Judging, with hands tied

Teo Lay Hwee
Singapore Institute of International Affairs
February 2004

Mandatory sentencing does not allow judges to exercise their discretion

Over the last year or so, Singapore has been abuzz with remaking society, restructuring the economy, paradigm shifts, thinking out of the box and all that we need to do to make Singapore more competitive, more cosmopolitan, while also making it more compassionate and caring.

Stones have been upturned, sacred cows have been slaughtered; yet there is one area that has been left out in the discussion of our judicial system. How can our judiciary continue to innovate to keep up with the changes in society?

As society opens up and becomes more complex and people’s values diversify, the types of conflicts and controversies will increase. Here, the role and function of the judiciary are expected to increase greatly to help it maintain fairness and justice.

A recent report by Amnesty International on the death penalty and the strong and swift rebuttal by the Singapore Government has put the international spotlight on our criminal justice system.

In the midst of the various changes in society and the pressure to review and update the systems and processes of justice in response to national as well as international forces, the following core values should continue to guide the judiciary:

– Maintaining the efficiency and effectiveness of our justice system;

– Upholding the rule of law and the quality of justice;

– Preserving and protecting the independence of the judiciary; and

– Inspiring public trust and confidence in the courts.

The efficiency of Singapore’s judiciary is known to be “first-rate and world class”.

Delays in the administration of justice are an obdurate problem in most common-law legal systems. But, judicial reforms in the 1990s introduced by Chief Justice Yong Pung How – emphasising primarily on case management, alternate dispute resolution and the application of technology – have helped improve our judiciary’s efficiency.

The backlog of cases has been cleared and the waiting time for cases has been shortened. Further, Singapore can take pride in having one of the most efficient and effective judiciaries in the world.

However, efficiency and effectiveness, while important considerations, should not be the only principles guiding our judicial system. In the administration and delivery of justice, its quality and principles such as propriety, fairness and proportionate punishment are as – if not more – important.

A few cases that I read of in the papers in recent months, have raised some unease about the proportionality of punishment to the crime. An old man had his sentence increased from nine to 15 years after appealing against the original nine-year sentence for stealing three urns worth $230, while a young grandmother was jailed for nine years after being caught stealing a wallet with a pole.

One of the reasons for their tough sentences was probably the fact that they both are repeat offenders. Singapore prides itself on taking a tough approach towards criminal justice, and we attribute the low crime rate to the tough laws we have.

Severe punishment of the convicted, including corporal and capital punishment; and the term “preventive detention” are not uncommon. The belief that draconian measures, stiff fines, long sentences and corporal and capital punishment can deter crimes, is founded on common-sense belief.

In contrast, scientific research in other countries has questioned whether stern punishment really has that intended impact.

Even if common sense says that draconian measures can deter crime, isn’t this crime prevention by fear?

The recent discussion about the fear factor, and how it impedes the active citizenry; and the Government’s promise to build a more caring, compassionate and cohesive society based on a deep sense of community, both challenge us to think of how crime prevention can be achieved more by citizens feeling they belong to the community rather than by the fear of punishment.

The independence of our judiciary is accepted by most Singaporeans. But how the judiciary exercises that independence to administer justice remains another question. So too are mandatory punishments that apply to quite a number of crimes, leaving no choice for judges but to order a minimum in terms of caning, or to order the death penalty.

Here, we seem to have a rather schizophrenic approach. On the one hand, we have done away with the jury system and put the onus of responsibility for judging the case solely on the judge that presides over the case. At the same time, we do not totally trust the judges to exercise their discretion to decide on the penalty by insisting on mandatory sentencing, which ties their hands.

The law on mandatory sentencing and the death penalty also brings us back to the question on some of our existing laws. Do some of these laws need to be reviewed and refined as society progresses? As recent discussions on the law criminalising oral sex have shown, some of the laws inherited from the British may not be congruent with our societal changes.

Public confidence and trust in our judicial system is probably tied closely to the way we have faith and trust in our Government as a whole. Our attitudes towards the courts are linked to our attitudes towards the Government generally.

But at the same time, I would not be surprised if a large segment of the public does not understand or appreciate Ein a meaningful way Ethe protections the judicial system provides, the role it fulfills and the contributions it makes to the common good.

Therefore there is a real need to educate our people more about the judicial system; how it works; and perhaps also a more transparent process to explain to the people how judges are chosen and promoted Eand how they can be held accountable.

Judges are standard-setters in society as they interpret law and develop the law upon which society is structured and human relationships are conducted. Their actions and conduct must, therefore, command the respect and confidence of the public.

%d bloggers like this: