Wednesday, May 4, 2011

Mandatory death penalty in Singapore

(Delighted to welcome back alumna Yvonne McDermott, who contributes this guest post)

It is my pleasure to be hosted by IntLawGrrls once again, this time to highlight an article I recently published in the inaugural issue of the International Journal on Human Rights and Drug Policy, a new international review.
This publication is the official journal of the International Centre on Human Rights and Drug Policy, whose academic base is the Irish Centre for Human Rights at the National University of Ireland Galway. The only peer-reviewed law journal that focuses on human rights and drug issues, it seeks to expand the current body of legal research and analysis on drug policy issues as they intersect with international human rights law, international humanitarian law, and international criminal law. As detailed here, the journal welcomes, promotes, and disseminates high-quality, original research and analysis in the form of articles, commentaries, case summaries, and other analysis relevant to its mandate.
My article is entitled "Yong Vui Kong v. Public Prosecutor and the Mandatory Death Penalty for Drug Offences in Singapore: A Dead End for Constitutional Challenge?" It considers Yong Vui Kong -- a relatively well-publicised case, see here and here.
Discussed in my article is the decision handed down in 2010 by Singapore’s Court of Appeal (below left) (photo credit) in 2010. The decision concerns the constitutionality of the mandatory death penalty -- that is, a sentence for which mitigating factors may not be taken into account -- for certain drug offences in that country.
Yong Vui Kong, who was 19 years old at the time of his arrest for trafficking over 40 grams of diamorphine, received a mandatory sentence of death in 2009 under Singapore’s Misuse of Drugs Act, which requires capital punishment for trafficking of 15 grams or more of the semi-synthetic opioid substance. At present, a 3-judge panel having affirmed the sentence of the Malaysian citizen (right) yet again early last month, Yong now is seeking executive clemency, and his attorney reportedly has sought relief from the U.N. special on extrajudicial, summary or arbitrary executions.
My article examines the Court of Appeal’s 2010 decision in the light of earlier case law on this very matter in Singapore, and with particular reference to Privy Council decisions which have construed the mandatory death sentence as a form of inhuman or degrading treatment or punishment.
The Singapore appellate decision reveals a worrying deference to the legislative and executive branches of government by the judiciary, by failing to interpret the phrase ‘in accordance with the law’ to include the customary international law prohibition on cruel and inhuman treatment or punishment, and upholds the alleged prerogative for executive sentencing, whereby legislation takes the role of sentencing away from judges by predetermining mandatory sentences.
The Court also opined that there was not a customary international law prohibition on the mandatory death penalty for drug offences, despite the fact that only five other states could be regarded as ‘highly committed’ to the practice.
Lastly, the alleged ‘deterrent effect’ of the death penalty on drug use and trafficking is examined in my article, which reveals the statistics relied upon by the Court of Appeal to be highly suspect.

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