Thursday, February 25, 2016

Punishing NS dodgers: What's fair, what's not?

Jermyn Chow
Defence Correspondent

25 Feb 2016

Clarity needed on sentencing guidelines for defaulters with little connection to S'pore

In 2006, I was in Parliament listening to then-defence minister Teo Chee Hean painstakingly explain the nation's uncompromising stance against National Service (NS) evaders.

His speech had come in the wake of a public furore over a $3,000 fine handed to celebrity pianist Melvyn Tan for defaulting on his NS for more than three decades. Mr Teo pushed for stiffer fines and jail sentences for those who skip NS.

Since then, this no-nonsense stance has not wavered.

In 2012, Mr Teo's successor Ng Eng Hen, also in Parliament, tackled questions on draft dodgers, specifically second-generation permanent residents who renounce their PR status to avoid serving (first-generation PRs are exempted from NS). He warned then of "adverse consequences" when these people go on to apply to study or work in Singapore.

The issue of NS dodging cropped up again last month, when High Court Judge Chan Seng Onn jailed 25-year-old Brian Joseph Chow for 1½ months after he failed to enlist for more than six years. Chow, a born-and-bred Singaporean, left the country at 15 to study in Australia. He returned to serve NS after surrendering in May 2013.

Justice Chan's sentencing, which built on an earlier ruling that those who default on NS for more than two years should be jailed, was hailed for providing clarity on the penalties. It also sparked a range of reactions, albeit far less vitriolic than 10 years ago.

There are those, especially among the nearly 1 million men who have gone through NS since conscription started in 1967, who feel that the sentence was too light. Some also questioned the decision to give Chow a "discount" for doing well in NS. He was initially given three months, but 11/2 months was shaved because he did "exceptionally well" in the army.

The sentiments show that most still see NS as the linchpin of the nation's identity and survival.

They understand that anyone who undermines this institution by failing to report for duty would, and rightfully should, be punished.

So it is important to let those who want to avoid NS - Singaporean- born and PRs - know the exact price they have to pay.


Under the Enlistment Act, anyone who fails to fulfil his NS obligation can face a fine of up to $10,000 - double the previous maximum - or up to three years in prison, or both.

But even with a more punitive regime in place, people still grumble. Take the uproar that followed reports that a 19-year-old Singapore-born New Zealander has so far refused to return to serve NS. Brandon Smith, who holds dual citizenship, was quoted as saying his NS stint would be a waste of time because he spent most of his time in New Zealand.

The indignation that the majority feel is understandable. Every year, some 20,000 young men are drafted, after which they are called up to fulfil their reservist obligations every year. Allowing people to wiggle their way out of NS undermines the three principles underpinning this rite of passage: national security, equity and universality.

As DPM Teo put it in his 2006 ministerial statement: "Singaporeans serve willingly, out of a sense of duty, and also a sense that the system is fair... nobody can dodge his responsibility to serve without severe legal and social sanctions."

Still, most convicted NS defaulters that were reported in the media in the last few years have got away with fines. These included the November 2014 case of 20-year-old Mohammed Ibrahim Hamzah, who had his two-month jail term reduced to a $3,000 fine for dodging NS for just over a year and three months.


What is noteworthy in Justice Chan's landmark ruling is an accompanying graph that charted benchmark prison terms against the number of years a defaulter stayed away without a valid exit permit, illustrating the different degrees of severity.

Understandably, there are those who wring their hands over how cut-and-dried the guidelines are in meting out punishment. But judges in future NS defaulter cases will have to take into account factors such as whether the defaulter voluntarily surrendered or was arrested, and if he pleaded guilty or claimed trial. The age of the offender and his performance during NS are also mitigating factors. All things considered, the sentencing serves as a clear reminder that NS is serious business.

Lawyer Laurence Goh Eng Yau, who has frequently defended SAF soldiers, says: "For once, there is clarity. Potential defaulters have been forewarned... so they can't choose to default and think they can get away with a fine."

Singapore Management University law don Eugene Tan says it is timely for clearer and transparent sentencing guidelines to be put out. "It is an attempt to rationalise the sentencing principles and benchmarks for NS defaulters, which is in accordance with the public interest to have NS defaulters punished," said Associate Professor Tan, a former Nominated MP.


To be sure, the situation is not dire.

Most recent figures revealed by Defence Minister Ng in Parliament in 2012 showed that in 2011, 259 NS-liable men either failed to register or enlist, or did not come back to Singapore after their exit permits expired. Seven in 10 of them were Singaporeans who mostly live overseas.

In comparison, about 26,000 were drafted that year.

Pointing to the small numbers, those in the camp that adopts a softer stance argue that Singapore can be more forgiving towards those who erred and be more flexible in granting longer deferments so that they can pursue their dreams and ambitions first.

But in Justice Chan's own words, the concept of NS "involves sacrifice on the part of enlistees to postpone their personal goals, including continuing their education, to fulfil their duties".

Following a high-level panel's year-long review of NS which ended in 2014, Mindef and other uniformed services have already made NS less of a chore. Their efforts include making it easier for national servicemen to train and do well in the physical fitness tests and shortening the interval between when a student finishes his studies and starts NS.

The quitters may be in the minority and do not put a dent on national defence, but defence observer David Boey argues that SAF's defence capability will be affected in the long run when planners cannot forecast how many soldiers are due to be enlisted in any given year.

Mr Boey, the former defence correspondent for this paper who now sits on the Advisory Council on Community Relations in Defence, cautions against being swayed by calls to be more flexible, or worse still, lenient, to NS defaulters or requests for deferments. "Every seven NS evaders robs the Singapore Army of one section of soldiers - which is the smallest organised fighting unit in an army battalion. So every soldier counts," he says.


It is not just finding the strength in numbers but also keeping the high level of commitment in every soldier that is important.

This is even more crucial when victory in today's battlefield hinges on the battle of wills and wits.

I have said in the past that the sweat and tears shed to build the SAF cannot be reduced to a dollar value. What is defining is priceless intangibles such as duty, honour, loyalty and national pride.

In the same vein, foisting NS on a reluctant soldier will not guarantee a loyal and fully committed soldier.

For instance, someone who left the country at a young age will conceivably be less likely to heed the call to bear arms for a country that he has little connection to.

A case in point is Seow Wei Sin, who stayed away for 23 years - one of the longest default periods. Born in Singapore, Seow left for Malaysia with his parents when he was just a year old. He was convicted in 2010 after he came back to the Republic a year earlier.

He was initially sentenced by the district judge to 18 months' jail. Appeal judge Chao Hick Tin reversed the decision and Seow was eventually fined $5,000.

This year, in his sentencing of Chow, Justice Chan focused his benchmarks on those who had a "substantial connection" to Singapore. Chow left after finishing his primary and some of his secondary school education here.

But the judge did not extrapolate his judgment to those with little connection to Singapore, for instance someone like Seow who left when he was still a baby.

How should a graph involving this group of people look? Should jail time be even involved? Does NS liability increase the more one benefits from the Singapore system, or is there intrinsic value to being a son of this country, regardless of when a person is uprooted?

Issues involving second- generation PRs are also not entirely clear. When Mr Ng referred to "adverse consequences", he hinted that it might mean a defaulter will not be offered a pass to work or study here. But these were never made explicit. And should punishments just end there?

Trawl through local blogs and online forums and there are plenty of stories on people who find out the cost of NS defaulting too late - for instance, a second-generation PR who skipped NS, graduated in law in Britain, but found he could not get a student pass when he wanted to do a conversion course.

Such stories abound, along with questions if there are blacklists and on the consequences of giving up one's PR to evade NS. There are also anecdotes of people bragging about how they gamed the system, some even providing "how-to guides".

NS, everyone agrees, is a serious issue, a key pillar of Singapore's security. There should be no grey area when it comes to defaulting. Justice Chan has provided much-needed clarity when it comes to one group of defaulters. Hopefully, any doubts for other groups will also be removed soon.

["A foolish consistency is the hobgoblin of little minds" is one of my favourite quotes. Because the more I see of this world, the more I realise that often the quest of "consistency" is also a foolish and even unjust quest.

I like this article - it is fair, balanced, and even-toned. (Would probably make a lousy internet comment. Not enough vitriol!)

I think the purpose of this article is to point out that in sentencing these defaulters, it is not a simple matter of how long was the defaulter gone, but there are mitigating factors and a bigger picture to keep in mind.

The bigger picture is the defence of Singapore and every decision, every sentence should support this objective. 

In the case of the dual citizenship New Zealander, and the Malaysian (?), Seow, they have very little connection or commitment to Singapore. Would they be loyal and committed soldiers? Can we count on them in the future? Is there any point in incorporating them into the defence of Singapore?

In the case of Brian Chow, he does have a connection, and his subsequent performance during his training is evidence of his loyalty and commitment. Is there any point in inflicting extraneous punishment (like lengthening his jail term)? What we want is a loyal and committed soldier (big picture). Do we have that in Chow? (I think so). Is there any point in a heavier punishment? (I don't think so, not specific to Chow. In fact I would argue that more punitive sentence may well alienate Chow, and sap his loyalty). Okay, is there a deterrent element in a punitive sentence? Would it prevent others from defaulting? Maybe. But every person is different. For every Brian Chow, there may be many others who chose NOT to evade (or delay) the draft because of the consequences or punishment.

These are questions the court should decide, and this is why the judges are paid the big bucks. I am not going to to their work for them. 

From my personal perspective, it does me no good for Chow to be in prison longer. If it were my judgement to make, I would give him a sentence, and suspend part of it. As the article suggests there are mitigating factors such as the age, whether he surrendered or was caught, whether he pleaded guilty or contested the charges, and his performance during NS training. ]

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