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But Shadrake found guilty of contempt
The real risk test should be applied, said Justice Quentin Loh at the judgement of the Alan Shadrake trial this morning. His decision overturned over four decades of precedence where the inherent tendency test had been applied for contempt cases.
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 the prosecution to show that there must be more than a remote possibility that the statements complained of would undermine the administration of justice; 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.
Applying the real risk test to his decision, Justice Loh identified 11 out of 14 of the contentious statements as being in contempt of court. Out of these 11 statements, Judge Loh said that there was “more than a remote possibility that a significant number of people who have read Shadrake’s book would believe his claims.”
These 11 statements, he said, did not fulfill the three criteria of fair criticism, namely that they had to be made in good faith, they had to have a rational bias, and that the criticisms can be outspoken but respectful.
Judge Loh found three of the statements the Attorney General’s Chambers put forward to be not in contempt. This was despite the AG’s claim in court that the whole book was contemptuous and that the 14 statements complained of were the worst.
Justice Loh further reiterated that the case was not about individual opposition to the death penalty, and anyone who held such views would be fully protected under the Constitution.
“The death penalty is the ultimate punishment under the 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 citizens adopted a bland and disinterested attitude to the ultimate punishment,’ he said.
However he drew the line between criticism of the death penalty (that it has not served any deterrent purpose), or saying that a judge erred in his judgement, and saying that the judiciary based its decisions on political and economic considerations.
“It is no different from saying I based my decisions on a brown envelope stuffed with dollar notes, “ he added.
Speaking to The Online Citizen after the verdict, Shadrake said that the judge’s verdict is “a very fair ruling.”
Lawyer for Shadrake Mr M Ravi said, “This judgment overturns more than four decades of bad law, and is a good sign that the judiciary recognizes the more mature society we live in. Still, we are disappointed that even applying this more stringent standard, Alan’s statements have been found in contempt. We will be considering whether or not to appeal.”
Sentencing will be decided next Tuesday.
You can read the full judgement here.