British death penalty opponent and author Alan Shadrake faces a heavy legal burden in seeking acquittal over charges of contempt of court in Singapore. Jousting during Shadrake's July 30 court hearing on various procedural matters revealed some of the flash points in the case .

The 75-year-old British author faces imprisonment or fines or both for allegedly criticizing the impartiality of the Singaporean judiciary in several pages of his recently released book about the island state's death penalty, Once A Jolly Hangman: Singapore Justice in the Dock. In addition to the pending contempt citation, Shadrake's attorney, human rights litigator M. Ravi, said his client is under investigation for the separate but as-yet-uncharged crime of criminal defamation.

The case has been postponed to September or October by Justice Quentin Loh Sze On to give Shadrake and his lawyers time to research and file an affidavit in his defense. The legal burdens on defendants in Singapore are set out below:

Limits on Defense Evidence

On the seemingly prosaic issue of the filing of a defense affidavit, requests for clarification by Ravi revealed that Justice Loh would only allow an affidavit from Shadrake himself and that the filing of affidavits from other witnesses require the court's permission. Ravi objected, arguing that "in civil and criminal cases, witnesses do not require leave of court." Ravi acknowledged that he was uncertain as to the identity of the defense witnesses but stated that he was contacting personnel at the US State Department, the Embassy of Germany and the International Bar Association (which issued a sharp critique of the Singaporean judiciary in 2008).

"As you do not know who will come forward and what they will say, my order stands," Justice Loh ruled. "There is a lovely English saying: We'll cross that bridge when we come to it." Consequently, the issue of what evidence Shadrake is allowed to present in his defense may dominate trial and appellate proceedings.

Timing

The speed of Singaporean court actions can appear head-spinningly fast. Shadrake was arrested on July 17 and was initially expected to mount his defense 13 days later. Justice Loh ruled that Ravi's request for a month's extension to file defense affidavits was "too long" and that Ravi had two weeks to prepare Shadrake's affidavit.

Relevance of Alleged Police Interrogation

Shadrake alleges that he was harshly interrogated by Singaporean law enforcement officers, with questioning on July 20th lasting 11 hours. When Ravi raised the issue, Justice Loh held up the palm of his hand and cut off the argument. This appeared to be a ruling that the officers' alleged conduct was not relevant.

Scandalizing the Judiciary

The offense of "scandalizing the judiciary" occurs when a person engages in conduct, usually by making a written or oral statement, which attacks the judiciary in a manner which might undermine the authority of the courts or the confidence of the public in the judiciary. The charge is a species of contempt of court. As such, it exists at the hazy intersection of criminal law (since the punishment is jail or a fine), civil law (since the charge is not technically a criminal prosecution and, in this case, is being pursued by the Civil Division of the Attorney-General's Chambers) and procedural law (since a court has the right to control its proceedings).

In some nations, the charge barely exists. "In England such proceedings are rare and none has been successfully brought for more than 60 years," Lord Johan Steyn of the Judicial Committee of the Privy Council stated in a 1999 ruling. In Singapore, however, the charge is alive and well. As recently as 2008, the High Court found the Wall Street Journal Asia to have scandalized the judiciary through a series of articles that questioned the judiciary's independence.

Determining Guilt

The viability of a defense is often determined by the legal test used to impose guilt, and Shadrake faces a challenge because Singapore's test for scandalization is easier for the government to prove than is the situation in other common law nations. In England, New Zealand, Hong Kong and South Africa, a person can be found guilty of the offense only if his conduct creates a "real risk" of prejudicing the administration of justice. In the United States, the offending statements must create a "clear and present danger" to the judiciary.

In Singapore, by contrast, the offense has occurred if a person's conduct has an "inherent tendency" to create prejudice. In the Wall Street Journal Asia case, Justice Tay Yong Kwang ruled that the inherent tendency test is satisfied by a statement which "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."

If it's any comfort to Shadrake, the facts have to be proven by the criminal standard of evidence beyond a reasonable doubt.

Truth Is Not A Defense

Because a contempt of court charge based on a scandalous statement arguably serves a different purpose than its close relative the defamation claim, the Singaporean courts have held that various libel and slander defenses do not apply in the context of scandalization. Of these, the defense of "justification," akin to a defense of truth, has expressly been ruled out.

Opinion Is A Little Better

For the same reason, the traditional defamation defense of "fair comment," or opinion, is likewise not recognized. But Singapore has held that the defense of "fair criticism" can be raised. To prevail, Shadrake would have to prove that his comments were fair and temperate, made in good faith, based on accurate facts and not directed toward the personal character of a judge or the impartiality of the court.

So the "fair criticism" defense provides Shadrake with a way out. But, given the principles of Singaporean law, he faces a difficult autumn regardless of what exactly he said in the controversial passages of his book. Singaporeans won't be able to read those passages in their local paper and make up their own minds as to whether Shadrake's criticisms were fair. In his opening remarks, government attorney David Chong Gek Sian warned reporters that repetition of contempt is itself a contempt and any reporters printing any of Shadrake's book could find themselves in court as well.

Paul Karl Lukacs, a practicing business and media attorney, is a contributor to Asia Sentinel