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?