The judgement on Alan’s Shadrake’s trial, delivered by Justice Quentin Loh on Wednesday, is a significant legal development on Singapore’s law on contempt – a point which the media, both local and foreign, seem to have missed. We feel it is important to explain why the judgement is significant.
In a nutshell, is the judgement a positive step in liberalizing the law on contempt of court in Singapore?
On balance, the judgment can be seen as a big step forward but the law on contempt in Singapore is really still far from ideal.
First, the heartening part: Justice Loh’s departure from decades of precedent adopting the “inherent tendency” test will probably go down in Singaporean jurisprudence as legal history.
There is a principle recognized in English Common Law of the “comity of justices”: that judges out of deference to courts of co-equal jurisdiction tend to defer to precedent out of respect for their brother judges even though not technically bound by them, as they would be if the decision came from a superior court.
For instance, in the UK, there is a large body of jurisprudence setting out when judges can depart from settled law and any departure even from singular cases are painstakingly arrived at.
Although the principle of comity of justice was not fully canvassed at trial by the Prosecution, there is a line of at least five local High Court judgments explicitly adopting the “inherent tendency” test, including recent High Court decisions like AG v Hertzberg (case brought by the AG against the Dow Jones Publishing Company in 2009) and AG v Chee Soon Juan (case brought by the AG against Dr Chee Soon Juan in 2006). These cases draw authority all the way back to a case brought against the Asian Wall Street Journal in 1991, AG v Wain. So for Justice Loh to take a clearly different position in Singapore was quite brave.
Now, the less happy part: there is also more than enough room for future prosecutors to argue that practically speaking, Justice Loh’s decision might not make much of a difference. For instance, Justice Loh notes in para 51 of the judgment that the same facts that occurred in previous contempt cases (Wain, Chee Soon Juan, Hertzberg) would have qualified as contempt under his “real risk” test. He also notes at para 49 of the judgment that he doubts there is a significant difference between either tests.
Also, whichever view you take of the judgment, until a definitive Court of Appeal ruling on the law on contempt, it’s always open to a future High Court to strike out in a completely different direction.
So what’s the big deal with this judgment: is it really only a cosmetic change?
Not completely.
First, what Justice Loh has done is to draw a clear definition of what does not constitute contempt: statements complained of have to meet the threshold of posing more than a “remote possibility” of undermining the administration of justice.
For an illustration of how the worst excesses of the law of contempt have been exorcised by Justice Loh, it’s instructive to contrast his approach with Justice Tay Yong Kwang in Hertzberg. Justice Tay Yong Kwang states at para 34 of Hertzberg:
“If we need to ask in each case whether there is a real risk that public confidence in the administration of justice has been impaired by the contemptuous remarks, it may lead to an absurd situation where a person at a dinner party who keeps shouting to all present that the Judiciary is completely biased will not be held in contempt of court simply because no one at the party bothers about his ranting or is affected by his remarks.”
Justice Loh makes clear at para 47 of his judgment what he thinks the real absurdity is:
“It would be an overzealous judiciary that would regard rants…at a dinner party as undermining public confidence in the administration of justice when no one takes serious notice of or is bothered by those rants.”
Second, Justice Loh adopted a very robust judicial attitude in scrutinizing the AG’s claim that Mr Shadrake’s book in its totality is completely in contempt, and their contention that the 14 statements were merely examples of the most outrageous contempt in the book.
For instance, in the three statements Justice Loh acquitted Mr Shadrake on (statements 3, 6 and 12), there has been some pretty significant latitude given for future authors.
Statement 3 refers to Singapore’s hanging of Australian citizen Nguyen Tuong Van:
“It (the hanging) also put the spotlight on Singapore’s legal system which many observers inside and outside the country believe has been perverted to suit political and economic expediency.”
Statement 6 notes that “the death sentence is more likely to be imposed in Singapore on those who are poorer and less educated making them more vulnerable than average.”
Statement 12 states: “Although the legal system was based on English law it was soon fine-tuned to ensure that Lee Kuan Yew and his People’s Action Party remained in power in perpetuity by silencing all political opposition through fear of being jailed as ‘communists’ or financially ruined.”
Part of the takeaway here is that the AG will really have to think twice before bringing sledgehammer style charges of contempt in future.
Finally, the postscript to the judgment is heartening, and should be seized upon by anti-death penalty campaigners who are keen to see capital punishment repealed in efforts to raise the visibility of the cause in the public eye. Justice Loh notes:
“The death penalty is the ultimate punishment under law, ultimate both in its severity and its irreversibility. It is therefore not surprising that the application of the death penalty by the courts is closely scrutinized and vigorously debated; indeed, it would be profoundly disturbing if society comes to adopt a bland and disinterested attitude towards the ultimate punishment carried out in its name.”
Sounds pretty good! But what is the most disappointing aspect of this judgment?
The underlying policy objectives of maintaining the law on contempt cited in previous judgments were adopted almost completely uncritically under the guise of “local conditions”: Singapore is a small multi-racial, multi-religious society “where information travels rapidly and where social tensions, if developed and brought to a boil, will rapidly propagate” (at para 52) that needs a lower threshold to trigger the real risk test.
The judgment completely failed to comment on the defense’s rigorous argument that the Singaporean population is highly educated and discerning and that the continued nannying of Singaporeans through the law on contempt was completely out of sync with reality. It also ignores the defense’ argument that Singapore has a plethora of other laws including the Maintenance of Religious Harmony Act and the Sedition Act to enforce racial harmony, and that the Indian courts have had no problems applying one of the most broadly framed tests for contempt of court despite tensions between Muslim and Hindu populations.
Why hasn’t the mainstream media picked up on the fact that this case is a significant legal development on Singapore’s law on contempt?
It’s far less work for them to sell stories to their readers with headlines shouting “AG wins, Shadrake loses”. Less explaining to do, simpler storyline to digest. And this is uniform across not just the local press but also in almost every foreign publication that has run stories on Alan’s case so far. Sadly, helping to educate the public is far down on the “for-profit” media’s list of priorities.
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Great article. Well-explained such that a non-legal (not illegal, haha) person like me can understand. Once again, well done TOC! Congrats and keep up the great work.
Justice Loh has been presented by the AG with an entire minefield to handle, out of which 14 smaller mines were picked and booby-trapped for his attention.
To his credit, he has manouvered his way through this political minefield, which not only affect his reputation but that of the entire Singapore Judiciary.
It was disingenuous for “the AG’s claim that Mr Shadrake’s book in its totality is completely in contempt, and their contention that the 14 statements were merely examples of the most outrageous contempt in the book.”
CNA had reported that from the 14 statements, the Judge had found 11 of the statements to be without basis, and considered to be contemptuous.
Without basis ?
When the main body of the text – that had supported the 11 separate statements – were all deliberately omitted, it is obvious even to the lay person that the 11 statements as it stand is without basis.
Could justice be served when the veracity in the contents of the book – from which the 14 statements are extracted – are deliberately avoided by the AG ?
The AG had shown preference to focus on the after effects of the supposedly spurious accusation made in Alan Shadrake’s book, rather then determine if the accusations made in the contents of the book are in anyway truthful that could cause the consequences that the AG feared.
Why did the AG avoid to neutralise all the bigger explosive mines in the minefield that were exposed by Alan Shadrake in his book ?
i like this article. it does a good job in explaining the significance of the judgement.
but i’m still impatient with the snail-paced development of jurisprudence in this area.
singapore really needs to open more!
Voting PAP out means taking out AG and cleaning out institutions of democracy hijacked err subverted by PAP to its own cause.
Voting for opposition in significant numbers means the narrowing of the PAP majority in Parliament thus sending PAP a SIGN that there is unhappiness with the PAP system of government -executive, legislature AND the JUDICIARY. The judiciary is one portion of the three that constitutes ‘government’.
Voters must narrow the majority to show this. PAP may reform or not. But voters must continuously show its discontent via the vote. Whether or not PAP uses/misuses the electoral process (PAP entering voting stations eg) is another story which requires investigation, critique and legal action (for what its worth–to show that PAP should play by fair rules–even if the outcome is thwarted by a failed system.
We need to critique and take action against these failings. It may mean banging our heads against the wall. But you are not alone. We should not ever allow those who are in the forefront of raising these questions of the PAP government to go down without a fight.
There must always be support.The vote change is within everybody’s grasp. Vote for your future. Be ready for the vote. Know your issues and know your opposition parties and the issues they are championing for your better future.
Talk to them. Read their websites. Go to their rallies. Take them to task over anything you need to know about your one vote that can make that change!
Don’t just complain. Put your vote where your mouth is!
While our Singapore laws are evolved and inherited from the UK justice system, what I do not understand is why the same kind of laws can result in apparently different judicial decisions being made by our Singapore judges as opposed to that made by UK judges ?
We are often reminded that judges are absolutely impartial but why do we often witnessed different kinds of justices meted out to different defendants even though the sentencing conditions are somehow similar ?
If judges personally have vastly varying levels of compassion in administrating sentences, can they be considered as impartial anymore ?
You missed out the MOST significant aspect of the judgment – Judge Loh rejected previous decisions which held that allegations of partiality and corruption can never constitute fair criticism.
Instead, fair criticism requires (1) an objective basis for your accusations (don’t need to prove they are true), (2) good faith, and (3) absence of intemperate and abusive language.
This is a very important holding that provides a viable defence to future individuals charged with contempt. I’m surprised your article failed to mention this aspect of the judgment.
Since Quentin Loh J pointed out correctly that judges are not infallible; he admitted that there are bad judgment and bad judges (in general). Quite a few bad judges were exposed recently in Taiwan.
Logically, the faith and trust in the judiciary does not rest on what some individuals say or write. Rather one important pillar is how the judiciary conducts itself in the exceptional cases of bad judgment and in particular, bad judges.
Take the 1986 case involving the late JBJ ( see http://www.singapore-window.org/1028judi.htm ), the miscarriage of justice against JBJ was severe and duly noted by the Privy Council. This case is far from singular and isolated. Henceforth, no further appeal to the Privy Council is permitted. The good judge, Michael Khoo was demoted and the bad judge was unpunished.
The court must understand that they are more important than PAP and not burdened with too much nitty gritty consitutions, passed by one-ruling-party system, that are not democratic and unfair meant for political agenda. The guerrymandering of electoral borders is one very important milestone the court must ruled against to ensure fair coming election.
@fair criticism,
You might have misread the judgment. The standard set for fair criticism is actually lower than that of justification, i.e. you do not need to prove actual bias or corruption, merely have an objective rational basis for it. @ 76 of the judgment, Judge Loh states that “there is no reason in principle why a person who genuinely believes that the court is partial and corrupt and has a rational basis for this belief should not be able to say so without fear of being held in contempt.
Also see @67: I cannot accept…that a court would regards as contemptuous a statement of fact which is true; in fact, I would say that it is very much in the public interest that judicial impropriety should be brought to light”.
I read that the Singapore government has essentially stopped appeals to Privy Council? So back to Quentin Loh’s admission that judges are not infallible, presumably inclusive of judges in the court of appeal, doesn’t the closure of the Privy Council channel suggest that while we know there are bad eggs we have to eat it ourselves nonetheless? This is ironic.
This Judge cannot play an one sided game in a public trial where a foreigner is involved. The international community would be watching closely on the outcome. He took pain to examine and painfully brought out samples of contempt to pin Alan down.
The law in Singapore is fair, as long as it does not involve rich and famous or politics. As long as it breaches politics, you cannot expect a fair outcome. They had stopped Privy council so that they have full control of the outcome. History has shown judges that had awarded political cases to defendants were suddenly transferred or demoted. And do we expect Judges not to worry about their own rice bowl and be fair?
As for people who want to contest absolute impartiality, they are better to bring their cases to international courts.
Dear Atobe
The full books were presented to the Judge and he did have access to it as the judgement was written. In so much as the article was correct and there was a legal shift in reasoning and the basis for determining contempt. Alan was still found guilty under the revised rationale. In the judgement the following was noted.
a. Alan did not take the stand.
b. Alan’s sources for his book which I read whether local or foreign did not take the stand or submit and affidavit on his behalf.
c. His investigative journalism disappointingly turned out to be nothing more than rehashed and mis interpreted facts unproven and unverified.
Locke
Seems to me the judiciary is trying hard to draw a line and show that there is a clear line between them & the AG chambers.
On the whole, it is good for Singapore’s legal system.
TOC,
You must have misread my comment. That was exactly what I said – you only need an objective basis for your claims and don’t need to prove that they true.
@faircriticism
Ooops sorry you’re right we misread your comment! Didnt have space in the article to explain defences, but thanks for your highlighting of it :)
What is the relevance suggested?
They took your suggestion of using another test but they still claimed this author guilty of contempt of court.
What is the point?
They are still taking away from you…
as usual.
“in fact, I would say that it is very much in the public interest that judicial impropriety should be brought to light.”
who does not know how to say it, many times over with a straight face.
now who again decides what constitutes judicial impropriety ? the court itself ? or it should better be left to public opinion (as in public interest on a matter where the judiciary’s own interest is being questioned).
dont understand why he gets himself into this trouble. just spell singapore as sinkapore.
LKY said: if you want to break someone’s window, tell them you are going to burn their house down so that when you come to break their window they will be so grateful you didn’t burn their house.
Dear Locke
Interesting points you have made:-
“a. Alan did not take the stand.”
*
Was his defense called to be made ?
.
.
“b. Alan’s sources for his book which I read whether local or foreign did not take the stand or submit and affidavit on his behalf.”
*
Can US Secretary of State or the US State Department, or the International Bar Association make an affidavit on Alan’s behalf ?
.
.
“c. His investigative journalism disappointingly turned out to be nothing more than rehashed and mis interpreted facts unproven and unverified.”
*
If the materials used in Alan’s book were nothing more than rehashed or mis-interpreted facts unproven and unverified – surely it would have reinforced the AG’s case in charging Alan Shadrake ?
Unfortunately, the AG preferred to take 14 statements out of their respective main body of text – and which CNA had reported that the Judge felt that 3 charges were without merit and threw them out, but that 11 statements were clearly justified as they were without basis.
Why was the the main body of text that supported the 11 isolated statements not seen as the basis, and the veracity of the main body of text be clearly determined so as to prove the AG’s case ?
Or is the truth in the main body of text – from which the 11 statements were extracted – too inconvenient for the AG to expound on and bring the light of international publicity onto such unholy ground ?
see or not? sg judge is fair & square, never care you angmor or sg peoples, if you break law, you go jail or kena fine! simple as that! that why sg is a place got law & order mah!
if shadrake’s argument constitutes fair criticism, since fair criticism doesnt require proof but rather is based on a rational basis, then why is he sentenced? sorry i’m abit dense
Interesting blog:) I look forward to further information.