Renewing Perspectives on the MDP

Renewing Perspectives on the MDP

By Howard Lee

Jointly organised by the National Solidarity Party and the Think Centre, the Public Consultation on Proposed Changes to the Mandatory Death Penalty drew a crowd of more than 100, packed into a tight room to hear from both the legal and human rights perspectives.

The event follows on the trail of the Singapore government’s announcement on 9 July 2012 to grant the courts discretion in considering specific mitigating factors when passing sentence on drug trafficking and homicide cases. Many saw this to be, effectively, the first step in the eradication of the MDP, although others were less optimistic and still see areas for improvement.


The core of the debate

I will not go too much into what the speakers delivered – you can read about those briefly below. I felt that the real test of the forum came during the Q&A session, much as the Straits Times is inclined to write it as emanating from an uninformed public. This was supposed to be a public consultation exercise, with all the heartaches and passionate appeals. So my interest here is to focus on remarks and questions from the floor of more than 100 participants who packed the room.

All the questions asked, save one, were directed at Woon. It would seem that the majority was keen to question the government's position on the death penalty, or at least seek clarifications on cases, either made reference to specifically or questioned in general, that calls doubt into the current position on the death penalty.

Unfortunately, Woon did not avail himself to answer these to the point, reluctant to say anything that may discredit his predecessors or make things difficult for his successors. But at times, there were valid concerns raised about how the law might have been applied without clear reasoning to the public, despite what Woon’s earlier insistence that questions about the death penalty should be directed at criminal lawyers.

Concerns raised – such as those about the complete disclosure of all evidence by the prosecution, decisions to that classify evidence as irrelevant, and presumptions that distinguish drug consumption from re-trafficking – call into question the transparency, if not the fairness, of the legal system. These concerns would likely not have been assuaged by Woon's often repeated response that every case should be considered on its own merit.

The perceived irregularities in “14.99g” prosecutions – where prosecutors decided to proceed on 14.99g because they had concluded, based on the overall circumstances of the case, that the accused did not deserve the death penalty (15g being the threshold where personal consumption rather than re-trafficking is presumed) – were brought up as a case in point. Woon stated that it was the decision of the prosecutor to reduce the quantity of drugs attributed to the offence, based on the discretion that seeking the maximum penalty could mean certain death for the offender. In other words, it was an undesirable distortion for getting around the MDP, whatever the intention might have been for doing so.

The way I see it, such a decision is odd, to say the least, and does not do any favours in projecting the credibility of our legal system. Why shouldn’t the actual quantity of drugs be factored into the charge, whereupon the judges can then decide on sentencing based on mitigating factors? Allowing the prosecutor the first call essentially allows him to be a pre-judge before the justice system has a chance to take effect. It would have been a lot more transparent for the full charges to be laid out, and allow for discretionary appeals to be made by the defendant to the judge. In such an instance, doing away with the MDP for all cases and widening the scope of mitigating factors would assist in increasing the transparency of our legal system, because prosecutors would no longer feel the need to pull punches in laying out charges.

Another question that I found note-worthy was one raised about the lack of documented evidence by criminologists to support the death penalty. Woon acknowledged this somewhat and agreed that such information would be useful. He then seem to suggest that even if advocates did not have evidence, they should still continue to make their arguments, because a reasonable, logically coherent argument without statistics would still carry weight.

To be honest, I felt that this question was specifically asking the government to justify its often-held position that the public is in favour of the death penalty and believes it to be a strong deterrence. Perhaps Woon was not in the position (anymore) to speak on behalf of the government, but to suggest that a logical argument that is made coherently could stand in for what has already been identified as lacking, is doing little more than bat around the issue. Eloquent garbage does not make it any less fit for the wastepaper basket. Interestingly, his disdain for polemic arguments does not seem to factor in the many calm, measured points raised at the forum that touch on inadequacies of the current legal system, as indicated in my examples, which were no less potentially controversial.

To be clear, it is not my intent to victimise Woon. Perhaps it was just unfortunate that the tirade of questions were directed at him. But it was clear that the Q&A session proved to be an open wound still for many who see a need to question the validity of the legal system from perspectives of equality in justice and transparency. There is also a strong call at the forum for considerations to go beyond the MDP and start casting a light on broader death penalty and human rights issues, as forwarded by Zeng and Samydorai.

Perhaps Chong summed it up best in her closing notes at the forum: We might not all be criminal lawyers, but we all have a stake in the justice system, because we are all recipients of the law. Indeed, the forum suggested that the average Joe, not just civil society, might really want to see transparency and a pulse on human dignity in how the government formulates our laws. It is timely for the government to be ready to engage the public on the people’s terms, rather than on its own guarded beliefs.


The (diverse) subjects of debate

The forum opened with Jeannette Chong-Aruldoss, Head of NSP’s Law Committee, who briefly summarised the scope of the proposed changes announced in July 2012. Chong opined that while Singapore believes in the deterrent effect of the death penalty, there was no evidence to support its effectiveness. While she welcomes the proposed changes, in particular for cases defined as murder where there was no intention to kill, she also noted possible problems for drug offences. These include the possibility that a reduced sentence of caning might still be too harsh for those with mental disabilities, and the lack of consideration for other extenuating circumstances for drug-related offences. With the rather limited scope granting commute for a death sentence, Chong doubted that we have totally eradicated the MDP.

Professor Walter Woon, former Attorney-General, next laid out eloquently and technically about how the prosecution of death penalty related offences work in procedure, and maintained that it was the responsibility of the prosecution to demonstrate evidence to prove the charge to up to four judges (i.e. trial judge and three Court of Appeal judges). While the prosecution has the discretion on whether or not to charge for capital offence, Woon acknowledged that not all deliberations are publicised. Nevertheless, he maintained that prosecutors “do not get a bonus” for every offender that hangs, and that they are independent and free from political influence.

Rachel Zeng, a human rights activist, then provided her observations and experiences from working with capital cases in Singapore. She shared a story that underscores “two wrongs don't make a right”, and believed that common sense is a stronger deterrence than the death penalty. She opined that preventing crime through fear is not as effective as education, and cited incidence when the death penalty does little to deter crime, such as in cases of mental illness, ignorance of crime and ignorance of the law. Zeng hoped that the government can involve civil society in discussions on the MDP.

The final speaker was Sinapan Samydorai, the Director of ASEAN Affairs at the Think Centre. Samydorai expressed disappointment, perhaps even surprise, that Singaporean would condone the death penalty when they have voiced out strongly against animal cruelty. For him, the state practicing the death penalty is akin to a premeditated cold-blood murderer. Citing from the Universal Declaration of Human Rights, Samydorai maintained that civilised society cannot condone the death penalty. He expressed dismay that Singapore never discussed crime and punishment in terms of human rights, but in terms of adherence to the law. He believes that it is fundamental that we treat each person with human dignity, but the death penalty merely “disposes a person when he becomes a problem”.