The executive has effectively given our judiciary a blank cheque to be mercenary, biased, lazy and incompetent. It has done this by extending a blanket guarantee that judges will be shielded from criticism through the use of an archaic legal concept of “scandalising the judiciary” – a form of contempt of court.
Under this concept, any criticism of judges and their work is a criminal offence, unless the criticism can be proved, hammered in with nails large enough to crucify Christ. The problem with extending such immunity is that it creates a moral hazard. In fact, it is entirely logical that in the long run, that immunity itself will corrupt the judiciary.
There are two grizzled “justifications” for such a law.
The first is that justice is so crucial to the healthy working of society, it would be extremely damaging if people did not trust and respect the courts and judges who give form to it. Indeed, this is hardly in dispute. But giving blanket immunity, shielding the administration of justice from criticism, is surely a bizarre and counterproductive way of promoting that trust and respect.
From the ethics of charity management to the capabilities of public transport, there is nothing as healthy as to let the light of public examination shine into inner workings. Why should the administration of justice be any different? If anything, a truism needs to be borne in mind: It’s the cover-up that breeds even more suspicion.
The second “justification” is that judges, unlike other citizens, cannot defend themselves against public criticism. Others have at their disposal defamation law to protect their reputations, but it would be unbecoming of judges to resort to that. So the law of “scandalising the judiciary” is there in lieu of it. I don’t think anyone should be so easily persuaded that judges cannot defend themselves from public criticism. If priests and cabinet ministers can, why not judges? Even if judges were to hold their tongues, in a society with a culture of free and open debate, there would be no shortage of people coming to the defence of criticised judges, just as they come to the defence of pastors and politicians of various stripes.
In any case, the best defence there is is for judges to deliver well-reasoned decisions. Not to issue sloppy decisions and then hide behind a purdah.
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Six days after the Attorney-General’s Chambers demanded I apologise for scandalising the court by my comments in a recent article, an interesting story appeared from Malaysia. Prime Minister Najib Abdul Razak said his government was going to repeal the Sedition Act and replace it with a National Harmony Act.
Malaysia’s Sedition Act will be repealed and replaced with another law to protect racial harmony, Prime Minister Najib Razak announced yesterday, as part of his continuing series of political reforms.
He said the government realised that the people perceived the Sedition Act to be a law to suppress dissenting views.
‘Although this perception is baseless, we have to abolish this perception. Hence, the new provisions will not prevent the people from criticising the government or the administration of justice,’ he said at a dinner of the Attorney-General’s Chambers.
— Straits Times, 12 July 2012, Malaysia to replace Sedition Act: Najib, by Carolyn Hong. Emphasis mine.
Singapore’s Straits Times carried a similar story, but what I found interesting were the phrases omitted from the Singapore version of the story compared to the report in Malaysia’s New Straits Times:
The decision was made as the government wanted to find a mechanism that could best balance the need for freedom of speech with the provisions stipulated in the Federal Constitution, he [Najib] said.
“I remember the viewpoint of British prominent philosopher John Loke [sic] who said ‘the end of law is not to abolish or restrain, but to preserve and enlarge freedom’.”
— New Straits Times, 12 July 2012, PM: Sedition Act to go, by Azura Abas and Ili Liyana Mokhtar
(It should have been John Locke.)
Of course, I am aware that the New Straits Times also has a reputational problem, especially among supporters of opposition parties in Malaysia. And until one sees the actual wording of the new law, no champagne should be popped. But still, it is nice to see at least a cursory nod to the principle of freedom of speech. The Singapore government is not even there yet, and our newspaper’s version omitted to inform Singapore readers of the applicability of this concept.
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If Malaysia is not exactly an inspiring example, then I suggest you read the speeches made on 2 July 2012 in the UK House of Lords. The background to the debate was this:
Former Northern Ireland Secretary Peter Hain was accused of “scandalising a judge” for something he wrote in his recently published memoirs. He had criticised a judge’s handling of judicial review of Hain’s decision to appoint Bertha McDougall, the widow of a policeman, as an interim victims’ commissioner for Northern Ireland. The current Northern Ireland Attorney-General, John Larkin, in March/April this year, then decided to prosecute Hain for contempt of court.
It sparked an uproar. Former Home Secretary David Blunkett
… told the [House of] Commons people were entitled to “fair comment”.
He described the legislation being used to prosecute Mr Hain as an “outdated and discredited law”.
“Shouldn’t respect for the independence of the judiciary be balanced by the rights of individuals to fair comment on that judiciary,” Mr Blunkett said.
Responding, Prime Minister David Cameron said he had sympathy for that argument.
— BBC, 18 April 2012, Peter Hain contempt proceedings criticised by Blunkett. Link.
Late April, Hain’s lawyer, David Dunlop, said the contempt of court proceedings may have no basis in common law. He also questioned if it complied with the European Convention on Human Rights. Responding, Larkin said that while he was not arguing that all criticism of judges was contempt of court, such criticism that undermined public confidence in the administration of justice should not be permitted – basically, the first justification I described above.
Concerned that an obsolescent law – it had not been used since 1931 – was being resurrected, several members of the House of Lords moved to attach an amendment that would definitively abolish the offence to a government bill. The PDF file that is raised by clicking on the image at left carries the debate. As you can see, even a former judge spoke up for abolition.
In the end however, the government persuaded the movers of the amendment to withdraw it on the grounds that it was already under consideration in an ongoing law review and there might be complications because Scottish law would also need to be changed at the same time. Nevertheless, the sense was that the law should go; it was only a matter of finding a neater way of doing so.
(With thanks to friends who provided me with the transcript)
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Two important principles should inform our approach to such matters.
1. The more public the role/institution, the more leeway should be given to comment
The first principle is that the more public a person’s role is, the more transparent his actions should be, and in furtherance of this, the more leeway there should be for fair comment (including highly critical comment). Generally speaking, someone performing a public role impacts a lot more people than one acting privately, and therefore it becomes a matter of public interest to monitor and dissect the performance of that role. Public, even scathing, criticism should be recognised as an inherent part of the job and an essential component of the larger public good.
The record in Singapore points to the opposite. We seem to be acting on the basis that the more public a role is, the more “important” the person is. This then mutates into the notion that he has more to lose than the average guy should his reputation be damaged by criticism. Therefore vigilance and penalties need to heightened to protect these “important” people. Hence our history of certain personalities launching defamation suits at the drop of a hat, and the huge demands they make for damages (because, it has been argued, their reputations are “worth” so much more than the average guy’s). In the same vein, the quick resort to contempt of court charges, because – so goes the thinking – the more “important” the institution, the more there is at risk when criticised.
As you will surmise, I think we get a valuable principle the wrong way around.
2. Knowledge begins with hypothesis; to ban the latter risks never reaching the former
I begin by anticipating a line that state may take: Not all criticism of the judiciary is banned, but don’t speak until one has proof. This is disingenuous and unrealistic.
Knowledge is not born fully-formed. This is the second principle we must bear in mind. Knowledge is acquired through process, starting from ponderings, conjecture and hypothesis, and then developed by argument, the search for evidence and refutation. Some hypotheses are eventually debunked in the course of this process; others are validated. You may think I am talking about the scientific method, but in fact that is how any person and any society collectively acquires knowledge.
To stop all conjecture and hypothesising is to never embark on enquiry since no discussion can even begin. If we are never allowed to explore our justice system through debate, we will never arrive at any knowledge of what really goes on, and what worth (or worthlessness) it is.
As examples of how we choke the process of enquiry into public-interest issues, take both the City Harvest Church and the National Kidney Foundation scandals. The first whiffs of trouble came without proof. There were murmurings; a few available dots were connected to suggest a plausible problem, but there were not enough dots to provide unassailable proof. In both instances the first wave of suspicions were suppressed. In the case of the NKF,
In August 1997 and December 1998, NKF volunteer Archie Ong and aero-modelling instructor Piragasam Singaravelu respectively were hauled to court separately for defamation when both said that T.T. Durai had been flying first class. The former mentioned in April 1997 that the NKF “squandered monies” in a casual conversation with former chairman of NKF’s finance committee Alwyn Lim, while the latter has claimed that he had personally seen Mr Durai in Singapore Airlines’ first-class cabin. Both paid an undisclosed amount of damages to the NKF, and apologised.
— Wikipedia, accessed 14 July 2012. Link
In the case of the City Harvest Church, the first whistle-blowing occurred in 2003, but
Two weeks ago, Mr Roland Poon Swee Kay contacted the press to complain about what he said were improper practices by Rev Kong and his wife.
Last Friday, the 53-year-old businessman issued four apologies in The Straits Times, Lianhe Zaobao, Lianhe Wanbao and Shin Min Daily News. A fifth apology appeared in The New Paper last Saturday.
In all, they cost $33,372.06. A source close to Mr Poon said yesterday that the amount was paid by an anonymous donor who knew of the businessman’s financial difficulties.
— Straits Times, 27 January 2003, Poon says sorry; pastor asks church to forgive, by Samuel Lee
Years after the first complaints – after millions more were squandered – the early whistle-blowers were vindicated. It should be noted however that the criminal cases against leaders of the City Harvest Church have not yet been tried, but the Commissioner of Charities has issued definitive findings and taken administrative action. Besides the NKF and the City Harvest Church, how many other scandals are lurking still, unseen by the public eye?
The lesson to draw is that the more we penalise conjecture, hypothesis and whistle-blowing, the more we delay reckoning, the more we collectively suffer as a result.
Consider this: If ever there is one day when one or more judges are corrupt, how do we air the problem when allegations – with no more proof than anecdote or a curious pattern of judgements from the bench – are met with jail terms? Yet the curious pattern may be all there is at the start of any discussion or of any call to look more deeply.
And that is why this contempt of court law is so damaging.
Ultimately it is part of sickening pattern here in Singapore, across any number of fields: The use of power to give immunity to the powerful.
Related post: Using power to give immunity to the powerful, part 2