Shadrake’s day in court, part 1

Asked by reporters outside the courtroom if he would take up the Attorney-General’s Chambers’ (AGC) suggestion to tender an “unreserved, unqualified apology”, Alan Shadrake said, “I will not grovel.”

The book he referred to was Once a Jolly Hangman, which compares a number of capital cases over the last two decades and the varying ways they were handled. See also a new blogpost about the book from Little Ms Kaypoh.

The court hearing lasted only about 40 minutes on the morning of 30 July 2010. This was his first court appearance since he was served with a summons about 12 days ago for contempt of court. The Attorney-General’s Chambers is seeking to have him imprisoned for contempt of court, in particular, for “scandalising” Singapore’s judiciary through several critical passages in the book.

The chief matter dealt with today was defence counsel M Ravi’s application for a month’s adjournment. He told the High Court judge, Quentin Loh, that he needed time to explore the possibility of filing affidavits in support of defence arguments to come. Speculatively, M Ravi suggested that affidavits might be needed from third parties, such as those involved with a German girl’s drug case.

Representing the AGC, David Chong Gek Sian objected to the application. Saying he was “perplexed” what basis the defendant might have to want third parties to file affidavits, he reminded the court that in contempt of court cases, justification is no defence. He characterised any attempt to justify the scandalising words as a further “affront” to the dignity of the court.

The judge brought in the angle that in contempt of court cases, the defendant was not a “compellable witness”. I am not sure how, but this seemed to factor into his final decision to grant, in a limited way, the application for adjournment: He gave defence counsel two weeks within which Shadrake (not third parties) may file his own affidavit. Then the AGC would have one week to respond to it.

M Ravi asked about affidavits from third parties again. The judge said he was free to seek another application to admit third party affidavits should these become necessary in defence counsel’s view. M Ravi then asked whether such an application would be heard in open court or in chambers? Loh replied, “We’ll cross the bridge when we come to it.”

The next hearing is likely to be at the end of August or early September.

A lawyer sitting near me in the public gallery felt that Quentin Loh acted fairly. Another lawyer noted that Chong, lead counsel for the AGC, ought not to have objected to the application for leave to file affidavits. The accused should have the right of reply. In the case against the Wall Street Journal (where David Chong was also lead counsel for the AGC), the accused had about six weeks to file an affidavit.

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Quentin Loh himself raised two points from the bench:

First, he notified the AGC that under Rule 52(2)(2) of the Rules of Court, the required statement from the AGC should contain the address of the defendant. The statement that the AGC had earlier prepared did not. This omission had to be rectified.

Secondly, he asked both counsel whether during the trial he will be asked to consider the captioned words from Shadrake within the context they were made, for if so, he would then need to have a copy of the book. He himself does not have a copy, and neither counsel has offered one to him. There was some discussion of this point, at the end of which I am not clear what was decided. AGC’s David Chong seemed to indicate that it would not be necessary for the judge to have a copy of the book since context would not be an issue, but I am not sure if that was his definitive position.

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Since the session was taken up in procedural matters, no substantive arguments were heard.

M Ravi however dropped a few hints as to the arguments he may be adopting, subject, I am sure, to further instructions from his client; only time will tell what defences he will ultimately be relying on. In the course of trying to convince the judge why he needed an adjournment, M Ravi mentioned Article 14 of the Constitution and the question of the appropriate test for contempt of court. I don’t understand why he made it a point to tell the court that Article 14 (Freedom of expression) only applies to citizens and Shadrake is not a citizen. We will have to wait and see how this point is developed.

What was clearer was his mention that he will be asking to court to consider rejecting the “inherent tendency” test in favour of a higher bar, the “real risk” test. This is where it gets somewhat technical, but not beyond the comprehension of the layman. Jack Tsen-Ta Lee has written a paper on this, which you can refer to at http://www.ialsnet.org/meetings/constit/papers/LeeJack%28Singapore%29.pdf.

Basically, Jack Lee addresses the questions: When do words become contemptuous of the judiciary? And how do we balance this against a fundamental liberty — freedom of expression? He outlines three tests of increasing rigour:

• the inherent tendency test
• the real risk test
• the clear and present danger test

Singapore courts, Lee wrote, have long stuck by the first, lowest test. By this, words that are judged to have an “inherent tendency” to interfere with the administration of justice would be considered to have “scandalised” the court.  In the recent case of Attorney-General v. Daniel Hertzberg, editor of the Wall Street Journal in Asia (2009), this use of the lowest test was reaffirmed when the court reasoned that: “conditions unique to Singapore (i.e., our small geographical size and the fact that in Singapore, judges decide both questions of fact and law) necessitate that we deal more firmly with attacks on the integrity and impartiality of our courts”.

Lee does not agree with this reasoning.

Lee also points out that “It is evident that an offence that penalizes persons for speaking their minds potentially infringes the right to freedom of speech that is constitutionally protected in most democratic jurisdictions,” though our constitution sets out a few possible restrictions of this freedom. Unfortunately, our courts have held that so long as a piece of legislation has a “nexus” between itself and one of the constitutionally allowed restrictions on free speech, then it is a constitutionally valid legislation. Any nexus will do, it does not even have to meet the test of reasonableness. Why not? The constitution does not explicitly demand a reasonable nexus, our courts have said.

Lee contests this supine stand: “it is inherent in rights interpretation that the judiciary must assess the reasonableness of such limitations.”

Arguing that the judiciary must apply a rationality test to any legislated restriction of a fundamental liberty, he finds that for courts to apply the “inherent tendency” test to determine contempt of court would fail that rationality test. “Inherent tendency” is too sweeping to be a justifiable restriction on freedom of speech. Instead, our courts should apply at least the “real risk” test — meaning that there should be shown to be a genuine and significant risk, not merely a remote possibility that the administration of justice would be adversely affected.

In Canada, an appeal judge has pronounced that “it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression”; therefore, it should be restricted “only in the clearest of circumstances”, while in the United States, the Supreme Court has held that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished” — that is, it must meet the test of “clear and present danger”, the highest of the three levels outlined above.

However, as Lee has shown, these or similar arguments have been made before in Singapore courts, obviously to no avail. It will be interesting to see if M Ravi will be making similar arguments in the Shadrake case and if the judge will be convinced.

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Previous posts:

New book puts death penalty on trial

Shadrake faces heavy silencing hand

Shadrake faces heavy silencing hand, part 2