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ACLS Member Diana Ngiam, ACLS Founder Subhas Anandan and ACLS President Sunil Sudheesan (Picture by Straits Times)

Criminal Lawyers call on Law Ministry to abolish the Death Penalty and Decriminalize 377A and Euthanasia

During an interview with the Straits Times in December 2014, the late Subhas Anandan, who founded the Association of Criminal Lawyers (“ACLS”), said in no uncertain terms that “the ACLS, unlike the Law Society, will continue to voice its views on legislation and other issues … as it is not constrained by the Legal Profession Act.”

On October 15, the ACLS, staying true to its founder’s vision, called on the Ministry of Law (“MinLaw”) to abolish the death penalty and decriminalize euthanasia and Section 377A of the Penal Code in its submission for the review of the Penal Code. The lawyer group, which has a membership of about 100 lawyers, also argued for the stronger protection of vulnerable accused persons.

The ACLS is no stranger to taking a stand but its submission is indeed noteworthy as this is the first time in no less than three decades that a lawyer group has spoken up on what many consider to be controversial issues.

TOC had the opportunity to interview Mr Sunil Sudheesan, the President of ACLS and the head of Quahe Woo & Palmer LLC’s criminal department, in relation to his organization’s submission.

On the Death Penalty

In its submission, ACLS gave credit to the MinLaw for abolishing the mandatory death penalty in certain offences and attempting to “ameliorate the harshness of the death penalty.” It then submitted that MinLaw should consider the abolition of the death penalty altogether, akin to its counterparts across the causeway.

When asked whether this position taken by ACLS was novel, Sunil replied that ACLS’ position on the abolition on the death penalty has been consistent since the inception of the organization.

Our founders like Subhas and KS Rajah mooted for the abolition of the mandatory death penalty … most of us are against the mandatory death penalty.”

In the event that the complete abolition of the death penalty is not feasible, ACLS suggested that the power to pass death sentences should be fully vested in Judges. For example, in drug cases the Public Prosecutor (“PP”) can essentially determine whether an accused person lives or dies by electing to grant him a certificate of substantive assistance (the “Certificate”) under s.33B(4) of the Misuse of Drugs Act. ACLS posited that vesting such powers in the judiciary would “signal confidence in our Judges to make the tough calls” and added that they were confident that these powers would be exercised “with circumspection.”

The power of the prosecutor to grant the Certificate has been widely criticized by academics and lawyers alike for a number of reasons. First, it is said to be in breach of the fundamental constitutional principle of separation of powers as the PP is essentially exercising a judicial function as the outcome would affect whether an accused persons lives. Secondly, the PP’s decision is not open to review except on the grounds of bad faith, malice and unconstitutionality. Finally, by rewarding those who have “substantively assisted” the authorities in “disrupting the drug trade”, it forgets that drug mules at the bottom rung of the syndicate may not have any substantial information to provide. This means they hang because they know too little

In the case of Prabagran and 3 others, the Court of Appeal held at [52] and [86] that the decision to grant the Certificate is best left to the PP as it concerned “operational issues.” When asked for his take on the apex Court's opinion, Sunil answered as follows:-

I unfortunately have to agree. Instinctively, our sense is for judicial oversight, but if the idea is to get intelligence to clamp down networks and syndicates, opening things up to the public is not a good idea. We have to trust in the AG.

Quite frankly, I think there are cases where there is limited assistance but the AG gives out the certificate anyway. If this is open for review, the frightening converse can occur where people challenge the giving of the certificate to undeserving persons.

However, this certificate mechanism needs to be tweaked as it makes the conduct of trial unbearable. There are always situations where you might be constrained to do things and these things may affect the issuance of the certificate.”

When asked for his views on the recent spate of four executions that took place within a space of 48 hours, Sunil replied as follows:-

Every life loss before their time is sad. But Singapore has decided that the death penalty deters. We do not have enough currently to challenge that assumption but I hope detailed studies will be done.”

On Decriminalizing Euthanasia

ACLS averred that this was “an opportune time to decriminalize mercy killing.” It defined mercy killing as the “painless killing of a person suffering from a disease that cannot be cured.” It acknowledged that pre-existing mechanisms like the “do not resuscitate” directive (“DNR”) and advanced medical directives (“AMD”) already serve the purpose of allowing one to deny the prolonging of one’s by artificial means. These avenues render obsolete the argument commonly propounded by opponents of euthanasia that “it is not for oneself to decide to take one’s own life.” It submitted that allowing euthanasia is but a “logical progression of what is already in place now.”

It further submitted that euthanasia can be strictly regulated by way of a system of certification and verification of one’s “end-of-life-stage status”. It cited the situation in Singapore of an ageing population, rising medical costs, and situations where family members having to foot medical costs for a loved one long after they have passed on in arguing for euthanasia to be recognised as a full exemption to murder. ACLS opined that euthanasia provided a “dignified exit” and accorded patient autonomy with its “due and overriding respect.”

On Decriminalizing Section 377A

Section 377A of the Penal Code criminalizes consensual homosexual sex between men. Although Prime Minister Lee Hsien Loong has announced that the section will not be “actively enforced,” many still argue for its repeal as it is an inconsistent law that continues to enable discrimination against LGBT persons.

On the issue of 377A, ACLS noted that “many in ACLS advocate for the full repeal of Section 377A.” It added that in the event that no decision is made on S377A by MinLaw, an “uncomfortable middle road for both camps” would be to decriminalize consensual acts done in private between men. ACLS also urged the Committee overseeing the review of the Penal Code should consider the issue of 377A “afresh” as it hitherto has been silent on the issue.

When asked why ACLS included issues like the abolition of the death penalty and the decriminalization of euthanasia and Section 377A in their submissions when it actually fell outside of the scope of the review, Sunil replied as follows:-

Discussion must always be spurred. These are important things in our view for Parliament to debate and consider. And it is always timely to talk of these things during major reviews of statutes like the Penal Code.”

On Increased Protection for Vulnerable Accused Persons

ACLS referred to judicial caning as a “barbaric measure left by our colonial masters” and argued that offenders with a history of psychiatric conditions and/or low IQ should not be caned. It submitted that ideally, Singapore should follow in the footsteps of the majority of countries who had the “wisdom” to abolish caning. However, until it is ready to do so, special needs accused persons should not be caned.

ACLS also mooted the creation of a general defence of diminished responsibility akin to the current framework governing Exemption 7 to Section 300 of the Penal Code where offenders can immediately be channeled to a different sentencing track. It stated that the primary aim of this alternative sentencing track would be “to ensure proper treatment or monitoring of the offender.” It added that whenever possible, this treatment and monitoring should occur outside of a prison setting.

On Mandatory Treatment Orders

The Committee overseeing the Penal Review has indicated that it is seeking to increase the penalties for a multitude of offences and enhance the sentence multipliers. ACLS took the position that enhancing maximum sentences may deprive accused persons who harbour psychiatric conditions of the Mandatory Treatment Order (“MTO”). ACLS referred to MTOs as Singapore’s “most enlightened sentencing option” and looked forward to enhancements to the option instead of limitations to its scope. It cited a study conducted by the Institute of Mental Health in 2011 which revealed that 5.8% of Singaporeans suffered from Major Depressive Disorder (“MDD”) and illustrated that many of these people suffering from MDDs go on to commit offences to which MDD contributes. ACLS asserted that these individuals need “effective treatment and monitoring” as that is the best way to prevent reoffending.