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 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.
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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.