Thursday 12 July 2012

Striking a balance in debate on death penalty

Reforms ensure more nuanced stand, while keeping tough stance
By Tham Yuen-C, The Straits Times, 11 Jul 2012

WHEN the law on the mandatory death penalty is changed later this year, few hardcore criminals are expected to escape the hangman's noose.

Under the proposed reforms announced in Parliament on Monday, the courts will have discretion in choosing a life sentence only in specific, tightly prescribed instances.

Among the 35 people now on death row - 28 for drug trafficking and seven for murder - only those who satisfy the limited requirements can escape the gallows.

These are the low-level drug couriers who either cooperate in a substantive manner with the police or are substantially mentally impaired, and the murderers who had no intention to kill.

But by relaxing the laws, which have not changed since they were enacted - in the case of murder, since 1871, when Singapore's Penal Code drawn up, and in the case of drug trafficking, since 1975 - the Government has shown that it is listening to those who have pushed for years for a more nuanced - if not liberal - approach to the death penalty here.

Comments issued by the legal community and civil society groups have variously called the move a 'milestone in Singapore's legal history' and 'a significant step in humanising the criminal law'.

Even critics of the death penalty here mostly welcomed the announcement, with human rights group Maruah calling it 'a first step towards consistency with universal standards of human rights'.

Because, even if the changes do not represent a tectonic shift in Singapore's policy on capital punishment, they do signal a shift towards ensuring a more precise, nuanced approach to meting out death sentences.

A year-long review had preceded the recommendations, and even before that, at least two other reviews had been commissioned. Every 18 months or so, the Government reviews capital punishment in Singapore, Law Minister K. Shanmugam told Parliament on Monday.

For those conflicted over the death penalty, the calibrated change could go some way towards assuaging their conscience, as it helps to give more of an assurance that those sentenced to death were executed only after careful consideration.

Besides keeping up with changing mores as society matures and evolves, the proposed reforms also go some way towards addressing two of the most often criticised anomalies in Singapore's criminal justice system.

Law academics have long criticised Section 17 of the Misuse of Drugs Act and Section 300(c) of the Penal Code as being out of line with the philosophy of criminal justice.

The former is a presumption clause, which assumes a person is trafficking as long as he is found with drugs exceeding a specified amount.

So a person who is found with the offending amount of drugs has to prove he is innocent to avoid punishment, unlike in most crimes, where the prosecution is required to prove a person's guilt.

Section 300(c) of the Penal Code removes the need to prove intent in homicide cases, and allows someone to be hanged for murder as long as an injury inflicted causes death. It means accidental killers and intentional killers alike are considered as culpable.

While the proposed changes do not alter these provisions, they go some way towards cushioning their impact, by providing judges with an alternative sentencing option of life imprisonment and caning.

The result is a blunting of the punishment, while maintaining the same tough stance on the crime.

This should help assure those in society who want to retain the death penalty to deter crime. A survey of 425 Singaporeans and permanent residents conducted by The Straits Times in 2005 found that 96 per cent supported the death penalty, mandatory or not.

Plus, a life sentence in Singapore can hardly be considered light. Without a parole system here, offenders can be kept in jail for the whole of their natural lives. Even though a sentence review is allowed after 20 years, there is no guarantee of being set free.

So while some drug traffickers and murderers could be spared death, they will still be kept off the streets.

Considering that the mandatory death laws for murder have been in place for more than a century, and those for drugs were kept for 37 years, the changes have been a long time coming.

But judging from the initial reactions all round, it is a pace that society, it seems, is ready to accept.

By refining the laws now, the Government has landed squarely in the middle of the debate between those who are in favour of keeping the ultimate punishment and those who want it abolished.

Arrests of young drug abusers highest since 2000
225 held last year, even as total number of new abusers nabbed drops 17%
By Jalelah Abu Baker, The Straits Times, 11 Jul 2012

THE number of arrests of new drug abusers aged below 20 increased sharply last year from 2010, rising to 225 from 155. In fact, the number is the highest since 2000, even as there was a 17 per cent fall in the total number of new abusers arrested.

The increase was highlighted by Deputy Prime Minister Teo Chee Hean in Parliament on Monday when he stated that the zero-tolerance approach to drugs will be strengthened, even as changes are being proposed to give judges the discretion to impose the life sentence - instead of the mandatory death penalty - in specific instances of trafficking.

Most of the youth offenders arrested for drug abuse are males.

Mr Lim Poh Quee, executive director of the Singapore Anti-Narcotics Association (SANA), said he has noticed the trend of more teens taking drugs - in 2006, there were only 46 arrests of new abusers under the age of 20 - and it is a cause for concern.

Based on those he has come across at the voluntary welfare organisation that helps rehabilitate addicts, the drug of choice is cannabis. These teens get their drug supplies from friends who tend to be older, he added, noting that peer influence is usually the secondary cause after family.

'Parents may be able to supply the material things, but not the psychological and emotional support children need badly at a young age,' he said.

The teens may come from families with negative environments, Mr Lim added. These could include families where the parents divorce when the children are young. Physical abuse and even excessive nagging may be reasons for these young people to stray.

He cited the case of a youth he met who started off with cannabis at nine and moved on to heroin by age 15.

Pastor Philip Chan, who founded The Hiding Place, a Christian home for the spiritual rehabilitation of former drug addicts, said addicts always crave higher 'kicks'.

'Once these youth are connected to this circuit, it's easy to get access to other drugs,' he added.

Earlier this year, Minister of State for Home Affairs Masagos Zulkifli said the growing acceptance of 'party drugs' as a lifestyle choice by young people is worrying.

'Among the youth abusers arrested in 2011, 65 per cent had abused Ice. Yet, Ice is far from being a soft or non-addictive drug,' said Mr Masagos, who also chaired the Task Force on Drugs that was set up last October.

He was also concerned that the largest increase involved those aged 16 and below. There were 64 such young people arrested last year, compared with 15 in 2007.

A Central Narcotics Bureau spokesman said measures were introduced in April to reduce drug abuse by the young.

These include a Community Rehabilitation Centre for young abusers after a short period of detention in a drug rehabilitation centre (DRC).

It comprises a residential component with counselling in the evenings, and allows the young people to continue studying or working in the day. This is aimed at minimising disruption to their daily lives and reducing the risk of their being influenced by repeat abusers in the DRC.

A Young Person's Reporting Centre for those aged 21 and below was also set up to reduce opportunities for young offenders being supervised to be influenced by older drug abusers.

Rights groups hail death penalty review but...
By Bryna Sim, The Straits Times, 11 Jul 2012

CIVIL society groups and human rights activists yesterday welcomed the Government's proposal to remove the mandatory death penalty for some cases of murder and drug offences.

They called the move a progressive and forward-looking development, but most still wanted the death penalty abolished altogether.

Some observers, meanwhile, wondered if the deterrent effect of the law would be weakened as a result.

Under changes proposed in Parliament on Monday, mandatory death sentences will no longer be meted out for certain instances of drug trafficking and murder, even though the death penalty remains a pillar of the criminal justice system here.

In drug trafficking, the courts can decide on a death sentence or life imprisonment if the person was only a courier and had not been involved in any other activity related to drug supply or distribution. He must also have cooperated with the authorities in a substantive way, or have a mental disability that substantially impairs his appreciation of the act's gravity.

For murder cases, discretion can be granted when the person had no outright intention to kill.

Women's rights advocate Saleemah Ismail, 43, the former president of the United Nations Development Fund for Women, called the proposals 'a positive step' that demonstrated Singapore's maturity.

Civil society group Maruah said it welcomed the proposal but 'regrets the narrow scope of this move', noting that the mandatory death penalty would continue to be applied to a 'substantial number of criminal offences'.

Civil society group Function 8's director Teo Soh Lung similarly welcomed the proposal but said it was not clear how the changes would be carried out, and called for the abolition of the death penalty in future.

Amnesty International and the Anti-Death Penalty Asia Network said mandatory death sentences are 'prohibited under international law', and wanted the Government to abolish such sentencing 'unconditionally'.

The two groups also said there was 'no evidence' that the death penalty deters crime more effectively than other punishments.

Lawyer Alvin Yeo, a Chua Chu Kang GRC MP who is on the Government Parliamentary Committee (GPC) for Law and Home Affairs, believes the move will balance the deterrent effect of Singapore's strict sentencing regime, while giving the courts discretion to deal with offenders in different circumstances.

But Holland-Bukit Timah GRC MP Christopher de Souza, also a lawyer, expressed concern that the changes might weaken the deterrent effect of the law.

Mr Yeo said he did not think the deterrent effect would be diluted, as the most serious crimes of drug trafficking and intentional killing will still draw the mandatory death penalty. 'For the other offences, the minimum sentence that would be meted out would be life imprisonment, which would still be a significant deterrent.'

Lawyer Edwin Tong, a Moulmein-Kallang GRC MP who is the deputy chairman of the GPC for Law and Home Affairs, noted that the issue has always been contentious.

'The question is: What kind of a Singapore do we want to see? Clearly, one which is safe, secure and where our children can move around safely and without fear. Our laws must achieve that purpose,' he said.


I do not believe the move will dilute the deterrent effect. The most serious crimes of drug trafficking and intentional killing will still draw the mandatory death penalty.
- MP Alvin Yeo, who is on the Government Parliamentary Committee for Law and Home Affairs

Defence lawyers will work harder
Veteran criminal lawyer Subhas Anandan talks to Tham Yuen-C about the proposed reforms to the mandatory death penalty
The Straits Times, 14 Jul 2012

How will the mandatory death penalty reform help the defence? What difference will it make to defence lawyers?

There is a benefit in the sense that now, you have a hope the person you're defending may not die, because judges are given an option to choose between life imprisonment and the death penalty.

I think it will also make the defence work a little harder, because now we have to try and persuade the courts not to impose the death sentence, but to impose life imprisonment instead.

We have to show that even though the clients might be guilty of these offences, they may not deserve death.

Before, when someone was convicted of an offence that carries the mandatory death penalty, there was no chance to make a mitigation plea, because that's the end. Whatever we say, the judge has no choice, so what's the point of saying anything?

Do you wish the change could have come sooner?

Of course... then certain people might have escaped the death sentence. One of them is Took Leng How who killed Huang Na. Under his circumstances, and given that even the Court of Appeal judges did not have a unanimous decision, I think he would have had a chance.

Do you support the death penalty in Singapore?

I have always advocated against the mandatory death sentence. I think tying the hands of the judges is not good for the system, but I will not advocate the abolishment of the death sentence.

I think the death sentence is necessary for some offences.

Firearm offences are one of them. We need to discourage people from carrying firearms; we don't want Singapore to become a cowboy town like some countries, where people carry firearms and shoot others. In terrorism offences where terrorists plant bombs that kill innocent people, the death sentence is necessary too.

Do you think the abolishment of the mandatory death penalty will ever happen here?

I think it will happen, and I hope it happens soon, but society must be ready for it. In this case, I think the people have been ready for the partial abolishment of the mandatory death penalty and they had been debating it for a while.

I'm sure a full abolishment will take some time, at the very least a few years.

What are the difficulties of taking on cases which attract the mandatory death penalty, especially those that seem very hopeless?

The first time I lost a capital case in the 1970s, I got myself completely drunk. I couldn't take the shock of it all. But I have been doing these cases for so long, that I'm somewhat used to them and I know I will survive whatever psychological shocks and feelings I go through. It's not very difficult any more.

I've always believed it is not the lawyer's job to decide whether the case is hopeless or not. Even the most heinous offender deserves a proper defence, and after you have given him a proper defence, then you let the law take its course. Even if he has to be executed, so be it; at least we have given him the best legal advice.

Giving judges discretion not a bad thing
Former attorney-general Walter Woon talks to Tham Yuen-C about the proposed reforms to the mandatory death penalty
The Straits Times, 14 Jul 2012

What are the implications of a discretionary death penalty? Would it have as much deterrent effect on crime?

There are already sections of the Penal Code and other statutes where the death penalty is discretionary. So making it discretionary for murder and some drug trafficking offences is not unprecedented.

You cannot deter murder with a death penalty, except for the premeditated ones. For drug trafficking, I don't think that making the death penalty discretionary will reduce the deterrent effect, unless there is a de facto moratorium. Any courier will still have to make the calculation whether it is worth the risk of the gallows to bring drugs through Singapore.

Compared to other societies, how high is the level of judicial discretion here? How does the change tilt the separation of powers between the executive and the judiciary, if it does?

The Public Prosecutor (meaning the Attorney-General) has a discretion over what charge to bring.

In the case of a killing for instance, the charge can be murder, or culpable homicide not amounting to murder or even voluntarily causing grievous hurt. This is prosecutorial discretion.

It is not exercised arbitrarily. There are internal guidelines and the prosecutors are always mindful of precedent when they choose a particular charge.

There is no rule that the prosecution must seek the most severe penalty possible - indeed, this is never the case. The prosecution brings a charge that is appropriate to the evidence and the law. The judge then has a discretion about what sentence to pass if the accused is guilty.

Sometimes Parliament takes away that discretion, by prescribing a fixed penalty, for example, death for trafficking in above a certain quantity of illicit drugs. But in general, the trial judge has a discretion how severe a penalty to impose. This is judicial discretion.

Assuming all judges and prosecutors are fair and perform their jobs as they should, does it really matter on whom the discretion lies?

Yes, it matters. The decision to bring a particular charge is taken without the Public Prosecutor having to disclose reasons. This has always been the case. Therefore it is impossible to know why some are charged with a capital offence while others are not (based on the publicly available information). It would be undesirable to force the Public Prosecutor to disclose the reasons for a particular decision to charge - there will be situations where witnesses or intelligence sources may be compromised, for instance.

A judge must give reasons when he passes sentence, so that there can be an appeal. Justice is therefore seen to be done.

Constitutionally, it is better for a judge to decide whether a person should hang when he passes sentence rather than that the Public Prosecutor should effectively decide by pressing a charge that carries a mandatory death sentence.

Even though the death penalty remains one of the key pillars of our penal system, the reforms signal there has been a shift from the previous approach. What ramifications will there be on sentencing? Do you think judges will be more circumspect?

Judges are always reluctant to sentence people to death if there is any reasonable doubt. Giving them discretion allows them to take into account mitigating factors. I don't see that as a bad thing. A one-size- fits-all approach to sentencing is apt to produce hard cases.

What would you like to see in the final Bill on the reforms? For example, what kind of safeguards should be included?

No safeguards are necessary. Our judges are competent to decide. They know where their duty lies.

It is unwise of Parliament to tie the judges' hands by being too prescriptive. Parliament can never foresee all the possible combinations of factors that will arise in any particular case.

The strength of the common law system we have is that it is flexible.

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