By Yini Chua
At the appeal hearing for Yong Vui Kong today, the Court of Appeal, consisting of Chief Justice Chan Sek Long, Justices of Appeal Andrew Phang Boon Leong and VK Raja, chose to reserve its judgment instead of delivering a verdict.
Yong is facing the mandatory death penalty for drug trafficking.
He has been through 2 stays of execution. Escorted into the courtroom by four uniformed guards, the 21 year-old Malaysian hardly moved in his seat throughout the hearing, with his shoulders hunched and head bent as he followed the proceedings intently via the court translator.
Representing Yong was Mr M Ravi of LF Violet Netto. His core argument was centered on the principle of one’s right to life, as echoed by Article 9(1) of the Singapore Constitution, which states that no person shall be deprived of his life or personal liberty save in accordance of the law.
Mr. Ravi challenged the constitutionality of the mandatory death penalty, stressing that it failed to deal with Article 9(1) adequately and adapt to changing standards of international law.
He also argued that Article 9(1) prohibits the arbitrary imposition of the death penalty, an act which is also against customary international law. According to Mr. Ravi, there is growing universal consensus that the mandatory death penalty is a cruel and unusual punishment and involves deprivation to life.
‘Customary international law evolves with the changing standards of human rights around the world,’ he posited.
Attorney General Walter Woon agreed that the issue is the constitutionality of the mandatory death penalty, not its desirability. As such, he argued that its implementation is constitutional because it is in line with laws passed by the legislature.
Mr. Woon also argued that ‘it is state practices that determines international law, not the other way round’.
However, he disagreed with Mr. Ravi with regards to the trend in international law, emphasizing that the international law has accepted the mandatory death penalty.
‘It is fallacious to assume that the law has changed,’ he said, reinforcing his argument that the issue of the abolition of the mandatory death penalty is simply a matter of controversy.
Another core argument that Mr. Ravi laid out was that the mandatory death penalty was contrary to the ‘equal protection’ clause as enshrined in Article 12(1) of the Constitution. He argued that it does not leave room for judicial discretion and specific circumstances, and the exclusion of such an integral process has resulted in a one-size-fits-all standardized sentencing process that is inherently wrong. With such rigid application, the law ceases to serve justice.
To illustrate this fact, Mr. Ravi pointed out the rationale behind Singapore law, which makes probation more available for minors (persons aged below 21).
Said Mr. Ravi, ‘(Probation for minors) assumes the potential vulnerability of youths, and therefore the shows that the law does indeed look at individual circumstances.’
Along the same vein, the mandatory death penalty infringes upon equal protection because the court is obliged to condemn a drug mule in possession of 15 grams of heroin to the highest penalty of death, but inflicts a lesser punishment upon a professional dealer caught selling for distribution to many addicts a total of 14.99 grams.
Mr Ravi relied heavily on the example of the India for an alternate interpretation. Article 12 of the Indian Constitution, in stating that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’ is identical with Article 9(1) of the Singapore Constitution. The Indian Supreme Court has interpreted it in a different way: the process by which someone is subject to death must be a fair, just and reasonable procedure.
As such, the Indian Supreme Court prohibits the mandatory death penalty even for the most severe of crimes. The death penalty sentence is only meted with judicial discretion.
In his counterargument, Mr. Ravi criticized the simplistic logic that underpins Attorney General Walter Woon’s argument, who asserted that the mandatory death penalty acts as a deterrent against drug trafficking. He argued that there have been no substantial studies based on the deterrent value of MDP.
‘Even the state is silent when is comes to this issue,’ he pointed out.
He also cited a number of Asian countries which have abolished the mandatory death penalty, including China, Taiwan, Korea and India.
Justice of Appeal Andrew Phang tried to clarify the debate further by enquiring whether ‘decisions in other countries (are) a product of domestic consensus or result of international customary law’.
Mr. Ravi ended his argument on a passionate note, beseeching the judges to read the constitution in accordance to the spirit of the law, and ‘not in an automated, robotic, spasmodic approach’ that does not fulfill the need for justice.
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Good on you M. Ravi!
Hurray for M Ravi!
It is not just in the mandatory death penalty that our judges act in a “robotic” fashion.
Ever been to court for a traffic offense? Both my friend and I did and we shared the same story. No matter what arguments we gave, we got the same punishment as those who did not offer any explanations for their offenses.
Isn’t this very Singaporean – “automated, robotic, spasmodic”? It’s inculcated in its systems and people. Don’t know when things will improve.
I just wanted to point out the other end of the ‘robotic’ extreme is where Laws (and punishments) are vague, and Judges can interpret to their desire.
For a punishment that dont fit the crime, the judges will be responsible.
The core argument stands that if there is to be a trial, then what is the basis for the penalty to be mandatory?
If the judges, the AG and the prosecutors fail to see this then really they should question what need is there for them to be present at all. After all, the law has deemed the situation such that a stamp has been put on Vui Kong condemning him to death without a hair of a chance to redeem himself.
M.Ravi’s point while salient is not being put into context by the AG. The prosecution is too scared to make a landmark decision favouring the harshness of their laws rather than considering the matter from an objective view. It is understandable that they fear being looked upon as soft and giving in but is this more important than choosing what the evidence has pointed as right? They will choose to disguise their decision as the lesser of two evils but then are there really two evils to begin with?
Executing young traffickers does nothing to halt the drug industry. It is merely a scrape on the knee for syndicates. Boys like Vui Kong are a dime a dozen to the druglords and as dispensable as the mule might be to them, we the Singaporean People should never treat a human with such degenerate sentiment. We are a free people and everyone has a right to live. It is not sympathy fueling the argument or pity even but rather the hope that we can be recognised as a socially advanced country. Not because we need to curry the favour of some freedom boasting western power but because we have come so far from the days of colonial oppression and tyrannical occupancy. It is one thing to boast about the economic prowess of our country but a country is nothing without its people and people are nothing without their soul.
Do we still need such extreme punitive measure to deter people? Do we have to treat someone with such mechanical coldness just because he has committed a crime? Are we incapable of forgiveness?
Does Vui Kong not deserve a second chance at life?
Well said, wallace!
The MDP is so archaic, a throwback to the days when human rights weren’t so advanced and evolved and people didn’t think much about ending another person’s life. But things have changed now, and international human rights laws have made great advances. If Singapore aspires to be a first world country, we have to evolve too.
I sincerely hope Singapore listen to Mr Ravi.
Time to change Singapore, spare the young man’s life.
wallace
Mar 16, 2010 20:39
The core argument stands that if there is to be a trial, then what is the basis for the penalty to be mandatory?
Considering that there is presidential pardon, it’s not that mandatory.
The prosecution is too scared to make a landmark decision favouring the harshness of their laws rather than considering the matter from an objective view.
Really? There is an objective view? This is not physical science, you know. There is no objective view.
Executing young traffickers does nothing to halt the drug industry.
If there is ONE(1) single trafficker (out of a dime a dozen) who hesitated to do it because of the death sentence, it would means it had done SOMETHING to halt the industry. To say that it does NOTHING is somewhat extreme. The question is probably how much. The fact you had to lie to bring your point across is telling.
It is not sympathy fueling the argument or pity even but rather the hope that we can be recognised as a socially advanced country
How is the hope to be ‘recognised’ as anything, a good argument for anything? It hints of your selfishness to be want to be seen as being (globally) socially acceptable. If social acceptable is to kill Vui, you’d then argue for him to die? Is that how you decide your priorities?
Are we incapable of forgiveness? Does Vui Kong not deserve a second chance at life?
At this point , you are arguing against the death penalty, not the mandatory aspect. Off topic?
So this has become about my comment?
And do not warp my words, if your inability to comprehend them causes you to do so. I never say it is socially acceptable. You need to stop taking words at their surface level. My comment is not a hard and fast overview of the situation. And it is a comment after all. No doubt you add spice to the argument but really is that what we’re here for.
Singaporeans overwhelmingly support the death penalty during a survey conducted some years ago. It is perhaps for that reason that the death penalty has never been an Election issue. As long as the majority of Singaporeans support it then it is the duty of the judges to determine if the accused is guilty. That does not appear to be a point of contention here. The man is guilty and the law says the penalty is death, then Yong should hang. If you don’t like the law you can persuade your MPs to take it up in Parliament to change it. As long as the law prescribes death for drug trafficking, then death it shall be.
Dear Wallace
I agree with lobo 76. It is u who has add a lot of spice in your comment.
David,
The survey asked about Death Penalty. Not Mandatory Death Penalty. In fact the recent slew of interviews TOC did shows that quite a number of people didn’t even know for drugs, judges have no discretionary powers.
If even judges are not able to make a discretion and judge accordingly, then why have a court in the first place? This is a no brainer. Walter Woon has better get off his high horse, otherwise he may find himself in the same position as an innocent drug mule in his next life if he believes in Karma and incarnation. This is also an example why we need to have our law makers and members of Parliament from as diversified a base as possible so we can have more pluralistic views and holistic approaches. Life is sacred, and is created by GOD. No one has the right to take that away, especially when it is done is such a robotic and unfeeling way. This is too blunt, and brutal.
@incredulous: lol.
Incredulous,
A debate about the death penalty is better than no debate at all, if you have been plugged into the recent discourse about its relevance.
@Incredulous
Least he’s trying to change the system, and yes public sympathy is important as it is society that makes laws. We still live by draconian british laws. Our society has not developed, we are at limbo because thats of what we are taught in schools.
We continue not to change the system then we continue to serve as small parts in the machine that is Singapore. Yes it chews and spits you out.
Incredulous (imposter) or the real mcCoy?
If imposter=>>Really? Trying to save another life is games?
Wonder what you’ll say if his your lawyer in the same predicament.
The only sad thing is Yong Vui Kong got himself a bad lawyer.
A self-styled human rights activists who rather fights for his clients through the public domain than rather in the courts itself.
I wonder how many of the posters have a good enough memory to remember the all sorts of trouble M. Ravi created. Example hurling abusive language and disrupting prayers at a Mosque; which could incite racial hatred or riot. He is no different from Gopalan Nair.
Don’t fall for his tricks. Or one day, we will pay dearly for it.
There have been successful cases in the past by very good lawyers who saved their clients from the gallows. Unfortunately, M. Ravi is not one of the good lawyers.
Singaporean
Mar 18, 2010 0:03
If even judges are not able to make a discretion and judge accordingly, then why have a court in the first place
You forget that when judges are too free to make discretions, some become more equal than others in front of the Law.
Dear Singaporean
The judge is there to judge whether he is guilty or innocent.
Life is not created by GOD. it is created by a sperm and an gg.
If life is sacred, are u a vegetarian?
We need to think very seriously about scrapping the MDP for drug trafficking.
Just look at the case of Tochi Amara, executed in 2007.
When Tochi was 19, he was caught with drugs at Changi airport. His behavior before being caught, and after, indicate that he didn’t know he was carrying drugs.
Even the trial judge in his judgment stated: “There was no direct evidence that [Amara Tochi] knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out of his own.”
But we killed him anyway.
http://en.wikipedia.org/wiki/Iwuchukwu_Amara_Tochi
Incredulous.
The sad thing is you being the imposter. The real Incredulous do not write such trash.
If Ravi were such a bad lawyer as you falsely claimed, how did he achieved the 2 stays of execution? It’s a first. Also the court & AG praised him for his passionate attempts and strategic interpretation of the constitution. Here we have someone trying desperately to save a life and here in this forum we have losers like you talking others down.
You are clearly indeed cursed!
james
Mar 18, 2010 11:09
The ‘thing’ that needs to be scrapped, seems to be the Judge (for this case) .
Incredulous
Wow, you’re such a compassionate human being. Concerned that Vui Kong’s family shouldn’t be given “false hope”. No doubt it’s more compassionate to let him go straight to the gallows, even though there’s a slim chance he may yet be saved. I’m sure Vui Kong’s family will be so grateful for your compassion.
lobo76
But that’s precisely what the MDP does, it scraps the judge, who has no discretion in sentencing (hence the word mandatory)
fyi: mandatory
Function: adjective
1 : containing or constituting a command : obligatory
lobo76
And if you read the case of Amara Tochi properly, I doubt you’d find it in your heart to be so glib
Why have a judge in the case of Singapore where there is a mandatory death penalty? Just use a transaction machine.
Incredulous
You really are obsessed with M Ravi. It seems to be clouding your ability for mature, rational debate. If the level of your argument is indicative of the mentality of those who support the MDP, then I suggest we repeal it right away.
If a person who has been detained can turn to the right of habeas corpus to question his arrest/sentence in court, shouldn’t the same spirit protecting his right to liberty be extended to give all due protection to his right to live?
Mandatory Death Penalty is unconstitutional.
james
Mar 18, 2010 14:18
lobo76
But that’s precisely what the MDP does, it scraps the judge, who has no discretion in sentencing (hence the word mandatory)
No, he still needs to ‘judge’ if he is trafficker or not. I do not have issue with mandatory punishment for specific crimes. If you leave it to the judge, he may be lenient towards the rich and powerful and harsh on the poor. how much they have contributed to the society blah blah blah. Do you want that?
Frankly, I won’t mind mandatory sentencing for all crimes if they were quite specific about the details of the crime. The judge’s only work should only be to judge if one is guilty or not. period. Only then are we all equal in front of the law.
lobo76, in that case, anyone who does anything that results in the death of another person should automatically be sentenced to death. If someone drives a car and kills another person, it shouldn’t matter if the intent to kill was there. The judge’s only work should be to decide if he is guilty of driving the car or not.
lobo 76
To my knowledge, the only person caught with more than the stipulated amount of a drug who didn’t go to the gallows is German student Julia Bohl. Not because the trial judge decided she was not guilty, but because the Public Prosecutor (no doubt responding to pressure from the German government) lessened the charge against her.
Unless you can give me an example where the judge decided someone carrying over the stipulated amount of a drug was in fact innocent, then in practice once the machinery has been set in motion (ie the public prosecutor has charged someone with trafficking) the death sentence follows automatically. Even if the judge thinks, as in Tochi’s case, that the accused didn’t know that he was carrying drugs. Even if the judge thinks the accused made a youthful mistake and is capable of rehabilitation.
And yet the public prosecutor has discretion as to how to prosecute, and the President has a pardon. Isn’t it a bit ridiculous that the only person unable to use his discretion is the judge?
Zefly (aka Joshua Chiang)
Mar 18, 2010 17:33
lobo76, in that case, anyone who does anything that results in the death of another person should automatically be sentenced to death. If someone drives a car and kills another person, it shouldn’t matter if the intent to kill was there. The judge’s only work should be to decide if he is guilty of driving the car or not.
no, you simplified things too much. To my mind, there is still manslaughter, different degrees of murder. The mandatory part, is the punishment for each ‘level’ of causing death or another. Just like drugs having a definite amount, before DP kicks in.
The mandatory part may also work on two separate tiers. underage and adult. If underage, the mandatory punishment for so and so, is this and that. The punishment for EACH specific crime is fixed. It is not my intention to lump ALL homicides into one. That is all your doing.
james
Mar 18, 2010 20:46
You are in fact saying that MDP is not mandatory after all?
Isn’t it a bit ridiculous that the only person unable to use his discretion is the judge?
No, not really. Sometimes, the closest person is the one who is unable to make an objective decision. Having presided over the case, he may have developed ‘feelings’ one way or another. Restricting him may in fact be a good thing.
lobo
No. In answer to your previous point, I was talking about the entire process, not just sentencing.
And if you want to get rid of feelings, why not replace our judges with a machine? Perhaps we could let this machine make all our decisions. Then we could all be perfectly fair and objective all the time.
“Since 1988…over half of [the investments from] Singapore have been tied to the family of narco-trafficker Lo Hsing Han,”
http://www.singapore-window.org/1020naus.htm
james
Mar 19, 2010 1:28
And if you want to get rid of feelings, why not replace our judges with a machine? Perhaps we could let this machine make all our decisions. Then we could all be perfectly fair and objective all the time.
I don’t think there is an AI developed that is sophisticated enough to do the job. In any case, I am talking only about the sentencing part, since MDP IS about the sentencing part.
lobo
No, you said “he still needs to ‘judge’ whether he is a trafficker or not”. Hence you were talking about the whole process, NOT just sentencing. If you make a statement you must be prepared for it to be challenged, and then answer that challenge, not pretend you never made the statement at all.
And going by your argument, sophistication would surely be a bad thing in a judge. After all, you want him to use his discretion as little as possible. So let’s develop a computer-judge – we could call it robo-judge, or perhaps even lobo-judge.
Judging and sentencing is part and parcel of a single process.
I am more inclined to say that since we need a person to “judge” the case, then it is necessary for a PERSON to make a judgement taking into consideration all factors. (that is why the guy is called a “judge” and not a “sentencer!”.
The person will take into account everything before deciding on a sentence befitting of the crime. If it is dealth, then so be it. The judge decided.
Of course we all know that in some other countries, the decision is made by a group of people (the jury).
james
Mar 19, 2010 11:04
lobo
No, you said “he still needs to ‘judge’ whether he is a trafficker or not”. Hence you were talking about the whole process, NOT just sentencing.
Yes, I mentioned that, but only in relation to you saying MDP removes the need for a judge, remember? My point is that MDP doesn’t (remove the judge), because it only affects the sentencing portion of the ‘process’. MDP does not play a part in the process of determining whether one is guilty or not. Do you not see that there are two distinct portions in the ‘process’?
Thus, since we are talking about MDP, I am only talking about the sentencing part.
After all, you want him to use his discretion as little as possible.
Only on the punishment part.
If two people are found guilty of drunk driving, do you want the celebrity to get off with a fine, and the ‘commoner’ to be jailed?
@lobo76
Two people are found guilty of drunk driving. One hits two people – kills one, seriously injures another – and runs away. When he is caught he concocts a story to avoid being punished. The other is caught driving a short distance from the bar to his home. He cooperates fully with the police and admits to committing a crime.
Should both people suffer the same punishment?
lobo,
“Having presided over the case, he may have developed ‘feelings’ one way or another.”
Are you serious? Really? OMG.
lobo
Please read what I said earlier.
“Unless you can give me an example where the judge decided someone carrying over the stipulated amount of a drug was in fact innocent, then in practice once the machinery has been set in motion (ie the public prosecutor has charged someone with trafficking) the death sentence follows automatically.”
IN THEORY conviction and sentencing are separate, but ESPECIALLY where the accused is presumed guilty until proven innocent, you cannot separate the two IN PRACTICE. Is this really so difficult to grasp?
Now, if a judge is SO unreliable and incapable of objectivity (as you clearly believe), then what difference does it make if we only take away his discretion in sentencing? We should surely take away his discretion when it comes to deciding whether a person is guilty or not as well, since he could very well be swayed by whatever it is you think he will be swayed by.
What you seem to be saying is that while human judges are necessary, they are not perfect (they have *gasp* “feelings”!), and the sooner we do away with human imperfection the better. Well, then you will have to do away with humans altogether. Are you really prepared to make that argument?
LOL, Andrew. OMG indeed.
Lynn,
God forbid our judges to be human and have “feelings” for young boys who are about to be put to death. That would be an outrage!
I think the perfect judicial system in lobo’s mind would be one where Judge A presides over the entire trial, except when it comes to sentencing. Then Judge B who has no knowledge of the entire case takes over.
I guess human rights don’t mean much to lobo, since lobo is incapable of appreciating the most precious aspect of humans – feelings.
Nothing can be that black and white, lobo.
@lobo76, you said: “Having presided over the case, he may have developed ‘feelings’ one way or another.”
We have to distinguish ‘feelings’ from what may be called ‘judicial intuition’. Obviously, it’d be wrong if the judge convicted and/or sentenced in a purely emotional or impressionistic manner. But the other extreme is also wrong. As Holmes (a famous U.S. judge) once said, “The life of the law has not been logic; it has been experience.”
When a judge decides whether a fact is true or what sentence is appropriate, he applies his inner convictions about what’s just and right, as much as legal doctrine. In adjudication, there is a rule that an appellate court will not lightly overturn the trial judge’s finding of fact (unless there is a clear error), or the sentence meted out (unless it is “manifestly” inadequate or excessive). Why are these rules in place? It must be that our system places faith in the judge’s wisdom (honed through legal practice and learning) to consider the witness’ demeanour or to assess whether the accused is truly remorseful. And these aspects of the judicial craft aren’t reducible to some algorithm or rule.