Are the new sentencing principles for NS defaulters fair?

by Fong Yew Loong

We cannot allow our national security to be undermined by National Service defaulters.

This is a principle that I believe most Singaporeans, including myself, wholeheartedly agree with. Moreover, to ensure the system is fair, NS obligations need to be universal and equitable. This means that Singaporeans should not be allowed to postpone their NS at their own choosing. There is therefore no question that the three NS defaulters who recently had their jail terms raised by the High Court (Ang Lee Thye, Vandana Kumar Chidambaram and Vandana Kumar Chidambaram) should be punished.

I do not intend to discuss the severity of each individual’s punishments and whether they are deserved. Whether a jail term should be three weeks or ten weeks is a matter of judgment by Parliament (who sets the law) and the courts (who interpret the law). What I do want to discuss, however, are the new sentencing principles that the Chief Justice recently laid down in the above-mentioned case. With all due respect to the judiciary, I hope to generate a conversation about the appropriateness of these principles.

Justice Chan Seng Onn laid out the old sentencing principles for NS defaulters in February 2016. In a detailed judgment, Justice Chan had opined that an NS defaulter’s punishment could be aggravated or mitigated depending on (amongst other factors) whether the defaulter has a ‘substantial connection’ to Singapore and the performance of the defaulter when he returns to serve NS. I thought that Justice Chan’s principles seemed thoughtful and sensible.

Although the Chief Justice has yet to provide a written judgment, reports by Channel News Asia have suggested that the above stated factors will no longer be considered under the new sentencing guidelines except in exceptional circumstances.

‘Substantial Connection’ to Singapore

The Chief Justice argued that every male citizen should be liable for NS ‘regardless of how long they have spent away from Singapore or the extent to which they have benefited from Singapore citizenship’. Implicit in his argument is his belief that NS is a national duty equally shared by anyone who possesses a Singapore passport. This might seem fair intuitively.

But let us reflect on the implications of such a principle through a simple hypothetical example of two individuals:

Individual A has studied in Singapore until he was eighteen. He has taken advantage of our best teachers and resources, perhaps studying in a school like Raffles Institution, and has received government scholarships to fund his education. With such substantial support, he has secured a place at Oxford University and decides to postpone his NS for three years to pursue his degree.

Individual B was born to Singaporean parents and hence is a Singapore citizen. He has lived in Singapore for a few years of his childhood, but does not remember much of his time here. His parents then migrated to the UK where he was educated in the British school system. Upon turning 18, he is called back to Singapore to serve NS but chooses to first pursue his studies at university in the UK because all his friends from school will also be continuing their education at that age.

Should individuals A and B receive the same sentence? Under the Chief Justice’s principle, the answer is yes. Yet, if you find yourself uncomfortable answering yes, you are probably like me. I do not believe that citizenship alone implies absolute and equal duties to all Singaporeans. Rather, I think there is a contractual element to citizenship (this idea is taken from Hobbes concept of the social contract). In this contract, we owe duties to the state, such as taxes or NS, because the state protects us and provides us with crucial services. As with any contract, there is an element of quid pro quo and we should expect someone who has benefitted more to return more to society.

NS Performance

The Chief Justice has also argued that it is ‘the obligation of every male Singaporean to do his best in NS’ and that it is a ‘matter of national pride and loyalty’.

While it would be ideal for every Singaporean to be as dedicated as the Chief Justice hopes, as someone who has been through NS, I can confidently say that there are many Singaporeans who do not live up to those ideals. There are too many stories of Singaporeans who do the bare minimum to get by NS. I would argue that those who ‘slack’ or ‘chao keng’ are probably more a threat to our national security than a defaulter who has postponed his NS, but done well while in NS.

I disagree with the Chief Justice that performing well for NS means being a ‘law-abiding’ citizen. Performing well requires a commitment that goes beyond turning up at Tekong on your enlistment date. And I do not see anything wrong with giving NS defaulters a chance to atone for their mistakes by showing they are fully committed to the defence of Singapore. Of course, this does not mean an NS defaulter should get off scot-free simply because he performs well. Rather, it only seems fair that a defaulter who trains hard to be an officer should receive a lighter sentence as compared to a recruit who does not complete BMT because he consistently misses high-key events due to a ‘Medical Certificate’.

The Chief Justice further makes a small point that the courts cannot ‘be in a position to assess what constitutes good enough performance’. Yet performance can be determined by the many systems of appraisals already integrated into NS, as well as letters of recommendation from commanders and peers.

Summary

I want to reiterate that NS defaulters should be punished and they should not get off lightly. I also want to stress that I am not disputing the punishments of the individuals concerned in the recent case. However, I personally have difficulty reconciling the new sentencing principles for NS defaulters with my own views on what constitutes as ‘fair’ punishment.