Date: 8 November 2012

POSITION STATEMENT BY THE NATIONAL SOLIDARITY PARTY ON THE PROPOSED CHANGES TO THE APPLICATION OF THE MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING AND MURDER

ABSTRACT

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The National Solidarity Party welcomes the shift in the Governments attitude towards the application of the MDP. We are glad that the Government has reviewed the death penalty regime and has decided to alleviate the heavy arm of the MDP. We are of the view that the proposed changes do not actually enlarge the courts discretion, because it is the discretion of the Public Prosecutor which really counts. According to MHA, the Public Prosecutor will issue a Certificate of Co-operation where the condition of substantive cooperation is met. If the Public Prosecutor does not grant the Certificate of Co-operation, the courts hands are tied. We recommend that the burden of life or death should be on the judges rather than on the shoulders of the Public Prosecutor. We urge the Government to weigh the value of retaining the MDP against the social cost of retaining the MDP. We appreciate the Government's promise to put more resources into border checks and enforcements and to strengthen partnerships with our regional counterparts; for we believe that the certainty of detection is a greater deterrence than the MDP. We are of the view that it is not good enough for the Government to justify the retention of the MDP merely based on its own belief in its deterrent effect; nor on its belief that most Singaporeans believe in the efficacy of the death penalty as a deterrent. We are not convinced of the value and benefits of the MDP. Unless there is clear and compelling evidence of the social benefits of retaining the MDP, we call on the Government to abolish the MDP from its penological menu as a matter of principle, and to give judges discretion for all capital offences.

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STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

Preamble 1. On 9 July 2012, the Deputy Prime Minister and Minister for Home Affairs, Mr Teo Chee Hean (MHA) and the Minister for Law, Mr K Shanmugam (MinLaw) announced in Parliament the Governments intention to reform the mandatory death penalty as it applies to drug trafficking1 and murder2. At the Parliamentary Sitting on 15 October 2012, the Misuse of Drugs (Amendment) Bill3, the Penal Code (Amendment) Bill 2012 and the Criminal Procedure Code (Amendment) Bill 20124 were introduced for First Reading. This Paper is a response by the National Solidarity Party to the proposed legislative changes to the application of the MDP for drug trafficking and murder.

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Welcome Shift in the Governments Attitude 4. We welcome the shift in the Governments attitude toward the application of the MDP. We are glad that the Government has reviewed the death penalty regime and has decided to alleviate the heavy arm of the MDP. We agree with the following principles articulated by MHA and MinLaw, being: (i) our societys norms and expectations are changing. there is also increased expectation that where appropriate, more sentencing discretion should be vested in the courts. 5 justice can be tempered with mercy and where appropriate, offenders should be given a second chance. 6 we must generally move towards a system where the philosophy must be that judges have more discretion, not less. 7

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(ii) (iii)

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While we are pleased with the Governments revised position towards the MDP, we regret the narrow scope of the proposed changes. While the MDP is to be abolished for all but one category of murder, for drug trafficking, the Government intends for MDP to remain largely in place 8. The MDP will continue to apply as before to the capital offences under the Arms Offences

MHAMinisterialStatement(9July2012)EnhancingourDrugControlFrameworkandReviewoftheDeath Penalty. 2 MinLawMinisterialStatement(9July2012)ChangestotheApplicationoftheMDPtoHomicideOffences. 3 MinLawPressRelease(15October2012)FactsheetontheproposedamendmentstothePenalCodeand CriminalProcedureCode 4 MinLawPressRelease(15October2012)FactsheetontheproposedamendmentstothePenalCodeand CriminalProcedureCode. 5 Note1atpara23. 6 Note2atpara25. 7 MinLawsResponsetoNMPEugeneTan(9July2012). 8 Note1atpara24.
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STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

Act, Cap. 14 as well as all the other capital offences to which MDP currently applies.9 Limited Scope of Proposed Changes for Drug Trafficking 7. MHA made it clear that the Governments intention is to maintain the MDP for drug trafficking in most circumstances.10 It is only when two specific, tightlydefined conditions are both met, that the death penalty would no longer be mandatory: Firstly, where the traffickers only role was that of a courier, and must not have been involved in any other activity related to the supply or distribution of drugs; and Secondly, if the accused has either cooperated with the Central Narcotics Bureau in a substantive way, or has a mental disability which substantially impairs his appreciation of the gravity of his acts. 8. We are of the view that the proposed changes do not actually enlarge the courts discretion, because it is the discretion of the Public Prosecutor which really counts. According to MHA11, the Public Prosecutor will issue a Certificate of Cooperation where the condition of substantive cooperation is met. If Public Prosecutor does not grant the Certificate of Co-operation, the courts hands are tied. We note with concern the wording of the proposed new Section 33B(4) of the Misuse of Drugs Act, Cap. 185, which reads as follows: The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice. Misuse of Drugs (Amendment) Bill 2012. 10. Hence, the life of the offender lies at the hands of the Public Prosecutor. What are the guidelines for exercising this discretion? Ultimately, assessing an offenders level of cooperation is a judgment call, in which one persons opinion may differ from another person. This life or death burden should be

9.

Capital offences to which MDP currently applies include: having firearms, etc in any security area (s.58, InternalSecurityAct,Cap.143);treasonoffencesofwagingwar(s.121,PenalCode,Cap.224);'imagining'the death of the President (s.121A, Penal Code, Cap. 224); piracy with attempt to murder or endangerment (s.130B,PenalCode,Cap.224);mutinyinfaceofenemyorwithviolence(s.15,SingaporeArmedForcesAct, Cap.295); terrorist bombing (s.3, Terrorism (Suppression of Bombings) Act, Cap.324A. When we accessed MHA'sexecutionstatisticsaspublishedinitswebsite,wefoundthatalargemajorityofexecutionshavebeen fordrugtraffickingwiththerestformurderandarmsrelatedoffences;wefoundnorecordofexecutionsfor anyothercapitaloffences. 10 Note1atpara24. 11 Note4atpara(f).
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STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

on the judges to bear rather than on the shoulders of the Public Prosecutor.12 As it is Public Prosecutor is the Attorney-General and the Attorney-General already has wide prosecutorial discretion in deciding whether or not to charge a person in the first place. Proposed Changes for Murder 11. Under the proposed changes for murder, the MDP will be abolished for three out of the four categories of murder under Section 300 of the Penal Code; the MDP will continue to apply to murder within the meaning of Section 300(a) of the Penal Code. When MDP is abolished, judges would have discretion to commute the death sentence to life imprisonment in deserving cases. Judges would also have the discretion to order caning in cases where life imprisonment is ordered. MinLaw explained the rationale for retaining the MDP for murder under Section 300(a) as follows: Intentional killing within the meaning of 300(a) is one of the most serious offences in our books It is right to punish such offenders with the most severe penalty. It is right to provide for the most powerful deterrent against such offences. It is right, therefore, that the mandatory death penalty should continue to apply to such intentional killing.13 13. Firstly, for the reasons we will elaborate below in paragraphs 28 - 31 of this Paper, we doubt that retaining the MDP for Section 300(a) murder would have a more deterrent effect on would-be offenders. Secondly, we are of the view that judges can be relied on to exercise their discretion in a manner which reflects the seriousness of a conviction under Section 300(a). Hence, if the MDP is abolished for Section 300(a) murder, we think that the end result would be the same i.e. a death sentence for the offender - but without the compromise of retaining the MDP in our justice system. The value of retaining the MDP has to be weighed against the social cost of retaining the MDP. We argue that for Section 300(a) murder, the ethical sacrifice of retaining the MDP outweighs the benefits of its retention.

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The Perceived Deterrent Effect of the MDP 16. In their parliamentary speeches, both MinLaw and MHA justify the retention of the MDP on the ground of its crime deterrent effect, the protection of society from harm being the Governments over-arching duty and responsibility.

Myproblemwiththemandatorydeathpenaltyisthattheharddecisionsaretakenbytheprosecutorwhen exercisingprosecutorialdiscretion.Youcannotimaginethecontortionswehadtogothroughtofindsomeway tonotchargeaperson[withacapitalcrime]becausethejudgehadnodiscretionbuttheprosecutiondid. NUSLawProfessorandformerAttorneyGeneralWalterWoon,reportedinTheStraitsTimeson20October 2012. 13 Note2atpara17(1).

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STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

17.

For homicide offences, MinLaw stated: Singapores homicide rate is one of the lowest in the world, and we believe that the deterrent effect of the death penalty has played an important part in this.14

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We have difficulty appreciating the deterrent effect of the death penalty for murder. After all, almost all murders are crimes of passion, which are not susceptible to deterrence.15 For drug trafficking offences, MHA stated: As part of our penal framework, it has contributed to keeping crime and the drug situation under control. 16 For drug traffickers, we concluded that the mandatory death penalty should continue to apply in most circumstances. 17 Our approach has been effective in reducing the drug problem in Singapore . 18

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Both Ministers stated their belief in the deterrent effect of the MDP. However, based on information in MHAs speech19, though the MDP has been in place since 1975, it did not prevent a boom in heroin abuse in 1994 almost twenty years after the MDPs inception. While the Government can argue that it was because of the rigorous use of the MDP post-1994 against drug traffickers that caused a decline in the drug abuse situation, it could also be a case where the Governments response to the problem through heightened border checks and enforcement has actually served to be a more effective solution by restricting supply and suppressing local drug syndicates. We are glad that the Government understands this too and has promised to put more resources into border checks and enforcements and to strengthen partnerships with our regional counterparts. The Government is also taking up the recommendations of the inter-ministry Taskforce on Drugs on a comprehensive approach to tackle the drug situation. In light of these efforts, the MDP becomes less of a necessary tool. We believe that the certainty of detection is a greater deterrence than the MDP. Apart from stating their belief in the deterrent effect of the MDP, neither of the Ministers provided the evidence for their belief. Both MHA and MinLaw allude

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Note2atpara24. All casesofmurder were isolated and unrelated. A large proportion of the caseswere crimes of passion whichoccurredmainlyasaresultofmisunderstandings,disputesbetweenknownpartiesandfamilymattersor problems.SingaporePoliceForce,CrimeSituationfortheYear2001. 16 Note1atpara2. 17 Note1atpara4. 18 Note1atpara22. 19 Note1atpara8.

STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

to studies relating to the application of the death penalty in our laws20 having commenced in December 2010 and [in] July 2011, based on the studies, [had] started a general review of the drug situation and the death penalty as it applied to all our laws.21 However, neither Minister said anything more about such studies. Death Penalty Supported by Singaporeans? 23. What is more, MHA went on to state: Singaporeans understand that the death penalty has been an effective deterrent and an appropriate punishment for very serious offences, and largely support it. 22 24. Hence, MHA has justified the retention of the MDP on the added ground that Singaporeans believe in the deterrent efficacy of the death penalty and support its use. How did MHA arrive at the conclusion that most Singaporeans believe in and support the death penalty? So, besides offering no basis for its own belief in the deterrent effect of the MDP, the Government has also given no basis for how it arrived at the conclusion that Singaporeans by and large believe in and support the death penalty. The MDP has been the punishment for murder since Singapore was a British colony. The MDP was introduced for drug trafficking in 1975. Despite the long history of its application in Singapore, the Singapore public has scant evidence (statistics, data, studies etc) on the oft-stated deterrent effect of the MDP or for that matter, the death penalty, in respect of the offences to which it applies.23 Without the benefit of such objective evidence of the causative link between the MDP and the incidence of crimes to which it applies, how can anyone make an informed decision whether or not to support the use of the MDP?

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Added Deterrence of the MDP is doubtful 28. In any case, even if it can be demonstrated, preferably with objective deterrent studies, that the death penalty does serve as an effective deterrent against serious crimes in Singapore, there is also the question of how much better is society protected when the death penalty is mandatory. To put it

Note1atpara3 Note1atpara3 22 Note1atpara2. 23 Forajurisdictionwhichapparentlybelievessostronglyinthedeterrenteffectsofseverepunishmentslike the death penalty and caning, Singapore produces remarkably few, if any, credible deterrence studies, empiricalorotherwise.IndeedIknowofnoproperofficialstatisticalstudy.(ProfMichaelHor,Death,Drugs, MurderandTheConstitutioninDevelopmentsinSingaporeLawbetween2011and2005,SingaporeAcademy ofLaw,2006)
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STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

another way, would the deterrent effect of the death penalty for a particular capital offence, be significantly less if it is not mandatory? 29. We note the following remarks made by Prof. Walter Woon (when he was then a Nominated Member of Parliament) at the Second Reading of the Arms Offences (Amendment) Bill 1993 in Parliamentary on 30 August 1993: "What happens if you got a robber who accidentally discharges the gun? This is the use without intent. Mandatory death sentence. Mandatory death sentence for accomplices too. Are we comfortable with that? What happens if you got an armed robber who fires in the air, a warning shot? No intent to injure anyone. Mandatory death sentence for him and mandatory death sentence for his accomplices. Will it improve matters? Do armed robbers take these things into account? Do they go and check up the legislation first to see whether it is mandatory or not? I doubt it very much. So I am not sure the deterrent effect is increased one bit by having a mandatory sentence." 30. In the opinion of the Law Society of Singapore: Changing the mandatory nature of the death penalty to a discretionary one will not reduce the perceived deterrent effect of the death penalty. The discretionary death penalty was introduced for kidnapping in 1961. Since then, kidnapping has been rare.24 31. It is not good enough for the Government to justify the retention of the MDP merely on its own belief in its deterrent effect; nor on its belief that most Singaporeans believe in the efficacy of the death penalty as a deterrent. Given the severity of the MDP, and its resultant irreversible loss of life, the Government has a moral duty to provide the public with persuasive, cogent evidence that the MDP is an effective deterrence against the offences to which it will remain applicable.

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Severity of the MDP 33. The speeches of both Ministers are replete with references to the overarching policy of crime deterrence. As summarised by MinLaw: The overaching aim of the Government is to ensure the safety and security of Singapore, while maintaining a fair and just criminal justice system. 25 34. We agree with MinLaw when he went on to say: any justice system must have the support of the people they must believe it to be just.26 The goal of crime deterrence has to be attained by fair and just ways.

ReportoftheCounciloftheLawSocietyontheamendmentstothePenalCodeproposedbytheMinistryof HomeAffairs,30March2007. 25 Note2atpara16. 26 MinLawsresponsetoNMPEugeneTan(9July2012)

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STATEMENT BY THE NATIONAL SOLIDARITY PARTY RELEASE DATE: 8 NOVEMBER 2012

35.

When judges have no discretion in capital cases, the offender has no opportunity to provide mitigating factors or to otherwise persuade the Court that he deserves less than the penalty of death. MDP precludes proportional and individualized sentencing. For this reason, the MDP is the harshest punishment on the penological scale. Is MDP a fair and just punishment? The policy of using the death penalty is already a very tough stand. It is already a high ethical price for any society to pay. Do we really need the MDP? Will security and safety be significantly compromised if judges were given discretion to commute the death sentence to life imprisonment?

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Conclusion 37. We see MDP as an ethical sacrifice and a compromise of ideals and aspiration, which may be justified if MDP does serves the interests of society. To date, the Government has failed to provide the public with objective proof of the deterrent effect of the MDP on the capital offences for which it is to remain applicable. Therefore, we are not convinced of the value and benefits of MDP. Unless there is clear evidence of the social benefits of retaining MDP, we call on the Government to abolish MDP from its penological menu as a matter of principle, and to give judges discretion for all capital offences.

THE NATIONAL SOLIDARITY PARTY

A political party registered as a society on 6 March 1987 under the Societies Act, Cap. 311.

Website: www.nsp.sg Email: outreach@nsp.sg