I have now seen a copy of the summons issued to Alan Shadrake. Somewhat to my surprise, all charges (so far) relate to contempt of court, none to criminal defamation, despite what was mentioned in the formal statement issued by the police and reports in the local media. In the light of this, my post Shadrake faces heavy silencing hand now seems a bit off the mark, mainly discussing as it does, criminal defamation.
This post will therefore remedy that mismatch and focus on contempt of court.
As readers may recall, Alan Shadrake is the author of Once a Jolly Hangman, for which my review can be seen here. He was arrested on the morning of 18 July 2010 and is due for a court hearing on 30 July.
The summons Shadrake has to answer is an application by the Attorney-General to the High Court for committal [to imprisonment] for contempt. It cites Section 7(1) of the Supreme Court of Judicature Act, which says merely this:
7. —(1) The High Court and the Court of Appeal shall have power to punish for contempt of court.
The summons also cites the subsidiary legislation known as Rules of Court of which Order 52 lays out the technicalities.
Nowhere is contempt of court defined. I guess what it means has to be drawn from case law which can be problematic in that precedents should be evaluated in the context of their times and places.
However, the summons contains a statement by the Attorney-General, as required in accordance with Rule 2(2) of the Rules of Court. Relevant words from that statement:
The grounds upon which the said relief is sought are that the said Respondent has participated in acts in connection with the bringing into existence, publication and distribution of the Book which contained passages that scandalise the Singapore Judiciary.
The Book is about the administration of the death penalty in Singapore.
The Book contains passages which undermine the authority of the Singapore courts and public confidence in the administration of justice in Singapore. Without being exhaustive, this Statement sets out the passages which contain imputation against the independence and integrity of the Singapore Judiciary.
Several passages in the Book contain allegations and insinuations that the Singapore Judiciary, in determining whether to sentence an accused person to death, succumbs to political and economic pressures, and that the Singapore Judiciary lacks independence.
The summons sheet then goes on to list four passages from the book allegedly showing the claimed imputations.
The Attorney-General next goes on to say:
The allegations and insinuations in these passages are that the Singapore Judiciary does not mete out justice impartially but instead is complicit in an abuse of the judicial process.
The book also contains passages which allege or insinuate that in criminal proceedings on drug-related offences, the Singapore Judiciary is biased, particularly against the “weak”, “poor” or “less-educated”, or is otherwise guilty of impropriety.
Seven more citations from the book are given by way of example.
* * * * *
The problem, as I mentioned in my earlier post, is what constitutes contempt, and where is the line drawn between malicious denigration of the judicial process and fair comment. Fair comment is sincerely-held opinion and plausible conclusions predicated on a measure of evidence. Fair comment does not have to be true; it only has to be within reason, derived from verifiable starting points. The greater the public good at stake the greater the leeway should be given to fair comment.
I would argue that Shadrake’s book constitutes fair comment, and on a matter of great public importance as well. That being the case, it cannot constitute contempt of court.
In connection with this, I note that the Attorney-General has, in support of his application, picked out sentences from the book which are at face value critical of the judiciary and the justice process, but ignored the fact that leading up to each of these passages, Shadrake had priorly discussed in the book certain facts or timelines which he had unearthed, and which quite reasonably lead to the conclusions he draws. By ignoring the arguments that Shadrake developed from initial facts and focussing only on the critical tone of the conclusions, it seems that our chief law officer’s understanding of contempt of court is that justification has no role to play; any statement, no matter how well-founded, that is negative towards the judiciary or justice system constitutes contempt.
This flies against the human right to freedom of expression. Such a sweeping formulation of contempt of court makes it akin to lese majeste laws, which begin with the presumption that the king can do no wrong: He is perfect and any criticism of the king is necessarily false simply because it treats him as fallible. Our Attorney-General is taking a similar approach with contempt of court: Our judiciary and justice system is perfect and infallible and must be held beyond reproach; any criticism must by definition be wrong and criminally liable.
This is an extremely dangerous route to take. Judges and officers of the court are human. They can be wrong, corrupt, careless, slothful, servile, cowardly, obstinate, sexist, racist . . . and generally suffer from any number of human failings. To put in place a criminal regime that forbids any criticism of the justice system and its officers is to ensure that we will indeed have a system that is corrupt, careless, slothful, servile, cowardly, obstinate, sexist, racist, and generally unworthy of the term “justice”. And with impunity.
* * * * *
In the UK, contempt of court is governed by the Contempt of Court Act (1981) and common law which you can read about in the Your Rights Org guide where it is explained that the old scope of contempt was found to be in contravention of Article 10 (Freedom of Expression) of the European Convention of Human Rights. As a result, contempt of court is today more narrowly understood to mean any speech that interferes with the integrity of legal proceedings. It must be specific to a particular ongoing case, e.g. influencing jurors and prejudicing a fair hearing for one side in a case, or disrupting the smooth process of a trial.
Your Rights Org also makes it a point to stress that “the [Contempt of Court Act] permits the publication of material which would otherwise amount to contempt if . . . it involves the discussion of public affairs.”
Surely a discussion of how the death penalty has been applied by Singapore’s justice system is a matter of supreme public interest. Thus the question before us is not what the book is about or whether it is critical of our judiciary, but what our governance ideals are about. Should contempt of court in Singapore mean some sort of sweeping lese majeste-type law that shields scandal within the justice system or a more narrow formulation that acknowledges the right to freedom of expression, and that looks kindly on criticism that can only strengthen the course of justice?
Yawning Bread 
I thought there was a crime a lèse-majesté in Singapore, isn’t there?
there sure is, you don’t need names, do you?
I refer you back to your entry in May 2009. Perhaps Singapore has not changed: http://www.yawningbread.org/arch_2009/yax-1025.htm. Would you still be able to get satisfactory answers to your questions from last year? Similar to the title of the book, our speech aren’t yet free, but ‘our thoughts are free’…
As reported and extracted from the Sydney Morning Herald
“Shadrake, who wrote articles for London’s Daily Telegraph and other newspapers, said after the book’s Singapore launch on Saturday that he had expected trouble, but felt that the authorities were not going to take action.
“If they do anything, it’ll just draw more attention to it all, and they have no defence,” he said. ”
So Shadrake got it wrong when he felt the authorities were not going to take action.
“…and they have no defence,” – Will Shadrake be right on this?
This will be known during the trial. Shadrake and his lawyer will have every chance to get it right during the trial. Or will he? Too bad if he fail to get it right for he will lose his freedom for a period and maybe also a tidy sum for which the proceeds from his book sale may not be enough to cover.
But after he is freed, he may have another chance and lots of first hand material too to write another book. But I think he won’t come or launch it here again. Lesson learnt and for others too.
Good point, Alex.
I study Common Law, but only exclusively towards Construction (Contract) Law, and I do understand that if cases are too remote or the lawsuit is deemed to frivolous (as in Shadrake’s case) then the judge will throw it out of court.
But there again………this is Singapore. If I were him I might just want to get out of here ASAP. I have a dreadful feeling that if the law courts fail to take action then the ISD might simply come into the picture………and you know what that means.
Indefinite incarceration without trial.
You wrote: “if cases are too remote or the lawsuit is deemed to frivolous (as in Shadrake’s case) then the judge will throw it out of court.”
Will throw it out? Or do you mean “should” throw it out? “Will” assumes a certainty of outcome, which my observation of Singapore courts lends no support to whatsoever.
I think it should be both. The judge with common sense will throw the case out, and the law book should insist that the case be thrown out. 😛
That’s just my two cent opinion. I am not a lawyer. So I am not assuming to be one (Studying basic contract law doesn’t really qualify me as a lawyer. I am more engineering inclined than a litigious M.F :P)
My friend beast, he’s British.
Singapore will feel the full might of Her Majesty.
There will agencies in London working night & day to achieve such an outcome.
Connexions can only go that far, my boy.
Indeed. God saved the Queen!!! 😛
If someone interfered in the judicial process while a case was ongoing e.g. a case highlighted by the Malaysian Bar Council where it’s alleged a judge mentioned in his judgement he had received a phone call telling him what to do, the bar council alleged that this was a contempt of court.
Hypothetically speaking, can you rationally have a case where some one has alleged one type of contempt of court,only to find that making that allegation has resulted in them being accused of a different sort of contempt of court themselves – for example, were the bar council in contempt of court by making this accusation against a third party?
“…Indefinite incarceration without trial”.
PM Cameron would send in the SAS, as this would be the kidnapping of a British Citizen.
The damage is already done.
After the arrest.
(I still have serious doubts on, why it took place, for what reason) Does not make political sense at all.)
Anyway, thank goodness, its only contempt of court.
The chief govt lawyer might not want to take the book and the passages within, in its entirety, but I am sure the Judges would.
Learned people sure know how to uphold the law.
I hope they get a copy of the book, instead of just the passages.
Re: “Nowhere is contempt of court defined. I guess what it means has to be drawn from case law which can be problematic in that precedents should be evaluated in the context of their times and places.”
And one of those precedents, a recent one at that, is another scandalaous charge of contempt of court against the three SDP members/associates who wore the kangaroo T-shirts outside a courthouse.
A bad legal precedent has already been set; I don’t foresee Shadrake having a ghost of a chance. After all, “[our] judiciary and justice system is perfect and infallible and must be held beyond reproach; any criticism must by definition be wrong and criminally liable”.
Part of the AGC’s statement goes:
“Several passages in the Book contain allegations and insinuations that the Singapore Judiciary, in determining whether to sentence an accused person to death, succumbs to political and economic pressures, and that the Singapore Judiciary lacks independence.”
At Yong Vui Kong’s March 15 appeal hearing, the judges delivered a ruling containing this:
http://theonlinecitizen.com/2010/05/breaking-news-mandatory-death-penalty-constitutional-says-court/
[Quote]
“CJ Chan found that to accept the Indian standard of a ‘fair, just and reasonable procedure’ would require judicial interpretation of the scope of ‘reasonable’ – thus potentially leading to a conflict with Parliament.”
[Endquote]
By their own admission, the judiciary is afraid of incurring the wrath of the Executive and were unable to perform their legal obligation of judicial review of legislation mandating the death peanalty. If that is not ‘succumbing to political pressures’, then pray tell me, what is?
It is significant (and highly disturbing) that no criminal defamation charges have been brought. This is because the defence of justification (i.e. the defence that what you said were true) is only available in defamation proceedings.
In contrast, for contempt of court (specifically the offence of scandalisation of the judiciary), the High Court has held that truth is NO defence. The rationale is that there are other more proper channels to highlight any impropriety in the judicial process instead of denigrating the judiciary, which will undermine public confidence in the justice system.
Therefore, if no criminal defamation charges are brought, Alan Shadrake will not be able to exculpate himself by proving that his allegations were true. In fact, he might not even be allowed to lead evidence to prove the allegations in his book.
you’re good…damn
now what’s the defence.
Is contempt of court an arrestable offense? As he has been served with a summons, it may not be.
If he has not been charged with criminal defamation (again, is this an arrestable offense in any event rather than something you just serve a summons for?), can he sue for wrongful arrest, as well as any mistreatment he alleges (deprivation of sleep, no access to lawyer etc.)?
“This is an extremely dangerous route to take. Judges and officers of the court are human. They can be wrong, corrupt, careless, slothful, servile, cowardly, obstinate, sexist, racist . . . and generally suffer from any number of human failings. To put in place a criminal regime that forbids any criticism of the justice system and its officers is to ensure that we will indeed have a system that is corrupt, careless, slothful, servile, cowardly, obstinate, sexist, racist, and generally unworthy of the term “justice”. And with impunity.”
Brilliantly written! I share your views entirely!
Lawyer wrote: “The rationale is that there are other more proper channels to highlight any impropriety in the judicial process instead of denigrating the judiciary, which will undermine public confidence in the justice system.”
With contempt of court framed as broadly as it is, there are in practice no ‘proper channels’. Suppose someone concludes that several judges are almost surely corrupt through discovering that their personal assets are many times the total salaries they have earned, and they play golf on holidays fully paid by with litigants, and that someone writes an email saying so to the prime minister. The prime minister then decides what to do with the email, either send it to the Corrupt Practices Investigation Bureau to have the judges investigated or, if he wishes to protect the judges he had appointed (lest he himself be held responsible for having appointed unfit judges) he can easily forward that email to the Attorney-General and get contempt of court proceedings started against the sender of the email for “scandalising the judiciary” with those accusations. Either way, a political decision is taken.
What it means is that with such a broad catch-all definition of contempt of court where truth is no defence, it cannot but become a political decision when to use it. That politicisation of justice does far more damage than any speech criticising the judiciary.
The end result of this trial will prove to us whether our judiciary has any backbone of its own.
No need for someone to preach so much about evil.
Maybe in Shadrake’s case, he was saying certain decisions of the court with regards to death sentences don’t seem fair or consistent.
The Court of course must have certain grounds to make those decisions. And these grounds may not have been known to the public or Shadrake. Had they been known, Shadrake probably would have a different opinion.
Just like in certain things, if we do not know or are privileged to the full story, we may jump to certain conclusions to say something is wrong, unfair, despicable etc. Our conclusion hence may be wrong on this score. And of course nothing will happen if it does not involve the Court.
But if the same is said of the Court rulings, this may constitute contempt of court because it affects the integrity of the Court for which the Court may not be at fault as they have the full story. And as the Court serves the wider public, the govt of course will view it seriously and dealt firmly if it becomes a public matter.
Just a layman interpretation of contempt of court.
i have ordered it from http://www.kinibooks.com. it came in the mail within 5 days. i also took the opportunity to get a copy of beyond suspicion? the singapore judiciary by our ex solicitor general Francis Seow. Fantastic reading!
i must admit prior to this, i was largely apathetic to singapore politics, but i must now thank the govt. for stimulating my interest .. 🙂
Mat Alamak – by the same logic, we could enact a law that criminalises contempt of government, making it an offence to utter anything negative about government actions and processes, because we’re only laymen, and there is no way we can possibly know everything that factors into a government’s decision on anything. Since we don’t know, how can we have the right to criticise the government? It should be an offence.
interesting read. although i am wary of the dearth in information between those actively involved in the case and those simply reading it off news/blog sites, this case does seem to support the suggestion that the executive and judiciary of singapore are far too close for comfort, and that the rule of law, meant to demarcate between the freedom of individuals and the requirements of the state, may be under threat.
the argument from the other side might be along the lines of: flexibility/uncertainty (two sides of the same coin) of the law is necessary to guarantee society’s harmony, but can a society that lives in ignorance, born from the fear of this flexibility/uncertainty ever truly be considered as an accomplishment?
Alan Shadrake’s case is featured in my most recent article in Asia Times, which says its receives 200,000 hits a day (I suspect mostly expat Americans around Asia.)
I am sure he will get much attention and sympathy internationally, but doubt these would help him materially
15 years ago Chris Lingle, who wrote in IHT about “intolerant regimes … compliant courts”, was convicted and fined $5000; no jail sentence was imposed – he was no longer in Singapore by then so any jail sentence would have been unenforceable