In Singapore, the offence of scandalizing the court or scandalizing the judiciary is committed when a person performs any act or publishes any writing that is calculated to bring a court or a judge of the court into contempt, or to lower their authority. 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. The courts of Singapore are empowered by the Administration of Justice (Protection) Act 2016Administration of Justice (Protection) Act 2016 () to punish for contempt of court. This provision is statutory recognition of the courts' inherent jurisdiction to uphold the proper administration of justice. Although Article 14(1)(a) of the Constitution of the Republic of Singapore protects every citizen's right to freedom of speech and expression, the High Court has held 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). 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.
In Singapore, an "inherent tendency" test has been held to strike the right balance between the right to freedom of speech and the need to protect the dignity and integrity of the courts. 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. The inherent tendency test has been held to be justified by the small geographical size of Singapore, the fact that there is no jury system and that judges have to decide both questions of law and fact, and that the test renders proof of damage to the administration of justice unnecessary.
Although Singapore law does not set out the sanctions that may be imposed for contempt of court, it is accepted that the courts may impose reasonable fines and imprisonment. To decide what punishment is appropriate, the culpability of the offender and the likely interference with the administration of justice are considered. 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, which involves showing that the criticism was made respectfully and in good faith.
Nature "Contempt of court" is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes.Attorney General v. Times Newspapers Ltd. A.C. [Appeal Cases] 273 at 307, House of Lords, per Lord Diplock, cited in You Xin v. Public Prosecutor 4 S.L.R.(R.) [Singapore Law Reports (Reissue)] 17 at 25, para. 15, High Court. Despite the many forms it may take, contempt of court can be divided into two broad categories, contempt by interference and contempt by disobedience., cited in You Xin at pp. 25–26, para. 16.
Scandalizing the court is an example of the first category. It comprises matters such as disrupting the court process itself (contempt in facie curiae – in the face of the court), publications or acts which risk prejudicing or interfering with particular legal proceedings, and publications or acts which interfere with the course of justice as a continuing process (for example, publications which "scandalize" the court). The second category comprises disobeying court orders and breaching undertakings given to the court.You Xin at pp. 25–26, para. 16.
The criminal offence of scandalizing the court is committed by any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority.R. v. Gray 2 Q.B. [Queen's Bench] 36 at 40, Queen's Bench Division, per Lord Russell of Killowen, cited in ; and in Attorney-General v. Tan Liang Joo John 2 S.L.R.(R.) 1132 at 1137–1138, para. 10, H.C. 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.Chee Soon Juan at 661, para. 30.
Source of power to punish contempt Fundamentally, the power to punish contempt is not derived from statute or from the common law per se but instead flows from the very raison d'être for a court of law: to uphold the proper administration of justice.You Xin, pp. 30–31, para. 29. All courts have an inherent jurisdiction to punish contempt committed when the court is in session by invoking a "summary process", meaning that the judge in front of whom the contemptuous act is committed may speedily order the contemnor to be punished.You Xin, pp. 32–33, paras. 34–35. However, inherent jurisdiction to punish contempt committed outside court resides exclusively in the superior courts.R. v. Lefroy (1873) L.R. [Law Reports] 8 Q.B. 134, cited in Chee Soon Juan, p. 655, para. 9.
Section 10 of the Administration of Justice (Protection) Act 2016 governs the jurisdiction and power to punish for contempt of court. Under this section, the High Court and Court of Appeal hold full authority over contempt proceedings, with the High Court uniquely supervising contempt tied to the Court of Appeal and all lower courts. The State Court, Family Court, and Youth Court are restricted to punishing contempt committed directly in their presence or in immediate connection with their own proceedings, explicitly excluding Small Claims and Employment Claims Tribunals. Furthermore, the High Court maintains overriding authority and can transfer any specific subordinate court contempt case to itself, doing so either by its own motion, the alleged condemner's request, or mandatorily upon the Attorney-General's application.
Constitutionality
Article 14(1)(a) of the Constitution of the Republic of Singapore. protects every citizen's right to freedom of speech and expression. This fundamental liberty was derived from the Federal Constitution of Malaysia when Singapore separated from Malaysia with effect from 9 August 1965.Republic of Singapore Independence Act (No. 9 of 1965, 1985 Rev. Ed. ), s. 6(1). The Reid Constitutional Commission of 1957, which recommended that this provision be included in Malaysia's independence constitution, thought that this freedom was an "essential condition for a free and democratic way of life"., para. 161. 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.Chee Soon Juan, p. 660, para. 29. As a democratic society, Singapore has always recognized the need to ensure the independence of the judiciary. 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. It is within this context that, in a 1991 decision, the Court expressed the view that freedom of speech "must be balanced against the needs of the administration of justice, one of which is to protect the integrity of the courts".Wain, p. 101, para. 56. The rationale for the law of contempt is rooted firmly in the public interest. It aims to protect the administration of justice as well as public confidence in it, which is crucial for the rule of law and the maintenance of law and order in any democratic society. It is not intended to protect the dignity of the courts or judges.Attorney-General v. Hertzberg 1 S.L.R.(R.) 1103 at 1118, para. 20. When such interference is suppressed, it is because the structure of ordered life is at risk if the judiciary are so flouted and their authority wanes and is supplanted.Times Newspapers, p. 302, cited in Hertzberg, p. 1119, para. 20. Though the right to freedom of speech and expression is guaranteed under the Constitution, it does not mean that anyone is entitled under the guise of that freedom to make irresponsible accusations against the judiciary so as to undermine public confidence in the administration of justice.Hertzberg, p. 1119, para. 21.
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. One assumption said to be incorrect is that undermining public confidence in the administration of justice is in all circumstances harmful to the public interest. 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.. 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.Wain, p. 101, para. 56; Chee Soon Juan, pp. 664–665, para. 44–47. Secondly, the claim that scandalizing the court may undermine public confidence in the judiciary represents an unduly pessimistic view of the maturity and ability of the Singapore public to assess for itself whether or not the scandalizing speech is true, and is perhaps a sweeping statement as to general public awareness.Hor & Seah, p. 309. Lastly, it is also assumed that public confidence in the judiciary can be preserved by the suppression of scandalizing speech. However, it is unlikely that such speech can ever be completely suppressed. It would be impossible to monitor speech that goes on in homes, coffee shops and hawker centres. Through these informal channels, suspicions of the judiciary may fester and grow.Hor & Seah, p. 310.
Test for the offence
"Real risk" test A "real risk" test applies in many common law countries, including Hong Kong,Wong Yeung Ng v. Secretary of State for Justice 2 H.K.C. [Hong Kong Cases] 24 at 59, Court of Appeal (Hong Kong). New Zealand,Solicitor-General v. Radio Avon Ltd. 1 N.Z.L.R. 225 at 229, Court of Appeal (New Zealand). and the United Kingdom.Times Newspapers, p. 299, H.L. See also Ahnee v. Director of Public Prosecutions 2 A.C. 294 at 306, P.C. (on appeal from Mauritius).Hertzberg, p. 1125, para. 32. The real risk test requires that a complainant prove that the act or words created a real risk of prejudicing the administration of justice.Tan Liang Joo John, p. 1138, para. 12. See also Ahnee, p. 306: "There must be a real risk of undermining public confidence in the administration of justice." The main reason for the adoption of the more liberal real risk test in these jurisdictions is the need to protect the right to freedom of speech and expression, as the broader test of inherent tendency is seen to inhibit the right to an unjustifiable degree.
"Inherent tendency" test