Exchange between Ms Hazel Poa and Minister of Home Affairs and Law, K Shanmugam
Ms Hazel Poa (Non-Constituency Member): Mr Speaker, we welcome the Government taking a tougher stand on sexual and hurt offences, and we also support the position that the offenders’ academic achievements should not be a factor in sentencing.
But I do have a clarification though, on the Sentencing Advisory Panel. While it says that this panel’s decisions will not be binding on the Court, it does create a situation, if the Courts were to deviate from the guidelines issued by this panel, it does create a situation that requires an explanation and therefore could create some pressure.
So, my question is, how does the Minister address the concern that this could be viewed as the Executive arm going into an area that has traditionally been under the Judiciary, and could this potentially compromise the independence of the Judiciary in the area of sentencing?
Mr K Shanmugam: I am having difficulty following the question. But perhaps can I ask Ms Poa, in principle, does she support the setting up of a Sentencing Advisory Panel? Then, we may be able to discuss further.
Ms Hazel Poa: I am afraid that I will not be able to answer that question because I need clarifications on how this sentencing panel will influence the Judiciary. My concern is actually about whether it would compromise their independence.
Mr K Shanmugam: I think Ms Poa understands what I am asking, but she does not want to answer.
Why should it compromise the independence of theJudiciary? First of all, I said more than half the members would be from the Judiciary. Second, the purpose is guidelines for the future without referring to any specific case. Just like here, we are discussing what the laws ought to be. Do we compromise the independence of the Judiciary by doing so? Do we compromise the independence of the Judiciary when we set out in the law, what the punishments ought to be? Maximum, minimum, sometimes we say mandatory? Those decisions are made, that is a framework in which the laws are applied.
The guidelines are guidelines which will flesh out a little bit more. And it is for the Courts and the judges in the individual cases to decide whether the guidelines need to be departed from or need to be applied. How do the giving of these guidelines, how do the guidelines that the Courts have internally, how does any of this compromise the independence of the Judiciary? On Ms Poa’s reckoning, the judiciaries in Australia and UK are no longer independent. May I have a view, please?
Ms Hazel Poa: The range of sentencing will be actually specified in the law. And within that, the Courts then mete out individual sentences for each case. But so how does this Sentencing Advisory Panel add on to what is in the law? How does it further restrict? I need further clarification on how it will work.
Mr K Shanmugam: I think I have tried to explain this a number of times. Let me make a further attempt. The law sets out maximum penalty – four years, five years – for such an offence. The law cannot, if you look at the legal provisions, go into much more detail than that. Sometimes, you can have illustrations, you can have some examples. And the Second Reading speech tries to flesh it out a bit more.
But a Sentencing Advisory Panel looking at different types of cases can set out, flesh out a little bit more, in non-binding language in cases that fall into this sort of factual matrix involving offenders above a certain age, involving this type of offence. Generally, we think the range of sentences, our view is that it should be between this and this. That is what the Sentencing Advisory Panel can do. And as I indicated, more than half of the Sentencing Advisory Panel will comprise judges anyway. It is bringing together a combined wisdom to set out a framework for how cases can be dealt with and it is aid for the individual judges faced with individual cases and applying the law and the guidelines to the specific facts to see whether the facts come within, should it fall within this range or there are facts which take it out.
As I said, on the reasoning of Ms Poa, a number of judiciaries around the world would not be considered independent.