Opinion: Discussing Today's Capital Punishment
This piece by Inspire Law discusses the capital punishment for drug trafficking in Singapore.
The Facts
On the 12th of March 2022, the UN Convention of Human Rights urged for an immediate moratorium on the use of death penalties, deeming the act as “running contrary to International Law”. This comes after Mr. Nagaenthran Dharmalingam was given the death sentence despite claims that he had an intellectual disability, as well as a deteriorating mental health condition, and was a victim of human trafficking. Since 2010, 23 prisoners have been executed for drug related offenses. Being one of the only countries in the world that have mandatory death sentence, it legislates that any individual caught carrying more than 15g of heroin are subject to the death penalty. This article seeks to analyse and assess the varying viewpoints taken by stakeholders, towards the pressing issue of capital punishment in Singapore.
On one front, UN experts and advocates argue that the death penalty violates international law, calling for an urgent cease to the death sentence. Their argument against the death penalty, and especially in the case of Mr Nagaenthran is one that is twofold - arguing firstly that drug offences do not warrant for such extreme measure of punishment, and secondly on the case of intellectual disability being a prevailing factor in this debate. Condemning the act, they posit that “executions of persons with intellectual disabilities and for drug-related offences are a violation of the right to life and the right to be free from torture or cruel, inhuman or degrading treatment or punishment and amount to unlawful killings”. Strongly worded and convicted in their message, it is clear that the UN feels that the capital punishment carried out by Singapore towards individuals with mental or intellectual disabilities is uncalled for, and for that Mr Nagaenthran’s death sentence cannot be justified. Beyond that, the UN also states clearly their stance that they believe the capital punishment should only be strictly limited to cases involving intentional killing. “Only crimes of extreme gravity involving ‘intentional killing’ should be considered ‘most serious’”, with “drug offences clearly not meeting the threshold”. As of December 20th 2022, there is a record high number of countries (125) supporting the resolution that calls for a global moratorium on the use of death penalty, as a step towards total global abolition.
When we analyse Singapore's point of view, however, we learn that the state has 3 main considerations for such a policy. ‘First, the seriousness of the offence, in terms of the harm that the offence will cause to the victim and to society. Second, how frequent or widespread the offence is. Third, the need for a very high degree of deterrence.’
The impositions and stances are clear for both stakeholders, be it Singapore or the UN. The facts are black and white in detail, and yet the debate is still very much up for contention. I have three overarching ideas that one might wish to explore, when analysing this case of international law against an independent jurisdiction. First off, Singapore needs to be firm in its policy-making, and stick by the laws that it has imposed. As a young nation of only 57 years old, the Singaporean constitution can be said to be one in its relative infancy. However, being a leading state in ASEAN and a country that attracts immense attention from both neighbours and countries around the world, our constitution is placed under legitimate scrutiny. Singapore must not succumb to external pressures when it comes to policy-making, and certainly this stands as a strong basis for its stance. As such, policies to clamp down offences seen as of the highest severity by the state must be equally as harsh and strict. This is why the capital punishment for drug trafficking is engendered fundamentally. Secondly, Singapore acknowledges the deep-rooted harms and damages that drug consumption could bring for society and resultantly cause society to suffer welfare losses.
Lastly, the capital punishment for drug trafficking is meant to be a deterrent for individuals to not commit the offence. The constitution makes it clear that the main reason for such a punishment is not to impose it in actuality, but rather the opposite which is to prevent prospective offenders from commiting drug trafficking, As such, the nation takes the stance that since the punishment has already been made clear, even more so with the international spotlight being placed on the law now, individuals who still attempt to commit the offence and break the law will have no choice but to face the harshest consequences.
Why do the stances of Singapore and the UN differ?
I personally believe that the reason why Singapore and UN differ in their stances towards capital punishment for drug trafficking is the inclination and choice made between the concepts of morality and practicality in our legal system. We understand UN to be a huge advocate of incrementally phasing out the death penalty, and this is made clear in their position. This is juxtaposed by Singapore's insistent stance of retaining the capital punishment for drug traffickers.
Think of it this way - in the formation of our laws and aspects governing our legal system, we have a sliding scale with ‘morality’ at one end and ‘practicality’ at the other. The UN has a moral duty to advocate for human rights as part of the role that they play as an international medium. A deontological train of thought is at the core of the UN's stance, and human rights is seen as a universal non-negotiable concept. This is why any discussions on death penalties and revoking an individual of his or her right to live is not seen keenly by the organisation, unless there are unique circumstances present. The UN hence tends towards the ‘morality’ end of the spectrum, whereby capital punishment especially for drug offences that they deem as not severe enough to ‘warrant’ the death penalty is condemned. In Singapore, I believe that its legal system leans towards practicality, due to reasons that i have discussed, and as such a compromise has to made. That compromise made to ensure the sovereignty, safety and cohesion of society happens to be the strict punishment of capital punishment. Hence, the Utilitarian train of thought supercedes the factors that are considered by the UN, and this is clearly shows the tangible differences in constitution and law when moral reasonings deviate in nature between stakeholders.
Opinions
The motive for legislations and punishments in any constitution stands clear, and the two main factors that can render a legislation ‘effective’ boils down to 3 main areas. These 3 areas are morality, proportionality, and finally receptivity of the populace. An ideal legislation in criminal law, in my opinion, has to encapsulate these 3 aspects, which I concede is indeed not a simple task. This is where effective government proceedings and parliamentary debates come into play to facilitate policy-making.
For one, a legislation has to fufil the moral aspect of efficacy. This means that crimes that forgo and violate what society renders as ‘moral’ are made and an individual commits an immoral act, there has to be a punishment that is imposed as a result. The moral blame-worthiness of an offence is hence a gauge to the severity of a punishment. Secondly, proportionality of a punishment is also immensely important - this is why death sentences are given for the harshest of crimes only such as murder, and not jaywalking for example. This is important to ensure that punishments remain as useful deterrents to prevent similar offences in the future. Last but not least, an effective punishment ought to be accepted and well received by the populace, at least to a certain extent. Fundamentally, a democratic country still places huge emphasis on people’s power, and as such policies should to the largest extent be an accurate representation of what the masses ultimately desire.
Where capital punishment seems to fail in this 3 step test is the proportionality of the punishment to the offence being committed. Yes, indeed the death penalty is an extremely effective law in the sense that it has prevented possible thousands of prospective drug traffickers from bringing drugs in to Singapore, due to inherent gravity of the punishment. However, this same argument can brought in for virtually any offence. Take for instance if a government wanted to cease jaywalking due to the number of fatalities arising, i think most people would agree that if there was a death penalty imposed for jaywalking, the country would no doubt have a huge cut in the number of jaywalking offences being committed. But would this be plausible?
The same argument can be similar glossed over for the case of drug trafficking. Of course, drugs potentially bring about more harm to society than mere jaywalking, but that being said I believe that the harms are implicit rather than explicit in nature. Crimes of murder for example see a direct intent and direct harm being inflicted to another individual, which reinforces the severity and gravity of the offence. This is not the same for drug trafficking, whereby we still have to acknowledge that there is a detachment between the trafficking crime to the consumption of drugs by individuals. The finest margins of detachment prove significant in undermining the explicitness of the offence, which is a strong reason why UN also deem it as not ‘severe enough’.
Furthermore, the legalisation of cannabis in many countries worldwide tells us that what SIngapore deems as crimes severe enough to warrant a life being taken away, is seen as legal in the eyes of the law in other countries. Effective from June 9, Thailand, a close neighbour of Singapore has legalised the usage of cannabis. Clearly, this tells us that in passing such a legislation, it’s been weighed out that the benefits to society outweighs that of the costs. Whilst i don’t necessarily believe that that is the case as i still stand firmly against the usage and intake of drugs, I maintain that capital punishment for such a disputed case still remains too harsh a punishment. The lack of consistency in laws of different jurisdictions is stark, and international legal bodies such as the UN have to be respected when it comes to maintaining a standard of justice that is recognised over the world, whether that be for practical or moral purposes.
The wider ramifications on the legal system can be immense when such legislations are passed, and it might well be going down a slippery slope. When severity of punishment does not match that of the offence committed, this can result in difficulty passing effective laws in other realms of society that act as deterrents. Would it be worth to undermine the legitimacy and trust in a legal system (especially one that is well structured and praised for its efficacy) through the imposition of laws that can be seen as disproportionate
The death penalty given to drug traffickers addresses the supply side of the issue that Singapore wants to put a halt to, which is drug abuse by citizens. However, it is possible that citizens still innately desire to consume such substances. A possible drawback of this is the creation of unwanted black markets where drugs could be transacted, which defeats the purpose of the punishment. A key consideration would be to emphasise more on the demand-side policies, such as raising awareness of the lethal ramifications of drugs, which to Singapore's credit is consciously carried out by the Narcotics Central Bureau (NCB). This is the direction that would serve in the nation's best interest, well into the future.
Finally, the elephant in the room that has to be addressed is the morality aspect of the punishment. Is the death penalty moral? At the end of the day, it fundamentally goes against what the law advocates for, which is to revoke and take away the lives of others. Should the law be able to have such substantial power to make verdicts over the right of individuals to live is the question we have to ask. However, for the gravest of crimes such as that of murder, we have to look past the topic of morality and prioritise effectiveness of legislations and practicality. This is the compromise that has to be made if the death penalty were to be imposed on the crime of murder for example, which i think is justified. The big question of morality comes into play when such the death penalty is being imposed on ‘lesser’ crimes that can be analysed as disproportionately and relatively less severe.
It certainly is one of the biggest and hardest debates around contemporary laws especially in Singapore to navigate - there’s little doubt about that. There are strong arguments to made for whichever stance one might take. However, it is unequivocally worth considering if rehabilitation or alternative legislations could be explored and tested before turning to the highest echelon of gravest punishments.
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