Yvonne Ho /
Like many Singaporeans, I was in favour of the death penalty for drug trafficking. After all, if you do a cost-benefit analysis to decide if you want to traffic drugs, the only way to deter anyone from ever trafficking is to make them pay the ultimate price of doing so. However my way of thinking was totally thrown out when I realised the difference between the Mandatory Death Penalty and the Death Penalty; and when I started reading up on the Misuse of Drugs Act and the Criminal Procedure Code.
With the Mandatory Death Penalty, the judge has no discretion on the sentencing, the judge can only find the accused guilty or not guilty. He cannot look into the extenuating circumstances that mitigate the crime and apply the sentence he finds appropriate. The vital essence of the judiciary – discretion – is usurped by mandatory sentencing.
In addition, the death sentence is the heaviest sentence available. In other sentences, a minimum and maximum sentence is prescribed, the judge has still discretion to choose the sentence that fits the crime and the criminal. For example, in August 2011, District Judge Low Wee Ping would have sentenced the man more strokes of cane if he had been above 21 years old at the time of the crime.
In a recent video poll, many Singaporeans were not aware of the difference between the Death Penalty and the Mandatory Death Penalty. TOC supports the abolishment of the Mandatory Death Penalty but does not call for the abolishment of the Death Penalty. Even without the Mandatory Death Penalty, the judge may sentence a criminal to death if he deems it appropriate for the crime and the criminal.
Under Singapore’s penal code, the death sentence may be passed for the most serious crimes –
- Murder
- Drug trafficking
- Unlawful discharge of firearms
- Kidnapping or abducting in order to murder
- Robbery committed by five or more people that results in the death of a person
- Waging or attempting to wage war or abetting the waging of war against the Government*
- Offences against the Presidentís person (in other words, treason)
- Mutiny
- Piracy that endangers life
- Perjury that results in the execution of an innocent person
- Abetting the suicide of a person under the age of 18 or an “insane” person
- Attempted murder by a prisoner serving a life sentence
However, the mandatory death sentence applies to
- murder
- drug trafficking (above a certain amount of Class ëAí drugs)
- unlawful discharge of firearms
- treason
Serious crimes like kidnapping and gang robbery do not carry the mandatory death sentence. The judge is still able to use his discretion to give the appropriate sentence, including the death sentence.
Mandatory Death Penalty and The Misuse of Drugs Act
Under the Misuse of Drugs Act Section 17, you are presumed to be trafficking if you have in your possession more that the listed amount of drugs, i.e. you are presumed to be guilty and have to prove yourself innocent of trafficking.
However, to have such presumption clauses that will result in a mandatory death sentence means that if you’re caught with a large amount of drugs on you, you are likely to be sentenced to death.
Professor Michael Hor of the Law Faculty of NUS spoke in an interview with TOC in 2010, “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 ñ 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.”
Imagine what would have happened if you were like the Mexican teacher, Ana Martinez, who was caught with 100 pounds of cannabis in her car, and you were caught at the Causeway coming into Singapore. She was caught at the US-Mexico border and imprisoned for a month while prosecutors prepared charges of trafficking, before getting†acquitted. She was very lucky that narcotics officers were tracking the drug syndicate that targeted her.
In May 2010, then Law Minister K Shanmugam defended the mandatory death penalty and said in reference to the clemency appeal of Yong Vui Kong, a young drug trafficker on death row, “We are sending a signal to all the drug barons out there: Just make sure you choose a victim who is young, or a mother of a young child, and use them as the people to carry the drugs into Singapore”
I doubt drug syndicates care if their mules get hanged or not. Under Singapore law, young persons under the age of 18 at the time of the crime will not get hanged. Yet we do not hear of drug syndicates sending scores of 16 and 17 year old youths to smuggle drugs into Singapore. There is no need for a mandatory death penalty to send a signal to drug barons. Obviously, they do not care.
Alternatives to the Mandatory Death Penalty for Drug Trafficking
In the fight against drug abuse, the onus should not only be on the deterrent of trafficking and pinpointing only the trafficker. The fight against drugs should be more holistic, targeting drug syndicates and drug barons, greater border checks and law enforcement, education and rehabilitation of drug offenders ñ drug abusers and traffickers alike.
As Jeanette Chong Aruldoss asks if factors like a well-organized police force, well-trained investigation officers, a well-equipped central narcotic bureau and a comprehensive anti-drug abuse education program – don’t all these also help in the fight against drug abuse? Will Singapore’s fight against drug abuse be seriously hampered without the mandatory death penalty?
Stiff sentences are only one part in the fight to remove drug abuse from Singapore. There is debate on the effectiveness of the death penalty on drug trafficking and that a lesser sentence can work just as effectively.
Conclusion
Removing the Mandatory Death Penalty for drug trafficking does not mean acquitting all drug traffickers of their crime. It does not mean that judges cannot sentence drug traffickers to death. It will not result in a surge of drugs into Singapore.
Instead of mandating the minimum sentence of death, set death as the maximum sentence and allow the judge discretion to sentence. We should have faith in our judiciary to discern appropriate sentences.