inhuman punishment. The fact that the courts parsed out and differentiated
‘torture’ and ‘inhuman punishment’ suggests that in the future they may be
amenable to arguments that the reference to ‘law’ in Article 9 ( 1 ) refers to a system
prohibiting torture, drawing from the CIL prohibition.
In general, the courts have declined to adopt the rights-based reasoning of UK
decisions influenced by the ECHR, as in the public-assembly case ofChee Siok
Chinv.MHA.^137 However, the court inBertamv.Mehta^138 favourably considered
the UK decision ofFine Robertv.McLardy,^139 Millet LJ observing that the absence
of a tort of harassment was a ‘serious blot’ on UK jurisprudence, soon to be
remedied by the incorporation of the ECHR, which guarantees privacy rights
through the Human Rights Act. Lee JC inMehtaopined that the time had come
in Singapore to find such privacy rights, whether at common law or possibly,
though the learned judge did not so declare, as implied constitutional rights.
The judicial willingness to consider ECHR-influenced cases perhaps is because
Mehtaconcerned not the government but two private individuals.
The courts and political speech: political libel and contempt of court
scandalising the court.There have been important developments in readjust-
ing the balance between free speech and the interest of protecting public confi-
dence in the administration of justice that underlies the common-law offence of
‘scandalising the court’.
The first relates to the likelihood of occurrence of harm caused by speech critical
of the judiciary to public confidence in the administration of justice. The more
stringently framed ‘real-risk’ test was adopted over the prior test of ‘inherent
tendency’, as the Court of Appeal affirmed inShadrake Alanv.Attorney-General
in 2011 ,^140 putting to rest conflicting High Court decisions.
Tay J inAGv.Hertzberg^141 defended the existing ‘inherent-tendency’ test articu-
lated in the 1991 decision ofAGv.Wain.^142 Foreign rights-expansive decisions had
been rejected on the basis of ‘local conditions’ which required robust protection for
judicial reputation, as Singapore judges tried both law and fact and warranted more
protection. This decision has been criticised as underprotecting the interests of free
speech. Subsequently, inAGv.Chee Soon Juan,^143 the learned judge added one
further local condition, which was Singapore’s small geographical size, as this
‘renders its courts more susceptible to unjustified attacks’.
144
The ‘inherent-tendency’
test is ‘simply 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’.
145
Tay J noted that advocates of the ‘real-risk’ test preferred this
(^137) [ 2006 ] 1 SLR(R) 582 ,[ 86 ]–[ 87 ]. (^138) [ 2001 ] 4 SLR 454 ,[ 57 ].
(^139) [ 1998 ] EWCA 3003. (^140) [ 2011 ] SGCA 26. (^141) [ 2009 ] 1 SLR (R) 1103 [ 54 ].
(^142) AGv.Wain[ 1991 ] 1 SLR(R) 85. (^143) [ 2006 ] 2 SLR 650 at para. 26.
(^144) Ibid., para. 25. (^145) [ 2009 ] 1 SLR 1103 at 1125 ,[ 31 ].