The issue of capital punishment has migrated in several directions. Even among those unsupportive of the death penalty as it stands, not all directions or sub-issues has everybody’s support. There’s a growing risk of confusion, especially to others who have not been following the debate closely.
In addition, different campaigners prefer using different starting points. Some prefer to use a current case as a signature issue to press for a reprieve. The problem with that is that many of the arguments employed are necessarily particular to that case and may not have general applicability to capital punishment as a whole. Others prefer to keep the debate centred on the abstract, but that has far less human interest appeal and hence a much lower chance of gaining popular traction.
To complicate matters, side issues are invariably linked, such as media black-out, censorship and contempt of court. These arise from the reaction of the government and its subservient media to what they perceive as a challenge to a long-established policy of killing people.
This essay aims to sprinkle some clarity over these intertwined sub-issues before things spiral into total confusion.
The chief bifurcation at the moment is between those who stand for total abolition of the death penalty and those who argue for merely the discontinuation of the mandatory death penalty, leaving the decision in the hands of a judge. The latter has the advantage of support from the legal profession — if I remember correctly, the Law Society has voiced its position in favour of this. But also, as recently argued by Pritam Singh from OpinionAsia, and who is also a member of the Workers’ Party, this largely rests on a practical recognition of the fact that Singaporeans by and large continue to support capital punishment.
Now let me be clear about it, there is enough anecdotal information to suggest that many Singaporeans are not against the death penalty, especially in regard to heinous crimes and even drug-smuggling. Considering that countries such as China, India, Malaysia, Indonesia, Thailand not to mention the US retain the death penalty, it is virtually impossible to make a strong argument that can support doing away with the death penalty in this neck of the woods, especially considering the narrow scope of public discourse in a one-party dominated state such as Singapore.
The unique problem in the Singapore case (and Malaysia and Indonesia. I know India does not have a mandatory death penalty regime. I understand China does not as well, although someone mentioned to me that it applies if more than 50g of heroin is involved. In Singapore it is 15g. Would appreciate some clarification here on China and whether there is a mandatory death penalty regime for drugs) is that Singapore’s parliament, many years ago, passed the Misuse of Drugs (MDA) Act which invokes the mandatory death penalty. As I have stated elsewhere, in mandatory death sentence cases, mitigation is irrelevant and the judicial process concludes upon a finding of guilt. I disagree with this simply because it gives a judge no power to deviate from the MDA, even if there are extenuating circumstances relevant to an accused. Even if there are potentially reasonable grounds – low IQ, unique circumstances etc. to justify a sentence other than a death sentence, the judge is powerless to rule outside the ambit of the law. The process of imposing the mandatory death penalty is largely administrative, not judicial as popularly thought of.
The other problem with the mandatory death sentence regime is that it puts too much discretion in the hands of the Public Prosecutor (PP), the PAP state’s lawyer. While the PP must have discretion in general, because of the way the mandatory death sentence regime works, he/she effectively becomes the all powerful arbiter, as he/she holds has all the evidence and police investigation reports in hand. Ever so often, cases come to court where the accused has allegedly trafficked 14.99g of heroin. This boggles the mind. Needless to say, the PP has determined, often through the ubiquitous “laboratory test” that the pure heroin content had come up to 14.99 grams. What a lucky accused! Thank you PP! Who needs the separation of powers schema between the Executive and Judiciary anymore? The Chief Justice might as well appoint the Fairy-God mother to the bench!
In light of the societal barometer, what ought to be called for is a move away from the mandatory death penalty regime. A similar case to Yong Vui Kong may well come up in a no-mandatory death penalty jurisdiction, and a judge may well sentence the accused to death, if the circumstances dictate so. The fear has been, and Lee Kuan Yew has verbalised this, is that judges will not dare to hang anyone if there were no mandatory death penalty regime. I am not going to get into this argument. I would think if that is the case, then a judge is mentally not fit to sit on the bench, and the Chief Justice made a rather poor choice (by the way, no one really knows about the procedure whereby High Court judges are selected in Singapore).
Readers may know that my position is different. As earlier essays indicated, I believe in total abolition; to me, taking a life is morally wrong, even if it’s a state doing it. (In this respect my position is wholly in accordance with the Roman Catholic Church, even as I vehemently disagree with it over homosexuality.) In this Part 1, however, I will confine myself to a discussion of the mandatory-abolitionist side of the issue.
In the absence of progress on the mandatory-abolition front, activists such as those connected with The Online Citizen, push for presidential clemency (sometimes worded as presidential pardon, which further confuses the issue, since the word “pardon” implies forgiveness of the crime). Unfortunately, pushing for clemency necessitates a narrowing of the issue from the general to the specific. It will strike many as meaningless to argue for an across-the-board clemency for everyone sentenced to death, so one has to pick particular cases to make the clemency argument for.
This has the advantage of humanising the question of capital punishment, a powerful factor in getting people involved; on the other hand, it has the disadvantage of leaving proponents open to a charge of selectivity: Why are you choosing to campaign for one and not for the other? This charge of arbitrariness is difficult to shake off.
One way around that is to push for a moratorium on the death penalty, in other words, clemency for all. But many in the mandatory-abolition camp would not want to go so far, because they actually do believe in the death penalty for some crimes and some perpetrators. Since they do not adopt an in-principle disapproval of capital punishment, they cannot support a moratorium. In fact, nobody has so far argued for a moratorium in Singapore and that is why I don’t even show it in the diagram above.
The question of presidential clemency has recently led to the question of whether the president has any discretion to grant clemency. This matter of presidential powers has recently taken centre-stage in the eyes of The Online Citizen.
I fear that those pursuing this argument will take the issue further and further away from the core issue of capital punishment. I for one think we can well leave the matter of presidential discretion alone and accept the recent court ruling by Justice Steven Chong that the president must act on the advice of the cabinet. To me, it is not obvious that whoever occupies the presidential chair must necessarily be more inclined to be compassionate than the cabinet, so why push for discretion to be given to the president?
Of course, I can understand the argument that in the case of the young Malaysian Yong Vui Kong on death row, there have been complications in that, in response to an earlier appeal for clemency, the president had refused to grant it, and presumably this was on the advice of the cabinet. So in his particular case, it may help to argue for the president to have discretion when a new appeal for clemency reaches him.
But I have serious reservations about trying to bend the general to fit the particular.
This is not to say that campaigning for clemency for Yong is to be scaled back in any way. Not at all. What it does mean is to avoid piling on other issues such as constitutional questions, but instead directing the clemency arguments to the cabinet.
In Part 2, I will focus on total abolition, and in Part 3, I will consider the additional issues brought on by the government’s reaction to an emerging shift in social opinion.