Thursday, June 05, 2008

A Folly and a Freedom

Mr Gopalan Nair, a US citizen, a lawyer, a blogger, an ex-Singaporean and former member of the Workers’ Party has been charged for insulting/threatening a public servant.

I read the blog. The line between bravery and foolhardiness is not always very clear. But, I’m sorry Mr Nair, this is one occasion when I would venture that your dare was just a little over the top. I do hesitate to classify what you did as bravery for it seems more likely to be otherwise. In order not to humiliate you I shall not classify it at all.

I guess you figured that you’d be served with a Writ for defamation and then you would scoot off to the US and never return again. Let there be a default judgment. Let there be an order for damages. They can’t get it enforced in the US.

Talk about a colossal miscalculation. When you open your gap in Singapore, you are navigating a minefield. You, sir, have hit a mine.

Has an offence been committed? It appears that Mr Nair has been charged under s.13D(1)(a) of the Miscellaneous Offences (Public Order and Nuisance) Act. S.13D(1) is as follows:

13D. —(1) Any person who in a public place or in a private place —
(a) uses any indecent, threatening, abusive or insulting words or behaviour towards a public servant in the execution of his duty as such public servant; or
(b) distributes or displays to a public servant in the execution of his duty as such public servant any writing, sign or other visible representation which is indecent, threatening, abusive or insulting,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding one year.

I believe that it is not too difficult to fit his comment about Justice Ang ‘prostituting herself’ within the requirements of s.13D(1).
The offence can be made out very easily. As for the evidence…. its out there in cyberspace. The remarks are clearly on his blog. There were, allegedly, emails sent by Mr Nair to the Solicitor General and the Attorney General.

I wasn’t too surprised to find out that Mr Nair was arrested and questioned. But, it was certainly a surprise to find out that he was remanded for a further 7 days. Prosecution had invoked s.198 of the Criminal Procedure Code.

Judging from the blog of Mr Chia Ti Lik, Mr Nair’s Counsel, the argument, inter alia, advanced on the Defendant’s behalf was that s.198 was of no application as it dealt with adjournment of inquiries and trials. With respect, I have to disagree on that point. S.198 is the relevant provision under which a matter mentioned in court for the first time is adjourned. The Defendant was obviously not pleading guilty on that day and clearly the matter could not proceed for trial for want of readiness of the parties and witnesses, if any.

S.198 further facilitates the holding of an accused in remand for a further period of 8 days. It is with regard to the reasons for the remand that I would take issue. What was the need for remanding him in custody. What was the reason for construing that bail was in the first place appropriate and fixing bail in the morning of the hearing and then rescinding the bail and applying for further detention? Mr Chia Ti Lik’s blog alludes to the fact that the investigating officer was on hand to lay the evidence before the court as to the reason for further remand. The Court was, apparently, satisfied as to the reasons for further remand.

This is the part that is really puzzling. The explanatory provision within s.198 is as follows:
‘Explanation..—If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by a remand this is a reasonable cause for a remand.’
What more evidence did the Prosecution intend to secure through the further detention of Mr Nair. Whatever necessary evidence was already freely available.

As it has turned out, according to Mr Chia Li Tik’s blog, prosecution was planning to add another charge: SEDITION. Now, that is a scary word. It is quite a serious offence to allege against any person. My instinctive reaction was: it would take a great deal of legal creativity to make that one stick based on the stuff that appears on Mr Nair’s blog.

It appears that Mr Nair has been released on bail today and no new charge was added. Sedition would really have been stretching the law.

Incidentally, (and this is the danger with the news in the internet age: speed at the expense of truth), on 4th June 2008, Reporters without Borders reported on their website that Mr Nair had been charged for sedition. Talk about being premature. They must have relied on information from the defendant’s lawyer. Mr Chia states in his blog that Mr Nair told him via phone yesterday that he would be brought to court and he was told that another charge would be added. How’s that for the credibility of Reporters Without Borders! They didn’t do a simple fact check. They could have just reported that he may be charged for sedition. This is how they opened the article:
‘Reporters Without Borders today condemned a case brought by the authorities under the Sedition Act against blogger Gopalan Nair, a 58-year-old American lawyer, who criticised the Supreme Court’s handling of a defamation case.’
Anyway, it is going to be interesting to see how this case unfolds. Based on an AFP report, the charge faced by Mr Nair is of insulting Justice Belinda Ang Saw Ean by sending an email to her with the prostituting comment. After reading numerous online stuff, I’m a bit confused now as to what Mr Nair’s position is on the email allegation.

An AFP report states the following:
According to a court document, Nair is charged with insulting Justice Belinda Ang Saw Ean last week by sending an email which said she "was throughout prostituting herself during the entire proceedings, by being nothing more than an employee of Mr Lee Kuan Yew and his son and carrying out their orders".
Chia said the comments essentially repeated those Nair made in a recent blog about a defamation case filed by Singapore's leaders against an opposition party and its members.

Based on the above, I have two possible interpretations:
a) the defendant denies sending an email and the words contained in the charge are extracted from a blog written by the defendant
b) the defendant admits sending an email but asserts that the comments were essentially of a non-threatening nature as they were repetitions of what appeared on the blog.

I believe that it is more logical to conclude that his defence would be (a).

The less credible source, that Reporters Without Borders article that I cited above, states as follows:
‘Nair denied having emailed the judge and said that all his publications on the trial hearings were posted on his blog.’

On the assumption that he denies sending the email, the case would proceed on technical evidence. There has to be proof of the server/pc from which the email originated. Did Mr Nair have access to that PC? Could his email have been hacked into? Digital evidence of the received email, etc. etc.

I’m a little curious as to the precise wording of the charge against him. If the charge was worded in exactly the same manner as indicated in parenthesis above in the AFP report, then there is a serious slip in the charge.

If the charge is eventually amended to one involving the contents in the blog and not the alleged email, then there is likely to be an interesting jurisdiction issue.

But, above all there is going to be the legal issue of Article 14 of the Constitution.

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