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Why judgement on Shadrake is significant

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.