TOC Editorial – A call to suspend all executions

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MORATORIUM ON MDP:

The Online Citizen calls on the Singapore Government to impose a moratorium on all executions for those sentenced under the Mandatory Death Penalty (MDP). Our Special Focus Week the next 7 days or so urges the Singapore Government to consider the concerns and issues raised with regards to, in particular, the Misuse of Drugs Act and its provisions. TOC believes that there are serious and valid concerns about the application and provisions of the MDP which mandate a moratorium on executions. We urge the Prime Minister and his Government to consider these concerns and to allow an open and robust discourse with members of the public, the legal fraternity and Members of Parliament so that a true national consensus on judicial executions, based on informed considerations, is arrived at. We begin our appeal to the Government with our editorial position on the matter.

TOC Editorial

Why a moratorium on the mandatory death penalty for drug trafficking will be both sensible and timely.

The Court of Appeals’ judgement on the Yong Vui Kong drug trafficking case on 31st December 2009 has reopened questions about the constitutionality of the mandatory death penalty.  In a rather unexpected ruling, the court signalled its willingness to hear arguments against the usual precedents on this issue.

Rightly so, even though those arguments are well-worn and familiar.  The chief drawback is that the mandatory death penalty leaves no room for judicial discretion and the consideration of mitigating conditions, such as the age of the defendant or his personal circumstances, and whether there is the possibility of rehabilitation.  It is therefore needlessly arbitrary and cruel.  Contrary to popular belief, there is also no definitive study showing that the mandatory death penalty has the much-lauded deterrent effect, in part because it is difficult to prove what might have happened without it.  But chances are that effective enforcement and an expeditious court system play more important roles in deterring offenders.

The mandatory death penalty for drug trafficking is particularly egregious for several reasons.  First, it lacks a sense of proportionality. A young unwitting drug mule (a typical profile of those arrested for trafficking) caught with 30 grams of morphine, for example, gets no more sentencing consideration than a serial killer, while this does nothing to deter the real traffickers who put him up to it.  Second, the defendant is saddled with an unusually onerous burden of proof: if caught in possession of a drug, he is automatically presumed to be responsible for it and to know its nature, and if caught with a certain amount he is alleged to be trafficking.

In spite of this, detractors have argued that public support for the death penalty in Singapore is overwhelmingly strong.  A commonly cited 2005 survey by the Straits Times indicated a 95% margin of support among 425 respondents, though the survey was undertaken just weeks after the high-profile drug trafficking Nguyen Tuong Van case involving an Australian-Vietnamese national at that time.  Even so, there was no indication that the mandatory death penalty was properly understood or differentiated from capital punishment in general.

Furthermore, the figure might reflect apathy rather than conviction. Public awareness on crime and punishment issues is low: the Law Society, for instance, pointed out in 2009 that local universities barely cover the study of criminology or penology, and that there were scant statistics for research on the causes of crime and the effects of penal policies.  Public opinion might be very different if the human cost of the mandatory death penalty was given greater public airing.

In any case, legal thinking on the subject has been gradually evolving.  In 1981, the Privy Council found in the Ong Ah Chuan case that the mandatory death sentence for drug offences was in keeping with constitutional provisions.  Since then, the Ong Ah Chuan ruling has formed the main plank of the state’s arguments for enforcing the mandatory death penalty for trafficking, but in 2004 the Privy Council reversed its position by ruling that “it is no longer acceptable, nor is it any longer possible to say…[as in the Ong Ah Chuan case]… that there is nothing unusual in a death sentence being mandatory.”  The Yong Vui Kong ruling subsequently marked a change in the Court of Appeals’ receptiveness to arguments against the constitutionality of the mandatory death penalty, despite a ruling by the Court in the Nguyen Tuong Van case that the prohibition against cruel and inhuman punishment could not be found in the Constitution.

It is worth noting that legal thinking has usually been ahead of public opinion: right up till capital punishment was suspended by the British legislature in the 1960s, there remained strong public support for it to be retained for some serious offences.  Given the gaping flaws in Singapore’s mandatory death penalty, it is about time that such an anachronistic policy be discarded.  The Court of Appeal’s refreshingly open-minded attitude towards considering this proposition is therefore welcome.

In the meantime, it is only right for the government to impose a moratorium on executions under the mandatory death penalty – whatever the outcome of the court’s deliberations – so that a more informed public discussion can take place.

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