Sleeping with strangers, part 2

As mentioned in part 1, a huge advantage of arguing only for a discretionary (i.e. non-mandatory) death penalty is that it looks a whole lot more “do-able” given Singapore’s social and political reality than total abolition of capital punishment. It also resonates with an increasing concern among Singaporeans about the lack of checks and balances. A mandatory death sentence in any law leaves the decision in the hands of prosecutors with little role for courts to play.

For some others, including myself, giving judges discretion does not address our chief concern — the use of the death penalty at all.

Don’t get me wrong. I don’t oppose the campaign to replace mandatory death penalties with judicial discretion. Of course not; I hope it goes far. Any progress would be in the right direction even if I think its aims fall short of my convictions.

Now let me come to ‘Total abolition’, a term I used in Part 1, but which is actually a misnomer (I couldn’t come up with a better term that is less than a mouthful) because it is possible for those in this camp to accept the notion of capital punishment in extreme circumstances, therefore it’s not really total. Whether individuals argue for total or near-total however, what defines this camp are two common, but every separate, motivations. They are:

  • The moral question
  • The doubt question

They are separate because it is possible to subscribe to one without subscribing to the other. Let me explain a little more about each:

The moral ladder

Take the moral case: Adherents believe that taking a human life is barbaric and morally wrong. Even so, it is not as absolute as it sounds. People sympathetic to this position can find themselves on different rungs of a ladder:

  • Death penalty is never acceptable.
  • Death penalty is unacceptable except for truly extreme acts such as organising genocide.
  • Death penalty is acceptable only for mass murderers and serial killers.

Arguably there can even be one more (low) rung of the ladder: Death penalty is acceptable only for perpetrators of murder with preplanned intent; not acceptable for those who have not deliberately taken anybody else’s life. However, I think expressing this position indicates that the person doesn’t really subscribe to the same moral perspective as the others.

Personally, I subscribe to the top rung, but I am all too aware that in Singapore, few people share this moral point of view.  I don’t think there are many others who would take to any of the other rungs either.

How does one go about changing others’ moral attitudes? I honestly don’t know. As I have explored in an earlier essay, changes in moral values do not come from intellectual arguments, but by a perspectival shift. This tends to be linked to other attitudinal changes, but is surely susceptible to constant repetition and exposure to new realities as well.

Is it impossible to achieve this perspectival shift? Not at all. Look at how environmental consciousness has grown; look at how attitudes to consumption of shark’s fin have changed. Look at attitudes to inter-racial marriages.

With the death penalty it may take a very long time, especially when the government will do everything it can to ingrain the pro-capital punishment attitude. Hence, it may be more effective to look at the other major motivation for abolition, one that is amenable to intellectual arguments:

The burden of doubt

The “doubt question” focusses on the irreducible possibility that conviction may be in error, or mitigating circumstances have not been unearthed at trial. This is especially cogent in Singapore where the executive is so privileged to the extent that it is extremely difficult to monitor the quality of an investigation. Accused persons have no right to counsel when interrogated.  The prosecution does not fully share evidence with defence counsel. And as the cases of Vignes Mourthi and Zainal Kuning have shown, real examples of potential miscarriage of justice are awfully difficult to put out of our minds. There is also the case of Iwuchukwu Amara Tochi, which I will dissect below.

To put it succinctly, if processes are so flawed that we can never be sure whether someone is really guilty, how can we justify an irrevocable sentence like death?

Neither does the “doubt question” point without exception to an absolute ban on the death penalty. While some may maintain that doubt can never be fully erased, others may say if the test is stringent enough, maybe it can. For example, they may say that if there’s a jury of twelve persons and the requirement is that all twelve must unanimously agree before someone is convicted and sentenced to death, then that is a much higher and more secure bar than saying you need only to convince one judge.

But bear this in mind: Even such a high bar does nothing to counter the risk that the prosecution is holding back evidence. How can a jury consider evidence they haven’t heard?

Despite this, I believe that if there had been a jury, a difference could have been made in some cases. A jury might have failed to reach unanimity to convict Vignes Mourthi (because from what I know, the case was essentially one of the police officer’s word against Vignes’ word, and I find it hard to imagine that a jury of twelve would unanimously take the policeman’s word over Vignes’. . . though much would have depended on Vignes’ demeanour in court.). A jury would almost surely have refused to convict Amara Tochi, and his life would have been spared.

I find the Amara Tochi case particularly troubling with respect to the “doubt question”. What his case boiled down to was that we took his life on a technicality. Even the judge said there was doubt, but the law did not allow him to take that doubt into account.

Tochi and the cruelty of presumption

Tochi was found at Changi Airport with a wrapped bundle of drugs. This young, naive Nigerian maintained throughout that he did not know they were drugs; he had been told they were African herbs that his benefactor in Pakistan had asked him to pass to a contact in Singapore. In court however, the prosecution relied on the presumption of guilt: Since he had drugs in his  bag, he was presumed guilty of trafficking.

According to the law that we have, the prosecution did not have to prove that he knew they were drugs, they did not have to prove knowledge or intent. It was for Tochi to prove that he didn’t know they were drugs, but how can one prove the negative? Since he couldn’t, he was found guilty and finally hanged. This despite the judge conceding that there was no evidence that he ever knew.

Can it happen to any one of us? Yes. Take this scenario: You drive alone to Johore Bahru to meet up with some old friends for dinner. It’s at a nice hotel and a valet parks your car for you. Before coming back to Singapore, you refill your petrol tank at a gas station, taking the opportunity to use the station’s toilet. On return, at the Woodlands checkpoint, a small sachet of drugs, but more than 15 grams, is found sticky-taped inside your rear fender.

You are now charged with trafficking in more than 15 grams of heroin — a capital offence. The prosecution has proven with an array of witnesses that

  • the car belonged to you,
  • you were driving it,
  • the sachet was found on your vehicle, and
  • it contained more than 15 grams of heroin.

The above is enough to send you to the gallows.

To save yourself, you have to prove that you did not know about the sachet nor stuck it there. How are you going to prove that? Yet, the law says the burden of proof is on you, not on the prosecution.

Our drug laws say you are guilty until you can prove you are innocent. This is not even a question of capital punishment. With or without capital punishment, the gross unfairness of it has to change.

What all these cases and scenarios taken together point to is that our processes, investigative or presumptive in law, are so stacked against the accused that doubt looms very large over many cases — not just in the matter of drugs, but even murder as the Zainal Kuning case shows. Doubt makes any conviction unsafe and the wisest response is not to hang anyone at all. This is wise even when you have no moral objection to the death penalty per se.

* * * * *

The problem with discussing the “doubt question” is that it invariably draws attention to the shortcomings of the investigative and prosecutorial processes and the overarching policy of giving great leeway to the executive in doing whatever they want to do. This, more than any other aspect of the many concerning the death penalty is what the government finds most threatening, bringing on media bias, censorship and even contempt of court charges. We will discuss these in Part 3.

11 Responses to “Sleeping with strangers, part 2”

  1. 1 beast686 24 August 2010 at 22:24

    “Doubt makes any conviction unsafe and the wisest response is not to hang anyone at all.”

    This statement says it all.

  2. 2 Mat Alamak 25 August 2010 at 09:03

    I would think it is not so straightforward that just because someone was found with drugs that carries the death penalty, he will automatically be so charged and goes to trial on that charge.

    Because there is always a danger that people might get framed and are really innocent.

    Hence I believe there is a thorough investigation process before one goes to trial on a capital charge.

    This investigation may cover the background of the person (to assess likelihood of being a courier), whether the person was monitored for a period before they moved in to catch him, tip-off or entrapment, etc. Usually innocent people won’t fall for entrapment.

    Furthermore nobody will want to frame someone they do not know by putting drugs into his car or belongings. How to control the delivery? But there may be cases where strangers at the airport may ask someone to help carry (tumpang) their excess luggage under that someone’s name. Hence it is wise to decline them, even if it is elderly people struggling with their “luggage”.

    So I think many factors are taken into account BEFORE one goes to trial on a captial charge. Which is why capital charge is also rarely being reduced to lesser charges during trial or appeal.

  3. 3 Wang 25 August 2010 at 09:42

    Frankly, all the assertions are based on identified capital offences, considering the significantly higher number of cases in which only identified as drug possession or drugs for consumption. would state logically mat alamak thoughts are more probable.

    Further, this blog promotes unbridled speech and adult thinking and “anarchism” for all inclusive of school kids for sexuality and all others.

    Yet when people fall foul of laws which are stated in bold letters, warnings all over and even on airplane announcements, yet everything has to be smothered or protected from the consequence.

    Having been on experienced deterioration of druggies, have little sympathy for such drug runners

  4. 4 beast686 25 August 2010 at 09:43

    Better not use it at all. There are better ways of rehabiliating inmates than simply murdering them at a whim.

  5. 5 Teck Soon 25 August 2010 at 11:34

    I think that drugs should be legalized. I base my opinion on recommendations of European scientists who have done studies showing that legalization is not associated with increased rates of drug abuse. This should be a public health issue, not a criminal issue. There is also the moral question of self determination – does one not have the right to do with one’s body whatever one chooses, even if it means taking dangerous drugs? I don’t buy the argument put forth by some that drugs necessarily “destroy lives”. President Clinton in the US admitted to staking drugs in his youth. The difference between Mr. Clinton and Yong Vui Kong is that Clinton wasn’t caught, and he wasn’t in Singapore. Clearly the drugs didn’t destroy Clinton’s life. The drugs didn’t destroy Vui Kong’s life either. It looks to me like being caught destroys lives, not taking drugs. I would really like to see statistics comparing the number of hangings in Singapore versus the number of deaths from drug overdose. And in years where there were more hangings, were there less deaths from drug abuse? In any case, some drugs currently on the list as hangable drugs are less harmful than tobacco and alcohol. Yet they are legal. Tobacco “destroys lives” too. Singapore has a seemingly irrational policy – if a line is to be drawn, it should be drawn based on scientific reasoning. Why is Singapore not hanging people who carry more than 2 sticks of cigarettes into the country?

  6. 8 sgcitizen 25 August 2010 at 14:28

    Hi Alex,

    That’s an excellent article you have produced and it’s really disturbing how one can be convicted of capital punishment cases here in Singapore.

    I don’t think Singaporeans are all apathy.. but just fed with propaganda and censored media. Before the internet, information is not readily available and I would think that majority of people have limited avenues to information.

    It takes a dedicated few to dig much deeper in order to find truths. No matter what, from the articles I’ve seen so far. I think campaigning against death penalty is only a small step. It would be better to campaign about how once can be convicted. ie to switch the view from Guilty until proven Innocence to Innocence until proven Guilty.

    No point abolishing death penalty while you can still be convicted in such a manner easily with the maximum penalty.

  7. 9 yawningbread 25 August 2010 at 14:39

    Mat Alamak wrote: “Hence I believe there is a thorough investigation process before one goes to trial on a capital charge.”

    I’m sorry, but what is it in the cases of Vignes Mourthi and Zainal Kuning (see the post The innocent man whom was nearly hanged) that gives you so much confidence?

    You’re just asserting belief with no reference to historical experience.

  8. 10 raph 26 August 2010 at 04:21

    A well written article.

    There is the morality of a proportionate response. The sentence must fit the magnitud of the crime. The death penalty should be reserved for drug kingpins who drive a SUV and live in luxury. Sentencing a carrier for a small amount of drugs is overkill. There is honor in going after the ones who are running the cartels and the operations and sentencing them to deathn not the carrier.

    Has a drug baron been caught, found guilty and hanged in Spore? Can someone enlighten me?

    Its always the undeducated carrier who gets caught. And its interesting that their capture almost never results in information which leads to the collapse of a cartel or a the arrest of even the middle man who organizes these carriers.

  9. 11 Robert L 27 August 2010 at 22:27

    raph says
    “Its always the uneducated carrier who gets caught. And its interesting that their capture almost never results in information which leads to the collapse of a cartel or a the arrest of even the middle man who organizes these carriers.”

    This brings up an extremely interesting perspective, and therefore many thanks to the above writer (raph) for bringing it up.

    When someone who’s death sentence is commuted to life imprisonment, it’s not merely enduring a lifelong hardship of prison life. I realise now that he faces a constant worry of the drugs cartel seeking to silence him. As long as he’s not dead, there is always a possibility that he may reveal something that leads to the trail of the drugs cartel, either consciously or through hypnosis etc.

    For someone who’s 50+ years old, the number of years left is limited. For someone who’s 18-years-old, he has far longer years to endure the hardship. The deterrence of a life sentence is therefore proportionately greater the younger the offender is. More important, it’s also a bigger worry to the drugs cartel. Hence we should reject the argument that commuting the death sentence of a young offender is good for the drugs cartel.

    Further, if you continue to explore this line of logic, you would have to conclude that the drugs cartel must have sent some agents to agitate for the death penalty to be imposed, thereby permanently silencing their mule. I wonder if we can find any posts in the internet vigorously pushing for the death penalty without any supporting reasons?

    Finally, going back to the extract I quoted above, I really don’t think the police have never caught the higher ups out of information obtained from the runners that they caught. It’s just that the police should never tell us how they got any information, and so keep the drugs cartel guessing.

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