The offence of "scandalising the courts" may be shaped in future by a rare Privy Council (PC) judgment last month which noted there has to be a genuine risk of undermining public confidence in the court system for a conviction, and not simply judges' hurt feelings.
"Scandalising the courts" is a common law offence inherited from England and continues to exist in many Commonwealth countries including Singapore, as part of the law of contempt. The offence involves any act or writing designed to bring a court or judge into contempt or lower his authority.
The five-judge Judicial Committee of the Privy Council noted the offence was abolished by law in England and Wales last year but acknowledged there were "local conditions relevant to the continued existence of the offence". Noting that not all countries approach the issues in the same way, it found the offence was successfully prosecuted in 26 out of 34 examples from abroad, including six out of eight cases from Singapore.
The London-based Committee is the apex court of appeal for several Commonwealth countries like Mauritius, Jamaica, and Trinidad and Tobago.
In the case which the PC quashed, Mr Dharmanand Dhooharika, editor-in-chief of a weekly newspaper in Mauritius, had appealed to the PC after being prosecuted and convicted of scandalising the court in Mauritius. He was jailed three months and fined 300,000 rupees (S$12,400).
Mr Dhooharika had been prosecuted for publishing a number of articles relating to the hearings in chambers before the Chief Justice of Mauritius in a case between Paradise Rentals and Barclays Leasing Co. He had interviewed the director of Paradise Rentals and published an extensive account which among other things detailed the director's allegations that the Chief Justice had made remarks intended to prejudice the case.
At issue in the appeal before the PC was the existence and scope of the criminal offence known as " scandalising the courts".
The PC found Mr Dhooharika was not properly convicted of the offence and had been deprived of a fair trial as he was not allowed to give evidence on his own behalf. It found the various articles he wrote, taken as a whole, showed he did not act in bad faith although the comments in an editorial "were plainly ill-judged".
It was for prosecutors to prove he acted in bad faith and not for him to show good faith, ruled the court, which suggested a significant shift in the requirement to sustain such a charge. "The offence exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice," wrote Lord Matthew Clarke in delivering the PC's decision grounds.
The PC also made it clear that any move to abolish the standing common law offence had to be through an Act of Parliament. It further noted "the specific ingredients of the offence may vary across different jurisdictions".
Lawyers said the PC decisions, like other key judgments from abroad, are not binding on Singapore courts but can be strong reference points. "If the case contains good principles, then it will have persuasive authority," said senior lawyer R.S. Wijaya.
This article was published on May 3 in The Straits Times.
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