Tanah Merah Prison, 2009, Singapore. Wong Maye-E/AP/Press Association Images. All rights reserved.When one advocates for the abolishment of the death penalty, any perceived retreat from capital punishment can seem like a victory. Any change that allows for lives to be saved from the execution chamber is a positive one. But there are times when the shifts made are not only inadequate, but throw up more questions and problems to be resolved. 

In November 2012, the Parliament of Singapore made amendments to the mandatory death penalty regime. Before then, the death penalty for drug trafficking was completely mandatory; an individual found guilty of trafficking under the Misuse of Drugs Act could only be put to death, with the judge unable to consider any mitigating circumstances. 

The amendments allow for a tiny bit of leeway: if the offender is merely a courier, and has offered “substantive cooperation” to the authorities, the judge has a choice between the death penalty and life imprisonment with caning.

The almost-immediate impact of these amendments was that Yong Vui Kong, a young Malaysian man convicted of trafficking a little over 40 grams of heroin, was saved. The campaign for his life had been sustained and high-profile in both Singapore and Malaysia; for those of us who had put in time and energy, knowing that Vui Kong would not hang was a huge relief, and validation of all our efforts. 

But our celebrations could only go so far. Apart from the application of judicial corporal punishment (on top of life imprisonment) that replaced Vui Kong’s death sentence, our continued work on the death penalty has revealed many more causes for concern triggered by these amendments.

Speaking at a high-level side event at the United Nations’ General Assembly on 21 September, Singapore’s Minister for Foreign Affairs Vivian Balakrishnan defended the city-state’s use of the death penalty.

“[The death penalty] is applied only and strictly in the context of an unwavering commitment to the rule of law. In fact, you could argue that a prerequisite is an unwavering commitment to the rule of law, resting on a strong and independent judiciary,” he said. “There must be fair and transparent laws and due process… Capital punishment is carried out only after due judicial process and in accordance with the law.”

It’s true that the death penalty in Singapore is administered in accordance with the law. But my experience following capital cases and working with the families of death row inmates has shown me that working in accordance with the law does not fully address issues with the death penalty regime, because it is the legislation itself that is problematic.

The reality is different.

When the amendments were first made, there were many who saw it as an end to the mandatory death penalty. The reality is different: we still have the mandatory death penalty, only there’s now a little wriggle room for judges to exercise a very limited discretion – choosing between death and life with caning – in a very narrow set of circumstances. The judiciary might be strong and independent, but it still doesn’t get to exercise full discretion when it comes to the death penalty for drug trafficking.

Where the discretion really lies is with the prosecution, because it’s the prosecution that chooses whether or not to issue a Certificate of Cooperation. A refusal to issue this certificate, to indicate that the individual had “substantively” cooperated with the authorities, means that the judge will still have no discretion in sentencing, even if it was established that the individual was merely a courier or a mule.

Although the minister himself emphasised the need for “fair and transparent laws and due process”, the process behind the issuing of a Certificate of Cooperation remains opaque and lacks accountability. There is little clarity and understanding of how the prosecution makes the decision on whether or not to issue such a certificate; in the case of Cheong Chun Yin, the prosecution had initially denied him the certificate, then abruptly changed its mind. What changed? We don’t know. 

It’s also possible for two co-accused persons to receive differentiated treatment even if both provided what information they had to the authorities, as in the case of Muhammad Ridzuan bin Mohd Ali and Abdul Haleem bin Abdul Karim. Abdul Haleem was granted a certificate and was therefore able to escape the gallows, but Ridzuan is still on death row today. What caused the prosecution to decide to grant one a certificate and not the other? We don’t know.

The prosecution’s decision whether or not to grant a certificate is not subject to judicial review unless one can prove malice or bad faith. It’s a very high bar that perpetuates the lack of clarity in relation to this serious issue of life and death. 

The very logic of such a system is untenable.

But one can go even beyond that and argue, as I do, that the very logic of such a system is untenable. As it stands, Singapore’s death penalty for drugs means that any low-level courier or drug mule convicted of trafficking above a certain amount is bound for the gallows, unless he/she is of use to the prosecution. It’s a philosophy that sees an individual’s right to life not as a fundamental right, but as a privilege that can be taken away unless the authorities are appeased – hardly a reflection of minister Balakrishnan’s claim that “all human life is sacred”, or that the death penalty is used only “in the proper context and in strictly limited circumstances”.

In this latest addition to the long list of retentionist speeches given by various members of Singapore’s government, the foreign affairs minister outlined lofty ideals, such as the sanctity of life, and crucial requirements, such as fairness and transparency in the administration of justice. These are certainly important values for societies around the world to uphold, but the systemic application of the death penalty in Singapore consistently falls short.

This article is published as part of an editorial partnership between openDemocracy and CELS, an Argentine human rights organisation with a broad agenda that includes advocating for drug policies respectful of human rights. The partnership coincides with the United Nations General Assembly Special Session (UNGASS) on drugs.