The Legal Janitor

Disclaimer: I am writing this post off the top of my head, and therefore, if I have failed to acknowledge here any intellectual debt that I owe to any legal philosophers, I apologise in advance.

A recent op-ed by Andy Ho published in the Straits Times attempts to address the issue of human rights in Singapore’s context. He argues that human rights advocates are being simplistic for couching their discourse only in binary terms. According to him, such a ‘black-and-white’ treatment ‘glosses over the political, economic and social considerations that shape each country’s policies’. He then cites an essay by Dr Cheng Tai Heng, and Prof Michael Hor, in support of his conclusion.

I don’t agree with Andy Ho and I outline my reasons below.

Purpose, Fulfilment, and Unintended Consequences

I think it would be beneficial for people to ask the following questions when they think about the law:

1. What is the purpose of this rule?
2. Does enforcement of that rule fulfil its intended purpose?
3. What are the unintended consequences of the enactment of this rule?

With these questions in mind, we will look at the examples that Andy Ho provided to substantiate his case. We will also look at the sources cited by Andy Ho, Dr Cheng Tai Heng and Professor Michael Hor, and examine whether they support his arguments. And finally, a summation of the arguments against Andy Ho’s case.

The Purpose of a Law

Andy Ho first raises the issue of gay rights. He points to two sections of the Penal Code, s354 and s377, and argues that:

…these laws are not generally enforced and the sexual proclivities of private citizens are usually not monitored.

The Government, in actual practice, permits the gay community to flourish here. By implicitly accepting some gay rights, the Government enables quiet and incremental change. But by also keeping the laws, it signals to the various religious groups that their conservative values have not been swept aside.

In this way, all groups coexist, which is the real gay rights situation on the ground, the statutes notwithstanding.

My understanding of criminal law jurisprudence in Singapore is meagre at best, but literal reading of s354 suggests to me that any person who does any act that ‘outrages the modesty‘ of another person, regardless of whether there is consent, will be charged under that section. Interestingly, ‘outrage of modesty‘ is not defined.

Intuitively speaking, one would expect ‘outrage of modesty‘ to occur when the victim subjectively feels that they have suffered such a harm. However, since consent is irrelevant, I realise that an ‘outrage of modesty‘ occurs according to an objective standard. Therefore, an outrage of modesty occurs when the court says that it has. That would explain why this section would be seen as discriminatory against homosexuals.

s377 prohibits ‘carnal intercourse against the order of nature with any man, woman or animals‘. The section states that ‘penetration is sufficient to constitute the carnal intercourse‘. What is ‘against the order of nature‘ however, is not defined. Since this concept is left to judicial interpretation, it is most likely that the judges would construe this in light of the values of the society at large. It is unavoidable however, that to a certain extent, judges would be influenced by their own personal values as well. With all due respect to the Singapore judiciary, I make no accusations against their impartiality or fairness. It is well documented however, that it is impossible for human beings to be completely impartial and remain unaffected by their personal opinions. This effect is given greater prominence when judges are not constrained by clear and unambiguous wording in the statute.

The other concern is that by construing this section with regards to the values of the society at large, the judiciary essentially reinforces a majoritarian tyranny. This is particularly unpleasant when the offences in question are essentially private consensual behaviours between adults. Andy Ho misses the point when he claims that gays have real rights, statutes notwithstanding. The real issue is that private sexual behaviour between consenting adults is none of the state’s business, nor the business of religious groups. It is greatly disrespectful to think of the law as a tool for busybodies to mind other people’s business.

When one understands what the practical effects of these two sections are, one then has to ask, what are they for? Andy Ho’s explanation is that the laws are ‘a signal‘ that the values of religious groups have not been ‘swept aside‘. Surely he jests. That is an extraordinarily terrible reason to have a law. Laws are not knick-knacks for people to adorn their walls with just to make themselves feel good. Laws have practical effects in the real world to make or break lives. Andy Ho’s suggestion that the laws act merely as a signal is to make a mockery of the law.

This is compounded by his suggestion that it is a reasonable state of affairs for the law to be unenforced. A logical question that would follow is, why have the laws on the statute books then? It is illogical to have laws that are unenforced. One can look at it from one of two angles. Either the laws act as a threat, hence the prosecutorial discretion, e.g. ‘You’ll have as much freedom as we’ll let you, and if you try to ask for any more you’ll see what happens’, or as an appeasement offer to homophobic segments of the Singaporean population.

It is here that Andy Ho tries to perform an intellectual sleight-of-hand by trying to connect the values of one group with the actions of another. What does homosexuality have to do with religious groups? What do the values of religious groups have to do with homosexuals? It is not as though gays are forcing religious people to be gay. How would the values of religious groups be affected if gay people are gay? He does not answer this question, but merely tries to create an impression that there is a connection.

By his logic, we should also then legislate against Evangelical Christians proselytizing amongst Singaporeans, as it offends the conservative sensibilities of our Buddhist and Taoist majority. Or ban fat people from sitting on buses and trains as they take up more space than average people while only paying normal fares. Andy Ho conveniently ignores the other side of his argument, which is the law essentially imposes the views of one group over another: the values of religious groups are imposed on to the homosexual community. How he considers this co-existence, I do not know.

Time and time again, I have argued that laws should not be passed on a whim or based on emotion. All laws should be clear, logical and universally applied. This is not the case with s354 and s377. The language in both sections are fraught with value-laden concepts based on Victorian notions of morality, and certainly far from what I would call ‘Asian values’. They are both illogical as they prohibit private behaviour between consenting adults. And lastly, it makes no sense to have a law and not enforce it. The fact that there is prosecutorial discretion means that the law WILL be enforced, but at the pleasure of AG. Is this truly the rule of law?

Fulfilment of purpose

What is the purpose of punishment under criminal law? Generally, there are three reasons given: deterrence, rehabilitation and retribution. When it comes to the death penalty, there is no question of rehabilitation: the perpetrator is dead. The more contentious issue is whether capital punishment does truly have a deterrent effect. To the best of my knowledge, there has only been one comprehensive empirical study on this issue, and the conclusion is that the death penalty DOES have a deterrent effect, but only to a very specific class of crimes, namely homicide.

Since neither the Federal Government of the United States, where the study was conducted, nor its State governments apply the death penalty to drug offences, one can only speculate as to the efficacy of capital punishment in this context. A reasonable assumption however, would be somewhere in-between homicides and other offences. In the absence of concrete data, the most important question that must be asked is, how can we implement policies with regards to drug offences that kill, despite our ignorance of actual empirical results?

It is here where charges that Singapore is ‘uncivilized’ for implementing the death penalty must be addressed. Through the many vitriolic comments traded back and forth between the various camps regarding the death penalty, a common refrain heard amongst those in favour is the ‘you knew what you did was wrong, therefore you must now pay for it’ argument. This of course, neatly ignores any consideration as to whether the punishment is proportionate, and whether the punishment is just. If there can be no rehabilitation, and the deterrent value is unknown at best, then surely these arguments rest on the third reason for criminal punishment: retribution.

This brings me back to my central theme that we should not implement policy based on emotion or whim. To punish criminals because it satisfies the bloodlust of others IS uncivilised. If we use the law to sate such base instincts of the populace, then surely we cannot avoid charges that we are somehow uncivilised. Vengeance cannot be a legitimate purpose of criminal punishment.

Unintended consequences

The most dangerous argument that Andy Ho makes, is this one:

That is, if officials are responsible and competent, checks and balances are not needed. If they are not, no system of checks and balances will suffice anyway.

Let us first remember this fact: we humans are all imperfect. No human is infallible, whether with regards to the nature of our characters, or to our capabilities. It must never be forgotten that no matter the integrity or track record of the people in charge, they are still ultimately human. This fact is all the more crucial when the power they wield results in a consequence that is irrevocable.

Dr Cheng Tai Heng, whom Andy Ho quotes, writes in his paper, p 28-29:

A person who is found with prohibited drugs on his person is presumed to have committed the offense of possession. The burden of proof is on the accused to prove lack of knowledge, including constructive knowledge, that he had prohibited drugs on his person. Constructive knowledge is imputed unless the accused can show that he had no reason to suspect that prohibited drugs were on his person or in his possessions. If one possesses a quantity of drugs greater than a prescribed amount, such as three grams of cocaine, he is presumed to be a trafficker unless he can present evidence to dispel that presumption. A person found to be a trafficker of more than specified amounts of drugs, such as thirty grams cocaine, is mandatorily sentenced to death. Under this sliding definition of trafficking and double presumption of guilt, a person who has no actual knowledge of drugs in his possession and who has no intention to trade in drugs may be executed by the State. Between 1991 and 2001, 247 people were executed for drug trafficking under this regime. The risk that some of these people were killed even though they were not actually traffickers brings Singapore farthest from the central case of due process.

Prof Michael Hor writes in his paper, p 10:

Perhaps a curious feature of Singapore’s brand of utilitarianism is its almost total distrust of social science data. One might have expected that if the death penalty is being imposed on drug offences to deter or incapacitate, the government would be keenly interested in statistical and other studies to find out if, in fact, the increased penalties are working. But such studies, if they exist, are seldom revealed. Statistical data are not provided in any consistent or meaningful way by the government. One can only speculate why.

It is ironic that for a system that prides itself on its pragmatism, it asks for trust that is purely based on faith. Which conception of humanity is more pragmatic and realistic: one that assumes that all humans are inherently self-interested, and therefore cannot be trusted with extensive discretionary powers, or that a certain group of people are inherently altruistic, and therefore can be trusted to wield powers of life and death benevolently?

Professor Michael Hor’s opinion on this, p 11, which by the way is conspicuously absent in Andy Ho’s article:

The almost complete trust which the people of Singapore have in their government and its officials also comes with a cost. It is a dangerous symbol that the people accede to their government the right to do anything and everything for utilitarian ends. It becomes too easy to slip into a kind of “lesser included” argument: if we (the government) can detain you (the individual) without trial, cane you and even kill you, you should have no cause to complain if we do anything else to you. There is no need for a “bad” government to come to power for this to turn sour – officials are human beings who naturally believe in themselves and who will seek out easiest way to do something. The problem is that they can be quite wrong, and there will be nothing to stand between the government and the individual. The point is not that the government of Singapore in particular or its officials should not be trusted, but that no government or official should be given such latitude.

The most lamentable aspect of this culture of control, is that Singaporeans do not understand the meaning of human rights. Witness the how Singaporeans treat their domestic workers and manual labourers. This absence of a culture of rights in Singapore means a repetition of news that ‘maids’ and ‘banglas’ are treated like human refuse by their employers, while no one in the news media bothers asking why Singaporeans can be so cruel. Since we have no experience nor knowledge in the discourse of what constitute the rights that are necessary for human dignity, we ourselves do not accord those rights to others. This is the most damning indictment of the ‘utilitarian calculus’ of efficiency advocated by Andy Ho.

Why Andy Ho is wrong

Perhaps this IS part of Andy Ho’s utilitarian calculus: if I paid for you, then I bloody well have the right to decide what I can do with your life. Or, if you are my wife, I can have my way with you, even if you don’t consent, as per the marital exception to rape in s375 of the Penal Code. After all, it is too inefficient to have to convince you or romance you into opening your legs. Is the law not merely a signal that conservative values, such as the wife being subservient to the husband, are not swept away?

Andy Ho thinks that the onus is on human rights advocates to show why Singapore’s utilitarian emphasis of efficiency over rights is ‘irredeemably unacceptable‘. I contend that the onus is the reverse. Efficient usage of taxpayer’s money is a definitely a GOOD thing. I think however, the discourse on efficiency often overlooks the fact that the result is a culture for which there is no respect for human dignity. Do we want to be in the business if killing people efficiently and quickly? Are we ready to accept the the huge social costs of a populace that does not recognise the concept of individual human rights? Are we ready to accept the consequences of an unquestioning and unthinkingly trusting populace that place their life, liberty and happiness into the hands of imperfect human beings like you and I?

Ubi Dubium, Ibi Libertas
Where there is doubt, there is freedom

AsiaOne - Not quite black and white

From a Singapore Angle - Quickstops (Nov 24, 2005)
Post Hoc, Egro Propter Hoc - Andy Ho Defends the Singapore Model

The Y Files: Retribution, morality, and the soul
Reason magazine — July 2001, McVeigh to Macbeth by Cathy Young

Mocan and Gittings, ‘Getting off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment’ (2003) 46(2) Journal of Law and Economics 453
Cheng Tai Heng - The Central Case Approach to Human Rights: Its Universal Application and the Singapore Example (2004) Simpson Thacher & Bartlett LLP
Michael Hor - Singapore’s Innovations to Due Process (2000) Conference Paper, 14th International Conference of the International Society for the Reform of Criminal Law [PDF]
Palakrishnan - The Right to Silence (1999) The Singapore Law Gazette [PDF]