What did Shadrake really say?
I haven’t read the book. So, I think it would be really premature to judge on the contempt of court charges.
I have previously written about my views on criminal defamation. Looks like things are moving slowly on that front. But, it is really contempt of court where the action is at. As the law stands right now and as it has been interpreted by the Courts so far, contempt law would be based on English Common Law as it existed at the time that our Constitution was adopted.
If Shadrake avoided any allegation against the judiciary or if he refrained from imputing any wrongdoing or partiality on the part of the judiciary, the contempt charge may be difficult to make out. But, this is not entirely clear to me right now. It is entirely possible that the author might have taken a wild swing at the judiciary. That would be quite consistent with sensationalistic writing that some ‘investigative journalists’ are prone to and quite legitimately some of us would suspect that even Shadrake might have been guilty of. (Again, without reading the book I am really speculating here.)
For Shadrake to be on safe ground, the book must have referred to the cases in a factual reporting style and any allegation of unequal treatment under the law must have avoided allegations against the judiciary. Such a method of writing could have been accomplished without difficulty in relation the drug cases that Shadrake has reportedly addressed in his book. Based on Alex Au’s review of the book in his Yawning Bread blog, the following cases have been examined:
Vignes Mourthi case: The issue here appears to be evidence that was unavailable at the trial. Apparently, a key prosecution witness was involved in some impropriety and evidence of credibility of this witness was not available at the trial of Vigness Mourthi. I wouldn’t lay any blame on the judiciary. From my reading of the review by Alex Au, it doesn’t appear that Shadrake was blaming the judiciary.
Amara Tochi case: This case is more of an indictment of the reversal of the burden of proof in the Misuse of Drugs Act rather than an indictment of the judiciary. This is what opponents of the mandatory death penalty have been saying all along. The judge’s hands are tied. Once the presumption in the statute kicks in, it is virtually impossible for the Defendant to prove his position. Again, on the face of it, this case cannot possibly be an indictment of the judiciary.
Julia Bohl case: This is a trafficker against whom CNB appears to have had a good deal of evidence. However, in what is allegedly a deal between the German government and the Singapore government, the charge against Julia Bohl described a quantity of cannabis that was below the statutory presumption. Now, this is definitely a scandalous allegation. But, in any event, this is also not an allegation leveled against the judiciary. What has allegedly transpired could not be a stain on the judiciary.
I am not going into, and I should not go into (given the fact that I have not read the book), each of the other examples raised by Alex Au in his review of the book. A quick glance of each of the instances mentioned reveals that there may not have been any imputation against the judiciary to begin with in the book. This is something that I can ascertain for myself only if I read the book.
If the content of the book had the ‘inherent tendency’ to create prejudice, the contempt offence could be made out. The inherent tendency test is satisfied if a statement "conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function." Whether any allegations were true is not an issue that can be raised as a defence. If Shadrake had merely dealt with individual cases by highlighting that different offenders were charged differently and this resulted in the inconsistent application of the death penalty, I don’t see how the contempt charge could be made out. It is, at most, an indictment of the law enforcement end of the system and in no way impugns the judiciary or its integrity.
Of course, the sneaking suspicion that I have is that somewhere along the way Shadrake might have made a sweeping statement that might have tied the judiciary to the inconsistency in the application of the death penalty. If he had done that, the contempt charge would be made out easily. This, I would not know until I have read the book.
I am left wondering…. What, exactly, did Shadrake say?
Showing posts with label Shadrake. Show all posts
Showing posts with label Shadrake. Show all posts
Thursday, August 05, 2010
Wednesday, July 21, 2010
The Shadrake Affair
The Shadrake Affair
“If they do anything, it’ll just draw more attention to it all, and they have no defence,” – This is what Allan Shadrake had reportedly said on the day before he was arrested. Well, Shadrake has thrown down the gauntlet and our authorities have taken up the challenge. It would be interesting to see how this plays out.
From the information that has emerged thus far from official sources and from international news reports, the following is clear:
a) The basis of the arrest was criminal defamation which is an offence under s,488 of the Penal Code which reads as follows:
Section 499 of the Penal Code: Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
b) The AG’s chambers is proceeding with a Contempt of Court application against Shadrake because statements in the book are alleged to impugn the impartiality, integrity and independence of the judiciary
c) Shadrake has been released on bail and his passport has been impounded
d) The contempt of Court matter has been fixed to be heard on July 30
A Home Ministry spokesman has reportedly stated:
"His anti-death-penalty views are not the issue in these investigations; it is his violation of the laws of Singapore which are.” "Anyone, Singaporean or otherwise, who breaks the law regardless of the cause he touts, will be taken to task. Shadrake is no exception."
According to the Today newspaper:
In court documents obtained by MediaCorp yesterday, the AGC is alleging that several passages in Shadrake's 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 therefore "lacks independence".
Shadrake also insinuated that the Judiciary "has been facilitating the suppression of political dissent and criticism in Singapore through the award of heavy damages in defamation actions brought without legal basis by the People's Action Party", the AGC says.
According to the Telegraph, a British newspaper, Allan Shadrake has spoken after his release and he has said the following:
"I have to stay in Singapore, I can't leave till the trial," "I've been awake almost the entire time since they dragged me out of bed at 6 a.m. Sunday morning. I've had a few hours sleep on a very hard floor. I've been sitting at a desk being interrogated all day long explaining all the chapters of the book, going into the history of the book, my research, why I did the book."
With very little facts out and having no access to the book, I can’t make any useful assessment of the issues at hand.
However, I do believe that this ‘criminal defamation’ offence is worth some discussion. As with many of our Penal Code provisions, this particular offence was created by the British. The origins of the offence can be traced back to the 17th century. The Star Chamber dealt with any form of libel critical of the state as a breach of peace. The common law courts subsequently adopted the tests formulated by the Star Chamber for criminal defamation. Prosecution for criminal defamation disappeared in the UK in the 20th century. Last year, the UK parliament abolished the offence. Defamation today raises the possibility of civil liability only and not criminal liability.
In the course of the discussion surrounding the abolition of the offence, some views expressed by academics, jurists, parliamentarians and NGOs are instructive:
Lord Lester (member of the House of Lords and also a leading QC) of Herne Hill said:
"Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere …..”
Jonathan Heawood, director of ‘English PEN’ (a British charity involved in protection of literature and human rights):
“We are delighted that the government accepts our case for abolition. This news will be of comfort to the hundreds of writers around the world who have been persecuted for criticising their governments. Time and again, we have found that sedition laws in the UK provide a convenient excuse for regimes around the world to retain their own oppressive laws. Abolition in the UK removes that excuse, and is a great symbolic victory for our shared human right to freedom of expression.”
One can see that criminal defamation had become a redundant law in the UK and there had been no known prosecution in the 20th century. As such, the debate in the UK last year was largely about setting an example rather than about the rationale for the law. It is true that sometimes it is convenient for countries to assert that the UK has such-and-such law and therefore we are justified in having it. Clearly, the repeal of criminal defamation in UK removes that argument from the picture. But, equally an argument might be advanced that we don’t have to follow what the English do; we ought to adapt our laws to suit our unique socio-cultural circumstances.
Well, in the local context, our Attorney General has intervened to prevent a party from proceeding with criminal defamation in the not too distant past. The AG’s explanation is as follows:
“The law of criminal defamation is not to be resorted to lightly. A person who feels
that he has been defamed may institute a civil action against the alleged defendant. If his claim is well-founded, the court will award the appropriate damages and costs. Should his claim fail, however, he will be liable to pay the legal costs of the defendant. The prospect of payment of costs ensures that defamation suits are not instituted lightly.
No such limiting mechanism exists in respect of criminal defamation. Although the courts have power to award costs in criminal proceedings, this is uncommon; and unlike in civil proceedings, costs do not automatically follow the event. Moreover, it is only in the most serious cases that a person who has allegedly defamed another should face the prospect of a jail sentence.”
- Media Background Brief dated 16th October 2009
My view on criminal defamation is that it is an offence that relates to reputational damage. If a person’s reputation is affected or a corporate entity’s reputation is affected, it is appropriate for that person or body to commence proceedings to safeguard its reputation and to seek damages. The state ought to have no vested interest in safeguarding the reputation of persons (natural or legal). It is a waste of state resources to prosecute a person for the offence of criminal defamation. Such resources are better utilised in protecting the general community from harm.
Reputational damage should be subject solely to a regime of civil remedies. Criminal law should have no part to play in protecting a person’s reputation.
To put it another way: If I am defamed, I’ll sue. But, I don’t expect the taxpayer to cover my legal costs.
“If they do anything, it’ll just draw more attention to it all, and they have no defence,” – This is what Allan Shadrake had reportedly said on the day before he was arrested. Well, Shadrake has thrown down the gauntlet and our authorities have taken up the challenge. It would be interesting to see how this plays out.
From the information that has emerged thus far from official sources and from international news reports, the following is clear:
a) The basis of the arrest was criminal defamation which is an offence under s,488 of the Penal Code which reads as follows:
Section 499 of the Penal Code: Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
b) The AG’s chambers is proceeding with a Contempt of Court application against Shadrake because statements in the book are alleged to impugn the impartiality, integrity and independence of the judiciary
c) Shadrake has been released on bail and his passport has been impounded
d) The contempt of Court matter has been fixed to be heard on July 30
A Home Ministry spokesman has reportedly stated:
"His anti-death-penalty views are not the issue in these investigations; it is his violation of the laws of Singapore which are.” "Anyone, Singaporean or otherwise, who breaks the law regardless of the cause he touts, will be taken to task. Shadrake is no exception."
According to the Today newspaper:
In court documents obtained by MediaCorp yesterday, the AGC is alleging that several passages in Shadrake's 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 therefore "lacks independence".
Shadrake also insinuated that the Judiciary "has been facilitating the suppression of political dissent and criticism in Singapore through the award of heavy damages in defamation actions brought without legal basis by the People's Action Party", the AGC says.
According to the Telegraph, a British newspaper, Allan Shadrake has spoken after his release and he has said the following:
"I have to stay in Singapore, I can't leave till the trial," "I've been awake almost the entire time since they dragged me out of bed at 6 a.m. Sunday morning. I've had a few hours sleep on a very hard floor. I've been sitting at a desk being interrogated all day long explaining all the chapters of the book, going into the history of the book, my research, why I did the book."
With very little facts out and having no access to the book, I can’t make any useful assessment of the issues at hand.
However, I do believe that this ‘criminal defamation’ offence is worth some discussion. As with many of our Penal Code provisions, this particular offence was created by the British. The origins of the offence can be traced back to the 17th century. The Star Chamber dealt with any form of libel critical of the state as a breach of peace. The common law courts subsequently adopted the tests formulated by the Star Chamber for criminal defamation. Prosecution for criminal defamation disappeared in the UK in the 20th century. Last year, the UK parliament abolished the offence. Defamation today raises the possibility of civil liability only and not criminal liability.
In the course of the discussion surrounding the abolition of the offence, some views expressed by academics, jurists, parliamentarians and NGOs are instructive:
Lord Lester (member of the House of Lords and also a leading QC) of Herne Hill said:
"Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere …..”
Jonathan Heawood, director of ‘English PEN’ (a British charity involved in protection of literature and human rights):
“We are delighted that the government accepts our case for abolition. This news will be of comfort to the hundreds of writers around the world who have been persecuted for criticising their governments. Time and again, we have found that sedition laws in the UK provide a convenient excuse for regimes around the world to retain their own oppressive laws. Abolition in the UK removes that excuse, and is a great symbolic victory for our shared human right to freedom of expression.”
One can see that criminal defamation had become a redundant law in the UK and there had been no known prosecution in the 20th century. As such, the debate in the UK last year was largely about setting an example rather than about the rationale for the law. It is true that sometimes it is convenient for countries to assert that the UK has such-and-such law and therefore we are justified in having it. Clearly, the repeal of criminal defamation in UK removes that argument from the picture. But, equally an argument might be advanced that we don’t have to follow what the English do; we ought to adapt our laws to suit our unique socio-cultural circumstances.
Well, in the local context, our Attorney General has intervened to prevent a party from proceeding with criminal defamation in the not too distant past. The AG’s explanation is as follows:
“The law of criminal defamation is not to be resorted to lightly. A person who feels
that he has been defamed may institute a civil action against the alleged defendant. If his claim is well-founded, the court will award the appropriate damages and costs. Should his claim fail, however, he will be liable to pay the legal costs of the defendant. The prospect of payment of costs ensures that defamation suits are not instituted lightly.
No such limiting mechanism exists in respect of criminal defamation. Although the courts have power to award costs in criminal proceedings, this is uncommon; and unlike in civil proceedings, costs do not automatically follow the event. Moreover, it is only in the most serious cases that a person who has allegedly defamed another should face the prospect of a jail sentence.”
- Media Background Brief dated 16th October 2009
My view on criminal defamation is that it is an offence that relates to reputational damage. If a person’s reputation is affected or a corporate entity’s reputation is affected, it is appropriate for that person or body to commence proceedings to safeguard its reputation and to seek damages. The state ought to have no vested interest in safeguarding the reputation of persons (natural or legal). It is a waste of state resources to prosecute a person for the offence of criminal defamation. Such resources are better utilised in protecting the general community from harm.
Reputational damage should be subject solely to a regime of civil remedies. Criminal law should have no part to play in protecting a person’s reputation.
To put it another way: If I am defamed, I’ll sue. But, I don’t expect the taxpayer to cover my legal costs.
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