Following Think Centre's fledgling attempts in creating public awareness on the death penalty last month, Think Centre walked its talk by taking up the clemency plea for death-row drug trafficker Zulfikar Mustaffah. On another front, Workers' Party stalwart and Non-Constituency Member of Parliament (NCMP), J.B Jeyaratnam brought the case into Parliament and tabled it for debate at the 11/7/2001 Parliamentary sitting. While none of the media carried an extensive report, Tan Kong Soon filed this report from the public gallery of Parliament House. Following his report is the debate that went on in Parliament.
The Parliamentary session of July 11 2001 saw a veteran politician broach the issue of clemency for a death row-bound, Malay male convicted of drugs trafficking. The affable but fiery political fighter in J.B Jeyaratnam showed why he was the man-in-the-street's trumpeter of human rights, by bringing into Parliament an ordinary man's plea to the right to live.
Taking over the microphone, JBJ read out the facts of Zulfikar's case to the gallery of Cabinet Ministers, backbenchers, opposition politicians and Nominated Members of Parliament. Everyone restlessly slouched in their seats or furrowed their brows as JBJ spoke on a seemingly irrelevant and trivial issue in that arena of politics-making. Within the span of allocated time, JBJ managed to raise only three points of the clemency plea before interrupted by the Speaker of the House.
First, he pointed out Zulfikar's low intellect and broken family background. His father was hardly around in the family and his mother slogged everyday to sustain him and his siblings. Lacking parental guidance and supervision in the household, Zulfikar dropped out of school and hung out with undesirable elements whom in turn misled the gullible chap to drug-taking at 14 .
Secondly, JBJ contended that Zulfikar did not open up the carrier bag to inspect its contents throughout the time it was in his hands. This was attributed to his unsuspecting nature that had made him an easy target of the actual perpetrators of the crime. His gullibility in this instance had nothing to do with the alleged intent of trafficking or peddling the drugs.
Thirdly, JBJ commented on the system of legal and judicial proceedings revolving around Zulfikar's trial. There were faults inherent in laws that gave room for mis-intepretations by investigating Central Narcotics Bureau officers while in the Courts, magistrates and judges were quick to pass the verdict on the basis of presumption. As such, Zulfikar's defence counsel had fought uphill battles all the way to the Court of Appeals, yet to no avail.
Rising to reply JBJ's tirades was the Minister of State for Law and Home Affairs Associate Professor Ho Peng Kee. He countered the first point by informing JBJ that Singapore laws disregarded family history, no matter how unfortunate, on all drug-related offences. Thus Zulfikar's origins were of no interest to the prosecution. On the note of intellectual state of mind, Ho questioned why it was not mentioned by the defence counsel in mitigation of the accused. Surely his defence counsel had known better than to withhold such an important medical fact.
Next, Ho debunked JBJ's second point of Zulfikar's ignorance of the bag's contents. He cited police records that stated that the accused was in possession of the bag of drugs for more than 3 hours -- enough time for anyone carrying an unknown bag to be curious about the contents. He did not believe that the accused was unsuspecting enough not to wonder about that.
Finally, Ho rebuked JBJ for his doubts on Singapore's legal and judicial efficiency. Taking into consideration that Singapore is one of the safest country in the world with the lowest crime rates, he defended the investigative procedures of the CNB. Pointing out the No.1 ranking of our Singapore Courts, he also reiterated the impartiality of the judiciary against JBJ's hint of presumption.
In his closing statement well before the Speaker needed to stop his speech, Ho requested the Speaker to remind the House that the Parliament was a place strictly for debates on national issues and policy matters. There should be no room for rehashing of court cases that had already been administered effectively by the other arm of parliamentary democracy – the judiciary. To which there was subtle nodding of some of the most authoritative heads all around in the gallery.
Raised in Parliament on 11th July 2001. Source:www.gov.sg/parliament/
A CASE OF DRUG TRAFFICKING - ZULFIKAR BIN MUSTAFFAH
Mr Deputy Speaker: Mr Jeyaretnam, I have some words of caution for you. Can you listen to me carefully? In allowing you to speak on this Motion, I take it that you are aware that you are not to make any speech that reflects on the decision of the courts. You have to stay in line, otherwise I will rule you out of order. You may now proceed.
Mr Jeyaretnam: Mr Deputy Speaker, Sir, with respect, I do not quite understand your restriction because, as I understand it, all court proceedings are now over. So there are no pending proceedings in court. The court is now functus officio.
Mr Deputy Speaker: You did not listen to me carefully. I said, "Your speech shall not reflect on the decision of the courts."
Mr Jeyaretnam: May I make it clear that I shall talk about the aspects of the case which should have been considered by the court. So, in that way, it might reflect on the court's decision. But I do want the Cabinet, when it comes to advising the President on the clemency petition that had been sent to him, to take these points into consideration. So that is my whole purpose.
Mr Deputy Speaker: You can proceed to speak and I will rule.
Mr Jeyaretnam: Mr Deputy Speaker, Sir, before I start on this, may I first of all say that I have no pecuniary interest in this. I have not seen the man, nor have I represented him in any proceedings.
Secondly, I wish to make the point that the case has been brought to my attention by Think Centre, which has also supplied me the information about the man's background. I say this because I have said I did not interview the man.
Having said that, Mr Deputy Speaker, Sir, may I say that this is not a disputatious speech or a complaining speech that I intend to make. It is more of a plea. May I also go on to say that the plea is not just for this man, but a plea for all who may find themselves in the situation in which this man found himself and has been convicted and sentenced to death.
Before I outline several of the facts which had been presented to me by the Think Centre and the judgement of the Judicial Commissioner, may I say, Mr Deputy Speaker, Sir, that the conviction of this man is founded upon a presumption. A presumption is something that the law says you have got to presume, you have got to accept unless the accused is able to rebut that presumption, is able to disprove it. Presumptions therefore reverse the burden of proof in criminal cases. In criminal law, as we have had it, the presumption is that an accused person is deemed to be innocent until he is proved guilty beyond any reasonable doubt. The law did not require the accused to have to prove his innocence. But this is somewhat eroded now by the presumptions that had been built in and the Misuse of Drugs Act abounds in presumptions.
What I am asking is that before we send a man to his death, we must consider whether it is safe enough simply to send him to his death upon a presumption, where there are no concrete evidence or any other facts which point quite conclusively to the man's guilt or participation in the crime. The background of this man, Zulfikar, is that he became a drug addict at the age of 14. I understand he is now about 31 or 32 years of age. He has been in and out of drug rehabilitation centres from the age of 14. So he is a confirmed drug addict. He has not been able to get any jobs and his life has been something which I think very few people would wish for.
The Judicial Commissioner, in his judgement, says, "He cannot be so simple. I cannot imagine that he is so simple." But, unfortunately, I do not see that any evidence was laid before the Court or the Court was informed of his background. I do not think we need expert medical opinion but it is a known fact that someone who is given to drug taking over a period of time will have his mental faculties affected, his power to think carefully and to rationalise. He becomes weak-minded and particularly, and I say this again, vulnerable to people who try to use him or exploit him. It is unfortunate. I do not know whether the background was brought before the Court but I cannot see anything in the judgement of the Judicial Commissioner that suggests that his background was placed before the Court.
The facts, as I understand from the Judicial Commissioner's judgement, are that whilst he was drinking at a pub in Changi Village, somebody whom he had met, I think probably in prison or in some rehabilitation centre, approached him and asked him whether he was employed. He said, "No, I am not employed. I have not got a job." And he asked, "Would you like a job?" and he said, "Yes." The man later telephoned him and said, "Would you go out and pick up something and deliver it?" It was thus that he became involved in this transaction or activity that landed him in Court. He was asked to deliver it to a particular address but, before that, he had to go and pick it up from somebody. When he went to pick it up, he was given a bag with five bundles in it and said, "This is the bag which you have to deliver." The evidence would suggest that it was not easily visible or apparent to anyone, looking at the bag, to see what the contents of the packages that were inside the bag. As I have said, there were five small packages. I am told that the packages, when they were unwrapped, the officers had to go through several layers of paper before they could come to the drugs. So, it was not clearly visible or apparent that there was anything contraband inside those packages.
He took the plastic bag containing these packages. Then, he was asked to call somebody and to get the directions from that man as to where he was to deliver it. I would be the first to confess that any reasonable, rational minded person would have thought there was something fishy, there must be something wrong. But we are not dealing, as I have said, with a person who is fully competent in his power to think and to rationalise. It is a pity that no medical evidence was called as to his faculty in that respect.
He called the number and was asked to take it to a block and that somebody would take it off from him. When he went there, there was nobody there and he called that number, and he was then asked, first of all, to leave it in a dustbin. That must have put him on alert. But again, he said that he did not think about it. He left it in the dustbin and then later on, he was asked to bring it up to the ninth floor. He took it up to the ninth floor. One would have thought that if he had any power of thinking, he might have said, "No, I better get away from all this." But here was a man who was trying to do a job which had been given to him, entrusted to him, and he thought that he should carry it out. When he went up to the ninth floor, he was suddenly pounced upon by CNB officers. When the packages were eventually opened in the CNB office, they were found to contain 72 grams of heroin. It is in these circumstances that the man was charged with trafficking because the law provides that if you are in possession of more than 2 grams of heroin, you will be presumed to be trafficking and there will be a death sentence if the quantity exceeds 15 grams, as it did in this case.
Upon his arrest, he told the CNB officers the story about how he came by it and what he was asked to do it. And the Judicial Commissioner commented that he had been consistent throughout. He had said everything, he had not tried to hide anything. There was some money found on him. Of course, the suggestion immediately then was it must have been the proceeds or profits from his activities in drug trafficking. But it was later confirmed by Singapore Pools Limited that the man had really won a prize of that amount that was found in his pockets. At first when he told the CNB where he had collected the money, that happened to be the wrong place, and so they could not confirm it, but Singapore Pools later confirmed that that money was his prize money. There was also evidence led by the CNB officers that he attempted to run and put up a violent struggle. This was denied altogether by the man. But it is unfortunate that the Judicial Commissioner did not make a finding as to whether he accepted the evidence of the CNB officers that the man attempted to run. Because if the man had attempted to run and that there was that finding by the Judicial Commissioner, that might point to knowledge on his part. But that was not the case. There was no such finding by the Judicial Commissioner. And the Judicial Commissioner gave him the benefit of the doubt as to the money that was found.
But in the end, the Judicial Commissioner found that he was in possession of drugs. One could attack that, but I am not here to attack that. As I said, he had been found guilty on evidence which the court thought was enough. But I am here simply to say that in such circumstances, the death sentence should not be carried out. As I said, the Judicial Commissioner did not appear to have been aware of his background in coming to these findings. I think particular attention must be paid to his background and to obtaining some medical advice on his critical faculties. The Judicial Commissioner found, in his judgment, that the man said that his only intention was to do his job, to hand the bag as he was instructed, to this caller who had called him.
The Judicial Commissioner goes on to say ---
Mr Deputy Speaker: Order. Mr Jeyaretnam, your time is up.
The Minister of State for Law (Assoc. Prof. Ho Peng Kee): Mr Deputy Speaker, Sir, Mr Jeyaretnam's allegations are not new. In fact, he is mouthing allegations which others have made. Quite understandably, Zulfikar's sister has taken up his brother's cause claiming that he is innocent. But it is odd that there are others, like Mr Jeyaretnam and, as he has also mentioned, in cyberspace, people who even though they do not know the man - and this is by admission of Mr Jeyaretnam; he has not seen or interviewed the man - and yet he is standing here claiming that Mr Zulfikar is a simple minded man. Mr Zulfikar is a naïve man. So he also joins the bandwagon. He did not say here in Parliament that the courts have made a mistake, but alluded to the possibility of a miscarriage of justice. That is the import of his statement.
He also says that he is speaking up not only for Mr Zulfikar but for other people in the same situation as well. By saying that, if he implies that our courts have also made other mistakes and have also wrongly convicted accused persons, then I must debunk that. Because all of us in Singapore know that our courts take their jobs seriously. Our judges are reputed for their integrity and competence. In fact, we have scored very well in international polls. And, indeed, there are checks.
Mr Jeyaretnam: A point of clarification.
Mr Deputy Speaker: You neither have a right of reply, nor to seek a clarification.
Mr Jeyaretnam: Just a clarification, because ---
Mr Deputy Speaker: Order, Mr Jeyaretnam.
Mr Jeyaretnam: All right.
Assoc. Prof. Ho Peng Kee: The first point that must be made is that there are safeguards in our system and not just in the court system. In cases where there is a death penalty, the Attorney General will give his opinion, marshalling the trial judge's judgment, the Court of Appeal's judgment, if any, and also petitions for clemency that have been filed. And then he will carefully study all these and render his considered opinion to Cabinet for Cabinet's consideration to recommend to the President. That is the first point. And indeed in this case, due process has taken its course because Mr Zulfikar was tried by the learned Judicial Commissioner in a trial court. He was represented by counsel of his choice who, if it was material, could have adduced evidence as to the state of mind or mental condition of Mr Zulfikar, including the fact that he may be naïve. But this was not done. And then, of course, the Court of Appeal, with a panel of three Judges, considered all the points carefully and decided that the decision should stand.
Sir, I think it is not for us in Parliament to discuss cases, because Parliament is not the Judiciary. Because if Members of Parliament are free to bring up cases, then political parties and Members of Parliament who are unhappy with court decisions will raise them in Parliament. Parliament, as a separate organ of state, should not discuss decisions of our courts.
Sir, Mr Jeyaretnam also alludes to the use of presumptions. Yes, indeed, there are some presumptions in the Misuse of Drugs Act. But let me say that every presumption that has been introduced has been carefully thought through. The presumptions have been introduced for specific purposes. I think Mr Jeyaretnam will know that even in the operation of the presumptions and how they are applied in the law, they are applied carefully. For example, the courts have said that a man should not be convicted based on a presumption following another presumption. In this case, even though there was an operation of a presumption, it was not just the operation of a presumption alone that resulted in Mr Zulfikar's conviction. Because, first and foremost, the prosecution had to prove that he had possession of the drugs, and possession includes knowledge. In other words, the prosecution had to adduce evidence to show that, given all the circumstances of the case, Mr Zulfikar knew that he was carrying drugs. And indeed this was gone through very carefully, both at the trial judge's stage and also at the Court of Appeal stage. The facts were all examined very carefully. I think Mr Jeyaretnam has mentioned some of these facts.
The court's decision was that, based on these facts, it was wholly unconvincing to believe that Zulfikar did not know that he was carrying drugs. Why would he take drugs from a person he did not know? Why would he be carrying the drugs for over three hours from Sengkang to Yishun in a taxi? Why would he wait for telephone calls without inquiring who that person was or what he would get out of the transaction? Why would he not be suspicious, given the fact that he was asked to do so many things; first, to put the drugs in a dustbin, and then to bring the drugs up to the ninth floor? Of course, the simple rebuttal to that by Mr Jeyaretnam and those of his ilk will be that he is a simple-minded man, he is a naïve man, he is a gullible man. But imagine if you take that tack for all accused persons who suffer from the penalty of the law, including the death penalty, then I think Singapore will not, today, enjoy the standard of law and order and reputation for safety which we enjoy.
There are other societies which will primarily look at the circumstances of the accused persons, both present and past. In fact, some societies will dig up the past history of an accused person, how he was mistreated by his father, by his peers and so forth and then say, "Let's be soft on him". But I would remind Mr Jeyaretnam and others of his kind that what is really important is to look at the impact of heinous crimes on both society and on the persons directly affected; in other words, the real victims in the case. In the case of drug trafficking, we are very clear who these are - lives which are wasted, many of them in their prime. And through the wasting of addicts' lives, the vicarious wasting of lives of families who are affected as well. Can we go soft on drug traffickers? I would say no.
Having said this, do we therefore not comply with the law? We do not do that. Our laws on drug trafficking are indeed tough - draconian. But they must be so, because we are dealing with a very serious problem, a problem that many other countries are still grappling with, unable to get a handle on. And these drug traffickers and others who peddle drugs do not care very much about the effect of their actions on those who become addicted to drugs. Drug is big money and people who are desperate for big money will do such acts. And indeed CNB is working hard to be on top of the situation. I think Mr Jeyaretnam must know of recent press reports of how drugs have been trafficked into Singapore through various means, how even in the regional countries, drugs are clandestinely produced. I think that is the context in which we must view, not just this case, but also other cases of drug traffickers.
The other point which Mr Jeyaretnam mentions is the lottery winnings. The point to note here is that even though it was discovered, after the Court of Appeal had decided on the appeal, that indeed he did win some money through lottery, this was not a material consideration in the decision of the trial judge. In fact, the trial judge said that he was prepared to give the defence counsel the benefit of the doubt that these were lottery winnings. But that was not a material consideration because the way the law was applied was, as I mentioned just now, the prosecution had proven possession of drugs with knowledge beyond a reasonable doubt, because all the defence counsel had to do was to cast a reasonable doubt that he had knowledge. But given the fact of the circumstances in which he was carrying the drugs, the fact that he had the drugs for three hours, which means that he had ample opportunity to examine what he was carrying, and given the fact that he himself was a drug addict - he was in fact arrested way back, his first criminal offence, in 1985 for theft, after which he had a string of criminal and drug antecedents, and then he was in the DRC on four separate occasions - given that background, does Mr Jeyaretnam and other people not think that he would, in fact, know that something was amiss? In fact, he said that he felt something amiss. He knew that he was carrying drugs. And even if he did not know, as the Court of Appeal said, he was wilfully blind to that fact. This cannot be a defence because you cannot prove knowledge on the part of the accused. But what the court can do is to look at all the circumstances of the case and then conclude that it is beyond reasonable doubt that he had that knowledge. When the prosecution had proven that, only then did the presumption kick in. And then the presumption says that if you are carrying more than 2 grammes of diamorphine, you are presumed to be trafficking in drugs, unless you can show, on a balance of probabilities, that you were not trafficking in drugs. In other words, you have to show that you probably wanted the drugs for your own consumption. Then you will not be charged for trafficking. That is how the law operated. That is how the presumption operated in that context.
Of course, the other point is that ---
Mr Deputy Speaker: Order. The time allowed for this debate has expired.
The Question having been proposed at Thirty minutes past Two o'clock pm and the Debate having continued for half an hour, Mr Deputy Speaker adjourned the House without Question put, pursuant to the Standing Order.