed to have an inherent trust in the judiciary, and we are not allowed to feel or say otherwise. While it may not be the case today, there could potentially be biased or corrupt judges. Where would the freedom of speech be, if such judges could not potentially be criticised?

It is unclear what the offence of scandalising the judiciary protects, which cannot be addressed by the laws of defamation. If a person makes untrue statements which are clearly critical of a judge’s personality or character, then it is not clear why the judge may not pursue a defamation claim against the person.

In making it a criminal offence, power is instead given over to the Attorney-General or State Prosecutor to bring an action. The Attorney-General is given this power in the name of the “public interest”, which is the protection of the perception of the judiciary. The Law Commission Report on Contempt of Court: Scandalising the Court addresses the balance between the freedom of speech and the need to protect the public perception of the judiciary. As it notes, it is not clear that prosecuting the maker of the statements actually protects the judiciary. It instead gives the impression that there is something to hide, and places a chilling effect on the freedom of speech.

I will take the example of Alex Au, whose blog article on the happenings in the challenge against the constitutionality of s 377A led to a prosecution for scandalising the judiciary. I have no view on whether the statements (or the allegations that the Attorney-General claimed were made) are true. I believe that instead of prosecuting a high-profile blogger for his statements (thus reinforcing the view that Singapore does not respect freedom of speech), a more open approach could have been taken. The better move would have been to issue a press release explaining that there was no bias on part of the judiciary, and inviting Alex Au to substantiate his allegations. An open and public discussion could be had on the matter, which is what we wish to have in a democracy.

If statements are made that might be seen as affecting public confidence in the judiciary, it is usually because someone in the population does not actually have confidence in the judiciary. Of course there are exceptions when a person makes statements motivated by hate or malevolence, but they are in general easily identifiable. It does not improve everyone else’s opinion of the judiciary when one prosecutes the person for voicing a honestly-held concern, whether wrong or not.

Speech in general can be met with speech, unless it is hate speech or calling for violence. Gone are the days where there was much deferential respect to authority figures, as the Law Commission Report points out. The Judiciary is a participant in our democracy, and ought to be subjected to similar scrutiny as all the actors in our democracy, not less. The Judiciary is also an organ over which the people have the least control, since in most countries like Singapore, judges are appointed not elected. If the people are asked to trust the judiciary, a completely unelected organ, then that is the price of the trust.

Trust is Earned, not Given

In addition to the fact that prosecutions for the offence are the wrong way to go about maintaining trust in the judiciary, there is fact that trust needs to be earned, not given. As I said earlier, the presence of the offence seems to imply that all of us need to have unconditional and unquestioning trust in the judiciary. That is not how democracy works. That is not how trust works.

The German case-study

As most of my readers might be surprised to learn, the offence of scandalising the judiciary is not a universal concept. As mentioned earlier, the UK had repealed it. Many other countries never had it in the first place, such as Germany.

Despite the fact that these laws never existed, the public confidence in the administration of justice, and the judiciary itself is fairly high in Germany. People trust that judges will be impartial and unbiased and will decide their cases on the law. People trust that their rights would be safeguarded.

But there was a time in Germany’s history where this was clearly not the case, during the Nazi regime. The current court system and Federal Constitutional Court (Bundesverfassungsgericht) were established post-war. The rebuilders were clearly very conscious of moving away from their horrific past of human rights abuses, and establishing a system which protects the rights of the citizens. Today the German Constitutional Court is a well-respected body, by both lawyers and the public.

Public confidence in administration of justice clearly does not depend on whether laws that prevent people from scandalising the judiciary exist or not. It depends on the judiciary itself, and their actions, which in this case, would be the judgments they issue. If the judiciary as a body upholds the principles it is sworn to, and acts in a fair and impartial manner, then any allegations against them will likely hold no water. Such allegations can only take root when there is an inherent distrust on behalf of the people.

An attitude of Legislative Deference

I have a lot of respect for the judiciary in Singapore when it comes to how they deal with the bulk of cases relating to commercial and community law (with a few exceptions where I do not agree with the judges’ decisions as I believed they were wrongly reasoned). Our judiciary is known for being efficient and has a good reputation for its commercial law expertise, especially internationally. In my years of practice, I have never seen or experienced any corruption or obvious bias.

Unlike the earlier survey I linked regarding the perception of German judiciary, there is no recent survey on whether the people in Singapore have trust in the judiciary. However, speaking for myself as a lawyer, civil society activist and a woman who belongs to multiple minority classes, in order to to gain my full confidence, the judiciary still needs to do better. Specifically, they need to do better in cases where citizens are attempting to enforce their rights against the Government.

Unlike the German Federal Constitutional Court, in Singapore, the judiciary itself has explicitly, in several cases, stated that the principle they apply is legislative deference. The Court of Appeal case of Lim Meng Suang & Kenneth Chee Mun-Leong v Attorney-General [2014] SGCA 53 (which I will analyse later) is the strongest and latest example of legislative deference. A few years ago, in Yong Vui Kong v Public Prosecutor [2010] SGCA 20, an appeal against a drug trafficking conviction (which at the time carried a mandatory death penalty) the Courts stated that it was the exclusive province of the legislature deal with the issue of whether the mandatory death penalty was suitable as a punishment for certain crimes, and they would not review such a decision. In Chee Siok Chin v Minister for Home Affairs [2005] SGHC 216, a case relating to the freedom of expression, the High Court stated that since the article protecting the freedom of speech in the Constitution does not expressly state that restrictions on free speech have to be reasonable, it is not the Court’s place to assess whether the restriction is appropriate or not.

In the constitutional case of Lim Meng Suang (full disclosure, I was involved in as counsel for the Plaintiffs at the High Court level, but not the Court of Appeal level) s 377A of the Penal Code criminalising sexual relations between men was challenged. I do not intend to go into a detailed discussion of the case and principles of constitutional interpretation – I believe other academics have already done that admirably. I believe the judgment was wrong on the law and the (a)politics, and it is the political aspect that I wish to focus on today.

Throughout the judgment, the Court repeatedly stated that the Court would not take into account any “extra-legal considerations”, which they felt to be in the purview of the legislature. Further, they would not examine the legitimacy of the purpose of legislation, as they felt that the test for constitutionality was “value-neutral”.

Along the same reasoning, they excluded socio-political considerations from their analysis, reasoning that the Legislature was best placed to consider them:

“Given our approach of focusing only on the relevant legal argument in the present appeals, might it be argued that this court is conducting itself like an ostrich whose head is buried in the sand inasmuch as it might be ignoring the need to achieve a substantially fair result in the two cases as hand? This is, at first blush, a rather powerful argument. However, there seems to us no reason why a substantially fair result cannot be arrived at focusing only on the relevant legal argument. Indeed (and on the contrary), where this court to also consider extra-legal arguments that are withing the purview of the Singapore Parliament, would that not be contrary to fairness in both a procedural as well as a substantive sense? It should be noted that if it is thought that substantially fair result can only be achieved by consideration of extra-legal arguments as well, then the Singapore parliament can always remedy the situation in an appropriate fashion. However it would be then doing so in a legitimate manner. It bears repeating that this Court cannot seek to achieve the same result as it does not have legitimate jurisdiction to do so – the legitimate jurisdiction lies, instead with the Singapore parliament.”

At the end of the judgment, Judge of Appeal Andrew Phang states that:

“Whilst we understand the deeply-held personal feelings of the Appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere.”

The Court was clearly aware that the LGBT community had attempted to approach the legislature in 2007, and that the legislature had refused to act. The Court was also clearly aware that legislature was intent on discriminating against the LGBT community, and refused to examine the legitimacy of such oppression, reasoning that this was not part of the legal test for constitutionality. Numerous academics, such as Dr Jack Tsen-Ta Lee have analysed the case and explained why this conclusion is wrong on the law.

I do believe that the writers of the judgments sincerely believe what they stated in the judgment. However, their reasoning distresses me on multiple levels. I believe this is a mischaracterisation of the Court of their own position as an actor in our democracy. While the judiciary is meant to be a largely apolitical neutral entity, it is not possible for a judiciary in a functioning democracy not to play a small part in safeguarding the socio-political fabric, which includes the weighing of socio-political factors. The Courts need to be apolitical, but not insensitive to socio-political issues. This is hardly a radical suggestion – Courts around the world have passed judgment on matters of socio-political import by considering both the legal and socio-political factors. Without this sensitivity, almost any law passed by the Legislative can be considered constitutional and allowed to stand.

The apolitical stance of the judiciary is meant to be a check against the decisions made by a legislation which is beholden to a majority of the population. The Legislature consequently and inevitably make decisions that will get them reelected or strengthen their power, not necessarily decisions that are constitutional or safeguard the rights of all the people, especially minorities. Only the Court, which is not beholden to elections, can correct the missteps of the Legislature.

This is all the more important when one considers that in the future, we might no longer have a “legitimate” parliament (as referenced by JA Phang earlier). My German readers may be quite likely agree with me on this point, in noting that even legitimately elected parliament can act illegitimately. The Courts are the only safeguard to a runaway, albeit legitimately elected parliament.

If public confidence in the administration of justice is to be maintained, then it starts with the judiciary itself. If the public is to believe that their rights will be safeguarded, then this depends on the judiciary’s willingness to hold the decisions of the Legislature at a higher standard. An attitude of legislative deference, however honestly held, does not *earn* trust. Especially from minorities in the population, who cannot look to the legislature for protection.

Conclusion

I believe that the offence of scandalising the judiciary, with respect to maintaining public confidence in the administration of justice, is actually unnecessary. The Judiciary has other means to protect its own reputation, and such laws shield them from the scrutiny they ought to bear as a constitutional organ vital to our democracy. The best way to protect the reputation of the judiciary in the eyes of the public, is for the judiciary to uphold their standards themselves, rather than prosecute people who allege they are not.

No Judiciary is entitled to the trust of the people. That is a privilege that needs to be earned.