By Charles Tan
In the wake of the recent riot in Little India, one of the observations that struck me was how relatively little public discussion we see in the mainstream media about the issues of crime and punishment. When riots rocked London in August 2011, journalists and politicians got on their soapboxes and spent the following weeks denouncing the crimes and speculating on the underlying causes, as expected, but also engaged in debates about the fairness of punishments meted out, including questioning the use of excessive police force, etc.
Part of this quietness in Singapore is legally enforced – our laws, which are based on the English system, are designed to prevent cases which are under judgment (or sub judice) from being unfairly influenced by public commentary, but the UK effectively lifted such restrictions in 1981. However, a large part, I feel, is also due to a general sense of apathy on issues of crime and punishment. As I remember my parents telling me, when I came home from class one day questioning the morality of capital punishment, “Why do you care what the punishment is? Just make sure you don’t be a naughty boy, then it doesn’t matter.”
Singaporeans don’t usually involve themselves in jurisprudence and we don’t even have jury duty (which many might consider a blessing). However, I believe that it is important for any country hoping to call itself “first-world” or “mature/developed” to have public involvement and debate about issues such as justice and fairness, as well as the moral philosophies underpinning our stance on crime and punishment.
EXISTING APPROACH
While I am not a lawyer by training, and do not profess to have particular insight into the subject matter, it seems to me that much of our justice system is focused on the dual concepts of deterrence and retribution rather than reform and rehabilitation. The sentences we mete out, therefore, are often made as a kind of “appropriate response” to a criminal act (that is, let the punishment fit the crime), with the occasional exception where excess force is deemed necessary to signal disapproval and discourage future occurrence (example death penalty for treason, drugs, or firearm-related offences).
Our system allows for mitigation, of course, as two seemingly similar acts can (and should) be judged to be deserving of very different punishments, depending on their context. For example, a starving vagrant and a recalcitrant kleptomaniac may both decide to steal a loaf of bread, but most of us would agree that both offenders should be treated differently.
EFFECTIVENESS VS FAIRNESS
Two of the questions that arise from this retributive or preventative approach to determining penalties are: a) whether they are effective and, perhaps more importantly, b) whether they are fair. On the first point, imposing a $500 fine for littering or speeding, for example, may certainly be effective in cutting down the overall number of offences registered, but it may unfairly target the less well-off in society as compared to the rich, who will find such sums of money a minor inconvenience.
A fixed sum penalty may accurately reflect the cost of one’s actions to society and the resources needed to bring about restoration, but its effectiveness as a deterrent varies according to the offender’s financial means. It is intuitively more logical to me that certain punishments, in particular those enforced via monetary penalties, should be scaled according to wealth and/or income. After all, a person who has the means, and the will, to buy a sports car, for example, (which, in Singapore, costs as much as a house) and wilfully endanger the lives of others by speeding, obviously needs a proportionately large disincentive not to do so.
JUSTIFYING DISCRIMINATION
This is by no means a novel approach. Finland, for example, already has such an income-based penal code in place for speeding fines, while China imposes a similar scalable penalty for those who violate the one child policy. Why then have we been slow to reform our own laws and policies?
Critics of such a proposal may argue that, assuming that one’s wealth is the only differentiating factor, it is itself unfair to charge different people different amounts of money for the same crime. However, such reasoning employs market-based principles of fairness where they should not belong – the public domain. To argue along market lines in an attempt to equalise the “cost” of a speeding fine is to imply that the right to speed is effectively a commodity up for sale, when in fact a fine should be viewed as an expression of moral reprehension rather than the price of imposing an inconvenience on society.
It is for similar reasons that taxing pollution and legalising prostitution are pragmatic but morally debatable solutions to longstanding societal issues. To the extent that our laws are equally a tool for justice but also an expression of our collective morals and values, it should be fair to impose fixed percentage fines as a way to express our equal distaste for certain behaviour, regardless of the offender’s socio-economic standing.
BALANCE AND COMPROMISE
The points I have raised here barely begin to scratch the surface of the questions that we will no doubt uncover if we review our code of laws. For example, is it fair to sentence offenders harshly as a signal to others, even if their crimes are relatively petty? Should we show clemency on account of mitigating circumstances or when pressured by foreign diplomats? To what extent are monetary penalties effective, either against the very poor (with nothing to lose) or the very rich (who don’t feel the pinch)?
These are all difficult questions, none of which have clear-cut solutions, because there are no definitive right or wrong answers, but rather, those with varying degrees of visceral and logical appeal, and ultimately all decisions are a result of balance and compromise between pros and cons, pluses and minuses. Simply pondering on these basic questions should help us appreciate just how unenviable a judge’s job really is, and I am thankful my job is nowhere near as difficult.
I am not promoting some kind of “democratic justice” system, where laws and sentences are determined by popular vote; but I do think the government should begin to encourage public debates about what constitutes justice and fairness because that is a defining characteristic of true democracy; and as citizens we have a duty to sit up and participate. After all, the only thing worse than ignorance is apathy, and sadly, we already have a little too much of both