Singapore’s multiracial make-up requires that the rule of law to be taken seriously, and that would mean keeping the Inherent Tendency Test as a yardstick for determining contempt, Deputy Public Prosecutor Hema Subramanian argued in her closing submission on the third day of the Alan Shadrake trial.
Alan Shadrake with defence counsel M Ravi outside the Supreme Court
She was responding to Defense Counsel M Ravi’s argument that a real risk test should be used instead, as Singapore’s population is discerning and mature enough to react appropriately to fair criticism.
Under the inherent tendency test, an act or statement is deemed contemptuous if it conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge (or the court) in the exercise of his judicial function.
The real risk test on the other hand requires that the prosecutor prove that the act or words created a real risk of prejudicing the administration of justice. Other common law countries such as Hong Kong, New Zealand and the United Kingdom have adopted this test.
Addressing Mr Ravi’s point that there had been no civil unrest in the past three decades, Ms Subramanian countered that it should not therefore mean that the Court can be less vigilant. She furthered pointed out that Mr Shadrake, being a foreigner, will not suffer if civil unrest occurs, but Singaporeans will.
Furthermore, Singapore has a small Bench. Compared to the United States which has a large Bench, she said that an attack on one judge out of 500 would have a very different consequence compared to an attack on one judge out of fifty.
Adopting the real risk test would be “asking the Court to ignore three decades of precedent.”
She also asserted that it would be “outrageous” to suggest that the 14 statements isolated from the book did not constitute a real risk.
“No clearer example of scandalizing the court can be found,” she said.
Ms Subramanian then went on to address Mr Ravi’s statement that the Attorney General’s actions amounted to ‘sniper attacks upon a few lines here and there, some of them mid sentences in an attempt to cobble together a case for contempt’
She said that selecting 14 statements from the book does not mean the rest of the book does not contain contemptuous statements. It was for ‘practical reasons’ that only 14 statements were cited. “If we cite paragraph after paragraph, we would have to spend much longer time together in this courtroom.”
The hearing ended today. Justice Loh will give his judgment the following Tuesday.
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the same old shit/logic from the govt.
What a joke!
“…..selecting 14 statements from the book does not mean the rest of the book does not contain contemptuous statements. It was for ‘practical reasons’ that only 14 statements were cited. If we cite paragraph after paragraph, we would have to spend much longer time together in this courtroom.”
*
Shame on the DPP for the nefarious logic in her argument.
Can justice be served by taking the shortest and most convenient way ?
Clearly, by returning the preferred sentences to the larger text in the relevant paragraphs – it would have shown the reasonable account from which the Alan Shadrake’s work was based on.
The contents of the book was seen to be scandalous as it was the truth of the events that had transpired, and which Alan Shadrake had painstakingly taken the trouble to dig out.
If only our Singapore journalists had the same morale strength to do the same – instead of spying on Singaporeans for scandalous snippets – perhaps Alan Shadrake would more complimentary works on Singapore.
“Ms Subramanian countered that… Singapore has a small Bench. Compared to the United States which has a large Bench, she said that an attack on one judge out of 500 would have a very different consequence compared to an attack on one judge out of fifty.”
I infer that what Hema Balasubramaniam probably meant by the above is that when an unflattering statement is made against any member of Singapore’s small Bench of 50, that statement is likely to be universalized by Singaporeans to be true of all 50 members of the Singapore Bench.
Yet, why would this be the case? Is this an admission by Ms Subramaniam that the Singapore Bench comprising 50 members is not sufficiently large enough so as to have an internal diversity among its members? Is this an admission by Ms Subramaniam that they have previouly made more or less identical rulings, especially in those cases that the PAP government puts up a vigorous defence against, such as this one involving Shadrake but also those that involve the more vocal among opposition party members?
If that is the admission she is making, then she is not wrong: the Singapore public knows very well that when it comes to the PAP’s pet projects, and all Singaporeans including those in the Judiciary know only too well what those are, it is best – or so it would seem – to err on the side of cauition. Look no further than the latest in the line of rogue rulings against SDP memebers by a memeber of the Bench she is vigorously defending:
http://www.yoursdp.org/index.php/news/singapore/4264-singapore-logic-okay-on-1-may-not-okay-9-aug
Show me an exception to the above pattern and I will show you Michael Khoo.
So would she and the AGC that is goading her on really believe that it is Shadrake and not the frauds in the Judiciary that is at fault here?
I have previously described the chronic problem of judicial misconduct as “systemic” in nature. By that, it is meant a problem that:
a) conforms to a PATTERN;
b) and thus is likely to be repeated in the future and is therefore PREDICTABLE;
c) and is indicative of a particular type of mindset, a PREDISPOSITION, in those helping to perpetuate the said systemic problem.
I suggest that MS Subramaniam has made some inadvertant revelations.
I have also notived that both the DPP as well as the writer of this article uses “contemptuous” interchangeably with “in contempt of court”.
From my understanding, they are two different things: you can speak contemptuously about the courts and yet not be in contempt of court. But maybe that’s where the difference between the “inherent tendency test” and the “real risk test” lies.
[Quote]“Adopting the real risk test would be “asking the Court to ignore three decades of precedent.”{Endquote]
Well, Hema. That’s the real meaning of setting precedents in the law or didn’t NUS Law School teach you that?
New precedents can always be set, especially when it is for the purposes of keeping up with changes in knowledge, need, circumstances and such like. Those are all legitimate reasons for judges to set new precedents and the reason that the common law system has it as an important feature in the first place: because we don’t assume to have perfect knowledge at any one time in human history.
If the real risk test is objectionable to the PAP government and its agencies like the AGC on the grounds of racial and religious sensitivities, then a judge is also empowered to make exactly THAT the ruling: the inherent tendency test is to be used when racial and religious senstivities are involved, but the real risk test may be used in all other matters. (I suggest that Ravi’s highest chances of finding exactly such a precedent might be in relevant Indian court rulings.)
Hema will be a judge soon.
There is nothing wrong with Hema pursuing her career in the Civil service and if she gets promoted good for her,likewise there is nothing wrong with Ravi pursuing attention providing “pro bono” if that can help hum in his political career after all LKY started his political career representing Unions for a dollar fee or even “pro bono” if that can help his political career.
So our ‘intelligent’ DPP is now even arguing that spending more time in the court arguing on paragraph after paragraph would be a waste of time afterall ? And for practical reasons, she is actually saying that the 14 statements taken out of context would suffice ?
Come on, she is now asking the court to sent a man to jail and she is most worried that it will be a waste of time to spend time arguing the finer details of the book ?
Why is she in such a hurry to have case concluded ?
“She said that selecting 14 statements from the book does not mean the rest of the book does not contain contemptuous statements. It was for ‘practical reasons’ that only 14 statements were cited. “If we cite paragraph after paragraph, we would have to spend much longer time together in this courtroom.”
Justice hurried is injustice done. If the objective is to get to the bottom of the issues and really prove beyond a shadow of a doubt that Shadrake is guilty of contempt of court, then a longer time has to be spent to ensure justice is done. Obviously she is in a hurry to get this over with so as to minimize the embarassment with the whole world watching.
“She furthered pointed out that Mr Shadrake, being a foreigner, will not suffer if civil unrest occurs, but Singaporeans will.”
Based on Ms Subramanian statement above, PAP and LHL should be hurled to court, too, for reckless influx of foreigners into Singapore at the expenses of Singapore. It is ultimately the citizen who suffer from bad govt policies. What has she got to say about LHL immigration policies failure which, she now admitted, has disastrous impact on locals.
“I submit that the ‘inherent tendency’ test does not meet the standard of rationality required by Article 14.” Jack Lee, legal academic.
DPP Hema Subramanian’s argument for the retention of the ‘inherent tendency test’ is weak and outdated at best. For a cogent argument and a readable account to the contrary, see Jack Lee’s “Freedom of Speech and Contempt by Scandalizing the Court in Singapore”.
http://www.ialsnet.org/meetings/constit/papers/LeeJack%28Singapore%29.pdf
Adopting the real risk test would be “asking the Court to ignore three decades of precedent.”
- so is this to mean that we must stick to archaic and outdated practices forever??
“…..selecting 14 statements from the book does not mean the rest of the book does not contain contemptuous statements. It was for ‘practical reasons’ that only 14 statements were cited. If we cite paragraph after paragraph, we would have to spend much longer time together in this courtroom.”
*
Having 14 alleged statements (that is unproven) don’t imply the rest of the book is no good.
For example, having some graphic description of s*x in the bible doesn’t make the rest of the bible a porn book.
I did a mini survey the past two days and asked close to 50 people on their views about the case. The unanimous verdict was that the bloke does stand a chance.It was just a matter of fine or prisonment and that depends on the political repercussion from Britain. They too cited 3 decades of precedent in judgments and the isolated case of Michael the Brave heart. Well all noted that your honour is neither a fool nor a brave heart to put his ass on the line and so will follow precedent. As the whole of Singapore knows it’s a foregone conclusion.Anyway, its nice to see people making a fool of themselves..we all know who the educated ballsless clowns are..
“Singapore’s multiracial make-up requires that the rule of law to be taken seriously, and that would mean keeping the Inherent Tendency Test as a yardstick for determining contempt”
Wait a minute.. WHAT THE HELL DOES Multiracial makeup have to do with this?
These PAPsmears ALWAYS trot out that line as an explanation to everything, as if Singapore is the only multiracial country in the world. Hell it’s not even CLOSE to being as multiracial as some other countries or cities.
Gay rights? No cannot. Singapore multiracial society.
Opposition elected? No cannot. Singapore multiracial society.
PM’s pay too high! NO! Singapore is a multiracial society.
The PAPsmears have got “multiracial” Tourettes.
“She said that selecting 14 statements from the book … was for ‘practical reasons’ that only 14 statements were cited. “If we cite paragraph after paragraph, we would have to spend much longer time together in this courtroom.””
what a joke. pragmatism trumping over justice.
the DPP sounds like she’d rather be somewhere else sipping tea than seeing justice be served.
what would lord denning say….
Dear Save
I had the pleasure of reading Alan’s book and the problems were not in so much as with the judiciary or the judges or the courts as defined below but rather with the discretionary power vested in the AGC and how it is and was decided in the cases listed in his book.
He blames the unfairness on the courts whereas the unfairness lie in the people who administer and prosecute the law.
As it is I wish he had greater clarity in his writings and criticisms seperating the judiciary, judges, and prosecutors.
Locke
The judiciary, also referred to as the judicature, consists of justices, judges and magistrates among other types of adjudicators. Under the doctrine of the separation of powers, it is one of the three branches of government. The primary function of the judiciary is to adjudicate legal disputes. The judiciary is also responsible for interpreting the law, but while in some legal systems this is a fundamental principle (e.g. common law jurisdictions), in others the primary responsibility for interpreting the law belongs not to the judiciary but to the legislature — traditionally, civil law and socialist law jurisdictions — although even in them, the judiciary inevitably must play some interpretive role, since interpretation of the law is an inseparable part of adjudicating legal disputes. This difference can be seen by comparing the United States and People’s Republic of China — in the United States Federal Government, the Supreme Court is the final authority on the interpretation of the law; in the PRC, the final authority on the interpretation of the law is the National People’s Congress.
Democracy? No cannot. Singapore multi-racial society.
Justice? No cannot. Singapore multi-racial society.
Equality? No cannot. Singapore multi-racial society.
Wait a minute, aren’t those 3 values in our pledge. Wow, being a Singaporean sure is confusing :S
Actually the whole issue is that Alan came to Singapore to flaunt that he can in a way throw Singapore Justice System in a bad light and get away with it. To allow the book to be sold in Singapore has shown a great concession from the authority what is now permitted. But to rub salt on injury was just too much for some to take. So he must be dragged to court for public display….. and he must be found guilty, if not even more public embrassment.
I think Shradake is taking the chance by taking on the most respected court in this region if not the world. And I mean it.
He is an Englishman, and he knows what he is writing and he put across as interpreted by our DPP. So be a man, own up and face the music. After that the book will sell better he hope.
Pro bono lawyers are opportunistic too and can only do so much. Half for you and half for himself.
Singapore is no more a colony. So Shradake should look at his own country first before trying to be too clever. Go and investigate how the Iraq war was started if he has nothing to do.
And please behave a bit. Don’t loose more hair.
If the Inherent tendency test were a multiple choice question to qualify as a kangaroo judge, the answer would definitely be “I am inherently inclined to pick the pigs as winners in all cases I preside for them.”
The various press reports of these proceedings are sparse and contradictory, so as an interested foreigner googling this case I’d like to know if and how the issue of jurisdiction has been addressed, which I expect the Court will have to satisfy itself on before looking at anything else.
I doubt anyone would claim that the Singaporean Courts have some special global jurisdiction, otherwise there would be international chaos, but here we have a British national accused of Contempt of Court in Singapore for having written a book in Malaysia, and published presumably by a Malaysian publishing company. The book has not apparently been banned in Singapore. Unless I’ve missed something essential this looks like the prosecution of a foreigner for acts done in another foreign country. If that is correct, then can someone kindly point out what is the legal basis in domestic and international law for the prosecution?
For example, if the similar offence had not been abolished in the UK, which in fact it has, could a Frenchman who had written something bad about English judges published in Spain by a Spanish publishing house, then be prosecuted in the UK? I think not, there is no jurisdiction. People in a foreign country can say or write what they like about a judicial system anywhere else (as well as , usually, about their own) .
A comparable case in the UK might be when a member of the Royal family was blackmailed, and the court trying the blackmailers ordered his/her identity not to be revealed. If the UK press had revealed the identity it would have been contempt of court. There was nothing however to prevent foreign press from doing so, as the UK courts had no jurisdiction in those countries.
To claim international jurisdiction would lead to total chaos and most likely be an infringement of other countries’ sovereignty. It surely means, hypothetically speaking, that the British government could bring a prosecution in England against Singaporeans in Singapore who, rightly or wrongly, it accused of having unlawfully abducted (in English Law) an elderly, sick British writer and held him incommunicado for around 30 hours in appalling conditions for interrogation. That of course would be preposterous.
So some clarification by a local lawyer would be appreciated!
@Foreigner
You may wanna read about what amounts to contempt here -
http://en.wikipedia.org/wiki/Offence_of_scandalizing_the_court_in_Singapore
(yes, we made it to wikipedia!)
Thanks Joshua, but it doesn’t deal with the issue of foreign jurisdiction.
C’mon guys lets face it. we already know the outcome.
I refer once again to this quote:
[Quote]“Adopting the real risk test would be “asking the Court to ignore three decades of precedent.”{Endquote]
In my response to it above, I mentioned that ‘new precedents can always be set, especially when it is for the purposes of keeping up with changes in knowledge, need, circumstances and such like’.
Very coincidentally, it is also Ravi who is challenging the legality of S 377a in the courts, prompted by the ‘change in knowledge’ that I alluded to above, the same basis on which similar court challenges in other countries, notably Canada and India, has been very successful.
I believe that the AGC’s representative will also be in court then to defend the government’s position on S 377a.
How will the AGC respond to a challenge in which a new precedent might be set?
Or will the AGC maintain that the law is written in stone, they cannot ignore decades of precedent and keep S 377a?
@interested foreigner
You may find the discussion of territorial jurisdiction in the following article.
http://www.singaporelaw.sg/content/Conflict.html
According to this article, the Singapore judiciary has jurisdiction when either
a) the defendant is present in Singapore
or
b) he agrees to submit to the jurisdiction.
In the event of a), the defendant may apply for a stay in the proceedings which may or may not be denied. It is not clear (to me) if this has been done in Shadrake’s case.