Yong Vui Kong v. Public Prosecutor
Encyclopedia
Yong Vui Kong v. Public Prosecutor was a seminal case decided in 2010 by the Court of Appeal
of Singapore
which held that the mandatory death penalty
imposed by the ("MDA") for certain drug trafficking offences does not infringe Articles 9(1)
and 12(1)
of the Constitution of Singapore
.
Article 9(1) states: "No person shall be deprived of his life or personal liberty save in accordance with law." The Court of Appeal held that the term law does not exclude laws sanctioning inhuman punishment. This does not mean that all laws are justified whatever their nature. Laws which violate fundamental rules of natural justice
, or those that are absurd or arbitrary cannot be considered law. Nonetheless, the threshold of culpability in imposing the mandatory death penalty for drug-related offences is a matter of policy and is therefore a matter for legislation and not for the courts to decide. The Court distinguished a line of Privy Council
cases finding the mandatory death penalty to be unconstitutional, because the constitutions of the jurisdictions from which the appeals originated contained an explicit prohibition against inhuman punishment, which Singapore's Constitution lacks. In addition, though the Constitution of India
also does not expressly prohibit inhuman punishment, the Court declined to follow a decision of the Supreme Court of India
invalidating the mandatory death penalty for inconsistency with Article 21 of the Indian Constitution
, which is similar to Singapore's Article 9(1). Among other things, it took the view that the test for constitutional validity under Article 9(1) is different from the test applied to India's Article 21. Finally, the Court was of the opinion that rules of customary international law
cannot be incorporated into the meaning of the word law in Article 9(1) as this is not in accordance with the normal hierarchy of Singapore law, which envisages that customary international law may only be adopted into the common law
if it is not inconsistent with existing domestic laws
. In any case, there is insufficient state practice to demonstrate that customary international law regards the mandatory death penalty as an inhuman punishment.
The Court of Appeal also held that the mandatory death penalty does not violate Article 12(1) of the Constitution, which states: "All persons are equal before the law and entitled to the equal protection of the law." In its opinion, the 15 gram (0.529109431576679 oz) differentia used in the MDA to determine whether the death penalty should be imposed for trafficking in diamorphine (heroin) cannot be said to be purely arbitrary, and bears a rational relation to the social object of the Act which is to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade.
Following this case, the appellant Yong Vui Kong unsuccessfully challenged the process by which the President
grants clemency
to convicted persons on the advice of the Cabinet
.
, was a 19-year-old Malaysian national who was arrested in Singapore
on 13 June 2007 and charged with trafficking in 47.27 grams (1.7 oz) of diamorphine (heroin), a Class A controlled drug under the Misuse of Drugs Act
("MDA"). Yong told investigators that he had not been aware of the contents of the packages which he was asked to handle, maintaining instead that he had been delivering packages for his boss, a man known as "Ah Hiang", for whom he was working as a debt-collector. Ah Hiang had instructed him not to open the packages, and Yong had acted according to these instructions even though he was suspicious of the contents.
Following a trial in the High Court
, Yong was found guilty of drug trafficking contrary to section 5(1)(a) of the MDA. Trafficking in more than 15 gram (0.529109431576679 oz) of diamorphine attracts a mandatory death penalty
. The Court was of the view that Yong must have known that he had been carrying drugs. Yong instructed his counsel to file an appeal, but later asked that the appeal be withdrawn. His case was eventually taken over by another lawyer, M. Ravi, who had been instructed by Yong's brother. In the meantime, Yong had also petitioned the President of Singapore
for clemency
. This was rejected on 20 November 2009 and Yong's execution was set for 4 December 2009. Ravi then filed an urgent motion
to challenge the constitutionality of the mandatory death penalty prescribed by the MDA. The motion was heard by Justice Woo Bih Li
, who granted a stay of execution
pending a decision by the Court of Appeal of Singapore
.
In the hearing before the Court of Appeal, Yong was allowed to pursue his appeal. The Court was of the opinion that the initial withdrawal of the appeal was a nullity as Yong had failed to appreciate the fact that he could have proceeded with his appeal on points of law
, namely, challenging the compatibility of the mandatory death penalty with Articles 9(1)
and 12(1)
of the Constitution of Singapore
.
in so far as it is in operation in Singapore".
The Court of Appeal noted that if the appellant's challenge on the basis of Article 9(1) was successful, it would mean that mandatory death penalty provisions in statutes other than the MDA would also be unconstitutional, such as the penalties of the following offences:
The first was the Privy Council
case Reyes v. R. (2002), an appeal from Belize. Reyes had shot and killed his neighbour and his neighbour's wife, and had been convicted of two counts of murder. Murder by shooting was a "Class A" murder offence which attracted the mandatory death penalty. The Privy Council held that the mandatory death penalty imposed in this case contravened section 7 of the Constitution of Belize
as it was inhuman or degrading punishment. This was because even within the category of "Class A" murders, there were some offenders who were not as morally culpable as the others, since the offence could have occurred in the heat of the moment. To deny the offender a chance to show the court that it would be disproportionate and inappropriate to impose the death penalty on him would thus be to deny his basic humanity.
The second case was the United States Supreme Court
decision Woodson v. North Carolina (1976). The Eighth Amendment to the United States Constitution
prohibits cruel and unusual punishment
, and the Court proceeded on this basis to strike down mandatory death penalty legislation on a 5:4 majority. The reasons given were that the mandatory death penalty imposed a process which did not take into account relevant differences between the offenders and the offence, and excluded from judicial consideration any mitigating factors. The penalty was inhuman as it treated persons convicted of a designated offence "not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death".
The third case was the Indian Supreme Court
judgment Mithu v. State of Punjab (1983). In that case, the appellant, who was under a sentence of life imprisonment
, committed murder which attracted the mandatory death penalty under section 303 of the Indian Penal Code
1860. Similar arguments to those in Woodson were canvassed, namely, that this provision of law deprived the Court of the chance to use its discretion and wisdom and ignored all factors pertaining to the gravity of the offence.
In response to the first challenge to Article 9(1), the Attorney-General
Walter Woon submitted that the courts should hold to the established principles in both Ong Ah Chuan v. Public Prosecutor (1980) as well as Nguyen Tuong Van. His contention was premised on the argument that the Privy Council's decisions in the cases following Ong Ah Chuan and Nguyen Tuong Van did not necessarily have to be followed as the Privy Council "does not dictate human rights standards for the rest of humanity".
. He argued that since customary international law prohibited mandatory death penalty sentences as inhuman, the MDA provisions also violated Article 9(1). Yong's argument was based on the fact that there are a diminishing number of states which still retain the mandatory death penalty for drug-related offences.
The Attorney-General submitted that there are two possible ways in which to interpret the word law. First, it could be taken to refer only to statutes and the common law applicable in Singapore. Secondly, it could be interpreted to include rules of customary international law. When queried by the Court of Appeal as to his preferred interpretation, he responded that, in principle, the word law should be taken to include customary international law, but only rules which had already been recognized and applied by the domestic courts of Singapore.
Furthermore, the Attorney-General disagreed with the contention that the mandatory death penalty violates any customary international law prohibition against inhuman punishment. He submitted that the decisions after Ong Ah Chuan and Nguyen Tuong Van were reflective of the Privy Council's changing attitude toward the mandatory death penalty specifically, but did not reflect any international consensus that the mandatory death penalty is prohibited by the rules of customary international law. This was evident from the fact that there are still 31 states worldwide which continue to impose the mandatory death penalty for drug-related offences as well as other serious crimes. Thus, the international consensus needed to establish the principle contended for by the appellant was lacking.
Yong argued that the MDA made the quantity of 15 grams of diamorphine the only determinant of whether the mandatory death penalty should be imposed, and that this was highly arbitrary as baseless distinctions had to be drawn between offenders who trafficked in different amounts of controlled drugs. Six points were raised to support this contention:
In response, the Attorney-General cited the two-step "reasonable classification" test applicable to Article 12(1) that had been outlined in Nguyen Tuong Van – that a differentiating measure in a statute is valid if:
The Attorney-General submitted that the 15-gram differentia was intelligible and bore a rational relation to the social purpose of the MDA: to have a deterrent effect on drug trafficking in or through Singapore by large-scale drug traffickers.
in Ong Ah Chuan which stated that while it was possible for the offence of murder to be committed in the heat of the moment, it was "more theoretical than real in the case of large scale trafficking in drugs, a crime [for] which the motive is cold calculated greed". The Court was of the opinion that the threshold of culpability in imposing the mandatory death penalty for drug-related offences was a matter of policy and was therefore a matter for legislation and not for the courts to decide.
Also, apart from Mithu, the cases cited such as Reyes and Woodson were decided in different textual contexts, as inhuman punishment was expressly prohibited by the constitutions of the respective jurisdictions from which the cases originated. Hence, those cases were strictly based on the issue of what kind of punishment would be considered inhuman and not directly related to the issue on appeal in Yong Vui Kong, which was the meaning of the word law in Article 9(1) of the Singapore Constitution.
As for Mithu itself, the Court held that there were three reasons for not adopting the reasoning of the Indian Supreme Court. First, the test for constitutional validity under Article 9(1) is different from the test applied to Article 21 of the Indian Constitution, which states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The phrase procedure established by law means a "fair, just and reasonable procedure established by valid law". In Mithu, section 303 of the Indian Penal Code was found to infringe Article 21 as it did not satisfy this test. However, Singapore's Article 9(1) is worded differently, and does not specifically require that any law passed be "fair, just and reasonable" for it to be considered law. The Court felt that the "fair, just and reasonable" test for constitutionality was too vague, as whether a law restricted the right to life or personal liberty according to such criteria would hinge on a court's view of the reasonableness of the law. In effect, the court would be intruding into the legislature's domain.
Secondly, according to this interpretation of Article 21 of the Indian Constitution any law which removed judicial discretion would be unconstitutional. The result would be that all mandatory sentences would contravene Article 21. The Court of Appeal held that this was not the law applicable in Singapore. The Court was also of the opinion that in India Article 21 was given relative pride of place in its constitutional framework due to the "economic, social and political conditions prevailing in India and the pro-active approach of the Indian Supreme Court in matters relating to the social and economic conditions of the people of India". The situation in Singapore was different. Finally, the Court gave two reasons for declining to imply a provision against inhuman punishment into Article 9(1). Singapore's constitutional history was markedly different from that of other Commonwealth countries, and its Constitution does not contain express prohibitions against cruel and inhuman punishments as it is not modelled upon the European Convention on Human Rights
. In addition, in 1966 the Wee Chong Jin
Constitutional Commission specifically considered whether to include a constitutional provision against inhuman punishment. However, the proposal was not taken up by the Government.
until they are first accepted and adopted as part of domestic law. This can occur when a rule is incorporated into a statute (in which case it is no longer a customary international law rule but is regarded as domestic law), or when it is judicially declared to be part of the common law of Singapore. However, customary international law can only be incorporated into the common law when it is not inconsistent with existing domestic laws. Given the existence of the mandatory death penalty in several Singapore statutes, the Court was of the opinion that it could not treat the alleged customary international law rule prohibiting inhuman punishment as part of Singapore common law. Also, even if a rule has been incorporated in this manner, it may be overridden by subsequent inconsistent statutory provisions. Moreover, the Court did not accept the contention that customary international law should be conferred constitutional status by being read into the meaning of law in Article 9(1) as this is clearly not in accordance with the normal hierarchy of Singapore law.
At any rate, whether there is in fact a customary international law rule that prohibits the mandatory death penalty is also far from certain. The Court held that there is a lack of extensive and uniform state practice that supports the contention that customary international law prohibits the mandatory death penalty as an inhuman punishment.
On the other hand, the court acknowledged that using a 15-gram differentia might not be the best method of furthering the social object of the MDA. However, the matter of what would constitute a better differentia was one which reasonable people may not necessarily agree on, and so this was a question of social policy best left to the legislature, not the judiciary. Addressing Yong's contention that in reality the mandatory death penalty only had a limited deterrent effect on drug traffickers, the Court said that it was not within the its purview to determine the mandatory death penalty's efficacy as a deterrent to drug trafficking. Such an issue was a question of policy and should be left to the legislature to decide. If any changes to the mandatory death penalty or the death penalty in general were to be effected, these had to be done by the legislature and not by the Judiciary under the pretence of constitutional interpretation. In addition, while the court acknowledged it could be argued that there was insufficient evidence of the mandatory death penalty's deterrent effect on serious offences like murder, it could also be said there was insufficient evidence that the mandatory death penalty did not have a deterrent effect.
The Court disagreed with Yong's fifth argument that an offender who did not know the amount of pure diamorphine in the substance he was trafficking had not voluntarily assumed the risk of trafficking. A drug trafficker would know his act was illegal and that he would be punished if caught, regardless of his knowledge of the precise amount of pure diamorphine he was trafficking. Yong's sixth argument was also dismissed, the Court explaining that the reason why the trafficking of a quantity of diamorphine greatly exceeding the 15-gram threshold did not incur a more severe sentence was because it would be impossible to impose a punishment more severe than the death penalty.
. He sought, among other things, a declaration
that it is the President and not the Cabinet
that has discretion as to whether Yong's petition for clemency should be granted, and an order to grant Yong an indefinite stay of execution. Legal observers opined that the move was unprecedented, as petitions for judicial review are usually reserved for executive actions and not processes entrenched in the Constitution.
The argument was based on comments by K. Shanmugam
, the Minister for Law
, at a dialogue session on 9 May 2010. When asked whether Yong's case would affect Singapore's laws on the mandatory death penalty, the Minister had replied: "Yong Vui Kong is young. But if we say, 'We let you go', what's the signal we're sending? ... We are sending a signal to all drug barons out there: Just make sure you choose a victim who's young or a mother of a young child and use them as the people to carry drugs into Singapore." Commenting to the media, Ravi said that if the clemency decision was indeed taken by the Cabinet and not the President, then since Shanmugam was a member of the Cabinet and these statements were made while Yong's case was sub judice
, his remarks implied a prejudgment of Yong's appeal for clemency. The Ministry of Law rejected as "incorrect" Ravi's remarks that the clemency process was flawed. It stated that as the Government
's policy on the death penalty for drug offences was a "matter of public importance", the Government was entitled to comment on it. The Law Ministry also clarified that Shanmugam's comments were merely concerned with the Government's legislative policy and whether it would change, and that the Minister had not commented on any specific issue which was before the Court of Appeal at the time, or on what the outcome of the judgment should be.
In a judgment delivered on 13 August 2010, Justice Steven Chong
dismissed the application, ruling that the power to grant a pardon lies with the Cabinet and not the President. This is because Article 21(1) of the Singapore Constitution provides that the President, by default, is to act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, while Article 21(2) lays down an exhaustive range of exceptions from this rule. In situations where the President is empowered to act in his own discretion, the relevant constitutional provisions expressly use the phrase acting in his discretion in reference to the President. However, Article 22P states that the President may grant pardons "on the advice of the Cabinet", which indicates a contrary intention.
The High Court also rejected Yong's request for an indefinite stay of execution. It held that the test of apparent bias
that applies to the judiciary does not govern the executive, as the executive is accountable to the electorate through the election process
. Furthermore, a court of law is restricted to considering only the law and facts in making its judgment, but 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".
On 4 April 2011, the Court of Appeal dismissed an appeal filed by Yong against the judgment. It affirmed the High Court's view that the President did not possess any personal discretion when exercising the clemency power, and was required to act in accordance with Cabinet's advice on the matter. This conclusion was evident from the wording of Article 22P(1) of the Constitution, the legislative history of the clemency power in Singapore, relevant case law, and the nature of the President's power in the Constitution. The Court also noted that both Yong and the Attorney-General agreed that the power of clemency was vested exclusively in the executive and was not justiciable on the merits, because of the doctrine of separation of powers
and established administrative law principles. Nonetheless, the use of the power could be judicially reviewed if it was exercised in bad faith for an extraneous purpose, or in a way that contravened constitutional protections and rights. In addition, the Court was of the opinion that the clemency process could not be regarded as having been tainted by a reasonable suspicion of bias due to the Law Minister's remarks. The Minister had merely been setting out the Government's policy of taking a tough approach towards serious drug trafficking offences by imposing a mandatory death penalty as a deterrent. In any case, the rule against bias should not be applied to ministers making public statements on government policy in the same way as it applies to judicial or quasi-judicial officers, otherwise no minister would be able to speak on any policy in public or in Parliament
without the statement being regarded as a predetermination of any decision relating to the policy that might have to be made subsequently. Even if the Law Minister's statements indicated that he intended not to grant clemency to Yong, this predetermination could not be attributed to other Cabinet ministers. The alternative view was untenable, as it would mean that once any minister spoke about the Government's policy on the death penalty in a way that showed predetermination of the issue, the entire Cabinet would be disentitled from advising the President on how he should exercise the clemency power.
to determine whether Singapore's conduct has violated local and international law. Malaysian Foreign Minister
Anifah Aman
subsequently sent an appeal for clemency on Yong's behalf to the Singapore Government in July 2010.
Yong's case has aroused interest among Singaporean and Malaysian human rights activists. A Save Vui Kong campaign was formed jointly by the Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall and human rights group SUARAM
. On 24 August 2010, a petition calling on President S.R. Nathan to spare Yong's life – bearing 109,346 signatures gathered from petitioners in Sabah, other parts of Malaysia, Singapore, and online – was delivered to the Istana, the President's official residence.
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
of Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
which held that the mandatory death penalty
Capital punishment in Singapore
Capital punishment is a legal form of punishment in Singapore. The city-state had the highest per-capita execution rate in the world between 1994 and 1999, estimated by the United Nations to be 1.357 executions per hundred thousand of population during that period. The next highest was Turkmenistan...
imposed by the ("MDA") for certain drug trafficking offences does not infringe Articles 9(1)
Article 9 of the Constitution of Singapore
Article 9 of the Constitution of the Republic of Singapore, specifically Article 9, guarantees the right to life and the right to personal liberty. The Court of Appeal has called the right to life the most basic of human rights, but has yet to fully define the term in the Constitution...
and 12(1)
Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
of the Constitution of Singapore
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
.
Article 9(1) states: "No person shall be deprived of his life or personal liberty save in accordance with law." The Court of Appeal held that the term law does not exclude laws sanctioning inhuman punishment. This does not mean that all laws are justified whatever their nature. Laws which violate fundamental rules of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
, or those that are absurd or arbitrary cannot be considered law. Nonetheless, the threshold of culpability in imposing the mandatory death penalty for drug-related offences is a matter of policy and is therefore a matter for legislation and not for the courts to decide. The Court distinguished a line of Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
cases finding the mandatory death penalty to be unconstitutional, because the constitutions of the jurisdictions from which the appeals originated contained an explicit prohibition against inhuman punishment, which Singapore's Constitution lacks. In addition, though the Constitution of India
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
also does not expressly prohibit inhuman punishment, the Court declined to follow a decision of the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
invalidating the mandatory death penalty for inconsistency with Article 21 of the Indian Constitution
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
, which is similar to Singapore's Article 9(1). Among other things, it took the view that the test for constitutional validity under Article 9(1) is different from the test applied to India's Article 21. Finally, the Court was of the opinion that rules of customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
cannot be incorporated into the meaning of the word law in Article 9(1) as this is not in accordance with the normal hierarchy of Singapore law, which envisages that customary international law may only be adopted into the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
if it is not inconsistent with existing domestic laws
Municipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
. In any case, there is insufficient state practice to demonstrate that customary international law regards the mandatory death penalty as an inhuman punishment.
The Court of Appeal also held that the mandatory death penalty does not violate Article 12(1) of the Constitution, which states: "All persons are equal before the law and entitled to the equal protection of the law." In its opinion, the 15 gram (0.529109431576679 oz) differentia used in the MDA to determine whether the death penalty should be imposed for trafficking in diamorphine (heroin) cannot be said to be purely arbitrary, and bears a rational relation to the social object of the Act which is to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade.
Following this case, the appellant Yong Vui Kong unsuccessfully challenged the process by which the President
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
grants clemency
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
to convicted persons on the advice of the Cabinet
Cabinet of Singapore
The Cabinet of Singapore forms the Government of Singapore together with the President of Singapore. It is led by the Prime Minister of Singapore who is the head of government...
.
Trial and subsequent events
The appellant, Yong Vui KongYong Vui Kong
Yong Vui Kong is a Malaysian citizen who has been sentenced to death by hanging in Singapore for carrying heroin.-Personal life:Yong is from a low-income family in the state of Sabah, Malaysia. He was working as a "runner" for an unidentified criminal boss, when he was arrested in 2007 with of...
, was a 19-year-old Malaysian national who was arrested in Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
on 13 June 2007 and charged with trafficking in 47.27 grams (1.7 oz) of diamorphine (heroin), a Class A controlled drug under the Misuse of Drugs Act
Misuse of Drugs Act (Singapore)
The Misuse of Drugs Act is a national drug control law classifying substances into three categories, Classes A, B, and C. Section 44 provides that "The Minister may, by an order published in the Gazette" add, remove, or transfer drugs among the classes...
("MDA"). Yong told investigators that he had not been aware of the contents of the packages which he was asked to handle, maintaining instead that he had been delivering packages for his boss, a man known as "Ah Hiang", for whom he was working as a debt-collector. Ah Hiang had instructed him not to open the packages, and Yong had acted according to these instructions even though he was suspicious of the contents.
Following a trial in the High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
, Yong was found guilty of drug trafficking contrary to section 5(1)(a) of the MDA. Trafficking in more than 15 gram (0.529109431576679 oz) of diamorphine attracts a mandatory death penalty
Capital punishment in Singapore
Capital punishment is a legal form of punishment in Singapore. The city-state had the highest per-capita execution rate in the world between 1994 and 1999, estimated by the United Nations to be 1.357 executions per hundred thousand of population during that period. The next highest was Turkmenistan...
. The Court was of the view that Yong must have known that he had been carrying drugs. Yong instructed his counsel to file an appeal, but later asked that the appeal be withdrawn. His case was eventually taken over by another lawyer, M. Ravi, who had been instructed by Yong's brother. In the meantime, Yong had also petitioned the President of Singapore
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
for clemency
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
. This was rejected on 20 November 2009 and Yong's execution was set for 4 December 2009. Ravi then filed an urgent motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
to challenge the constitutionality of the mandatory death penalty prescribed by the MDA. The motion was heard by Justice Woo Bih Li
Woo Bih Li
Justice Woo Bih Li is a judge of the Supreme Court of Singapore.Justice Woo received his LL.B. from the University of Singapore in 1977, and was admitted as an advocate and solicitor of the Supreme Court the following year. He joined the law firm Allen & Gledhill in 1970 and in 1992, he...
, who granted a stay of execution
Stay of execution
A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty; it refers to the imposition of whatever judgment is being stayed....
pending a decision by the Court of Appeal of Singapore
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
.
In the hearing before the Court of Appeal, Yong was allowed to pursue his appeal. The Court was of the opinion that the initial withdrawal of the appeal was a nullity as Yong had failed to appreciate the fact that he could have proceeded with his appeal on points of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
, namely, challenging the compatibility of the mandatory death penalty with Articles 9(1)
Article 9 of the Constitution of Singapore
Article 9 of the Constitution of the Republic of Singapore, specifically Article 9, guarantees the right to life and the right to personal liberty. The Court of Appeal has called the right to life the most basic of human rights, but has yet to fully define the term in the Constitution...
and 12(1)
Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
of the Constitution of Singapore
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
.
Legal issues
In the present case before the Court of Appeal, Yong challenged the constitutionality of the mandatory death penalty imposed by the MDA on the grounds that it violated Article 9(1) and/or Article 12(1) of the Constitution.Article 9(1) challenge
Article 9(1) of the Constitution reads: "No person shall be deprived of his life or personal liberty save in accordance with law." The word law is defined in Article 2(1), which states that "'law' includes ... the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
in so far as it is in operation in Singapore".
The Court of Appeal noted that if the appellant's challenge on the basis of Article 9(1) was successful, it would mean that mandatory death penalty provisions in statutes other than the MDA would also be unconstitutional, such as the penalties of the following offences:
- Murder, in section 302 of the Penal CodePenal Code (Singapore)The Penal Code of Singapore sets out general principles of the criminal law of Singapore, as well as the elements and penalties of common criminal offences such as homicide, theft and cheating...
. - Using or attempting to use arms, in section 4 of the Arms Offences Act.
- Using or attempting to use arms to commit or attempt to commit specified offences, in section 4A of the Arms Offences Act.
- Having or carrying, without lawful excuse and without lawful authority, any firearm, ammunition or explosive in a security area, in section 58(1) of the Internal Security ActInternal Security Act (Singapore)The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
.
Mandatory death penalty constitutes inhuman punishment
Yong's first argument was that the word law in Article 9(1) did not include laws that imposed inhuman punishments. Since the mandatory death penalty was inhuman, the provisions in the MDA that imposed a mandatory death sentence ran afoul of the Constitution. The argument hinged on the fact that the mandatory death penalty has long been held to be an inhuman punishment in a string of cases from Belize, Saint Christopher and Nevis, Saint Lucia, Barbados, Jamaica, Trinidad and Tobago, the Bahamas, Grenada, the United States, Uganda, Malawi, and India. The Court of Appeal indicated that many of the cases had been distinguished in its earlier decision Nguyen Tuong Van v. Public Prosecutor (2005), and that this was merely "traversing old ground". However, the Court did highlight three cases.The first was the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
case Reyes v. R. (2002), an appeal from Belize. Reyes had shot and killed his neighbour and his neighbour's wife, and had been convicted of two counts of murder. Murder by shooting was a "Class A" murder offence which attracted the mandatory death penalty. The Privy Council held that the mandatory death penalty imposed in this case contravened section 7 of the Constitution of Belize
Constitution of Belize
The Constitution of Belize is the supreme law of the nation of Belize. It was signed in September 1981 with effect from that date.- Structure :...
as it was inhuman or degrading punishment. This was because even within the category of "Class A" murders, there were some offenders who were not as morally culpable as the others, since the offence could have occurred in the heat of the moment. To deny the offender a chance to show the court that it would be disproportionate and inappropriate to impose the death penalty on him would thus be to deny his basic humanity.
The second case was the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision Woodson v. North Carolina (1976). The Eighth Amendment to the United States Constitution
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
prohibits cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
, and the Court proceeded on this basis to strike down mandatory death penalty legislation on a 5:4 majority. The reasons given were that the mandatory death penalty imposed a process which did not take into account relevant differences between the offenders and the offence, and excluded from judicial consideration any mitigating factors. The penalty was inhuman as it treated persons convicted of a designated offence "not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death".
The third case was the Indian Supreme Court
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
judgment Mithu v. State of Punjab (1983). In that case, the appellant, who was under a sentence of life imprisonment
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
, committed murder which attracted the mandatory death penalty under section 303 of the Indian Penal Code
Indian Penal Code
Indian Penal Code is the main criminal code of India. It is a comprehensive code, intended to cover all substantive aspects of criminal law. It was drafted in 1860 and came into force in colonial India during the British Raj in 1862...
1860. Similar arguments to those in Woodson were canvassed, namely, that this provision of law deprived the Court of the chance to use its discretion and wisdom and ignored all factors pertaining to the gravity of the offence.
In response to the first challenge to Article 9(1), the Attorney-General
Attorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
Walter Woon submitted that the courts should hold to the established principles in both Ong Ah Chuan v. Public Prosecutor (1980) as well as Nguyen Tuong Van. His contention was premised on the argument that the Privy Council's decisions in the cases following Ong Ah Chuan and Nguyen Tuong Van did not necessarily have to be followed as the Privy Council "does not dictate human rights standards for the rest of humanity".
Mandatory death penalty contrary to customary international law
Yong's second argument was that the word law in Article 9(1) should also be taken to include customary international lawCustomary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
. He argued that since customary international law prohibited mandatory death penalty sentences as inhuman, the MDA provisions also violated Article 9(1). Yong's argument was based on the fact that there are a diminishing number of states which still retain the mandatory death penalty for drug-related offences.
The Attorney-General submitted that there are two possible ways in which to interpret the word law. First, it could be taken to refer only to statutes and the common law applicable in Singapore. Secondly, it could be interpreted to include rules of customary international law. When queried by the Court of Appeal as to his preferred interpretation, he responded that, in principle, the word law should be taken to include customary international law, but only rules which had already been recognized and applied by the domestic courts of Singapore.
Furthermore, the Attorney-General disagreed with the contention that the mandatory death penalty violates any customary international law prohibition against inhuman punishment. He submitted that the decisions after Ong Ah Chuan and Nguyen Tuong Van were reflective of the Privy Council's changing attitude toward the mandatory death penalty specifically, but did not reflect any international consensus that the mandatory death penalty is prohibited by the rules of customary international law. This was evident from the fact that there are still 31 states worldwide which continue to impose the mandatory death penalty for drug-related offences as well as other serious crimes. Thus, the international consensus needed to establish the principle contended for by the appellant was lacking.
Article 12(1) challenge
Article 12(1) of the Constitution reads: "All persons are equal before the law and entitled to the equal protection of the law." In Ong Ah Chuan, the Privy Council interpreted Article 12(1) as prohibiting laws requiring differentiation in the punishment of individuals in the same class, but allowing differentiation in punitive treatment between different classes of individuals where there was a difference in the circumstances of the offences committed. This dissimilarity in circumstances would justify discriminatory punitive treatment as long as it was not purely arbitrary and bore a reasonable relation to the social object of the law.Yong argued that the MDA made the quantity of 15 grams of diamorphine the only determinant of whether the mandatory death penalty should be imposed, and that this was highly arbitrary as baseless distinctions had to be drawn between offenders who trafficked in different amounts of controlled drugs. Six points were raised to support this contention:
- Even if there was a quantitative and incremental increase in guilt or mischief associated with trafficking in just over 15 grams of diamorphine as opposed to just under 15 grams, it would be inappropriate to respond to this with a qualitative and non-incremental increase in the prescribed penalty.
- The 15-gram differentia meant the MDA might be harsher on a one-time offender trafficking in slightly more than 15 grams of diamorphine, as opposed to a repeat offender who trafficked in slightly less than 15 grams of diamorphine each time.
- At the sentencing stage, the mandatory death penalty precluded the court from considering the circumstances in which the offence was committed. This denied the Prosecution and the public of information on the type of offenders likely to reoffend, and impeded the legislatureParliament of SingaporeThe Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
from determining if the mandatory death penalty was actually necessary. - Sentencing under the MDA was too rigid as it prevented the court from considering major factual differences between cases.
- Despite sentencing under the MDA being based on general deterrence, the court was disallowed from considering if the offender had voluntarily assumed the risk of trafficking in controlled drugs. It was unlikely that an offender would know if the substance he was trafficking contained the amount of diamorphine sufficient to fulfil the 15-gram differentia.
- The 15-gram differentia failed to differentiate between an offender trafficking in slightly more than 15 grams of diamorphine as opposed to one who trafficked in multiple times that quantity.
In response, the Attorney-General cited the two-step "reasonable classification" test applicable to Article 12(1) that had been outlined in Nguyen Tuong Van – that a differentiating measure in a statute is valid if:
- the classification is founded on an intelligible differentia; and
- the differentia bears a rational relation to the object sought to be achieved by the law in question.
The Attorney-General submitted that the 15-gram differentia was intelligible and bore a rational relation to the social purpose of the MDA: to have a deterrent effect on drug trafficking in or through Singapore by large-scale drug traffickers.
Inhuman punishment argument
The Court of Appeal noted that the definition of the word law in Article 2(1) of the Constitution includes "written law", which means that the MDA is law within the meaning of Article 9(1). However, this does not mean that all laws are justified whatever their nature. Laws which violate fundamental rules of natural justice, or those that are absurd or arbitrary cannot be considered law. The Court also held that all the cases which the appellant relied on concerned the offence of murder instead of drug-related offences. This being the case, "the rationale underlying those cases has no direct application to the present appeal". It relied on the judgment of Lord DiplockKenneth Diplock, Baron Diplock
William John Kenneth Diplock, Baron Diplock, KC was an English judge and Law Lord.-Early life:Born the son of a Croydon solicitor, he attended Whitgift School and University College, Oxford, where he read chemistry and was later to become an Honorary Fellow.-Career:Diplock was called to the bar by...
in Ong Ah Chuan which stated that while it was possible for the offence of murder to be committed in the heat of the moment, it was "more theoretical than real in the case of large scale trafficking in drugs, a crime [for] which the motive is cold calculated greed". The Court was of the opinion that the threshold of culpability in imposing the mandatory death penalty for drug-related offences was a matter of policy and was therefore a matter for legislation and not for the courts to decide.
Also, apart from Mithu, the cases cited such as Reyes and Woodson were decided in different textual contexts, as inhuman punishment was expressly prohibited by the constitutions of the respective jurisdictions from which the cases originated. Hence, those cases were strictly based on the issue of what kind of punishment would be considered inhuman and not directly related to the issue on appeal in Yong Vui Kong, which was the meaning of the word law in Article 9(1) of the Singapore Constitution.
As for Mithu itself, the Court held that there were three reasons for not adopting the reasoning of the Indian Supreme Court. First, the test for constitutional validity under Article 9(1) is different from the test applied to Article 21 of the Indian Constitution, which states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The phrase procedure established by law means a "fair, just and reasonable procedure established by valid law". In Mithu, section 303 of the Indian Penal Code was found to infringe Article 21 as it did not satisfy this test. However, Singapore's Article 9(1) is worded differently, and does not specifically require that any law passed be "fair, just and reasonable" for it to be considered law. The Court felt that the "fair, just and reasonable" test for constitutionality was too vague, as whether a law restricted the right to life or personal liberty according to such criteria would hinge on a court's view of the reasonableness of the law. In effect, the court would be intruding into the legislature's domain.
Secondly, according to this interpretation of Article 21 of the Indian Constitution any law which removed judicial discretion would be unconstitutional. The result would be that all mandatory sentences would contravene Article 21. The Court of Appeal held that this was not the law applicable in Singapore. The Court was also of the opinion that in India Article 21 was given relative pride of place in its constitutional framework due to the "economic, social and political conditions prevailing in India and the pro-active approach of the Indian Supreme Court in matters relating to the social and economic conditions of the people of India". The situation in Singapore was different. Finally, the Court gave two reasons for declining to imply a provision against inhuman punishment into Article 9(1). Singapore's constitutional history was markedly different from that of other Commonwealth countries, and its Constitution does not contain express prohibitions against cruel and inhuman punishments as it is not modelled upon the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. In addition, in 1966 the Wee Chong Jin
Wee Chong Jin
Wee Chong Jin was born in Penang to parents Wee Gim Puay and Lim Paik Yew. He received his early education at the Penang Free School, and read law at St John's College, Cambridge...
Constitutional Commission specifically considered whether to include a constitutional provision against inhuman punishment. However, the proposal was not taken up by the Government.
Customary international law argument
The Court of Appeal was of the opinion that customary international law cannot be incorporated into the meaning of the word law in Article 9(1) of the Constitution. Customary international law rules do not have any status in domestic lawMunicipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
until they are first accepted and adopted as part of domestic law. This can occur when a rule is incorporated into a statute (in which case it is no longer a customary international law rule but is regarded as domestic law), or when it is judicially declared to be part of the common law of Singapore. However, customary international law can only be incorporated into the common law when it is not inconsistent with existing domestic laws. Given the existence of the mandatory death penalty in several Singapore statutes, the Court was of the opinion that it could not treat the alleged customary international law rule prohibiting inhuman punishment as part of Singapore common law. Also, even if a rule has been incorporated in this manner, it may be overridden by subsequent inconsistent statutory provisions. Moreover, the Court did not accept the contention that customary international law should be conferred constitutional status by being read into the meaning of law in Article 9(1) as this is clearly not in accordance with the normal hierarchy of Singapore law.
At any rate, whether there is in fact a customary international law rule that prohibits the mandatory death penalty is also far from certain. The Court held that there is a lack of extensive and uniform state practice that supports the contention that customary international law prohibits the mandatory death penalty as an inhuman punishment.
Article 12(1) challenge
Agreeing with the Attorney General's submission, the Court of Appeal held that the mandatory death penalty satisfied the reasonable classification test used to assess the constitutionality of legislation with respect to Article 12(1) of the Constitution. Reiterating the Privy Council's holding in Ong Ah Chuan, the Court found that the 15-gram differentia used in the MDA to determine whether the death penalty should be imposed could not be said to be purely arbitrary, and bore a rational relation to the social object of the MDA which was to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade. There was nothing unreasonable in the legislature concluding that a wholesale dealer operating higher up in the distributive pyramid required a stronger deterrent than smaller scale dealers. It was up to the legislature to determine where the appropriate quantitative boundary was to lie between the two classes of dealers. The Court also held that the quantity of addictive drugs trafficked was broadly proportionate to both the quantity of addictive drugs brought on to the market, as well as the likely harm suffered by society as a result of the offender's crime.On the other hand, the court acknowledged that using a 15-gram differentia might not be the best method of furthering the social object of the MDA. However, the matter of what would constitute a better differentia was one which reasonable people may not necessarily agree on, and so this was a question of social policy best left to the legislature, not the judiciary. Addressing Yong's contention that in reality the mandatory death penalty only had a limited deterrent effect on drug traffickers, the Court said that it was not within the its purview to determine the mandatory death penalty's efficacy as a deterrent to drug trafficking. Such an issue was a question of policy and should be left to the legislature to decide. If any changes to the mandatory death penalty or the death penalty in general were to be effected, these had to be done by the legislature and not by the Judiciary under the pretence of constitutional interpretation. In addition, while the court acknowledged it could be argued that there was insufficient evidence of the mandatory death penalty's deterrent effect on serious offences like murder, it could also be said there was insufficient evidence that the mandatory death penalty did not have a deterrent effect.
The Court disagreed with Yong's fifth argument that an offender who did not know the amount of pure diamorphine in the substance he was trafficking had not voluntarily assumed the risk of trafficking. A drug trafficker would know his act was illegal and that he would be punished if caught, regardless of his knowledge of the precise amount of pure diamorphine he was trafficking. Yong's sixth argument was also dismissed, the Court explaining that the reason why the trafficking of a quantity of diamorphine greatly exceeding the 15-gram threshold did not incur a more severe sentence was because it would be impossible to impose a punishment more severe than the death penalty.
Further developments
Judicial review of the granting of clemency
Following the delivery of the Court of Appeal's judgment on 14 May 2010, Yong's lawyer M. Ravi filed an application in the High Court for leave to challenge the clemency process by way of judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. He sought, among other things, a declaration
Declaration (law)
In law, a declaration ordinarily refers to a judgment of the court or an award of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Where the declaration is made by a court, it is usually...
that it is the President and not the Cabinet
Cabinet of Singapore
The Cabinet of Singapore forms the Government of Singapore together with the President of Singapore. It is led by the Prime Minister of Singapore who is the head of government...
that has discretion as to whether Yong's petition for clemency should be granted, and an order to grant Yong an indefinite stay of execution. Legal observers opined that the move was unprecedented, as petitions for judicial review are usually reserved for executive actions and not processes entrenched in the Constitution.
The argument was based on comments by K. Shanmugam
K. Shanmugam
Kasiviswanathan Shanmugam better known as "K Shanmugam", is a Tamil Indian politician from Singapore. A member of the governing People's Action Party , he is currently the country's Minister for Foreign Affairs and Minister for Law...
, the Minister for Law
Ministry of Law (Singapore)
The Ministry of Law is a ministry of the Government of Singapore responsible for ensuring that Singapore's legal infrastructure is clear, efficacious and transparent...
, at a dialogue session on 9 May 2010. When asked whether Yong's case would affect Singapore's laws on the mandatory death penalty, the Minister had replied: "Yong Vui Kong is young. But if we say, 'We let you go', what's the signal we're sending? ... We are sending a signal to all drug barons out there: Just make sure you choose a victim who's young or a mother of a young child and use them as the people to carry drugs into Singapore." Commenting to the media, Ravi said that if the clemency decision was indeed taken by the Cabinet and not the President, then since Shanmugam was a member of the Cabinet and these statements were made while Yong's case was sub judice
Sub judice
In law, sub judice, Latin for "under judgment", means that a particular case or matter is currently under trial or being considered by a judge or court...
, his remarks implied a prejudgment of Yong's appeal for clemency. The Ministry of Law rejected as "incorrect" Ravi's remarks that the clemency process was flawed. It stated that as the Government
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
's policy on the death penalty for drug offences was a "matter of public importance", the Government was entitled to comment on it. The Law Ministry also clarified that Shanmugam's comments were merely concerned with the Government's legislative policy and whether it would change, and that the Minister had not commented on any specific issue which was before the Court of Appeal at the time, or on what the outcome of the judgment should be.
In a judgment delivered on 13 August 2010, Justice Steven Chong
Steven Chong
Steven Chong Horng Siong SC is a Judge of the High Court of Singapore. A former litigation lawyer and managing partner of Rajah & Tann, he is one of the leading shipping lawyers in Singapore. Chong obtained his LL.B. from the National University of Singapore in 1982. In that same year, he, together...
dismissed the application, ruling that the power to grant a pardon lies with the Cabinet and not the President. This is because Article 21(1) of the Singapore Constitution provides that the President, by default, is to act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, while Article 21(2) lays down an exhaustive range of exceptions from this rule. In situations where the President is empowered to act in his own discretion, the relevant constitutional provisions expressly use the phrase acting in his discretion in reference to the President. However, Article 22P states that the President may grant pardons "on the advice of the Cabinet", which indicates a contrary intention.
The High Court also rejected Yong's request for an indefinite stay of execution. It held that the test of apparent bias
Doctrine of bias in Singapore law
Bias is one of the grounds of judicial review in Singapore. If actual bias on the part of a judge or tribunal can be proved by a party to a legal proceeding, or on the part of a public authority by a person aggrieved by its decision, the High Court can quash the judgment or decision.In addition, a...
that applies to the judiciary does not govern the executive, as the executive is accountable to the electorate through the election process
Elections in Singapore
There are currently two types of elections in Singapore: parliamentary and presidential elections.While the Constitution of Singapore does not specify exactly when elections need to be held, Parliamentary or General Elections are generally 5 years apart, while Presidential elections are generally...
. Furthermore, a court of law is restricted to considering only the law and facts in making its judgment, but 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".
On 4 April 2011, the Court of Appeal dismissed an appeal filed by Yong against the judgment. It affirmed the High Court's view that the President did not possess any personal discretion when exercising the clemency power, and was required to act in accordance with Cabinet's advice on the matter. This conclusion was evident from the wording of Article 22P(1) of the Constitution, the legislative history of the clemency power in Singapore, relevant case law, and the nature of the President's power in the Constitution. The Court also noted that both Yong and the Attorney-General agreed that the power of clemency was vested exclusively in the executive and was not justiciable on the merits, because of the doctrine of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
and established administrative law principles. Nonetheless, the use of the power could be judicially reviewed if it was exercised in bad faith for an extraneous purpose, or in a way that contravened constitutional protections and rights. In addition, the Court was of the opinion that the clemency process could not be regarded as having been tainted by a reasonable suspicion of bias due to the Law Minister's remarks. The Minister had merely been setting out the Government's policy of taking a tough approach towards serious drug trafficking offences by imposing a mandatory death penalty as a deterrent. In any case, the rule against bias should not be applied to ministers making public statements on government policy in the same way as it applies to judicial or quasi-judicial officers, otherwise no minister would be able to speak on any policy in public or in Parliament
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
without the statement being regarded as a predetermination of any decision relating to the policy that might have to be made subsequently. Even if the Law Minister's statements indicated that he intended not to grant clemency to Yong, this predetermination could not be attributed to other Cabinet ministers. The alternative view was untenable, as it would mean that once any minister spoke about the Government's policy on the death penalty in a way that showed predetermination of the issue, the entire Cabinet would be disentitled from advising the President on how he should exercise the clemency power.
Actions taken by Malaysian Government and civil society groups
Yong's lawyer urged the Government of Malaysia to take Yong's case to the International Court of JusticeInternational Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
to determine whether Singapore's conduct has violated local and international law. Malaysian Foreign Minister
Ministry of Foreign Affairs (Malaysia)
The Ministry of Foreign Affairs, Malaysia is the Malaysian government ministry which oversees the foreign relations of Malaysia. The current ministry is based in Putrajaya with Datuk Seri Anifah Aman as Minister, Senator A...
Anifah Aman
Anifah Aman
Dato' Sri Anifah bin Haji Aman is the current Malaysian Minister of Foreign Affairs. He is a member of the United Malays National Organisation , which is part of the ruling Barisan Nasional coalition and a Member of Parliament representing Kimanis in Sabah...
subsequently sent an appeal for clemency on Yong's behalf to the Singapore Government in July 2010.
Yong's case has aroused interest among Singaporean and Malaysian human rights activists. A Save Vui Kong campaign was formed jointly by the Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall and human rights group SUARAM
Suaram
SUARAM, or Suara Rakyat Malaysia, is a human rights organization in Malaysia created in 1987 after Operation Lalang, when 106 opposition, unions, activist leaders were detained without trial under the Internal Security Act...
. On 24 August 2010, a petition calling on President S.R. Nathan to spare Yong's life – bearing 109,346 signatures gathered from petitioners in Sabah, other parts of Malaysia, Singapore, and online – was delivered to the Istana, the President's official residence.
Cases
- Woodson v. North Carolina , Supreme CourtSupreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
(United States). - Ong Ah Chuan v. Public Prosecutor [1980] UKPC 32, [1981] A.C. 648, [1979–1980] S.L.R.(R.) 710, Privy CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
(on appeal from Singapore). - Mithu v. State of Punjab A.I.R. 1983 S.C. 473, Supreme CourtSupreme Court of IndiaThe Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
(India). - Public Prosecutor v. Yong Vui Kong [2009] SGHC 4, High CourtHigh Court of SingaporeThe High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
(Singapore) ("Yong Vui Kong (2009, H.C.)"). - Yong Vui Kong v. Public Prosecutor [2010] 2 S.L.R. [Singapore Law Reports] 192, Court of AppealCourt of Appeal of SingaporeThe Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
(Singapore) ("Yong Vui Kong (2010, C.A.)"). - Yong Vui Kong v. Public Prosecutor [2010] 3 S.L.R. 489, C.A. (Singapore) ("Yong Vui Kong (substantive appeal)").
- Yong Vui Kong v. Attorney-General [2011] 1 S.L.R. 1, H.C. (Singapore) ("Yong Vui Kong v. AG (H.C.)").
- Yong Vui Kong v. Attorney-General [2011] 2 S.L.R. 1189, C.A. (Singapore) ("Yong Vui Kong v. AG (C.A.)").