Tuesday, June 12, 2012

The politics of caning

Whilst the sticker lady issue rages on, I think this is an appropriate time to reconsider our sentencing philosophy.

I blogged about this two days ago. In the course of reading the Parliamentary debates in relation to the Punishment for Vandalism Bill 1966, it is clear that one concern was playing itself out. It appears that there were widespread instances of vandalism in Singapore and it is also evident that political slogans (anti-colonial, anti-american and pro-vietcong) were surfacing. I did not live through that period and it is hard to say if the events were as widespread as alleged or if this was just exaggeration to gain leverage for insisting on caning as a punishment.

Unrelated to the debate on the Vandalism Bill, other debates in Parliament in 1965 to 1967 reveal references to acts of vandalism that are politically motivated. There are references to Barisan Socialis being responsible for instigating these 'anti-nationalist' actions.

However, in the debate on the Vandalism Bill, the focus is on a broad range of vandalism offences. Anything from hanging banners to painting and damaging property. The extreme measure of caning is recommended as a deterrent. The distinction drawn in order to justify the use of a severe punishment is on the basis of whether the vandal has left a delible mark. If it is indelible, caning is mandated. If it is delible, caning is not mandated for a first time offender.

Using traffic lights as an example, caning is mandated if you destroyed a traffic light. It is mandated if you painted on the traffic light. Caning is not mandated if you pasted removable stickers on it or hung slogans from it and you happen to be a first time offender. But, a second offence involving hanging a slogan from a traffic light would trigger caning.

To me, it is shocking to cane someone for the act of hanging a banner (although it is restricted to a repeat offender).

Though I did not live through those times, I can't help but walk away with the feeling that the Vandalism Act introduced caning for vandals primarily because of the politcal nature of the vandalism that was taking place rather than the fact that vandalism was taking place at all.

LKY's own comments about how these vandals would be prepared to go to jail and consider themselves martyrs is indicative of the fact that the government did not have in mind the ordinary vandal who might at most be a delinquent and wayward individual. Caning was seen as a way of deterring anyone thinking of turning himself into a political martyr.

I have extracted the PM's (LKY) speech from the 2nd reading of the Bill:

Mr Speaker, Sir, I would like to explain to the House what we are seeking to do by making this departure from what is normal criminal law legislation. One of the problems we face in running the British system of administration of justice is that the law is often being administered, particularly in recent years, by legally trained magistrates who do not have the advantage of the wider background of the problems of the society and of administering that society. So it is that by the time the offender of a particularly vicious social misdemeanour, like taking a pot of paint and going to every bus stand and chalking up anti-American or anti-British or pro-Vietcong slogans, is apprehended and brought to court, from the vicious petty slogan-shouting hooligan that he is outside, he converts himself into a meek, humble breadwinner of a large family who was doing no more than just giving vent to his political exuberance. And he gets off with a caution and sometimes a light fine. The net result is that this particularly vicious social misdemeanour is not capable of being checked, let alone stopped. It is difficult enough to apprehend these offenders. Under the section in the Minor Offences Ordinance which we have to operate, this is a non-seizable offence. So if you are not a police officer, or even if you are a member of the Vigilante Corps, you will be a very brave man to go and apprehend such a culprit. I do not think it is possible for us to go back to the old British practice where people who are administrators, having served a term in the business of running the government, then do a spell of two or more years on the Bench, and so there is a constant flow of fairly matter-of-fact gentlemen who understand the mechanics of how the system works and know the other side of the coin, not just what happens in the courtroom.

The Bill makes a clear distinction between what is considered a lesser offence, something which just dirties up the wall - which is delible - and where you deliberately seek to mess up the place from time to time with red paint, which is a very difficult substance to eradicate, on bus shelters and public buildings. Large sums of money are expended in order to remove the unsightly scars which they leave behind.

Recently the problem has been complicated by the ease of access to public property which, in the nature of things, is difficult to prevent. Thefts of fountain heads made of copper, copper tubes outside Housing and Development Board premises used for boilers and other things - and copper is in short supply because of the transportation problem of Rhodesian and Zambian copper - and thefts of valuable parts of non-ferrous metals have taken place, to be sold for a fraction of their actual cost. I do not think we can allow this to go on, and I know how strongly the profession and the penologists are against caning. But we have a society which, unfortunately, I think, understands only two things - the incentive and the deterrent. We intend to use both, the carrot and the stick. The carrot is good citizenship. It is a seizable offence to do any of these acts of vandalism, and any member of the Vigilante Corps, any member of the public, can apprehend. A reward will be given in order that these culprits will be apprehended and these crimes will stop.

On the other hand, a fine will not deter the type of criminal we are facing here. He is quite prepared to go to gaol, having defaced public buildings with red paint. Flaunting the values of his ideology, he is quite prepared to make a martyr of himself and go to gaol. He will not pay the fine and make a demonstration of his martyrdom. But if he knows he is going to get three of the best, I think he will lose a great deal of enthusiasm, because there is little glory attached to the rather humiliating experience of having to be caned.

I am not suggesting, Mr Speaker, Sir, that I am quite sure that this is going to solve our problem, but I am convinced that if we are not prepared to innovate, if we are just to stick to old formal channels of legislation or old forms and modes of social control, then these are areas of public behaviour over which society will have no control whatsoever. I hope that there will never be any cause, once these provisions are known, for them ever to be invoked. But I feel reasonably confident that if the offenders are apprehended - as I think they can be apprehended; these are seizable offences and there are enough people in the Vigilante Corps and public-spirited members of the ordinary public - and an example is made of a few, then we will not have the discomfiture of finding the electric power supply failing, because somebody risks blowing up a whole transformer substation for a few dollars' worth of public property which is not sufficiently guarded. If this is understood - and they have a tendency to understand very quickly once the word gets around -I am quite sure that there will be a healthier respect for community property. This happens all over the world. But in every society, values are different, and ours is a new and young one. We could take the other point of view - the Government could be purely negative and say, "Well, in that case, we should not have this community property. We should not have fountains. We should not have these parks. We should not have these amenities, because they are likely to be destroyed, mutilated and losses will be heavy." I think that is a defeatist attitude. By and large, I would say that the majority of the people are law- abiding and respect community property, and if we can check the misbehaviour of this minority, then we can move into wider fields of public amenities with greater confidence that, first, the expenditure will not be wasted, and, second, the maintenance will be what the planners estimate it to be and not what we subsequently find ourselves carrying.

I hope eventually that the remarks I have made here in this House will also be heeded not only by the offenders but also by those who participate in the administration of justice. I have a feeling that often in the younger ranks of the service, the administration of justice is believed to be the application of the law. It is because they believe that, that we are forced to take these measures. I think a wider grasp that administration of justice means the application of the letter of the law in such a spirit that society is able to protect itself, is fundamental. If we are able to implement these provisions with efficacy in the first few months, I am quite sure that this will be a dead letter in our statute book.

Parliament could have increased the fine and length of imprisonment for this offence instead of introducing corporal punishment. It is clear that when the PM in fact spoke of the deterrent effect, he referred specifically of those flaunting the values of their ideology. The ordinary vandal might well be deterred by imprisonment. The political slogan-shouter needed more than imprisonment to deter him.

The Law Minister E W Barker offers up another justification for caning:

"The punishment of caning has been introduced advisedly and after considerable thought. It has been found in practice that while many convicted persons will accept without demur a heavy fine or even a lengthy sentence of imprisonment, they tend to view with the greatest alarm and despondency any sentence which requires the infliction of caning. This is, of course, typical of the mentality of the bully and the coward and of those who choose to perpetrate their offences under cover of darkness, which is, in fact, the case with the majority of acts of this sort. Caning has accordingly been made mandatory upon conviction..."

I wonder whether the reference to "it has been found in practice" is based on purely anecdotal evidence or on extensive field research. I can imagine that on a personal subjective level caning would deter me more than a fine or imprisonment. That being the case, if we found that a particular crime is on the rise, it would be easy to use caning as a deterrent. That would lead us down a slippery slope. As littering seems to be on the rise compared to 10 years ago, why don't we just introduce caning as a deterrent, for instance. CWOs don't work as well as "3 of the best" (to use LKY's reference to caning). In the end, punishment must fit the crime.

A curious feature of the Parliamentary debate is the way that the justifications were not refuted except for a brief speech by Mr Tang See Chim that questioned whether caning would really have a deterrent effect:

I have the impression that the Government is taking the view that severity of punishment is a deterrent. Mr Speaker, Sir, severity of punishment may not, in fact, necessarily be a deterrent. The way to deter any crime, I submit, is to impress on the wrong-doer the certainty of his being found out if he commits one. Also I have the impression that as far as acts of vandalism are concerned, that is, excluding the anti-national elements, this Bill could only be an interim measure, because, as I see it, vandalism cannot be rooted out by the introduction of a Bill with very severe punishment. It can only be rooted out by educating our young to respect public property and to have a sense of pride in the public amenities provided by society.

Nothing more robust than that was raised. No issue was taken as to whether corporal punishment may be inappropriate for a property offence. No issue was taken as to whether corporal punishment may amount to a form of cruel and inhuman treatment. (But then again, thanks to the Barisan Socialis walkout from Parliament and the consequent PAP dominance, there were no opposition MPs on hand to question the introduction of caning for this offence.)

In the history of our post-independence legislature, deterrence as the logic for corporal punishment has led us on a downward spiral, resulting eventually in the imposition of caning for drug abusers (an offence that requires medical and psychological rehabilitation more than any other offence) and even for immigration offenders (overstaying by more than 90 days after the expiry of the visa). We need to revisit the question of whether corporal punishment is appropriate in the first place and if so, whether our sentencing regime is in accord of the principle that punishment ought to fit the crime.


Anonymous said...

Six stroke and vehicle confiscation for drunk driving when there are no victims and death by hanging if injury happen to another road user or bystander.

Anonymous said...

And what about the strength used. Not scientific !! Every swing is different. Not fair ! Grrrrrr

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