LOOKING BEYOND PROSPECTIVE GUIDANCE

Citation(2014) 26 SAcLJ 520
Published date01 December 2014
Date01 December 2014

With effect from 1 January 2013, changes to Singapore's legislative framework for capital drug offences introduced, inter alia, the court's discretion not to impose the death penalty if certain prerequisites were fulfilled. However, no prospective guidance was enacted to guide the exercise of the new discretion. This article contends that prospective guidance is not an appropriate means of regulating judicial discretion under the new death penalty framework because such prospective guidance is not possible, desirable or necessary. It draws upon the US experience in the modern era of death penalty regulation. Looking beyond prospective guidance, it proposes an incremental change to enhance fairness and consistency in the sentencing of capital drug offences, namely, that judges' reasoning where they impose life sentences on persons convicted of capital drug offences should be captured and made accessible, in order to promote the development of rational and holistic sentencing principles.

I. Introduction

1 The mandatory death penalty for the unauthorised trafficking, manufacture, importation and exportation of certain controlled drugs (“capital drug offences”) has been a cornerstone of Singapore's “zero tolerance” policy against controlled drugs since 1975.1 This aspect of our anti-drugs policy has remained unchanged notwithstanding both

domestic and international criticism.2 Various challenges to the constitutionality of the mandatory death penalty for such offences were made — and rejected by our courts — over the years.3

2 However, signs of a possible shift in this policy emerged in December 2010, when the Ministry of Home Affairs commenced studies relating to the death penalty as generally applied in Singapore.4 In July 2011, based on the studies, the Ministry embarked on a review of the drug situation in Singapore and our death penalty legislation. A moratorium was placed on capital sentences as all executions that came due since the review began were deferred.5 Finally, in 2012, changes to our death penalty legislation were enacted, including the introduction of the court's discretion not to impose the death penalty for capital drug offences if certain requirements (“the prerequisites”) were fulfilled (“the new discretion”).6 Although these changes were introduced in 2012, they took effect from 1 January 2013, and thus this article will refer to them as “the 2013 amendments”.7

3 The introduction of the new discretion has been greeted by a mixture of reactions. Broad policy arguments have been made regarding whether the new discretion will unduly weaken the deterrent effect of our laws, or whether the changes are a welcome liberalisation of our death penalty legislation, that should perhaps go even further.8 Such

policy considerations aside, there are also concerns about whether the death penalty framework for capital drug offences after the 2013 amendments (“the new death penalty framework”) will be a fair and just one, under which individuals are dealt with in a consistent and non-arbitrary manner. As has been said, “that there should be consistent and evenhanded treatment of individuals within the framework of our legal system is such a commonly accepted notion that it hardly merits discussion and analysis”.9 In a local context, the Singapore Court of Appeal has recognised the general principle, under Art 12(1) of the Constitution of the Republic of Singapore10 (“Constitution”), that “[e]quality before the law and equal protection of the law require[d] that like should be compared with like”.11

4 The fairness and consistency of treatment of individuals under the new death penalty framework will be affected both by prosecutorial and by judicial decisions.12 However, this article focuses on the issue of how to ensure consistent judicial sentencing under the new death penalty framework.

5 After the introduction of the new discretion, the courts in Singapore now have — for the first time — the option of not imposing the death penalty on accused persons who have been convicted of capital drug offences. However, there is no prospective guidance (meaning a relatively formal and static catalogue of mitigating and aggravating factors, which is explicitly set out ex ante by Parliament or some other authority, for the purpose of being applied by judges in future exercises of their discretion) in the Misuse of Drugs Act13 (“MDA”) on how the

court should exercise its discretion. The new discretion therefore appears to be absolute.

6 It has been argued that there should be prospective guidance to control the judges' exercise of the new discretion. Although this argument has thus far only been articulated in the context of the discretionary death penalty for homicide offences, in time it may well extend to the judges' discretion not to impose the death penalty on capital drug offenders who have fulfilled the prerequisites.14

7 The thesis of this article is that prospective guidance is not possible, desirable or necessary for the control of judicial discretion under the new death penalty framework. This article advocates the organic and incremental development of principles through the accumulation of cases or decisions over time.15 However, in order to ensure the development of rational and holistic principles, the court's sentencing reasoning in sentencing and re-sentencing cases where the accused has been given a life sentence instead of the death penalty should be properly captured.16

8 To support this thesis, this article adopts a comparative approach. A comparative approach is necessary because Singapore's experience with the discretionary death penalty is extremely limited (albeit the word “discretionary” itself is contentious and warrants further discussion).17 In contrast, the US grappled with the question of whether such absolute sentencing discretion should be controlled by prospective guidance as far back as the 1970s.18 Although the US Supreme Court (“Supreme Court”) initially took the view that prospective guidance was not necessary, possible or desirable, it changed its view shortly thereafter.19 Since then, much intellectual energy has been devoted to the question of how to guide sentencing discretion.20

9 It is acknowledged that much of the US death penalty jurisprudence appears to be based on the Eighth Amendment, which finds no equivalent in the Constitution.21 However, it is evident that the concerns undergirding the Eighth Amendment cases in the US actually pertain to equal treatment, which is enshrined as a constitutional right

in Art 12(1) of our Constitution.22 Douglas J said in Furman v Georgia23 that: “There is increasing recognition of the fact that the basic theme of equal protection is implicit in ‘cruel and unusual punishment’.” In any case, it is unequivocal that fairness and consistency are desiderata in all criminal justice systems. Thus, these issues with which the Supreme Court has been wrestling in the modern era of death penalty regulation are pertinent to us.

10 The second part of this article summarises Singapore's death penalty framework in respect of drug trafficking and related offences prior to the 2013 amendments (“the old death penalty framework”). The third part discusses the 2013 amendments and the cases that have been decided, or re-sentenced, under the new death penalty framework. The fourth part examines the US experience in the use of prospective guidance to regulate judicial discretion in capital sentencing.

11 The fifth part of the article considers whether the “absolute” discretion of the Singapore judge ought to be controlled by prospective guidance in a manner broadly similar to the US. It argues that significant prospective guidance is already built into the statute and the real issue is whether there should be further prospective guidance. It contends that such further prospective guidance is not possible or desirable. It is also unnecessary because fairness and consistency can be promoted by the incremental development of sentencing principles by the accumulation of case law.

II. Singapore's death penalty framework prior to the 2013 amendments

A. The mandatory death penalty

12 In Singapore, the death penalty has been a punishment for the unauthorised trafficking, manufacture, importation and exportation (“the relevant offences”) of certain controlled drugs since 1975. The relevant offences are provided for in the MDA. The MDA was first enacted vide Act 5 of 1973, which repealed the Dangerous Drugs Act (Cap 151) and the Drugs (Prevention of Misuse) Act (Cap 154).24 In this first incarnation of the MDA, the maximum penalty under the Act was 30 years or $50,000 or both, and 15 strokes of the cane (for trafficking in

a Class A or Class B controlled drug to persons below 18 years of age and for manufacturing a Class A or Class B controlled drug).25

13 In 1975, the penalties for the relevant offences were amended vide the Misuse of Drugs (Amendment) Act 1975.26 The provisions for fines were removed. Specific penalties were introduced for trafficking, manufacturing and importing or exporting specified drugs or drugs with specified content.27 The death penalty was introduced for the import, export or trafficking of more than 30g of morphine or more than 15g of diamorphine.28 It was also introduced for the manufacture of morphine or diamorphine, irrespective of the amounts involved.29 Significantly, the newly introduced death penalty was mandatory, such that once a person was convicted of the relevant offence, the court had no discretion to sentence him to any other punishment. This was reflected in the wording of the amended provision of the principal Act: “the sixth column shows the punishments to be imposed on a person convicted of the offence” [emphasis added].30

14 The rationale given in Parliament (by then Minister for Home Affairs and Education, Chua Sian Chin) for the introduction of these amendments was that there were indications of a...

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