By Andrew Loh
The changes to the mandatory death penalty, announced by the Government last week, are welcomed — but with some serious questions for Singaporeans to ponder.
While those convicted of capital crimes, such as murder and drug trafficking, may now have a chance at avoiding mandatory death, the "new" alternative sentences leave some moral questions which we as a society should consider.
In particular, the fate of those with low IQs, or intelligence quotient.
An IQ of between 90 to 110 is considered normal.
The changes announced by Deputy Prime Minister Teo Chee Hean give judges greater leeway in meting out alternative sentences, namely, life in prison with caning.
However, in order to qualify for this sentence, the convict must satisfy two strict conditions:
One, the person must have only played the role of a courier, and not have been involved in any other activity related to drug supply or distribution.
Two, the trafficker must also have co-operated with anti-narcotics authorities in a "substantive" way, or has a mental disability that "substantially impairs" his appreciation of the gravity of the act.
These also apply to persons who are found to be mentally or intellectually sub-normal.
There has been little said about persons in this category, those with low IQs. Several cases in the past and in more recent times have raised moral questions of how far the law should go in prescribing punishments for them.
The 1996 case of Rozman Bin Jusoh is one of the most prominent examples of how even a low IQ person can be sentenced to death, under the mandatory death penalty which does not allow judges sentencing options other than to prescribe death.
The trial judge in Rozman's case, Rubin JC, had observed:
"It was… clear from the evidence that the CNB agent and the undercover CNB officer were more than mere agents, and had, in fact, undertaken a substantially active role in persuading [Rozman] to sell them drugs… [Rozman] was a person without guile and would not have embarked upon this expedition for a mere $100 if not for his feeble mind which seemed to have been overborne by the CNB agent and the CNB operative… There was a grave doubt raised as to whether he could be criminally responsible to warrant the mandatory death sentence, in light of his intellectual disability and the real possibility of being manipulated."
The judge sentenced him to 7 years — but the prosecution appealed. The Court of Appeal ruled that Rozman's sub-normal intellect was not sufficient defence to negate his intent of trafficking, and could only be taken into account to mitigate the sentence.
However, since Rozman was found to be guilty of trafficking above the statutory limit of the drug, the Court could not consider mitigating factors in. The only sentence the Court could give was death, as this was what the law dictates.
Consequently, Rozman's original 7-year sentence was overturned and he was sentenced to death instead.
He was hanged on 12 April 1996.
Rozman had an IQ of 74.
A more recent example is the case of Sundar Arujunan, 44. He was arrested in 2010 for trafficking in some 5.5kg of cannabis, which was way over the statutory limit of 500g which warrants mandatory death.
Subsequently, the High Court sentenced him to 20 years and 15 strokes for each of the two counts he was charged with. However, Singapore law only allows a maximum of 24 strokes of the cane for any one convict. Thus, Arujunan would receive "only" 24 strokes, instead of 30.
A psychiatric evaluation by the Institute of Mental Health had determined that Arujunan had an IQ of 62.
In 2005, Ismil Kadar was arrested and charged for the murder of 69-year old, Mdm Tham Weng Kuen. Kadar was subsequently found guilty of the murder and sentenced to death.
In 2011, after 6 years of persevering work by his legal aid lawyer, the Court of Appeal dismissed the charges, overturned the death sentence, and completely exonerated him of the crime. Kadar was eventually set free from death row soon after.
Kadar was reported to have an IQ of 73.
These 3 cases throws up moral questions of what the appropriate punishments, if that is what is deserved, or whether there should indeed be some other alternative remedies in cases involving people of low IQ.
Is the alternative sentence announced by DPM Teo — life in prison with caning — for low IQ persons an appropriate, and humane, sentence?
This question itself is appropriate, given what Law Minister, K Shanmugam, had said, when explaining the reasons for the changes to the mandatory death penalty.
"This change will ensure that our sentencing framework properly balances the various objectives: justice to the victim, justice to society, justice to the accused, and mercy in appropriate cases," he said.
He added, "Justice can be tempered with mercy and, where appropriate, offenders should be given a second chance."
What does this "second chance" mean, especially for those whom the State itself has determined to have sub-normal intellect?
Is life in prison for them "mercy"?
Is caning them "appropriate"?
These are the questions we have to ask ourselves, especially when we claim to want a more compassionate society.
While the changes to the law to allow judges more sentencing options are a step in the right direction, we should go further in areas where clearly life imprisonment and caning may be too harsh a punishment.
A person with low IQ should be given different sentences.
Certainly, keeping them in prison for life, and getting a pound of flesh off of their skin — literally, perhaps — is no mercy.