Shadrake faces heavy silencing hand

It’s all over the world by now: The Singapore government arrested last Sunday morning Alan Shadrake, the author of Once a Jolly Hangman, a book I reviewed a short while ago. BBC has reported the arrest, as has Associated Press. A simple web search shows that it’s been further carried in Indian, Canadian, Australian, Taiwanese media, among many others. Amnesty International has highlighted his case on its website.

The Media Development Authority (MDA), Singapore’s orwellian-named censors, has owned up to being the party that made a police report, triggering his arrest. Amnesty International noted in its story, with dripping irony, that the MDA claimed on its website to be “developing Singapore into a vibrant global media city.”

The police issued a statement on 18 July 2010 (the day of the arrest) that said:

In response to media queries, Police confirm that they have arrested British national Alan Shadrake. He is being investigated for alleged offences of criminal defamation and other offences. The arrest was made pursuant to a Police report that was lodged on 16 July 2010 by Media Development Authority. Alan Shadrake has also been served with an application by the Attorney-General for an order of committal for Contempt of Court. Police investigations are ongoing.

I understand a court date has been set: 30 July 2010.

What is criminal defamation? It’s considered an archaic law in most countries that still have it, in that it has historically been used to silence speech inconvenient to the powers that be. In Singapore, it is found in Sections 499 and 500 of our Penal Code, which say:

499. Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

[snip] and

500. Whoever defames another shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with both.

Criminal defamation is different from usual libel or slander suits that we more often hear about, e.g. the 2008 case against Dow Jones and editor Hugo Restall brought by Prime Minister Lee Hsien Loong and others. Those are civil suits taken out by a person who feels his reputation has been damaged by another, and the judgement sought is usually one of retraction, apology and financial damages. Criminal defamation is a case brought by the State against an individual, for which the penalty can include imprisonment.

What therefore is unclear is whose reputation has been damaged that the State so keenly feels about? On the surface, it would be the MDA since it was they who lodged the police report, but as far as I can recall, Shadrake did not even mention the MDA in his book. So what standing does the MDA have to lodge such a complaint?

How can it be that a police report of defamation is made without any specifics as to whose reputation has allegedly been injured and by what item of speech? Saying it’s the book is too broad a brush; it has some 200 pages.

Latest reports are that Shadrake was held nearly 40 hours before he got bail, during which he was intensively interrogated. Were the police on a fishing expedition trying to catch him on something? So, is this whole thing yet another example of intimidation again?

Consider this: Even Section 499 of our Penal Code allows a number of exceptions, among which are:

Imputation of any truth which the public good requires to be made or published
First Exception.—It is not defamation to impute anything which is true concerning any person, if it is for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Public conduct of public servants
Second Exception.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Conduct of any person touching any public question
Third Exception.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

Yes, in his book Shadrake gathered many telltale clues that point to an uneven application of justice, and poses a question of how perfect or imperfect is our justice system. That the carriage or miscarriage of justice is a matter of public good or public interest surely is beyond contest. Anyone who has read the book will likely find that what accusations he has raised would fall within the second and third exceptions.

So, even if the MDA (especially when it does not appear to have any locus standi) has made a complaint, did our men in blue even read the book to establish for themselves whether the complaint has any merit, before rushing around like mindless zombies arresting the author?

Shadrake’s chief point in his book was that various officers of justice were not discharging their duties properly. It seems to me that by arresting him, our civil servants, the police and the Attorney-General’s Chambers are only proving his point.

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It is true that many countries too have laws pertaining to criminal defamation, but it is now considered archaic in modern liberal democracies. In Europe, which has one of the best developed bodies of human rights jurisprudence, case law now makes it clear that fair comment on public interest matters cannot possibly fall under such a law.

In a paper, Ilia Dohel writing for the Organisation for Security and Cooperation in Europe (OSCE), said:

Although the Strasbourg Court [European Court of Human Rights] has never ruled that criminal defamation laws have to be abolished, it may be derived from its judgements that in no case involving public interest or initiated by a public official would instituting criminal charges against a journalist be compatible with modern freedom of expression principles enshrined in Article 10 of the European Convention of Human Rights.

and that,

Even more significant is the Court’s standard on cases involving public officials and public interest stories. Several rulings defended the right of the society to scrutinise public officials, who have consciously chosen the limelight: ‘The limits of acceptable criticism are accordingly wider with regard to a politician acting in his public capacity than in relation to a private individual. The former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism’ (Oberschlick v. Austria, judgement of 25 April 1991).

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Alan Shadrake has also been called upon to answer the charge of Contempt of Court. Here again, this is an abuse of the law. Singapore seems to prefer an interpretation of this concept as wide as the Pacific Ocean.  Any speech that even questions the operation of justice is now considered to be an expression of contempt. The effect would be to silence any criticism, however well-founded, and give further impunity to public officials to abuse their positions or underperform.

This is just one more example of so many things that are wrong with Singapore’s justice system, and of governance generally.