“Don’t poke a stick up a tiger’s bum unless you are outside its cage”
I quote above from a comment made by stoneshepherd in the comments section of an excellent article in The Guardian:
Death and discrimination in Singapore
The writer Alan Shadrake has been jailed for exposing the lottery of Singapore’s execution rates. I know Singapore well. I was there as a child and in later life when I visited to talk to members of the legal profession, government and judiciary. I have taught a great many Singaporean lawyers.
I am not at all surprised that the Singaporean judiciary has jailed 75 year old Alan Shadrake for contempt. He knew that he faced the possibility of imprisonment for the offence.
The Guardian reports:
Shadrake has been jailed for six week and fined for “scandalising the judiciary” for remarks in his book Once a Jolly Hangman: Singapore Justice in the Dock. The book includes an interview with Darshan Singh, the former chief executioner at Singapore’s Changi prison, who was said to have executed 1,000 prisoners over half a century.
However, the central theme of the book is Shadrake’s claim that Singapore’s legal system does not accord equal treatment to those suspected of capital offences. The death penalty is mandatory for a number of offences including murder and possession of drugs over a certain amount. In Singapore, as a result, he asserts that the question of who lives and who dies is an arbitrary lottery.
Singapore employs the death penalty for a range of offences. It also uses corporal punishment. Singapore, it has to be said, is an economic powerhouse but it also has a fairly repressive penal system and, it would seem, a judiciary incapable of tolerating criticism. To be a judge in one’s own cause raises interesting issues of legal principle. It is inconceivable that a court in our country would (in these days) convict a journalist or lawyer, or anyone, for reasoned, rational, objective criticism of a judgment. The judiciary here are subjected to reasoned and unreasoned criticism on a daily basis. It goes with the territory. It is part of the rough and tumble of democracy and freedom of speech. The convention is that the judges are not swayed by public opinion. Contempt of Court is a quite different issue and need not be addressed here.
It won’t affect tourism. It won’t affect business dealings with Singapore – and it probably won’t ‘trend’ on twitter because few will care about what Singapore judges do – but those who are interested in human rights, who are interested in the abolition of the death penalty worldwide, can express surprise that a sophisticated City state in the 21st Century is so unsure of itself judicially – or perhaps repression is just a default setting – that it can’t hack a reasoned and analytical criticism of judicial power. The Guardian writers said it is scandalous. I agree but would add…that it is tragic.
It is unlikely that I shall ever return to Singapore. I probably won’t be able to after writing this piece. I do not flatter myself that the Singaporean judges will read this. They won’t. But I am fairly certain that Singapore’s highly sophisticated communication systems will pick it up and flag it up on a database. Many Singaporeans are quite happy to live with a regime of strict laws. That is their right and prerogative. It doesn’t stop writers and commentators, however, from commenting adversely on Singapore’s continuing use of the death penalty or the jailing of a 75 year old man who wished to shine a light on their judicial system. Shadrake had the courage to poke a stick up a tiger’s bum… inside the cage…and now…he is in the cage…for six weeks.
Now.. I can’t hang about… there are more windmills to tilt at!
Charon
I think you picked a misleading metaphor. Singapore is the Lion City.
Although this is from the wrong continent, the animal is correct, and the provocation similar:
http://twitpic.com/37n06r
I think there’s something many of us need to take on board with respect to the movement of economic and, inevitably, political power from West to East. We have been very used to liberal western capitalism sweeping all before it, and that capitalism couldn’t be successful without liberal political values. Indeed Francis Fukuyama wrote “The End of History”, a book, the the very title of which, is a hostage to fortune, let alone the sentiment.
We may well have to recognise, that with the growth of China, that there are societies that will favour stability and order over free expression and can combine this with a successful, paternalistic capitalism. There are still some that thing that western liberal values will still follow, but I’m not sure that is more than wishful thinking.
Of course there are yet other economic models. There’s the Russian gangster capitalism for one, and India isn’t on the same path as China. However, we might yet see the Singapore paradigm become very influential.
Michael… Yes… I have even been to that very statue… curious… plenty of Tigers in the region… but no Lions 🙂
Steve – judging by the comments I see on Daily Mail / Sun – there are many in this country who would be quite happy to trade a degree of repression / death penalty et al for the prosperity that Singaporeans enjoy. It is a very rich country…
It is perfectly alright for the writer to disagree with Singapore on capital punishment. It is totally different if the author chose to use selective cases to tweak and insinuate the fairness of the judiary.
Go google for the court’s judgement on him.
Mostly I support the government of PAP. Oddly like banning chewing gum, stupid when it was first announced,it was something i was very happy. I was in my teens then. I hate gum on the streets.
So many restrictive elements in the law, actually increased the freedom to enjoy what we have here. For example, relative safety is a freedom that we enjoy. I enjoy my travels, but coming back to Singapore is like a relief.
Thus you can say i am a big supporter of the death penalty.
But I would like to hear criticisms that goes beyond the common rhetoric.
This author was once part of our judiciary system, I will like to see your critical views, like what lenox said, google the judgement, argue from there.
Your commentary would be much strengthened and appreciated.
Sincerely,
Lenox and Fairplay
You both rather miss the point – I am critical of the fact that the judiciary felt it was even necessary to respond to the criticism.
I rather suspect that in Singapore the judges would not approve of Mr Justice Cocklecarrot in Private Eye, nor, indeed, Muttley Dastardly LLP.
On that premise I don’t actually need to read the judgment as I take the view the case should never have been brought in the first place – but I shall.
I can only speak from what the UK point of view, but I for one would not like to see the legal system and judiciary with powers such as these. In this type of case, which involves criticism of the operation of the judicial system itself, those who are sitting in judgement are hardly disinterested parties. Indeed they may well see nothing wrong with the operation of their system, but these type of self-reinforcing systems are essentially authoritarian.
It reminds me of the ten commandments where fully 30% of them are essentially rules about respecting the authority of the rule maker.
The Singaporean political system is rather close to the operation of a paternalistic, single party state than what many of us in the west would think of as a confrontational political system. The judicial system is something of a reflection of that. Just because it has certain mechanisms which resemble the UK system does not mean that it operates within the same context.
I’ve never worked in Singapore, but I have colleagues who did, and the relationship between state and citizen is very different. It’s very successful from a crime and economic point of view of course, but at a price that not all of us would be happy with.
A number of remarks in your post and response to comments are interesting, and worth further examination:
1) “To be a judge in one’s own cause raises interesting issues of legal principle”
This seems to suggest that it is impossible, or improper, for the judiciary to judge such cases. But we are comfortable with the idea of judges deciding whether other judges are biased, or appear to have been biased, or, on a question of jurisdiction, the idea of judges deciding whether or not they themselves have certain powers, or, on a question of leave to appeal, whether their own decisions should be appealed against. What is so special about a judge deciding whether or not an offence involving the judiciary has been committed?
2) “It is inconceivable that a court in our country would (in these days) convict a journalist or lawyer, or anyone, for reasoned, rational, objective criticism of a judgment”
If you read what Shadrake wrote, it was hardly “reasoned, rational, objective criticism”. This point is linked to point number 6 below.
3) “Contempt of Court is a quite different issue and need not be addressed here”
Why not? Shadrake was convicted of exactly that: contempt of court by scandalising the judiciary. You might of course want to say that is an outmoded legal concept that ought to be jettisoned, but you cannot say contempt of court is somehow irrelevant to the issue of “democracy and free speech”. If you are willing to accept that other forms of contempt of court are an acceptable inroad into free speech, then you should at least explain why this particular form of contempt (by scandalising the judiciary) is not. This point is also linked to point number 6 below.
4) “…that it can’t hack a reasoned and analytical criticism of judicial power”
Again, that is a rather gross distortion of Shadrake’s work. See point number 6 below.
5) “It doesn’t stop writers and commentators, however, from commenting adversely on Singapore’s continuing use of the death penalty…”
There is nothing at all wrong with this. Shadrake was perfectly entitled to do so without casting vile aspersions and insinuations at the judiciary, but unfortunately, he went much further than he was entitled to.
6) “On that premise I don’t actually need to read the judgment as I take the view the case should never have been brought in the first place – but I shall.”
While I am heartened that you have decided to read the judgment, it is rather odd that you initially felt that you did not actually need to read the judgment and yet were entitled to criticise it. One would have thought that that would have been the very first thing to do.
Further, the fact that you have not read the judgment shows up very clearly in your post, as it suggests that Shadrake has been unjustly punished for a fine, well-researched, thoroughly analytical and genuinely incisive commentary, when nothing could be further from the truth. In addition, had you read the judgment, you will have realised that the issue of contempt of court is front and centre, and not a “quite different issue” as you suggest.
Finally, there seems to be a slight inconsistency between the statement that “the case should never have been brought in the first place” and the statement that “I am critical of the fact that the judiciary felt it was even necessary to respond to the criticism”. The former remark is a criticism of the prosecuting authority, while the latter remark is a criticism of the judiciary. Of course you might be criticising both, but it is somewhat unrealistic to expect the judiciary to throw out a case which has been validly (even if unwisely or unfortunately) brought before it, and over which it has valid jurisdiction (a jurisdiction, in fact, inherited from English law).
Colin – we shall have to agree to differ.
I repeat – I am surprised that your judiciary can still be scandalised. This is ‘judicial contempt of court’ – an offence designed to serve the interests of the judiciary and, thereby, the interests of the state to stifle criticism. There are many in Singapore and even more outside Singapore who do not share the PAP vision of Singapore being a free country. You may find the links in my next comment – from sources in Singapore – not to your taste. As you do not identify yourself – I have no idea whether you are an independent with a free mind or a sock puppet.
The good news is – that the Shadrake case will shine a fairly bright international light into the Singaporean government. Your country has been described by some as ‘Disneyland with the death penalty’ and is not well regarded by Amnesty and by those who oppose the death penalty. The irony of the Quentin Loh judgment, designed to stop people scandalising the judiciary, will give additional publicity to those who seek to persuade world governments to abandon the death penalty.
You may find this interesting. You may not have seen it – I don’t know how free access to the internet is in Singapore these days.
http://www.pressgazette.co.uk/story.asp?storycode=46235
The case highlights the insecurity of a judiciary. However – they are your laws and your judges are entitled to apply them to suit their need. This, of course, does not make them ‘right’ objectively. Freedom of speech?
You may also find this article of interest
http://theonlinecitizen.com/2010/11/why-judgement-on-shadrake-is-significant/
Thanks for commenting. I’m unlikely to return to this post – simply because there are so many issues in our own politics and law to comment on. We are not exactly free from problems and issues over here.
“Justice Loh concluded his judgment by emphasising that the case against Mr Shadrake was not about the debate over the death penalty. The Judiciary will protect every citizen’s right to engage in such debate, even if it is critical of the courts. However, when the debate goes beyond the limits of fair criticism, as was the case with Mr. Shadrake, the law must step in. The Judge affirmed that the law of contempt was necessary to “bring to task those who make dishonest, unwarranted or baseless attacks” against the Judiciary “to ensure that the public’s confidence in the administration of justice does not falter”.
Was the public’s confidence in the administration of justice rocked to the core by the Shadrake book? I find that rather difficult to believe – given that Singaporeans are highly educated . However…. public confidence need not be shaken to the core as Mr Justice Loh makes clear…. below.
For those who have not seen it… here is a briefing on the judgment from the AG’s office….
CONTEMPT OF COURT PROCEEDINGS AGAINST MR ALAN SHADRAKE – SUMMARY OF JUDGMENT DELIVERED ON 3 NOVEMBER 2010
1. The Honourable Justice Quentin Loh delivered his judgment this morning in the contempt proceedings commenced by the Attorney-General against Mr Alan Shadrake.
2. The proceedings, which had been brought against Mr Shadrake in respect of 14 statements made in his book “Once a Jolly Hangman: Singapore justice in the dock” (“the Book”), were heard in open court by Justice Loh on 18, 19 and 20 October 2010.
Summary
Justice Loh found Mr Shadrake guilty of the offence of contempt by scandalising the court in respect of 11 of the 14 statements and convicted him accordingly.
4. The hearing has been adjourned to 9 Nov 2010 for counsel to address the Court on sentencing and costs.
Appropriate legal test for contempt by scandalising the court
5. On the appropriate legal test to determine whether the impugned statements scandalised the Court, Justice Loh declined to adopt the “inherent tendency” test (whether the acts or statements had the inherent tendency to interfere with the administration of justice) which had been applied by the High Court in previous cases.
6. Reasoning from first principles and policy considerations, Justice Loh noted that the “universally accepted rationale for this area of the law of contempt is the preservation of public confidence in the administration of justice”. It therefore followed that the doctrine should only capture conduct which had a real risk, as opposed to a remote possibility, of affecting public confidence in the administration of justice (“the real risk test”).
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7. Justice Loh made it clear that the real risk test was based on the potential, and not merely the actual, effect of the impugned statements, and that it did not require a serious or grave risk of affecting public confidence in the administration of justice before contempt could be established. Rather, the real risk test excluded only de minimis, remote and fanciful risks. Any greater risk, even a “small likelihood”, would still fall within the scope of contempt under the real risk test. In other words, the risk “must have substance, but need not be substantial”.
8. Applied in this manner, Justice Loh expressed a doubt as to whether there was in fact any significant difference between the “real risk” test and the “inherent tendency” test previously applied by the High Court.
9. Justice Loh further said that whether there is a real risk of affecting public confidence in the administration of justice is an objective question of fact to be determined in light of all the circumstances of the case, including the author and nature of the publication, the scope of its dissemination, and bearing in mind local conditions.
Defences in defamation and fair criticism
10. In considering the available defences, Justice Loh reaffirmed that the defence of justification in defamation law did not apply in contempt proceedings.
11. It was undisputed that fair criticism would not amount to contempt of court. To fall within the scope of fair criticism, Justice Loh held that the following criteria had to be satisfied:
(a) There should be some objective, rational basis for the criticism and the basis should be stated together with the criticism so that readers can evaluate its merits. The more serious the criticism made, the more cogent must be the arguments and facts cited in support of it.
(b) The criticism should be made in good faith. This means that the person must genuinely believe in the truth of the criticism made. A person who acts in reckless disregard of the truth or falsehood of his criticism cannot avail himself of the defence of fair criticism.
(c) The criticism should be respectful. The criticism can be outspoken and need not be couched in refined terms but abusive, intemperate or outrageous language should not be used.
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Application of the law to the 14 Statements
12. Applying the legal principles set out above to the 14 impugned statements in the Book, Justice Loh found Mr Shadrake guilty of contempt by scandalising the court in respect of 11 of the 14 statements.
13. Three of the statements were not found to be in contempt. In respect of 2 of the statements, Justice Loh gave Mr. Shadrake the benefit of doubt as to whether they referred to the Judiciary. As for the 3rd statement, Justice Loh found that, taken in its context, it did not allege any wrongdoing or impropriety on the part of the Courts.
14. In respect of the 11 statements that were found to be in contempt, Justice Loh held that the statements posed a real risk of undermining public confidence in the administration of justice.
15. Justice Loh scrutinised the 11 statements in the context of Mr. Shadrake’s claim that he was an investigative journalist and that his book was a product of months of investigative journalism. The Judge noted however that Mr. Shadrake did not produce any evidence of his investigations during the hearing. Instead, the Judge found that Mr. Shadrake had distorted his sources for his own purposes and made grave and sweeping allegations of misconduct against the Singapore Judiciary. The Judge said that “Mr. Shadrake’s technique is to make or insinuate his claims against a dissembling and selective background of truths and half-truths, and sometimes outright falsehoods”. As the 11 statements were made by Mr. Shadrake “without any rational basis, or with reckless disregard as to their truth or falsehood”, they were not protected by the defence of fair criticism.
Conclusion
16. Justice Loh concluded his judgment by emphasising that the case against Mr Shadrake was not about the debate over the death penalty. The Judiciary will protect every citizen’s right to engage in such debate, even if it is critical of the courts. However, when the debate goes beyond the limits of fair criticism, as was the case with Mr. Shadrake, the law must step in. The Judge affirmed that the law of contempt was necessary to “bring to task those who make dishonest, unwarranted or baseless attacks” against the Judiciary “to ensure that the public’s confidence in the administration of justice does not falter”.
You may find these links useful…
http://singaporedaily.net/2010/11/17/sg-daily-17-nov-2010/
We are against capital punishment
– TOC: Shadrake trial: Judge dimissed apology, sentenced Shadrake to jail and fine
– Singaporeans for Democracy: Singapore Court’s sentencing of Mr. Alan Shadrake is excessive
– Icarus Flew Too High: The Trial of Shadrake: Uncomfortable Truths for the PAP
– Singapore Law Watch: ACLS again urges Govt to abolish mandatory death sentence
– No Right Turn: No freedom of speech in Singapore
– Rachel Zeng: Singapore must release British Journalist sentenced for the publication of death penalty book – A statement by ADPAN
– Singabloodypore: Disgraceful jail sentence for British author in Singapore
– John Reardon: The ultimate surveillance state
– Guardian: Press freedom: The Singapore grip
– Guardian: Death and discrimination in Singapore
– RSF: Six weeks in jail for British writer who criticised use of death penalty
– BBC: UK author Shadrake jailed for six weeks in Singapore
Why didn’t the system try Alan’s details? Clearly enough, the scandal would be public knowledge going in to details.
They are afraid, and rightfully so. In that is also the freedom of speeach and freedom of press. It was not in the way of Singapore dictators to use the laws on Alan or others who had their fais share of critisisme. These laws have been mearly in place to keep these dictaotrs in place. Calling this a justice? Mr Loh? A puppet ! And now promoted by himself to a fool. Upholding mral standards? People who believe that? Wake up and rise ! It’s time !