Can the State chose not to cane a bank robber?

Firstly, let us understand some legal principals and why some people are upset with the Ministry of Home Affair’s assurance to Britain not to cane alleged bank robber.

a.) Courts hold the power to decide how to sentence (as limited by legislation). The executive has no power to decide on their behalf. This means that no Minister can decide whether to cane, to jail or to fine…and to what extent, except through legislation made in Parliament.

b.) However, the executive has prosecutorial discretion. This means, they can decide whether or not to charge you. Or if you deserve leniency, they can opt to charge you under a lesser crime.

Let’s take for example you have attempted suicide and you’re hauled away by the police. If they actually charge you under the Penal Code’s S.309 Attempt to Commit Suicide, it is either a year’s imprisonment or a fine. However, they can charge you with the lesser crime of causing public alarm through S.268 Public Nuisance or even chose not to charge you at all, but let you off with a stern warning.

This is called prosecutorial discretion. The people that actually charge you are not the police, but by prosecutors of the Attorney General Chambers.

The AGC has power to decide who to prosecute, when to prosecute, and how to prosecute. This is done at any time before judgment is given by a court. A prosecutor can decide to alter the charge or even drop charges completely.

Even when the court has handed down a sentence, the AGC can choose to appeal against an acquittal or appeal for a higher sentence.

This power is provided by Article 35(8) of our Constitution and is a good thing. Sometimes leniency has to be given and in a case like this, it is better to have the offender charged in Singapore than to allow him to go scot free.

With this system, the Executive is able to maintain order and allow for mercy to be shown without having to go through the courts. The moment it is in the courts, it is up to the judges to decide. When a sentence is passed, no one may interfere, not even the executive.

So when MHA assures the UK that the offender is not going to be caned, he is not deciding on the punishment. He is merely exercising executive discretion on what charge the offender may be prosecuted under. When someone commits a crime, it is uncommon that it is only one crime. It is usually several things at once.

There is no constitutional crisis. The powers of the judiciary and the executive remain separate.

Singapore is known as a strict, disciplinarian state. But principals such as leniency is well practiced here and more often than not, people are given a second chance to correct themselves.

About the author

Tay Leong Tan

Tay Leong Tan is a collective of 3 writers. Tay, Leong and Tan. (Who were you expecting?!) We are enthusiastic about labour issues, economics and current affairs in particular.

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