The International Library of Essays on Capital Punishment, Volume 1

Justice and Legal Issues

Peter Hodgkinson

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409461357
• eBook ISBN: 9781351887533
• Edition: 1
• Topic: Social Sciences
• Subtopic: Politics
• Index: Social Sciences

This volume provides up-to-date and nuanced analysis across a wide spectrum of capital punishment issues. The essays move beyond the conventional legal approach and propose fresh perspectives, including a unique critique of the abolition sector. Written by a range of leading experts with diverse geographical, methodological and conceptual approaches, the essays in this volume challenge received wisdom and embrace a holistic understanding of capital punishment based on practical experience and empirical data. This collection is indispensable reading for anyone seeking a comprehensive and detailed understanding of the complexity of the death penalty discourse.

Part I

Legal Issues

[1]

Yong Vui Kong v. Public Prosecutor and the Mandatory Death Penalty for Drug Offences in Singapore: A Dead End for Constitutional Challenge?

Yvonne McDermott*

* Yvonne McDermott, B. Corp. Law, Diop. sa Gh., LL.B., LL.M. cum laude (Leiden) is a Ph.D. Candidate at the Irish Centre for Human Rights at the National University of Ireland Galway. The author wishes to thank Niall Mulligan for his helpful comments and suggestions on an earlier draft.

ABSTRACT

This article examines constitutional challenges to the mandatory death sentence in Singapore, with particular reference to the most recent case of Yong Vui Kong v. Public Prosecutor (2010). It discusses whether the Court of Appeal was too hasty in disregarding more recent jurisprudence of the Privy Council, which held the mandatory death sentence as a form of inhuman treatment or punishment. It also examines the customary international law prohibition of the mandatory death penalty, and the imposition of the mandatory death penalty for drug offences as a breach of the equality guarantee in Singapore’s constitution. The article reveals a dismal future for a nuanced and sensible approach towards drug crime in Singapore, in that the latest case closes off many avenues for constitutional litigation.

On 14 May 2010, the Court of Appeal in the Republic of Singapore upheld the death penalty imposed on 22-year old Malaysian national Yong Vui Kong, who was 19 years of age when he was arrested in 2008. He had been convicted of trafficking not less than 42.27g of diamorphine and sentenced to death in 2009¹ under s 5(1)(a) of the Misuse of Drugs Act,² which provides for a mandatory sentence of death for trafficking in 15g or more of the substance.

The appeal of the original decision related to the constitutionality of the mandatory nature of the death penalty, as provided for by the Misuse of Drugs Act. This was not the first appeal of its kind before the Singaporean courts. In 1980, an appeal against the mandatory death penalty for trafficking in drugs was dismissed in the case of Ong Ah Chuan,³ while the mandatory death penalty was similarly upheld in the case of Nguyen in 2004.⁴ Both Ong Ah Chuan and Nguyen were unsuccessful in their arguments that the mandatory death penalty violated Articles 9 and 12 of the Singaporean constitution, which cover the protection against deprivation of liberty without due process of the law and the right to equal protection of the law, respectively.

Leave to appeal the applicant’s initial sentence was granted on the basis of two principal submissions made by his counsel: that the two aforementioned decisions were decided wrongly at that time, and that the circumstances had changed to such a degree that the court should now be in a position to deem the mandatory death penalty in the Misuse of Drugs Act unconstitutional.⁵ Like the preceding Ong Ah Chuan and Nguyen cases, the challenge was grounded in Article 9 and Article 12 of the constitution.

As with the court’s judgment, this article does not propose to deal with the issue of the legal validity of the death penalty per se, but rather the continuing significance and legitimacy of the mandatory death penalty for drug offences. A downward trend in the number of countries that impose the death penalty has continued over the last four decades.⁶ As Amnesty International has noted, since 2007 alone, eight countries have formally abolished the death penalty for all crimes,⁷ leaving the number of de jure abolitionist states at ninety-five. The number of countries that have de facto abolished the death penalty, that is those retaining capital punishment in their statute books but who have not executed anyone for ten or more years, stands at forty-five.⁸ Notably, however, for those fifty-eight countries that retain the death penalty, thirty-two list drug offences as capital offences.⁹

While figures on the exact number of executions in Singapore are not freely available, concern has been raised about its high execution rates.¹⁰ Amnesty International in 2004 estimated that over 400 prisoners had been hanged in the country since 1991, which rendered it the state with possibly the highest execution rate in the world relative to its population.’¹¹ That being said, there has been a decrease in recent years, with reported executions averaging around seven per year over the past decade, compared to twenty-one hangings in 2000 alone.

Of the thirty-two countries that retain the death penalty for drug offences, Singapore is one of just thirteen to keep the mandatory death sentence for drug offences on its statute books, meaning that no mitigating circumstances can be taken into account when imposing the harshest possible sentence. Domestic law also reserves the mandatory death penalty for treason,¹² pre-meditated murder using arms¹³ and armed robbery,¹⁴ while misdemeanours such as spitting in public, chewing gum, and leaving the toilet seat up are criminalised.¹⁵ The harsh criminal justice system, paired with the country’s cleanliness, thriving economy and the material wealth of its inhabitants, has led one commentator to dub the small island nation a ‘theme park with the death sentence’.¹⁶

The mandatory death penalty as inhuman treatment or punishment

Article 9(1) of Singapore’s constitution provides that ‘No person shall be deprived of his life or personal liberty save in accordance with law’. In Yong Vui Kong, the appellant argued that the mandatory death sentence imposed contravened this provision in two respects. First, it was argued that the mandatory nature of the sentence was inhuman and, as such, it could not be considered ‘law’ for the purposes of Article 9(1) and the ‘in accordance with the law’ proviso. Second, it was submitted that the phrase ‘law’ ought to include customary international law, and a customary international law norm had emerged such to find that the mandatory death penalty was inhuman treatment, and thus in contravention to international human rights law.

As regards the first strand of this argument, the definition of ‘law’ under Article 2 of the Singaporean constitution must be considered. Article 2(1) defines law as encompassing written law passed by the UK Parliament and having force in Singapore, and common law and custom in so far as it is in operation in Singapore. In Ong Ah Chuan, the appellant submitted that the mandatory death penalty invoked a presumption of guilt and, as such, was contrary to fundamental norms of due process. In response, the Prosecutor argued that as the Misuse of Drugs Act was validly passed by Parliament, it thus fell under the rubric of ‘law’ under Article 9(1). The Privy Council was not convinced by this interpretation, and held that regard must be had to ‘fundamental rules of natural justice’,¹⁷ ultimately finding no conflict between the Misuse of Drugs Act and these basic tenets of natural justice. Lord Diplock, rather unconvincingly, argued that a miscarriage of justice or unjust application of the written law could be avoided by recourse to executive clemency.¹⁸

If the protection of due process in matters concerning the deprivation of life and liberty is not to be considered a ‘fundamental rule of natural justice’, it is difficult to imagine what might be. The court in Yong Vui Kong attempted to answer this by stating obiter that a piece of legislation designed to act as a judgment against one individual might meet the standard set down in Ong Ah Chuan.¹⁹

However, since the decision of Ong Ah Chuan in 1981, the Privy Council’s position on the mandatory death penalty has changed significantly. A string of cases in the intervening time held that a violation of the convicted person’s rights had occurred and that the mandatory death penalty was a form of inhuman punishment.²⁰

Nguyen first brought this change in the Privy Council’s approach to the Court of Appeal’s attention in 2004. Therein, the court summarily dealt with this argument, surmising after a brief analysis of the relevant decisions that,

We are of the view that the mandatory death sentence prescribed…is sufficiently discriminating to obviate any inhumanity in its operation. It is therefore constitutional.²¹

This position, particularly the lack of explanation as to why the law was ‘sufficiently discriminating’, has been heavily criticised by several academics.²² In his statement in the aftermath of the decision, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, expressed his concern that the precedent laid down in Boyce and Joseph v. The Queen²³ had not been given due weight.²⁴ Therein, the majority held that the maintenance of the mandatory death penalty would ‘not be consistent with the current interpretation of various human rights treaties to which Barbados is a party’.²⁵ Moreover, the appellants had submitted that, ‘No international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms’, and this assertion was not contradicted by the court.²⁶

In Reyes v. The Queen, Lord Bingham of Cornhill stated that,

To deny the offender the opportunity, before the sentence is passed, to seek to persuade the court that in all circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity.²⁷

We are of the view that respect for the offender’s ‘basic humanity’ must surely come under the ‘fundamental rules of natural justice’ as underlined in the earlier decision of Ong Ah Chuan. It may be logical to surmise, as did Lord Bingham in the case of Bowe v. The Queen,

[T]hat it took ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I LEGAL ISSUES
• PART II INNOCENCE
• PART III RACE AND RELIGIOUS DISCRIMINATION
• PART IV GENDER AND SEXUALITY ISSUES
• PART V JUVENILES
• PART VI VICTIM ISSUES
• Name Index