K. Shanmugam’s remarks on acquittals in law could open a pandora’s box

August 27, 2008 by
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Written by Ng E-Jay
27 Aug 2008

Law Minister K. Shanmugam has reiterated a stand made previously by Attorney-General Walter Woon that “not guilty in law” does not mean “innocent”. In other words, a person may not be factually innocent even if the law acquits him.

My immediate comment is: What is the point of reiterating and repeating this? Isn’t it a matter of common sense that no judicial system in the world can ever perfect, that sometimes guilty persons go scot free and innocent ones can be unjustly convicted?

K. Shanmugam told Parliament on Monday: “It is entirely possible for a person to have committed acts which amount to a crime and yet, there may be no conviction. I emphasise this: No serious lawyer will question this possibility.” He also said that witnesses may have changed their evidence, or a technicality may have got in the way, and these could result in the prosecution being unable to convince the judge that the man had done the deed. (ST, “Govt defends A-G’s stand on acquittals”, 26 Aug).

All these comments to me seem superfluous and needless, and could encourage the public to unnecessarily speculate on cases after the courts have passed a verdict.

Appeal Court Judge V. K. Rajah had also weighed in on the issue earlier. He did not refer to what the Attorney-General said, but made it clear that such comments could undermine confidence in the courts’ verdicts and the criminal justice system, which is based on the doctrine of “innocent until proven guilty“.

I am in full agreement with Judge V. K. Rajah. Attorney-General Walter Woon’s and K. Shanmugam’s latest comments could open a pandora’s box in which the public is encouraged to openly doubt the verdicts passed by courts or even to regard the so-called “Court of Public Opinion” as being of equal legitimacy as the actual courts.

Such open speculation would indeed undermine confidence in the courts’ verdicts and the criminal justice system.

But Mr Shanmugam re-affirmed that the presumption of innocence as an “important and fundamental principle” which the Government is “absolutely committed to upholding”.

But if so, why is he convoluting the whole subject?

The “not guilty” does not mean “innocent” remark is unfair for those who are indeed factually innocent. It puts this group of people permanently on the defensive, as their associates could well take Mr Shanmugam’s remarks as a license to doubt their true innocence.

Mr Shanmugam said that the reverse also applies: where a person is factually innocent but legally guilty. “This happens where the accused wants to plead guilty to a lesser charge and end the case … because his interest is to walk away as quickly as possible,” he said.

But isn’t this a clear miscarriage of justice? Why is Mr Shanmugam apparently taking such a light-hearted view of this?

I am unsure as to the whole point of the Law Minister and the Attorney-General remarks. Perhaps they have in mind certain cases in which they felt the accused was guilty, but the judge has to acquit him due to lack of evidence or because of technicalities.

But even so, the Law Minister’s rehashing of the subject could open a pandora’s box in which the public is given free reign to speculate on cases already closed and openly challenge verdicts. That would wreck havoc on the lives of those who are factually innocent but had to endure a trial to clear their name. The trial for such people could well become permanent, lasting the remainder of their lives.

Comments

12 Comments on K. Shanmugam’s remarks on acquittals in law could open a pandora’s box

  1. sagarakun on Wed, 27th Aug 2008 9:57 am
  2. Hmmm isn’t the law supposed to primarly protect the innocent? By the looks of it, it seems like everyone is guilty until proven innocent. Eventhen the courts cannot truly prove that you are innocent.

  3. David on Wed, 27th Aug 2008 12:34 pm
  4. Look like the ISD of 1965 is going to revive by taking advantage of the kangaroo law is that if those look innocent may also guilty of crime. As who they going to use the law is no brainer.
    Look like Dr Chee will be the prime target for such kangaroo law.

  5. corrupted on Wed, 27th Aug 2008 1:21 pm
  6. Somebody raised a very interesting comparision….. Not corrupted by law may not actually be not corrupted….

    quote – pay me millions and uncorrupt me !!!!

  7. et u on Wed, 27th Aug 2008 9:53 pm
  8. The law minister talks a lot unnecessarily. I think the whole thing is just trying to save the AG’s face.

    […] stated by E-Jay in his post, it is true that there is no full proof legal system. There will be miscarriages of justice; and […]

  9. Change on Wed, 27th Aug 2008 10:52 pm
  10. What it simply means is that the state wants unobstructed power and unchallengeable rights. Guilty or innocent, with evidences or the lack of, anyone who passes through its corridors of powers are subjected to its exclusive interpretations, as well as prejudices, by the practicing elites . This also means they retain complete liberty to frame a story when the situation dictates. Potentially, the whole system can breed corruption or be corrupt, repressive and oppressive to victims, people and society.
    The unfolding revelation of judiciary malpractices near us is perhaps timely reminder of its corruptibility in which none can claim immunity.
    Justice, in short, is intrinsically compassionless ( without mercy) especially to its enemies. It is fundamentally vengeful and has no qualms baying for the blood of those found guilty and sometimes, for political reasons, even those without guilt. Because the law is lofty, services pricey , it has generally become inaccessible to the common man( especially the poor – pro bono is only cursory ). Those in the know will want to shun it at all costs or end up contributing to its bountiful account at the people’s expense. In other words, better to suffer wrong than to seek justice.

    The legal institution, also known as the ministry of death from a theological perspective, is not a place one would visit, be part of or even seek resolution. For the same miserable reasons, professionals of the trade are dressed in black to symbolize the sombre rites.

  11. Charles on Thu, 28th Aug 2008 8:11 am
  12. Singapore’s criminology system is a Darwinian hybrid system which inherits its archaic British common law, guided by the harsh principles of hobbesian asocial attitude and ‘Asian values’ towards individuals. It is geared towards preventative rather than meteing out justice which explains its high prevalence of plea bargainning, high incarceration rate, laws that presume ‘guilty until proven innocence’, detention without trial laws, and legalised entrapment practices. Interestingly, the juvenile courts are looking at redistributive justice towards minors given its increasing offences rate.

    As in other policy areas, PAP needs to be criticised by the Opposition and civil society in this aspect. This is unfortunately, an area, which is often under-examined, perhaps either a) due to the lack of expertise b) it’s sensitiveness c) an ineffectual law society.

  13. Y2K on Fri, 29th Aug 2008 1:19 pm
  14. I am not a lawyer, but I did invest alot of time reading through Judge V. K. Rajah judgement. I even discussed it with Missy Dotty to clarify a few points. I think, Judge Rajah has argued his case not only very convincingly, but he also has a firm grasp of where the law should begin and end along with who it should and should not serve.

    As for Mr Shanmugam and Mr Walter Woon. I still dont understand what they are trying to say. It could well be my lack of understanding, but I have tried very hard to understand and failed on every occasion. Maybe they should write down their opinions clearly quoting precedents, text and reason as in the case of Mr Rajah.

    I dont believe it serves the interest of any party both government and private sector, if the law is “ambigious” on such an important point concerning rights. It will not serve the interest of the business community very well, let alone the higher imperative of ensuring justice is seen to be done.

    Regards

    Y2K

  15. Loyola on Fri, 29th Aug 2008 7:26 pm
  16. Y2K,

    This is exactly why a Judiciary that is able to be forceful and credible is always required in any developed society.

    As far as I’ve seen, Justice Rajah’s information is couched in clarity with respect to precedence.

  17. Gabe Tan on Sat, 15th Nov 2008 6:12 pm
  18. Dangers of conflating public concerns with the principles of criminal trials: Repercussions on the factually innocent

    I am writing in response to the article, ‘Govt defends A-G’s stand on acquittals’ (26 August 2008) which was raised the contentious issue of whether acquittals in criminal trials necessarily represent a defendant’s ‘factual innocence’.

    From a public perspective, the delivery of justice would necessarily entail the conviction of the ‘factually guilty’ and the acquittal of the ‘factually innocent’. The notion that an individual may walk free from a conviction despite having committed acts which may amount to a crime, and even worse be compensated for the acquittal, is one that will undoubtedly evoke anger and sense of social injustice.

    Yet, as reasonable as public sentiments and expectations of the criminal justice system may seem, this is perhaps one that cannot and should not be conflated with what the law can and ought to deliver. At the most fundamental level, legal rules and procedures of criminal trials are in place to ensure that guilt of defendants are established through objective and rational assessment of the strength of evidence. Until then, he or she is to be presumed innocent in accordance with principles of due process.

    Such legal rules and technicalities are not merely an outgrowth of abstract, jurisprudential principles which serve little purpose other than to protect potentially guilty defendants. Rather, they are established in acknowledgement that innocent individuals may be wrongly convicted in a fallible criminal justice system. Just as acquittals of the guilty may inevitably occur, so will the wrongful conviction of the factually innocent due to an extensively list of well-known causes, to mention a few- wrongful eyewitness identifications; flawed forensic and expert evidence; coerced and forced confessions; malicious prosecutions; incompetent defence; and false allegations by prosecution witnesses. The reasons are inexhaustive.

    Without a crystal ball that can enlighten the courts as to the factual truth of each case, judges can only make a decision on whether the defendant is ‘guilty’ or ‘not guilty’ on the evidence available. Procedural safeguards and constitutional rights therefore exist not only to protect the accused, but to ensure the reliability of evidence and consequently, the safety of criminal convictions.

    It seems somewhat surprising that these questions relating to the factual guilt of those who have avoided convictions were raised by legally trained and judicially well-versed professionals such as the Attorney General and the Law Minister K. Shanmugam, and supported by prominent defence lawyer Mr. Subhas Anandan, whose belief in his clients’ guilt evidently did not detract him from assisting them in achieving their successful acquittals.

    At best, such opinions are evidentially unsubstantiated and speculative comments which cannot withstand legal scrutiny. Worst, they may engender damaging repercussions on acquitted individuals whom may potentially be innocent by conflating them with guilty individuals who ‘got off on technicalities’. Such debates can fuel whispering campaigns of their guilt, cause further harm to their reputation which may have already been irreversibly damaged from the wrongful criminal prosecution and conviction.

    Indeed, in the case of former teacher Mr. William Ding Chun Fong who was acquitted in April 2008 following a successful appeal against his conviction for molesting two male students, the magnitude of the harms that both he and his family have sustained is one that is perhaps not difficult to imagine. Mr. Tan Hee Joek, director of Drew & Napier rightly pointed out the high legal costs often incurred in seeking to overturn a wrongful conviction. But perhaps of more significance is the psychological and emotional trauma consequent of the wrongful arrest, conviction and imprisonment; the lingering social stigma associated with a criminal conviction (particularly if it is of a sexual nature); and in the case of Mr. William Ding, the possibly permanent devastation to what may otherwise, have been a meaningful and successful career as a teacher.

    It is regrettable that successful acquittals in criminal courts can never fully repair the harm that has been done, nor truly restore the innocence of miscarriage of justice victims. Yet, such groundless speculations that potentially innocent victims of wrongful convictions may in fact be guilty can only unjustifiably worsen the traumatic ordeal and extensive harms experienced by them and their families.

    Gabe Tan (Miss)
    University of Bristol
    Innocence Network UK

    […] wrote an opinion piece here explaining why I thought such statements could open a can of worms, as they may encourage the […]

  19. Raymond on Fri, 13th Aug 2010 3:31 pm
  20. I am not a lawyer by profession, thus pardon me if I do not speak your jargon.

    May I add that victory in legal suit is largely dependent how big your pocket is. We should know how resource depleting the litigation process is. A clear blind spot is that you will not make the decision to sue someone if you do not have the resources do so. In worser circumstances, you will not even be able to defend yourself! So why even debate on the shortfall of the legal system?? The starting point isn’t even fair. To illustrate further, with more money, you will be able to employ the best lawyers, accountants (OA). etc. Know you might be thinking about legal aid: However, let’s be truthful and ask ourselves how good legal aid lawyers (apologies to the good legal aid lawyers) really are compared to the prominent lawyers the ones with the resources can employ?

    Well, what’s my point? If we want confidence in the legal system, we need lawyers that seek justice and not ones that clock hours. Know this is idealism I am talking about. Personally, I have had encounters where my relatives were obvious victims of a fraud case. With the wealth of the defendent and irresponsible legal advisers (3 and counting…), it left them with no alternative but believe that justice is for the wealthy but not for the average citizen.

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