seminar 1 criminalization

7/30/2019 Seminar 1 Criminalization

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CriminalizationSeminar 1


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Learning points

Why should something be made a crime?

Moral reasons

Instrumental reasonschange social norms

How should it be criminalized?

Legality

Culpability

Proportionality

Bear these points in mind throughout course


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Singapores criminal legal system

Part of larger State regulatory framework

Constitutional law governs r/s between State and citizen

Criminal law Penal Code and other criminal laws (e.g. Misuse of Drugs

Act)

Supporting systems Executive action (e.g. Criminal Law (Temporary

Provisions) Act public safety, peace and good order

Administrative action (e.g. rehabilitation centers)


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The criminal law

The Singapore legal system

Constitutional law

Contract law

Tort law

Criminal law

What distinguishes the criminal law from other

areas of law?


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The criminal law

Consequences of making something a crime

State-imposed punishment

Serious consequences

Labeling of individual as a criminal

Expression of moral disapproval


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Aims of punishment

What does State-imposed punishment aim to

achieve? Why punish?

Retribution purposes

Utilitarian purposes

Deterrence (specific, general)

Communicationsocial/cultural/moral values

Paternalismeducative function

Rehabilitation


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Alternative ways of approaching

crime

Restorative justice movement

Crime seen harming the relationship between

victim and perpetrator

E.g. juvenile justice

Victims rights

Transitional societies/mass atrocities

Truth and reconciliation


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Making something a crime

Criminalization on what basis?

Harm to others

Definition of harm

Violation of interests

E.g. offensive behavior

Community values E.g. family values (who decides? conflicting values?)

Public order


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History: Singapores Penal Code

Originally written for India

1833: Indian Law Commission

1837: Draft Code under Macaulay

1860: became law in India

Singapore 1826: Straits Settlement (Singapore, Melaka, Penang)indirectly

administered

1826: Second Charter of JusticeEnglish criminal law

1860s: attempt to introduce into Singaporefaced resistance 1. localconditions 2. English judges more familiar with common law

1872: Straits Settlements Penal Code came into force


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History: Singapores Penal Code

Colonial legacy

Aims of code

Comprehensive

Accessible

Modern

Democratically made


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Comprehensive

Limits of codification

Need for judicial interpretation

Principles of judicial interpretation?

Plain reading

Purposive reading

Pro-individual approach - strict construction Role of the courts (v.s. executive, legislature)

Pro-defendant or pro-State?


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Strict judicial interpretation: MDA

Possession - not defined in MDA

Does this include knowledge of nature of what youare having

To what extent must you know the nature of what you have judicial decisiononly if wholly different nature

some academics argue that you wont get off if youbelieved what you are carrying is aspirin vs heroin- still

drug


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Accessibility

Original intention

Explanations, illustrations

Private defense

Need for particular clarity

11 provisions

97 (b) PD of property arises against offence falling within

the definition of theft, robbery, mischief or criminal

trespass, or which is an attempt

102. the right of PD of body commences as soon as a

reasonable apprehension of dangerto the body arises


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Modern

Changing moral values

Amendment of s. 377

S. 377A Any male person who, in public or

private, commits any act of gross indecency

with another male person 2 years

How should such changes be made?

Judiciary

Public discussion


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Modernization

Ad hoc approach taken

Social problems

Increase in punishment for killing of domestic

helpers

International developments

Criminalization of genocide


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Democratically made?

Colonial origins

Time for change?

seminar 1 criminalization

Documents