Roachgate – No Constitutional Crisis

Chinese Punishment, Whipping a Lawbreaker (c 1900)

A c 1900 photograph of a Chinese criminal being beaten on the buttocks with a stick as a punishment. ([CC BY 2.0], via the Wikimedia Commons.)

Olivine Lin
Lecturer, Law Programmes
School of Law
Singapore University of Social Sciences

Many Singaporeans accessing the day’s news feeds on 20 February 2018 as they sipped their afternoon kopi probably found themselves simultaneously baffled and affronted by the news that “Singapore agrees to UK request to not cane suspect if found guilty”.[1]

Baffled – because the American government had tried unsuccessfully many years ago to pressurise Singapore into agreeing not to acquaint the rear end of one of its citizens, a young delinquent known as Michael Fay, with the blunt end of a rotan, but plucky little Singapore stood its ground firmly and went on to cane the vandal. Had Singapore and her vaunted principles and values changed so much in the intervening years?

Affronted – because it looked as though either preferential treatment had been dished out to what was a most undeserving individual, or the Singapore Government had overreached itself by dabbling in what must surely be the sole preserve of the Courts, that is, the decision whether or not to impose caning on David Roach were he to be convicted. Some netizens took to their keyboards to declare that ‘Roachgate’ was nothing less than a constitutional crisis in the making, which is surely an overstatement.

That said, the bafflement and consequent impassioned reaction of the general public is, in my view, excusable given the unfortunate wording of the news headline which, it must be said, could be easily misunderstood to mean that the Singapore Government intends to send a ‘directive’ to the Courts not to impose corporal punishment in line with an agreement it has reached privately with the British Government.

There are several reasons why such a reading of the headline (and the assumption that a backroom deal has indeed been made) are constitutionally (and factually!) unsupportable. In fact, the situation is more likely to be one where the Executive internally ‘manages’ the administration of punishment post-conviction, so that caning is not carried out in this case. More on that later. First, the reasons.

A choice between two evils

It is common knowledge that David Roach made good his escape to Thailand, and that he subsequently was convicted in June 2017 for an offence of failing to declare the S$30,450 which he brought into that country, a substantial proportion of which most likely represented his takings from the Standard Chartered Bank branch he had robbed in July 2016. Upon completion of his jail term in January 2017, Roach was deported by the Thai authorities to his home country of Canada – but was held en route by authorities in London, owing to an extradition request which was made by Singapore.

The United Kingdom is a signatory to the United Nations Convention against Torture (“the Convention”),[2] which forbids extradition to countries where judicial caning is practised, since the latter falls within the Convention’s definition of ‘torture’. In keeping with its obligations under international law, the UK had no choice but to insist on an undertaking being provided by Singapore that Roach would not be caned were he to be found guilty.

In other words, the only way in which Singapore would be able to ensure that Roach is returned here to face the music for his actions is to agree to spare him a date with the rotan. Absent such an agreement, Roach would merrily make his way back to Canada, thereby escaping conviction in Singapore – effectively getting away with robbery.

This alone makes Roach’s situation vastly different from that of Michael Fay. The latter was arrested in Singapore, and there was never any need to seek his extradition from a foreign country. From start to finish, Michael Fay was always in Singapore’s hands. The same cannot be said of Roach. Had Singapore acquiesced to the considerable pressure from the US government not to carry out the sentence of caning on Michael Fay, such acquiescence would reasonably have been viewed as craven or weak on the part of the Government, and citizens would have been justified in feeling that a measure of Singapore’s sovereignty had been ceded, or that justice had been compromised. With Roach, however, Singapore was faced with choosing between two evils: should he face some (not all) of the music, or be let off the hook completely?

I very much doubt many people in their right mind would plump for the second option.

Clarifying the separation of powers principle

The decision whether or not to charge a suspect under a Penal Code[3] provision that carries a caning punishment is purely a matter of prosecutorial discretion. This is a matter for the Executive, which is one of the three arms of State that, under the separation of powers doctrine, must operate in its own sphere without interference from either of the other arms of State, that is, the Judiciary and Legislature.

From the facts, it would seem that prosecutorial discretion has already been exercised to prefer charges on one count of robbery and one count of money laundering, both of which offences carry a maximum jail term of ten years; the former of which “shall also be punished with caning with not less than six strokes” (since the crime was committed after 7 am and before 7 pm).

Once an accused person is brought before the court (the Judiciary) on charges preferred by the Prosecution (the Executive), the matter passes out of the hands of the Executive into the hands of the Judiciary, which alone is competent to decide the appropriate sentence, which in this case will certainly include caning.

The District Court case of Salwant Singh s/o Amer Singh[4] provides a classic illustration of this. In the case, the Singapore Government had entered into an international agreement with India, under which the Indian Government had agreed to extradite Salwant Singh to Singapore to face charges of credit fraud. This agreement was based on a promise by the Singapore Government that Singh’s potential maximum sentence would only be seven years’ imprisonment. However, the Penal Code provides for imprisonment of up to 20 years for the offence contemplated.

Singh’s lawyer argued that the Singapore Goverment’s promise meant that the District Judge was limited to sentencing the defendant to a jail term of no more than seven years. The District Judge disagreed for three reasons:

  • The idea that a foreign state could fetter the discretion of a judge exercising sentencing power “offends a fundamental tenet of international law, that of state sovereignty”.
  • If the governments of Singapore and India had agreed that a maximum sentence of seven years would be sought or imposed on Singh, such an agreement was not enforceable in the courts since Article 93 of the Constitution,[5] which vests judicial power in the courts, implies that sentencing matters must be dealt with only by the courts and not, for example, by the Executive branch of government.
  • The courts’ sentencing powers are limited only by the laws of Singapore, and when they exercise such powers the “first and foremost consideration remains the public interest“.

Unfortunately, the wording of the international agreement in the Salwant Singh case was not set out in the judgment. In contrast, in the Roach case the media has reported that the agreement between the Singapore and British Governments is not that the Singapore Government will ensure that the court does not sentence Roach to caning, but rather “that a sentence of corporal punishment will not be carried out if suspected bank robber David Roach is found guilty”.

Once judicial power to hand down a conviction and impose corporal punishment has been exercised, the matter of meting out the punishment passes out of the hands of the Judiciary back into the hands of the Executive. From there, it becomes a matter for the Executive to decide whether or not to cane Roach. There is scope in the law for convicted persons to escape caning under certain circumstances, for example, by virtue of remission of caning by presidential discretion,[6] such as was done in the case of Michael Fay.

In conclusion, there really is no room for complaint that Singapore’s laws have been maniuplated, or due process compromised. Neither has there been a watering down or infringement of the separation of powers doctrine such as would constitute a constitutional crisis in this case.


Olivine Lim has research interests in, among other things, criminal law, criminology, and constitutional law.

Notes

1    “StanChart Robbery: Singapore Agrees to UK Request to Not Cane Suspect if Found Guilty“, Channel NewsAsia (20 February 2018; archived here).
2    United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984; entered into force 26 June 1987).
3    Penal Code (Chapter 224, 2008 Revised Edition).
4    Public Prosecutor v Salwant Singh s/o Amer Singh [2003] SGDC 146 at paragraphs 33‒37, District Court (Singapore). For commentary, see Thio Li-ann, “Administrative and Constitutional Law” (2003) 4 Singapore Academy of Law Annual Review of Singapore Cases 1 at 7‒8, paragraphs 1.18‒1.22.
5    Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint). Article 93 states: “The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force.”
6    Constitution, Article 22P(3): “The President, as occasion shall arise, may, on the advice of the Cabinet […] remit the whole or any part of such sentence or of any penalty or forfeiture imposed by law.” When exercising this power, the President must follow the advice issued by the Cabinet and does not act in her own discretion.

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