Legal changes about 'protecting our society'

Law Minister K. Shanmugam is unfazed by recent applications for judicial reviews, saying it is people's right to do so. He also tells Tham Yuen-C that changes to mandatory death penalty laws will lead to fewer people being sent to the gallows but that is not why it was amended. Rather, it tightens enforcement to better protect against the drug menace, while murder rates are low so Singapore can afford to relax the penalty for some categories.

  

There have been quite a few applications for judicial review recently, such as over Section 377A (criminalising sex between men) and from Faith Community Baptist Church (ordered to compensate a pregnant former employee sacked after committing adultery). How do you feel about people questioning the decisions of the Government?

There have been a few cases. I wouldn't say there have been a lot of cases. The right to apply (for judicial review), where it is fair or where it is properly applied for, is a matter for the courts. People have a right to apply and that has always been a part of our law. You must allow people to apply.

But as a minister, does it affect your work, or the work of the Government?

Doesn't really affect. In Singapore, we take the obligation to make sure the law complies with the Constitution very seriously. In fact, the previous Chief Justice explained that in other countries, say the United Kingdom, you have various districts with many statutory authorities, local councils. And they may not clear all their actions through lawyers, at least in the past. So these actions may be ultra vires (beyond one's legal power or authority) and you might then find some are successfully challenged.

In Singapore, every piece of legislation is first drafted and vetted by the Attorney-General's Chambers (AGC) and run through the Ministry of Law, where independently, we look at it to make sure that it doesn't contravene the Constitution. Legislation also has to be looked at by the Presidential Council for Minority Rights to see whether there are any possible breaches. So every piece of legislation has been first looked at for constitutional compliance.

Separately, actions by ministries, administrative actions can also be judicially reviewed. But usually they will make sure that they have received advice from the AGC's office, and some ministries have lawyers in-house. So the likelihood that a piece of legislation is ultra vires is not very high. We have a careful system of checks and balances.

So as a minister, does it impact me? No. I carry on as per usual as I have always been aware that legislation and action can be challenged, and we have put in a system that seeks to minimise that by making sure that in the first place we don't contravene.

Do you feel that the Government's actions are increasingly being challenged more?

I don't know that I will draw that conclusion. These are rights that people have. 

There is a view that the recent changes to the mandatory death penalty laws effectively mean that the death penalty has been abolished. Was this the intention of the changes?

We're not doing away with the mandatory death penalty, we're doing away with it in two specific situations. We have mandatory death penalty for a variety of other offences still, like firearms offences and drug-trafficking offences (where the person is not a courier). For drug couriers, we have done away with it if they are in a position to help us identify and go after people higher up in the drug distribution hierarchy. So we are trying to refine our laws in a way that we can better enforce them and be more effective. For homicide, the rationale is different. We've got 0.3 homicides per 100,000 population, so we think that given the low rate, we can afford to take the risk.

When the Misuse of Drugs Act was changed to make the death penalty mandatory, one reason was that it would be a strong deterrent. How do the changes gel with this message?

Well, it is not just about getting information, we must be able to disrupt a network, information that is useful for us. So it's likely to be the death penalty unless the person is in a position to give us information that allows us to go after somebody else and net a bigger fish and make the enforcement even more effective.

And overall, the point is still to protect our society. So the question you have to ask is not about the death penalty itself but whether these moves help us protect our society better from the drug menace. And I think it does.

But given that a lot of the death penalty cases in Singapore have to do with drug cases, and those charged with murder are seldom charged with murder with the intention to kill, wouldn't removing the mandatory death penalty effectively remove the death penalty?

Not on drugs, no. A wide variety of drug offences will still attract the mandatory death penalty. But if a lot of couriers are able to give us that assistance and we are able to more effectively dismantle the drug networks, of course that's a good thing.

For homicides, there is a risk because the deterrent effect is less. But I think we can afford to take the risk at this point. Now, as Deputy Prime Minister Teo Chee Hean has said, we will review what happens after we've done this relaxation, to see whether we have taken the right step.

Would you say it's a deliberate move to send fewer people to the gallows in Singapore?

It's not focused on that. No country wants to send anyone to death, right? What you want is a civilised system of criminal justice but which also protects society. We have the death penalty for a variety of reasons. Deterrence is an important reason. The majority of Singaporeans support the death penalty. This is not designed to say, "Oh, we want to send less people or we want to send more people" to (hang). Nobody wants anyone to (get)the death penalty. This is designed to say, look, since homicides have come down so substantially, do we still need the mandatory death penalty as a substantial deterrent for this offence? The answer is probably, we can make this change and then look at what happens.

So it's a calculated risk?

Yes, there will certainly be fewer people who will go to the gallows as a result of these changes but we believe that that's a move that can be made.

Do you see Singapore doing away with the death penalty eventually or are we moving towards it?

I'm in no position to say. In every society, at a point in time, minds change, social mores change, values change. So whether there is the death penalty or there is no death penalty or what kind of laws we have 10, 20, 30 years down the road, is for that society and that leadership to decide.

A good set of leaders who will continuously look at the societal values would look at what the penalty is intended to achieve and ask whether it is still necessary and relevant.

You tell your staff at the Ministry of Foreign Affairs: "If you're not at the table, you could end up being on the menu." Was this borne out in your interactions and dealings at international meetings and with top leaders of other countries?

Yes. We have international conferences and if you are not there to defend yourself, protect your interest, none of the others will have interest in protecting you and they will come up with rules that will not impact on them but may impact on you and it depends on whether they are more powerful than you.

Size is a very big factor in international relations. Even when you are at the table and if you are small and others are big, they can all agree on something that can have an impact on you.

What are some of your more unpleasant experiences as Foreign Minister then?

I wouldn't say unpleasant. It's always the country's interest. What I can say is whether it is Asean, the EAS (East Asia Summit) or a larger grouping, whenever there are discussions on what to do, who's to do it, how should we structure rules, they all have significant implications on us and every country is there looking out for itself.