Death penalty: The Unconstitutional Punishment

Posted by K.C. Vijayan under Human Rights Watch on 28 August 2003

SENIOR Counsel K.S. Rajah, a formal judicial commissioner, says it is time to reconsider the law that makes the death penalty mandatory for murder.

He makes his argument in an article titled The Unconstitutional Punishment, published in the latest issue of The Law Gazette.

Britain's Privy Council ruled recently that the mandatory death penalty handed down in Reyes v The Queen, a murder case in Belize, was unconstitutional because it infringes the protection against inhuman and degrading punishment provided for in the Constitution of the Central American country.

This decision raises doubts about the constitutionality of the same in Singapore, said Mr Rajah.

Singapore's Constitution, he argued, has similar provisions that make it necessary for the Bench to look again at the mandatory death penalty. He emphasised that he was not opposed to the penalty. 'Murders and murderers are unequal,' he said.

He cited the recent case of Tan Chun Seng who was sentenced to death for bludgeoning a deaf mute to death. He then appealed against his sentence and won on the grounds that the death resulted from a sudden fight.

The 'sudden death' argument, said Mr Rajah, could have been presented in mitigation for the first judge to hear, before he decided if the death penalty was merited.

He said Singapore courts have the power to impose a different punishment in murder cases. But they have not used them, he said.

The Privy Council is still the highest court of appeal for several Commonwealth countries, including Belize.

Though its decisions are no longer binding on Singapore courts, they do have an influence on judicial opinion and have been cited in courts here.

As thinking on human rights has evolved over time, the mandatory death penalty has to be reconsidered here, said Mr Rajah, who would himself have heard capital cases when he was on the Bench.

In the Belize case, the defendant had shot and killed two people in a dispute over a fence separating their properties.

Under Belize law, the death penalty was mandatory for such an offence. The appeal was argued on the grounds that the law was incompatible with the country's Constitution.

The Privy Council decided that the mandatory death penalty was 'cruel and degrading' because it prevented the judge from hearing any mitigation plea before imposing the sentence.

Its 1981 ruling on another Singapore-based case, which went the other way, is now irrelevant because international jurisprudence on human rights in those days was 'rudimentary'.

Over the years, the development of human rights has been expressed in several international treaties, said Mr Rajah. 'As a signatory, Singapore is obliged to observe these instruments under the United Nations charter.'

Several lawyers approached by The Straits Times described the arguments as timely and potentially persuasive.

Said Mr S. Krishnasamy: 'When the cases are cited in a criminal trial, sooner or later, the courts will have to indicate its view one way or other. It may suggest the issue as one for Parliament to address or see things differently from Mr Rajah.'

But Mr Amolat Singh cautioned that capital punishment laws here are practical and designed to contain specific and very serious problems such as drug trafficking.

Source: 22 August 2003,Straits Times Interactive Lawyer wants review of 'death for murder' law

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