Chee Soon Juan's strenuous and persistent questioning of witnesses whilst the court had disallowed those questions gave rise to a contempt conviction.
Gopalan Nair's vitriolic verbal assualt making reference to the judge who presided over the case has resulted in a charge under the Penal Code of insulting a public officer. Both of these cases give rise to the fact that there is an interest in protecting the integrity of the judicial system and an opposing public interest in being able to engage in free criticism of the judiciary and to subject them to scrutiny.
Here are some interesting quotes about insults leveled against the judiciary or contempt of court generally. It is quite a task to balance the need for an unimpugned judicial system as a cornerstone of constitutional governance and the need for free expression and free speech so that a little boy can still cry out that the emperor wears no clothes.
In Re S.Mulgaokar(1978) 3 SCC 339.
“The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment, because Judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection – for a wide discretion, range of circumspection and rainbow or public considerations benignantly guide that power” - Justice Krishna Iyer
Ambard v. Attorney General for Triandad and Tobago, 1936 AC 322.
"The path of criticism is a public way. The wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men." – Lord Atkin
In Re S.Mulgaokar(1978) 3 SCC 339.
“A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to public regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must be delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage – a delicate but sacred duty whose discharge demands tolerance and detachment of a higher order”. – Justice Krishna Iyer
Showing posts with label insult. Show all posts
Showing posts with label insult. Show all posts
Friday, June 20, 2008
Wednesday, June 18, 2008
Misreporting by Reporters Without Borders
Reporters Without Borders – they have again got their facts wrong.
In an article entitled “US blogger Gopalan Nair still waiting the outcome of trial” dated 17th June 2008, Reporters Without Borders (RWB) makes the following assertions at two different parts of the article:
Firstly,
“This trial is a farce. Gopalan Nair appeared today before one of the plaintiffs herself”, the worldwide press freedom organisation said. (that’s a reference to RWB)
Secondly,
The case of “insulting” Belinda Ang Saw was heard today with the judge herself presiding over the hearing.
The second sentence is hyperlinked to an AFP article. The AFP article does not state that the matter was heard before Justice Belinda Ang. I believe that the writer of the RWB article must have misunderstood the AFP article. The following is the relevant extract from the AFP article:
In the blog, Gopalan Nair criticised a recent legal hearing at which Singapore founding father Lee Kuan Yew and his son, Prime Minister Lee Hsien Loong, testified in a defamation case they filed against an opposition party.
Nair, 58, is charged with insulting Justice Belinda Ang Saw Ean by saying she was "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," a court document said.
Justice Ang presided over the hearing.
I believe that the AFP article was making the assertion that Justice Ang presided over the defamation hearing and not Mr Nair’s mention. According to Mr Chia Li Tik’s blog, the matter was mentioned at the subordinate courts on 16th June 2008 and the DPP had requested for the case to be transferred to the High Court. The case has now been fixed for further mention on 14th July 2008 at Court 26 presumably pending the fixing of a date for Pre-Trial Conference at the High Court.
RWB seems to have jumped the gun in their enthusiasm to paint a less than flattering picture. This kind of reporting does not, in any way, assist in promoting the truth.
In an article entitled “US blogger Gopalan Nair still waiting the outcome of trial” dated 17th June 2008, Reporters Without Borders (RWB) makes the following assertions at two different parts of the article:
Firstly,
“This trial is a farce. Gopalan Nair appeared today before one of the plaintiffs herself”, the worldwide press freedom organisation said. (that’s a reference to RWB)
Secondly,
The case of “insulting” Belinda Ang Saw was heard today with the judge herself presiding over the hearing.
The second sentence is hyperlinked to an AFP article. The AFP article does not state that the matter was heard before Justice Belinda Ang. I believe that the writer of the RWB article must have misunderstood the AFP article. The following is the relevant extract from the AFP article:
In the blog, Gopalan Nair criticised a recent legal hearing at which Singapore founding father Lee Kuan Yew and his son, Prime Minister Lee Hsien Loong, testified in a defamation case they filed against an opposition party.
Nair, 58, is charged with insulting Justice Belinda Ang Saw Ean by saying she was "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," a court document said.
Justice Ang presided over the hearing.
I believe that the AFP article was making the assertion that Justice Ang presided over the defamation hearing and not Mr Nair’s mention. According to Mr Chia Li Tik’s blog, the matter was mentioned at the subordinate courts on 16th June 2008 and the DPP had requested for the case to be transferred to the High Court. The case has now been fixed for further mention on 14th July 2008 at Court 26 presumably pending the fixing of a date for Pre-Trial Conference at the High Court.
RWB seems to have jumped the gun in their enthusiasm to paint a less than flattering picture. This kind of reporting does not, in any way, assist in promoting the truth.
Monday, June 16, 2008
Gopalan Nair’s original charge has been replaced (according to AFP).
Judging from an AFP report on the net which is about 4 hours old, Gopalan Nair’s original charge of insulting a public officer via sending her an email has not been substituted. The new charge is apparently one of insulting via the blog contents and it is now under the Penal Code as opposed to the Miscellaneous Offences (Public Order and Nuisance) Act.
In my earlier blog entry, ‘From Folly to Freedom’ dated 5th June, I had said the following:
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.
My reason for stating the above was that from multiple reports both on the net as well as in the papers, I got the impression that the charge probably stated the email sent by Gopalan Nair contained the words ‘prostituting herself’. I thought it odd that he would have sent an email to her and used the word ‘herself’ instead of ‘yourself’. I couldn’t help but wonder if the person drafting the charge had made a mistake of quoting from the blog instead of quoting from any alleged email. Of course, given Gopalan Nair’s assertion that he did not send the alleged email to the judge, there arose the possibility that there was in fact no such email to quote from and hence the blog became the source of the wording in the charge. The inevitable slip might have occurred.
Of course, there is the legitimate possibility that the charge did not attempt to quote verbatim from the alleged email and that it had paraphrased the email to write in the 3rd person as ‘herself’ instead of the alleged email content which may have been ‘yourself’. Who knows?
Anyway, the story emanating from AFP is that the original charge has now been replaced. So, it is safe to assume that he is now facing one charge in relation to his blog comments about Justice Belinda Ang and another charge in relation to an email sent to Justice Lai Siu Chiu 2 years ago.
On another note: Gopalan Nair neither admits nor denies sending an email to Justice Lai Siu Chiu. But, he has been quite unequivocal in his denial of sending an email to Justice Belinda Ang. The following is from his blog entry:
As far as the Email to Judge Lai Sui Chu, this was more than 2 years ago. I cannot remember if I sent that Email. Even if I did, I was not in Singapore at the time. I was physically in Fremont, Northern California. If I sent the Email, it was from Fremont Northern California. From 2006 March to present I had traveled to Singapore on at least one occasion on November 2006 without incident.
So, he is saying that he may or may not have sent the email. Memory is not perfect. I guess that is a possible explanation. But, of course, the inevitable gut feeling that one gets here is that since he did not deny the email outright, he is either conscious of the fact that he has sent such an email or of the fact that he had composed such an email that he was contemplating the possibility of sending and did not in the end send it out (or he can’t remember if he in fact sent it). Who knows?
In my earlier blog entry, ‘From Folly to Freedom’ dated 5th June, I had said the following:
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.
My reason for stating the above was that from multiple reports both on the net as well as in the papers, I got the impression that the charge probably stated the email sent by Gopalan Nair contained the words ‘prostituting herself’. I thought it odd that he would have sent an email to her and used the word ‘herself’ instead of ‘yourself’. I couldn’t help but wonder if the person drafting the charge had made a mistake of quoting from the blog instead of quoting from any alleged email. Of course, given Gopalan Nair’s assertion that he did not send the alleged email to the judge, there arose the possibility that there was in fact no such email to quote from and hence the blog became the source of the wording in the charge. The inevitable slip might have occurred.
Of course, there is the legitimate possibility that the charge did not attempt to quote verbatim from the alleged email and that it had paraphrased the email to write in the 3rd person as ‘herself’ instead of the alleged email content which may have been ‘yourself’. Who knows?
Anyway, the story emanating from AFP is that the original charge has now been replaced. So, it is safe to assume that he is now facing one charge in relation to his blog comments about Justice Belinda Ang and another charge in relation to an email sent to Justice Lai Siu Chiu 2 years ago.
On another note: Gopalan Nair neither admits nor denies sending an email to Justice Lai Siu Chiu. But, he has been quite unequivocal in his denial of sending an email to Justice Belinda Ang. The following is from his blog entry:
As far as the Email to Judge Lai Sui Chu, this was more than 2 years ago. I cannot remember if I sent that Email. Even if I did, I was not in Singapore at the time. I was physically in Fremont, Northern California. If I sent the Email, it was from Fremont Northern California. From 2006 March to present I had traveled to Singapore on at least one occasion on November 2006 without incident.
So, he is saying that he may or may not have sent the email. Memory is not perfect. I guess that is a possible explanation. But, of course, the inevitable gut feeling that one gets here is that since he did not deny the email outright, he is either conscious of the fact that he has sent such an email or of the fact that he had composed such an email that he was contemplating the possibility of sending and did not in the end send it out (or he can’t remember if he in fact sent it). Who knows?
Wednesday, June 11, 2008
What can I say? (without being charged?)
The Gopalan Nair saga (whatever the wisdom or lack of it that got it started) highlights another more important issue: The freedom to express one's views. How important is this right? What is the extent to which this right can be stretched?
Rights are the antidotes to power.
Often it has been stated that the freedom of speech cannot be unlimited; that freedom must be accompanied by responsibility. Whilst a person has the freedom to speak, he doesn’t have the freedom to hurt or harm. Instigating racial and religious hatred and creating social tensions in the name of free speech is a misguided use of the freedom. So far so good. I’m willing to concede.
What about the use of free speech against public officials?
Constitutional Rights are not rights operating in a vacuum. They are relational. The citizenry’s relationship with the state is spelled out in the form of rights. These are not weapons that we use against our fellow men nor are these empty propositions that we can claim as the badge of a free people. These rights are protections. Protections against potential abuse. Governance entails giving power to a few to administer the many. Societies are complex and governance of all by all is impracticable. So, for want of a better alternative, we confer authority upon those who govern to govern for out benefit. In recognition of the fragile and fallible nature of the human will, we have created systems. The objective and abstract system is intended to ensure that even if human fallibility were to creep into governance, the system would extract and terminate that virus. The Constitution is the anti-virus software running in the background and assisting us in isolating human failings as and when they crop up.
The Freedom of Speech is one such tool. This freedom’s purpose is not to enable an individual citizen to cause harm to others. Its purpose is, amongst others, to enable a citizen to call out and name officials who have allowed their personal frailties to compromise the responsibilities they bear as officials. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not an invitation for chaos to visit the nation. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role does not result in a riot. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not even a case of tiptoeing onto the slippery slope leading towards the ‘Hock Lee Bus Riots’ (the caricature of chaos within our nation’s collective meta-narrative).
The very purpose of the constitutional right to free speech is to question the actions of those who govern; if necessary, to question the integrity of individual officials. There is no higher purpose that this right serves than to enable the citizen to speak truth to power. Of course, just as the citizen has the right to allege, the official has the right to defend himself against such allegation. The defence against such allegations ought to be conducted in the public sphere through clarifications by the official of the position he adopts.
Criminalization of criticism of public officials runs counter to the fundamental purpose behind the freedom of speech. A threat of force or a threat to the safety of a public official is not a legitimate exercise of one’s freedom of speech. But, an insult is nothing more than a forceful expression of one’s disgust with an official or a system. The Freedom of speech bestowed upon the citizenry is a mechanism for dissent and criticism to be voiced and accommodated within a system of consensual governance. To criminalise the criticism is to nullify the freedom.
I am not trumpeting this freedom as a religion here. (Yes, that is a reference to the Attorney General’s recent comment.) I am merely asserting that it is a practical tool in the hands of the citizenry to make sure that the human failings of those who govern do not compromise the collective good. Often there is a tendency to argue that the freedom of speech is an individual right and that sometimes it has to be compromised in the interest of the greater good of society. But, when the freedom is exercised as a critique of those who govern, it is in fact acting as a tool furthering the collective interest. It is the suppression of criticism that tends to serve individual interests and as a consequence fails to advance the collective good.
Salus populi est suprema lex. Public welfare is the highest law.
Rights are the antidotes to power.
Often it has been stated that the freedom of speech cannot be unlimited; that freedom must be accompanied by responsibility. Whilst a person has the freedom to speak, he doesn’t have the freedom to hurt or harm. Instigating racial and religious hatred and creating social tensions in the name of free speech is a misguided use of the freedom. So far so good. I’m willing to concede.
What about the use of free speech against public officials?
Constitutional Rights are not rights operating in a vacuum. They are relational. The citizenry’s relationship with the state is spelled out in the form of rights. These are not weapons that we use against our fellow men nor are these empty propositions that we can claim as the badge of a free people. These rights are protections. Protections against potential abuse. Governance entails giving power to a few to administer the many. Societies are complex and governance of all by all is impracticable. So, for want of a better alternative, we confer authority upon those who govern to govern for out benefit. In recognition of the fragile and fallible nature of the human will, we have created systems. The objective and abstract system is intended to ensure that even if human fallibility were to creep into governance, the system would extract and terminate that virus. The Constitution is the anti-virus software running in the background and assisting us in isolating human failings as and when they crop up.
The Freedom of Speech is one such tool. This freedom’s purpose is not to enable an individual citizen to cause harm to others. Its purpose is, amongst others, to enable a citizen to call out and name officials who have allowed their personal frailties to compromise the responsibilities they bear as officials. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not an invitation for chaos to visit the nation. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role does not result in a riot. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not even a case of tiptoeing onto the slippery slope leading towards the ‘Hock Lee Bus Riots’ (the caricature of chaos within our nation’s collective meta-narrative).
The very purpose of the constitutional right to free speech is to question the actions of those who govern; if necessary, to question the integrity of individual officials. There is no higher purpose that this right serves than to enable the citizen to speak truth to power. Of course, just as the citizen has the right to allege, the official has the right to defend himself against such allegation. The defence against such allegations ought to be conducted in the public sphere through clarifications by the official of the position he adopts.
Criminalization of criticism of public officials runs counter to the fundamental purpose behind the freedom of speech. A threat of force or a threat to the safety of a public official is not a legitimate exercise of one’s freedom of speech. But, an insult is nothing more than a forceful expression of one’s disgust with an official or a system. The Freedom of speech bestowed upon the citizenry is a mechanism for dissent and criticism to be voiced and accommodated within a system of consensual governance. To criminalise the criticism is to nullify the freedom.
I am not trumpeting this freedom as a religion here. (Yes, that is a reference to the Attorney General’s recent comment.) I am merely asserting that it is a practical tool in the hands of the citizenry to make sure that the human failings of those who govern do not compromise the collective good. Often there is a tendency to argue that the freedom of speech is an individual right and that sometimes it has to be compromised in the interest of the greater good of society. But, when the freedom is exercised as a critique of those who govern, it is in fact acting as a tool furthering the collective interest. It is the suppression of criticism that tends to serve individual interests and as a consequence fails to advance the collective good.
Salus populi est suprema lex. Public welfare is the highest law.
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.
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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