By Kirsten Han
p style=”text-align: justify;”>It’s a “slippery slope” argued Attorney-General (AG) Walter Woon; the thin edge of the wedge which pitted the legislature against the judiciary. With the multiple notices around Singapore’s borders warning against carrying drugs, “no one can traffic drug by accident”, he insisted, and hence the mandatory death penalty is a necessity to keep the streets of Singapore clean.
As AG Woon was trying to make out his case, behind a glass partition with two police officers on his right and his left, sat Yong Vui Kong; who in 2007, when he was barely 19, became a drug mule, blindly following the instructions of his boss in Johor Baru to give ‘presents’ to people in Singapore. As it turned out, the ‘presents’ were 47 grams of heroin.
As Vui Kong sat meekly in the dock, trying to follow the hearing through the court appointed Mandarin interpreter, Mr M Ravi the defense lawyer for Vui Kong, engaged in a highly technical debate, that the mandatory death penalty is a “cruel and unusual” form of punishment, and that the court should be given discretionary powers in sentencing.
Mr Ravi argued that the judges should be able to make their own decisions based on the details and circumstances of each individual case.
He highlighted the fact that Singapore is one of only fourteen countries left in the world that has the mandatory death penalty, an extremely anachronistic law that does not reflect internationally held views on human rights.
Mr Ravi He also drew attention to his client, who was only 19 years old when he was caught in possession of 47g of heroin, saying that Vui Kong must be considered as an individual case instead of sending him automatically to the gallows under the mandatory death penalty.
While re-emphasising the centrality of his case that he is not arguing for the abolishment of the death penalty, but simply for the removal of the mandatory aspect of the law, Mr Ravi pointed out that no studies have proven that the mandatory death penalty is an effective deterrent when it comes to drug trafficking.
After both sides have presented their cases and arguments, the judges praised M Ravi for the effort he had put into his submission, and thanked him for providing the court with an update on current international practices with regards to the death penalty. They decided to reserve their judgment on the hearing until further notice.
If the Court of Appeal rules that the mandatory death penalty is incompatible with the Constitution of Singapore, it would signal a great change in Singapore’s legal system, especially in drug-related cases.
It is a change however which will require the parliament to pass it into law.
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Sketches: Joshua Chiang
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I’m not a lawyer.. which part of the constitution is incompatible with death penalty?
i always thought the legislature passes the law and the judiciary follows it.
it seems the author is hoping to put the cart before the horse
where the judiciary passes a judgement and the legislature is obliged to make it into law!
somehow, people are starting to take lawyers and judges as ‘enlightened beings’ who should be tasked with making and changing laws. nevermind the fact that they are not elected or even walkover elected.
It centered around Article 9 (1) of the Constitution, which says that “no person shall be deprived of his life or personal liberty save in accordance with the law”. It was argued that the mandatory death penalty is not actually in accordance with the law because it doesn’t give a defendant a fair trial and due process before he is sentenced to death.
If the court rules that the mandatory death penalty is un-constitutional, of course Parliament will then need to be consulted (if they haven’t been already) to make amendments to the legislature to remove the mandatory aspect of the death penalty.
It won’t be easy, but it would be a big step forward for Singapore in the view of international human rights.
As far as Singapore’s domestic law goes, the MDP is a settled issue. It has not been found to be in violation of Art 9(1). See for e.g. Nguyen Tuong Van v PP, where Yong CJ (as he then was) followed the Privy Council’s decision in Ong Ah Chuan and held that “law” in Art 9(1) does include due process and a fair trial, but that the MDP does not violate these principles as it is “sufficiently discriminating to obviate any inhumanity in its operation”.
The allegation that the death penalty constitutes “cruel and unusual punishment”, prohibited under CIL, was also brought up in Nguyen Tuong Van. Yong CJ ruled that the DP does not constitute cruel and unusual punishment and that, at any rate, any inconsistency between domestic law and CIL would be resolved in favour of domestic law.
Since M Ravi has restricted his arguments in the instant case to the MDP, not the DP, and seems to have brought up new developments in CIL, he might have a better shot with the new CJ.
@ kixes
thanks for taking time to reply.
a followup question will be: how is there no fair trial and due process because MDP?
from my (non-legal) understanding, MDP does not affect the trial and due process part.
It only restricts sentencing- which in this case to one possibility- the death penalty.
all crimes have some kind of range- with a min and max sentence.
Just that in drug trafficking- there is a very small range.
But i don’t think the fact that having a small range (i.e. 1)
means it’s non-constitutional.
how can there be a fair trial when 1 democractic country hav no independent public jurors?
@RW
I believe it is because for a case with the MDP, the onus is on the defendant to prove beyond reasonable doubt that he is innocent, which means that when it comes to cases like these it is “guilty until proven innocent”, which is a complete opposite of what it would usually be in a court of law. The prosecution need not prove beyond reasonable doubt that the defendant is guilty, and therefore it is really hard for any of these people to avoid the death penalty. The verdict is out pretty much before they go into court.
@kixes,
I totally agree with you. When the burden of proof falls on the defendent, and given such a draconian sentence, you would think that some innocent people may have been executed already due to the inability to prove their innocence. This is the major flaw of MANDATORY death penalty
@kixes
I’m afraid you’re mistaken. The MDP does not have an effect on the defendant’s guilt or non-guilt, nor does it have any effect on the burden of proof. It only relates to sentencing. Sentencing and conviction are different stages altogether.
You’re right that the burden of proof does rest on the defendant in drug trafficking cases. That’s because of s17 of the Misuse of Drugs Act, which raises a presumption of trafficking (as opposed to consumption) should you be found to be in possession of drugs above a certain amount. The defendant then has to discharge the burden of proving that his intention was not to traffic, but that his possession of the drugs was for the purpose of personal consumption.
I do not think, however, that the standard the defendant has to meet is that of beyond reasonable doubt. It is most likely on the balance of probabilities as the defendant usually enjoys a lower standard of proof.
Therefore, can I say that kixes’s (and LOL) gripe with the law should be with the Drug Act, and not MDP? That is, if kixes objection revolves mainly around the ‘presumption of guilt’.
@ The Game
can i have some evidence where the defendant “enjoys a lower standard of proof”?
if u meant that defendants of drug related crimes enjoy a lower standard of proof, then would it not be unjust for people that are convicted of other crimes?
general question:
if the Mandatory Death Penalty is found unconstitutional, and repealed, then what should SG do about the people (their families, mainly) that were put to death because of it?
or is it a case of “ah well, my bad, but too bad for u”?
(-_-)
In that case, restitution and compensation for a person’s life, plus the potential income he or she could have earned in his lifetime has to be done to the family. This is the right to do.
*the right thing to do
RW,
under the common law system (found in the Commonwealth countries and the United States), the judiciary has the power to strike down legislation incompatible with the Constitution. Of course whether they do so or not depends on the theory of constitutional adjudication they espouse. That is why one can observe some US Judges taking a more robust approach in protecting rights while other US Judges tend to prefer to leave such issues with the political process.
Turning to Singapore’s situation: Article 4 of the Constitution declares it as the supreme law of the land and thus any legislation or executive act inconsistent with it is void. Of course this does not answer the question of who should decide what the law is, although it is accepted that it is the province of the judges to determine the constitutionality of legislation. Therefore it is open to the Singapore courts to recognise that a mandatory death sentence is unconstitutional under Article 9(1) which encompasses principles of natural justice. Nevertheless, the Singapore trend towards constitutional adjudication tends towards deferring to legislative judgments (as hinted by AG Walter Woon) and it appears more than likely that the court will choose to leave this issue to the political process.
Regards
Ned
@ (-_-)
It’s a legal rule in criminal trials. The prosecution has to prove guilt beyond reasonable doubt while the defendent only has to convince the court on a balance of probabilities. It’s a pro-accused rule that basically makes it easier for the defendant to refute the prosecution’s case than for the prosecution to prove his case. It applies in any criminal trial, not just drugs or MDP trials.
For e.g. The offence of voluntarily causing grievous hurt. The prosecution has to prove beyond reasonable doubt that I did an act that caused grievous hurt (actus reus) and I intended to do so (mens rea). If I raise a defence of say, my right of private defence, I only have to convince the judge that I acted in self-defence on a balance of probabilities.
Hi Rw,
Just to follow up on your query, regarding the issue of due process. In an old Privy Council case the court found the mandatory death penalty to be constitutional. This case (Ong Ah Chuan) probably has been utilised to defend the MDP. However in recent years the Privy Council have rejected Ong Ah Chuan when dealing with MDP cases from other jurisdictions with similar constitutional provisions as Singapore. If i remember correctly the argument probably goes along the following lines: that an accused person, before sentence, has the right to convince the tribunal of any mitigating circumstances that would warrant a reduction in sentence. An MDP definitely does not allow for mitigating circumstances to be taken into account.
Regards
Ned
@ Loyola
hmmm.. somehow, i can not imagine the PAP gov giving money away for free, unless it’s via bad investments.
@ The Game
thanks for the clarification. as u can see, i have absolutely no clue about legal stuff like that. forgive my ignorance, but i dun really get the meaning of “balance of probabilities”…
Hi (-_-),
It means you must show the court that your facts are more likely than not to be true, in mathematical terms you must convince the court that there is a 51% likelihood of your story being true.
Regards
Ned
@ Ned Stark
ah! i see. thanks!
Singapore: an uncaring, autocratic, feudal society in which former govt ministers had well-known and well-establised personal links with Burmese drug-barons. How quickly people forget the other scandals of Dinesh Bhatia and Marx Oh. One law for the rich, one for the poor.
hmm…so in singapore, once you’re charged, you’re deemed guilty unless you can prove yourself innocent. You have to prove beyond reasonable doubt that you’re not trafficking, to save your life…not a jailterm or fine, but your life.
and we have, i would assume, a very learned gentleman in our AG, saying, “no one can traffic drug by accident” with the multiple notices around Singapore’s borders.
And the description of “trafficking” is carrying drugs in excess of a certain amount stipulated by law. As opposed to selling and profiteering drugs.
So with this logic, the drug kingpins, who manufacture, and instruct people to carry and sell, can never be charged as “drug traffickers” and be hanged, if they’re caught, if they dont have any amount of drugs on them? They’re likely to be charged with a different offence?
Seeing how difficult it is to pursue the kingpins and charging them with all due process of law, the government uses the Criminal Law (Temporary Provisions) Act to detain these drug kingpins without trial.
–
It will be interesting to see how this landmark case develops. If AG’s argument is that there probably isn’t anything the accused can say that would mitigate his sentence, then I think his argument falls outside the question of whether the court should recognize and allow the accused the right to try.
Question: What is the breadth of this constitutional right? Are we talking about the right to a presumption of innocence, therefore “strict liability” laws becomes unconstitutional? Or the right to (try and) mitigate capital punishment?
For e.g. The offence of voluntarily causing grievous hurt. The prosecution has to prove beyond reasonable doubt that I did an act that caused grievous hurt (actus reus) and I intended to do so (mens rea). If I raise a defence of say, my right of private defence, I only have to convince the judge that I acted in self-defence on a balance of probabilities.
donkey years ago before lukeskywalker goes steady with ambassador amitalah.. i too was charged under section 327 for grevious hurt when i was mereLEE defendin meself from an angmor attacked of the clones (which include his mother and childrens) it was a big mess many bystanders was aroun as it happenned in a shoppin centre..since i retailate in self defence.. i was the 1 that kannaed charged not the bloomin anrmor tourist & his familLEE
i endup in court session after sessions with a huge legal bill..do you all know everytime when your lawyer attend a court hearin $5,000 goes into his pocket?
this is singapoor..the kwailohs are alway RIGHT includin the romanian diplomat…
@kixes
if “guilty until proven innocent” is the main reason for ‘unconstitutional’ argument, then the whole judiciary system is ‘unconstitutional’. I am not sure any judge will want to go down that path. If we want to target specifically at MDP, we have to reason out why having a narrow range of punishment (i.e. one in this case- the death penalty) is unconstitutional. The difficulty, of course, is to argue what is a ‘constitutionally sound’ range of punishment. i.e. how much discretion is the judge/plaintiff constitutionally entitled to.
@Ned Stark
I agree that the courts can rule on the constitutionality of a law.
But given the interplay between law and politics, where the ruling government holds more than 2/3 majority, there is no point harping on the constitution because they can change it- push comes to shove. Hence, the tendency to lean towards legislative judgment and political process.
On your second point:
If the argument is that an accused person has a right to convince the tribunal of any mitigating circumstances that warrant a reduction, then MDP does not make the cut. But the follow-up question will be does the constitution explicitly guarantee that ‘right of mitigation circumstances’ or is it inferred from the definition of ‘due process’?
Again, I am not a lawyer so I don’t know the exact definition ‘due process’ used in Singapore law. But what I do know is that- given the 2/3 majority held by the ruling government, you will need a clear-cut right-wrong argument to hold moral ground. If the argument is ‘waffled’ in definition issues that are not clear-cut, it will go back to political process, in which we will be back at square one.
@RW
The reason that the mandatory death penalty especially should be considered and re-thought with regards to “guilty until proven innocent” is that it is irreversible. Once the person is dead, there is no way to go back and clear his name. Even if one does manage to clear his name, the damage is done, and a person would have died in vain. Thus the urgency and necessity for it to be reviewed.
It would be a vast improvement if the court would be allowed to review each case individually and understand the mitigating circumstances before sentencing. As M Ravi said, “kill if you must, but not in an automated, robotic, spasmodic approach”.
@kixes
but you are confusing separate issues-
you are talking about the irreversibility of death penalty which does not go away even if you make it non-mandatory. Also, making it non-mandatory means ‘less fortunate’ offenders are not sentence to death. It does not mean that less ‘non-guilty’ offenders are sentenced to death. So making it non-mandatory does not make it any less likely to be accurate.
the aspect of mandatory or non-mandatory comes down to whether we should consider mitigating circumstances. that itself is a subjective question which depends on the individual’s level of sympathy and compassion. Not everyone in the world is kind and forgiving. While they are not exactly the nicest people in the world, there is nothing inherently wrong with going by the book and being non-compassionate.
@(-_-) 13:48
I’m not focusing on what they may or may not do. I was outlining that any government should perform those acts of restitution, rightfully speaking. The right thing to do, in this case.
/While they are not exactly the nicest people in the world, there is nothing inherently wrong with going by the book and being non-compassionate./
Not if death can be prevented by the mitigating circumstances.
When the burden of proof shifts from the prosecution to the defense, and guilt is presumed, we can get things seriously wrong. Just look at the case of Amara Tochi, a boy of 19 caught with drugs at Changi airport in 2004. In his judgment for Tochi’s case, the judge wrote:
“There was no direct evidence that [Amara Tochi] knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out of his own.”
For more info, see http://en.wikipedia.org/wiki/Iwuchukwu_Amara_Tochi
@RW
Yes, the irreversibility of the death penalty does not go away even if the mandatory aspect is removed, but with discretionary powers given to the court it allows them to take mitigating circumstances into consideration and dispense sentences that fit the individual and the crime. By removing the mandatory aspect, judges will not be forced to dispense the death penalty to every offender. It might not make it 100% accurate, but surely it would be better than the mandatory death penalty, where the death sentence is given to every single person?
What I was saying was that the mandatory death penalty needs to be reviewed more urgently than any other mandatory sentencing because it is irreversible. This could save the lives of many people to come.
@kixes
just to clarify- you are against death penalty on (i) ‘possibly non-guilty’ offenders or (ii) ‘less fortunate’ offenders or (iii) death penalty in general?
I’m confused because you jumped from talking about ‘sentence that fit the individual and the crime’, to accuracy of sentence and finally to saving lives.
Different objectives have different ways of resolving it. If the issue is ‘non-guilty’ offenders, the direction to go is to create a separate category- Guilty with proven intent (DP), Guilty with no proven intent (long jail) and Not Guilty.
If the issue is ‘less fortunate’ offenders, compassion and sympathy in defining mitigating circumstances is pretty much subjective. And anyway, if we create the precedence that younger offenders get lesser penalty, this might create a perverse incentive for drug lords to target specifically younger offenders to do their job. I am not sure that is a good thing in the long run.
But If the issue is against death penalty in general, even for hardcore drug traffickers, then the stance should be the abolishment of DP totally. A perfectly legitimate stance, although pretty much in the minority at this stage.