The offence of "scandalising the judiciary" is in the news, after the High Court recently gave the Attorney-General's Chambers (AGC) the green light to act against Mr Alex Au (in photo above) for this, over a post he made on his blog Yawning Bread.
Britain, where the offence of scandalising the judiciary originated, recently abolished it as a form of contempt of court. But it remains on the law books of common law countries jurisdictions such as Australia, New Zealand, Hong Kong and Singapore.
Experts emphasise that the offence is not meant to shield judicial decisions from reasoned critique. Neither does is it meant to protect judges' self-esteem. This is clear from the AGC document entitled Understanding Legal Processes: Contempt Of Court.
Rather, it serves "to safeguard the integrity of legal proceedings for the benefit of those seeking recourse before the courts".
A look back at the history of this slightly arcane-sounding offence is interesting.
Historically, it was created in the judgment R. v Almon (1765) to fight off anonymous attacks on the integrity of Lord Mansfield, then the Chief Justice of England. At the time, he was involved in a titanic struggle with another chief justice - and with popular opinion as well.
Though the Almon case is routinely cited to justify why the doctrine is necessary to protect the integrity of and maintain faith in the administration of justice, there is much more to it than meets the eye.
Professor Douglas Hay notes in his recent work, Crown Side Cases In The Court Of King's Bench (Staffordshire Record Society, 2010), that although widely considered the origin of the contempt of "scandalising the judiciary", Almon's pedigree was less than honourable, even if the doctrine it bred has acquired a position of some honour today.
Recall that the Magna Carta Libertatum, or the Great Charter of the Liberties of England, was forced upon King John of England in 1215 by his feudal barons to limit his powers by law.
The Magna Carta began the process that would lead to constitutional law in the Anglophone world. It guaranteed the rights to free speech and trial by a jury of one's peers.
Professor Hay, an expert in the history of English law at York University in Canada, notes that the Almon court sought to limit Mr Almon's free speech rights and imprison him, for he was the publisher of two anonymously authored pamphlets that criticised Lord Mansfield in the strongest terms.
The pamphlets poked fun at the Chief Justice for being officious, arbitrary, dishonest, politically biased and ignoring or misreading English law by playing fast and loose with precedents - the lifeblood of common law.
In the proceedings, Mr Almon was denied the right to trial by jury for the newly created offence of scandalising the judiciary for which . Significantly, the court did not cite any precedent to justify the move.
Clearly, what is now regarded as a crime had not been so at the time when the early foundations of the common law were laid.
Common law is a system characterised by case law, that is, law developed by judges through their court decisions. In common law, precedents absolutely matter. Yet, no English court had found it necessary to charge anyone with scandalising the judiciary until Almon. There were simply no ancient precedents to justify the new doctrine. Instead, in England, citizens had freely criticised their judges up to that point.
Lord Camden, who was made Chief Justice of Common Pleas in 1762, vehemently opposed Lord Mansfield on the matter, calling the new doctrine one that would kill the right to free speech.
That is, At this time, England actually had two chief justices and they saw the matter in completely opposed ways. So incensed was the public that Mr Almon's rights to free speech and trial by jury were being abridged that the hearings led to riots, whereupon the police opened fire on rioters, killing some.
The Attorney-General then dropped the proceedings, so the prepared opinion in Almon was never delivered. Yet that text, written without hearing defence counsel on the main charges, would become the source and origin of the modern doctrine of scandalising the judiciary. (The text was posthumously published in 1802.)
But Almon was poorly regarded by jurists of the time and the charge of scandalising the judiciary was used in just one more case, R. v Bingley (1770), where the Crown lost. Upon discharge, Mr Bingley resumed his denunciations of the same Lord Mansfield.
Because jurists had found Almon wanting, it quietly fell into disuse for 130 years after its creation. The charge would not be raised until R. v Gray (1900), which cited Almon as sacrosanct precedent established by the English bench.
The Chief Justice in R. v Gray did not examine any constitutional arguments or ancient precedents that Almon might have cited. But, no wonder, for Almon had neither.
Although Almon would come to be regarded in the 20th century as the ancient precedent for the common law doctrine of scandalising the judiciary, it was just 250 years old and had even fallen into disuse for the first 130 years.
It did not belong, as many have erroneously assumed, with the very ancient foundations of common law.
Since precedents matter a great deal in common law, and Almon as the originating precedent was grossly deficient, some can argue that scandalising the judiciary may not be good legal doctrine.
Unaware of Almon's politicised background and its unsatisfactory denouement, 20th century judges went on to cite it as hallowed precedent, thus legitimising it.
Perhaps arguments for the doctrine need to be comprehensively reviewed and, if the principle is found to be valid, constitutionally justified 250 years after Almon, and then be codified in a Contempt of Court statute suitable for this day and age.
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