The Court of Appeal today has rejected the appeal of Yong Vui Kong and declared that the mandatory death penalty is constitutional.
Yong had appealed against his death sentence for drug trafficking.
In a landmark ruling, Chief Justice Chan Sek Keong affirmed the line of decisions passed in Ong Ah Chuan and Nguyen. He ruled that Article 9 (1) of the Singapore Constitution, which establishes that ‘no person shall be deprived of his life or personal liberty save in accordance with law’, neither precluded ‘inhuman punishment’ nor did it embrace customary international law that prohibits the mandatory death penalty, as lawyer M Ravi had argued.
CJ Chan said that the rulings of certain Caribbean jurisdictions against the mandatory death penalty were concerned with murder cases, and as such had no direct application to the case at hand. Furthermore, he noted the lack of an explicit prohibition against inhuman punishment in the Singapore Constitution.
CJ Chan mentioned that reading the constitutional proviso of Article 9 (1) to forbid ‘inhuman punishment’ would be an act of ‘legislating … new rights under the guise of interpreting’. He noted that the government had considered – and rejected – a proposed constitutional clause against inhuman punishment in 1969.
The court also did not find applicable the Indian Supreme Court ruling that declared the mandatory death penalty inconsistent with their constitutional equivalent of Article 9 (1). CJ Chan found that to accept the Indian standard of a ‘fair, just and reasonable procedure’ would require judicial interpretation of the scope of ‘reasonable’ – thus potentially leading to a conflict with Parliament. Affirming the decision of Ong Ah Chuan, the court believes that any law that conforms to the ‘clear’ principles of natural justice would suffice.
Primacy of domestic law
CJ Chan also declared that Article 9 (1) did not sufficiently encompass customary international law. The court reaffirmed that a rule of customary international law would only qualify as a valid local law in so far that it remains consistent with domestic statutes.
Thus, CJ Chan established that any change in customary international law or legal developments in foreign jurisdictions would have little bearing on the scope of Article 9 (1).
CJ Chan also found in favour of former Attorney-General Walter Woon’s arguments that in the absence of an ‘extensive and virtually uniform state practice’, there was consequently no customary international law against the mandatory death penalty.
CJ Chan furthermore rejected the argument that the 15g threshold of diamorphine that triggers the mandatory sentence was arbitrary, finding it as a valid classification since it constituted an intelligible and rational differencier.
As a parting remark, CJ Chan observed that Yong’s appeal have had mustered the most substantive constitutional arguments against the mandatory death penalty. As such, the rejection of this appeal would mean that ‘under Singapore law as it stands, further challenges in court [against the mandatory death penalty] have been foreclosed’.
‘Deepest disquiet’
Before the session adjourned, M Ravi registered his ‘deepest disquiet’ to the court over statements made by Law Minister K Shanmugam about the case in a dialogue session last weekend.
Speaking to reporters after the ruling, Ravi raised his concerns that the Law Minister’s ‘specific’ comments about Yong’s appeal would transgress sub judice laws prohibiting public opinions on cases awaiting judgment.
Even though a presidential pardon remains possible, Ravi noted that, in practice, it is the Cabinet that decides on the outcome of clemency pleas. He thus believes that the articulation of such statements by the Law Minister would deny Yong a fair clemency, as the process has already been ‘poisoned by biasness’.
Other than questioning the effects of the Law Minister’s comments on Yong’s case, Ravi plans to file a legal brief to highlight the defects of the clemency process. He said that process was ‘flawed’ by the denial of the accused to see the report and the involvement of the Attorney General’s Chambers in the clemency deliberation. Ravi asserted that consulting the AGC on the very same case that it has prosecuted would violate principles of natural justice, and thus deny Yong of a fair chance at clemency.
By: Khairulanwar Zaini
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Dear all, esp new frontier
The reply from Minister Shanmugam is correct. The person did ask about the case and whether the judges decision on the case, including the stay of execution, will affect a change in the law in the near or far future. He specifically mentioned that he did not want to speculate on this case and whether there will be a change of law. The rest of the reference was to MDP. He mentioned offenders as “young boys or mothers with young child” and not specifically to this case. He mention Yong’s name because I was asking in that specific direction. As with all dialogues, the reporter cannot write down the whole question and answer as it is a speech rather then text.
How do I know? Because I was there, I was the one asking the question
No one can make this decision to terminate another person’s life on the basis that this will saved thousands of other lives if:
1) the person is not the direct problem cause which are the drug lords/barons and especially if this person is a “young boy/girl or mother with young child”
unless the decision-maker if presented with the situation that he can eradicate the direct problem cause but will require the sacrifice of his own life or one of his own family member’s life, will do so :
2) without hesitation and second thoughts
Otherwise second thoughts must be given to this decision made before the action is taken.
Sgporean,
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Is Sham going to give the same excuse as U-Turn Ng?
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That he “could have chosen his words more carefully”?
The issue is really about “The Death Penalty” law being “MANDATORY” and “DISHED” out by Parliament and tying up Court Judges’ “hands”. Is this justice and conscionable?
http://imcms2.mediacorp.sg/CMSFileserver/documents/006/PDF/20100517/1705CAC015.pdf