Performing law

The following article was written by Alex Au and published on his website, Yawning Bread, on January 2007. We highlight it here to raise concerns, as Alex did back then, about the mandatory death penalty.

By Alex Au

Once more, a life is taken. Iwuchukwu Amara Tochi was hanged just before dawn on 26 January 2007. He had been caught with 727 grams of heroin in the transit area of Changi airport 2 years ago, when he was just 19 years old. It was his first visit to Singapore, to look for a position with a football club.

On the eve of his execution, Nigerian President Olusegun Obasanjo, after a long delay, finally appealed to Singapore President S Nathan for clemency. Of course it was rejected — Singapore has a machismo complex.

Prime Minister, Lee Hsien Loong, in his reply to the Nigerian head of state said, “There are no new grounds for the case to be reconsidered and all legal avenues have been exhausted.”

Lee added that the 727 grams found in Tochi’s bag “amounts to more than 48,000 doses of heroin on the streets, enough to have destroyed many lives and families,” and that the government “takes a firm stance against drugs to deter Singaporeans and others from importing drugs into Singapore or using the country as a transit hub for narcotics.”

Not so simple.

To begin with, the conviction was troubling. Since I have covered his case in some detail in the earlier article The case of Iwuchukwu Amara Tochi, I will only touch on 3 key issues here:

Firstly, Tochi was only 19 years old, with not much education. Was it safe to assume that he was familiar with the ways of the world, including the drug trade and the risks involved? Could he be expected to know that different countries view drugs with different degrees of severity?

How many Singaporeans at 19, educated or not, would be familiar with other offences around the world, e.g. petrol smuggling, the arms trade, transporting seditious literature or pornography, and the risks involved?

Secondly, after he had been noticed by airport hotel staff as having loitered in the transit area for more than 24 hours, he was told that the police would be called before they would issue him a room. The police didn’t arrive until 20 minutes later, during which Tochi was free to wander around the airport some more. Anyone who knew he was carrying drugs would have disposed of them in those 20 minutes. Tochi did not, and as his defence counsel said, such behaviour was consistent with his belief that he didn’t have drugs in his possession.

Thirdly, the trial judge himself conceded there was no direct evidence that Tochi even knew that what he was carrying was heroin. Tochi had claimed throughout that he had been told it was a package of African herbs. However, the trial judge also said, Tochi ought to have inspected the package. His failure to inspect it suggested guilt.

When the case went up to the Court of Appeal, one of the three appeal judges dissented from confirming the verdict, if my memory serves me correctly, on precisely the above point. And yet, President S Nathan, acting the advice of the cabinet, would not take that into account and grant clemency.

Beyond the question of conviction, there is also the question of whether the death penalty was appropriate. Unfortunately the death sentence is mandatory for this offence, This is a great favourite of the Singapore government, to tie the hands of the judges. Once a judge finds someone guilty of trafficking in more than 15 grams of heroin, there can be no other sentence than death.

This leaves no room whatsoever for mitigating circumstances.

* * * * *
While Tochi’s case, in my opinion, was an unsafe conviction, there may be other cases where indeed the accused is guilty of drug trafficking. But ‘guilty’ should not necessarily have to mean execution. The Singapore government, however, maintains that the mandatory death sentence is needed for its deterrent effect.

Yet, as I have pointed out in an earlier article Death penalty as deterrence – the easy way out, the evidence from across a number of countries is mixed at best. Quite a number of places achieve low rates of drug abuse without resorting to capital punishment for drug offences.

But even if we suppose, for the sake of argument, that it can be a deterrent, it won’t be unless it is publicised, and the publicity directed at the population you wish to deter. Since many of the cases involve foreigners, the publicity should be directed at them in their home countries where drug lords and recruiters operate.

Yet, the fact is, not only is no effort made to publicise Singapore’s draconian laws into the cities, towns and villages of other countries, our government refuses to reveal information about executions altogether. Such information seems to be marked ‘Top Secret’. As Charles Tan pointed out in his essay Abolishing death penalty: understanding the challenges, Amnesty International is left to guess how many executions Singapore carries out annually. How do we reconcile this secrecy with the claimed-for deterrent effect?

In the rare case where an execution is publicised, our subservient media typically reports the official statement, and then shuts up about the matter. Everything we do is the opposite of publicity; yet we claim that our heavy penalties have a deterrent value abroad. Really? From the villages of Bolivia to the fields of Pakistan?

No doubt drug lords make it their business to be well-informed about our laws, but I can’t recall a single case where we’ve nabbed one. The people we hang are the lowly couriers, commonly known as the ‘drug mules’. From the drug lord’s point of view, occasionally he loses a shipment; he factors it into his cost of doing business and won’t bother to spare a thought for the young life that he sacrifices.

On our part, we gloat over the mules that we capture. Once caught, we put them on a conveyor belt to the hangman’s rope. With the mandatory death penalty, there’s no room for mitigation; we aren’t able to offer them a reduced sentence in return for information that might lead to the capture of the drug lord. Why should they help law enforcers when they’re going to be hanged anyway?

We don’t seem to be interested in going after the drug lords; we seem merely to want to tote up the body count.

As Aaron Ng cried out in his blog, with reference to Tochi’s execution,

I never imagined that [the death penalty] would be applied so mechanically. In fact, I think it has been so grossly abused. I have lost faith in the Singapore justice system. The taking of one’s life as punishment now appears to be nothing more than routine business.

We are merely performing law. We don’t stop to ask if our actions are truly informed by a sense of justice and proportionality.

All the while, we imagine we are battling the drug lords, whom we never catch. But seen from another angle, we are as callous as they are over the lives of the couriers. To them, the drug mules are disposable; they are merely instruments for arriving at a profit. To us, they are disposable too, mere statistics for “deterrent value”, which we promptly mark “Top Secret” lest others see us as bloodthirsty.

But we may be worse than drug lords. They sacrifice lives because they are calculative. We? We sacrifice them because we are mindless and unthinking.


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