“Understandably, people are concerned that we are on a slippery slope down away from zero tolerance on drugs. And I too am concerned about the increase in drug abusers arrested and the increase in drugs seized, as mentioned earlier. But we have to ask ourselves whether the death penalty is the only possible way of effectively defending Singaporeans against drug traffickers? Is it an absolute necessity? I would say not. There are alternative tough sentences, like the life sentence, which is already a very harsh sentence. Abolishing the death penalty and having a zero tolerance on drugs can go together.” – NMP Laurence Lien, Parliament, 12th November 2012.
During the Parliamentary debate on the changes to the Mandatory Death Penalty [Misuse of Drugs Act (Amendment) Bill] last week, various Members of Parliament urged the government to move further with its reforms and to abolish the mandatory death sentence. NMP Laurence Lien went even further and advocated for the abolition of the death penalty as a goal that our society should aim towards. He also called for the death penalty to be made fully discretionary in the meantime.
In his speech, he questioned the ethics and principles of the ‘substantive assistance’ requirement that drug mules would have to meet in order to qualify for a chance escape the mandatory death sentence, stating that in effect, a people’s lives will be determined by how useful they are to the state. He also raised doubts about the deterrent effect of the death penalty, the problems in the narrow definition of drug mules, and the failure of the Bill to cover the abetment of a drug trafficking offence.
We thank Mr Lien for allowing us to reproduce his speech in full.
Mr Speaker, Sir, thank you for allowing me to speak on this Bill. I would like to start by expressing my support to the Bill in giving discretion to judges under specific circumstances for drug trafficking. Likewise, I support the same in the Penal Code (Amendment) Bill for murder.
I think this measure is a significant step in the right direction. However, I do not think it goes far enough. I would like to advocate for the removal of the death penalty as an ultimate goal, and for full discretion to be given to the courts on the imposition of the death penalty in the interim. I also have specific problems with the circumstances outlined in the proposed Section 33B, subsections (2)(a) and (2)(b), what I call the “drug mule” and “substantive assistance” requirements respectively.
Sir, let me start by articulating why I think we should abolish the death penalty. My starting point is that we must believe that every human life is precious, and we need to protect every person from conception to death. Unless it is specifically to save another life, taking a life for no matter how good an intention, is wrong. For the same reasons, I would not support euthanasia.
Having a culture of death has much wider implications then the removal of a burden or threat that we perceive that a particular person may bring. It damages the work that we are all trying to achieve, that is to build an inclusive society. Inclusiveness here is a sense of belonging, of being respected and valued for who you are, and ultimately, being always treated with equal dignity and compassion, even if you have made mistakes, are terminally-ill, or are perceived as being a burden to society. To treat people otherwise is to treat them as the means, not the ends.
Fundamentally, what is the type of society that we want to live in? Do we believe in compassion and in allowing people chances to redeem themselves and be rehabilitated, even if they make bad mistakes? Do we believe in second chances?
Sir, I do not condone merely pursuing a utilitarian view of justice, where the ends simply justify the means. According to this view, justice requires the maximisation of the total welfare across individuals in our nation. In sentencing, a utilitarian would focus on the deterrent and security aspects of punishment.
Deterrence is to make credible the threat of severe punishment so that others would think twice about committing the offence; and the security aspect focuses on taking offenders out of circulation through incapacitation so that they can do no more harm to others.
Deterrence and incapacitation are clearly well-intentioned objectives. But we cannot take them to the extreme such that the ends justify the means. We need a sense of proportionality. Society should move towards more humane ways of restorative justice, especially where there is possibility of reforming and rehabilitating the offender.
In this regard, as the death penalty is being maintained, I propose that full discretion be given to the courts on the imposition of the death penalty. The courtroom, rather than the prosecutor’s office, is a much more appropriate place to decide on the punishment that best fits the crime, based on the seriousness of the offence and the culpability of the offender.
Understandably, people are concerned that we are on a slippery slope down away from zero tolerance on drugs. And I too am concerned about the increase in drug abusers arrested and the increase in drugs seized, as mentioned earlier. But we have to ask ourselves whether the death penalty is the only possible way of effectively defending Singaporeans against drug traffickers? Is it an absolute necessity? I would say not. There are alternative tough sentences, like the life sentence, which is already a very harsh sentence. Abolishing the death penalty and having a zero tolerance on drugs can go together.
In any case, I believe many serious drug traffickers may already be detained under the Criminal Law (Temporary Provision) Act, instead of under the Misuse of Drugs Act (MDA).
As has been already pointed out, research on the deterrent effects of the death penalty is mixed. Some studies in other jurisdictions even show a decline in homicide rates even after the death penalty was abolished, like in Hong Kong which abolished capital punishment in 1993.
As United Nations Secretary-General Ban Ki-Moon said in July this year when calling on member states to abolish the death penalty, I quote, “The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process”. The death penalty is too drastic a measure in our modern world, with our modern justice system.
Mr Speaker, Sir, next, I will move on to specific clauses of the Bill.
First, the “drug mule” requirement under the proposed sub-section 33B(2)(a) is under-inclusive and may give rise to instance where offenders with similar levels of culpability being given vastly difference sentences. For example, it is not clear whether an offender who performs a limited role of packing the drugs under instruction can come under this subsection. Instead of a listing of acts and activities, these offenders should be defined, in my view, according to their relative roles or responsibilities in the drug syndicate.
Secondly, under the MDA, a person found abetting a drug trafficking or importation offence is liable to the same punishment prescribed for the principal offence. Abetment comes in many forms and with varying degrees of culpability. I propose that the courts be given a discretion whether to consider abettors as principal offenders or not.
Thirdly, I have serious concerns about the requirement of “substantive assistance” under subsection 33B(2)(b), as has been mentioned by many speakers before me. It is not well-defined and ambiguous. And if it is based on the actual results of cooperation and receiving high-quality information, there could be potential unfairness because the less culpable, quite often, have less information.
This “substantive assistance” standard is too high, which was also mentioned by Mr Edwin Tong, and has a worryingly strong utilitarian element of collecting better intelligence, and using the threat of death as a bargaining chip. Simply put, whether a person gets a chance to live or not hinges on how useful the offender is to the state in achieving certain ends. I believe the life and death of an offender should not be decided based solely on their utility to the state. Hence, I urge that this subsection be removed.
Sir, in conclusion, I welcome the Government’s move towards more judicial discretion and prescribing sentences which are more proportionate to the culpability of the offenders. However, I urge the Government to go further and abolish the death penalty in the future. I understand the strong support by many in Singapore for the death penalty, and that we Singaporeans are rightly proud that Singapore is a safe and secure home, relatively free from drugs and serious crime. These ought to be outcomes we need to work hard to maintain. But where it comes to the death penalty, it is not just about our criminal justice system, which we also want to be proportionate and restorative; it also about the type of society that we want to build – a society that values every person and one that does not give up on its people.