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Statement by Special Rapporteur on Extrajudicial, Summary Or Arbitrary Executions regarding Singapore
17 November 2005
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17 November 2005
Philip Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions of the United Nations Commission on Human Rights issued the following statement today:
I have read the statement attributed to the Press Spokesman of the Ministry of Foreign Affairs of Singapore in relation to my comments on a current capital case in Singapore.
In view of the apparent misunderstandings of my position I have decided that it is in the best interests of all concerned that I make public the full text of the communication which I sent to the Government of Singapore in March 2005 and which will be reproduced in my annual report to the Commission on Human Rights. This communication seems to me to be the best way in which to clarify the issues raised by the Ministry’s Press Spokesman.
Communication from Special Rapporteur to Singapore
15 March 2005
Excellency,
I have the honour to address you in my capacity as Special Rapporteur on extrajudicial, summary or arbitrary executions pursuant to Commission on Human Rights resolutions 2004/37.
In this connection, I would like to draw the attention of your Excellency’s Government to information I have received regarding the situation of Mr. Nguyen Tuong Van, a 24-year-old Australian national of Vietnamese origin who is reportedly under sentence of death at Changi Prison in Singapore. He was reportedly arrested in Changi Airport in December 2002, whilst in transit from Cambodia to Australia. He was later charged and convicted of drug-trafficking involving just under 400 grams of pure heroin. In March 2004 he was sentenced to death by a Singapore Court for trafficking heroin. On 20 October 2004, the Court of Appeal dismissed his appeal against his conviction and upheld the death sentence. Mr Nguyen appears from the record to have been 21 at the time of the offence, to have been a self-employed computer salesman, to have had no prior criminal record and no prior involvement in the drug trade, and to have confessed almost immediately to his possession of drugs. His stated reason for having agreed with a third-party to carry drugs was his need to assist his brother to pay outstanding legal fees in Australia.
It is my understanding that Nguyen Tuong Van’s final option is to file an appeal for clemency with the President, S.R. Nathan, who has the power to commute his death sentence. Reports indicate that a petition for clemency from the Australian Governor-General was received by the Singapore Government and that a plea from Mr. Nguyen himself is also expected. I have also been informed that Your Excellency’s Government has already indicated that it would give consideration to such a petition.
In addressing the Government of Singapore I am acutely aware of the criticisms that you have directed on several occasions to the reports of my predecessors as Special Rapporteur when matters arising under this mandate have been raised with the Government (see statements reproduced in E/CN.4/2003/G/57; E/CN.4/2002/170; E/CN.4/2001/153; E/CN.4/1998/113). In particular, it has been suggested that by failing to provide evidence to substantiate previous claims the Special Rapporteur thereby betrayed her bias, prejudged the cases, and cast aspersions on the integrity of the Singapore judiciary and the judicial safeguards observed by the courts of Singapore (E/CN.4/2002/170, para. (b)). Accordingly, in relation to the present case, I will endeavour to be as precise as possible although this will necessitate my going into significantly more detail than might usually be the case.
Permit me first of all to note that the raising of a case under the present mandate does not amount to prejudging a case, an observation which is usually made whenever a communication is sent to a Government. Nor does it cast aspersions on the judiciary of a State to suggest that international standards might not have been taken fully into account in its deliberations.
I am aware that the Government of Singapore has previously stated that “the death penalty is primarily a criminal justice issue, and therefore is a question for the sovereign jurisdiction of each country” (E/CN.4/2001/153, para. (c)). By the same token, however, matters relating to the functioning of the criminal justice system are legitimate matters of international concern when questions of non-compliance with international standards are raised in good faith.
The principal concern in the present case relates to the application of a mandatory death penalty. Making such a penalty mandatory and thereby eliminating the discretion of the court generally makes it impossible to take into account mitigating or extenuating circumstances and eliminates case by case determinations of an appropriate punishment in light of all the circumstances of the case. Whatever considerations might be appropriate in relation to other forms of mandatory sentencing, its use in the death penalty context raises fundamentally different issues because the right to life is at stake and because once the sentence has been carried out it is irreversible.
It is my understanding that, since 1975, the death penalty in Singapore has been imposed as a mandatory sentence for a range of specific drug trafficking offences. The consequences of this approach were spelled out by Kan Ting Chiu J. in the High Court in the present case when he observed that “where the legislature has by the proper exercise of its powers prescribed that for offences involving large quantities of drugs the offenders shall be punished with death, the punishment will be imposed without hearing pleas in mitigation …” (Public Prosecutor v. Nguyen Tuong Van, No. CC 43/2003, 20 March 2004, para. 84 of the Judgment issued by the High Court).
Both at the trial and at the appeal stage, Mr. Nguyen Tuong Van challenged the constitutionality of the mandatory sentence of death as provided for by s 33 and the Second Schedule of the Misuse of Drugs Act. The arguments were based on Articles 9(1), 12(1) and 93 of the Constitution of Singapore, which deal, respectively, with fundamental liberty of the person, equal protection of the law, and the vesting of judicial power in the courts. In the High Court Kan Tin Chiu J. dismissed this argument by noting that he was bound by the decision of the Privy Council in Ong Ah Chuan v. Public Prosecutor which upheld the mandatory death penalty. On appeal the defendant noted that a number of Privy Council cases had reversed this interpretation of the law, primarily in light of the evolution of human rights standards in the intervening two decades. In terms of timing, only one of the relevant later cases (Reyes v. The Queen), an appeal from Belize, was available to the trial judge. He observed, however, that that case had relied upon the prohibition of torture and inhuman or degrading treatment or punishment contained in the Belize Constitution and concluded that it was distinguishable from the present case because, as the Appeal Court put it, “there is no equivalent in [the Singapore] Constitution nor in any local Act of Parliament”.
The judgment of Lai Kew Chai J, on behalf of the Court of Appeal, in this case did, however, address the more recent Privy Council decisions. Thus the Court noted that: “The appellant’s arguments on unconstitutionality made reference to several very recent Privy Council decisions on the mandatory death penalty. These decisions, in turn, made reference to international jurisprudence dealing with ‘the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment’” (Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47, para. 59). The Privy Council decisions included Watson v The Queen [2004] UKPC 34 as well as Reyes v The Queen [2002] 2 AC 235. The Appeals Court noted that in “both Watson v. The Queen and Reyes v The Queen, the mandatory death penalty in respect of certain classes of murder was ruled unconstitutional as a violation of the prohibition against cruel or inhuman treatment or punishment. In Matthew v The State and Boyce v The Queen, the Privy Council would have ruled the same way but for certain “saving provisions” in the relevant national Constitutions which preserved pre-existing national laws” (para. 83).
In paragraph 29 of Watson v The Queen the Law Lords indicated that “It is no longer acceptable, nor is it any longer possible to say, as Lord Diplock did on behalf of the Board in Ong Ah Chuan v Public Prosecutor [1981] AC 648, 674, that there is nothing unusual in a death sentence being mandatory. As Lord Bingham pointed out in Reyes, p. 244, para. 17, the mandatory penalty of death on conviction of murder long pre-dated any international arrangements for the protection of human rights. The decision in that case was made at a time when international jurisprudence on human rights was rudimentary.” The Privy Council further observed that “The march of international jurisprudence on this issue began with the Universal Declaration of Human Rights which was adopted by a resolution of the General Assembly of the United Nations on 10 December 1948 (1948) (Cmd 7662). It came to be recognized that among the fundamental rights which must be protected are the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment.”
In relation to the present case the Singapore Court of Appeal opted not to “examine each [of these cases] in detail” (para. 83) and, after a brief recitation of some passages from the Privy Council, concluded “However, we are of the view that the mandatory death sentence prescribed under the MDA is sufficiently discriminating to obviate any inhumanity in its operation. It is therefore constitutional.” This conclusion was not, however, based upon any analysis which might have shown that the sentence is discriminating in the sense of taking account of the circumstances of the individual. The fact that the law discriminates on the basis of the quantity of drugs involved does not address the concerns raised by the Privy Council nor those reflected in international standards.
The Court of Appeal did not specifically cite, nor did it address, the directly relevant observations of the Privy Council contained in the case of Boyce and Joseph v. The Queen. In that case the constitutional validity of the mandatory death penalty law of Barbados was upheld, but the majority opinion carefully limited the grounds for its finding to the terms of the Constitution of Barbados.
More pertinent to the present case is the fact that, on the basis of a systematic review of international legal standards, the majority observed that the maintenance of the mandatory death penalty ‘ will … not be consistent with the current interpretation of various human rights treaties to which Barbados is a party’ (See Judgment of the Lords of the Judicial Committee of the Privy Council, Privy Council Appeal No. 99 of 2002, Judgment of 7 July 2004, para. 6). The same conclusion was repeated in more forceful terms in the minority judgment on behalf of four Law Lords who stated that: “the jurisprudence of the Human Rights Committee, the Inter-American Commission and the Inter-American Court has been wholly consistent in holding the mandatory death penalty to be inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment. … The appellants submitted that ‘No international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms,’ and this assertion has not been contradicted”(para. 81(3)).
In light of this review of relevant legal standards I would respectfully request Your Excellency’s Government to take all necessary steps to avoid an execution which is inconsistent with accepted standards of international human rights law.
In accordance with my responsibility under the mandate provided to me by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, I will ensure that your Government’s response is accurately reflected in the reports I will submit to the Commission on Human Rights for its consideration.
Accept, Excellency, the assurances of my highest consideration.
Philip Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions of the United Nations Commission on Human Rights issued the following statement today:
I have read the statement attributed to the Press Spokesman of the Ministry of Foreign Affairs of Singapore in relation to my comments on a current capital case in Singapore.
In view of the apparent misunderstandings of my position I have decided that it is in the best interests of all concerned that I make public the full text of the communication which I sent to the Government of Singapore in March 2005 and which will be reproduced in my annual report to the Commission on Human Rights. This communication seems to me to be the best way in which to clarify the issues raised by the Ministry’s Press Spokesman.
Communication from Special Rapporteur to Singapore
15 March 2005
Excellency,
I have the honour to address you in my capacity as Special Rapporteur on extrajudicial, summary or arbitrary executions pursuant to Commission on Human Rights resolutions 2004/37.
In this connection, I would like to draw the attention of your Excellency’s Government to information I have received regarding the situation of Mr. Nguyen Tuong Van, a 24-year-old Australian national of Vietnamese origin who is reportedly under sentence of death at Changi Prison in Singapore. He was reportedly arrested in Changi Airport in December 2002, whilst in transit from Cambodia to Australia. He was later charged and convicted of drug-trafficking involving just under 400 grams of pure heroin. In March 2004 he was sentenced to death by a Singapore Court for trafficking heroin. On 20 October 2004, the Court of Appeal dismissed his appeal against his conviction and upheld the death sentence. Mr Nguyen appears from the record to have been 21 at the time of the offence, to have been a self-employed computer salesman, to have had no prior criminal record and no prior involvement in the drug trade, and to have confessed almost immediately to his possession of drugs. His stated reason for having agreed with a third-party to carry drugs was his need to assist his brother to pay outstanding legal fees in Australia.
It is my understanding that Nguyen Tuong Van’s final option is to file an appeal for clemency with the President, S.R. Nathan, who has the power to commute his death sentence. Reports indicate that a petition for clemency from the Australian Governor-General was received by the Singapore Government and that a plea from Mr. Nguyen himself is also expected. I have also been informed that Your Excellency’s Government has already indicated that it would give consideration to such a petition.
In addressing the Government of Singapore I am acutely aware of the criticisms that you have directed on several occasions to the reports of my predecessors as Special Rapporteur when matters arising under this mandate have been raised with the Government (see statements reproduced in E/CN.4/2003/G/57; E/CN.4/2002/170; E/CN.4/2001/153; E/CN.4/1998/113). In particular, it has been suggested that by failing to provide evidence to substantiate previous claims the Special Rapporteur thereby betrayed her bias, prejudged the cases, and cast aspersions on the integrity of the Singapore judiciary and the judicial safeguards observed by the courts of Singapore (E/CN.4/2002/170, para. (b)). Accordingly, in relation to the present case, I will endeavour to be as precise as possible although this will necessitate my going into significantly more detail than might usually be the case.
Permit me first of all to note that the raising of a case under the present mandate does not amount to prejudging a case, an observation which is usually made whenever a communication is sent to a Government. Nor does it cast aspersions on the judiciary of a State to suggest that international standards might not have been taken fully into account in its deliberations.
I am aware that the Government of Singapore has previously stated that “the death penalty is primarily a criminal justice issue, and therefore is a question for the sovereign jurisdiction of each country” (E/CN.4/2001/153, para. (c)). By the same token, however, matters relating to the functioning of the criminal justice system are legitimate matters of international concern when questions of non-compliance with international standards are raised in good faith.
The principal concern in the present case relates to the application of a mandatory death penalty. Making such a penalty mandatory and thereby eliminating the discretion of the court generally makes it impossible to take into account mitigating or extenuating circumstances and eliminates case by case determinations of an appropriate punishment in light of all the circumstances of the case. Whatever considerations might be appropriate in relation to other forms of mandatory sentencing, its use in the death penalty context raises fundamentally different issues because the right to life is at stake and because once the sentence has been carried out it is irreversible.
It is my understanding that, since 1975, the death penalty in Singapore has been imposed as a mandatory sentence for a range of specific drug trafficking offences. The consequences of this approach were spelled out by Kan Ting Chiu J. in the High Court in the present case when he observed that “where the legislature has by the proper exercise of its powers prescribed that for offences involving large quantities of drugs the offenders shall be punished with death, the punishment will be imposed without hearing pleas in mitigation …” (Public Prosecutor v. Nguyen Tuong Van, No. CC 43/2003, 20 March 2004, para. 84 of the Judgment issued by the High Court).
Both at the trial and at the appeal stage, Mr. Nguyen Tuong Van challenged the constitutionality of the mandatory sentence of death as provided for by s 33 and the Second Schedule of the Misuse of Drugs Act. The arguments were based on Articles 9(1), 12(1) and 93 of the Constitution of Singapore, which deal, respectively, with fundamental liberty of the person, equal protection of the law, and the vesting of judicial power in the courts. In the High Court Kan Tin Chiu J. dismissed this argument by noting that he was bound by the decision of the Privy Council in Ong Ah Chuan v. Public Prosecutor which upheld the mandatory death penalty. On appeal the defendant noted that a number of Privy Council cases had reversed this interpretation of the law, primarily in light of the evolution of human rights standards in the intervening two decades. In terms of timing, only one of the relevant later cases (Reyes v. The Queen), an appeal from Belize, was available to the trial judge. He observed, however, that that case had relied upon the prohibition of torture and inhuman or degrading treatment or punishment contained in the Belize Constitution and concluded that it was distinguishable from the present case because, as the Appeal Court put it, “there is no equivalent in [the Singapore] Constitution nor in any local Act of Parliament”.
The judgment of Lai Kew Chai J, on behalf of the Court of Appeal, in this case did, however, address the more recent Privy Council decisions. Thus the Court noted that: “The appellant’s arguments on unconstitutionality made reference to several very recent Privy Council decisions on the mandatory death penalty. These decisions, in turn, made reference to international jurisprudence dealing with ‘the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment’” (Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47, para. 59). The Privy Council decisions included Watson v The Queen [2004] UKPC 34 as well as Reyes v The Queen [2002] 2 AC 235. The Appeals Court noted that in “both Watson v. The Queen and Reyes v The Queen, the mandatory death penalty in respect of certain classes of murder was ruled unconstitutional as a violation of the prohibition against cruel or inhuman treatment or punishment. In Matthew v The State and Boyce v The Queen, the Privy Council would have ruled the same way but for certain “saving provisions” in the relevant national Constitutions which preserved pre-existing national laws” (para. 83).
In paragraph 29 of Watson v The Queen the Law Lords indicated that “It is no longer acceptable, nor is it any longer possible to say, as Lord Diplock did on behalf of the Board in Ong Ah Chuan v Public Prosecutor [1981] AC 648, 674, that there is nothing unusual in a death sentence being mandatory. As Lord Bingham pointed out in Reyes, p. 244, para. 17, the mandatory penalty of death on conviction of murder long pre-dated any international arrangements for the protection of human rights. The decision in that case was made at a time when international jurisprudence on human rights was rudimentary.” The Privy Council further observed that “The march of international jurisprudence on this issue began with the Universal Declaration of Human Rights which was adopted by a resolution of the General Assembly of the United Nations on 10 December 1948 (1948) (Cmd 7662). It came to be recognized that among the fundamental rights which must be protected are the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment.”
In relation to the present case the Singapore Court of Appeal opted not to “examine each [of these cases] in detail” (para. 83) and, after a brief recitation of some passages from the Privy Council, concluded “However, we are of the view that the mandatory death sentence prescribed under the MDA is sufficiently discriminating to obviate any inhumanity in its operation. It is therefore constitutional.” This conclusion was not, however, based upon any analysis which might have shown that the sentence is discriminating in the sense of taking account of the circumstances of the individual. The fact that the law discriminates on the basis of the quantity of drugs involved does not address the concerns raised by the Privy Council nor those reflected in international standards.
The Court of Appeal did not specifically cite, nor did it address, the directly relevant observations of the Privy Council contained in the case of Boyce and Joseph v. The Queen. In that case the constitutional validity of the mandatory death penalty law of Barbados was upheld, but the majority opinion carefully limited the grounds for its finding to the terms of the Constitution of Barbados.
More pertinent to the present case is the fact that, on the basis of a systematic review of international legal standards, the majority observed that the maintenance of the mandatory death penalty ‘ will … not be consistent with the current interpretation of various human rights treaties to which Barbados is a party’ (See Judgment of the Lords of the Judicial Committee of the Privy Council, Privy Council Appeal No. 99 of 2002, Judgment of 7 July 2004, para. 6). The same conclusion was repeated in more forceful terms in the minority judgment on behalf of four Law Lords who stated that: “the jurisprudence of the Human Rights Committee, the Inter-American Commission and the Inter-American Court has been wholly consistent in holding the mandatory death penalty to be inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment. … The appellants submitted that ‘No international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms,’ and this assertion has not been contradicted”(para. 81(3)).
In light of this review of relevant legal standards I would respectfully request Your Excellency’s Government to take all necessary steps to avoid an execution which is inconsistent with accepted standards of international human rights law.
In accordance with my responsibility under the mandate provided to me by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly, I will ensure that your Government’s response is accurately reflected in the reports I will submit to the Commission on Human Rights for its consideration.
Accept, Excellency, the assurances of my highest consideration.