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Friday, May 04, 2018

What makes an Independent Commission of Inquiry

I was asked, in relation to the Committee of Inquiry (COI) that will be set up to investigate Dave Lee's death, what I would consider in evaluating how independent a COI is.

Independence in a COI is important not just to ensure a procedurally fair enquiry (i.e. no coverups), but also to have a more objective view of the incident (postmodern dissing of objectivity and prioritising of lived experience aside) - indeed this is why independent COIs are set up in the first place.

In Dave Lee's case,

"the COI will be chaired by a Cluster Superintendent from the Ministry of Education, with a medical specialist from the public healthcare sector as one of its members"

Some factors - none either necessary or sufficient - that would make one think a COI is independent would include:

- having non current civil servants on board
- having non civil servants on board
- having foreign experts on board
- the full findings being published
- the COI identifying systemic issues instead of blaming a few bad apples
- high ranking people being held accountable instead of only low level scapegoats

It is instructive to look at other COIs, in comparison. For example, the Chilcot Inquiry into the Iraq War was led by a retired civil servant.

A senior non-MINDEF civil servant, while more independent than someone from MINDEF, is still from the government.

Besides the Chilcot Inquiry, one can also look at other COIs in Singapore.

In 1992, the tanker Stolt Spur had an explosion in its boiler room and 3 Singaporeans were killed.

The Committee of Inquiry comprised Judge Richard Magnus, Assoc Prof Tan Thiam Chye (who seems to be a doctor and, as the same suggests, is also an academic) and Mun Leong Liew, a business leader.

I'd say that would be a pretty good model for a COI. Judges by their nature are more independent than civil servants (who are after all from the Executive branch of the government). Though of course if it'd been a retired judge it'd have been better still.

In addition, in this case Sembawang Shipyard belonged to a government-linked commercial enterprise, so the COI was not investigating the government per-se.

A related issue is whether what a COI concludes is the gospel truth. In some people's view, it seems COIs are omniscient and infallible. Yet one must question this assumption.

For example, the Little India COI supported the claim that alcohol was a major contributor factor (despite little evidence), but ignored or downplayed other relevant factors like similar incidents in India and other factors identified by The Online Citizen and Workfair Singapore.

Curiously, way before the COI had published its findings, the government had already moved to ban, on 11 December 2013, the sale and consumption of alcohol in the Little India area, and touted it as a plausible contributory factor.

Notably, this was just 3 days after the riot, more than 6 months before the COI released its findings on 30 June 2014 and indeed before the COI was even appointed on 13 December 2013.

It seems that those who say no one should comment, speculate or come to conclusions until the COI releases its findings exempt the government from this rule.

One cannot help but wonder if this public prejudging of the causes of the Little India Riot predisposed the COI to point to alcohol as a major factor for this riot. After all, in Singapore sub judice is criminalised "to prevent people from making public statements that could influence the minds of decision makers in court".

While a COI is not a court proceeding, a similar principle would seem to apply here; even though the Administration of Justice (Protection) Act exempts statements "made by a person on behalf of the Government about the subject matter of or an issue in a court proceeding that is pending is not contempt of court under subsection (1)(b) if the Government believes that such statement is necessary in the public interest" (we are talking about the principle of influence, not legal culpability).
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