Legislative Update: Bill to legislate law on contempt of court

The Administration of Justice (Protection) Bill was introduced in Parliament today (11 July 2016). It seeks to legislate the law on contempt of court, which includes the sub judice and scandalising the court rules, and the rules on non-compliance with court orders. Some significant points to note about the Bill are as follows.

The Bill applies to contempt of courts but not tribunals or quasi-judicial bodies like the Small Claims Tribunal or the soon-to-be-set-up Employments Claims Tribunal. This doesn’t mean that you can waltz into those tribunals and fire off your mouth at the presiding magistrate or officer. There will be other rules and ways to rein you in.

What is helpful about the statute is that it clarifies when a court proceeding is pending for the purposes of sub judice. Now sub judice can get really tricky in application. Why? Because when a court proceeding is pending, you are not supposed to do anything which interferes with the proper administration of justice in that case. That’s problematic on several counts. One, you don’t know the case is really pending or not. If for example, a High Court decision has been made, but there may be an appeal against that decision, is the case pending? The Bill says the appeal proceeding is pending so sit tight and hold your horses.

But the other problem is when is it really at risk of interfering with the administration of justice? For instance, if there’s a court case about euthanasia, and you write a blog post about some other person who is not involved in that case and how he wishes to live and die well, does that count as sub judice? That actually happened in the English case of Attorney-General v. English [1983] 1 AC 116 (the English case of English!). The learned Law Lords there held that it’s not sub judice because under the UK Contempt of Court Act 1981, there’s a public interest defence in section 5 of the Act and (1) there was a discussion in good faith of public affairs and matters of general interest, and (2) the risk of prejudice to the trial was merely incidental to the discussion.

Ernest Joseph Bailly, In Contempt of Hate
Ernest Joseph Bailly, In Contempt of Hate

Now before you Singaporean heave a sigh of relief, I should let you know the unfortunate fact that the Bill does NOT have this public interest defence. Wait, what? That’s not even it. There is a public interest defence albeit that it’s ONLY FOR the Government (more like a public interest exception). In other words, only when the Government says something about a case and deems that to be necessary for public interest, it’s okay. But for everyone else it’s not okay. It could be that the public interest thing is not a defence but an exception under the common law which is not expressly repealed under the Bill. Hard to say. We’ll have to test it out.

What’s interesting is that the illustrations expressly stated in the Bill for that Government-only public interest exception are  real life examples of the Government speaking up about pending court proceedings. The first is the Benjamin Lim case involving the secondary school boy who killed himself after he was investigated by some police folk for allegedly molesting a girl. Minister for Law K. Shanmugam made a speech in Parliament about the case, refuting various assertions and allegations about the police officers’ handling of the case. He even slammed Law Society President Thio Shen Yi SC, who had made a plea in an article in the Singapore Law Gazette about improving police systems and handling of accused persons.  The other illustration was from the Little India Riot.

Another thing about the Bill you should take note of is the potential penalty if you commit contempt of court. The High Court or Court of Appeal can fine you for up to S$100,000 and/or jail you for up to 3 years for contempt. Other courts such as the State Courts will be able to impose fines of up to S$20,000, and/or jail you for up to 12 months. S$100,000 is a huge amount of a fine. The maximum fine for human trafficking (first time offender) is S$100,000. Something so heinous as human trafficking. By contrast, if you punch somebody and get convicted under section 323 of the Penal Code, the maximum fine is only S$5,000. Yet, here, if you say something stupid about the court, you can get fined for S$100,000. So be warned.

Now, one more thing. If the Attorney-General thinks somebody’s been up to no good and saying stupid things about the courts, he can direct that police investigations be commenced against you and it is to be treated like an arrestable offence. Yes, you can be the subject of the authorities’ investigative powers for saying and posting stupid things about the court or about ongoing court cases. Again by contrast, if you voluntarily cause hurt and commit a section 323 Penal Code offence, it’s not an arrestable offence (i.e. the police will need a warrant to arrest you) and those type of powers wouldn’t apply. Under the present common law position in Singapore, it is not clear if such investigative powers may be enforced for contempt of court. This appears then to be quite an extension of powers and curtailing of freedoms.

The Bill also does this mental gymnastics thing where it repeals all other defences against contempt of court other than those expressly specified in the statute, but for other rules on contempt of court in the common law, they’re not repealed unless they’re inconsistent with what is set out in the statute. What does that mean? I’m not sure. The last time there was an Act that did the whole not repealed unless inconsistent thing, it caused a lot a lot of problems for judges, lawyers, and just about everyone who had the privilege of being affected by the Evidence Act, which is just about every litigant in court.

One more thing, the Bill proposes the test for contempt to be “risk”, whereas the standard under common law presently is “real risk”. Does the Bill purport to lower the test? Well, I think the Singapore courts are free to interpret “risk” to mean “real risk” or even whatever other standard of risk like serious risk or grave risk. It is for the courts to interpret the Bill.

So there, some important or interesting points about the proposed law on contempt of court. You would do well to watch what you say or post about the courts and ongoing court cases.

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