Death and the Maiden
MANDATORY DEATH PENALTY Next, we consider the legitimacy of the mandatory death penalty as distinct from value judgments of the death penalty as punishment. The argument that the mandatory death penalty is unconstitutional is tenuous at best. In Ong Ah Chuan,6 the Privy Council considered the constitutionality of the mandatory death penalty, particularly in relation to drugs trafficking. The court upheld the mandatory death penalty as constitutional, with Lord Diplock noting that the argument was precluded by the fact that Article 9(1) of the Constitution recognised that a person may be deprived of his life in accordance with the law. Nonetheless, he constrained the definition of law, noting that the rules of natural justice applied to this concept.
illness that has reduced his remaining lifespan to an estimated six months while B is perfectly healthy at the time of sentencing, to what extent can we say that it is fair or just for A to escape full punishment, particularly for a circumstance that may have no bearing whatsoever on his own feelings of guilt or remorse for his crime? Indeed, sickness and ill-health is often cited as a ground for mercy, but may nevertheless appear to be the exercise of leniency grounded on reasons that in no way diminish the severity of the offence or the culpability of the offender.
Ong Ah Chuan7 has not been followed in subsequent Privy Council cases. Nevertheless, these cases have been distinguished by the Singapore Court of Appeal in Yong Vui Kong8 on the basis that those constitutions contained express prohibitions against inhuman or degrading treatment, which the Singapore constitution does not contain. The objections to the mandatory death penalty can be summarised as follows: Firstly, that the mandatory death penalty is an arbitrary punishment and that it removes sentencing discretion from the rightful jurisdiction of the court. Secondly, that it precludes the court from considering other legitimate factors that may justify the exercise of mercy.
Yet this conception confuses mercy, for indeed, when duly exercised, the reasons mercy generates for leniency precisely do not impact or in any way reduce what the offender actually deserves. The mandatoriness of the death penalty removes all these considerations from sentencing, yet it is arguable that they are internal to the logic of coherent sentencing.
With regard to the first, the issue of where sentencing powers rightfully lie is in itself contentious. Parliament certainly possesses the right to impose, for example, the type and maximum/minimum (or ceiling and floor) duration of sentences, yet it is argued that within that band is where judicial discretion in sentencing should rightly lie. Making a sentence – any sentence, let alone one as severe as the death penalty – mandatory completely removes judicial competence to assess the circumstances at hand and deliver individualised justice. Certainly, in order for a sentence to be just, it must arguably take into account the particularities of the given situation. Mandatoriness arbitrarily imposes the same penalty on potentially unlike situations – apart from the bare facts required to invoke the penalty (as in the case of drugs trafficking, the mere carriage above a certain limit of a certain class of drugs). There is no doubt that Parliament has the capability to distinguish between different classes of offences and to impose different sentences among these categories; hence, the difference in sentence between trafficking, for example, 15.01g of heroin (the death penalty) and 14.99g of heroin (life sentence) may not in itself be seen as arbitrary and unfair. Some might argue that the distinction is arbitrary while others might argue that this is the inevitable cost of precision. Nonetheless, what we are contesting is the fact that the death penalty mandatorily applies to a given category (rather than how the categories themselves are distinguished).
Prior to the amendments coming into force, the Courts had no discretion in sentencing if they found an individual guilty of murder; the death penalty was mandatory across all categories of the offence. The previous version of s302 of the Penal Code thus read: “Whoever commits murder shall be punished with death.” With the coming into force of the amendments, the mandatory penalty is retained only where the Court concludes that the defendant had intended to cause death through the act by which death was caused under s300(a) of the Penal Code. The decision to categorically distinguish between types of murder found in s300 for the purposes of sentencing was motivated by the view of policy-makers that an intentional killing still warranted the mandatory death penalty. With regard to the other forms of murder contained in s300(b)(d), the Court is vested with the discretion to either sentence a defendant to death or life imprisonment with caning.
Secondly, and interrelated to the first, is that mandatory sentencing prevents a judge from considering mitigating factors that might otherwise justify the exercise of mercy. Mercy 6 7 8
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might be understood as the existence of reasons for leniency in punishment. It may seem at first blush that mercy’s exercise of benevolence interferes not only with legal certainty but offends the strict principle that an offender should simply get what he deserves. If both A and B committed a heinous crime –the rape and murder of a child – but A is suffering from a debilitating
Ong Ah Chuan v Public Prosecutor [1981] AC 648, PC. Ibid. Yong Vui Kong v. Public Prosecutor [2010] 2 S.L.R.
REVISIONS TO MDP Against this backdrop we consider the amendments made to the mandatory death penalty with regard to the offences of murder and drug trafficking.
The amendments made to the legal regime applying to drug offences are significantly more complex. Previously, the conviction of an individual of certain drug offences (e.g. trafficking or importing a quantum over the prescribed threshold) automatically invoked the mandatory death penalty. With the amendments, s33B of the Misuse of Drugs Act (MDA) vests the Court with discretion to sentence a defendant to life imprisonment (possibly with caning) instead of death. However, in order for the discretion to arise, the following conditions must be fulfilled: Firstly, the accused, must prove that his involvement was restricted to the listed roles in ss33B(2)(a) or 33B(3)(a) of the misuse of Drugs Act to demonstrate that he was a courier and nothing more. Secondly, the Public Prosecutor must either certify that the defendant has substantially assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore, or the defendant must prove that he was