CULTURAL ISSUES AND CRIME
| Citation | (2000) 12 SAcLJ 1 |
| Published date | 01 December 2000 |
| Date | 01 December 2000 |
This paper* examines the criminal justice system of Singapore and its criminal laws to determine their suitability to a society that from its founding had been multi-racial, multi-religious, and multicultural in character. It is not a sociological study of the incidence and causes of crime in Singapore or of their linkage to racial groups.1
2 In this paper, the word “culture”2 is used to refer generally to the way of life of any ethnic community, as determined or influenced by its language, religious beliefs and practices, customs or even its food. In the words of a Japanese scholar, Dr Heita Kawakatsu, culture is:
“the means by which people conduct their lives, or, in other words, manner of living. Most visible and what set us apart is the type of food we eat, the clothing that we prefer to wear, and the types of
dwellings we live in. On the next plane — and less visible — are our religious beliefs and values. Really our differences are one of degree. Because of this no single culture can be regarded as superior or inferior to another.”3
3 Race, language and religion have been and will continue to be the great divides in societies and nations throughout human history. ‘Tribal’ differences or conflicts are likely to be with us till the end of time unless the human race is able to attain a higher order of existence which is able to assimilate and homogenise all such differences. In recent times, a contributory factor to the formation of political entities (or nations) that have been burdened with these ethnic divides was the expansion of Western imperialism from the 18th century onwards. ‘Native’ territories were carved up by the more powerful Western powers to create settlements, protectorates and vassal states with geographical boundaries that separated whole native peoples or tribes that were culturally homogeneous. The British imperial power built an empire “where the sun never sets”. The expansion of British imperial power was initially based, as were other Western imperial powers, on trade, and later on the economic exploitation of these territories. Trade and economic development led to huge immigration flows from poor and over-populated countries such as China and India, part voluntary, part indentured and part shanghaied, to take advantage of the economic opportunities provided by such developments.4
4 When Thomas Raffles established a ‘factory’ in Singapore in 1819 on behalf of the East India Company (“EIC”) for the purpose of increasing trade for the EIC, there was a small settlement of about 150 people along the banks of the Singapore river and some 30 Chinese engaged in pepper and gambier planting. The trading post took off immediately and began to attract foreign traders and workers from the poor countries in the region, especially the Chinese from Penang, Malacca and China. By 1824 when Singapore was ceded to the EIC in perpetuity, the population was
10,683 (Malays 60%, Chinese 31%, Indians 7% and Others 2%). It was by then a multi-ethnic, multi-religious and a multicultural society.5 By 1867, the Chinese community had reached 65% of the population, numbering 55,000. The Chinese and the Indians were not immigrants but sojourners, with an eye to going back to their homelands after they have made some money. But, eventually by force of circumstances, they settled down with their families and transformed Singapore into a permanent multi-racial society.6
5 Between 1819 and 1826, English law applied to the English traders living in the factory and the native laws applied to the native inhabitants outside the factory.7 English law (statutes and common law) as it stood then was formally received as the law of Singapore on 27 November 1826 by virtue of the Second Charter of Justice but its application was subject to local circumstances. The courts have held that English “statutes relating to matters and exigencies peculiar to the local conditions of England, and which are not adapted to circumstances of [Singapore], do not become part of Singapore law, although the general law of England may be introduced into it.”8
6 Between 1826 and 1872, English criminal law9 applied to all the inhabitants of Singapore as supplemented by local legislation. Criminal
procedure was based on Indian legislation which itself was partly based on English criminal practice. These laws reflected the culture of the colonising power and not the cultures of the colonised. The role of the judges in modifying these laws to accommodate their cultural practices was limited, even if they were minded to do so. There is no recorded decision of any criminal case in which the law had been modified to suit local circumstances. Indeed, in order to maintain public order, the legislature enacted many laws to contain the excesses of cultural practices.10
7 The Penal Code was enacted in 1872. It was based on the Indian Penal Code which represented Macaulay’s to clarify and codify the principles of English criminal law.11 The principles of English criminal law were based largely on Judaeo-Christian values and principles of morality. The Indian Penal Code contained a few modifications to English criminal law to suit the circumstances of India.12 The Penal Code was a
local (Singapore) statute and not an English statute, the condition of the Second Charter of Justice that English law must be applied to suit local circumstances also ceased to apply. Thus, sati (the rite of widow-burning among Hindus, especially the Rajputs) was made illegal.13 So were bigamous marriages,14 including polyandry.15 However, some colonial judges must have been sensitive to the cultural traditions and practices of the people who were then living in Singapore. In one reported case, the court appeared to have gone out of its way to make it difficult for the prosecution to prove a charge of bigamy against a Chinese defendant.16
8 The necessity of imposing English criminal law to all and sundry was not at all surprising. Britain was the imperial power. It had founded a new colony to promote trade, for which it had to provide a legal system to enforce the law. Singapore was then virgin territory. The population was made up largely of recent immigrants, mostly uneducated or illiterate and poor, who spoke different languages, practised different religions and observed different cultural norms. English criminal law and justice with strict moral principles and values was superior and also, in many ways, a more enlightened law than what the local inhabitants had been used to in their countries of origin. For example, s 377 of the Penal Code (Cap. 224) makes it an offence for any person to have carnal intercourse against the order of nature with any man, woman or animal. This was also the law in England in 1872.17
9 Between 1873 and 1888, several statutes on criminal procedure were enacted to update the existing criminal procedure to be consistent with the Penal Code which abolished the distinction between felonies and misdemeanours. The current Criminal Procedure Code (Cap. 68) was enacted in 1900. In 1893, the English law of evidence was consolidated as the Evidence Ordinance (Ord. 3 of 1893). Section 2(2) of that Ordinance provided that all rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of the Ordinance, were repealed.
10 These three statutes on criminal justice remain in force in Singapore in substantially the same form as when they were introduced. Their fundamental moral standards and values remain valid.18 New offences and new procedures to deal with social and other problems in connection with multiculturalism have been introduced since independence. But generally it is true to say that in the case of Singapore, the policy considerations of the imperial power have long ago laid the foundations of its criminal laws and criminal justice system. The cultural traditions and practices of the various immigrant communities were not recognised with any degree of indulgence by the imperial power when they came into conflict with the underlying moral and social imperatives of the common law, especially in the area of criminal law.
11 This paper examines three main issues on the relationship between multiculturalism and the criminal law in Singapore today:
(a) the continuing imperative that there be racial and religious harmony19 to enable the various communities to forge a common national identity and share a common destiny, whilst at the same time respecting the cultural norms of each community;
(b) whether the existing criminal laws are adequate to support multiculturalism and protect minority groups or cultures from the harmful actions of another, usually the dominant cultural group; and
(c) whether the existing criminal laws and procedures are adequate to take into account cultural factors in determining criminal liability or imposing punishment on offenders.
12 The first issue highlights the nation-building problems of a small multi-racial nation state, with a small land area and no economic resources, trying to forge a national identity out of a diverse community of different racial groups, each having its own language and religion. Singapore became a sovereign and independent state in 1965 in circumstances that make it imperative for its different ethnic and religious groups to learn to live in peaceful co-existence if it were to survive and progress as a nation.20 Singapore as a state suffers from a degree of political and social vulnerability which larger states with substantial natural resources have difficulty in understanding.
13 The question also assumes the reality of a multi-racial and multi-cultural society in which...
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