Don’t know the difference between mandatory and discretionary? Someone must (or may) die...

It is an old adage that lawyers are cunning with words. From this adage perhaps an attitude has been formed where the laymen leave the technical legal jargon solely to the lawyers, only browsing through it when they themselves have a problem with the law. To some extent, the complicated drafting of laws render this outcome inevitable, as legal training is needed to comprehend certain complex provisions. However, there is a fear that the complexity in legal provisions have produced an attitude where people do not bother enough with the content of the law.

For the purposes of this blog, I refer to a comment by MP of Singapore Pritam Singh. Singh in his Speech on the Misuse of Drugs Amendment Bill> referred to TheOnlineCitizen poll conducted sometime in 2011 which indicated that many Singaporeans did not know the difference between the application of a discretionary death penalty versus the mandatory death penalty. This is worrying for two reasons. Firstly, the results of the survey will be unrepresentative of public opinion. Secondly, one’s opinion in a survey in factored in in policy decision-making regardless of how informed that view is.

It should also be caveat-ed before we proceed that the comments in this blog apply generally to all jurisdictions rather than solely Singaporean, as it critiques the electorate’s attitude towards law rather that the content of law itself. Thus, though primarily Singaporean examples will be used, the concern should be equally shared by members of the electorate from all jurisdictions.

To some, the terms “mandatory” and “discretionary” are complex legal jargons while to others they may be everyday phrases. I shall define these terms in a (hopefully) layman-friendly manner for the purposes of this blogpost, without any intention to patronize anyone who finds the definitions obvious, at the same time not wanting to assume knowledge too far.

Definitions

Mandatory in the legal sense is close to its ordinary sense; mandatory means “must”. If the sentence for a crime is prescribed as a mandatory death sentence, the person must be punished by death, except in the rare cases where the convicted criminal is granted royal/ executive pardon such as Presidential Clemency in Singapore, Royal Pardon by the Governor of the State or the Yang di-Pertuan Agong in Malaysia, or the royal prerogative of mercy in the UK. In Singapore, only 7 clemencies were granted, 2 in the term of President Benjamin Sheares, 3 in President Wee Kim Wee’s, and one under President Ong Teng Cheong. Apart from these rare interventions, the criminal must be put to death.

Similarly, the legal sense of “discretionary” is also close to its ordinary sense. In practice, this means that the judges are given some ‘elbow-room’ to consider any mitigating circumstances that reduce the severity of punishment. In other words, the death penalty is an upper ceiling, which may but will not always be imposed.

Is it worth the trouble to draw a distinction between the terms “mandatory” and “discretionary” with respect to the death penalty. One is not being unnecessarily pedantic. The nuance is needed because of the daunting prospect that ignorance may lead to death, using ignorance as a high-speed motorway.

The state’s misuse of unqualified meaning

In a survey conducted by the National University of Singapore in 2018, 71.9% supported the death penalty “in general” (Table 2.7). However, when the results were organised into mandatory and discretionary types (for the 3 capital offences listed in the survey and all 3 added up), the divide into mandatory or discretionary was split almost evenly (Table 3.1). This is evidence that the distinguishing of both terms would produce different results, one more specific than the other.

Failure to distinguish as such is very concerning as it creates opportunities for cunning individuals to take advantage of that ignorance. Surveys are a means of participatory democracy, hearing the voice of a fraction of the electorate. However, it is questionable whether the lack of awareness of the nuance that leads to ignorance amounts to a true expression of the will of that fraction of the electorate. Going further, does that render their survey choice vitiated? Some cunningly tactful individual in the government may rely on the lack of nuance to further their agenda under the guise of being supported by public opinion.

This is aggravated by the practice at which surveys are done, where one quickly skims through and selects the questions simply to aid an acquaintance or to quickly dismiss the overeager canvasser.

Thus, you might want to think twice before giving your answer on a survey, either by returning a question to the questioner as to the full extent of unqualified meaning, or outright refusing to participate in the survey if you feel your views may be misused. A single expression of public opinion may produce ripples (and surely the spirit of democracy welcomes this). But it is a daunting prospect when this ripples lead to the irreversible whirlpool that is the mandatory death penalty.

The constitutional implications of unqualified meaning

Additionally, when we are ignorant of the difference between mandatory and discretionary, we automatically fail to appreciate the constitutional implications that come along with it. A mandatory death penalty by definition ousts any judicial discretion. This has implications on the traditional Diceyan separation of powers, as Pritam Singh pointed out. This is because the judiciary must defer to legislation, drafted in theory by parliament but in political reality by the government, when legislation prescribes a mandatory death penalty. In effect, the judge’s role is relegated to the administrative. This is opposed to room for consideration of mitigating factors, as mentioned above.

While one mostly agrees with Singh, it may however be an exaggeration to say:

“[O]ur judges are straight-jacketed from exercising the powers they have been vested – to be impartial decision makers in the pursuit of justice, with the power to hear all sides of the case.”

This is because they may “hear all sides” in the course of the trial to determine whether the defendant was guilty, more so since Singapore abolished jury trials in 1969. It is likely that Singh was aware of this, and one merely includes this caveat to avoid presenting his argument as a sweeping claim. In this sense, the judges constitutional role as experts on law applying law is preserved. Yet, it is not an overstatement to say that judicial intervention to some degree has been prevented.

At this juncture it might be asked, why should I bother with matters of constitutional relations? The answer is simply because you already have. Presuming you have answered a survey which does not allow you to express a difference in “mandatory” or “discretionary” terminologies, even then the government may still make a plausible argument to parliament that they have the consent of the electorate (whether out of good or ill intention). They can then use this to alter constitutional relations and further their own agenda. After all, they have your stamp of approval. The will of the electorate triumphs over the rules and conventions of constitutional relations (as it should in a democracy truly run by the will of the electorate). But since the expression of that will is not completely informed - it may not truly be an expression of that will as mentioned above - , it may be misused.

Final remarks

Reaching the end, I must state out some assumptions. One core one is that this writer assumes the survey accurately represents the public opinion. Another is that the government will be influenced by said public opinion. This need not be the case. A further clarification must be made that this blog is not expressing one’s legal nor moral views of death penalty nor one’s view of government involvement in the matter. Rather, it simply acts as a nudge for people to think and reflect before expressing one’s opinion on a political matter, more so for controversial ones such as the death penalty. The ideals of democracy are such that one’s voice be heard, and it must be questioned whether an uninformed voice is truly one’s own.

This blog post is not intended to attack the views and character of the Singaporean people, but simply acts as a gentle nudge for better survey answering practices. This blog post must also be sufficiently self-aware and not hypocritical, seeing Roger Hood for the Oxford Centre of Criminology’s report that only a shocking 8% of the Malaysian sample were “very concerned” about the issue of death penalty and only 41% knew that the death penalty is mandatory for all three types of crimes mentioned in the survey (Murder, Drug trafficking, Firearm offences). We need to dispel the myth that only criminal lawyers need to know these things when it comes to literally matters of life and death.

This writer is hugely indebted to Edward Lee for his contribution of ideas and for editing the final draft and to Nathanael Chuah for his prompting of the blog in the first place as well as his contribution of ideas.