because it is ‘clearer’ and strikes a ‘more appropriate balance’ between free-speech
rights and protecting judicial reputation, with the ‘inherent-tendency’ test considered
to inhibit free speech ‘to an unjustifiable degree’.^146 Tay J highlighted two main
advantages of the ‘inherent-tendency’ test as not requiring ‘detailed proof’ of a threat
and as allowing the court to step in pre-emptively ‘before the damage’ occurs.
However, these factors discount the fact that legitimate criticism could be
unduly curbed, in the absence of actual proof of any risk to judicial reputation,
and through allowing judicial intervention based on inaccurate speculation.
In contrast, Quentin Loh J’s endorsement of the real-risk test inAGv.Shadrake
Alan(Shadrake 1 )^147 was approved by the Court of Appeal inShadrake Alanv.AG
(Shadrake 2 ) even if it considered the differences in the tests a ‘legal red herring’.^148
It was adopted for purposes of clarity, as the ‘inherent-tendency’ test conveyed the
impression that only the intrinsic effect of the relevant words was considered apart
from context and because, historically, the test had been contrasted with the ‘real-
risk’ test. Loh J stated that judges did not ‘entertain the naı ̈ve conceit’ that confi-
dence in the courts was to be maintained by sanctioning those who criticise the
courts, correctly observing that ‘unmerited punishment results in derision and
resentment’.
149
Nonetheless, as Singapore judges followed the British practice of
demonstrating restraint in response to criticism, the offence of scandalising the
judiciary allowed the Attorney-General, as guardian of the public interest, ‘to bring
to task those who make dishonest, unwarranted or baseless attacks’ which would
impair confidence in the judiciary ‘if left unchecked’. The Court of Appeal con-
sidered as ‘neutral’^150 the factors of a small island and the judicial role in trying fact
and law. After all, it could be argued, with more power comes a greater need for
accountability. The American ‘clear-and-present-danger’ test was rejected as being a
test peculiar to that jurisdiction, followed only by one divided Canadian court.^151
Criticism targeted at judgments rather than denigrating judges warranted pro-
tection to avoid ‘unduly restricting public discussion on the administration of
justice’.^152 The increased protection of free-speech interests was also evident in
the robust development of the ‘fair-criticism’ defence, as articulated by Prakash J
inAGv.Tan Liang Joo John,^153 affirmed and elaborated upon inShadrake 1 and 2.
To be fair, criticism should be ‘respectful’, made in ‘good faith’ with a rational
basis, and in a temperate manner, which would facilitate rather than thwart
rational debate, which is the end free speech serves. Loh J inShadrake 1 affirmed
Prakash J’s tentative view that there was no substantive limit in criticising courts,
rejecting the view inHertzbergthat to impute partiality or improper motives to the
(^146) [ 2009 ] 1 SLR 1103 at 1125 ,[ 32 ]. (^147) [ 2011 ] 2 SLR 445. (^148) [ 2011 ] SGCA 26 ,[ 56 ].
(^149) [ 2011 ] 2 SLR 445 at 456 [ 18 ].
(^150) Shadrake Alanv.Attorney-General[ 2011 ] SGCA 26 [ 31 ].
(^151) [ 2011 ] SGCA 26 ,[ 28 ], [ 40 ]–[ 45 ]. (^152) [ 2011 ] 2 SLR 445 at 456 [ 19 ].
(^153) [ 2009 ] 2 SLR (R) 1132 at 1139 [ 15 ].