Media reports of the High Court’s judgement regarding Yong Vui Kong’s lawyer M.Ravi’s application for judicial review of clemency process.
“I therefore hold that the President has no discretion under the Constitution, and specifically under Article 22P, to grant pardons,” High Court Judge Steven Chong said. “The power to do so rests solely with the Cabinet.”
Justice Chong handed down the ruling on lawyer M Ravi’s application for a judicial review of the President’s powers in granting clemency on Friday.
Mr Ravi had applied for a judicial review to ascertain where the powers to grant clemency lie. Specifically he asked the courts to decide on certain remarks by the then-Attorney General, Mr Walter Woon, made in March 2010, and comments by Law Minister K Shanmugam, made in April this year.
Mr Woon had said, during the appeal of death row inmate Yong Vui Kong : “Although in theory it is the President who exercises the prerogative of mercy, in fact it is the Cabinet that makes the decision”.
The Law Minister’s remarks – “Yong Vui Kong is young. But if we say ‘we let you go’, what is the signal we are sending?” – made in April, before Yong’s submission of his appeal to the President, had prejudiced and compromised Yong’s constitutional right to an appeal for clemency, Mr Ravi argued.
On AG Woon’s remarks, Justice Chong agreed with Mr Woon – that the power of granting clemency rests solely with the Cabinet.
Justice Chong said:
“It is clear that the framework under the Constitution is such that in situations where the President is empowered to act in his own discretion, the relevant provision provides for the President “acting in his discretion”. This is to be contrasted with Article 22P where a contrary intention appears from the use of the words, “may, on the advice of the Cabinet.”
On whether the Law Minister’s comments had prejudiced Yong’s constitutional rights, Justice Chong said, “I can see nothing objectionable about the Minister’s statement, which only restated the Cabinet’s policy that the age of the offender per se should not be a ground for the exercise of clemency for drug trafficking convictions.”
He added, “I cannot infer from the Minister’s statement that the Cabinet will not even subjectively consider Yong’s second petition and the materials put before it by virtue of Article 22P(2) when it next advises the President.”
The court was also asked to decide if the clemency process is justiciable (or reviewable by the courts) given the remarks by the Attorney General and the Law Minister. Justice Chong dismissed this argument on these four bases:
The power to grant pardons under Article 22P is exercised by the Cabinet, and not the President, who has no discretion in the matter; apparent bbias is not an available ground on which to review the clemency process; there is no evidence of a pre-determination of Yong’s imminent petition; there is no basis for a substantive right to the materials which will be before the Cabinet when it advises the President on the clemency petition.
“In the absence of any meritorious ground on which judicial review can be sustained, Yong’s application must be dismissed,” said Justice Chong.
Mr Ravi had also argued that Yong should have the right to view the materials submitted to the Cabinet from the Attorney General for clemency purposes. The judge ruled that “Yong has no right to see the materials which will be before the Cabinet when it advises the President.”
The judge noted that the deadline of 26 August for the filing of the clemency petition to the President “is fast approaching”. “In anticipation of the very likely decision by Yong to appeal against my judgement,” Justice Chong said, “I would respectfully invite the Prison authorities to extend the time limit for the filing of the fresh petition until such time as the Court of Appeal reaches a decision.”
Mr Ravi, who is the lawyer for Yong, says he is “deeply disturbed” by the court’s ruling. “This is a presidential process but now we know that Cabinet has the power. This is a significant departure from what we have been told. Because despite what the Constitution says, now we understand the President has no power in these matters. It seems the President has allowed his power to be usurped.”
“Lawyers have been sending petitions to the President all these years,” he said. “This is not only an issue for Yong Vui Kong because the elected President’s powers have been taken away from him.”
Mr Ravi urges the President to exercise his powers under Article 100 of the Constitution and convene a Constitutional Court “to decide this vital issue of public importance.”
“This is an outrage. If the President does not do so, we will petition the President to convene the Constitutional Court as he is the only person empowered by the Constitution to do so. Until this matter is finally disposed off, all executions ought to be stayed.”
Mr Ravi’s next course of action is to appeal today’s judgement.
Police try to block media from attending open court
Confusion reigned in court this morning over whether or not the proceedings should be open to members of the public.
Despite presiding judge Steven Chong noting in his written judgment that lawyer M Ravi’s judicial review application on behalf of Yong Vui Kong raised unprecedented “issues of public importance”, Mr Ravi was not given notice by the Registrar of the Supreme Court that proceedings would be in open court.
Court officers seemed to have been similarly unaware that proceedings would be open to members of the public, and tried to block reporters from the mainstream media from entering the courtroom.
Mr Ravi said he was informed about ten minutes before the hearing started that proceedings were to be in open court, and told by the court clerk to put on his court robes. Court robes are only required for open court proceedings.
Mr Ravi’s paralegal then tried to leave the courtroom to inform the media that they could observe proceedings, but was stopped by the police officers present. One reporter who tried to enter the courtroom was also stopped by the police officers.
Eventually, after Mr Ravi intervened, the public and media were allowed in.
Power to pardon rests with Cabinet
Petition for judicial review of clemency process dismissed
By Rachel Lin, Straits Times, 14 Aug 2010
THE High Court yesterday dismissed an unprecedented petition for a judicial review of the clemency process, lodged by the lawyer of convicted Malaysian drug trafficker Yong Vui Kong.
In doing so, it ruled that the power to grant a pardon lies with the Cabinet and not the President, and rejected Mr M. Ravi’s petition for an indefinite stay of execution.
However, Justice Steven Chong allowed Yong more time to petition the President for clemency, pending an appeal against yesterday’s judgment.
The original deadline for Yong’s clemency petition, Aug 26, has therefore been extended until the Court of Appeal reaches a decision.
Mr Ravi had filed the petition for judicial review of the clemency process last month, on the grounds that the President’s power to grant a pardon had been usurped by the Cabinet.
In yesterday’s judgment, Justice Steven Chong placed the authority to grant pardon firmly within the Cabinet.
‘The President has no discretion under the Constitution… to grant pardons. The power to do so rests solely with the Cabinet,’ he wrote in his judgment.
He based this on Articles 21(1) and 22P(I) of the Constitution. The former states that, except in cases specified by the Constitution, the President shall ‘act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet’.
The latter states that the President may grant pardons ‘on the advice of the Cabinet’, and that court reports and the Attorney-General’s opinion shall be sent to the Cabinet, so that it may advise the President.
Justice Chong said that the President’s discretionary powers were laid out elsewhere in the Constitution, but these did not include the power to grant pardons.
His point buttresses a comment on the same case made by then Attorney-General Walter Woon in March.
During the Court of Appeal hearings over whether the mandatory death penalty was constitutional, Professor Woon had said that ‘although in theory it is the President who exercises the prerogative of mercy, in fact it is the Cabinet who makes the decision’.
Justice Chong also ruled that the clemency process was not subject to judicial review, based on precedents in countries such as Britain, Australia and Malaysia.
In addition, Justice Chong found no evidence that the Cabinet had pre-judged Yong’s imminent appeal for clemency, an argument made by Mr Ravi.
Mr Ravi had submitted that remarks made by Law Minister K. Shanmugam in May implied that the Cabinet was biased in Yong’s case.
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.’
In response, Justice Chong wrote that the same standards of bias that apply to the judiciary cannot be exported wholesale to the executive branch of government, such as the Cabinet.
‘The Executive is entitled to formulate and act in accordance with policy, which is wide-ranging by its very nature and difficult to evaluate in accordance with objective legal criteria,’ he wrote.
The power to grant pardons was a discretionary power that could be used to serve a particular policy.
In his judgment, he could see nothing objectionable about the minister’s statement, which only restated government policy ‘that the age of the offender per se should not be a ground for the exercise of clemency for drug trafficking convictions’.
He further noted the timing of the Law Minister’s comments: These were made in May this year, six months after Yong’s first clemency petition had already been rejected.
Justice Chong said that, since Mr Ravi would be using the same grounds for Yong’s second, imminent petition for clemency, and since the Law Minister’s remarks post-date the rejection of the first petition, the issue of pre-determination did not arise.
Outside court, Mr Ravi said that he was ‘deeply disturbed’ by the ruling and plans to appeal against it.
‘This is shocking news to the legal profession,’ he said. ‘We have been sending petitions to the Istana all these years, but they are not really considered by the President. This is an outrage.’
He called on the President to convene a constitutional court to clarify his powers, and said he would launch a petition to press for it.
‘If he doesn’t, I will take legal recourse against the President,’ Mr Ravi said.
He also invited the Malaysian government to respond to yesterday’s judgment.
Textbox: About this case
YONG Vui Kong (photo), a 22-year-old Malaysian, was convicted by the High Court on Nov 14, 2008, of trafficking in 47.27g of heroin and given the death sentence. He was 19 when he drove into Singapore carrying the heroin in packages.
The death penalty is mandatory for offences involving more than 15g of the drug.
After Yong was convicted, he filed an appeal but withdrew it one week before his hearing in April last year, saying that he had embraced Buddhism while in prison and that he would have no peace of mind if he were to proceed.
He said that he had come to the realisation that he must own up to what he had done, and that he did not wish to lie in court. Yong was then represented by lawyer Kelvin Lim.
In August last year, he petitioned the President for clemency on the basis of his youth. In the petition, he stated that he must not continue to lie and instead have the courage to own up to what he did.
It was also around that time that Yong, through his brother, instructed lawyer M. Ravi to take over the case.
The petition was rejected in November, but Yong was granted a last-minute stay of execution after Mr Ravi filed a motion in December last year, challenging the constitutionality of the mandatory death penalty.
On May 14 this year, the Court of Appeal ruled that the mandatory death penalty was not contrary to the Constitution.
The petition for judicial review, which was lodged last month, is Mr Ravi’s third attempt to save Yong from execution.
Petitions to spare Yong have garnered some 19,000 signatures.
SINGAPORE – The High Court has rejected convicted drug trafficker Yong Vui Kong’s petition for a judicial review of the clemency process – his lawyer’s third bid to save him from the gallows,
But the 22-year-old’s fate is not yet sealed as his lawyer Mr M Ravi, indicated he would appeal against the latest ruling.
Last month, Mr Ravi argued in court that the clemency process had been “tainted with bias” after public remarks by Law Minister K Shanmugam, who reiterated why Singapore adopts a tough stance on drug mules regardless of their age.
The Law Ministry has refuted Mr Ravi’s claims that the minister’s comments had interfered with Yong’s case.
Delivering his judgement on Friday, Justice Steven Chong said he found no flaws in the clemency process provided for by the Constitution.
The judge added that the power to grant pardons under Article 22P of the Constitution is exercised by the Cabinet and not the President, who has no discretion in the matter.
While Justic Chong did not grant Yong a permanent stay of execution, he has invited the prison authorities to extend the deadline for the filing of the clemency petition – which would allow Yong to appeal against his ruling.
Jacob 69er: Malaysiakini video of interview with Yong Vui Kong‘s lawyer, M. Ravi