Yawning Bread. 10 March 2009

Why arrested persons shouldn't have lawyers


    

 

 

That police work and the practice of law is never perfect and has continuously to be improved, is hardly news. In Singapore however, it should be, because the improvements that are needed are so fundamental. Why are things so backward here?

 

As you can see from the story on the right, the government is proposing to amend the Criminal Procedure Act, which sets outs the processes of arrest and court trials. The Association of Criminal Lawyers of Singapore (ACLS) has taken the view that the amendments are not good enough. That's to be expected since the government sought feedback and lawyers got together to give it. But what's striking is that the things that need fixing are ridiculously basic. Two are highlighted in the Straits Times story: the right of arrested persons to get a lawyer immediately, and the refusal by the prosecution to share evidence with the defence.

On the first point, the proposed amendments do not address this longstanding complaint by criminal lawyers at all. As the story points out, police in the UK, US and Australia tell arrested persons straight away that they have a right to call a lawyer. But not in Singapore. Here, even if you do have a lawyer, he cannot be present when you are interrogated by the police. This issue was reported in the press a while ago, and I remember reading that the government rejected this call by the ACLS on the grounds that having a lawyer present would "interfere" with police investigations. No further elaboration was given as to what exactly was meant by "interfere".

How come other jurisdictions can live with it and we cannot? Walling off police interrogation from legal counsel only increases the risk that investigating officers might abuse their powers. It would also encourage officers to focus on getting a confession than to look for forensic and other evidence -- because it is easier to harass and browbeat the accused in airconditioned comfort than to go search for clues. Making things too easy leads to poor quality work in other areas.

Of course, the question of fairness arises.

Do you know that in Singapore, when the police make you sign a statement based on what you have said during an interrogation, you are not even given a copy of it? So, when you are finally released on police bail and get a chance to find a lawyer, which could be days later, you have to depend on memory to tell him what you had said to the police.

Put yourself in that situation, alone and interrogated under stress for maybe hours. The police officer then types out a statement based on what he thinks he heard from you. You sign it after a quick read-through. Three days later you have to tell your lawyer everything that was in that statement with no notes to help you. Do you think the whole system is stacked against you from the first moment? Is this fairness?

Then, as you can see also from the Straits Times story, even if your lawyer asks the prosecution for copies of the evidence against you, including the statement that you made, they can refuse to provide it. As the Straits Times story reported,

Prosecutors are now only obliged to disclose the parts of the statement or statements on which they intend to rely in the case, but the ACLS said the statement should be produced in its entirety so information is not taken out of context.

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Why don't Singaporeans care about this, as seen from how such basic flaws in the system can exist for decades and no one has even spoken out (not even lawyers!) until recently? Are we, as a people too quick to condemn others? Are we unable to distinguish between being accused and being guilty, assuming that once someone is arrested, he must be the villain and do not deserve any rights?

Due process is critically important, for without it, we can never be confident that the conclusion we come to is as correct as we can make it. It's not that Singaporeans aren't aware of this principle. For example, in the science lab, teachers stress the importance of adhering to correct experimental procedure and to control for ambient conditions. In social research, we are alert to issues of sampling, interview methods, leading questions, and the need for controls. At our workplace, we'd get very upset if a colleague made unfounded accusations against us and we're not given a fair hearing by our bosses, or even told who made those accusations. All these are due process issues.

But when it comes to guilt and innocence, we quickly become a primitive tribe, eager to jump to conclusions, looking forward to a good hanging. If he has been arrested, he must be guilty, we think. What's the point of adhering to due process and according him fair rights?

What's just as bad: Singaporeans are not good at making the distinction between guilt and fair sentencing either, as comments to recent articles in Yawning Bread have demonstrated. We seem not to care whether the sentence is excessive.

Let me speculate: The difference between how we are discerning when it comes to inanimate facts, and how we don't care when it comes to police behaviour, can, in my opinion, be traced to the police being part of the government. Basically, Singaporeans have a rather primitive relationship with our government -- a kind of patron-client relationship.

In this kind of relationship, the idea of equality and democratic oversight is poorly developed. The ordinary people see the "lords of the manor" as a class above them, not quite subject to the same rules of behaviour as we expect for us commoners. In particular, the lords have two privileges, both of which are seen as part of the natural order: reaping wealth, and getting away with abuses. In return for those privileges, the lords are expected to provide security and shower the little people with gifts.

It's kind of like the role of the mafia godfather played by the late actor Marlon Brando. The immigrant Italian community looked to him for help and favours, even as his organisation ran rackets and occasionally resorted to violence, not only against other gangs, but equally, against anyone who was disloyal to the boss, a kind of summary justice.

Patron-client relationships can be seen in many less developed societies on all continents, but in Singapore's case, it is probably a direct cultural descendant of the Confucian idea of a benevolent sovereign. Traditional Malay society also has these features.

The occasional bullying or predatory act of the lord is tolerated as part of the social bargain. For example, he may have the right of first refusal to the virgins coming of age in any year. It is terrible for the selected girls, but the society as a whole turns a blind eye. The lord may severely abuse someone who crosses his path, but again, the society as a whole turns a blind eye. It's a small price to pay, in their calculation, for continuing to receive the beneficence of the lord.

I think it is a good question to ask whether this attitude towards power explains our lack of concern about police behaviour.

The rebuttal by the government -- that having a lawyer present would "interfere" with investigations -- is also interesting in another way. Here again is an example of the efficiency rubric at work. By this I mean the tendency to use efficiency to justify the sacrifice of civil rights. In this excuse is implied that if lawyers are allowed to be present, police work will be shackled, and the public will not enjoy the benefits of law and order. Oh no! That will not do. Throwing a few criminals (of course we are sure they guilty as charged, right?) into the dungeon is a small price to pay for continuing to sleep peacefully at night, courtesy of the big chief.

It also jives with the fear of chaos that has been instilled among Singaporeans. Recall how, everytime anyone calls for freedom of speech, the government quickly raises the spectre of racial and religious riots, or how everytime anyone speaks of a more level playing field for opposition politicians, a fear of economic cost is hoisted. Now, if we start talking about oversight of the police and more checks and balances, the implied threat is that of criminals running loose.

Sometimes, the saddest thing about Singapore is not that we have an authoritarian government, but that the people think it's the best thing that's ever happened to them.

© Yawning Bread 


 

3 March 2009
Straits Times

Hot issue: Early access to a lawyer
Code should state explicitly accused's right, lawyers say in feedback on draft
By K. C. Vijayan, Law Correspondent

Lawyers here think that the proposed changes to the Criminal Procedure Code do not go far enough.

The Law Society and the Association of Criminal Lawyers of Singapore (ACLS), in their feedback on the code's draft changes, agree, for instance, that the code should state categorically that a person accused of a crime is entitled to early access to a lawyer.

This issue was not even addressed in the draft changes to the Criminal Procedure Code, a document which provides the regulatory framework for criminal investigations, trials, appeals and other related matters here.

The two groups of lawyers also believe that the code should require the prosecution to be more open with the defence about the documents it is using to build its case.

The proposed changes to the code, which is being wholly reviewed for the first time in 40 years, were announced last December by the Law Ministry in a push to ensure that the country's criminal justice system remains relevant.

In the 10 weeks since then, feedback on the proposed changes has been collected. The feedback exercise closed last Saturday.

On the right of accused persons to legal counsel, the Law Society wants the right spelt out, with provisions marking the extent of that right.

It said that although the Singapore Constitution enshrined the right, its interpretation has been left to the courts.

Like the ACLS, the Law Society takes issue as to when the accused should be given access to a lawyer, and suggests that this be at the point of arrest. It said there were no 'sound reasons' for delaying an accused person's access to a lawyer, and that there was 'no actual empirical basis' to think that this would get in the way of investigations into a case.

'In every local case on this issue, the Courts have simply assumed this to be so on a purely theoretical basis,' the society argued in its submissions, which were put together by a committee chaired by Senior Counsel Sant Singh.

Countries like Australia, Britain and the United States all uphold the practice of telling an accused person that he has the right to a lawyer upon arrest and upon being charged with a crime.

Singapore 'has not kept abreast' of this, said the Law Society. Lawyers want accused persons to be told of their right to consult a lawyer upon arrest.

It proposes that accused persons be given up to two hours to contact their lawyer by telephone, or if after office hours, up to 10am the next day.

Also, if speedy access to the lawyer is not possible because evidence of a crime may be compromised or for other reasons, a delay can be allowed.

The ACLS suggests that at least, accused persons should be told of their rights to a lawyer and be seen by one within 48 hours of arrest.

On better disclosure of documents to defence counsel, the lawyers want, for instance, witness statements in district court cases to be shared with the defence, at least in the serious cases, as is done for High Court cases.

Prosecutors are now only obliged to disclose the parts of the statement or statements on which they intend to rely in the case, but the ACLS said the statement should be produced in its entirety so information is not taken out of context.

The Law Ministry received over 40 responses from the public and legal circles on the proposed changes. A Law Ministry spokesman said that the Government would consider all views received and incorporate the suggestions into the draft where appropriate.

 

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