In the post But how many on death row?, I put the spotlight on new figures released by the government showing a marked decline in the number of executions. They averaged about five cases a year between 2004 and 2010, both years included, though in 2010, there were no hangings at all. This is in marked contrast to the average of 44 a year between 1994 and 2000.
Anyone who has been following news reports about capital crimes in Singapore would have figured by now that the most likely chief reason for this decline is the “14.99” manoeuvre. This is shorthand for prosecutors preferring to charge someone for trafficking in 14.99 grams of heroin (or equivalent) when he was actually caught with more than that. Fifteen grams will trigger the mandatory death sentence. 14.99 allows a long jail term instead.
We see this once again in a news story in the Straits Times, 12 November 2011 (see thumbnail at right). Nepalese Yubindra Bahadur Tamang was sentenced to 21 years in jail and 24 strokes of the cane after he pleaded guilty to trafficking in heroin. His role was to transfer heroin smuggled into Singapore in the soles of shoes of three other Nepalese, into soles of new shoes for the next set of couriers — South Koreans — for the subsequent leg of the journey, to Australia. A total of nearly 1.5 kg of heroin was seized, said the Straits Times, but the charge against Yubindra was for trafficking in ‘not less than 14.99 grams’ of heroin, thus sparing him the mandatory death penalty.
24-year-old Yubindra was arrested in August 2009 along with the three South Koreans and three Nepalese. One of the latter, Priyatam Tamang, also 24, had pleaded guilty last month to trafficking in ‘not less than 14.99 grams’ of heroin and received the minimum sentence of 20 years and 15 strokes. It is not clear when the other cases will come to court.
Prosecutorial discretion is a longstanding practice, but the way it is used here causes unease in me. While I stand resolutely against capital punishment — to me it is immoral to take another person’s life — I am also concerned about the sanctity and integrity of the law. It is one thing for prosecutors to choose which law to use when several laws are relevant to an offence, it is quite another thing to prefer a charge that does not fit the facts. Let’s say, for argument’s sake, that Elvis Choo had kicked Dean Mohamed repeatedly, punched him and stabbed him 17 times. And then took his wallet which contained $23. Would it be alright for the public prosecutor to merely charge Elvis Choo for the theft of the wallet, ignoring the assault and stabbing?
Here we have men trafficking in 1.5 kg of heroin. Parliament intended by passing the law that anyone caught with that amount should hang. Public officials, and most certainly, private citizens, may disagree with it, but is it right to circumvent it?
Once we do that as a matter of course, what is stop us from ignoring the severity of other crimes, such as stealing millions of dollars, or burning down a factory, and then charging the culprits with the equivalent of shoplifting and trespass. At what point will such practice bring the law and the justice system into disrepute?
It does not take great sagacity to guess why prosecutors are preferring the charge of 14.99 grams. The Singapore government does not want the ignominy of being in the cross-hairs of anti-death penalty activists and governments from around the world. As demonstrated in the Julia Bohl case, some governments are very serious about the matter and will not hesitate to punish Singapore through economic measures. Yet, the Singapore government is trapped by its own rhetoric, that only the death penalty stands between us and the drug scourge. Take the mandatory sentence away and we’d be a drug-addled society.
Having pounded the table and telling the rest of the world to stay out of Singapore’s domestic affairs, to repeal the mandatory death penalty would mean eating its own words. Pride does not allow that.
So what does it do? It ducks and takes the cowardly route — how often pride comes with cowardice! Never mind if the law is brought into disrepute by such arbitrariness. Once again, public decisions in Singapore are made in the interest of saving face regardless of the damage it does to institutions.
Yet, as law professor Michael Hor (National University of Singapore) argued recently,
The significance of the 14.99 charge phenomenon is this – if indeed prosecutorial discretion is exercised in this manner in a significant way, the argument that the mandatory death penalty is necessary crumbles.
— Michael Hor, Singapore’s Death Penalty: The Beginning of the End? — a paper presented at the City University of Hong Kong, 5 November 2011.
And, to extend the logic further, if the prosecution branch can decide not to go for the death penalty, why can’t we trust judges not to impose such a sentence? Why not remove the mandatory sentence and leave it to judges to weigh the facts and circumstances?
If indeed the Public Prosecutor retains this discretion of life and death importance, it is not easy to see why the court ought to be deprived of its say, especially when it can do so in a far more transparent and accountable way.
By letting the decision be made at the prosecutorial level, here again we are distorting the whole process of justice. It’s well and fine that we are moving in the right direction to reduce the number of hangings — I hope it won’t be long before we have a complete moratorium on the death penalty — but this is being achieved in an unwise way.