SINGAPORE: Proposed change a welcome step

Government needs to do more to abolish mandatory death penalty for all crimes

Amnesty International and the Anti-Death Penalty Asia Network (ADPAN) welcomes the Singaporean Government’s move towards putting an end to the mandatory death sentencing for drug trafficking and homicide cases, and the moratorium on executions in place until proposed changes in the law are enacted.

Mandatory death sentences are prohibited under international law and Amnesty International therefore calls on the Government of Singapore to abolish mandatory death sentencing unconditionally.

Mandatory death sentences prevent judges from exercising their discretion and from considering all extenuating circumstances in a case.  International human rights law prohibits mandatory death sentences as they have been found to constitute arbitrary deprivation of life and cruel, inhuman or degrading punishment.  Many courts and judicial bodies around the world have ruled mandatory death sentencing as unconstitutional.

These proposed changes are key in saving the lives of those who are currently in death row in Singapore, particularly the case of Malaysian Yong Vui Kong, who is facing imminent execution.  Yong Vui Kong, who was 19 years old when arrested in 2007, was given a mandatory death sentence for possession of 47g of heroin, which under Singapore’s existing laws amounted to drug trafficking and warranted mandatory death penalty.  Yong Vui Kong was a courier and has identified in a police statement the alleged mastermind of the operation who instigated him to transport the controlled drugs to Singapore.  The charges against the Singaporean alleged to have masterminded the crime have been withdrawn.   Yong Vui Kong’s case has attracted international attention and concern from the diplomatic community.

Amnesty International and the Anti Death Penalty Asia Network (ADPAN) joins local groups in Malaysia and Singapore in calling for the Singaporean Government to commute Yong Vui Kong’s sentence.

ADPAN is a cross-regional independent network made up of NGOs, lawyers and activists from 24 countries that are committed to working for an end to the death penalty in their own countries and across the Asia Pacific region.

Amnesty International opposes the death penalty in all circumstances, believing that the death penalty violates the right to life and is the ultimate form of cruel, inhuman and degrading punishment.  Amnesty International and ADPAN understand the devastating impact of violent crime and sympathizes with victims of crime and their families.  However, there is no evidence to demonstrate that the death penalty deters crime more effectively than other punishments.  Victims of crime are doubly victimised by unfair trial procedures which can result in the innocent being executed and the real perpetrators never being brought to justice.

Navi Pillay speech on ‘moving away from the Death Penalty.’

Statement of High Commissioner for Human Rights Navi Pillay at the OHCHR-Global Panel on “Moving away from the Death Penalty – Lessons from national experiences”,  3 July 2012, New York.

Distinguished delegates, Representatives of civil society, Colleagues, and friends,
I would like to extend a warm welcome to all of you, and thank you for participating in this event organized by my Office on “Moving away from the death penalty – Lessons from national experiences.”

The global trend and position on the death penalty have evolved over the years. An increasingly large number of Member States from all regions have acknowledged that the death penalty undermines human dignity, and that its abolition, or at least a moratorium on its use, contributes to the enhancement and progressive development of human rights.

There is no right more sacred than the right to life.  Since the beginning of my mandate, I have engaged in a dialogue with many States on this issue. During my recent country missions, I had encouraging discussions with senior officials about abolishing the death penalty or imposing at least a moratorium on it.  In addition, my Office works at the national level to stimulate the debate, including through seminars which provide a forum for a core group of scholars and practitioners that come forward with convincing arguments in favor of the abolition of the death penalty.

With regard to retentionist States,  international law requires as a minimum full compliance with the clear restrictions prescribed in particular in article 6 of the International Covenant on Civil and Political Rights (ICCPR). According to this provision, its application shall be limited to the “most serious crimes. ” It should be recalled that this term has been interpreted to mean that the death penalty should only be applied to the crime of murder. Therefore, in those States that have not yet abolished the death penalty, the use of capital punishment for drug offences or for offences carried out in connection with transnational organized crime is prohibited if the offences in question do not involve a taking of life.  Furthermore, the death penalty cannot be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

States that have maintained the death penalty must ensure scrupulous respect of due process guarantees. The imposition of a death sentence upon conclusion of a trial in which the provisions of article 14 of the ICCPR have not been respected constitutes a violation of the right to life.  Those accused of capital offences must be effectively assisted by a lawyer at all stages of the proceedings.  Furthermore, executions should not take place when an appeal or other recourse is pending, and there must be the possibility for the individual concerned to seek pardon or commutation of the sentence.

Non-compliance with the principle of non-discrimination is also a major concern when considering the application of the death penalty.  A death sentence is often imposed on less privileged individuals who do not have sufficient access to effective legal representation.  Membership of a minority has often been identified as a significant factor in the decision that led to the sentence of death and execution.  In addition, due regard is often lacking for the UN Safeguards Guaranteeing Protection of those Facing the Death Penalty, approved by ECOSOC in 1984,  which  prohibit the carrying out of the death penalty on persons “who have become insane.”

Methods of execution should meet the standards of “least possible physical and mental suffering.” Otherwise, the execution will constitute a violation of freedom from torture, inhuman or to cruel, inhuman or degrading treatment or punishment. It is difficult to think of a humane method of executions that can meet these criteria. Also troubling are the length and conditions imposed on individuals on death row.

Judges often complain that executive stipulations of mandatory sentences of death for specific crimes, is an interference on judicial discretion to determine the appropriate sentence. The sentence of death is so grave that it should not be mandatory. Nor can it be carried out in secret, which would make it amount to inhuman treatment of the executed person’s family.

A key obligation to bear in mind for any State that has itself abolished the death penalty is not to expel, extradite or otherwise remove from its jurisdiction individuals who face a real risk of a death sentence and execution in the country to which they are removed, without ensuring that the death penalty would not be carried out. Extradition or other transfer to such a country accordingly requires the procurement of effective guarantees or assurances to the effect that, at a minimum, the death penalty, if imposed, will not be carried out.

Finally, it should be recalled that the lack of data with regard to the number of executions or the number of individuals on death row is a serious impediment to any national debate that may lead to a move towards abolition of capital punishment in a given State . It will also be important for the effectiveness and transparency of such a debate to ensure that the public is provided with all sides of the arguments and with information and accurate statistics on criminality and the various effective ways to combat it, short of the death sentence.

Distinguished delegates, Ladies and gentlemen,
It is interesting to note that in the early 1960s, when drafting the Covenant, its authors were already paving the way for the move in international law towards the abolition of the death penalty.  The last paragraph of article 6 of the ICCPR provides that “nothing in this article shall be invoked to delay or prevent the abolition of capital punishment in any State party to the Covenant”. This move, which materialized in 1989 through the adoption of the Second Optional Protocol to the International Covenant on the Civil and Political Rights, to-date ratified by 74 States, is also reflected in a number of regional instruments supporting the abolition of the death penalty. I call upon States that have not yet done so to ratify the Second Optional Protocol, or as a strict minimum to place a formal moratorium on the use of the death penalty until they are ready to work towards its abolition.
I am grateful to panelists that have come from all parts of the world to share their experience with us today, in particular regarding the process of transition from capital punishment to abolition, or their experience, at times close or personal, of injustice related to the imposition of the death penalty.

I wish you a rich and fruitful discussion.

SINGAPORE – Joint letter appealing for Yong Vui Kong to be granted clemency

AI Index: ASA 36/2012.002

8 May 2012

Mr.  K. Shanmugam

Law Minister and Minister of Foreign Affairs

The Treasury,
100 High Street, #08-02
Singapore 179434

Dear Minister

OPEN LETTER: CLEMENCY FOR YONG VUI KONG URGENTLY REQUESTED

Amnesty International and the Anti-Death Penalty Asia Network (ADPAN) urge Singapore’s Cabinet to advise the President to grant clemency to Yong Vui Kong, a young Malaysian who faces imminent execution for drug trafficking. Clemency granted by the President, following advice from the Cabinet, is Yong’s last hope.

On 4 April, Singapore’s Supreme Court rejected Yong Vui Kong’s third and final appeal submitted by his lawyer, M. Ravi. The appeal argued that Yong Vui Kong was subjected to unequal treatment before the law when the Attorney-General’s Chamber decided not to prosecute the alleged mastermind of the drug operation, a Singaporean who was Yong Vui Kong’s former boss. He remains free from prosecution now that all 26 charges against him were withdrawn by the Attorney-General’s office. Yet his former employee, Yong Vui Kong, has spent almost four years on death row and now faces imminent execution.

Yong Vui Kong was 19 when first arrested in 2007 for possessing 47g of heroin.  In 2008 Singapore’s High Court sentenced him to death under the Misuse of Drugs Act – which provides a mandatory death sentence for anyone caught with over 15g of heroin.  The law strips the judiciary of discretion to pass a lesser sentence, or to individualize the sentence in conformity with the degree of culpability of the accused.

In 2005 the UN Special Rapporteur on extrajudicial, summary or arbitrary executions said that Singapore’s execution of another prisoner sentenced to death for trafficking heroin, Nguyen Tuong Van, would violate international legal standards relating to the imposition of the death penalty. “No international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms,” the Special Rapporteur stated.

In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights urged all states that still maintain the death penalty “to ensure… that the death penalty is not imposed… as a mandatory sentence”.

Amnesty International and ADPAN urge Singapore to follow the worldwide trend among common-law countries to ban the use of the mandatory death penalty. The US Supreme Court struck down mandatory penalty in 1976, ruling in Woodson v. North Carolina that “fundamental respect for humanity … requires consideration of the character and record of the individual offender and the circumstances of the particular offense.” In 1983, the Indian Supreme Court ruled that the penalty was unconstitutional in Mithu v. Punjab, stating that ““[t]he legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion.” More recently, in Attorney-General vs Kagula, the Supreme Court of Uganda in 2009 struck down the mandatory death penalty because it prevented courts from considering all specific circumstances of the defendant and of the crime.

Yong Vui Kong’s case has sparked widespread concern around the world.  In his own country, Malaysia, Foreign Minister Anifah Aman and Malaysian legislators requested the Singaporean authorities to grant clemency in 2010.

The President of Singapore can only grant a presidential pardon upon the advice of the Cabinet. Clemency for a death sentence has only been granted six times since independence in 1965.  Amnesty International and the Anti-Death Penalty Asia Network call on you and other members of the Cabinet to ensure respect for international legal standards by recommending the commutation of Yong Vui Kong’s death sentence.

Amnesty International opposes the death penalty in all cases and without reservation.  ADPAN is an independent regional network comprising lawyers, NGOs and civil society groups from 24 countries including Singapore. It campaigns for an end to the death penalty across the Asia-Pacific region.

More than two-thirds of states have abolished the death penalty in law or in practice. Death sentences and executions are decreasing globally and in Asia. Out of 41 countries in the Asia-Pacific, 28 have abolished it in law or in practice.   Five out of the 10 ASEAN-member states have also abolished the death penalty in law or in practice. Singapore is one of the few remaining countries in the region that still carries out executions.

Amnesty International and the Anti-Death Penalty Asia Network are appealing to the Singapore authorities to stop the execution of Yong Vui Kong, to establish a moratorium on the death penalty and to suspend executions.

Sincerely yours,

Donna Guest,   Asia Deputy Director International Secretariat , Amnesty International

M. Ravi,  Counsel for Yong Vui Kong  and  Anti-Death Penalty Asia Network (ADPAN) member

Joint Letter to Singaporean Minister of Law