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Scant evidence for causative relationship between the death penalty and the law – MARUAH

Last month, eight Singaporean NGOs submitted their report on human rights issues, ranging from electoral process, to migrant workers rights to the United Nations Universal Periodic Review. Below is the report from MARUAH to the UPR (to find out more about the UPR, click here)


UNIVERSAL PERIODIC REVIEW – SINGAPORE SUBMISSION OF MARUAH (WORKING GROUP FOR AN ASEAN HUMAN RIGHTS MECHANISM, SINGAPORE)

A. Executive summary
1. MARUAH makes this submission on two critical aspects of the human rights situation in Singapore, viz. the death penalty and preventive detention without trial. MARUAH believes that the death penalty is inconsistent with prevailing customary international law, but accepts that Singapore and Singaporeans may not be ready to agree to a total repeal of the death penalty. However, the mandatory death penalty, especially in drug cases where possession for trafficking is presumed, clearly breaches human rights norms, and so must be immediately repealed. In addition, MARUAH calls for greater transparency and accountability in the use of preventive detention without trial, consistent with international norms in the use of such mechanisms.

B. Death Penalty
2. The law and practice. The death penalty has been practised in Singapore since the earliest days of British colonial rule. In 1871, the Penal Code was enacted with a handful of offences punishable by death, including murder (for which death was and remains mandatory). After Singapore attained self-government in 1959, the death penalty was introduced for several other offences: discretionary death for kidnapping for ransom (recently extended to kidnapping for a “terrorist” cause), mandatory death for certain firearm offences, and most significantly, mandatory death for certain drug offences, including trafficking in certain stipulated drugs above a certain amount. It seems likely that almost all executions are for murder or drug offences. The President may grant clemency, but this is rarely done – one known example was a drug offender who already had terminal cancer.

3. Legality of death penalty. Article 9(1) of the Singapore Constitution provides that no person “shall be deprived of his life or personal liberty save in accordance with law.” The courts have interpreted this to mean that Parliament may constitutionally impose the death penalty, so long as it is in accordance with law, which includes the fundamental rules of natural justice. However, there is at least a very strong case for arguing that customary
international law has changed such that it now prohibits the death penalty, in which case Singapore’s continued use of the death penalty would contravene such norms.

4. Principle of proportionality. It is likely that Article 6(2) of the ICCPR, providing for the death penalty to be imposed only for the most serious crimes, has become customary international law. Accordingly, the continued use of the death penalty in the following types of cases, which clearly should not be considered to be “the most serious crimes”, is disproportionate and hence contravenes human rights: (a) murder under Section 300(c) of the Penal Code, where death results from an intended injury even where the person inflicting the injury did not intend to cause death; (b) constructive liability for murder, such as where there is a common intention to commit a crime, in connection with which a murder was committed
by another person, or where under the provisions for abetment or robbery;10 and (c) kidnapping, firearms and drug cases, which although serious, do not involve the intentional causation of death and do not need to result in death at all.

5. Mandatory death penalty. All of the death penalty cases in the five years up to 2007 carried the mandatory death penalty, being drug trafficking, murder and firearms-related cases. The judge has no sentencing discretion in such cases. This deprives an accused person of the opportunity to have the judge consider all relevant factors in sentencing, and is inconsistent with the emerging, if not established, norm in customary international law
against mandatory death penalties. In March 2007, the Law Society of Singapore sent a report to the Ministry of Home Affairs, arguing for judges to be given discretion in whether to impose the death penalty. However, the Singapore courts have consistently upheld the mandatory death penalty as constitutional, despite recent Privy Council decisions to the contrary.

6. Due process and fairness. Given the irreversible nature of the death penalty, the criminal process in capital cases must be fair at all stages. In this regard, several features of Singapore’s criminal process, which are generally troubling, become particularly alarming in capital cases. Firstly, accused persons can be denied access to counsel for up to two weeks after arrest, purportedly to enable the police to conduct investigations without undue
interference, despite a constitutional right to counsel. There is anecdotal evidence that counsel is routinely denied until incriminatory statements (which are admissible at trial) are successfully extracted from the accused, or at least, until exhaustive attempts have been made to do so. Secondly, Singapore law allows an accused person to be convicted based entirely on her confession recorded in the course of police interrogation. Accused persons routinely alleged that their confessions are involuntary (which would make them inadmissible), but proof is near-impossible in the absence of any independent verification or supervision of the confession. Thirdly, the provisions on capital firearms and drug offences include presumptions that can be difficult, if not practically impossible, to rebut. Yet, persons can and have been hanged on the basis of such presumptions.These presumptions violate the fundamental presumption of innocence in the most ominous of contexts, viz. the potential of a mandatory death penalty. Finally, a recent book on the death penalty in Singapore has alleged that the Government makes or influences prosecution decisions such that offenders who are foreigners from rich countries do not face the death penalty, so as to avoid any adverse impact on economic and trade relations; while the author is facing contempt of court proceedings (the decision in which is pending as at the date of writing), the Government has to date not issued any official rebuttal or denial to, or any clarification on, these allegations.

7. Effectiveness as deterrence. The Government has consistently justified the death penalty on the basis of its purported role in ensuring the excellent law and order situation in Singapore. However, there is scant evidence for any such causative relationship between the death penalty and the law and order situation. Indeed, there is some indication that the contrary is true. Almost all murders are “crimes of passion”, which are not susceptible to
deterrence. The incidence of drug offending since the introduction of the death penalty has fluctuated so much that it is impossible to ascertain any causative link. While there is also no convincing evidence that the death penalty has failed as a deterrence, MARUAH holds that the Government has to date failed to discharge its moral burden of persuasive proof that the death penalty does work.

8. Recommendations. MARUAH recommends that the Government review the scope of capital offences, so as to ensure that the death penalty is imposed only in the most serious of crimes; the death penalty not be used in the context of group crimes, where the accused person has not personally intended to commit murder; all instances of the mandatory death penalty be immediately repealed and replaced with a discretion to impose the appropriate sentence up to death; the criminal process be reviewed to ensure that capital cases undergo the most rigorously fair pre-trial and trial process, including access to counsel immediately upon arrest, an effective system of supervision of the extraction and recording of confessions
by the police, and a repeal of the use of presumptions in capital cases; and the Government publish persuasive, objective evidence of the deterrent effect of the death penalty.

C. Preventive detention without trial
9. Relevant legislation. In Singapore, the power to detain a person without trial (in both cases for potentially indefinite periods) arises from two statutes, viz.  the Internal Security Act (ISA) and the Criminal Law (Temporary Provisions) Act (CLTPA). The ISA is used for threats to the prevailing political system, while the CLTPA is used against organized crime. 54 persons were detained under the ISA from 1999 to 2007; as of 9 April 2007, 39 remained in detention. The number of CLTPA detainees has fallen from 1260 in 1988, to 463 in 1998, to 290 in 2008, but there seems to be 94 more CLTPA detainees in 2008 than in 2004. These are not insubstantial numbers, given the small population of Singapore (currently 5 million); by way of comparison, as of 17 January 2009, about 245 persons remained in detention at Guantanamo Bay (with the United States having a population of 307 million in 2009).

10. Significant ISA cases. Significant episodes and cases of detention under the ISA (and its legislative ancestors) included: (a) Operation Coldstore in February 1963, when at least  111 left-wing politicians and activists were detained;20 (b) opposition Member of Parliament
Chia Thye Poh;21 (c) Operation Spectrum in May and June 1987, when 22 Roman Catholic social activists and professionals were detained;22 and (d) alleged radicals and terrorists linked to Jemaah Islamiyah, from 2001 onwards.23 Notably, none of these detainees were ever tried or convicted in a court of law.

11. Questionable justification for such powers. Situations of grave emergency could conceivably justify detention without trial, and the ISA (and its predecessor statutes) were enacted during such times, in response to a Communist armed insurgency. Similarly, the CLTPA was introduced when the organized crime situation could not be handled by an inefficient and corrupt regular police force. While both the ISA and the CLTPA are entrenched in the Singapore Constitution by way of Articles 9(6) and 149, the use of such a power in ordinary times must still be subject to careful and stringent scrutiny. The circumstances which justified the introduction and use of the ISA and the CLPTA no longer exist, yet they continue in force, now framed as a necessary tool of day-to-day government for all time, despite the serious inroads made by these statutes into the fundamental human rights guarantees of a fair trial and due process under Articles 9, 10 and 11 of the UDHR.

12. Safeguards against abuse. The courts’ power of judicial review is a critical safeguard against abuse of the executive power of preventive detention. However, the courts may only review ISA detentions for procedural compliance and not on substantive grounds, although substantive review remains available for CLTPA detentions.25 In addition, the procedural mechanisms used for both ISA and CLTPA detentions are not transparent and shrouded in secrecy, and appear to be so unfair to detainees as to contravene their human rights.

13. Conditions of detention. Both the ISA and the CLTPA explicitly empower the Government to detain persons, and this power must include ancillary powers to operate a detention facility safely and humanely. However, the detaining authorities seem to have assumed many other powers not connected with or strictly required for the power to detain, such as the power to put detainees in solitary confinement for extended periods; the power to interrogate; and the power to grant and remove detainees’ privileges, like access to reading and writing material and very limited visitations rights. In other words, detainees are treated in the same way as convicted criminals. But the power to detain must be limited strictly to detention, and cannot be allowed to be used to break, punish or “rehabilitate” the detainee. After all, the detainee is not a convicted criminal. In addition, there has been a consistent stream of past detainees alleging psychological mistreatment and even physical violence whilst in detention.There has never been any public inquiry into the truth of these allegations. The right not to be tortured or subject to inhuman or degrading treatment under Article 5 of the UDHR is fundamental as it is undeniable. MARUAH also finds it deeply unsatisfactory that even if the allegations were true, any attempt to prove them will be well- night impossible, since the detainee would not have any means of independent verification.

14. Recommendations. MARUAH calls for a public review of whether the ISA and the CLTPA, in their present forms, remain relevant and appropriate to the current situation in Singapore; in particular, the ISA and the CLTPA to be amended to comply with international norms and best practices on preventive detention, including strict limitations on the maximum duration of detention as in Australia and the United Kingdom;29 the reinstatement
of the courts’ power to review the Government’s detention decisions on substantive grounds; the advisory bodies under the ISA and the CLTPA to be institutionally independent from the executive, including being manned completely by Supreme Court judges with security of tenure as members of the advisory body, being empowered to decide on substantive issues including whether the detainee in question does in fact pose the type of exceptional danger justifying preventive detention and whether there are any other satisfactory methods of dealing with the detainee besides detention without trial; compliance with the decisions of such independent advisories bodies being mandatory; the proceedings before the advisory
bodies to comply with the requirements of due process and a fair trial to the maximum extent practicable, including allowing the detainee and his or her counsel to review evidence against him or her unless there is clear, objective evidence that doing so would materially compromise any person’s security or safety; and the independent advisory bodies’ jurisdiction and powers to be extended to include overseeing the appropriate conditions of detention for each detainee, with the objective of ensuring that no detainee is put in fear of torture, or inhuman or degrading treatment, physical or psychological, of any kind. presented against him or her, and the detainee does not have the right to challenge adverse witnesses. The Government usually appoints a sitting Supreme Court judge to chair ISA advisory bodies, but that chairman is not exercising proper judicial powers and does not have security of tenure in that capacity. The chairman can also be outvoted by the other two members of the advisory body (who need not be judges).

Download the pdf copy of the report here.