Thus the cultural defence meets the goals of retribution by ensuring that the punishment matches the culpability. It also helps deterrence as it helps foreigners to realise quickly the differences between their culture and ours. It also recognises that Singapore laws are not aculture and not universally applicable; after all "defences on the grounds of provocation or mistake of fact 'rely on the concept of what a '"reasonable" person would do', but the proverbial reasonable person 'does not come from [our] neighbourhood.
'"Cultural defence also addresses the issues unique to culture conflicts which traditional defences, portending to be aculture, are not able to. Despite the advantages of the cultural defence, there are legitimate problems which have to be dealt with. First, the victim's death appears to be dismissed; this could undermine the respect that the law commands because it hurts the interests of one of the addressees of the justification of punishment.
Second, there is an "erroneous assumption that [cultures] are internally homogenous"12 and are static, distorting the application of cultural defence. Third, it is demeaning to insinuate that foreigners do not have free will and are compelled by the dictates of their culture13. Fourth, cultural crimes are not so rare and the cultural defence could undermine general deterrence, an example being the aftermath of People v Chen, where Chinese men saw it as an endorsement by the Law to abuse their wives.
14 Fifth, especially in cases of homicide, the act itself, and the intention, are not that different from that of any other criminal, "[in] most cases in which cultural defence could be raised, there is little question that the defendant actually intended to commit the act for which she is being tried. "15 Ultimately, it could lead to double standards of justice. This is a concern as the criminal law is still about holding everyone to a moral standard. This problem may be solved by looking at how the cultural defence is used in provocation as discussed above.
At first glance, the acceptance and subsequent dismissal of the defendant's perspective seems to be patronising as the defendant will still be hanged in the end, but this is due more to the problem caused by the mandatory death sentence for murder, which fails to reflect the degrees of fault covered by murder. It is also a reminder that the criminal law should be about enforcing minimum morals, at least for homicide, so that we can hold everyone to a single standard.
The traditional defences, as admitted earlier, do not cover the unique elements of cultural defence, but the cultural defence could undermine the value of the victim's death and general deterrence. A solution comes about by looking at recent homicide cases. Recent Singapore judgments, like Public Prosecutor v Juminem and Public Prosecutor v Somwang, deal with foreign criminals and they appear to be very sympathetic. The courts were essentially looking at their circumstances, not in a purely cultural light as cultural defence would have us do.
Cultural elements, if any, played a role as social factors. This hints at the possibility of introducing individualised justice, where we look at the individual and focus on the degree of his moral culpability16, which perfectly meets the aim of retribution. While we take into account the social and psychological circumstances in charging and sentencing, they would not in themselves absolve a defendant17. Signalling that homicide is wrong and without being constrained by rigid traditional defences, we adjust punishments accordingly.
In addition, we might look at the victim too. If the victim was of the same culture and knew that he was being provocative, we could look at the defendant in an even greater sympathetic light. Alternatively, if there are cultures where killing is seen as a legitimate solution to right a wrong, the consent of the victim to such a punishment could be an extenuating factor. It is admitted that such situations are rather limited though. In conclusion, cultural defence has a limited role to play in Singapore. It can never be a defence proper due to the problems mentioned.
Rather, Singapore should uphold individualised justice and a non-mandatory sentencing system. 1 Chan Sek Keong, "Cultural Issues and Crime" 12 S. Ac. L. J. 1 at para. 33. 2 William A. Haviland, Anthropology, at 277, cited in Fischer, M, 'The Human Rights Implications of a "Cultural Defense"' (1998) 6 Southern California Interdisciplinary Law Journal 663 at 669. 3 David Garland, Punishment and Modern Society, (Oxford: Clarendon Press, 1990) at 292, cited in S Bronitt & B McSherry, Principles of Criminal Law, (Sydney: LBC, 2001) at 27.4
Bronitt & B McSherry, Principles of Criminal Law, (Sydney: LBC, 2001) at 19. 5 Immanuel Kant, The Metaphysical Elements of Justice (Hackett Publishing Company, Inc. , 1999) at 138-140, reprinted in Chan Wing Cheong et al. , Fundamental Principles of Criminal Law, (Singapore: LexisNexis, 2005) at 26 6 Herbert Morris, "Persons and Punishment" (1907) 24 The Monist 52, reprinted in John Arthur & William H. Shaw, eds. , Readings in the Readings of Law (Upper Saddle River: Prentice Hall, 2001) 334.
7 Edmund L. Pincoffs, Philosophy of Law: A Brief Introductioni?? (Belmont: Wadsworth Publishing Company, 1991) at 43. 8 Donald L. Horowitz, "Justification and Excuse in the Program of the Criminal Law" 49 Law & Contemp. Probs. 109 at 115. 9 Alison Dundes Renteln, "A Justification of the Cultural Defense as Partial Excuse" 2 S. Cal. Rev. L. & Women's Stud. 438 at 446. 10 Kumaralingam Amirthalingam,, "Culture, Crime and Culpability: perspectives on the defence of provocation" [forthcoming] at 13.