There was a small debate in Parliament on Wednesday 19 May 2010 over one of the elements of the proposed new criminal procedure code: the removal of judicial oversight over offers to compound offences.
Under the law, certain criminal offences such as simple molestation can be settled if the victim agrees to drop the matter in return for some form of compensation. This is, however, subject to the court’s approval.
One of the changes to criminal procedure will move this power from the courts to the prosecution.
— Straits Times, 20 May 2010, A matter of conceptual clarity
Justifying this move, Law Minister K Shanmugam said that the decision whether or not to charge someone already rests with the prosecution; there is no judicial oversight for that. Offering to compound the matter is really the same thing.
At an intellectual level, this argument has force. But it does beg a broader question of oversight over prosecution decisions regarding whether todrop a case or to offer to compound one.
I vaguely recall there was a case a few years back when a wife of a well-connected chap, accused of a serious offence (was it maid abuse? drink driving? organ buying?) was given the chance to merely compound the offence. The court refused to endorse it, saying it was too serious to let the matter be compounded. Could readers help me out here? What was that case?
The problem, as repeatedly occurs in an authoritarian state like Singapore, especially one without either a free media or a Freedom of Information Act, is yet another one of Quis custodiet ipsos custodes – Who guards the guards?
Who ensures that the prosecution does not show bias, e.g. in favour of establishment figures or pro-government parties? Theoretically, it is the elected government, and that is why the Attorney-General is part of the executive. But what happens if the government itself has its own interests or survival at stake, and feels entitled (as authoritarian governments often do) to exercise its discretion in its own favour, seeing its own interests as indistinguishable from the “national interest”?
As things stand, public confidence in the independence of either our prosecution branch or the judiciary is not high, especially with respect to political cases. Moreover, with a non-enquiring media, cases of prosecution leniency towards establishment figures can slip by unnoticed.
This is a big risk to take. It can lead to rot in public confidence in the political system as a whole.
Take Thailand as one example, it having been in the news so much lately. One of the bigger grouses of the Red Shirts is that the Abhisit government has been showing prosecutorial bias. After the Yellow Shirts in 2008 took over and shut down the airport, and held other protests to bring down the pro-Thaksin governments that the people themselves had elected in the 2008 general election, thus enabling Abhisit to form his current government, Abhisit has done absolutely nothing to prosecute the Yellow Shirts for their street demonstrations. Yet his government has been issuing arrest warrants against Red Shirt leaders, and threatening prosecution for Red Shirt participants.
To the Red Shirts, this only proves that the prosecution branch, like the government it answers to, does not apply law fairly. The political instability that this feeling of outrage has fuelled I’m sure I don’t need to elaborate further.
In other words, it’s all very well for the Law Minister to clarify a conceptual concept, but the bigger issue for Singapore is not addressed: How to justify confidence in the independence of our justice system?