The death penalty for drug traffickers in Singapore has once again come to the forefront of public discourse, especially online and in the international press.
Locally, the range of views are not particularly varied, but arguably both narrow and binary — Singaporeans tend to be either for or against the death penalty.
Additional questions like the distinction between the death penalty and the mandatory death penalty or the ambit of prosecutorial discretion and separately, judicial powers, among other points, are generally absent from most discussions on the subject.
In this context, there is a widely-held view that a majority of the public in Singapore do not oppose the death penalty for drug trafficking. One common reason for this is that there is little to no tolerance to have drugs becoming mainstream either in our society or schools.
The spike in the number of executions in Singapore, over the last few weeks and months, can engender the mistaken impression that the criminal justice system is single-minded in ensuring that all drug traffickers are sentenced to death.
The public advocacy of the Government in response to the tireless and dogged efforts of death penalty abolitionists both in and out of the courts can harden this perception.
Even so, the controversy over the death penalty for drug traffickers will not go away anytime soon. It will resurface each time a trafficker is due to be hanged.
This is a reality of any democratic society where citizen participation in civic affairs should not be circumscribed, including the rights of abolitionists to advocate for an abolition of the death penalty.
For them, emotions run highest — and understandably so — when drug traffickers are sentenced to death.
It is also a fact that the very real damage that traffickers inflict to perpetuate drug consumption and the destruction that is wreaked on faceless innocent families and addicts has a smaller public opinion footprint than the emotions that dominate the days and hours that tick by before a trafficker with a name and a backstory, is sent to the gallows.
Since 2013, however, legislative amendments to the Misuse of Drugs Act (MDA) allow the Central Narcotics Bureau (CNB) to issue certificates of substantive assistance to drug mules or couriers who would otherwise face the mandatory death penalty for drug trafficking.
The certificate is issued when the trafficker gives information that substantially assists in disrupting drug trafficking activities within and outside Singapore.
In the event a certificate is issued, the courts can sentence the drug trafficker to life imprisonment and caning where applicable, instead of imposing the mandatory death penalty.
This is provided that the facts of the case also show the trafficker was a courier and therefore only involved in the transport of drugs.
According to the Ministry of Home Affairs (MHA), from 2013 to early 2022, certificates of substantive assistance were issued to 82 out of 104 drug traffickers.
This number includes both Singaporeans and foreigners who were convicted of trafficking, importing or exporting controlled drugs, and whose convictions remained unchanged after appeal or review.
For the remaining 22 accused persons, they were deemed to have not provided substantive assistance to the authorities.
Among them, 14 were sentenced to death under the mandatory death penalty and eight were found to have been suffering from an abnormality of the mind by the courts, and sentenced to life imprisonment.
These numbers provide a much more nuanced picture as to the number of individuals sentenced to death by the Singapore courts for drug trafficking.
Extrapolating from the data above, about 78 per cent of drug traffickers were not sentenced to death even though they would have brought enough drugs into Singapore to face the mandatory death penalty.
This figure rises to 88 per cent if one includes the eight traffickers whom the courts ruled to have suffered from an abnormality of the mind.
Prior to 2013, the Attorney-General’s Chambers (AGC) and in particular, the Public Prosecutor, routinely would exercise discretion as he is empowered under the Constitution to determine if it would be in the public interest to reduce the charge against drug traffickers to just below the threshold that invoked the mandatory death penalty.
Then, as an example, it was not uncommon to read in the newspapers of individuals who trafficked 14.99g of pure heroin. This was just below the 15g that invokes the mandatory death penalty.
In such cases, the prosecution artificially reduced the weight of the drugs in the charge sheet even though the actual amount trafficked exceeded 15g.
The reasons for doing so — effectively giving a “second chance” to drug traffickers — were shaped by the factual circumstances of each trafficking offence: The degree of culpability of the offender, the age and IQ of the offender, among others reasons and internal deliberations within the AGC the public is not privy to.
Today, drug traffickers who are not issued a certificate by the CNB, unsurprisingly question and challenge this non-issuance through their lawyers.
In doing so, defence lawyers often contend that their clients assisted substantively, or question the definition of “substantive” assistance.
However, how much assistance would be deemed to be substantive, and how much a mere courier is expected to know to receive the certificate are not issues that Courts may examine.
These matters come solely under the purview of the AGC and CNB, not judges at trial.
In at least one recently reported case, CNB did not issue a certificate of assistance prior to the trial of drug trafficker Farid Batra — a decision the prosecution stood by at trial.
But interestingly, the certificate was ultimately issued by CNB after the substantive judicial process had run its course.
This was because the Court of Appeal found that on the facts, the accused was a courier. The prosecution’s case was that he was much more than that.
Since Farid Batra did not originally receive a certificate of substantive assistance from CNB, the Court of Appeal was powerless — by law — to overturn the mandatory death penalty.
A few months after the Court of Appeal released its judgement, the accused received a certificate of substantive assistance from the CNB.
Upon filing a criminal motion to the Court of Appeal by the accused, the mandatory death sentence was reduced to life imprisonment and 15 strokes of the cane.
This case illustrates that the CNB’s decision to withhold the issuance of a certificate of substantive assistance prior to trial can be wrong or found to be unjustified.
It also portends greater scope for our laws to evolve towards giving the courts greater decision-making powers in cases involving the mandatory death penalty.
Such a shift would not be dissimilar to the current role the courts play to — for example — assess evidence and determine if a trafficker was labouring under an abnormality of the mind when the trafficking offence was committed.
In another recent case, a drug trafficker, Abdul Rahim Shapiee, also belatedly received a certificate of substantive assistance but the trial judge nonetheless imposed the mandatory death penalty as the judge found his role in the crime of drug trafficking exceeded that of a mere courier.
This was a finding the Court of Appeal saw no factual reason to overturn, and goes some way to debunking an argument in defence of the mandatory death penalty that judges would not impose the death penalty if they could avoid it.
Arising from some recent high-profile capital cases here that have captured international attention, MHA has recently announced that it is looking into possible legislative changes to curb abuses of court processes where the lawyers of convicted traffickers make late applications to delay or overturn mandatory death penalty sentences.
I would caution against such an approach, unless the changes sought are a request from the courts.
It would be most appropriate to allow the courts to deal with legal applications deemed to be an abuse of process since there are established consequences to such applications, with cost orders a common outcome.
With considerable public support for a tough stance against drug trafficking in Singapore, allowing the legal process to be perceived as open and running its natural course — given that the death penalty is irreversible — would in my opinion, buttress continued public support for a strong stance against drugs.
One subject that does not quite feature as prominently as it should in the advocacy of abolition advocates is the unequivocally criminal nature of the drug trade, and more acutely, the impact on all segments of society should drugs become more easily available in Singapore.
Some abolitionists argue that the death penalty should be repealed as it does not deter individuals from trafficking drugs into Singapore.
However, this view does not account for the deterrent effect of the death penalty without which, one must concede and anticipate the prospect of more traffickers bringing drugs into Singapore. This is an outcome nobody wants.
The deterrent effect of the death penalty does not promise that no one will traffic drugs into Singapore.
But there is a dominant perception that it would make it far more difficult for drug kingpins to hire and convince couriers and mules to bring drugs into Singapore, while making it clear that the death penalty could await those who tempt fate.
Overall, the criminal justice system’s approach to drug traffickers represents an attempt to find a balance between a degree of equity and discretion towards drug traffickers, particularly couriers on the one hand, while maintaining a sufficiently strong stand against drug trafficking and to protect Singapore society from the scourge of drug abuse on the other.
While there remains room to improve specific aspects of the criminal justice system with regard to our drug laws, there does not appear to be significant support among the public in Singapore for a removal of the death penalty as a sentencing option for drug traffickers.
On the contrary, drug traffickers continue to be viewed as criminals who must face up to harsh consequences for destroying many innocent lives and families.
This article was first published on 18 August 2022 in https://www.todayonline.com/commentary/commentary-death-penalty-drug-trafficking-should-stay-certain-aspects-drug-law-can-be-improved-1972191