Police Powers, Governance and Accountability: Has the Law Minister Got It Right?

A Police State of Mind

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K. Shanmugam, Minister for Law and Home Affairs Photo: video screen-grab
 

By M Ravi

The issue of police powers, governance and accountability has resurfaced again in our public discourse. Civil society members and members of the legal fraternity have expressed concerns over the unfretted police powers and if the state has over-extended itself by over-shadowing the commissioner.

The issue, whenever raised, reveals the growing uncertainty among citizens about the scope of police powers and whether current procedures ensure due process. The topic stirred up sentiments again last week when Law and Home Affairs Minister K Shanmugam said that Ministers have the “ultimate decision-making responsibility to consider what is right, what is good for society, and not be side-tracked by a vocal minority.”

Citing the Public Order and Safety (Special Powers) Act (POSSPA), he stated that, “POSSPA gives a lot of powers to the police. It is probably legislation that is not very doable in many countries,” he acknowledged, yet went on to justify that it was doable in Singapore because citizens trust the police.

As always done in true Singaporean style, whenever new, controversial or unpopular policies are rolled out, the government often cites statistics garnered from its own feedback unit. This time REACH revealed that 82% of Singaporeans polled said they agreed with POSSPA. But what about the growing dissenting voices that are side-tracked and ignored? These voices are loud in social media spaces and surely the government knows about them. The noise was particularly deafening in the tragic case of 14-year old Benjamin Lim who was found dead after he was questioned by police on allegations of outrage of modesty.

In discussing the case, Mr Shanmugam said that his Ministry was responsible for the protocols in place. He stated, “Ultimately, responsibility is with me as the Minister. It is not with individual police officers; their responsibility is to act according to protocols in place. If there are issues with the protocols, the responsibility is mine, let’s not attack the police officers who cannot defend themselves.”

The Minister’s position cannot be right. He is gradually arrogating the role of the Commissioner of Police (COP) onto himself and that is worrying due to its unconstitutionality. It upsets the doctrine of separation of powers. The Minister’s statement erodes the independence of the police force.

Below, I advance this constitutional position to elaborate why the Police cannot be answerable to any one Minister or to a Ministry, but to the Law only.

In the 1968 historic case of R v. Metropolitan Police Commissioner, ex parte Blackburn, Lord Denning famously said that the Commissioner should be, and is, independent of the Executive. He is not subject to the orders of the Secretary of State, save that under legislation. The Secretary of State can call on him to give a report, or to retire in the interests of efficiency, yet “no Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”.

In Dermot Walsh, and Vicky Conway, “Police Governance and Accountability: Overview of Current Issues” (2011), the following was said:

“Given the sensitive nature of aspects of the police function, it is easy to appreciate why there should be a concern to protect the police against the full rigours of democratic governance and accountability as applied to the executive generally. The failure to do so would run the risk of politicising safety, security and justice. The prospect of the police being required, whether directly or indirectly, to apply vindictive or preferential law enforcement treatment to distinct groups or individuals for politically partisan ends, is clearly intolerable in any liberal democracy based on respect for human rights. On the other hand, to insulate the police too heavily against democratic direction and accountability will only lay the foundations for the worst excesses of a police state. The open-ended challenge, therefore, is to devise methods which strike a reasonable accommodation between these conflicting tensions.”

In the same article, the authors clarify, that the objective of ‘police independence’ is to ensure that they are deployed and act only in the broad ‘public interest’ rather than in partisan political, corporate or personal interests; that they are not subject to undue partisan political influence, from whatever source, in doing their work; that they are not deployed to suppress or harass political opponents or dissidents; and that in doing their work, they uphold the civil and human rights (such as rights of free association and expression) of those they police. While many western developed democracies have mechanisms for civilian oversight of police, the extent to which citizen oversight exists in Singapore is desperately unclear.

For those unfamiliar with how the Ministries and the various Departments under them are organised, the Singapore Police Force is a Department organised under the Ministry of Home Affairs. The COP oversees the Department. This way, if there are mishaps, the public knows who to bring an action against. In the same spirit, if something is amiss in the Department and allegations are made against it, the COP must speak up and defend his Department. Police matters should therefore not leapfrog to the Ministry or a Minister.

The exercise of the power of arrest inevitably carries with it a friction between the constitutional right of liberty and the countervailing public interest in crime prevention and control as well as the maintenance of public order. No one denies that the police ought to be able to work freely and unconstrained, but this cannot be at the expense of forgoing fundamental rights. In short, a balance between the liberty of a person and the need to uphold law and order must be struck. Parliament has imposed limitations and safeguards to ensure that the power of the police to arrest is not arbitrarily exercised. The task of interpreting whether there has indeed been transgression is then burdened on to the judiciary.

While the court mybe slow to question the bona fide exercise of an executive discretion by the police, history is littered with examples from around the world of cases where the court has delivered appropriate relief when legitimate grievances exist. Lord Diplock in Holgate-Mohammed v Duke said that the lawfulness of the arrest and detention based on that suspicion does not depend upon the judge’s own view as to whether the arrest was reasonable or not, but upon whether the police officer’s action in arresting was an exercise of discretion that was ultra vires because an irrelevant matter was considered.

Powers of arrest are provided for in several statutes in Singapore. A recent press article revealed the extent of legislation related to security and defence matters. Yet, it must be remembered that the primary sources remain the Constitution and the Criminal Procedure Code.

It is time that vague police protocols and the default systems of extracting confessions change. It is time to make it clear that the COP is answerable to the public for its own determinations and policies and cannot hide behind any Ministerial shield. It is time to start a dialogue on police accountability and governance. It is time for the government to stand by its international proclamations at the UN to strengthen its protection of citizens’ rights to free expression.

There is clearly much to do.

M Ravi is a leading civil rights advocate in Singapore. The opinion expressed herein represent the views of the writer.