ILLEGAL IMMIGRATION: PRINCIPLE AND PRAGMATISM IN THE CRIMINAL LAW
| Published date | 01 December 2002 |
| Author | MICHAEL HOR |
| Date | 01 December 2002 |
In recent years, few offences have taken up as much government time as the prohibition against the employment and harbouring of illegal immigrants under the Immigration Act. Parliament has amended the legislation no less than 6 times since 1984, and the cases keep coming up to the High Court on appeal. All quarters are anxious to deal with the situation, but in our zeal to do so, the fundamental principles of criminal liability should not be tampered with without a clear and convincing justification for doing so. This article examines some of the changes to the normal principles of criminal liability occasioned by this “war” against illegal immigration to see if such a justification exists.
1 Singapore is a victim of its own phenomenal economic success. It has become a magnet for foreign workers, licit and illicit, hoping to find jobs and make a living. Analysts call the availability of better-paying jobs in Singapore the “pull factor”. They also talk of the main “push factor”— the relative lack of economic opportunities in the region surrounding Singapore.1 Singapore is, of course, not the only country in the world to have had to face the problem of illicit foreign workers. In other countries, however, it is not always viewed with the degree of urgency and concern by the government that it is in Singapore.2 Some reasons have been
advanced for this: the small geographical size of Singapore, the fact that people from many neighbouring Asian countries are physically indistinguishable from Singaporeans, and the very reactive way in which the government of Singapore normally behaves.3 There are many facets to the issue of illicit foreign workers,4 but the burden of this article is to examine the way in which the criminal law has been used by the government in an attempt to counteract the “push” and “pull” factors of illegal immigration.
2 It would surprise no one that the problem of illicit foreign workers emerged alongside the advent of Singapore as an economic powerhouse. The existing legislation was amended in 1984 to facilitate the successful prosecution of (those believed to be) immigration offenders — and this process was to be repeated many times in years that followed. The emerging pattern of amending legislation is this: it starts with a series of unsuccessful prosecutions, and the law is quickly amended to “plug the loophole”. Pragmatic in conception, these amendments naturally raise concerns over matters of principle — has the law gone overboard in its zeal to deal with the problem of illicit foreign workers? The same concerns arise over the manner in which our courts have interpreted and applied the law. The pragmatic provenance of many recent decisions leads the observer to question whether the values traditionally inherent in the criminal law have been justifiably sacrificed. On the other hand, it would be wrong to think that legislative and judicial response has been completely insensitive to considerations of fairness and reasonableness — there are signs that both arms of government are willing to go only so far, but no further, in its “war” against illegal immigration. Also, the legislature has been, to an extent, discriminate in its efforts to ease the job of the prosecution — small steps are made, and then only if they appear not to have succeeded in producing the desired effect, larger steps are countenanced.
3 There is no doubt that the series of amendments introduced into illegal immigration law in recent years involve a sacrifice of principle. Mens rea and actus reus requirements have been progressively relaxed, evidentiary hurdles normally lying in the path of a conviction have been largely circumvented, and judicial discretion in sentencing has been significantly curtailed by mandatory penalties. The question is whether the moral cost of these measures is outweighed by the likely gains in dealing with the problem of illegal immigration. The government of Singapore has never held particular moral principles to be immutable — but the moral cost must be counted and justified by sufficient tangible benefits in law enforcement.5
4 The legislative architecture is not straightforward — there are two primary pieces of legislation6 containing a number of discrete immigration offences.7 The focus of litigation has however been on two particular offences — that of employing in the context of the Immigration Act,8 and that of harbouring9 an illegal immigrant. This will also be the primary material on which this discussion draws.
5 The primary offences are simply phrased — any person who either “harbours” or “employs” an illegal immigrant shall be guilty of an offence.10
Apparently, no express mens rea requirements appeared — so at the very least, it was unclear whether and what form of mens rea would have been read into the offence.11 However in 1984, a presumption, section 57(7),12 was introduced:
“[W]here … it is proved that the defendant has given shelter to any person who has remained in Singapore unlawfully for a period exceeding 90 days … it shall be presumed, until the contrary is proved, that the defendant has harboured him knowing him to be [an illegal immigrant] …” [emphasis mine]
6 This provision would, of course, make no sense unless the mens rea requirement is knowledge that the person given shelter to is an illegal immigrant. Unfortunately, the late FA Chua J, otherwise a judge with a solid reputation for sound decisions, did not realise this when he wrote his judgment in PP v Vadivelu, saying:13
“Even if the [defendant] proves to the satisfaction of the court that he in fact does not know that [the lodgers] were overstayers, he is still not entitled to be acquitted unless he proves on a balance of probabilities that he could not have reasonably known they were overstayers.”
7 This, essentially, pegs the mens rea at negligence. This result is plainly wrong as a matter of statutory interpretation14 for what reason could there be to presume knowledge and to allow the defendant to rebut
it, if negligence is the touchstone? What drove the court to arrive at this conclusion? It was obviously concerned that the purpose of the legislation would be defeated if it was “enough for the [defendant] merely to deny knowledge”.15 The court need not have feared that — even if the mens rea was knowledge, mere denial of knowledge cannot, in most cases, gain an acquittal. The court must, where the presumption operates, believe the denial on a balance of probability; and where the presumption does not operate, hold that the denial raises to the level of reasonable doubt. Mere denials are never enough. In another part of the judgment, the court felt that a mens rea no higher than negligence was necessary to achieve sufficient enforcement and deterrence — the purpose of creating the offences in the first place.16 As for enforcement, it is ironic that, on the facts of the case, it was “clear that the [defendant] in fact well knew that the [lodgers] were overstayers”17 the mere denial of knowledge was simply disbelieved by the court, and a conviction would have been warranted even if the required mens rea was knowledge. Deterrence is not so easy to nail down — we need to ask whether there will be a significant class of would-be offenders who would persist in employing or harbouring illegal immigrants, trading on the belief that they can succeed in persuading the court that they did not know. I suggest that the difference between knowledge and negligence is hard enough for the judiciary to handle (and this will soon be demonstrated) — it is far-fetched to think that a significant number of potential offenders would alter their behaviour on the basis of that distinction. Perhaps the strongest argument for liability based on negligence is that employers and harbourers will be forced to be more diligent in ensuring that the people they deal with are not illegal immigrants. The strength wanes once we realise that considerable incentives already exist, even if the legal standard is knowledge — the defendant must still prove that he or she did not know, and the best, and often only, way of doing this is to show that reasonable steps were taken to check immigration status.18
8 The real fear is that the watering-down of mens rea from knowledge to negligence buys us little, if anything, in terms of law enforcement gains or deterrent effects. On the other side of the balance sheet, what is at stake is more than simply a deviation from legal principle — to put it starkly, we run the risk of confusing the merely foolish with the really evil. We simply do not think that the careless should also be criminal, or at least criminal
in the same way as the knowing actor.19 There is a strong indication that the Legislature is similarly persuaded. In a speech introducing the major amendments of 1989, (then) Senior Minister of State Lee Boon Yang stated that the root of the illegal immigration problem was “unscrupulous employers” who hire illegal workers, and that amendments to the Immigration Act were necessary because the government “has found it extremely difficult to secure convictions against unscrupulous employers”.20 Seen in this light, the real concern of the government is not really the negligent or careless, but those who employ or harbour with full knowledge (the “unscrupulous”), yet who pretend to be ignorant. But we need to know who the unscrupulous are, and implicit in this strategy is that someone, presumably the prosecutor, will make the decision to charge based on an assessment of whether the employer or harbourer had the guilty knowledge. This shifts the real decision-making from the court to the prosecutor, where judicial process and procedures (carefully designed to ensure fair and accurate decision-making) do not apply. Worse, with the passage of time, this “original intent” might well...
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