The real issue: TOC, Benjamin Lim or sub judice?

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“THIS is a very sad case – A young girl has been traumatised. A boy’s life has ended prematurely. We must do right, by these two young lives,” said the Home Affairs Minister, K. Shanmugam, marking the start of his ministerial statement in Parliament.

Indeed, this case is about these two young lives — one who was allegedly molested, another who jumped to his death after an unrecorded and unaccompanied police interview. How do we make sense of what happened? How do we avoid repeat incidents? How do we balance the rights of suspects against the needs for an effective police force? These are the questions we should be asking.

Is this about TOC or about Benjamin Lim and the rights of suspects?

To answer these questions, we can either choose to interpret this as a case of opportunistic parties misleading the public and fanning the flames of unreasonable anti-government hatred, or we can look at this as a test case, one where we may measure theoretical arguments against reality. We have an opportunity here to ask the tough questions about our system of justice, to challenge preconceived notions and unearth hidden assumptions. But we can only do so if we choose not to engage in petty politicking and blow things out of proportion. We need to keep our eye on the prize, to focus on the issues that really matter.

Have The Online Citizen (TOC) and the Law Society’s president Thio Shen Yi made factual mistakes? Yes, they have. Do the facts matter? Certainly. But what exactly were these mistakes and how important are the facts that they have gotten wrong? (Disclaimer: See below.)

Were the factual mistakes “deliberate falsehoods” which both TOC and Mr Thio made despite knowing full well that they were wrong? Or were they well-intentioned attempts to make sense of the situation at a time when Mr Shanmugam’s Ministry was maintaining its stony silence?

Would it have mattered if Benjamin was interviewed by one instead of five police officers when the issue here is that he was not accompanied by an adult? Would it have mattered if the police turned up in plain clothes or with a “Police” word on their backs? These things seem trivial in comparison to the fact that a boy died on the same day he was interrogated. Open office or not, whether he was offered food or not, and whether there were five or one police officers interviewing him, the central issue is that Benjamin had to face serious charges of molest all on his own.

As Senior Counsel Hri Kumar, then a PAP MP, said in Parliament on May 18, 2010: “Being hauled up by the Police is a harrowing experience. The individual is subject to an alien, hostile environment. … There are those who may say anything to make the unpleasant experience end, and to return to their families, or may simply be confused.”

More importantly, are these inaccuracies so serious that they should determine the direction of the debate in Parliament? It is unfortunate that Mr Shanmugam seems to think so.

The case, Mr Shanmugam seems to believe, is not really about the death of a 14-year-old boy. It is about how TOC and Mr Thio have made statements that “imply that Benjamin killed himself because of police intimidation.” It is about a “planned, orchestrated campaign” of falsehoods.

Never mind the fact that a boy is dead and answers have not been forthcoming; never mind the fact that TOC was upfront about its sources; never mind the fact that big stories are usually covered extensively, just as the mainstream press publishes tens of articles on the Cross Island Line debate; Mr Shanmugam’s focus was on defending police protocol, putting TOC down and chastising Mr Thio.

But in the course of doing so, Mr Shanmugam has diverted attention away from the central issues, made unfounded accusations against TOC and Mr Thio, undermined the impartiality of the Coroner’s Inquiry, and he has publicly testified against a dead boy who cannot defend himself.

Mr Shanmugam touched on three areas in his statement. First, the facts. Second, the police protocol. And third the “deliberate falsehoods.” Taken together, his statements reveal that he has approached this case as a matter of defending the police against charges of misconduct. However, in doing so, he has implied that Benjamin was not innocent, he has asserted his own finding that Benjamin was not mistreated despite an ongoing Coroner’s Inquiry, and he has conflated public criticism of an intimidating interrogation process with unfounded assertions of police intimidation.

Testifying against a dead boy who cannot defend himself

Mr Shanmugam begins by pointing to the facts of the case to show that the 14-year-old boy was not entirely innocent. Then, he recounts what happened during the police investigations in order to clear the police of wrongdoing.

To explain why the police had reason to suspect Benjamin had committed a crime, he points out a few details. One, Benjamin followed the girl into the lift. Two, there is CCTV footage showing what happened in the lift. Three, the girl claims she was molested. Four, Benjamin confessed to it. (See para 7 and 8)

He later concludes in para 22: “It is likely … Benjamin would have received no more than a warning. He is unlikely to have been charged in Court.” While Mr Shanmugam does not say Benjamin is guilty, he does not say he is innocent either. In fact, by saying that Benjamin could have received a warning, Mr Shanmugam left many readers thinking that he had made a pronouncement of guilt. If this was not his intention, he certainly did a poor job of communicating it.

In addition, Mr Shanmugam continued by saying: “Police would have taken into account his age, and the fact that this is the first time. And while all molests are taken seriously, the nature of the specific molest in any case would have to be considered. The nature of the alleged molest in this case can be characterised as being in the less serious range – that is based on CCTV footages.” It is as if to say that the reason Benjamin is unlikely to have been charged in court is because of the nature of the molest, not because he is innocent. Again, one is left with serious doubts about Benjamin’s innocence.

Later, in para 44, Mr Shanmugam points out that Benjamin’s family “suggested that Benjamin had been coerced into admitting to the molest.” In response, he says “The Police could have released the CCTV footages which will show quite objectively what happened inside the lift.” (Para 45) He is saying that the CCTV footage will rebut the family’s claim that Benjamin is innocent. In other words, he is saying that Benjamin is not innocent.

This becomes even clearer in para 46 where Mr Shanmugam says about releasing the footage to the public: “But is that the right thing to do? To have a public trial by media, at this stage? Rebut the family in public, and add to the family’s grief? The answer, good sense, is clearly NO.”

To Mr Shanmugam, the CCTV footage reveals what happened in the lift, which is the opposite of what the family claims. What happened in the lift is something so scandalous that it would be disrespectful to Benjamin’s memory and would hurt the young girl. One is therefore led, for a fourth time, to believe that Benjamin is not innocent, contrary to what his family claims.

Sub judice?

One might object to what Mr Shanmugam is doing here. He has essentially testified against Benjamin in Parliament and subtly delivered a guilty verdict. Although he insists on the importance of respecting the independence of the coroner’s courts, as a Minister, Mr Shanmugam has delivered the findings of the executive arm of government. Should the coroner’s court contradict him later, it would cast doubt on Mr Shanmugam’s integrity, and it would put the judiciary at odds with the executive.

The UK Joint Committee on Parliamentary Privilege made this particular point especially well: “Restrictions on media comment are limited to not prejudicing the trial, but Parliament needs to be especially careful: it is important constitutionally, and essential for public confidence, that the judiciary should be seen to be independent of political pressures. Thus, restrictions on parliamentary debate should sometimes exceed those on media comment.” (See here.)

Given that the police force, which falls under Mr Shanmugam’s Ministry of Home Affairs, is itself the subject of the Coroner’s Inquiry, Mr Shanmugam’s statements may in fact also be considered sub judice. By saying “there is nothing so far on the evidence to suggest that Benjamin was mistreated by the Police,” Mr Shanmugam has made a finding that is not his to make. The coroner’s court decides if the evidence suggests that Benjamin was mistreated, not Mr Shanmugam who is the one with the greatest stake in a favourable verdict (especially since, as he says, “ultimately, responsibility is with me”).

Pre-empting such accusations of sub judice, Mr Shanmugam claims an exception to the rule for himself. He says public officials may make statements if they are in the public interest. But sub judice is a matter for the courts to decide, not the executive. Mr Shanmugam therefore has no authority to claim this exception for himself. He is right that “people make many statements” but they can be mistaken. “That is why there is a Court process, to establish the truth.” Indeed, it is a Court not Cabinet process.

Sub judice aside, Benjamin is dead and unable to defend himself. However, Mr Shanmugam has implied that he is not innocent, giving his own testimony of what he saw on the CCTV footage even though the Coroner’s Inquiry has yet to be completed. This is unbecoming of a Minister. Having lost sight of the bigger picture, Mr Shanmugam has treaded where he should not.

Lessons to learn

The point is not that Mr Shanmugam has been less than honest about his intentions. The point is that in his haste to defend his Ministry, he has lost sight of the bigger picture and said things he should not have. In fact, Mr Shanmugam may learn a lesson or two from Mr Thio who, by focusing on the larger issues at stake, cautioned readers against jumping to conclusions.

Mr Thio had said in his commentary about Benjamin’s suicide: “Why did he jump? Could his death have been prevented? We can never know for certain, but that shouldn’t stop us from pursuing a deeper inquiry into what happened to Benjamin that day.” However, rather than do as Mr Thio did, Mr Shanmugam delivers his own findings instead of leaving it up to an independent third party. Instead of applauding Mr Thio for being a reasonable voice in an otherwise emotionally charged debate, Mr Shanmugam makes unspecified threats. (See para 61)

Mr Shanmugam may also learn from TOC’s prompt response when there is a need to correct false information. In less than a day after Mr Shanmugam criticised TOC for “deliberate falsehoods”, TOC responded by explaining how it had checked its facts and reached out to the relevant authorities for information. In contrast, Mr Shanmugam waited five week before responding to what he believes is an attack on the police’s integrity. What a sad irony.

Shutting the door to debate

The most problematic part in this episode is how unwilling Mr Shanmugam has been to discuss the larger issues of how suspects, especially minors, should be treated.

In para 57 he says: “Our position on early access to counsel has been made clear, previously. We had arrived at this position, after thoroughly considering the matter and taking into account all factors. I am prepared to explain again our reasons and thinking behind this position in due course, at a more appropriate time.”

Note how he seems to have no intention of discussing the issue. It appears that he is only willing to go so far as to explain his position again because he does not believe the case of Benjamin Lim has brought anything new to light.

However by adopting such a position, Mr Shanmugam effectively precludes the possibility that Benjamin felt intimidated because he was not accompanied during the police interview. He precludes the possibility that Benjamin underwent a traumatising experience when he was being interviewed. He precludes the possibility there is a strong connection between what happened to Benjamin in the morning, and his suicide in the afternoon.

But are these not questions for the coroner’s courts to decide? Is not the question of whether a police interview is a traumatising experience for a child also a general one which the public is entitled to weigh in on? Or are we all to shut our mouths now because Mr Shanmugam declares all suggestions that “the police intimidated the boy” to be false, misleading, dishonest and politically-motivated? (See para 40-42) If TOC is wrong to raise these questions, can we?

Mr Shanmugam’s response to MP Dr Intan Azura Binte was most telling. She had asked why police couldn’t have waited another hour for Benjamin Lim’s mother or father to arrive before interviewing him. Mr Shanmugam’s answer was a series of platitudes: “We have considered it before. … We have explained it before. … We will review it. … We will look at the findings, consult the stakeholders and we will explain.” But if the answer eludes Mr Shanmugam now, why will he find it later?

It seems that the true meaning of Mr Shanmugam’s answer is that real debate takes place in the Cabinet, not in Parliament. Opinions are formed and decisions are made in the Cabinet, after the brightest minds this nation has ever seen have applied their collective wisdom to the merits of the case. But should not the PAP at least debate these issues within its own party in Parliament? If Parliament is not the most appropriate forum to debate these crucial issues, then where is? If we are so sure of the reasons for the present policy, then what are they?

The four bad reasons

I submit that Mr Shanmugam has deftly chosen to evade the difficult questions because this case makes it virtually impossible for him to find an adequate answer.

One, the government believes that, as a rule, immediate access to family/friends/lawyers will hamper police investigations and prevent them from extracting a confession. However, when 14-year-olds die as a result of this policy, the rule doesn’t seem so perfect anymore. So it is more convenient to simply sidestep the question.

Two, the government implicitly believes that there is so much integrity in the police force that it is nigh impossible for there to be any misconduct. And where there is any, the government is fully willing and capable of investigating it. But in this case, the spectre of possible police misconduct hangs over Mr Shanmugam’s head. He may assert that there was no misconduct in this instance but he cannot prove that Benjamin’s confession was genuine since he is now dead.

Three, the government believes that Singapore is so vulnerable we cannot afford to allow guilty persons to go free on procedural grounds, even if this means that many innocent persons are wrongfully convicted. But in this case, it is hard to imagine a dead 14-year-old posing a threat to our very way of life.

Four, the government believes that lawyers, friends and family are more likely to encourage the suspect to lie than to come clean. In this case, however, Mr Shanmugam cannot preclude the possibility that lying was precisely what Benjamin did when he confessed. Mr Shanmugam cannot prove that Benjamin might have been able to deal with the situation better if he had timely support and advice.

Mr Shanmugam is silent on these questions because he has dogmatically adopted a position that must now meet the test of reality. Will he yield or will he find some way to silence dissent with his threats of sub judice? Whatever he chooses, it is clear that not all MPs within his party agree. The education minister Ng Chee Meng believes that “it is of utmost importance that we all learn from this tragedy.”

Indeed, a 14-year-old boy is no more and we must learn from it. But if we hold on to our preconceptions, as Mr Shanmugam has, then it is truly a national tragedy.

Disclaimer: I have written several articles for TOC before, three of which touched on this case. The first was a report on Thio Shen Yi’s commentary in the Singapore Law Gazette. The second was a commentary on Mr Thio’s strategy. The third was a collection of comments from readers. I have no involvement with any other articles on the Benjamin Lim case.

The post The real issue: TOC, Benjamin Lim or sub judice? appeared first on Asian Correspondent.

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