No convincing reason to believe that the MDP works

TOC interviews Professor Michael Hor of NUS - an expert on criminal law, evidence and constitutional law - on his views of the Death Penalty

By Wong Chun Han

The Online Citizen speaks to Professor Michael Hor who teaches at the National University of Singapore Faculty of Law. His areas of research include criminal law, evidence and constitutional law. He has published several academic papers on capital punishment in Singapore and was a consultant to the Law Society’s Ad Hoc Committee on Capital Punishment.

TOC: Why might the mandatory death penalty be considered legally problematic and how would you explain this to laymen?

Prof Hor: Perhaps the most prominent aspect of a mandatory death penalty is the absence of a judicial discretion in relation to the most extraordinary sentence in our criminal law. The judge trying the case can only determine guilt or innocence, and once that is done, the death penalty automatically follows.

This goes against the grain of modern penological thinking that the punishment ought to fit not only the crime, but the criminal. It means that the judge should have the power and the duty to take into account the personal circumstances of the offender and especially whether there are significant reasons why, although the offender did indeed offend, the punishment ought not to be death – the maximum permissible by the law.

To give a simplistic example, some of us might think that the death penalty is justified for a drug trafficker who is very wealthy and who traffics in large amounts of illegal drugs only to feed his or her own greed, but most of us might think quite differently about another who had agreed to carry a little over the statutory limit in order to pay for necessary medical treatment of a family member.

The law traditionally vests sentencing discretion in our judges to take such sympathetic circumstances into consideration. What actually happens where the death penalty is “mandatory” is not so much that there is no discretion, but that the discretion is now only in the hands of the  police (in terms of investigatory decisions) and the Public Prosecutor (in terms of prosecutorial decisions). The traditional thinking is that the judges who have sufficient detachment from the investigative and prosecutorial process ought to exercise the final decision. A judicial decision also has the advantage of being entirely “open” – for the reasons must be fully declared to the public, and of being appealable to the Court of Appeal (normally three of our most senior judges).

TOC: What are your views on the deterrent value of the mandatory death penalty? Is there a significant difference with that of discretionary death penalty?

Prof Hor: I think we simply do not know. Its proponents often point to the fact that drug offending in Singapore has been kept significantly down by the mandatory death penalty. But if the mandatory death penalty is the key, or at least one of the keys, then how do we explain that for kidnapping, which carries a discretionary death penalty under the Kidnapping Act, seems to have achieved even more spectacular results? Some also argue that the introduction of the mandatory death penalty in the 1970s did actually result in a fall in drug offending – but again, we do not know whether and to what extent the mandatory death penalty played a role, for at the same time, it was revealed in Parliament that the government was going to devote much more resources into drug enforcement.

Was our success because of enhanced enforcement or because of the mandatory death penalty (or both)? Drug offences did dip, but rose again in the early 1990s, apparently to levels which were higher (subject to population increase) than the 1970s – and in all that time the mandatory death penalty was well in place.

The deterrent effect of the mandatory death penalty in the context of murder is even more uncertain – it would appear that almost all murders are “crimes of passion” or committed in the heat of the moment, perhaps in the course of robbery. Deterrence works only when potential offenders have sufficient capacity and opportunity to calculate the consequences of their actions – more precisely, it requires the potential offender to discriminate between a discretionary death penalty (I may get the death penalty), and a mandatory death penalty (I will get the death penalty). That would appear to be unlikely in crimes of passion.

Now we must also be clear, on the other hand, that none of this proves that the mandatory death penalty does not work. We simply do not have, in my view, convincing reasons to believe that it does.

TOC: What are the possible constitutional objections to the mandatory death penalty? Can a strong case be made for the repealing of the mandatory death penalty?

Prof Hor: Shorn of technicality, the constitutional case against the death penalty is essentially based on the argument that the right to a fair trial includes the right to suffer only punishment which is proportionate to the seriousness of the crime and the blameworthiness of the offender. Where the death penalty is mandatory, the court is not entitled to exercise its traditional function of calibrating the severity of punishment to the seriousness of the crime and the blameworthiness of the offender. The importance of punishment proportionality (punishment fit for the crime and the offender) is heightened in the context of the death penalty, which is the most severe punishment we can visit upon an offender.

A constitutional challenge was mounted in the early 1980s with the Privy Council, then our highest court, rejecting the argument. Much has happened since, with later Privy Councils, and other major common law courts, apparently repudiating this decision. It remains to be seen whether our courts will adhere to the earlier decision or choose to take on board these later developments.

TOC: Given that the Court of Appeal will be hearing 21-year-old Malaysian drug mule Yong Vui Kong’s case in March, during which counsel will present arguments on the constitutionality of the mandatory death penalty, should there be a moratorium placed on the mandatory death penalty whilst a decision on its constitutionality is pending?

Prof Hor: There is sense in a moratorium pending the decision of the Court of Appeal, in the event that the argument prevails. But on the other hand, administratively, it will pose problems. There is nothing to prevent arguments of this nature to be made every year or every other year (in the event that it fails) – does that mean that everything that is done a moratorium ought to be imposed until the disposal of that appeal?

TOC: You wrote in a 2004 article entitled, ‘The Death Penalty in Singapore and International Law’:

A legal claim against Singapore for breach of international law in the conduct of death penalty cases is unlikely to happen, and if it happens success is not at all clear given the present state of customary international law. But if I am correct about the international trend, then there might well come a time when custom crytallises leaving Singapore in the cold.

Do you think international state practice has coalesced sufficiently for people to make a case that Singapore’s persistence with the mandatory death penalty is contrarian to customary international law?

Prof Hor: Things seldom move that quickly in the formation of customary international law. Additionally, customary international law does not have a forum which can decide with finality what the law is.

But what appears to be happening in China is in line with the increasing parsimony in the use of the death penalty. Observers have noted that since the Supreme People’s Court assumed the power to review all death sentences in 2007, there has been a significant drop in executions. And the world press has yesterday and today (10 and 11 February 2010) carried the report that the Chinese court has issued guidelines for the imposition of the death penalty, drafted in apparently very restrictive terms. The fact that the Chinese Supreme Court has the power to review all death sentences (and does in fact reverse death sentences imposed by provincial courts) seems to imply that the penalty is never mandatory in China.

But a word of caution ought to be sounded before any direct comparison is made – for example, Singapore does have the avenue of executive pardon which it has, but rarely, exercised. The fact remains that such a power exists, although it is in the hands of the executive government and not the courts. Also, China’s range of capital crimes is much larger than Singapore’s – encompassing for example serious tax and corruption offenders.

TOC: Under the current legislation, judges have no discretion under the mandatory death penalty. Can we rely on the discretionary powers of the prosecution not to prosecute a drug offender who may be considered as not deserving of the death penalty?

Prof Hor: It is not in doubt that the prosecution certainly has the power to take into account mitigatory circumstances in deciding whether or not to prefer a capital charge. It is also fairly certain that the Prosecutor does on occasion choose a non-capital charge when a capital charge would have been possible on the facts. The question is whether, in addition to prosecutorial discretion, the court ought to have the final say in the imposition of the death penalty.

I can personally see no harm in requiring both the Public Prosecutor and the Court to “approve” a sentence of death. That is how the finding of guilt and innocence works anyway.

TOC: Hypothetically, what would happen if an innocent person had drugs planted in his or her suitcase whilst returning from a holiday and was caught? Why can’t an accused simply claim ignorance?

Prof Hor: That scenario, which is often suggested, seldom happens in practice, as far as we can judge from the reported cases. It is seldom the case that the accused was completely unaware of the package which turns out to contain illegal drugs. It is quite common for an accused to argue that he thought it was something else – gems, Chinese herbs and the sort.

Let us be clear that if indeed the accused successfully persuades the court that he actually thought the package contained something else (or that he did not even know of the existence of the package), he is entitled to an acquittal. The problem is with proof, because the legislation (Misuse of Drugs Act) contains presumptions which shift the burden of proof to the accused. He has to prove that he either did not know the package was in his bag, or that, if he did know, he did not realise that it contained illegal drugs.

The normal rule, which reflects the principle of innocence until proven guilty, is that it is the prosecution who must prove knowledge. The presumptions change that and require the accused to prove that he did not know – in other words he is no longer entitled to the benefit of (reasonable) doubt. Whether or not these exceptions to the presumption of innocence are under the circumstances necessary and justified is the question.

TOC: Do you think going through the legal route to challenge the constitutionality of the mandatory death penalty is potentially more effective than direct political lobbying for the legislature to change the law?

Prof Hor: I think the dynamics are perhaps different for the two principal offences which attract the mandatory death penalty. For drug offences, the imposition of the mandatory death penalty was a decision consciously arrived at in the 1970s to combat a serious criminal and social problem. The courts will understandably be very circumspect about “going against” such a considered legislative decision.

Murder is different – the mandatory death penalty is a historic position which came to us together with the Penal Code in the 19th century. Interestingly, the death penalty in the parent Indian Penal Code was (and still is) discretionary. But for reasons now apparently lost to us, it was made mandatory for the Straits Settlements. I don’t think there has been any considered legislative decision that, at least since self-government in 1959, the mandatory death penalty ought to remain for murder. Unlike drugs, murder has not in recent memory been particularly a problem in Singapore. Attitudinally, therefore, the drug law is more likely to be regarded as “political” and the murder law as “legal”.

TOC: The Law Society’s 2007 recommendations to the Ministry of Home Affairs on the mandatory death penalty have not been taken on board by the relevant authorities in any practical manner. Was this expected, or has it been a cause for disappointment?

Prof Hor: I think the government made it clear that it did not wish to put that on the table in 2007 when a host of other amendments to the Penal Code was being discussed. Logistically that was perhaps understandable. Prioritisation of proposed legislative change is a matter for the government. But I hope that it will one day, in the not too distant future, it will be put on the table for serious discussion.

I hope for a discussion amongst all stakeholders – representatives from the police, the prosecutors, defence counsel, academics (sociologists, criminologists, philosophers, lawyers, for example) and the judiciary certainly come to mind.

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