No justification for Singapore’s mandatory death penalty

From Human Rights Documentation Center...

Singapore, though enjoying a reputation of being wealthy and progressive, falls significantly short when it comes to compliance with international human rights standards. The execution of an Australian, 25-year-old Tuong Van Nguyen, for trafficking 396 grams of heroin attracted widespread condemnation of Singapore’s notorious mandatory death penalty, and rightly so. In a statement, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Philip Alston, said that “making such a penalty mandatory – thereby eliminating the discretion of the court – makes it impossible to take into account mitigating or extenuating circumstances and eliminates any individual determination of an appropriate sentence in a particular case”.

Singapore is believed to have the highest per capita execution rate in the world and has executed more than 400 people since 1991, 70 percent of which are reportedly for drug offences.

Under the Misuse of Drugs Act (MDA), judges must administer the death penalty to any person trafficking more than 15 grams of heroin and may not consider any extenuating circumstances or mitigating factors in a particular case.

Van Nguyen’s case, it is hoped, will impress upon the international community the need to closely scrutinise Singapore’s human rights record, and critique it where necessary. Singapore’s glittering prosperity conceals a number of horrifying abuses, and it is time the international community took note of some of these concerns.

A Breach of International Law

Professor Alston echoed the concerns of many lawyers and activists when he argued that the mandatory penalty denies the judiciary the necessary discretion to sentence fairly and appropriately.

He referred to the authority of a number of international cases which have found that the mandatory penalty is in violation of the international prohibition on cruel, inhuman or degrading treatment or punishment. He said that in Van Nguyen’s case, the Court of Appeal failed to make a thorough examination of prior Privy Council decisions. One case conspicuously absent from the Court’s deliberations was Boyce and Joseph v The Queen, decided in 2004, in which four of the Law Lords endorsed the statement that “[n]o international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms.”

In Van Nguyen’s case, Singapore upheld the validity of the mandatory death penalty, relying primarily on the precedent in Ong Ah Chuan v Public Prosecutor, where the penalty was found to be not unusual according to international practice. As Alston points out, however, this decision has been superceded by subsequent cases such as Reyes v The Queen where Lord Bingham commented that “[t]he decision in [Ong Ah Chuan v Public Prosecutor] was made at a time when international jurisprudence on human rights was rudimentary.”

The Court of Appeal also insisted that “the mandatory death sentence prescribed under the MDA is sufficiently discriminating to obviate any inhumanity in its operation.” However, as Professor Alston points out, “discrimination” only occurs within the act and the courts have no capacity to discriminate in the sense referred to by the recent Privy Council decisions. The legislature has effectively usurped the judges’ legitimate role to exercise discretion in determining a just sentence.

The Constitution and the Mandatory Death Penalty

Van Nguyen’s case also illuminates the fact that Singapore’s mandatory death penalty undermines not only international principles but also domestic constitutional provisions.

Van Nguyen argued that the penalty enshrined in s 33 and the Second Schedule of the MDA breached Articles 9(1) and 93 of the Constitution which assert the fundamental liberty of the person and which assign judicial powers to the courts. The Court of Appeal, however, refused to engage in these arguments. Instead, it made reference to a Privy Council decision from Belize, where the mandatory death penalty was found to contradict Belize’s constitutional provision against “torture and inhuman or degrading treatment or punishment.” The Court of Appeal concluded that because no such provision existed in Singapore, the mandatory sentencing laws did not amount to a constitutional breach. In saying this, the court was able to avoid consideration of the constitutional validity of the mandatory death penalty. Because the Singaporean judiciary is effectively under the control of the ruling People’s Action Party (PAP), any constitutional interpretation contrary to the government’s position is virtually impossible.

Singapore Defends Mandatory Death Sentencing

A Singaporean Royal Commission investigating a proposal to permit judicial discretion in imposing the death penalty concluded that sentences should preferably be mandatory to prevent burdening judges with such a responsibility. Prominent Singaporean Senior Counsel and former deputy Public Prosecutor K.S. Rajah has argued that the judiciary is made of “sterner stuff” and can capably assign punishments as it sees fit.

The Singaporean government admits that it has “some of the toughest laws in the world such as for drug trafficking and the use of firearms” but defends these by describing the “relatively safe and crime-free environment” and the need to enhance the “attraction of Singapore to tourists and investors.” These claims, advanced to excuse the death penalty by reference to low crime rates, still cannot justify the taking of human life. Moreover, there is no supporting research for the claims. According to a report by the NSW Bureau of Crime Statistics examining 74 studies into the death penalty over a 51-year period, there is no evidence that the death penalty deters potential criminals.

“Shrouded in secrecy…”

Amnesty International has described official information concerning the use of the death penalty in Singapore as “shrouded in mystery.” Precise numbers of the executed are difficult to ascertain. Some figures were provided in answer to a parliamenary question in January 2001. Additional information was released in 2003 following an embarrassing admission by Singapore’s former premier, Mr. Goh Chok Tong, during an interview with the BBC that he was unaware of the number executed because he had “more important issues to worry about.” His initial estimate placed the number of executions occuring before October 2003 at 70 or 80. His office later “corrected” this figure as being only 10.

The Singapore government works hard to prevent open discussions on the death penalty using its infamous laws which restrict the media and outlaw public speeches and “unlicensed” gatherings. The press may not give an independent opinion on the executions in Singapore and news of hangings is generally only made public after they have taken place.

In April 2005, the Singaporean government refused to grant a permit to Tim Parritt of Amnesty International to speak at a forum on the death penalty. Singapore Democratic Party leader Chee Soon Juan described the refusal as “a blatant attempt to keep the matter under wraps”, noting that Mr. Parritt had effectively been denied “the opportunity to speak and to engage Singaporeans in an open discussion on this life-and-death matter.”

The Law Society in Singapore, which includes every practicing lawyer in the country, appears similarly uncomfortable with the penalty. It has recently established a Committee to undertake an independent review of the practice. While the results of such a review may be ignored by the government, it is a clear demonstration of growing public uneasiness about the death penalty in Singapore.