Sunday, June 10, 2012

The vandal on a pedestal and an incoherent sentencing philosphy

The sticker lady might get charged and eventually convicted under the Vandalism Act. But, one thing is for sure: She will not be subject to caning.

Whilst caning is provided for an offence under s.2 of the Vandalism Act, women are exempted from corporal punishment generally. Caning is not the norm for most offences in Singapore and it is reserved for very specific crimes.

Whether sticker lady (Samantha Lo) should be let off the hook or punished for vandalism is an issue that has been raging on blogosphere. There are those that take the view that this is a form of artistic expression and the state must give a little bit of leeway and that she should be let off with a warning. There are still others that take the view that a law has been infringed and there is good reason for having laws against vandalism and exceptions cannot be made (for fear of a descent into chaos.)

My view on this? As much as I believe that artistic expression needs to be spontaneous and not contrived and as much as I believe that there is value in the kind of expression that has an element of ‘here’s-me-spitting-in-the-face-of-authority-and-getting-away-with-it’ (the creative mind is inherently subversive), I also believe that there is role in society for rules regulating our behavior in the common space that we share. There is a role for laws proscribing conduct that may involve damage to or defacement of private and public property.

Let those that have an artistic impulse express themselves in a sometimes messy and socially (or even legally) unacceptable fashion and in the process let them be aware of the risks that they take. Equally, let the law take its course in providing for its important social function of maintaining public order. It could be a case of a band playing on a rooftop and attracting massive crowds that cause obstruction to traffic. The band takes the risk in the name of artistic expression. But, you can be sure that even in the freest societies, the authorities will try to shut down such activities that pose safety and public order problems.

It sounds almost schizophrenic for me to say this but I will. I cheer those that set the pace in society by pushing social and legal boundaries. I welcome their presence amongst us and sometimes quietly and self-flatteringly I like to believe that I have been such a person at certain stages of my life. I also believe in and support the need for order in society and I believe that such order is best secured by the enactment and enforcement of laws established to protect life, liberty and property. In the case of street art that involves damage to or defacement of property, the artist is to me a vandal on a pedestal. I’d brand her a vandal but I’d place her on a pedestal.

Having made these observations, I must express my misgivings about the Vandalism Act. The Act is a reflection of the lack of coherence in our sentencing policy. Corporal punishment is something that we inherited from the colonial days and it used to be reserved for serious crimes (e.g. attempted murder, culpable homicide or voluntarily causing grievous hurt).
When the Vandalism Act was passed in 1966, Parliamentarians were fully aware that corporal punishment was unusual and exceptional for a property offence. The following is from the footnotes to a paper entitled “Singapore’s Innovations to Due Process” presented by Prof Michael Hor of NUS:

The other famous example is the Vandalism Act (Cap 341) enacted in 1966 to deal with politically motivated graffiti in support of the communist insurgency. It was used a few years ago on the American teenager Michael Fay (Fay v PP [1994] 2 Singapore Law Reports 154) who was found guilty of spray-painting some motorcars, although he could hardly have been part of the insurgency which had died out a few years before that). This is an example of a “drift net law” gone wrong.

What Michael Hor was referring to in that article was the rationale for the punishment of caning in the Vandalism Act. The punishment was not motivated by a need to stop vandals but to prevent political graffiti from being widely displayed in Singapore. LKY explained the need for such punishment against political slogan writers because these people would simply glorify themselves as martyrs if they are fined or imprisoned. Caning, on the other hand, would presumably ‘rehabilitate’ the martyrdom out of them.

"... 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. ... [A] fine will not deter the type of criminal we are facing here. He is quite prepared to go to goal, 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." - Lee Kuan Yew, 1966

Essentially, the punishment of caning is extraordinary and the intention of the government in introducing this punishment in 1966 was to deter political slogans. LKY himself acknowledged during the Parliamentary debate that the punishment was a departure from the norm. My position is that we need a rational and coherent sentencing policy today in relation to the variety of criminal offences that exist in Singapore. The law must speak with a single coherent voice and not present itself as a muddled, inconsistent and arbitrary creature.

And on a light-hearted note, here is demon-cratic's take on the sticker lady saga:


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