“防止网络假信息和网络操纵法令”与死刑通知

POFMA NOTICES AND THE DEATH PENALTY
Teo Soh Lung

Amidst our National Day celebrations and the exciting Paris Olympics last weekend, two POFMA notices were issued against Transformative Justice Collective (TJC) bringing attention to the execution of two death row prisoners. TJC had earlier published a statement/s on social media concerning the executions on 2 and 7 August.

I don't know why the prison authority had chosen to execute prisoners so close to our National Day, a day that is celebrated with happiness and pride. I also do not know why Minister Shanmugam issued POFMA notices on the eve of National Day and then on 11 August which was a Sunday. Why make civil servants work on holidays. What is so urgent about a POFMA notice?

What were the falsehoods alleged to have been published by TJC? Having read the statement/s and Correction Notices several times, I cannot find any falsehoods that warrant a POFMA notice. The words of TJC may be strong and perhaps a little emotional. But they do not constitute falsehoods.

The press releases of the Central Narcotics Bureau (CNB) informed us that the prisoners were executed because they were convicted of drug trafficking and had exhausted all legal processes including reviews and clemency petitions. TJC did not deny those facts. What they claimed was that the prisoners were issued Notices of Execution even though there was a pending appeal in Originating Application 306/2024 before the Court of Appeal. In that application, 36 death row prisoners (including one of the executed prisoners) had appealed against the decision of the High Court which ruled that their right to counsel guaranteed under our Constitution was not denied by LASCO’s (Legal Assistance Scheme for Capital Offences) new policy. According to TJC, issuing an execution notice (which in this case also meant executing the prisoner) before the Court of Appeal’s determination amounts to a breach of due process.

In my opinion, the minister is entitled to disagree with TJC. But that does not warrant the issue of a POFMA notice because what TJC claim is true i.e. that there is a pending appeal which I understand is scheduled for hearing in September.

The Minister elaborated on his decision to issue POFMA notices by citing the decision of the Court of Appeal delivered on 2 August, the very day the prisoner was executed. The court had ruled that the pending appeal had no relevance to the sentence and conviction of the prisoner. It therefore disallowed the application. Here I quote para 9 of the judgement of the Court of Appeal delivered by Justice Tay Yong Kwang:

“As stated by Mr Moad Fadzir in his affidavits, if the appeal against the decision in OA 306/2024 is decided in his favour, all it means is that he “may conceivably apply for assistance from Legal Assistance Scheme for Capital Offences to assist him in filing his intended review application”. However, even if his appeal succeeds and his application for LASCO counsel is approved, he is barred from filing any further review applications against his conviction or against a decision on a review application as mentioned in para 7 above. The outcome of that appeal therefore can have no bearing on his conviction or sentence. In any event, apart from stating that he hopes to secure LASCO counsel for his “intended post-appeal review application”, he has not provided any ground which is different from his previous three unsuccessful review applications.”

With due respect to the honourable judge, I disagree. He should have ordered a stay of execution because if Mr Moad Fadzir was successful in his application, he will have a counsel to argue his case. No one knows what the counsel will say on his behalf. Justice Tay cannot assume that “… even if his appeal succeeds and his application for LASCO counsel is approved, he is barred from filing any further review applications against his conviction or against a decision on a review application as mentioned in para 7 above.”

The Court of Appeal may have decided in its earlier judgements that applicants would be barred from filing repeat reviews but it is wrong for Justice Tay to assume that the court hearing counsel’s arguments would follow its earlier decision and bar him from filing further applications. What if the court exercise its inherent jurisdiction and rule in his favour? If that happens, how do we resurrect Mr Moad Fadzir? How is the court going to answer to his family?

I am also troubled by another aspect of the two cases. This concerns the service of Notice of Execution. According to TJC, Mr Moad Fadzir was issued with the notice on 29 July and executed on 2 August i.e. five days (counting the day of service). The other prisoner who was executed on 7 August was served with a seven day notice. If this is true, what is the practice of the prison authority? What is the reason for giving one prisoner more time than the other? For any healthy person, two days of life is nothing. But for a death row prisoner, two days are extremely precious.

Mr Moad Fadzir was not the only prisoner who was executed just a few hours after delivery of judgement. I remember that Mr Kho Jabing was led out of the Court of Appeal and sent back to Changi Prison to be executed shortly after. Would it have been more humane to give the prisoner more time to prepare for his death? Or must the execution order signed by our president be complied at all costs?

POST APPEAL APPLICATIONS

The courts have to deal with many review/appeal applications from death row prisoners in recent years. Apparently, there are about 50 death row prisoners today and the majority are convicted for drug trafficking. It is understandable that these prisoners want to live. It is natural that they would file applications to the courts with the hope that their death sentences would be commuted to life. I can appreciate the frustrations of judges in having to spend time reviewing these post appeal applications which may not have merits.

Some years ago, lawyers were hit hard with harsh words from the bench and imposition of costs for filing applications without merits. That may have discouraged lawyers from representing death row prisoners today. The prisoners were thus compelled to seek help from family members as had happened in the case of Nagaenthran Dharmalingam. His mother had to argue his appeal in the Court of Appeal. Imagine how intimidated she felt before a bench of imposing robed judges.

I understand that most of the post appeal applications are filed and argued by the prisoners themselves while the attorney-general is represented by a team of qualified lawyers. This is not an ideal state of affairs and a better solution is needed.

I am sure our judges take no pride or joy in sending prisoners to the gallows. Similarly, I do not think the prison authority is happy to execute prisoners.

Every prisoner desires to live. Even an ant wants to live. It is to be expected that death row prisoners will seize every opportunity to file applications with the hope of having their death sentences commuted to life. Perhaps, the only and best solution to end this unsatisfactory state is to abolish the death penalty.

THE DEATH PENALTY IS NOT A DETERRENCE

I urge the government to impose another moratorium to examine if the death penalty is effective as a deterrence. The fact that despite the use of the death penalty for 49 years now, it has not succeeded in eradicating drug trafficking shows that it is not an effective deterrence. Furthermore, how many big-time traffickers have been caught and hanged? I suspect that most so called "drug traffickers" executed were caught with less than 40gms of diamorphine. They may just be drug addicts who bought more to sell in order to pay for their addiction. But they are caught because the law imposed a quantity that they have exceeded. Executing them is not a solution. They need medical treatment and counselling. The two prisoners who were hanged before National Day were convicted of trafficking 36.93gms and 35.85gms of diamorphine.

The death penalty is a cruel and inhuman punishment. It is pre-meditated murder made legal by our laws. Most countries in the world have already abolished the death penalty. Malaysia abolished mandatory death penalty last year.

MISUSE OF DRUGS ACT

Singapore’s enactment of the Misuse of Drugs Act and its use of the death penalty needs to be reviewed.

In 1973 when the Misuse of Drugs Act was passed, the Minister for Home Affairs, Mr Chua Sian Chin did not impose the death penalty for trafficking of morphine and diamorphine (heroine) when other countries, including Malaysia, Thailand, Philippines, Burma, Egypt, Nigeria, Turkey and Iran did so. But two years later, in 1975, he changed his mind. He claimed that there was a spike in the number of people taking heroine. Without analysing the statistics or observing the trend of addiction over a period of time, he concluded that drug addiction has become a “dangerous national security problem”. He told parliament which then comprised solely of PAP members that Vietnamese soldiers lost the war because they were addicted to drugs. I think he was naïve and blinded by American propaganda. He had completely ignored the fact that Ho Chi Minh and his People’s Army had fought a long war of liberation and finally succeeded in 1975 in getting rid of the America supported President Ngo Dinh Diem. Reading Hansard on the manner in which the death penalty was introduced for drug cases, I was shocked. Only a handful of PAP members spoke in support and no alternative opinions were offered. The statistics disclosed by the minister were accepted as gospel truth without any question asked or analysis made.

In subsequent years, the death penalty was extended to trafficking, importing, exporting and manufacture of cannabis, methamphetamine, opium and cocaine.

In 2011, a moratorium on the death penalty was imposed pending a comprehensive study of the death penalty. The law was amended to enable the attorney-general to issue certificates of cooperation which resulted in some prisoners being sentenced to long prison terms and caning.

It is time to have another look at the effectiveness or ineffectiveness of the death penalty. Singapore has been too quick in following other countries in imposing the death penalty for drug offences in the past. There is an urgent need to review the death penalty instead of enacting more and more laws and rules to stop prisoners from filing post appeal applications.