The Government’s seriously troubling Agreement on the Stanchart Bank Robber is actually a Constitutional Crisis.
David Roach is a 28-year-old Canadian who allegedly stole $30,000 from a Standard Chartered Branch in Holland Village in July 2016. Roach subsequently managed to flee the country, ending up in the UK where he is currently facing extradition charges. Today, a Ministry of Home Affairs press release stated that The Government has agreed that a sentence of corporal punishment will not be carried out if suspected bank robber David Roach is found guilty by a Singapore court.
For the record, I am against corporal punishment. I am also uninterested in the politics behind the government’s agreement with the UK, and neither do I seek to debate the merits of corporal punishment.
This article is instead about the implications of this government “agreement” on the state of law and the constitutional arrangement in Singapore.
I argue that this agreement is extremely problematic, as it is essentially a masked constitutional crisis which concerns the status and powers of the executive, judiciary and legislature.
In the first instance, it requires a violation of the rule of law to operate, in the second, it necessarily violates parliamentary sovereignty to operate and thirdly, it constitutes a form of executive interference.
A Violation of the Rule of Law: Different legal standards for different people
“All persons are equal before the law and entitled to the equal protection of the law.”
Firstly, the agreement seems to require the violation of the rule of law and a constitutional breach in order to take effect. If the government is promising legal immunity for Roach in relation to corporal punishment and assuming Roach is found liable for caning, it would be entirely incongruous with the rule of law to treat him differently in relation to any other individual who breaks the law. It is a tenet of the rule of law to require everyone, including the government, to obey the law which is reflected in Article 12 of Singapore’s constitution which states:
“All persons are equal before the law and entitled to the equal protection of the law.”
It does not state “All persons are equal before the law except if the Ministry of Home Affairs/ “Government” stipulates otherwise”.
It is also warped logic to suggest that granting Roach immunity to some penal aspect of settled law is a small price to pay for the chance to bring him to justice. That would necessarily reward him for the act of successfully absconding the country which can hardly be said to serve the interests of justice.
Ultimately, what the operation of the government’s agreement does, if given effect, is to confirm that the law in Singapore does not necessarily treat everyone equally.
A disregard for Parliamentary Sovereignty
the agreement is not law and the courts need only be concerned with the law.
Secondly, even if one is sceptical about the supremacy of our constitution, under the doctrine of Parliamentary Sovereignty which is not alien to Singapore, our courts are not obliged to give effect to a mere agreement between a ministry (or all the ministries) and a foreign country. The reason is simply because the agreement is not law and the courts need only be concerned with the law.
The underlying explanation is that only Parliament can make law. While it is certainly the prerogative of the executive to negotiate pacts and treaties with a foreign country, such agreements impose no legal obligations whatsoever unless given effect by Parliament because Parliament is the supreme law-making body.
As of today, Parliament has not passed any law or declaration which confirms the executive decision by the government on Roach. Consequently, the agreement is not law and so the courts ought not be concerned with the “agreement” because it is not properly, “law”.
The alternative would be for the court to give effect to something which is not law. When that happens, the notion of “law” becomes confused and it often degenerates into a situation where “might makes right” where the first casualty is the rule of law. It is instead replaced by the “rule of the powerful”.
Furthermore, s392 of the Penal Code states:
392. Whoever commits robbery shall be punished with imprisonment for a term of not less than 2 years and not more than 10 years and shall also be punished with caning with not less than 6 strokes; and if the robbery is committed after 7 p.m. and before 7 a.m. the offender shall be punished with imprisonment for a term of not less than 3 years and not more than 14 years and shall also be punished with caning with not less than 12 strokes.
What is rather egregious about the government’s agreement is that it directly and categorically contradicts the statutory language of s392 in particular “shall also be punished with caning with not less than 6 strokes”.
Save for the constitution, statutory law is the highest form of law in the land, and the government’s agreement cannot possibly overturn what is stated in the statute. Hence, if the court chooses to give effect to the agreement over the statute, it will necessarily be violating the principle of Parliamentary Sovereignty.
The only legal way in which the government can give effect to its promise is to acquire a presidential pardon in relation to Roach’s sentence, if he is found guilty. This is however predicated upon a court first delivering an impartial verdict which seems, as mandated by the statute to include “not less than 6 strokes” of caning.
The pernicious nature of executive interference
Thirdly, it would quite clearly be executive interference for the executive arm of government to tell the courts what the sentence should or should not be. In a system of a separation of powers, this would entail the executive exceeding its powers.
The implications of treating the agreement as if it were binding law are obvious and severe. If what a minister or ministry declares may be treated as binding law, then, if the Ministry were to find a certain person guilty of a certain crime and detain him without trial, that would be law; perhaps bad law, but law nonetheless. There would be no need for recourse to the courts; there would no longer be a check on executive power which are and were the hallmarks of many corrupt and unsustainable regimes.
So we arrive at two possible conclusions.
Number one: that the view that the “Agreement” is merely of a political, not legal nature, and decline to give effect to it, this would be in accordance with the rule of law.
Number two: that we accept that it is possible to give legal effect to something which is not supposed to have legal effect. Doing so would be to effectively declare that the executive has the power to make law; that the word of a ministry can be law. That would certainly be one way to start the year of the dog.
What the court eventually chooses, only time will tell. To be fair, the ball was never in the court in relation to the negotiation of the government’s agreement and they can only pick up the legal pieces as best as they know how.
It is also ironic that not too long ago, the government had asked MPs to cease and desist from writing letters to the courts on behalf of constituents. The resemblance of MP letters to this ‘agreement’ is uncanny. This is because this “agreement” is analogous to a letter from all the “government” ministers, (ostensibly since the “government has agreed”), to the courts. It seems odd for a government to preach about the rule of law when it refuses grasp the essence of judicial independence and the rule of law. Perhaps the problem is not one of knowledge but one of attitude.
The real problem is the attitude that the executive government has adopted with regard to its views on the limits of its own power. With a vast array of highly qualified legal advisors, the executive government should be very cognizant of the legal issues associated with the agreement raised by this article. The separation of powers and the rule of law is so central and basic to the notion of public law any first-year law student should have identified the potential legal problems with the government’s agreement on Roach. It is quite inconceivable that no one working in the “Government” pointed this out to the powers that be.
If the attitude of the government is that its powers of prerogative can and should directly influence the law, then it is not surprising that we have seen Members of Parliament writing to the court on behalf of constituents or enhanced detention without trial measures.
This is ultimately the cumulation of a very cynical view on the law.
There is no doubt this agreement will not cause the sky to fall no matter how repugnant its legal basis. It must however, be remembered that as true as it is that Rome was not built overnight, it was not destroyed overnight either by the long-term failure of its traditional institutions and decay of its ethos.
Written by Daniel Huang
Have something to say? Share your comments on our Facebook page
If you like this article, ‘Like’ Consensus SG’s Facebook Page as well!
Photo credit: Straits Times