By Ng Jing Song
Since the inception of the Misuse of Drugs Act in 1973, the defence of anyone found in possession of drugs has been a battle to stay alive. Such battles have been marked by costly legal appeals, tears and cries of frustration, and the bruised knees of loved ones kneeling in front of the Istana pleading for the President’s clemency. The battle is uphill because the aforementioned act foists the presumption of guilt on the party who possesses the drug. The failure to puncture this presumption of guilt would spell the mandatory snapping of a neck, the ending of a human life.
Today in Parliament, Teo Chee Hean, Deputy Prime Minister and Minister for Home Affairs, enunciated a change in the sentencing of any drug trafficker who “has only played the role of [courier]” and who does not have a mental disability impairing her appreciation of the gravity of the act, she must have had cooperated with the Central Narcotics Bureau (CNB) in a “substantive way”.
This is a heartening change that calls for cautious celebration.
This change unshackles the judge from tightening the lethal noose on people convicted on drug trafficking. Mandatory death sentences eliminate judicial discretion. This is problematic. The balancing beam of Lady Justice should not be replaced by the metallic weighing scale for opium/morphine/diamorphine/cannabis/cocaine/etc. When a human life is hanging by the balance, the digits on an electronic scale must not be the determinant. Judges are chiefly there to assign a punishment that is commensurate to the gravity of the offence and the offender’s specific circumstances. By removing mandatory sentencing in some instances, the law is being less sensitive to the marginal pinch of heroin and being more sensitive to the moral quandaries entwined with every judicial decision. This jibes with the Law Society of Singapore’s 2007 report to the Ministry of Law.
This change also whittles down grounds for prosecutorial discretion. The mandatory death sentence vests the Attorney-General’s Chambers with a worrying degree of sway over the accused’s life. Such was the case when a Public Prosecutor charged Ravinthran with the possession of 5560g of cannabis while Arujunan, Ravinthran’s partner, faced charges of having 499.99g of cannabis, a quantity scraping past the threshold for the gallows. The Public Prosecuter had decided that the latter was not deserving of the death penalty but the judge had no say in the matter.
However, the announced changes introduces a criterion that gives law enforcers a louder voice in the sentencing of drug traffickers. Cooperation in a “substantive way” is a necessary condition if a non-mentally incapacitated drug mule hopes to escape the death penalty. Presumably, what constitutes a “substantive way” will be left up to the CNB officers. Our law enforcers might be able to extract more information as the interrogation rooms become de facto guillotines. Such information could be precious as the state attempts to preserve a society unravaged by drugs. On the other hand, there is the nagging discomfort that another layer of decision making, a decision on whether to sever a life, lies with law enforcement officers who have to grapple with the immense moral heft behind the use of two words: “substantive way”.
A whole discussion will rightfully ensue on the alternative sentence - life imprisonment with caning - laid out by the Deputy Prime Minister. This alternative still crimps judicial discretion and is still controversially harsh. Although the brutal scars from caning are indelible, at least wrongful convictions can be reversed.
Criticisms and cheers should not crowd out the significance of today's change. From 2010 to 2011, there was a 20% increase in drug abusers who were arrested. The traditional reflex of clamping down even harder, perhaps by reducing the quantity threshold for drugs that pertain to the death sentence, has given way to a change that recognises not just the pursuit of brute deterrence but also the integral dimension of fairness.
The belief that the mandatory death sentence is an effective deterrence is highly controversial. Singapore now has its quasi-experiment on the deterrent effect of the mandatory death sentence. As he announced this change, Teo Chee Hean remained circumspect, “If the situation worsens, we will consider tightening the provisions, or making other changes.” The question implicit in this caveat is: If the situation stays the same or becomes better, will we scrutinise the relevance of punishments that have given our sunny island the slightly sour sobriquet crafted by a journalist in 1993: "Disneyland with the Death Penalty"?
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