Article taken from Worker Party Website.
http://www.wp.org.sg/
There Is More To The Death Penalty
Debate
By Sylvia Lim
There has been some "hoo-hah" lately over the report by Amnesty
International in mid January 2004 entitled: "Singapore - The death
penalty: A hidden toll of executions". In it, Amnesty International
questioned various aspects of the death penalty in Singapore
including its existence and application, and the fact that it is
mandatory for certain offences, leaving the sentencing judge no
choice.
In its detailed response dated Jan 30, 2004, the Ministry of Home
Affairs sought to correct various errors in the Amnesty report and
to rebut allegations of secrecy surrounding death penalty cases in
Singapore. The Ministry further made "no apology" for the "tough
law and order system" here, and quoted various surveys showing the
Singapore justice system being ranked highly by businessmen and
expatriates for being "fair" and "transparent".
While I do believe our criminal justice system has commendable
aspects, an examination of its operation will show that, in our
overwhelming desire to be tough on crime, our system has evolved
into one where fairness to the accused person has taken significant
knocks. It is my personal belief that wrongful convictions are
entirely possible. The purpose of this quick opinion is to
highlight some unsatisfactory features of the system and suggest
possible areas for review to correct the imbalance, especially if
we continue to send people to the gallows.
Whether the death penalty should be retained or abolished is a
contentious question even in the West, as witnessed by the fact
that the countries of the European Union are dead against it while
the Americans seem to have no problems with it. At home, many, if
not most, Singaporeans seem to accept the need for tough measures
against crime including having this ultimate punishment.
Singaporeans have grown accustomed to the PAP government's "crisis
mode" discourse, which, in the context of the death penalty, would
be something like: "If we did not have the death penalty, crime
would soar and Singapore would be crawling with murderers and drug
traffickers". The trouble with such a discourse is that it breeds a
"them versus us" mentality and does not open the citizen's eyes to
the fact that, one day, he or his child may be a suspect in a
criminal case. It also implicitly assumes that the police and
prosecution do not make mistakes.
It is not my intention here to dissect the arguments for and
against the death penalty, but to highlight certain weaknesses in
our criminal justice process which need to be urgently addressed if
a person is not to be wrongly convicted and punished, in some
cases, with death.
Access to counsel
Although Article 9(3) of our Constitution provides that an arrested
person has a right to consult a legal practitioner of his choice,
this "right" has been whittled down drastically in its operation.
Case law has established that the accused's right to counsel is
subject to the exigencies of police investigations, and the accused
may only exercise his right to counsel if it does not jeopardize
investigations. Who will decide whether allowing a lawyer in will
undermine investigations? The reality is that the police will be
the judge of that and it is very difficult to challenge the police
on their views of how to conduct their investigations. What this
means for the accused is that he may get to consult a lawyer
sometimes as late as 8 weeks after arrest, and in any case after
police have extracted statements from him.
Statements from accused
Clearly, an accused person's statement confessing to a crime is
extremely incriminating, and, under our law, a confession alone
without any other evidence is a good basis to convict someone. In
fact, under our Evidence Act as interpreted by case law, a
statement by a co-accused person which incriminates an accused may
also alone be the basis of a conviction. This goes against the
position in other jurisdictions which have consistently warned
themselves against relying on accomplice's statements; after all,
if one is in a sinking ship, it is human instinct to drag others
down as well.
Under our Criminal Procedure Code, a voluntary statement made by an
accused to or in the hearing of a police officer ranked Sergeant
and above becomes admissible in evidence at his trial. This may be
unobjectionable but for the fact that the statement which the
accused made need not be in writing i.e. it can be oral. What this
means is that a police officer can make a note (even a mental note)
of what he heard the accused person saying, without any
acknowledgement from the accused as to the accuracy of what the
officer is noting. The officer can then come to court later to
testify that the accused had said certain things.
The miscarriages of justice which occurred in the United Kingdom in
the 1970s concerning the Birmingham Six and the Guildford Four bear
remembering. There, suspects of Irish sectarian violence were
convicted and sentenced to long periods of imprisonment, based on
some forensic evidence and SIGNED confessions. After spending more
than a decade in jail protesting their innocence, the forensic
evidence was shown to be unreliable and the suspects were finally
released. The suspects said they were coerced into signing the
confessions. If such abuses or miscarriages can occur with signed
confessions, what more with oral confessions unacknowledged by the
accused?
Access to resources
A person accused of a capital crime in Singapore does face
difficulties in preparing his defence. He will usually be denied
bail and be remanded in custody pending his trial, which means he
can only talk to his lawyer in prison in person or through
correspondence. He will thus be fully dependent on his lawyer and,
possibly, his family's resources to secure factual evidence (e.g.
witnesses) to support his defence.
If an accused has finances and is able to pay his lawyer well, the
defence will be able to go all out in doing its own investigations
and spare no expense in putting forth the defence. However, where
an accused has no money to engage a lawyer or the lawyer he wants,
the state will assign one to him (note: only if the charge attracts
the death penalty; in all other cases there is no state-funded
legal aid). Lawyers who are assigned by the state endeavour to do
their best for their clients. However, there are some constraints.
For instance, if the assigned lawyer thinks that putting up a good
defence would require him to travel overseas or to bring in a
foreign expert witness, such expenditure would require approval
from the High Court registrar, which may or may not be given.
The burden of proof
The prosecution in Singapore still has to prove its case against
the accused beyond reasonable doubt. However, some laws have made
things easier for the prosecution by presuming facts against the
accused once certain basic facts have been proved. For instance,
under the Misuse of Drugs Act, once the prosecution proves that a
person has control over a container or bag, it is presumed that he
knows the contents (even if the bag is locked up by someone else),
and if drugs are found inside it, he is further presumed to know
the nature of the drug. The burden then falls on him to disprove it
i.e. the accused must prove that he did not know he was carrying
drugs, and he must prove it on a balance of probabilities i.e.
convince the judge that his version is more likely to be
true.
I can understand the frustration of the prosecution before these
presumptions were introduced, in that the prosecution had to prove
the intention or knowledge of the accused, which may not be easy at
times. At this juncture, I am not certain myself if removing the
presumptions is a feasible option.
Nevertheless, the presumptions pose real difficulties for the
accused particularly if they are foreigners traveling to Singapore
for a short time or in transit. The persons who are their potential
defence witnesses will also be stationed overseas, and it would be
near impossible to locate them and bring them to Singapore to
testify voluntarily for the defence, especially if it would
incriminate the witnesses themselves!
Recommendations for policy review
It is my personal view that the following are some areas of
criminal procedure which need review to ensure fairness in the
system:
· Setting a maximum time limit beyond which an arrested person must
be given access to counsel in the course of police
investigations;
· Oral confessions to police should not be admissible;
· Further facilitating remand inmates to assist their lawyers in
preparing their defences e.g. making phone calls to his lawyer,
family members and witnesses;
· If the presumptions against the accused in laws such as the
Misuse of Drugs Act are retained, the standard of proof required
from the accused be lowered e.g. to one of casting a reasonable
doubt.
Conclusion
Having also been a police officer, I strongly believe that law
enforcement authorities must be given sufficient support to be
operationally effective in responding to crime. Nevertheless, as
our nation matures, we should strive for a system which balances
competing interests in a way which does not unduly compromise the
national interest. Sometimes, administrative inconvenience will be
necessary.
In this regard, the law and order debate must move beyond the
rhetorical level. We may not like foreign agencies criticizing us;
at the same time, we had better be sure we have a system where
there are sufficient safeguards against wrongful convictions,
especially if the outcome is an execution.
