From the Straits Times, 26 Nov 2008:
IN DECIDING whether contempt of court has been committed, many common law jurisdictions like England and Australia prefer to adopt the test of whether there has been a 'real risk' of undermining public confidence in the justice system.
Justice Tay Yong Kwang, however, rejected this approach for Singapore in his ruling that found the publisher of the Wall Street Journal Asia guilty of contempt of court.
Singapore's unique conditions, such as its small size, made it necessary to deal firmly with attacks on the courts' integrity, he said.
This was why when deciding contempt of court cases, he preferred to go by whether there was an 'inherent tendency' to interfere with the administration of justice instead of whether there was a 'real risk' that public confidence in the judiciary would be undermined.
Dow Jones' lawyer, Senior Counsel Philip Jeyaretnam, had argued in favour of the latter, saying it was clearer and struck a more appropriate balance between protecting an independent judiciary and the right to free expression.
The 'inherent tendency' test was deemed vague and imprecise, he added.
Justice Tay, in explaining why he rejected this approach, defined a statement which has an 'inherent tendency' to interfere with the administration of justice as 'one that conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function'.
He cited two advantages to this approach.
It does not call for detailed proof of what in many cases is unprovable - that public confidence in the administration of justice really was impaired.
This test enables the court to step in before the damage actually occurs.
1) OMG! The 'Singapore is unique because it is small' argument rears its head again! A little bit of exceptionalism rhetoric does go a long way, it seems. Someone needs to factcheck and see if other 'small states' go to the same lengths to protect their courts' integrity. There are at least 45 countries whose populations are less than 1.5 million. What are their court systems like?
2) Well, we can't prove anything, but let's proceed with the case anyway and arrive at a verdict. I mean, who really needs proof in a court of a law? Let's just rely on exegesis by this "average reasonable reader". Can he please take the stand? Oh, no such person exists? He's an idealistic abstraction? Then how do we get our testimonies? Oh, whatever.
3) The court stepping in before damage actually occurs. Wow. We're in pre-cog territory here. The court is making decisions based on likelihood, not actual outcomes. Is it possible to prosecute in the near future for 'inherent tendency' towards criminal behaviour, rather than the act of crime itself?
4) Any act of suppressing information carries within it its own contradiction. This has been called the paradox of censorship: it is always the strongest publicity agent for unpopular ideas. So basically, the Court itself exacerbated the 'damage' by proceeding with the case. In an attempt to clamp down on the right of AWSJ to free reporting, it drew attention to these very articles in question, exposing their content to a much wider readership than what they might have attracted in the first place. And it doesn't really matter at the end of the day whether AWSJ wins or loses, the meme has been circulated, people are reading Chee's side of the story as well as other accounts, and they can make up their own minds, even if they can't publicly articulate their contents, one of the few freedoms one has left on this wretched island.
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