Practices surrounding the death penalty for drugs troubling

The following are excerpts from “DEATH, DRUGS, MURDER AND THE CONSTITUTION” by Professor Michael Hor of the National University of Singapore’s Law Faculty. You can read the entire chapter here. Note: pictures, paragraphing and emphases are TOC’s.

Singapore’s famed “drug free” environment cannot be, on the available evidence, linked, or at least so simplistically linked, to the death penalty…. We have no reason to believe that the drug figures would have been worse had the death penalty not been mandatory.

Deterrence

Similar questions of marginal and optimal deterrence need to be asked in the context of the utility of the mandatory death penalty. It has been said that the sting of death penalty for drug offences in Singapore is in the fact that it is mandatory – again relying on potential offenders making a rationalistic calculation that the absence of sentencing discretion will tip the balance against them choosing to embark on drug crimes.

Do we have any evidence to support the belief that the certainty of the death penalty on conviction, as opposed to the possibility of it (if the death penalty were discretionary), has made a significant difference in the deterrence of drug offences?

On a crude rationalistic calculus, one might have expected the mandatory death penalty for drugs to have worked a greater deterrent magic than the discretionary death penalty for kidnapping. Yet, the data is again inconvenient – what has happened is that the statistics for kidnapping have dipped to literally vanishing levels, and there they have remained for years,  but, as we have seen, the drug figures have see-sawed. We have no reason to believe that the drug figures would have been worse had the death penalty not been mandatory.

Again, one may surmise why this has been so. Perhaps those who would have in the past committed kidnapping offences have logically turned their energies to rather more legitimate and lucrative pursuits following Singapore’s phenomenal economic progress since the 1960s. It therefore made no difference that the death penalty was not mandatory – indeed it may not even have made a difference if instead of the death penalty, life imprisonment was the maximum penalty.  Perhaps increasing levels of technology and police competence have made enforcement more effective and it is this which has deterred potential offenders. It is at least a significant possibility that the drug figures would similarly not have been altered for the worse had the death penalty been discretionary.

Two troubling practices

It is in this regard that there are practices surrounding the death penalty for drugs which trouble. Two examples will perhaps suffice. The first is the existence of presumptions for death-penalty prosecutions.

No amount of official explication can get around the fact that the only conceivable purpose of a presumption is to enable a conviction notwithstanding the existence of reasonable doubt, which in all other situations would entitle the accused to be acquitted.

A conviction in spite of reasonable doubt is disturbing enough for any criminal conviction, but an ethical line must somewhere be crossed when it exists for capital cases. Do we need the presumptions so badly that we need to make the ethical sacrifice? One would have thought, if at all, only if the gains in deterrence are sufficiently clear and founded.

The second example is the precise mens rea requirement for the capital offence of trafficking.

There appears to be some confusion somewhere. Official pronouncements seem to say that people are executed only when they intentionally or knowingly traffic in drugs. That is an incorrect statement of the law, as it appears to have been interpreted by the courts.

There have been distinct and repeated pronouncements that one can indeed be found guilty of capital trafficking although there is no knowledge that one is possessing drugs.

Thus, if the accused thought he was trafficking aspirin or Viagra, but the tablets turn out to be heroin, he or she is deemed to be trafficking in heroin – it does not matter whether or not the accused genuinely or even reasonably believed that they were aspirin or Viagra. Thus, also, if the accused is delivering a container, he or she is liable for trafficking in whatever the box contains as long as there was a reasonable opportunity for inspection – it does not matter that the accused genuinely, and perhaps foolishly, believed that the box contained chocolates. Do we need such strict liability for capital cases so badly that we have to make the ethical sacrifice? Again, if at all, only if there are convincing gains in deterrence.

Presumptions

The operation of presumptions in the context of capital offences raises issues of greater complexity. The rule of evidence that it is the accused who must prove a general or special exception does appear to be in violation of both equal protection and the potential right against cruel and inhuman punishment. Just why the accused must bear the burden for general and special exceptions but not for elements of the offence has never been rationally explained. A credible case can surely be made that visiting the death penalty on an offender where there is in existence reasonable doubt violates the protection against cruel and inhuman punishment. Like the murder provisions in the Penal Code, the governing provision in the Evidence Act was not one which was consciously deliberated upon in any of our representative bodies. The presumptions in the Misuse of Drugs Act cannot be so cursorily disposed of.

One of them was challenged without success in Ong Ah Chuan. In a ruling which has become more quoted (elsewhere) now for what the law should no longer be, the Privy Council declared that so long as there was some evidence logically probative of guilt, presumptions pose no constitutional problems. There was no such thing as a “presumption of innocence”, nor did the Privy Council deem it important, or indeed relevant, that the death penalty followed on conviction. History was not to be kind to the Privy Council – all over the world, constitutional courts and human rights instruments were soon to elevate the presumption of innocence to a fundamental right, just as the move to scrutinise death penalty process more stringently than ordinary criminal process gathered momentum.

No convincing reason has ever been advanced for the necessity of these presumptions, nor have the serious ethical problems in ignoring the existence of reasonable doubt ever been addressed.

Yet, here the courts must move cautiously. Whatever the Judiciary, or anyone else, might think, the drug presumptions were introduced by a conscious and deliberated decision in Parliament. This does not of course mean that the courts must never strike down such legislation, but it does mean that if the courts choose to act at all, they must do so with a clear idea of what the ultimate result of their intervention might be.

Death in Singapore and the world

There is no doubt that a worldwide movement to abolish or at least restrict the use of the death penalty has gathered considerable momentum. Entire continents frown at its use and many jurisdictions which do retain it do so only for most heinous murders and the like. There are retentionist strongholds, especially in Asia, but there few if any with Singapore’s level of economic and social development which use the death penalty as much as Singapore does.

Singapore’s closest comparisons in terms of development and culture are probably Japan, which executes very few people and only for aggravated murder; South Korea, which is retentionist for murder but has had a moratorium in place since 1998; and Hong Kong, which is abolitionist and executed its last offender in 1966.Yet, no Singaporean would think twice about visiting these countries for fear of being victims of crime.

The Nguyen decision reveals an interesting ambivalence – there were near simultaneous pronouncements that Singapore courts must abide by international norms, but that if there were to be a clash between domestic law and international norms, domestic law must prevail.

Singapore desires to be like the developed economies of Asia and the West, but at the same time jealously guards its peculiar political culture, one which appears to have been untouched by the passage of almost half a century. People who argue that economic and social development must always bring with it political change have surely not been right, but are we to believe that economic and social change can be for all time hermetically sealed from political repercussions? It must be right that Singapore is not to change its behaviour simply because another country or an international organisation tells it to do so – that would be foolish. Yet, it must also be prudent to listen to what others have to say to us and to observe what they are doing in their own jurisdictions in order to reflect on how we can improve the governance of Singapore – to do otherwise would also be foolish.

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