PARLIAMENT will convene on Monday (Feb 29) to discuss the death of 14-year-old Benjamin Lim following an unrecorded and unaccompanied police interrogation. So far, the questions tabled appear to limit the discussion to minors.

Nonetheless, many of the challenges adult suspects face are the same ones minors face, and there is a significant degree of overlap. It would thus be useful to consider how Singaporeans lack the necessary legal protections against police misconduct.

Here is a summary of what happens to suspects arrested in Singapore.

In Singapore, a person who is arrested has the right to consult a lawyer within a reasonable time after his arrest. This means that the police may prevent him from consulting a lawyer for as long as they deem necessary or “reasonable”.

To put it another way, he may only consult his lawyer after the police agree that allowing him to do so will not hamper their investigation or prevent him from giving a confession. Even if the meeting with the lawyer were to take place in front of the prosecutor and the investigating officer, the police may deny that request on the grounds that it might result in the accused “shutting up”.

In fact, the police do not even have to inform him of his right to counsel. His ignorance of the law on this matter cannot subsequently be used in his defense.

Even after the suspect has engaged legal counsel, the police is still not required to let counsel be present during subsequent interviews. This means that he can be questioned without his lawyer. Any incriminating statements that he gives can then be used to convict him, regardless of whether or not the statements were obtained unfairly.

In fact, even if he chooses to remain silent on the grounds that he is waiting for his lawyer, his silence can be used against him. The judge may make what is called an adverse inference from his silence.

The purpose of this is, as outlined by a High Court judge in 1998, to “to compel the accused to outline the main aspects of his defence immediately upon being charged so as to guard against the accused raising defences at trial which are merely afterthoughts.” Indeed, the purpose is to compel.

In addition, the suspect has no right to contact third parties to discover and ask about into his right to counsel, and he has no right to contact family and friends to ask about the legal consequences of his arrest.

In other words, the right to counsel is severely limited and is subject to near-absolute police discretion, judges may draw adverse inferences from a suspect’s silence, and suspects have no right to contact friends or family until the police approve of it.

References

Ho, Hock Lai. The Privilege against Self-incrimination and Right of Access to a Lawyer: A Comparative Assessment. (2013). Singapore Academy of Law Journal.

Lee, Jack Tsen-Ta. Reforming the Right to Legal Counsel in Singapore. (2012). Research Collection School Of Law.

Tham, Lijing. Access to Counsel – A Multi-faceted Enquiry. (2014). Singapore Law Gazette.

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THE planned construction of the Cross Island Line (CRL) through the centre of the nation presents us with the difficult task of deciding between two unpalatable alternatives, the difficulty of which has tempted many to leave the decision up to the government. For instance, Mdm Ang Hong wrote in a letter to the Straits Times:

“The least we can do is let the Government carry out its works and weigh the various factors on what works best for Singaporeans. If, at the end of the day, the decision is to take away homes, then we will at least know the matter was studied carefully.”

Mdm Hong believes that the government is best suited to make a complex decision such as this, and she believes that any decision it makes will be a fair one. But this places too much faith in the state. Complex decisions require more input from citizens, not less. Making a controversial decision increases the risk of unfairness, it doesn’t decrease it. Greater transparency and accountability are therefore required.

In other words, it is precisely because the decision is so difficult to make, because the stakes are so high, and because the considerations involved are so complex, that the government has neither the authority nor the ability to make the decision on its own.

Under the first alignment option, the line will pass under the nature reserve. The main question is whether we should risk doing irreparable damage to an important nature reserve to save S$2 billion (US$1.4 billion) and reduce travel times by four minutes.

Under the second alignment option, the line will skirt around the nature reserve. The main question is whether we should uproot affected residents from their homes in order to avoid the risk of doing irreparable damage to the Central Catchment Nature Reserve (CCNR), and whether the S$2 billion in costs may in fact be a worthwhile investment that creates jobs and connects more residents.

The rules that govern the cost-benefit analysis

The release of phase one of the Environment Impact Assessment (EIA) report sparked a heated debate that has tended to oversimplify the options. In an earlier piece, I argued that overreliance on the concept of “trade-offs” creates three problems in the way we approach the issue. First, it imposes the zero-sum assumption that environmental conservation and economic progress are irreconcilable goals when they may in fact be mutually compatible.

Second, it encourages us to see conservationists as self-interested actors working to preserve the environment because they are nature lovers rather than see that their aim is to preserve the environment for all of us and our future generations.

Third, it imposes fixed, usually narrow, terms onto the debate, to the exclusion of other considerations (especially unquantifiable ones), such as the impact the second alignment option would have on home owners.

The problem, however, is that it is precisely the task of the LTA to think in terms of trade-offs — or in the language of bureaucracy, to perform a cost-benefit analysis. Indeed, this rationalised form of decision making (one that relies heavily on fixed rules to maximise efficiency) is highly favoured by our state because it enables it to manage an otherwise unruly and divisive society. But this comes at a cost. The outcomes are seldom socially equitable because the rules are not as impartial as they seem. Just take for instance how English-speaking Chinese have done disproportionately well in Singapore because the language of administration, a holdover from British rule, was English, and because the ruling party was composed primarily of English-educated Chinese.

Nonetheless, the solution is not to eschew a cost-benefit analysis entirely but to be transparent about how it is conducted so that the rules themselves which underpin the analysis may be questioned and modified. Thus, we may still approach the issue in terms of trade-offs (and continue using that trite term if we really must) as long as we avoid its pitfalls.

This will be a step forward but it is still not enough. The high stakes and the complexity of the considerations involved mean that in addition to being transparent, the government must also be democratic in its conduct of the cost-benefit analysis.

Because of the difficult nature of the CRL decision, the government cannot claim to have conducted an accurate cost-benefit analysis if it fails to genuinely engage the public. For instance, how will it measure the cost of losing our natural heritage when the value is a subjective one which can only be discerned by hearing the people’s views? How do we measure the importance of keeping a vital part of Singapore for future generations if we foreclose debate on these issues by saying we should just let the government decide?

It is often argued that since the technical details are incomprehensible to the layman, there is no point in explaining everything. And indeed this continues to be the approach taken by the LTA and mainstream news outlets. So far, most people only know of the 1000-page risk assessment as a one word summary: Moderate. But that begs the question. What does Moderate mean? How is that assessment arrived at? Is the report reliable? If we can’t answer these questions now, how will we make sense of the far more complex phase II of the EIA when it is completed at the end of the year?

If the whole point is to provide citizens with the information they need to participate meaningfully in the debate, then it is precisely because the issue involves great levels of technicality that extra effort must be made to explain these things to citizens. It is not enough to put the 1,000-page document online, spokespersons and the media must help to explain it, especially the assumptions that underpin the conclusion—the most significant of which is the assumption that mitigation measures and contingency plans will be adhered to and will work effectively.

Failure to do so not only hinders informed debate, it also compounds fears that the government is hiding something, or that it is not acting in the people’s interest. And if and when unexpected events occur, as they most likely will in a construction operation of this magnitude, much of the blame will be heaped on the government, even if it does not deserve it. The potential political cost of this should make any political party in a democratic country quiver. Judging by the forum letters to the mainstream news outlets so far, there has been more smoke than light, more speculation than facts.

There is an opportunity here to do things differently than before. Let the people make the decision, tap into their collective wisdom, and if things go south, at least the political damage to the government will be limited.

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THE Singaporean government has announced plans to introduce a new island-wide electronic road-pricing (ERP) system by 2020. This new system, dubbed ERP 2.0, will make use of satellite-based navigation technology to monitor vehicles and impose distance-based taxes.

Justifying the cost of S$556 million (US$395 million), the Land Transport Authority (LTA) said that the current gantry system “is almost two decades old and will become increasingly expensive and difficult to maintain.” It is also costly and occupies too much space.

The LTA believes that ERP 2.0 will be fairer for motorists because they will be charged according to the distance they travel on congested roads. ERP 2.0 will also grant LTA greater flexibility in managing congestion and changing driving behaviour by allowing it to vary taxes according to timing, distance and location.

However, questions remain about the need for an intrusive congestion pricing system that will cost a hefty S$556 million.

Terence Lee from Tech In Asia asks why so much money is being spent to develop a system that is based on existing technology, especially when Uber has succeeded in doing the same thing. Although I was unable to find exact figures of how much Uber spent developing its own tracking technology, we should note that Uber has an estimated worth of S$88 billion and must most likely have spent a sizeable sum on research (just as it continues to do).

In any case, the competing bid of $1.2 billion by ST Engineering suggests that the tender may have been a competitive one. In addition, the RAND Corporation estimates that a similar Vehicle Miles of Travel system in the United States would require a capital investment of between $1 billion and $20 billion.

A further question should be asked. Do the marginal gains of a more precise congestion pricing system outweigh the costs?

“Singaporeans are concerned that the new device may be used by the government to track their movements.”

Under the existing ERP system, charges are imposed on drivers when they drive past strategically located gantries, of which there are currently 80. These charges vary depending on time and location. Thus, the current ERP system already provides LTA a large degree of flexibility and precision, albeit not as much as satellite-tracking would provide.

The savings accrued from not having to maintain all 80 gantries, and possibly constructing new ones, must also be weighed against the cost of installing sophisticated devices in each vehicle. According to a Straits Times report, the new onboard unit will “alert drivers of priced roads well in advance (before turn-offs to alternatives), inform them of charges, and provide real-time traffic information.”

But smartphones are already capable of performing all these functions. Why are we giving a private company a monopoly to charge us for redundant features that create yet another distraction for drivers?

Certainly, the device will also offer satellite-tracking functionality, but almost all smartphones already have GPS functionality. The only added function provided by the onboard unit is a tamper-proof way to track vehicles, which has in turn raised privacy concerns.

Singaporeans are concerned that the new device may be used by the government to track their movements. Although we are still years away from the implementation of ERP 2.0, LTA should do more to allay fears or risk losing public support for the programme, which would hinder its effective implementation.

Some argue, rather speciously, that because Singaporeans have never opposed intrusions of their privacy by the government, they no longer have the right to insist on their right to privacy. Even if this is true, which it is not, we may argue: Although we do not attach as great an importance to privacy as more liberal nations like the United States do, we do still value the ability to live our lives without undue interference by the state. We also believe that as citizens, we are the nation and we therefore get to decide if we do not want to live under constant surveillance by those we put in charge of running our government.

Mandatory vehicular satellite-tracking, moreover, is quite different from the myriad ways in which we voluntarily give up our information to enjoy services like Uber or Google Maps, most of which adopt tightly crafted privacy policies that the present government has shown no affinity for. Add to that the possibility of data theft and we should be seriously concerned about the kinds of risks uninhibited tracking creates.

Many states in the United States have already tested similar Vehicle Miles of Travel taxation systems since 2005, and they have developed innovative ways to protect the privacy of individuals while still creating an efficient tracking system. Possibilities include separating the driver’s personal information from the data that is uploaded, imposing strict limits on access, and destroying the data after 30 days. There is no reason why Singapore should seek to create a world-class congestion pricing system only for it to fall short because of a lack of foresight in understanding the importance of privacy.

There are many other potential problems with ERP 2.0. These problems, however, are problems of implementation, not problems which are inherent to the system. Careful planning should therefore allow us to avoid these problems or at least significantly mitigate them.

“The government has provided little evidence that demonstrates that ERP 2.0 will work more effectively than the current one.”

First, prices which only take into account distance travelled will disproportionately hurt taxi drivers, truck drivers and bus operators. To avoid this, different rates should be levied for different road-users.

Second, the new system will benefit some while hurting others. Although it may be more economically efficient on the whole, motorists are unlikely to see things that way. It is more likely that those who benefit under the current ERP system will see the new system as unfair. There are no easy solutions here. The government must simply be more transparent and accountable so as to attenuate the sense of exploitation that Singaporeans increasingly feel.

Third, the salience of charges for road usage is lost when the monstrous gantries go. The economists Lew Yii Der and Leong Wai Yan point out in a paper that “if payment is decoupled from consumption, i.e. put in separate mental accounts, the perceived cost of consumption is reduced and this encourages more consumption, as in the case of the credit card.”

The ERP gantries, they argue, “raise motorists’ awareness of the actual cost of a trip and help them make a considered decision, for example, whether to shift some trips to a less congested time period where the ERP charges are lower or zero.” Just like swiping a credit card then, ERP 2.0 removes the visual reminder of expenditure that gantries provide. Higher and more precise road taxes may, counterintuitively, therefore not be as effective as the monstrous gantries.

So far, the government has provided little evidence that demonstrates that ERP 2.0 will work more effectively than the current one (and if it does possess that evidence, this is yet another reason why it should be more transparent about it). Why then is it rushing ahead? Apart from wanting to remove the politically costly, ubiquitous reminders of government taxation (the gantries), I believe the government continues to pursue technical rationalisation dogmatically. Greater efficiency and greater precision, aided by advances in technology, are assumed to be the tools of good governance. Alas, ERP 2.0 may prove them wrong and we will all pay the price.

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