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Death Penalty, Rule 'by' Law in Singapore

Singapore High Court reserves judgement on judicial review of clemency process

Media reports on the hearing which was held in chambers instead of open court. See also my timeline on Vui Kong’s case here.

High Court reserves judgement on judicial review application
Wong Chun Han, The Online Citizen, 28 July 2010

The Supreme Court reserved judgement Wednesday in a hearing on the pardon process for Malaysian death row convict Yong Vui Kong, who is asking for his execution to be stayed on the grounds that he had been denied a fair clemency process.

The 22-year-old – sentenced to death in 2007 for drug trafficking – was asking the High Court to grant a judicial review on his clemency process, which he claimed had been prejudiced by the actions of a Cabinet minister.

If the High Court finds in Yong’s favour, another hearing will be arranged – allowing the court to review his claims that his clemency process had been tainted.

In Wednesday’s hearing, which was closed to the public, Yong’s lawyer M Ravi presented arguments in an attempt to persuade Justice Steven Chong that his client has valid grounds to file for a judicial review.

Ravi told the judge that public comments made by Law Minister K Shanmugam and his ministry in May had prejudiced his client’s clemency plea even before it had been filed.

Yong was awaiting the outcome of his appeal which he made in March when Law Minister K Shanmugam spoke publicly on his case on May 9.

Shanmugam, responding to a question at a public dialogue session, had said that to pardon Yong would be “sending a signal to all drug barons out there” that they should choose as drug mules people who are “young or a mother of a young child”. ““Yong Vui Kong is young. But if we say ‘we let you go’, what is the signal we are sending?” the minister had said.

The Ministry of Law later issued a statement saying the minister had “reiterated the policy and philosophy behind the death penalty and why Singapore adopted a tough stance.”

The Court of Appeal subsequently quashed Yong’s appeal, announcing its judgement five days after the comments.

In his court submissions, Ravi cited as context the timing of the comments, the influence and importance of the Law Minister in the Cabinet, the lack of contrarian views from other Cabinet members, and the rebuffing of Yong’s earlier clemency plea.

Given these circumstances, he argued that it was “reasonable inference that [Shanmugam’s] remarks reflect the views of [the] Cabinet and that [the] Cabinet intends to reject [Yong’s] clemency petition even before it has been filed.”

This represents a “usurpation of the Elected President’s clemency powers” and “a de facto preemptive exercise by [the] Cabinet of the Elected President’s Constitutional prerogative,” he said in his submissions.

As such the “constitutional process for handling [Yong’s] clemency petition has been irreversibly tainted to the prejudice of [Yong],” he said.

Senior state counsel David Chong, responding for the Attorney General, argued that the High Court was not in a position to grant a judicial review to Yong.

The clemency process was not subject to judicial review, he said, citing two cases in Malaysia that provided precedent on the matter.

In those cases the Malaysian courts found that the clemency process was not reviewable, he said.

However, he conceded that there have been no similar cases in Singapore that could provide legal precedence.

In response, Ravi cited cases in England, India and South Africa in which judges ruled the clemency process to be reviewable by the judiciary. He also clarified the Malaysian cases raised by Chong, citing differences between them and his client’s case.

Chong also argued that under Article 22P of the Singapore Constitution, the President has no discretion in deciding the outcome of a plea for pardon.

In addition, Article 22K grants the President immunity from most types of legal proceedings, which therefore makes Yong’s case unreviewable, he said.

Ravi argued in response that if the Cabinet is the effective decision maker in the granting of pardon – as then-Attorney General Walter Woon had asserted in March – then the judiciary would have the authority to review Cabinet actions for bias.

The lack of such an authority would represent a breach of natural justice, he said.

It is unclear when the High Court would announce its ruling on the case, but Justice Chong said he would try to expedite the judgement, following a marathon six-and-a-half-hour-long hearing in chambers.

On a related note, the Malaysian government, The Online Citizen understands, has written to the Singapore government on the matter of granting clemency to Yong. On 5 July, the Malaysian Foreign Minister had promised to “do everything possible within our powers or diplomatic means” to seek clemency for Yong.

Yong’s family has also written to the president. (See The Star Online report)

Download Mr M Ravi’s submissions here.

Download the Attorney General’s submissions here.

View this document on Scribd

Court hears judicial review bid
Zakir Hussain, Straits Times, 29 July 2010

THE High Court has reserved judgment on whether convicted Malaysian drug trafficker Yong Vui Kong can seek judicial review of the clemency process.

Yong’s lawyer, Mr M. Ravi, had in documents submitted to the court argued that the process by which the President grants pardons is flawed.

Yesterday, Justice Steven Chong heard in his chamber arguments from Mr Ravi as well as from Senior Counsel David Chong, Chief Counsel, Civil Division of the Attorney-General’s Chambers (AGC).

Mr Ravi told The Straits Times the judge said he would deliver his judgment soon on whether the application can proceed. The AGC could not comment on the case by press time.

Yong, 22, was convicted by the High Court on Nov 14, 2008, of trafficking in 47.27g of heroin. He was given the death sentence, which is mandatory for offences involving more than 15g of the drug.

He filed an appeal, but withdrew it in April last year and sent a clemency petition to the President in August, which was rejected. He was granted a last-minute stay of execution after Mr Ravi took over his case and Yong was granted an appeal.

On May 14, the Court of Appeal turned down Yong’s appeal. However, he has till Aug 26 to file a second plea for presidential clemency.

Yesterday, Mr Ravi said the court turned down his application to have proceedings in open court, and subsequently to allow Malaysian lawyer Ngeow Chow Ying and Malaysian government representatives to sit in on the hearing.

Also, Malaysian newspaper The Star reported on its website that Malaysian Foreign Minister Anifah Aman said he handed a letter appealing for clemency on Yong’s behalf to Singapore Foreign Minister George Yeo during last week’s Asean Ministerial Meeting in Hanoi.

Datuk Seri Anifah told reporters the letter was not to question Singapore’s legal system, but was done to assist a Malaysian citizen. Mr Anifah is an MP in Yong’s home state of Sabah.

A Singapore Foreign Ministry spokesman confirmed the ministry had received a letter of appeal for clemency from Mr Anifah. The spokesman added that the letter has been referred to the legal authorities.

View this document on Scribd

Reserved judgment for Yong
Teo Xuanwei, Today, 29 July 2010

SINGAPORE – A High Court reserved judgment on convicted drug trafficker Yong Vui Kong’s petition for judicial review of the clemency process yesterday.

This, after five prosecutors from the Attorney-General’s Chambers and Yong’s lawyer M Ravi argued their cases before Justice Steven Chong in chambers for five hours.

In this third bid to spare his 22-year-old client from the gallows, Mr Ravi is asking the courts to grant Yong an indefinite stay of execution on the grounds that the process by which the President grants pardons is flawed.

Yong had his plea for presidential pardon rejected last year and an appeal before the Court of Appeal was rejected this year.

Mr Ravi is arguing that the clemency process has been “tainted with bias” because of what Law Minister K Shanmugam said during a dialogue with Joo Chiat residents in May – five days before the Appellate Court heard Yong’s case, according to his submissions to the court.

Mr Shanmugam had said: “Yong Vui Kong is young. But if we say ‘We let you go’, what is the signal we are sending? We are sending a signal to all the drug barons out there: Just make sure you choose a victim who is young, or a mother of a young child, and use them as the people to carry the drugs into Singapore.”

Mr Ravi said these remarks “indicate that the Cabinet had decided not to grant clemency to the plaintiff, even before it was lawfully entitled to make that decision”.

But earlier this month, the Law Ministry refuted that Mr Shanmugam’s remarks had interfered with Yong’s case.

According to documents obtained by MediaCorp, the prosecutors said Yong’s petition is “simply unarguable and legally untenable”.

The clemency process is not and should not be subjected to judicial review because it “concerns the exercise of a prerogative power of mercy, which is not the subject of legal rights”, according to court documents.

Whether to grant a pardon is a “policy decision” to be made by the Cabinet, “depending essentially upon political judgment”, said Chief Counsel David Chong, and the courts should not interfere in questions of policy as “this would violate the separation of powers doctrine on which the Constitution is founded”.

Mr Ravi indicated that he would bring the matter to the Court of Appeal should this petition fail.

Yong was sentenced to death in January last year for trafficking 47g of diamorphine (heroin).

In response to media queries, a Foreign Affairs Ministry spokesman said it has received a letter of appeal for clemency for Yong from Malaysian Foreign Minister Anifah Aman. The letter has been referred to the legal authorities.

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