Monthly Archives: January 2009

The “Mother” of all Budgets

So $20.5 billion for companies and individuals, with the bulk of the money going towards firms.

The biggest component of Budget 2009 must certainly be the innovative and interesting CPF-cut, that is not a CPF-Cut.

Called the Jobs Credit, the $4.5 billion package is in essence a wage-subsidy direct from the Government to companies.

Everyone was expecting a CPF contribution cut despite many political leaders insisting that they would not cut it. And why not? AFter all many have said and are still saying this is the worst recession. Ever. Singapore will possibly contract at a massive 5%, the deepest worst recession. Ever. In 1998 CPF was cut because it was the fastest and most potent way to cut costs for companies. Compared to that Asian Financial Crisis, this global downturn is probably 10 times worse, given that it afflicts everyone.

So instead of cutting CPF rates, the Govenrment will give cash to companies, which means that it is shouldering the burden instead. Well, not actually. Because they are funding the subsidies with money from higher GST. So we are actually paying for it in other ways. We just don’t quite feel it.

The other big point is that the Government is not only running a huge-ass deficit but also dipping into past reserves. OMG. This is like what!

For its prudish stance towards spending on savings, the Government has decided this time that the time was right. It will darw $4.9 billion from reserves estimated to be some $600 billion large. This is barely 1%.

But more than the amounts involved, this move has a potent signaling effect. One, it signals that the Govt is treating this recession seriously and is doing serious things in return. Two, it is justifying its past insistence on balancing the budget with its dip into the reserves now. These are potent political messages that will not be lost on the average citizen. ie We are only able to weather the storm now because we made the right decisions then. So trust us.

That leads on to the next question and one that will have people speculating

Is this an election budget?

No. When one says it is an election budget, it means the electio

Crime and Punishment – Round 1

In one corner, Law Society President Michael Hwang, in the other, former top lawyer, now Law Minister, Shanmugam.

Michael takes the first swing by posting two pieces critiquing (not criticising) the Penal Code.

You can find it here and here

But I append the entire treatise in both parts here ( I do realise that this maybe infringing copyright – If I am, and law society says to take it down, just drop me an email)

Crime and Punishment

In my message for this month and the next, I propose to examine some basic thoughts on the purpose of our laws on crime and punishment, commencing with crime.

There are many statements of the purpose of the criminal law, but my favourite short and simple statement is from the Wolfenden Committee in England set up to review the law on Homosexual Offences and Prostitution. The function of the criminal law, as they saw it in their 1957 Report, was:

… to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable …

It is not … the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined … there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.

If we accept this as a working statement of the guide to criminalization of conduct, then the following principles flow from this:
1 It is not the function of the criminal law to shape personal conduct in the way that lawmakers would like Singaporeans to behave.

2 Acts (or omissions) should only be made criminal if they cause positive harm to:

a

other persons or beings capable of sentient feelings;

b

the actor himself;

c

the state;

d

public order; or

e

the community as a whole.

3 Harm has to be tangible and provable rather than speculative or subjective.

4 Harm to others (2a above) needs little explanation except for the second part which is meant to justify laws against cruelty to animals.

5 Harm to the actor (2b above) can be justified either by the principle of paternalism (sometimes the state knows better than the individual what is harmful to him, defining harm in terms of (3) above) or the welfare principle (it is against public policy to utilise the resources of the state to expend time and money on attending to the injuries of those who could protect themselves against such injuries with little inconvenience).

6 Harm to the state (2c above) will justify offences set out under Chapters VI and VII of the Penal Code and offences such as failure to pay taxes.

7 Harm to public order (2d above) will justify:

· (in principle) the laws against public assembly and
racially insensitive speeches, although the degree
to which it is necessary to control the activities of
public assembly and freedom of speech is debatable; and

· laws which prohibit behaviour which many not cause tangible harm to the object of the act concerned but, if not prohibited, will cause people who are so outraged by that act that they will take redress into their own hands (eg necrophilia).

This will also distinguish public decency and private morality, so that (for example) there should be:

· criminalization of sexual acts committed in public (which would be justified in the preservation of public order); but

· non-criminalization of sexual acts performed in private (other than those which cause physical harm even to consenting adults).

8 Harm to the community (2e above) distinguishes the interests of the state from the community at large and provides justification for offences such as:

· those which protect the integrity of the financial markets; and

· those which save the community from the trouble and cost of having to take action to rectify the consequences of acts which cause harm to the actor (eg taking drugs or attempted suicide), which is also justifiable under the welfare principle described under (5) above)

If we follow these principles to their logical conclusion this should lead us to re-examine why certain offences remain on the statute books and whether they should be repealed or modified.

The point of this analysis is that we should not criminalize conduct which we simply consider to be immoral unless harm also results from the conduct. We can argue about what ‘harm’ means for this purpose, but the essential principle should be: no harm, no criminal offence.

That is not to say that morality has no place in the criminal law. All criminal laws must be rooted in morality in the sense that it must have the moral support of the majority of the community, otherwise it becomes the rule of the oligarchy, who think they know what is best for us all. We cannot criminalize conduct if the majority of the people think that the conduct is not wrong enough to require state enforcement (eg adultery). But the converse argument does not follow as a matter of logic: to enforce morality for its own sake cannot be justified by legal arguments. Hence, the arguments about prohibiting the consumption of alcohol or the practice of homosexuality need to focus on the actual or potential harm caused to the persons involved, especially if they are vulnerable (by reason of age or mental incapacity) and not capable of making a fully informed decision as to whether they understand what harm they might suffer from the conduct in question.

All the above is not original thought; it is largely reproduced in the standard criminal textbooks, and I am simply reminding people who have a say in the revision of our criminal laws to take the above into account.

We need to apply intellectual rigour to our attitude to criminalization of human conduct, and should not simply argue for criminalization of conduct which offends us personally for reasons which do not fall within the objective criteria set out above.

So let us clear our minds of cant, and think logically and progress towards a more rational theory of criminal law.

In next month’s message I will deal with what I consider to be the relevant principles determining the imposition of penalties for criminal behavior.

Following on from last month’s message, I want to share my views on the purposes of punishment insofar as they should be reflected in the sentences imposed by criminal courts.

The old view (which is still maintained by many) holds that there is a necessary moral connection between wrongdoing and punishment (variously called ‘ethical or moral retribution’, ‘retributive justice’ or the ‘desert justification’). This theory is a refinement of the ‘revenge theory’ best expressed in the ‘eye for an eye’ principle.

An alternative view (which I prefer) is that offenders are punished only for social reasons, looking forward rather than to the past. This principle is best expressed pithily in the words of the Utilitarian philosopher, Jeremy Bentham, who wrote:

All punishment is mischief. All punishment is in itself evil. It ought only to be admitted in as far as it promises to exclude some greater evil.

Retributive justice looks to the past when it seeks to punish the offender for what he has done, while the utilitarian looks to the future to justify the imposition of punishment. The utilitarian justification for punishment is not to take revenge on the offender for his wrongdoing but to prevent future offences of a similar kind, whether by that offender or others. In short, the principle of deterrence should underpin a rational policy of sentencing. The sentence should be determined by its effect upon the person punished (particular deterrence) or by serving as a warning to others (general deterrence). In addition, the penal process can have a certain educational effect, both on the offender as well as the community at large in reinforcing the social values of the community as expressed through its criminal laws. However, the educational process should only be regarded as a side effect of punishment, and not as its primary justification. To that extent, I would therefore respectfully disagree with Lord Denning who once famously said:

The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.

As I pointed out in last month’s message, the purpose of the criminal law is not to enforce the moral standards of the community as such, but only to protect the community and individuals from tangible harm. Accordingly, punishment should not be based on moral denunciation as its primary justification.

But utilitarianism does not provide a self-contained justification of punishment, as there are cases where utilitarianism would provide too harsh a penalty, or where it would not justify a punishment at all where clearly punishment is necessary.

If one carried utilitarianism to its logical conclusion and make deterrence the sole criterion for punishment, there would be times where the easy way to abolish a socially undesirable practice would be to impose extremely harsh penalties, eg to impose huge fines or even imprisonment for parking offences. But the community would (rightly) reject such penalties because they would violate another principle that is commonly accepted as a necessary ingredient of a rational sentencing policy, viz. the principle of proportionality. That principle reflects the correct place where retribution ought to be reflected in punishment – in the distribution of justice, rather than in its primary justification. The extent to which an offender ought to be punished cannot be determined solely by the need to stamp out future repetitions of the same offence; there is a moral limit to the law’s power to make an offender an example for others to fear.

Conversely, there may be occasions where an offence may result in no overt harm, but may attract such moral outrage that, a failure to punish (or punish adequately) such an offence will lead to those outraged to take physical action to vent their feelings. This is the basis for laws and punishment against those that express views which give serious offence to religious or racial groups. Indeed, this was the original justification for having laws at all, because, in the absence of government having a system of law and order and punishment for violation of those laws, victims of wrongs committed against them would have to resort to self-help to gain redress for the loss and suffering they had sustained. It is to this extent that Lord Denning’s dictum can be justified, but only as a postscript to any thesis on the purposes of punishment.

On a more practical note, Singapore is sadly lacking a principled and transparent penal policy. Our universities barely cover the study of criminology, and even less the more important study of penology. Possibly, this is because Government has not published detailed statistics of crime and punishment so that social scientists can undertake adequate research on the causes of crime and the effects of current penal policies on prisoners (especially recidivists). One traditional justification for the lack of such statistics is that these are sensitive figures which could be interpreted as indicating that certain communities might be more prone to commit certain crimes, but we cannot continue to put our heads in the sand and hide important social facts which need serious study by objective scholars in order to improve our society. Only rigorous research with full access to relevant information can help us determine important penological questions such as:

· Is the death penalty effective in preventing murder and other capital crimes?

· Do strict liability offences achieve their object of deterring anti-social behaviour?

· What kind of punishments best deter what kind of behaviour?

· Should we follow the UK in adopting indeterminate sentences?

· Is corporal punishment an effective deterrent against the crimes for which it is imposed as a penalty?

So I end with the message that we need to re-think our policies on crime and punishment at a more fundamental level than hitherto so as to base our laws and sentences on a proper jurisprudential as well as practical basis.

Michael Hwang, SC
President
The Law Society of Singapore

2009 – the year of change

Boo to economics, cheers to politics.

I don’t particularly look forward to seeing the damage that has been inflicted on the economy. Everyone knows there will be tragedies this year. People will stuggle, people will fall and people will die because of the economic woes from the excesses of 2008 and before.

No, this year is/will be a bad one. But human history has shown that it is always in bad times that salvation is wrought.

Particularly so for Singapore politics. Already, we see outsiders making inroads into local politics. These outsiders are traditionally those who have steered clear of opposition politics simply because the opposition has been too incompetent and too messy.

Tan Kin Lian has been causing ripples with his activism in rallying people in the aftermath of the Minibonds fallout. He has “declared” his intention to run for Presidency and has started an online petition to get support for his bid to run for office.

A ploy, some say. But there is no doubting that his grand entrance into politics is causing great unease among the ruling elites. Here is a man who has run one of the premier insurance companies since he was in his late 20s. Late 20s! If that doesn’t speak loads about his competence, nothing will.

And in my humble opinion, there is nothing, absolutely nothing wrong with him garnering support through his current activities. Who says politics is altruistic? It’s the same with the PAP sending its raw recruits to help out at grassroots – to build goodwill so that voters will vote for them during GE.

All’s fair in love and war and politics – and in politics more fair than others.

Kenneth Jeyaretnam – He is another behemoth who will change the political landscape if he does enter into opposition politics. And signs are present that the double-first class from Cambridge (I think) is keen on taking up his father’s legacy.

Over at TOC, a mysterious poster named KJ has been writing flowing and sharply critical pieces against the mainstream media. Is this person Kenneth Jeyarentnam (KJ?) A click on his blogsite refers him to this blog where there is a tribute to JBJ and an email to Kenneth Jeyaretnam.

If it is indeed him, the ruling party would have much to worry about. If KJeyarentnam can avoid getting into the muck of law suits and avoid character assasination, as will definitely happen, his entry into opposition politics will surely galvanise educated voters who yearn for proper checks against the PAP.

But unlike his father, who knew how to connect with grassroots, much leaves to be seen if KJ can not only sit behind the keyboard but rally voters to vote for him. He has the intellectual mettle, and by golly can he write, but can he get the ah-soh who has only been voting PAP all her life, to vote for him?

I might be putting the horse before the cart but I can’t help it. After a whole decade since SDP lost it’s two seats in Parliament and a decade of failed opposition politics, these developments portend a revival of opposition politics, even if it is all just conjecture.