Prosecutorial Discretion and Sentencing in Singapore

Abstract

Singapore recently amended its laws to replace the mandatory death penalty regime for murder and drug trafficking with a discretionary sentencing regime under certain conditions. One of the conditions with respect to drug trafficking was that the convicted trafficker had to be granted a certificate by the Public Prosecutor stating that the trafficker had provided substantive assistance that led to the disruption of drug trafficking activities. The amended law expressly provided that the Public Prosecutor had the sole discretion to determine whether or not to issue the certificate of substantive assistance. That decision is not subject to judicial review except under very narrow circumstances, protected in the same way as the constitutionally protected prosecutorial discretion.

This paper addresses two inter-related questions. Should the grounds for judicial review of prosecutorial discretion – at least with respect to the granting of the certificate of substantive assistance – be broadened to ensure transparency and fairness? Is s33B(4) of the Misuse of Drugs Act (Cap 184, Rev Ed 2008) (‘MDA’) – the provision that protects prosecutorial discretion with respect to the certificate – unconstitutional on the ground that it violates the doctrine of separation of powers by drawing the Public Prosecutor directly into the arena of sentencing? The paper implicitly considers the potential conflict in the role of the Public Prosecutor as an enforcer of the criminal law while at the same time being the guardian of the public interest.

Keywords: criminal justice, public prosecution, prosecutorial discretion, death penalty, separation of powers