Forum/Debate on The Death Penalty (27th August)

"The Singapore Anti Death Penalty Campaign is organising a debate and forum on the death penalty in solidarity with Tochi and Malachy."

Someone's summary of the story:

"Basically, Tochi (18 years of age when arrested in 2004), a professional footballer from Nigera, wanted to play for a club in Dubai (after playing in some African Cups), but ended up being stranded in Pakistan, seeking shelter at a Catholic church. He met a Mr. Smith, who asked him to transport some herbs for him to a friend in Singapore in return for some money. We know what happened in the end. The mandatory death sentence takes the decision out of the judge's hands and imposes it across the board even on cases such as this where the charged was being used. Against Tochi, trial judge Mr Kan Ting Chiu made the following finding at paragraph 42 of his judgement [2005] SGHC 233: "There was no direct evidence that he knew that capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out of his own." I direct you to the response from CJ Yong when asked whether an innocent man can be hanged due to legal procedure in the case of Vignes Mourthi - "Yes; the answer is yes.""


I guess this will show these Nigerians. Our strong stance on drugs will make the next one think twice. Guess we showed them huh? This story will be reported in every village by the town crier and all these illiterate country bumpkins who have never heard of Singapore (or drugs, for that matter) will know not to Blight our fair Island!

If someone's mother is kidnapped and the drug lords threaten to execute her if that someone doesn't deliver drugs through/to Singapore for them, and that someone is caught - will he get the death penalty? I hope he does - he cannot be so selfish to ruin the lives of so many people who take the drugs of their own free will and get thrown in jail (or drug rehab, which frequently is the same thing) for the crime of harming themselves just to save his mother (who is, after all, just one person). After all, we can see that our tough stance on drugs has solved our drug problem totally. Meanwhile a bleeding heart liberal state like the Netherlands, despite having the lowest figure for drug-related deaths in Europe (2.4 per million inhabitants), continues allowing its people to suffer the depredations of drug abuse, even - gasp - providing people drugs on taxpayer money.

[Addendum: Duress a.k.a. "Act to which a person is compelled by threats", s. 94 of the Penal Code, doesn't work if the threat is to third parties and the act in question must not be a capital one. The threat must be to the self-same person accused of the act in question and there must be the reasonable apprehension of immediate death (and I do mean immediate). Thus, a threat against a person's mother i.e. not reasonable apprehension of death to self, for the purposes of trafficking drugs i.e. a capital offence, does not meet the necessary elements of the defence.]


Addendum - A disturbing conversation:

Me: If someone's mother is kidnapped and the drug lords threaten to execute her if that someone doesn't deliver drugs through/to Singapore for them, and that someone is caught - will he get the death penalty? I hope he does - he cannot be so selfish to ruin the lives of so many people who take drugs of their own free will just to save his mother (who is, after all, just one person).

Ketsugi: Are you asking me as a person or me as a legal philosopher?

Actually, wait
My answer is the same as both

Yes, he should get the death penalty
The law is the law and the law is not lightly mocked.
(regardless of whether the law is good or not; that's a different matter)

If this person gives in to the demands and commits a crime for whatever reason, he should be prepared to face the proper consequences for that crime

In this case, he'd have to decide if his life is worth throwing away to save his mother's
Of course, I'd ask why he doesn't go through the proper legal channels instead and leave it to the police to handle the situation?

Me: you think rescuing hostages so easy ah
and you think they don't monitor them so if they go to the police their mother dies?
even singapore isn't that efficient

Ketsugi: All I'm saying is, I don't think there's any excuse to commit a crime

Me: hoho

Ketsugi: And if there was, if you felt for whatever reason that you really had to commit this crime, then you should not for any reason also think that you should be allowed to get away with it

Maybe the court^H^H^H^H^Hjudge will be lenient and let you off with a lighter sentence
but the person should not *expect* that to happen

He should expect to be punished to the full extent of the law, and assume that that will be the price that he has to pay

Me: well, I'm sorry that you feel that way

Ketsugi: yeah, my girlfriend (who's a law student) isn't entirely too comfortable with how I feel about the law either

Honestly, even I don't really like it sometimes
But I really think that's how it has to be

Law is there for a reason, and that is: to be obeyed

Me: no it's not
but the injustice is equally obvious

Ketsugi: Yes, but since when did law have anything to do with justice?

Me: so you worship the law above justice?

Ketsugi: Law is a feeble attempt to maintain justice

Me: [VALJEAN]
I stole a loaf of bread.

[JAVERT]
You robbed a house.

[VALJEAN]
I broke a window pane.
My sister's child was close to death
And we were starving.

[JAVERT]
You will starve again
Unless you learn the meaning of the law.

[VALJEAN]
I know the meaning of those 19 years
A slave of the law

Ketsugi: I wouldn't say I worship the law. I'd say that I see the law as an imperfect way to achieve justice. But if you don't see the law as being absolute, then you'll never even come close to achieving justice.

If a law is unjust, then it should be repealed, but through proper legal channels

Me: laws serve men
not men laws

Ketsugi: Aye, but no law will serve all men

There will always be people who find that the law, for them, and under specific and usually unfortunate circumstances, does not serve them

Me: So you support the laws in China where you can be executed by firing squad for vague counter-revolutionary activities?

Ketsugi: No, I don't think those are good laws. But I believe the laws should be obeyed as long as you're subject to them.

If I found myself living in a place where the laws are grossly unfavourable to me, I'd leave.
Either that, or I'd try to change the laws, insofar as that is possible.

Me: If you were a guard in a Nazi concentration camp, would you obey the orders of the commandant to murder the prisoners?

Ketsugi: If I were a guard, willingly serving with the knowledge of all that that service entails, I would.

Me: that wouldn't save you at the Nuremberg trials

Ketsugi: If I were forced into that position, and found myself in this position against my will, then I would find some way out.

Gabriel, that's also my point
I would be convicted of war crimes or whatever it is, and I would expect to be
That international law also must be obeyed
I should not expect to escape those laws simply because I was "just following orders"

Me: but it's under German law
and there wasn't a solid concept of International Law in the 40s

Ketsugi: The question is, which laws supercede which?

I'm not big on history, but if that's the case, then I would question the validity of the Nuremberg Trials
How can you charge a person under a law to which he is not subject?

Note that I'm by no means taking a pro-Nazi stance here, btw

Me: no
you're just worshipping the law

Ketsugi: Hardly
There are laws which I believe to be unjust or pointless, and which I may or may not obey

To take a simple everyday example, I frequently jaywalk when I know it's safe to do so
Does that mean I'm not committing a traffic violation? No. If I'm caught, as I surely one day will be, I'd expect to take whatever punishment is appropriate

I also frequently pirate music and movies. I've been caught once and I paid a fine for it.

Me: Would you mind being jailed for unnatural sex?

Ketsugi: Well, of course I would mind! But again, if I were having unnatural sex, and got caught for it, and I am fully aware of the possible consequences of that, I have no right to complain

Me: this is ridiculous.
For all our sakes I hope you never get into a position like a Nazi concentration camp guard

Ketsugi: I was an MP in the detention barracks during NS...

In any case, what's your stance? That we should pick and choose what laws we obey based on our own judgment?
What's the point of even having law, if that's the case?

Me: I think obviously unjust laws should not - nay, cannot - be obeyed
like if the law says I should kill any Jew I see on the street I won't obey it

of course people can just do that to whatever laws they disagree with
but law is never an absolute thing
it also changes

Ketsugi: Okay, but then how do you define "obviously unjust"?
What's obviously unjust to you might not be obviously unjust to someone else

In the event of a conflict of opinions, whose should the courts take?

You may think it's obviously unjust to hang a drug offender; the mother of a drug addict may think it's obviously just.
Who decides who is right?

Me: A reasonable man would say it's definitely unjust to hang someone whose mother is being held hostage on pain of death

would you kill Jews on the street, btw?
assuming International Law doesn't exist

Ketsugi: So, if I held a gun to your head and told you to kill the next Jew who passed you on the street...

No, I wouldn't

Me: but that's against the law
not to kill Jews

and don't give me some fudge like "God's law"

Ketsugi: Here is my answer, which is the same as what I've been saying all along: I would not kill Jews, because I would believe that law to be a bad law. I would also expect that if I were caught not killing Jews, I would be arrested, and punished for my crime.

Me: and you would not protest

Ketsugi: I would protest the law, not the punishment
I think

I mean, both are equally bad
but
The law is the thing I have issue with. The punishment I willingly invoked by not obeying the law

I knew what I was getting myself into when I decided to break the law, so what right have I to complain, after the fact?

Me: err
protesting the law includes protesting the punishment
you're conflating the issues here
People who protest the punishment (in your view) are also protesting the law

people complain because the punishment is ridiculous
and so is the law

Ketsugi: Yes, but the people who have the right to complain about the punishment are the ones who have not invoked the punishment by breaking the law

As a non-drug dealer, I can protest the drug laws and related punishments
If you're a convicted drug dealer, you can't protest them (unless you were completely unaware of them beforehand)

Me: ???
what does your not being a drug dealer have to do with anything?!

Ketsugi: It means that I'm protesting the law truly because it is unjust and that it needs to be repealed, not simply because I'm trying to save my own skin

Me: err
an opinion stands on its merits regardless of who articulates it

Ketsugi: Not really
That's a far too idealistic view

Me: no
your view is illogical

you can question someone's motives in articulating an argument
but that doesn't affect the argument itself
I can't remember the name of the fallacy

(Cut and Paste from: SoYouWanna avoid common logical errors? - Ignore the identity of the arguer)

Ketsugi: If I, who have never before taken drugs, and who openly declares the ills of drug abuse, were to come out and say that these drug laws are too harsh, I would be taken far more seriously than the convicted drug addict who says the same thing. You can claim ad hominem all you like, but this is how people will think.

Me: people are stupid

Ketsugi: Yes, but guess who's making laws?

Me: so if stupid people make laws why should I not complain about them?
and law makers are less stupid than the hoi polloi

Ketsugi: I never said you should not complain about them, I'm saying you shouldn't complain about them AFTER you've already broken them

does "hoi polloi" include you and me here?

Me: so if stupid people make laws why should I not complain about them after I've broken them?
and if I complain before breaking them am I disqualified from complaining post-hocc?

Ketsugi: You can if you want to, but I wouldn't because I'd see myself as having given up the right to complain
By choosing to break the law, knowing what the consequences would be, I've accepted those consequences for myself

Me: ???
you can complain before but not after?
you're making no sense here

anyway the footballer didn't know before agreeing

Ketsugi: Yes, but that's not the example we started out talking about :P
The footballer is an entirely different case

Me: ignorance is not an excuse in any jurisdiction you know

Ketsugi: I think he *should* be acquitted on grounds of ignorance, if his ignorance can be proved beyond reasonable doubt

Ignorance of the law? Or ignorance of breaking the law?

Me: the law dont work that way
esp not here

Ketsugi: Well, that's ridiculous, as are many other things in Singaporean law
The more I learn about Singapore law and policy, the more I want to get out of here as soon as I can

Me: and your view

Ketsugi: My view isn't as ridiculous as you think. It's just that you think differently.
You know, I used to think that I was really good at the "I'm right and everybody else is wrong" school of thought, but I think you've trumped me at that.

Me: go talk to legal philosophers
they would disagree with you, I think
as would most people I know

Ketsugi: Yes, but we've already established that people are stupid, so what's the point of that?

Me: so we're all stupid and we can't conclude anything

do you think women who dress skimpily have no right to complain about being raped?

Ketsugi: Women who dress skimpily have no right to complain about getting ogled, wolf-whistled or cat-called at. A man who commits rape or even molest has no right to claim any kind of excuse for his crime.

Me: yes
but if a woman is aware of the consequences and chooses to accept them...

Ketsugi: Dressing skimpily is not a crime, btw, so your new example does not match what we've been discussing so far

Rape is not a logical consequence of dressing skimpily!

Me: no but it's a consequence of your actions
ok so it's established that you're exalting the legal system

(logical consequence? haha. You can claim it's not a crime all you like, but this is how people will think.)

Ketsugi: The legal system, perhaps. Not necessarily the laws themselves, though.

Me: Usually people warn that the ends do not justify the means
In your case, the means seem to justify the ends

Ketsugi: For the purposes of these examples, I don't care what people think; l care only what the law says.

The law says rape is a crime, and it does not say that dressing skimpily is.
In any case, rape is not a legal consequence of skimpy dressing
which is what we've been talking about so far

Me: but you said the identity of the speaker matters because that's what people will think

Ketsugi: We're talking about things that are lawful, which may not be just
That was in reference to raising protest, not in defining what is law

Me: ok IF rape was a consequence of skimpy dressing
or, say, skimpy dressing and going into some seedy area

Ketsugi: A legal consequence?

Me: right.

Ketsugi: By which your example becomes: the law says that if you dress skimpily in certain areas (assuming that "dress skimpily" and "certain areas" are properly defined), then the court is allowed to administer rape as a legal punishment.

Me: so it's not "you knew you had it coming"
but "you knew you had it coming, and it was in the law"

Ketsugi: Then it's the most ridiculous law I've ever heard of, but it's the LAW. You know it's the law, and you know it's going to happen, and you do it anyway.

That's like putting your hand in a fire and then complaining that you got burnt.

Me: so you disagree with civil disobedience

a fire is amoral
the law is supposed to uphold justice

Ketsugi: "supposed"
I've already said that the law is incapable of upholding justice
or rather, upholding justice completely

Me: so when the law is plainly injust, we obey it anyway? or move (as if that were possible for most people)

Ketsugi: As I said, there are three choices: suck it up and obey the law, migrate, or act to have the law changed

Me: what if having the law changed is illegal?

Ketsugi: If THAT is the case, then the entire legal system is corrupt and flawed
Because no legal system should consider itself so infallible as to never require amendment
The legal system itself would be operating under a flawed premise

Me: but then we come back to the question: corrupt and flawed according to who?
what if most people believe they're ruled by a God-King who has the Mandate of Heaven and can do anything he likes, and the other third of the country disagrees?

the legal system itself does not have the premise that you can't complain about an unjust punishment, btw, IIRC

Ketsugi: No, I don't believe it does... that is my personal view, not a law
Yeah, we're really going round in circles today

Me: bah
we're going in circles
nvm


Opinions by people who actually get graded for studying this shit:

A: first of, what is the law

there are 2 school of thoughts but both agree that law is something that is accepted by the norm and is if the law is accepted by the norm, it is to be carried out equally across the board

it is the duty that the information be accessible such that the law is available
ur not knowing the law is no excuse because it is accessible to everybody

and once you commit an offence, you are to be punished accordingly otherwise the law loses its integrity and power
making it in effective

i agree with the "you should either migrate, suck it up or try to change the law"

Me: so if you refuse to kill Jews and get punished you have no cause for complaint?

A: yepz


B: bah
wth is that
so convoluted!!!

Me: that from a lawyer
haha

B: exactly!!! i'm stuffing myself with enough convoluted stuff already... don't need you to add to it
summarise for me lar

Me: let me summarise then:
he says you have no right to complain about a law if you get punished
this is even if it's a stupid law like unnatural sex
or a plainly unjust one like "kill jews"
you should either migrate, suck it up or try to change the law

and that if you get whacked by a law you have no right to complain
because it'd be self-interested complaints

B: he takes a positivist view then
you take a naturalist view i suppose
no right or wrong answer IMO.

we are free to subscribe to any view. nearly all points on this positivist v naturalist topic remain fiercely debated, strongly contended today

personally i am a naturalist. like yourself

Me: ok
he's an extreme positivist

B: yes. no doubt there are few like him left in the world today
most people stand in the middle

i lean towards natural justice.
i will not support a law that is unfair... that's why i am against strict liaibility offences, among other things


C: this seems to have nothing to do with legal philosopy
"i would protest the law but not the punishment" is just sophistry

"right to complain" = ?

anyway i find the whole discussion a bit difficult to follow because i have like infinite tolerance for whining (speaking metaphorically of course) so the question of when someone has "the right to complain" is very difficult for me to consider

i'm more interested in the substance of what people have to say than whether as a result of their position they have a "right" to say it
so i think the whole conversaiton is a bit bizarre

i suppose by this logic by default i agree with you rather than him

what does not having the right to complain entail/
as in, should you shut up about unjust laws?

isn't the answer to that manifestly no? is it even worth discussing?
what purposes are served by shutting up?

in singapore you can't even say "deference to democratic will" because the laws aren't even tenuously an expression of democratic will
and anyway "complaining" is part of the democratic process

i find singaporeans are more obsessed than most with when people "should" complain and when they shouldn't, on the basis of some weird abstract ideas rather than specific concrete situations - it's very hard to comprehend

Me: I should never expect a simple answer from you

C: well you ask me weird questions
it would be like someone asking you quesitons that presupposed the validity of various christian doctrines

you'd find it hard to answer "yes" or "no" without explaining how you found the doctrines framing the question inadequate to begin with

Me: :P

C: i think your firend is wrong re positivism
­as in i don't really think your conv has much to do with positivism/mnatural law

positivists would tell you their doctrine has no moral implicatiosn relating to obedience
­
well it depends on the positivist in question
­the positivist who taught me who absolutely deny that the positivist position has anythingf to do with obeying unjust laws


Addendum:

D (who doesn't get graded for studying this shit):

I have just read your long post on your conversation with that kusugi or whatever guy on judicially murdering drug traffickers.

In fact, K is confusing a great number of issues.

Firstly, duress, which is what the original crux of your argument was. Indeed, here we must address an even more basic point: that the argument is not about the merits or demerits of certain laws, but whether once these laws are in place, they should be followed to the letter. (Both you and K agreed that the objective value/justice of those laws qua laws is another debate).

So, in this case the argument is really about whether someone who was under great duress, but not covered under the current Sg legal definition of duress as a partial defence, should be granted clemency. The answer is most probably yes. K advances a usual Singaporean argument against this, namely that the law must be applied without special privilege for anyone. This rabid adherence to the universality of law reminds one of the worst excesses of the Terror/French Revolution. Indeed, it was only with the Enlightenment that people thought that the law should apply equally to all, for reasons for fairness. But this doctrine should not be taken to a ludicrous extreme, for it would defeat the original purpose of the doctrine, fairness.

More importantly, to grant someone clemency based on her special circumstances is neither to privilege that person nor does it destroy the certainty of the law. The first is because the point of privilege is that it must be privilege based on an irrelevant reason, such as class, wealth, looks, etc. Duress is most certainly a relevant reason. Indeed one might say that what is to be avoided is creating a *class* of privileged persons, not actually granting clemency to specific individuals in specific circumstances. The latter because there is a difference between verdict and sentence. One can convict a drug trafficker of a crime -- showing that a crime has indeed been committed -- but give a light sentence based on the circumstances. This is in fact routinely done in civilised countries. There was a case for example in Britain where a 70 year old was convicted of repeatedly possessing pot (by growing in her own yard and cooking? for supposedly medicinal purposes) but given a suspended sentence. The classic case is (but I forgot the name) this one where there was a shipwreck and there were three survivors. One of the survivors was a young teenage boy, who was already very weakened. The other two survivors, out of hunger, killed him and ate him. On their being rescued they were charged with murder (at that time in England a capital offence). They were duly convicted (and rightly so) but were given extremely light circumstances in view of the extreme duress they faced. This surely is reasonable. Basically what I'm saying is that to grant clemency is NOT to excuse a crime, merely to reasonably take into account the circumstances surrounding it.

The debate about killing Jews and Nuremberg etc is an intractable and specialist one which I leave to the lawyers and jurisprudes.