A former senior district judge has called for guidelines on how judges should use their discretion to decide if a capital offender should hang or get a life term.
At issue is whether such discretion will lead to inconsistency in sentencing, said Dr S. Chandra Mohan, now a Singapore Management University law don.
He raised these points in an article titled The Death Penalty and the Desirability of Judicial Discretion, in the current issue of the Law Society's Law Gazette.
His comments about granting judges complete discretion to impose death or life sentences for certain murder offences comes at a time when the new provisions passed by Parliament last year could be tested in a murder case for the first time.
The sentence of death row inmate Kamrul Hasan Abdul Kudus, convicted of killing a 25-year-old maid, is set to be reviewed by the Court of Appeal in light of the new provisions. A pre-trial conference is due next month.
It is understood that the apex court could use the case to indicate how the new discretion is to be used by the courts in general.
Under the new laws, the mandatory death penalty is retained for intentional murder. But for three other forms of murder, the judge can impose a life term and caning instead.
"The real question that will plague our judges is how is consistency in sentencing murder cases to be maintained? What type of murders... qualify more readily for the death penalty?" Dr Mohan wrote in the article jointly authored by SMU law student Priscilla Chia.
He raised the prospect that the life term could even be seen as a "default sentence" for murder.
For example, it could end up being viewed in a similar way to kidnapping. In a 1974 case, the Appeal Court made clear kidnappers would get the death penalty only in cases where their conduct outraged the community's feelings.
"It follows from this reasoning the default position in murder cases other than (for intentional murder) is a life term," he said.
Some nations have tried to minimise the prospects of inconsistency by formulating statutory guidelines or guidelines developed by the judiciary, the authors noted.
"It may now fall on the Chief Justice or the Council of Judges to lay down some general guidelines as to when the death penalty ought to be imposed until further clarification from the Court of Appeal," wrote the authors.
The list should contain common aggravating and mitigating factors, as is the practice in countries such as the US, they added.
Law Minister K. Shanmugam indicated in Parliament last July that factors should include the need for deterrence, the manner in which the offence was committed and the personal culpability of the accused.
The authors added: "Broad sentencing guidelines in murder cases will make the sentencing process in such cases more objective, rational and transparent. Only then can the newfound judicial discretion in murder cases truly represent the better part of valour."