doctrine that justifies the need for organs of the state to have mutual checks and balances, tempering the full force of Stateauthorised orders. The article will then examine how the Presumption of Innocence and its related privileges of self-incrimination and right to silence are crucial in embodying the liberal principles that criminal courts should aspire to espouse. Next, Singapore’s approach in this area of law and its pro-prosecution stance will be evaluated and it is argued that our case law and statutory protection in this area has much to be worked upon. Justice done by criminal courts cannot singularly be measured in terms of punishment meted out to criminals, but also whether or not the accused are fairly treated. WHY PAY THE PRICE OF CRIMINAL TRIALS? As Ho suggests and later rejects, a possible model for the criminal system would be to vest in the executive branch of government the authority to charge citizens for offences and to declare them guilty as charged, allowing the presumption of guilt to remove the need for criminal trials.5 Dispensing the need for trials could be seen as beneficial as it would promote efficiency, since the judicial system consumes vast resources.6 However, legal proceedings are not designed to make the administration of penal law more efficient,7 rather, the opposite seems to be true. Illustrative of this is the orality principle, which requires that procedural acts be performed orally, usually in open court, and reducing written evidence to what is strictly necessary. This is a considerable hurdle for the prosecution as witnesses are often reluctant to testify openly for fear of reprisals.8 Also, allegedly ‘pro-accused’ rules of evidence and procedure, which will be further examined later, encumber the quest to get offenders behind bars. We pay the price for a system of criminal trial because we fear the alternative of a police state as history has shown this time and time again. An extreme case in point would be the Nazis that detained, convicted and massacred millions of Jews in Auswitchz and Dachau for their “crimes” without fair trials. If fair trial rights had been granted to the accused for their alleged crimes before convictions were made, it would have been impossible for the Nazis to justify their persecution campaigns of the Jews without meeting “due process” requirements. Clearly, requiring proper procedure before the determination of culpability is extremely crucial to maintaining the rule of law. The idea that “criminals do not require trials since the result would be same anyway” is thus inherently flawed and contradictory. The criminal trial is a vital process that holds the executive to account for its attempt to establish conviction and impose punishment. Allan rightly observes that ‘[t]he right to due process, or fair trial, ... is ... the most fundamental constitutional right of all, intrinsic to the idea of the rule of law’.9 The institution of the criminal trial is a form of accountable polity10 and is based on the demand that the executive justifies its call for criminal censure and punishment in an open proceeding where the accused has a right of challenge. The adequacy of the proffered justification can then be judged by the jury representing the 5 Ibid 87 6 Ibid 88 7 Rachel E Barkow, ‘Separation of Powers and the Criminal Law’ (2006) 58 Stanford Law Review 989, 1031. 8 Ho (n2) 88 9 TRS Allan, ‘Review of Richard Bellamy, “Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy”’ (2008) 67 Cambridge Law Journal 423, 425. 10 Michael P Zuckert, ‘The Virtuous Polity, the Accountable Polity: Liberty and Responsibility in The Federalist’ (1992) 22(1) Publius 123, 124.
citizenry or appointed judges.11 It must of course be noted that the trial is merely a brief process in the overall conviction scheme. The enforcement of criminal law involves a broad sequence of possible stages, including the police patrolling and investigation, arrest and interrogation of suspects, collation of evidence, evaluation of investigation papers by the public prosecutor, exercise of prosecutorial discretion, selection and drafting of the charges to prefer, preliminary appearance in court and taking of a plea, application for bail, conduct of a criminal trial, delivery of a verdict, mitigation and sentencing, imprisonment (or, possibly, execution) of the person convicted, organisation of prison training, implementation of antirecidivism programmes and provision of post-release assistance in social reintegration.12 Yet, the trial is a significant tool against the potential abuse of the executive’s extensive coercive powers on citizens. Thus, in the enforcement process, the executive will need to seek from the court, a body of the independent judiciary, an official declaration of guilt against the plaintiff, entailing judicial authorization of the criminal charge and direction for punishment.13 The independence of the court is crucial, highlighting the importance of Separation of Powers. The court is the political institution responsible for examining the justification put forth by the executive in its request for conviction. The broad function of the criminal court encompasses ensuring the legitimacy of the verdict it produces, and this hinges on the process by which the outcome was reached and the quality of interaction between the state and accused.14 This is why liberal principles need to be reflected in the common law criminal proceedings, and why due process in trials is important not just to bring criminals to justice but also to do justice to the accused. THE VALUE OF LIBERTY The instrumental value of the liberal features of a trial is in legitimising the criminal courts’ powers to hear criminal cases, make findings, issue verdicts and mete out punishments.15 Habermas defines legitimacy as a situation where ‘there are good arguments for a political order’s claim to be recognised as right and just; a legitimate order deserves recognition. Legitimacy means a political order’s worthiness to be recognized’.16 This also captures the substance of the maxim, “justice must not only be done, but must also be seen to be done”. The legitimacy of a verdict and a claim to recognition will be eroded if it is a product of an undisclosed process, calling for blind trust rather than transparency and reasoned acceptance. As Lord Phillips observed in Home Secretary v AF,17 ‘if the wider public is to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.’ As Ho proposes, due process or fair trial is a necessary but not sufficient condition for a verdict to be authoritative.18 Yet Resnick raises a proposition: why should we consider an outcome unjust simply because it has not been achieved by means of due 11 Ho (n2) 89 12 Ibid 13 Ibid 14 Ibid 15 Raymond Geuss, ‘History and Illusion in Politics’ (Cambridge University Press, 2001) 31 16 Jürgen Habermas, ‘Communication and the Evolution of Society’ (Beacon Press, 1st ed, 1979) 178 17 [No 3] [2009] 3 WLR 74 [63] 18 Ho (n2) 102
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