• About Us
    • Fact Checking Policy
    • Ownership & funding information
    • Volunteer
  • Subscribe
  • Letter submission
    • Submissions Policy
  • Contact Us
The Online Citizen Asia
  • Opinion
    • Editorial
    • Commentaries
    • Letters
    • Comments
  • Current Affairs
    • Singapore
    • Malaysia
    • Indonesia
    • China
    • ASEAN
    • Asia
    • International
  • Finance
    • Economics
    • Labour
    • Property
    • Business
  • Community
    • Arts & Culture
    • Consumer Watch
    • NGO
    • Lifestyle
    • Travel
  • Politics
    • Civil Society
    • Parliament
    • Transport
    • Education
    • Environment
    • Health
    • Housing
  • Law & Order
    • Legislation
    • Court Cases
No Result
View All Result
  • Opinion
    • Editorial
    • Commentaries
    • Letters
    • Comments
  • Current Affairs
    • Singapore
    • Malaysia
    • Indonesia
    • China
    • ASEAN
    • Asia
    • International
  • Finance
    • Economics
    • Labour
    • Property
    • Business
  • Community
    • Arts & Culture
    • Consumer Watch
    • NGO
    • Lifestyle
    • Travel
  • Politics
    • Civil Society
    • Parliament
    • Transport
    • Education
    • Environment
    • Health
    • Housing
  • Law & Order
    • Legislation
    • Court Cases
No Result
View All Result
The Online Citizen Asia
No Result
View All Result

Practices surrounding the death penalty for drugs troubling

by onlinecitizen
26/02/2010
in Uncategorized
Reading Time: 7 mins read
0

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.

__________________________________________________________________

For just US$7.50 a month, sign up as a subscriber on The Online Citizen Asia (and enjoy ads-free experience on our site) to support our mission to transform TOC into an alternative mainstream press.

Related Posts

AFP

Google to release ChatGPT rival named Bard

07/02/2023
Earthquake kills more than 3,800 in Turkey, Syria
AFP

Earthquake kills more than 3,800 in Turkey, Syria

07/02/2023
Leong Mun Wai calls for a reset of housing policies to deliver affordable and accessible HDB flats and protect retirement adequacy
Politics

Leong Mun Wai calls for a reset of housing policies to deliver affordable and accessible HDB flats and protect retirement adequacy

07/02/2023
LTA revises ERP rates up after latest review; Gantries reach as high as S$5 for 8:30am – 9:00am
Singapore

LTA revises ERP rates up after latest review; Gantries reach as high as S$5 for 8:30am – 9:00am

07/02/2023
Stern warnings was an “in-between” solution as CPIB lacks sufficient evidence to prosecute six former KOM executives for bribery, said Indranee Rajah
Parliament

Stern warnings was an “in-between” solution as CPIB lacks sufficient evidence to prosecute six former KOM executives for bribery, said Indranee Rajah

06/02/2023
19-year-old delivery rider in China covers 5km in 22 minutes to deliver antivenom to woman who had bitten by snake
China

19-year-old delivery rider in China covers 5km in 22 minutes to deliver antivenom to woman who had bitten by snake

06/02/2023
Subscribe
Connect withD
Login
I allow to create an account
When you login first time using a Social Login button, we collect your account public profile information shared by Social Login provider, based on your privacy settings. We also get your email address to automatically create an account for you in our website. Once your account is created, you'll be logged-in to this account.
DisagreeAgree
Notify of
Connect withD
I allow to create an account
When you login first time using a Social Login button, we collect your account public profile information shared by Social Login provider, based on your privacy settings. We also get your email address to automatically create an account for you in our website. Once your account is created, you'll be logged-in to this account.
DisagreeAgree
0 Comments
Inline Feedbacks
View all comments

Latest posts

Google to release ChatGPT rival named Bard

07/02/2023
Earthquake kills more than 3,800 in Turkey, Syria

Earthquake kills more than 3,800 in Turkey, Syria

07/02/2023
Leong Mun Wai calls for a reset of housing policies to deliver affordable and accessible HDB flats and protect retirement adequacy

Leong Mun Wai calls for a reset of housing policies to deliver affordable and accessible HDB flats and protect retirement adequacy

07/02/2023
LTA revises ERP rates up after latest review; Gantries reach as high as S$5 for 8:30am – 9:00am

LTA revises ERP rates up after latest review; Gantries reach as high as S$5 for 8:30am – 9:00am

07/02/2023
Stern warnings was an “in-between” solution as CPIB lacks sufficient evidence to prosecute six former KOM executives for bribery, said Indranee Rajah

Stern warnings was an “in-between” solution as CPIB lacks sufficient evidence to prosecute six former KOM executives for bribery, said Indranee Rajah

06/02/2023
19-year-old delivery rider in China covers 5km in 22 minutes to deliver antivenom to woman who had bitten by snake

19-year-old delivery rider in China covers 5km in 22 minutes to deliver antivenom to woman who had bitten by snake

06/02/2023
Why is Gautam Adani’s Indian empire in turmoil?

Adani shares dive again as Indian opposition stages demos

06/02/2023
Josephine Teo defends SPH Media Trust in Parliament on its circulation scandal; Commitment of S$900 million funding will still be made available

Josephine Teo defends SPH Media Trust in Parliament on its circulation scandal; Commitment of S$900 million funding will still be made available

06/02/2023

Trending posts

Cognizant India transfers staff to work in Singapore as recently as this year

Local IT grads can’t find jobs while engineers constantly transferred from India to work in SG under CECA

by Correspondent
05/02/2023
96

...

They have done a fine job of confusing us about the jobs situation

They have done a fine job of confusing us about the jobs situation

by Augustine Low
01/02/2023
47

...

Adani’s brother runs SG company and registers as director with local ID

Adani’s brother runs SG company and registers as director with local ID

by Correspondent
03/02/2023
26

...

Former Singaporean shares change of life in Australia with annual pay of S$80,000 as a plumber

Former Singaporean shares change of life in Australia with annual pay of S$80,000 as a plumber

by Yee Loon
30/01/2023
25

...

No response from Josephine Teo on whether Mediacorp has been instructed to stop coverage of SMT circulation scandal

No response from Josephine Teo over alleged blackout of coverage by Mediacorp over SMT circulation scandal

by Terry Xu
06/02/2023
11

...

Singapore Law Watch removes commentary on CPIB’s decision to not prosecute former Keppel executives

Singapore Law Watch removes commentary on CPIB’s decision to not prosecute former Keppel executives

by The Online Citizen
02/02/2023
19

...

February 2010
M T W T F S S
1234567
891011121314
15161718192021
22232425262728
« Jan   Mar »

The Online Citizen is a regional online publication based in Taiwan and formerly Singapore’s longest-running independent online media platform.

Navigation

  • Editorial
  • Commentaries
  • Opinion
  • Politics
  • Community

Support

  • Contact Us
  • Letter submission
  • Membership subscription

Follow Us

  • Facebook
  • Twitter
  • YouTube
  • Instagram
  • Fact Checking Policy
  • Privacy Policy

© 2022 - 2023 The Online Citizen Asia

No Result
View All Result
  • Opinion
    • Editorial
    • Commentaries
    • Comments
  • Current Affairs
    • Malaysia
    • Indonesia
    • China
    • ASEAN
    • Asia
    • International
  • Finance
    • Economics
    • Labour
    • Property
    • Business
  • Community
    • Civil Society
    • Arts & Culture
    • Consumer Watch
    • NGO
  • Politics
    • Parliament
    • Transport
    • Education
    • Environment
    • Health
    • Housing
  • Law & Order
    • Legislation
    • Court Cases
  • Lifestyle
    • Travel
  • Subscribers login

© 2022 - 2023 The Online Citizen Asia

wpDiscuz