|
Inside the Bar |
The Death Sentence
Court’s Judgment or Legislature’s Sentence
This article seeks to draw insights from the decision of the House of Lords in the recent case, R v Secretary of State for the Home Department, ex p Anderson, on the mandatory death sentence for convicted murderers in
Singapore.
Where sentencing powers properly lie has been the subject of intense debate in other jurisdictions such as the UK. The very recent case of R v Secretary of State for the Home Department, ex p Anderson [2002] UKHL 46,* is
the latest milestone in this debate. In reversing the lower decision of the Court of Appeal, the House of Lords held unequivocally through the proxy issue of tariff-setting that sentencing powers are to lie with the courts and not
the Crown. Underpinning this decision is art 6(1) of the European Convention of Human Rights (‘ECHR’), incorporated into their domestic law via the Human Rights Act 1998.
While the ECHR is not part of our domestic law, the substantive aspect of art 6(1) — the right to a fair trial by an independent and impartial tribunal — will be shown to exist in Singapore law, via a revisiting of Ong Ah
Chuan [1981] AC 662. The opinions expressed in Ex parte Anderson are thus applicable, mutatis mutandis, to the consideration of the constitutionality of having a mandatory death penalty. In taking this approach, it is hoped
that this article would provide a fresh starting point for reconsidering this issue.
This article is not about abolishing or retaining the death sentence. It is about legislative control over the judgments of an independent judge in independent Singapore with a written Constitution which is based on a
separation of legislative, executive and judicial powers.
Section 53 of the Penal Code (Cap 224) sets out the punishments to which offenders are liable under the Penal Code. They are:
Notwithstanding the punishments prescribed for the different offences, there are offences that may be compounded (s 199 of the Criminal Procedure Code (Cap 68) (‘CPC’)).
Generally speaking, the punishment prescribed for most offences gives the sentencing judge a discretion to impose the appropriate punishment as befits the offence, the offender and risks to the community. The sentence may be a
term of imprisonment which must not exceed the maximum prescribed for the offences in the Penal Code, a fine or a term of imprisonment and caning or the offender may be placed on probation in the exercise of judicial power.
Punishment for Murder
The punishment for murder in s 302 of the Penal Code is in the following terms:
Whoever commits murder shall be punished with death. [Emphasis added.]
Notwithstanding the fact that the legislature does not enjoy the trial judge’s exposure to the facts of the case and the offender, judges have imposed the death sentences on the basis that they have no discretion in the matter,
even after the enactment of the Constitution.
A convicted murderer is a person who has taken a life or lives with the intention either of doing so or causing serious bodily injury. Such a person may not have intended to kill. It is enough that he intended to cause serious
bodily injury, if death results from the injury.
Accordingly, the crime of murder includes acts of widely varying culpability, including horrific and brutally sadistic conduct at one end of the spectrum and ‘almost venial, if objectively criminal’ conduct at the other as in
Ong Ah Chuan’s case, a drug trafficking case.
Judges have not enjoyed any discretion in England in passing sentence on a convicted murderer (Lord Bingham of Cornhill in R v Secretary of State for the Home Department, ex p Anderson [2002] UKHL 46). The absence of
judicial discretion became part of the law of Singapore through the Penal Code when Singapore was a colony and had no written Constitution based on the separation of powers.
The Constitution of the Republic of Singapore came into force on 9 August 1965. The Constitution now provides that no person shall be deprived of his life save in accordance with the law (art 9). It was accordingly open to
counsel in Singapore to challenge the constitutionality of the death sentence prescribed for drug offences. This was not done until it was raised before the Privy Council.
The Privy Council
Counsel in Ong Ah Chuan’s case challenged the constitutionality of the mandatory death sentence for drug offences, inter alia, on the ground that the penalty is determined by the amount of the drug rather than by the
serious nature of the crime.
Lord Diplock gave judgment in July 1980 after the abolition of the death penalty in England in 1965 and successive statutes in England have entrusted to the Home Secretary the power to decide when a mandatory life sentence
prisoner may be released, but before the passing of the Human Rights Act 1998 in England which requires in s 3(1), so far as it is possible to do so, for the legislation in England to be read and given effect in a way which is
compatible with ‘Convention rights’, akin to a court’s duty in Singapore spelt out in arts 162 and 4 in respect of ‘existing laws’.
Lord Diplock in Ong Ah Chuan’s case said (at 672):
It was not suggested ... that capital punishment is unconstitutional per se ... it was that the mandatory nature of the sentence, in the case of an offence so broadly drawn ... rendered it arbitrary since it debarred the court in punishing offenders from discriminating between them according to their individual blameworthiness. This, it was contended, was arbitrary and not ‘in accordance with law’ (art 9) ... since it compels the court to condemn to the highest penalty of death an addict who had gratuitously supplied an addict friend with 15 grammes of heroin from his own private store and to inflict a lesser punishment upon a professional dealer caught selling for distribution to many addicts a total 14.99 grammes.
Turning to punishment, Lord Diplock said (at 671):
One of the fundamental rules of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it. This involves the tribunal being satisfied that all the physical and mental elements of the offence with which he is charged, conduct and state of mind as well where that is relevant, were present on the part of the accused. [Emphasis added.]
It is submitted that this rule must apply to that part of the trial when sentence is pronounced by the court.
Using a broadbrush approach, he said (at 673): ‘All criminal law involves the classification of individuals for the purposes of punishment, since it affects those individuals only in relation to whom there exists ... the
conduct and where relevant the state of mind that constitutes the ingredients of an offence. Equality before the law and equal protection of the law require that like should be compared with like.’
The defendants were challenging discrimination between class and class: the imposition of a capital penalty upon the class of individuals who traffic in 15 g of heroin or more and the imposition of penalty upon that class of
individuals who traffic in less than 15 g of heroin is one of social policy for the legislature.
His Lordship then said that in a Constitution based on the separation of powers, ‘It is for the legislature to decide not the judiciary the appropriate punishment for each class, provided the factor the legislature adopts is
not arbitrary’. His Lordship did not consider whether the separation of powers and the vesting of judicial power in the judiciary permitted the legislature to determine the sentence for murderers in all cases of murder.
Turning to art 12(1) of the Constitution, he said:
What article 12(1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others, it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed.
His Lordship, however, conceded (at 674):
... that whenever a criminal law provides for a mandatory sentence for an offence there is a possibility that there may be considerable variation in moral blameworthiness, despite the similarity in legal guilt of offenders upon whom the same mandatory sentence must be passed. In the case of murder, a crime that is often committed in the heat of passion, the likelihood of this is very real ... but article 12(1) of the Constitution is not concerned with equal punitive treatment for equal moral blameworthiness; it is concerned with equal punitive treatment for similar legal guilt.
His Lordship did not consider the range of punishments prescribed for offences and the exercise of judicial power before the appropriate sentence is determined after legal guilt has been established and the trial then passes
into the sentencing phase.
His Lordship was of the view that if, by any chance, a Good Samaritan might be the subject of a mandatory death sentence, the prerogative of mercy is available to mitigate the rigidity of the law. Here again, his Lordship did
not consider the fact that in Singapore, the grant of pardon is essentially an exercise of executive power (art 22P) and that it is not appropriate for the Executive to perform a judicial function when judicial power is vested in
the judiciary by the Constitution (art 93).
Sentence of a Court
The Constitution of Singapore makes it clear in art 22P(2) that an offender must be condemned to death by the sentence of a court. In the event of an appeal, the appellate court must confirm such sentence. It is only after that
has been done by the judges that the President causes action to be taken. The Cabinet then advises the President on the grant of pardon.
The first question is whether it can be fairly said that ‘an offender has been condemned to death by the sentence of any court’ within the meaning of art 22P(2) of the Constitution when the Penal Code prescribes the death
sentence for murder and the judge does not exercise his discretion. It is submitted that the legislature is in breach of the doctrine of separation of powers and has determined the sentence. The legislature has exercised judicial
power arbitrarily. It was valid for colonial times but not under the Constitution, which requires the judiciary to be given that which belongs to the judiciary by art 93.
The second question is whether it can be said that an offender has been condemned to death by the sentence of an independent and unbiased tribunal after it was satisfied that he committed the offence of murder in circumstances
that he must and deserved to be put to death.
This question of separation of powers was considered by Lord Bingham of Cornhill in the very recent case R v Secretary of State for the Home Department, ex p Anderson [2002] UKHL 46. His Lordship summarised counsel’s
argument into seven steps which I have adopted and adjusted to take into account Singapore law.
His Lordship then reviewed the steps and said (p10, para 23):*
Step (3) is a logical consequence of steps (1) and (2). But the point was clearly expressed by the Supreme Court of Ireland in Deaton v Attorney General and the Revenue Commissioner [1963] IR 170 at 182–183.
There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty in a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case ... . The legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the courts ... the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive ... . [Emphasis added.]
Step 7 follows logically from the preceding steps and must be accepted. Selection of punishment in a particular case cannot be committed to the hands of Parliament. The word ‘independent’ means not only independent of the
parties but also independent of the legislature and the executive. The functional separation of the judiciary from the executive and the legislature is ‘fundamental’. The rule of law depends on it (Lord Bingham, p11, paras
26–27).*
The Constitution requires effective separation between the courts and the other branches of power. Separation of power is necessary to ensure a balance of power. A more fundamental reason for the separation of the power of
judging is the liberty of the citizen.
Nor is there liberty if the powers of judging are not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be legislator. If it were joined to executive power, the judge could have the force of an oppressor. [C Montesquieu, The Spirit of the Laws (1989), AM Cohler, BC Miller and HS Stone (ed) Cambridge University Press]
The Court’s Duty
The Constitution of Singapore has provided that:
Parliament has made it plain in the Constitution that if legislation cannot be read as to be compatible with the Constitution, a court has powers to declare the statute, to the extent that it is inconsistent, void. Parliament
will then decide whether it will amend the statute so that it will be compatible with the Constitution.
Parliament has further recognised and provided in art 162 that ‘existing laws’ must be construed subject to the Constitution. The courts are accordingly empowered to construe the Penal Code and the CPC to bring them into
conformity with the Constitution.
If a court declares that s 302 of the Penal Code is inconsistent with the Constitution, or construes s 302 with modifications, adaptations and qualifications to bring it into conformity with the separation of powers embodied in
the Constitution, the court will be doing what Parliament and the People in the Constitution have instructed it to do. There is no question of the court being in conflict with Parliament or of seeking or purporting to override the
will of Parliament or its elected representatives.
The legislature’s duty is to give appropriate guidance to the courts by setting out values and precepts of this society in the form of general rules. It must not, however, directly or indirectly, undermine fundamental rights or
the judicial reasoning that must precede before death is imposed as punishment in murder cases.
It is therefore submitted that judges have a sentencing discretion on whether or not to impose a death sentence in a murder case notwithstanding the language of s 302 of the Penal Code.
Conclusion
The Indian Penal Code was passed by the then Indian legislature in 1860.
Regarding ‘death’ as a punishment, the authors of the Code said:
We are convinced that it ought to be very sparingly inflicted, and we propose to apply it only in cases where either murder or the other highest offence against the State has been committed. [See ss 121, 132, 194, 302, 305, 396 of the Penal Code; and Bachan Singh v State of Punjab AIR 1980 SC 898 at 906, purposive interpretation requires the courts to note the above sentiments.]
Section 299 of the Penal Code defines culpable homicide and s 300 defines culpable homicide amounting to murder. Section 302 prescribes death as the only penalty for murder, which must be construed having regard to the
Constitution.
Discretion or Direction
The principal question is whether the sentence of death prescribed in s 302 can properly be described as a ‘judgment’ by an impartial criminal court of original jurisdiction within the meaning of s 212(1) of the CPC or whether
the legislature, in the exercise of legislative power, has trespassed into judicial territory and exercised judicial power and decided that the punishment shall be death except when the offence is committed by persons under the
age of 18 years and pregnant women where sentence is again fixed as one of a sentence of imprisonment for life.
Under s 212 of the Code, persons below 18 must be detained at the President’s pleasure, which in effect means the Executive because the President is vested with executive authority (art 23(1)). The President will therefore act
on the advice of the cabinet, ie the Executive, when the reports of the judge who tried the case and the Chief Justice or other presiding judge of the appellate court should decide the period of detention in the exercise of
judicial power. Determining the appropriate sentence, whether of persons above 18 years of age or below or of pregnant women, is a judicial function and not a legislative or executive function under the Constitution of the
Republic of Singapore.
Judges have a sentencing discretion in cases where the legislature deems it fit and proper that death should be one of the punishments that should be considered. There is good law in the Constitution (arts 162, 93, 9 and 4) which requires judges to consider, and counsel to urge the court before it delivers ‘judgment’ to impose in a proper case, a sentence other than death in a murder case because the punishment ‘death’ must include the lesser punishment of imprisonment for life.
KS Rajah, SC
Criminal Practice Committee
Law Society of Singapore
E-mail: ksrajah@harryelias.com.sg
[* At the time of going to press, the hard copy versions of this case were not available. The electronic version found in LEXIS was referred to. Paragraph numbers are cited in lieu of page numbers.]