Singapore 2025

What of Singapore towards 2025? Thoughts of a Singaporean.

Archive for November 2012

Parliament: Misuse of Drugs (Amendment) Bill (Pritam Singh)- 12 November 2012

Thank you, Mr Speaker. The amendments proposed by the Government are a step in the right direction insofar as it loosens the application of the mandatory death penalty under two specific conditions. However, this move also represents a missed opportunity to remove the mandatory death penalty from our statute books completely.

While there is significant debate in some quarters about the role and significance of the death penalty in our criminal justice system, it is viscerally apparent that many Singaporeans feel a sense of security with its continued existence in the statue books, even as others question the utility of the death penalty as deterrence.

While the death penalty per se is not of direct relevance to this Bill, it is noteworthy that a video poll conducted by TheOnlineCitizen sometime in 2011, observed that many Singaporeans did not know the difference between the application of the death penalty and the mandatory death penalty.

The distinction is structurally important especially when understood within the Diceyan separation of powers schema between the executive and judicial arms of government.

In mandatory death sentence cases, mitigation is irrelevant as are the unique factual circumstances of an accused. The judicial process concludes upon a finding of guilt. Under an offence that carries the mandatory death penalty, our judges are strait-jacketed from exercising the powers they have been vested – to be impartial decision makers in the pursuit of justice, with the power to hear all sides of the case.

All the prosecution has to do is to prove that the accused is guilty of the charge preferred against him or her, and the hands of a judge are tied. This is even if there is evidence that can be brought to bear to suggest that an accused’s circumstances warrant a closer look to consider the imposition of a sentence other than the mandatory death penalty.

To this end, I welcome the loosening of the mandatory death penalty for couriers as it returns some judicial discretion in qualified cases, limited though they may be, to our judges. After investing millions of dollars on the development of a world-class judiciary comprising of the brightest legal minds, there ought to be no place for mandatory sentences which effectively make the role of Judiciary administrative, in favour of the executive arm of the state in the shape of the Public Prosecutor.

This is a systemic anomaly which this Bill ought to have corrected once and for all. As iterated by the former Attorney-General, Walter Woon when it comes to the mandatory death penalty, the prosecutor, an agent of the executive, takes the hard decisions. What this Bill could have done was to ensure that the judiciary takes these hard decisions instead. This would have served the interests of accountability and would not only have strengthened the integrity of our criminal justice system, but increased public trust in it as well.

Broadly, while I welcome any move away from mandatory sentences as section 33B of this Bill proposes, I am concerned that with the narrow and selective loosening of the mandatory death penalty regime, focus on the exercise of the Public Prosecutor’s discretion will become even more acute going forward.

In fact, with regard to section 33B of the amendment, the two specific conditions under which the death penalty will no longer be mandatory may well put unwelcome pressure on the public prosecutor from members of the public to reveal the circumstances and reasons what specific information was revealed by an accused in the name of “substantive cooperation”.

This pressure on the Public Prosecutor is not likely to abate, but more likely brought into distinct relief by the presence of the section 33B(4) which makes it clear that no action or proceeding shall lie against the Public Prosecutor on the determination of substantive assistance, unless it can be proved that the determination was done in bad faith or with malice.

In tandem, the circumstances that lead to the issuance of a certificate of cooperation may not be too controversial. But I am concerned that an accused who is unable to provide actionable information or the potentially subjective “substantive cooperation”, stands to be at the mercy of the Public Prosecutor’s judgment – a state of affairs that is not transparent, and not open to public scrutiny unlike the situation of a trial judge in open court.

Here, it would have been opportune for the Bill to allow an accused’s counsel to make representations when the Public Prosecutor does not issue a certificate of cooperation, and for the trial judge to determine in his/her discretion, the extent and scope of the accused’s cooperation with enforcement agencies, including the reasons for the absence of a certificate of cooperation.

This ought to be considered for the following reason: While the government’s move to rationalize the application of the mandatory death penalty is noteworthy, I do not expect the high priests of organised crime to sit idly by and they may well further tighten the compartmentalisation of their operations to ensure that drug couriers only have enough information to incriminate themselves or a small cell group of anonymous drug-pushers, not the controllers and masterminds which the amended Act seeks to target as well.

Allowing a trial judge to determine the extent and scope of an accused’s cooperation with enforcement agencies if no certificate of cooperation is issued, would also be in line with the Government’s stated position of giving more discretion to judges.

Like many Singaporeans and the Government, I am mindful of the impact of drugs on our people and society. I acknowledge the concerns many have over the slippery slope argument – that any perception of an easing of our drug laws may open the floodgates to negative consequences. But in the same vein, I am also quietly confident that our judges are equally, if not more sensitive and exposed to the wider societal impact of drug abuse, and the range of sentences they are able mete out to combat it.

This is especially relevant, as any move away from the mandatory death penalty does not preclude our judges from sentencing an accused to death, in the appropriate case.

I note other amendments to the Act which include strengthening the punishment framework for repeat drug offenders and those who traffic drugs to the young and vulnerable, as made out in section 12A and separately the provision of a Community Rehabilitation Centre which gives the Director of the CNB the option of allowing young abusers the option of continuing with their education or employment. The introduction of section 31A, covering the inclusion of hair tests to determine if an offender should be placed under supervision is also a step in the right direction as is the decision to target drug parties and the temporary listing of psychoactive substances.

All said, the creation of greater options to deal with drug offenders and the drug menace in a more nuanced and targeted fashion is welcomed and is likely to represent another arrow in the quiver for our enforcement officers.

In conclusion, this Bill leaves me to say a word about the special men and women who work in service of a drug-free Singapore through the Central Narcotics Bureau (CNB). In fact, I do believe that it is of vital importance that Singaporeans support and recognise their unique and challenging work so as to engender a healthy trust between citizens and the executive arms of government, which include the CNB and the Attorney-General’s Chambers.

To that end, a criminal justice system that operates to give the judicial arm of government the discretion to pass judgment on persons charged under the Misuse of Drugs Act would be the preferred way forward. Our prosecutorial and evidence collecting agencies should be left to focus on their important work rather than spending time worrying about legal contortions, and trying to maneuver around offences that carry the mandatory death penalty. Let us leave the task of passing judgment to our judges. Mr Speaker, my opposition to the mandatory death penalty notwithstanding, I support this Bill.

Written by singapore 2025

12/11/2012 at 9:17 am

Posted in Parliament

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