of the voluntariness rule presents an ambivalent and seemingly contradictory attitude towards the privilege. More broadly, it will posit the treatment of the rule, as a whole, reflects a shift away from adversarial justice towards inquisitorial justice, and that this movement coheres with Hor’s suggestion that the Singapore criminal justice system appeals to Packer’s “criminal control” model.6 i) Accused does not have a further right to be informed of his privilege The Courts are right in Mazlan that the accused has no right to be informed of his privilege – S22 of the Criminal Procedure Code neither requires the police to inform the individual of such a privilege, nor does it confer on the accused a right to be told so. As argued by Hor, the Court cannot be faulted on a literal reading of S227. However, a more purposive interpretation of the section would suggest that the individual be informed of his privilege for it to have any meaning. It seems implausible that Parliament’s intention in conferring the privilege does not extend to imposing a duty to inform the individual of the existence of the privilege if there is to be any real substance to the privilege. It is notable the law was different prior to amendments made to the Criminal Procedure Code in 1976. Prior the 1976 amendments, Schedule E prohibited questioning of persons in custody without giving them the standard caution. The judge was also given the power to exclude statements in substantial non-compliance. However, Schedule E was repealed when the power to draw an adverse inference was introduced.8 More recently, in 2009, the Law Society called for the introduction of a legal requirement that the police inform the suspect whom they wish to question under S22 about his privilege against self-incrimination. However, there was no change in the law. ii) Privilege is not a fundamental rule of natural justice and does not qualify as a constitutional right under A9(1) of the Constitution The Privy Council in Ong Ah Chuan v PP9 introduced the concept of natural justice as a constitutional concept in Singapore under Article 9(1). The Court in Mazlan, however, argued that the privilege “has never been regarded as subsumed under the principles of natural justice” and that to view it as such would require “adventurous extrapolation”. The Court did so on the basis that the privilege had “no explicit expression in the Constitution” and was “largely evidential in nature”. While it may be true the privilege is not explicitly stated, there is no requirement that rules of natural justice must be explicitly stated to receive constitutional protection. If anything, the court’s role in Mazlan is precisely to decide whether the privilege is a fundamental rule of natural justice.
6
Michael Hor, “The Privilege Against Self-Incrimination and Fairness to the Accused” [1993] Singapore Journal of Legal Studies
7 8
Ibid.
9
Ong Ah Chuan v PP [1981] MLJ 64
Ho Hock Lai, “The Privilege Against Self-Incrimination and the Right of Access to a Lawyer” (2013) 25 SAcLJ
36
As noted by Hor, many natural justice principles are not explicitly stated in the Constitution either.10 Additionally, the evidential nature of the right ought not be regarded as an argument against the privilege being regarded as part of natural justice – the presumption of innocence, an undoubtedly “fundamental rule of natural justice”11 is “evidential” as well, as mentioned by Lord Diplock in Haw Tua Tau v PP. Beyond refuting the reasons provided by the courts, an argument can be made in favour of viewing the privilege as part of natural justice. The Privcy Council in Haw Tua Tau v PP argues at [50] that natural justice relates to fairness – Lord Diplock said legislature is free to enact whatever laws it thinks appropriate to regulate criminal procedure subject to the rule that “it must not be obviously unfair”. In light of this, it seems obvious that a fair trial would invariably require fair procedure, where the legitimate interests of both parties are protected. It would not be unreasonable for such a principle to extend to the interrogation process, where the accused ought be protected from the police relying on illegitimate devices to extract information, iii) Affirmation of the voluntariness rule The Court, at [142] to [144], turns their attention to the voluntariness rule: no statement by an accused is admissible in evidence unless it is a voluntary statement.12 The Court distinguishes the police not having to inform a person of his privilege from that of the police telling the suspect that he is bound to tell the truth without an accompanying reference to the privilege against self-incrimination. This, to the Court, would amount to an “inducement” within the voluntariness rule and so would render the evidence inadmissible. The Court based this argument on the fact that “it would be reasonable to assume that such an omission (to inform the accused of his privilege where he has been told he was bound to tell the truth) might have caused a person to say what he might not otherwise have said”. The Court’s chosen justification for the voluntariness rule speaks in favour of the privilege against self-incrimination. After all, the Court’s primary concern in the voluntariness rule is in protecting the accused’s choice to answer. The Court stated, “At least, we think a reasonable doubt could arise as to whether he would have said the same things if he had been informed that he was entitled to refrain from doing so.” If so, it seems odd the Court has weakened the privilege against self-incrimination significantly given the privilege aims to uphold the very principle it has chosen to affirm the voluntariness rule. iv) Evaluating and positioning the privilege against selfincrimination It is clear the privilege against self-incrimination is formulated weakly in Singapore. Yet the selfsame judgment dealing a blow against the privilege affirms the voluntariness
10
Michael Hor, “The Privilege Against Self-Incrimination and Fairness to the Accused” [1993] Singapore Journal of Legal Studies
11 12
Hwa Tua Tau v PP [1981] 2 MLJ 149
Dorcas Quek, ‘Concept of Voluntariness in the Law of Confessions’ (2005) 17 SAcLJ