The Attorney-General’s Chambers issued a press release yesterday (17 July 2012) in response to my post Using power to give immunity to the powerful which was published on 15 July.
The press release opens with a re-assertion of one of the two usual justifications for the law on scandalising the judiciary. It said: “Accusations of bias diminish it in the eyes of the citizen, lower it and ultimately damage the nation. Such accusations can occur frequently, with the judges not being able to respond. That is why confidence in the administration of justice needs to be protected from such allegations.”
I had dealt with this so-called justification right at the top of my earlier post as well as in its final quarter. Firstly, there is no reason why judges should not be able to respond, and secondly how does one distinguish between allegations and truth unless the initial assertions are allowed to be discussed further and aired? Sometimes, allegations eventually turn out to be true. To prohibit all allegations is to choke off any further discovery.
A more substantive point from the AGC was this:
A judge can be criticised, even fiercely criticised for getting the law or facts wrong, for getting the decision wrong or for imposing the wrong sentence. This is regularly done by lawyers, academics and lay persons. Such criticism is not contempt. There is no curtailment of free speech that would prevent such criticism. It is contempt however to say that the court was biased if there is no objective rational basis to do so, as Alex Au did.
Where the parties to a case do feel that a judge has committed misconduct, avenues are available to raise the issue, and have it determined within our Court system. Depending on the level of the Court, and the stage of the proceedings, possible avenues include appeal, criminal revision or motions to reopen decided cases. Although the reopening of a case is very rarely done, there will be reopening if it is shown that an injustice has been caused. Judges guilty of misconduct will be dealt with through various disciplinary mechanisms depending on whether they are district judges or Justices of the Supreme Court.
This part essentially says that the justice system has avenues within itself to correct its own faults. This is a solution only when a justice system has enough integrity to correct itself. However, it is entirely possible, within the realm of imagination surely, that a system may have become so damaged systemically that these avenues are no longer realistic and the ills of the system go beyond single judgements. At that point, it is free and open debate in society that will be key to highlighting the issues. Such discussion must necessarily begin with observations that are tentative and unproven, and in the public interest, generous leeway should be given to such fair comment.
Some of us may have read about police abuses in other countries. In some of these cases, the first response of the authorities is to let the police investigate the incident, but often when the allegations are of racial bias in policing, corruption that extends beyond a mere handful of officers or possibly political motives, there is usually a public outcry demanding an external inquiry. There isn’t enough public trust that the organisation or institution is capable of cleaning up itself. The same concerns could well apply to justice systems.
Especially when, as the AGC has said, public confidence in the administration of justice is crucial, then all the more we should avoid instituting a system that resembles leaving it to the guards to guard themselves, shutting out public discussion through use of the law itself.
The most curious reference was this:
We should note that Singapore is not alone in protecting the judiciary in this way. Other countries have similar laws on contempt.
We also note that Alex Au has made references to the announcements by Malaysia on its law on sedition. This is a non sequitor, of no relevance whatsoever to the subject at hand. Contempt has nothing to do with sedition.
Perhaps the AGC knew to keep this part mercifully short because they are acutely aware that they are on very weak ground?
Let me deal with the second point first.The AGC’s press release latched on to the mention of Malaysia’s Sedition Act when the point I was making in my earlier post was that even the prime minister of Malaysia recognises the legitimacy of freedom of expression when it comes to matters involving the administration of justice, and how he acknowledged that laws would need to be loosened up in this respect, albeit that details are still scanty at the moment.
More significantly, my earlier post dealt at length with the debate in the British parliament with several members of the House of Lords speaking up against any revival of this law. I also cited a news despatch that reported the UK prime minister agreeing with this point of view. Interestingly, the AGC’s response preferred to focus on a passing mention of Malaysia’s Sedition Act but totally ignored my discussion about the British debate.
As for “other countries”, as pointed out in a comment below the earlier post
, which references http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1255&context=hss_pubs
, these are mostly ex-British colonies in Africa and the Pacific. The latter link contains the statement “The form of contempt of court known as ‘scandalising the court’ – defined as ‘any act done or writing published calculated to bring the court or a judge of the court into contempt or to lower his authority’ (R v. Gray, 1900) – has long been used by small African and Pacific Island states as a mechanism for silencing media criticism of the judicial process.”
The AGC would do well to note that those countries with well-known robust systems of justice do not rely on laws of scandalising the judiciary. The USA does not have such laws while in Britain, they are considered obsolescent and have not been used for over 80 years. In Canada the offence has been found incompatible with that country’s Charter of Rights and Freedoms. If the AGC contends that our justice system can withstand as much scrutiny as those of the US, Canada and UK, why do we need such laws?
Suppose, for argument’s sake, someone has noticed what looks like racial bias in sentencing. He has observed over X number of cases of a similar offence, that accused persons of a particular race get heavier sentences. No doubt the exact sentence meted out in each case depends on the specific facts of the case and there will necessarily be variation. But if this person writes that in his view, the specific circumstances are insufficient to explain the variation in sentencing, and that there is a correlation with the race of the offender, one can well imagine the poor guy being hauled to court for scandalising the judiciary. He can be accused of insinuating racial bias in judges, and his defence must rest on being able to prove it. How is he going to prove it? All he has is a statistical oddity over a limited number of cases, which the prosecution, if generous, might say that it is no more than suggestive, certainly not proof. So he stands guilty and can go to jail. The prosecution then trumpets that so-and-so has engaged in falsehoods because the court found it false. Therefore there is no racial bias.
But where lies the public interest? In shutting down that conversation? In instilling in people the self-censorship never to voice similar doubts about impartiality? Or in allowing such doubts to be aired, and to heighten awareness of this possible bias so as to minimise its recurrence?
On a slight tangent, imagine if a media organisation in one of these African or Pacific Island states were interested in seeing how the public viewed their own country’s justice system, including their opinion of the independence of the judiciary. Ordinarily, they would commission an opinion poll. But on this topic, they would be acutely conscious of the extreme sensitivity of the law enforcers. It doesn’t take much to be able to foresee that such a media organisation might be tied up in knots wondering how to craft poll questions, or later, how to write up the results of the survey, in a way that would effectively get to a true reading of public opinion without falling foul of this restrictive law. Surely this thought exercise would reveal to us how much conflict there is between the freedom of expression, which is any citizen’s right, and the draconian, preemptive nature of such a law. Undeniably, this law has a chilling effect on speech, but more seriously, as I argued in my previous article, the immunity it accords the judiciary from public scrutiny poses a risk of debasement of that very institution complacent behind a protective wall.