Thio Shen Yi’s write-up in the law gazette contains so much hedging, I almost thought I was Carlton in Wonderland for a moment. Still, he’s not wrong. For a small country our government is one slow (to put it nicely) creature.
Overplay your hand and you get ignored. Play nice and maybe you’ll get something done. Play too nice and you get something useless done. (And in rare cases, be too much of a nuisance and you end up like Francis Seow.)
In TOC’s report, I left out the bits where he hedges his position (or in other words, makes exceptions and clarifications to nuance his position) because, let’s be honest, who really cares for that? Nonetheless, it’s quite telling.
He avoids saying the right to immediate counsel is a constitutional right which is certainly wise because that argument would never fly; our Supreme Court judges are a bit like Antonin Scalia–adverse to judicial activism. In any case, Singapore doesn’t have the same kind of hallowed tradition of revering the constitution that America does. Ours was hastily pieced together with all the bits Lee Kuan Yew liked in 1965. And with a gazillion amendments between then and now, ours is one of the most tortured constitutions ever. So no, the constitutional route is not the way to go.
He also avoids getting dragged into a debate over the successes and failures of the criminal justice systems in the four countries he raises. This may be because it’s hard to prove this case either way, or because evidence of the abundance or absence of wrongful convictions in Singapore is just sorely lacking. Really, how do you tell if someone is wrongfully convicted unless the conviction is overturned? And if convictions are never overturned because, well, even coerced statements are admissible, what then? So no, relying entirely on comparisons with other countries is not the card to play either.
And of course, there’s the part where he settles for early instead of immediate access to counsel. I guess you take what you can get. So instead of 48 hours alone with the police, maybe the suspect only has to spend a few. Better make sure the police inform him of his right to counsel though.
Finally, there’s that oblique call to action at the end which appears to be directed to the Bar but which, I think, is really a message to the government. It’s quite clever actually. The true scholar-gentleman is always politically correct and adept at the art of face-saving.
The entire piece is a condemnation of the current criminal justice system, yet at the end, he says we need to restore trust in the system, and he says it isn’t perfect but it’s largely fair and transparent and generates just outcomes.
Yup, who have I heard this from before? Sounds like the PAP, no? It’s always about the system. Always about generating something (Singapore’s a machine, didn’t you know?). And always about fairness (hooray for meritocracy).
That’s precisely why it has to be an oblique reference. One that reminds them of what they believe in and sets them straight without putting them on the defensive.
But maybe all that is just nonsensical speculation. Whatever the case, Thio Shen Yi is certainly right about one thing. It’s time to fast forward the discussion and reboot our thinking. We’ve been stuck rehashing the same old arguments about the need to allow the police to investigate without being hampered by lawyers. As Mr Thio pointed out, and as countless other papers have, that argument is (to put it nicely) unsound.
Not everything that smells of liberalism is bad. Forget about the scenes in American TV legal dramas where some judge yells something about fruits from a poisonous tree and throws out all the evidence because someone wasn’t read his rights. That’s not Thio’s proposal here. His is for us to consider how other countries have done it and ask if we can strike a better balance. I think we can. Benjamin probably would too. Alas, he no longer has a say. Or does he?