The following was first published in funny little world.
In the 12 years that he was our head of state, former President S R Nathan did not grant a single clemency.
This isn’t a topic that he has spoken much on, but he finally opened up recently during an interview. His response highlights an alarming problem in the clemency process for inmates on death row.
“The constitution clearly lays it down that I have to act on the advice of the cabinet, and the cabinet acts on the advice of the Attorney-General,” he said, explaining how the Attorney-General sifts through all the evidence available and makes a recommendation to the President.
– ‘I have to ask the man up there to forgive me’, 7 December 2011
Earlier this year, the Court of Appeal confirmed that the President cannot act in his own discretion when it comes to granting clemency to death row inmates, but has to act on the advice of the Cabinet. Nathan now confirms that the Cabinet acts on the advice of the Attorney-General (AG).
However, in these capital punishment cases, the AG’s Chambers acts on behalf of the State as the prosecution. It is the AG’s Chambers who are pushing for the ultimate punishment of death in the first place. Therefore, if the AG is the one who makes the recommendation to the Cabinet and the President, Singapore’s clemency process becomes no more than a farce where the prosecutor decides whether to suspend the very sentence he has invested so much time and energy in securing in the first place.
After charging the offender, prosecuting him at his trial, then fighting against his appeal, just how likely is the AG going to say, “You know what, I was wrong to demand the death penalty in court, this person doesn’t deserve to die after all, let’s pardon him”?
How is this not a blatant conflict of interest, and an unacceptable taint on our clemency process?
Problems, problems everywhere
The Misuse of Drugs Act stipulates that anyone found guilty of trafficking 15g of heroin and above automatically receives the mandatory death penalty. The judges do not have the discretion to hand down any other sentence; mitigating circumstances cannot be taken into account at all.
This means that the only way for the prosecution to spare an offender from the noose is to find different ways to word the charge they bring against him/her – which raises even more ambiguity, this time with regard to the amount of discretion the prosecution has. The Court of Appeal has yet to issue a verdict on the challenge to prosecutorial discretion.
So this is the system that we are left with:
- When someone is arrested, the Attorney-General’s Chambers, as the prosecution, decides what charges will be brought against him/her. It so far appears as if they are able to exercise their discretion in how they would like to charge the defendant – even if the amount were higher than the amount that attracts the mandatory death penalty the prosecution is able to come up with a lower non-capital charge. (See here)
- If the defendant is found guilty, the judge has no choice except to sentence him/her to death under the mandatory death penalty.
- The defendant is allowed to appeal this verdict before the Court of Appeal. The Attorney-General’s Chambers once again appears on behalf of the State to fight this appeal.
- If the defendant loses his/her appeal, the only hope left is for the President to grant clemency, commuting the death sentence to life imprisonment.
- The President is unable to act in his own discretion. He is bound to act upon the advice of the Cabinet. (See here.)
- The Cabinet is in turn advised by the Attorney-General – who heads the very team that decided upon the charge and prosecuted the death row inmate in the first place. (See here.)
The Attorney-General has power in deciding upon the charge, in prosecuting the offender (while the judges’ hands are tied) and in advising the President and the Cabinet when it comes to the granting of clemencies. Am I the only one who sees a huge problem in this entire process?
Can we be forgiven?
When asked point-blank about how he dealt with death row appeals, Nathan finally said, “I have to ask the man up there to forgive me for what is done for the good of society.”
I don’t believe that Nathan is bad man. Perhaps he really did believe that he was doing the right thing. Perhaps he felt like he didn’t have a choice; after all, he couldn’t have exercised his own discretion without triggering a constitutional crisis. Although I mourn for all those executed during his term (and the many more before) I hope he will find the peace and forgiveness he seeks.
But now that we see the death penalty and the way it is applied in Singapore, now that we are aware of its flaws and injustices, how can we continue to stand for this cruel, unusual, archaic punishment?
If we continue to stand by and do nothing as inmates are led to the slaughter at the end of such a heartless process, who will forgive us for allowing it to happen in all our names?
Featured image from Yahoo! SG