Our report on the Government’s proposed changes to the Mandatory Death Penalty.

WBSC Report on 2012 amendments to the Mandatory Death Penalty

The government first announced its intention to reform the current Mandatory Death Penalty (MDP) regime for murder and drug trafficking offences on the 9th of July 2012.

The Bills that would amend the relevant laws were first read in Parliament on the 15th of October 2012 and will be debated tomorrow, the 12th of November 2012.

In anticipation of the debate, our campaign has prepared a report highlighting the various problems which would arise from the provisions of the Bills. We argue that the effect of the provisions may give rise to unfair or unjust consequences and therefore urge the government to move further with its reforms.

However, we have confined this report to the provisions of the Bill themselves, in order to provide the most constructive critique to the matter at hand.

The report has been distributed to various Members of Parliament as well as NCMPs and NMPs. A copy of the report has also been sent to the Law Minister, Mr K Shanmugam.

This is a short summary of the report, which is available for download here:

WBSC Report on 2012 Amendments to the Mandatory Death Penalty

The changes to the MDP for Murder

In Singapore, the offence of Murder is provided for under section 300(a) to (d) of the Penal Code, which sets out the various definitions of the offence.

Under what will become the new laws, the MDP will only be applicable for Murders under section 300(a). Whereas it will be fully discretionary for Murders under section 300(b) to (d). The main difference between an offence under section 300(a) and those under s300(b) to (d), is that only the former requires the prosecution to prove that the accused had an intention to kill. For sections 300(b) to (d) the intent to cause death does not need to be proven for a person to be found guilty.

In the context of these reforms, we would urge that the death penalty be removed for offences under section 300(b) to (d). While it is made fully discretionary in the case of offences under section 300(a). Even in cases where the intention to kill is present, mitigating factors can still operate to show that an offender does not deserve death.

The changes in the MDP for drug offences

For drug trafficking, the MDP would no longer apply if the offender proves that his involvement was limited to the acts defined in the Bill, and if substantive assistance is rendered to the authorities.

It is unclear as to whether the exemption requirements are wide enough to cover mules who participate in activities other than transporting, sending or delivering drugs. We have highlighted cases where mules have also participated in activities such as packing or storing the drugs and therefore it is our position that the requirements should include these activities as well.

We also note that the offence of abetting an offence of drug trafficking is not included in the Bills. This would mean that mules who are found guilty of abetting a drug trafficking offence will not be eligible for consideration under the exemption requirements and would automatically receive the death sentence. We therefore call for the remedy of this gap in the Bills.

The exemption requirements only allows mules who have substantively assisted the CNB in disrupting drug trafficking operations to qualify for ‘discretionary’ sentencing. This provision gives the Public Prosecutor (PP) full control as to whether a person received the Mandatory Death Penalty or not. In effect, is the same as the current system. Furthermore, it is unclear as to what substantive assistance really means.

If it is determined by the outcome of the assistance, then it may give rise to unjust circumstances because the quality of information which drug mules posses, is not within their own control. Drug kingpins often take deliberate steps to prevent themselves from being incriminated, and thus restrict the amount of information which a drug mule receives. In this context, the number of mules who might qualify as having substantively assisted the CNB might be limited in reality.

Furthermore, this may also give rise to situations where a mule who happens to posses less useful information as compared to another, is sentenced to death while the other receives life imprisonment, even though the culpability of both offenders are the same.

If substantive assistance is determined by the intent to cooperate however, then it is our position that the courts are in a better position to determine intent, rather than the Public Prosecutor.

The Bills in effect, make the Public Prosecutor the sole judge of whether substantive assistance is rendered. Our position is that this should be decided by a judge who is objective and impartial, and who is obliged to give reasons and whose decision can be appealed against as compared to the PP, who does it behind a veil of confidentiality and whose decision cannot be challenged under the new law.

Most importantly, the effect of the substantive assistance requirement would have the effect that whether an offender receives an automatic death sentence or not is based is determined by their usefulness to the state. Even though we appreciate the legitimacy of extracting useful intelligence in order to keep our society safe, it should not be the sole factor which decides the life and death of offenders.

In general, the sentence of a person should be decided based on their culpability, not how useful they are in achieving certain goals. While the fact that offenders have rendered assistance can be taken into account as a mitigating factor, this changes in a system where it determines whether an offender receives the death penalty or not.

The sentence of death as compared to life imprisonment is vastly and categorically different. This difference is not one of degree, but one of dimension altogether. Determining the life and death of an offender based on their utility is manifestly unfair and unjust and goes completely against the purpose and principles of a criminal justice system, especially one in a modern democratic society.

Lastly, we put forward the position that the appropriate sentence for drug mules who qualify for the exemption requirements should be a maximum of life imprisonment. The case of this is especially strong given the fact that the level of culpability which drug mules posses is significantly lower than the kingpins. Furthermore, the strict requirements and the circumstances in which the mules are recruited are also strong reasons against imposing the death sentence on them. We would also reiterate the point that we do not think the actions of the mules are justified. Rather, we think that this makes a case for giving them a prison sentence instead of the extremely harsh punishment of death.

In conclusion, we strongly urge the government go further in its reforms on the MDP and its applicability in Singapore. As the Law Minister expressed in Parliament, the underlying philosophy of our criminal justice system should be one which avoids mandatory sentences as far as possible. And we would thus reiterate our call for the government to abolish the mandatory death penalty for all crimes.

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