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Law Minister takes a swipe at academic for ‘misconstructing’ his comments

On Facebook yesterday, Law Minister K Shanmugam took a swipe at his critics on a recent story on him, particularly targeting at local academic Donald Low for 'misconstructing' his intended message on reviewing penalties of offences in consideration of public opinion.

Low, who is the Associate Dean for the Lee Kuan Yew School of Public Policy had earlier posted a public comment on his Facebook page on 24 April, disagreeing with the Minister's comment.

The Minister in his Facebook post wrote, "Based on the article, some have assumed that I suggested that sentences in individual cases should be dictated by public opinion. Others, such as Donald Low, claim that “making laws on the basis of public opinion is populism by another name”, and that “[i]f criminal punishments are to reflect only public opinion”, one may as well “[j]ust run an opinion poll each time someone has been convicted”."

Reviewing of law in response to public opinion

Last week, Law Minister K Shanmugam gave an exclusive interview to Today about laws that the government will be reviewing after a series of offences garnered strong reaction and attention from the public pertaining to a couple of high profile cases.

To TODAY, Mr Shanmugam said, "You enhance the penalty (for a certain law) to reflect what people feel is the right penalty, what conduct should be more severely punished — that is not bowing down; that is understanding where the weight of public opinion is”.

He noted that after the reaction seen after the Joshua Robinson case, "it is important for us as policymakers to sit down and understand why people are upset... It is important because these people represent the ground feelings — they are mothers, they are sisters, they are people who want their children to be safe".

Law Minister's targeted attack on Low with deluge of info

In the Facebook post on Thursday evening, Mr K Shanmugam started off by stating that the comments by people such as Low seriously misconstrued what he actually said.

He wrote, "What I said reflects the established Government position on penal policy, and how we review our criminal legislation; there was nothing new or novel about it." pointing that his comments had nothing to do with how individual cases should be decided and what sentences should be meted out by judges.

This is followed by a deluge of references, extracts of his comments and explanations.

He ended his Facebook post by writing, "Academics, like Donald, have every right to criticise statements made by others, in particular on issues of public importance. But to be meaningful, and sensible, it will be first useful to read and understand what has been said, before jumping in to criticise. Otherwise the commentator does no credit to himself or his institution. Particularly an institution which carries Mr Lee Kuan Yew’s name."

So what did Low write?

The original text by Low on the Minister's comment:

"No la, how can this be right? Public opinion can be ignorant or ill-informed, excessively emotional (especially after a crime), unguided by reason, driven by our impulses, and biased by recent events that are vivid and memorable but are hardly representative. That's why we have a representative democracy, not a direct democracy. We want our elected representatives to make laws impersonally and dispassionately, after proper deliberation and debate. We want Parliament to be insulated (to a large extent) from the prevailing moods and sentiments of the public at any point in time, because these are prone to sudden changes. For the same reasons that public policy cannot be a popularity contest, neither should the penalties for crimes simply take reference from what the public thinks is correct at any point in time. Making laws on the basis of public opinion is populism by another name.

If criminal punishments are to reflect only public opinion, why bother having judges do sentencing? Just run an opinion poll each time someone has been convicted."

Immediately following the criticism of the comments made by Low and others, the Minister wrote in his post ,

"First, my comments had nothing to do with how individual cases should be decided and what sentences should be meted out by judges. That is and has always been the exclusive province of our courts and judges – who decide based on the prescribed laws, the facts and precedents.

My remarks were about a separate issue, on the factors that Government should take into account when it decides on what conduct should be criminalised; and when it decides on the range of penalties that our legislation should prescribe for different categories of offences."

Though Low's comment is loosely worded to imply that judges can be removed and the public can decide the penalty for those convicted for his/her crime, it can also be understood that judges should be trusted with their judgement and not be swayed by what the public wants. This can be exemplified by the public criticism on the judges in recent City Harvest Church's judgement.

In any case, the ambiguity of the casual statement by the academic in his personal capacity, makes the Minister's criticism look over blown given the media attention on the matter being uncalled for. After all, the academic was not writing a thesis of why the Minister was wrong in his comments, but a frank opinion of what he feels about the matter.

The Minister further wrote in criticism of Low's comment,

"Second, I was clear that public opinion, while relevant, cannot be the sole or decisive factor in proposing legislation. It is surprising that some like Donald misunderstood what I meant, for the TODAY article clearly stated what I said:

“But it doesn’t mean automatically you agree with [public opinion]. You must assess it, whether it is also fair. So, there are two parts to it – one, whether it is fair; two, what does the public believe is right.”

“It is the task of the Government to decide what is the appropriate legislative provision. And that is the mixture of… what is fair, what is right and also where is the weight of public opinion.”

As easily seen from the first part of Low's comment, he did not say that public opinion is the sole or decisive factor in proposing legislation as what the Minister is insinuating.

What Low's comment touched on is the inherent flaws in having reviews of legislations based on public opinion that "can be ignorant or ill-informed, excessively emotional (especially after a crime), unguided by reason, driven by (their) impulses, and biased by recent events that are vivid and memorable but are hardly representative."

On Friday afternoon, Low shared an email that was sent to the Minister on Thursday night, right after he saw the Minister's post.

"Dear Minister,

I agree with your FB post and I apologize if I have caused you any trouble or offence.

My post was mostly a reaction to the headline of the Today article, which I thought didn't represent your position accurately. I had read the piece in full, but didn't give your comments sufficient attention in my post. I apologize for that.

Anyway for what it's worth, I was trying to point out that public opinion, even if it's a factor in criminal punishment, is highly contingent, often irrational and subject to sudden changes. My post wasn't aimed at you or your comments in the article; it was my take on what was wrong with a criminal justice system based on public opinion. But I accept that my post, in the context of the Today article carrying your comments, might be viewed as a criticism of you or your comments. That wasn't my intention at all.

Once again, I apologize if I have caused you trouble or offence.

Best regards,
Donald"

As written by Mr Low in his email to the Minister, the comments were not targeted at anyone but on the issue of having penalties influenced by public opinion.

However, the Minister seemed to have taken it personally in the way that he wrote the "clarification" post about the "misconstruction".

The post by the Minister also attracted a significant number of online commenters who singled out Low for attacks, alleging that he is an opposition supporter and criticised his status as an academic.

One such comment by Sylvia Mei Ling Low, wrote: "Donald's a WP shill. Nothing new. What's devious is that he is intelligent enough to know that his argument is nonsense, but chooses to pretend otherwise, in order to fool his less intelligent audience."

Another comment by Julie Chin wrote, "The Opposition supporters and MP wannabes will misquote and misrepresent what is the truth so they could stir anti-Govt sentiments and make people angry and distrust our public institutions. That's their modus operandi in order to make themselves 'relevant' to the people. That's how they garner votes. Hope people are wise enough to see through their lies. I believe in our people to make good and wise judgments."

The attacks spurred journalist Bhavan Jaipragas to draw the Minister's attention on the comments. He wrote, "Please take a look at the kind of personal attacks against Donald Low and others that your post has invited in the comments section. It's distasteful. I usually don't comment on politicians' FB pages because I report on Singapore from time to time, but these comments are out of order and do nothing to increase the quality of political debate in the country."

While the Minister may be justified in clarifying the stance that the government is taking on reviewing penalties in light of public opinion, such deliberate name calling is simply uncalled for.

With such directed attention/attacks on one individual over his personal comments on a local news article and the local media reporting the Minister's Facebook post word for word on his criticism of Low, it is not hard to imagine the kind of future deterrence it will have on public discourse in Singapore.

It is kind of ironic in certain ways, given that the whole incident started off with Minister saying that the government should listen to public feedback whether the opinion is logical, rational or justified.