“I therefore hold that the President has no discretion under the Constitution, and specifically under Article 22P, to grant pardons,” High Court Judge Steven Chong said. “The power to do so rests solely with the Cabinet.”
Justice Chong handed down the ruling on lawyer M Ravi’s application for a judicial review of the President’s powers in granting clemency on Friday.
Mr Ravi had applied for a judicial review to ascertain where the powers to grant clemency lie. Specifically he asked the courts to decide on certain remarks by the then-Attorney General, Mr Walter Woon, made in March 2010, and comments by Law Minister K Shanmugam, made in April this year.
Mr Woon had said, during the appeal of death row inmate Yong Vui Kong : “Although in theory it is the President who exercises the prerogative of mercy, in fact it is the Cabinet that makes the decision”.
The Law Minister’s remarks - “Yong Vui Kong is young. But if we say ‘we let you go’, what is the signal we are sending?” – made in April, before Yong’s submission of his appeal to the President, had prejudiced and compromised Yong’s constitutional right to an appeal for clemency, Mr Ravi argued.
On AG Woon’s remarks, Justice Chong agreed with Mr Woon – that the power of granting clemency rests solely with the Cabinet.
Justice Chong said:
“It is clear that the framework under the Constitution is such that in situations where the President is empowered to act in his own discretion, the relevant provision provides for the President “acting in his discretion”. This is to be contrasted with Article 22P where a contrary intention appears from the use of the words, “may, on the advice of the Cabinet.”
On whether the Law Minister’s comments had prejudiced Yong’s constitutional rights, Justice Chong said, “I can see nothing objectionable about the Minister’s statement, which only restated the Cabinet’s policy that the age of the offender per se should not be a ground for the exercise of clemency for drug trafficking convictions.”
He added, “I cannot infer from the Minister’s statement that the Cabinet will not even subjectively consider Yong’s second petition and the materials put before it by virtue of Article 22P(2) when it next advises the President.”
The court was also asked to decide if the clemency process is justiciable (or reviewable by the courts) given the remarks by the Attorney General and the Law Minister. Justice Chong dismissed this argument on these four bases:
The power to grant pardons under Article 22P is exercised by the Cabinet, and not the President, who has no discretion in the matter; apparent bbias is not an available ground on which to review the clemency process; there is no evidence of a pre-determination of Yong’s imminent petition; there is no basis for a substantive right to the materials which will be before the Cabinet when it advises the President on the clemency petition.
“In the absence of any meritorious ground on which judicial review can be sustained, Yong’s application must be dismissed,” said Justice Chong.
Mr Ravi had also argued that Yong should have the right to view the materials submitted to the Cabinet from the Attorney General for clemency purposes. The judge ruled that “Yong has no right to see the materials which will be before the Cabinet when it advises the President.”
The judge noted that the deadline of 26 August for the filing of the clemency petition to the President “is fast approaching”. “In anticipation of the very likely decision by Yong to appeal against my judgement,” Justice Chong said, “I would respectfully invite the Prison authorities to extend the time limit for the filing of the fresh petition until such time as the Court of Appeal reaches a decision.”
Mr Ravi, who is the lawyer for Yong, says he is “deeply disturbed” by the court’s ruling. “This is a presidential process but now we know that Cabinet has the power. This is a significant departure from what we have been told. Because despite what the Constitution says, now we understand the President has no power in these matters. It seems the President has allowed his power to be usurped.”
“Lawyers have been sending petitions to the President all these years,” he said. “This is not only an issue for Yong Vui Kong because the elected President’s powers have been taken away from him.”
Mr Ravi urges the President to exercise his powers under Article 100 of the Constitution and convene a Constitutional Court “to decide this vital issue of public importance.”
“This is an outrage. If the President does not do so, we will petition the President to convene the Constitutional Court as he is the only person empowered by the Constitution to do so. Until this matter is finally disposed off, all executions ought to be stayed.”
Mr Ravi’s next course of action is to appeal today’s judgement.
—————
Police try to block media from attending open court
Confusion reigned in court this morning over whether or not the proceedings should be open to members of the public.
Despite presiding judge Steven Chong noting in his written judgment that lawyer M Ravi’s judicial review application on behalf of Yong Vui Kong raised unprecedented “issues of public importance”, Mr Ravi was not given notice by the Registrar of the Supreme Court that proceedings would be in open court.
Court officers seemed to have been similarly unaware that proceedings would be open to members of the public, and tried to block reporters from the mainstream media from entering the courtroom.
Mr Ravi said he was informed about ten minutes before the hearing started that proceedings were to be in open court, and told by the court clerk to put on his court robes. Court robes are only required for open court proceedings.
Mr Ravi’s paralegal then tried to leave the courtroom to inform the media that they could observe proceedings, but was stopped by the police officers present. One reporter who tried to enter the courtroom was also stopped by the police officers.
Eventually, after Mr Ravi intervened, the public and media were allowed in.
HELP keep the voice of TOC alive!
If you like this article, please consider a small donation to help theonlinecitizen.com stay alive. Please note that we can only accept donations from Singaporeans. Thank you for your assistance.Do you have a flair for writing? Volunteer with us. Email us your full name and contact details to theonlinecitizen@gmail.com
So What is a Presidential pardon if the President is OUT of the equation. Bloody corrupted rhetoric !
It’s like saying, there’s ;
No chicken meat in chicken rice
No alcohol in whisky
No milk in Milk shake
No democracy in Singapore…..oops…true hor?
No money left in our CPF account….oops, true again hor?
No monkeys in our gah-men….errr…ok, this one untrue lah! :)
nay,
not really. You must understand that our President was always a ‘decoration’ at most, due to our current political model.
He would be like the garnish (the chong) on the plate of chicken rice in your example. A very expensive garnish.. but still just garnish. He was never the ‘main’ dish.
It’s just that a certain lawyer suddenly kpkb about “why my chicken rice don’t have garnish”, and people around suddenly thought garnish was ‘important’.
The comment here answers two questions asked by some netizens, namely “why called it Presdiential Clemency instead of “Cabinet Clemency” and “is there a conflict between Article 22′s ‘may’ which suggests some discretion and Article 21′s requirement of the President to follow the Cabinet’s advice”
Having considered both Article 21 and Article 22, I believe the President still has a very tiny room of discretion in Presidential Clemency and hence the term Presidential Clemency is appropriate.
This small room of discretion for the President is NOT the power to grant clemency when the Cabinet advices the President that he should not grant clemency to a case, but the discretion to refuse to grant clemency in the event that the cabinet’s advice is to grant clemency!
Let me explain.
Article 21 requires the President to act in accordance to the advice of the Cabinet unless specific provision is granted in the Constitution.
Article 22 does not have any specific provision to give the President full discretion to act regardless of the Cabinet’s advice.
Article 22′s use of “may” (instead of “shall”) however is an explicit provision that gives the President a small room of discretion to refuse to act in accordance to the Cabinet’s advice ONLY IN THE EVENT when the Cabinet’s advice is to grant clemency!
It is important that the word “may” instead of “shall” is used in Article 22.
Here is where we may need to note very carefully because of small but important nuances as (see the elaboration below).
Article 22, after taking Article 21 into account, seems to mean that -
1. The President does not have any power to grant clemency unless the Cabinet’s advice is to grant clemency.
2. If the Cabinet’s advice is no clemency should be granted for a case, then the President would have no choice but to follow the Cabinet’s advice to refuse to grant clemency.
3. The word “may” in Article 22 does gives a little space of discretion to the President, but not the discretion to grant clemency if the cabinet advices against granting clemency.
4. The word “may” is a provision that empowers the President to have a LITTLE space of freedom of not following the advice of the cabinet in only one instance – the President may choose not to grant clemency even when the Cabinet’s advice is to grant clemency.
5. The word “may” means “is allowed to” in context of Article 22 and 21.
6. “is allowed to” does not mean “must”
7. That means, the President has the freedom to choose not to grant clemency even when the cabinet advices the clemency may/should be granted.
The above interpretation would mean that the word “may” is not inappropriate in Article 22. Otherwise “may” should be replaced by “shall” if the President must followed the Cabinet’s advice in the event that the Cabinet advices the President to grant clemency to a case.
reasonable,
I think that’s about right. That’s how I read it too.
Basically, the Cabinet has to INITIATE any clemency proceedings. i.e the ‘advice’ by the cabinet. What the president powers are, is to say either yes or not to that ‘advice’. So, going by this procedure, it would seem that he has the actual ‘final say’ in matters of clemency. imo, therein lies the basis of why it is called the Presidential Clemency.
I note that another poster has mentioned that should the President act against the advice of the Cabinet, it may constitute a constitutional crisis. What that means, is lost on me. If anyone could clarify what ‘constitutional crisis’ would mean to the average guy, that would be great.
@lobo76:
“Well, you might want to consider this: Even idiots can make brilliant suggestions…As much as what PAP is doing wrong, there is bound to be something they may be doing right, even if it is by chance or mistake. An objective person will see things for what they are.”
Well why don’t you elucidate us here on what those brilliant suggestions and other such extravagant claims that you make about your kind are before just mouthing it off without any proof of them?
lobo76 mentioned “Basically, the Cabinet has to INITIATE any clemency proceedings. i.e the ‘advice’ by the cabinet. What the president powers are, is to say either yes or not to that ‘advice’.”
Not exactly – need to note the nuances invovled:
Because of Article 21, the President has no power to act against the Cabinet’s advice if the Cabinet’s advice is that clemency should not be granted to a person in a case.
Because of Article 22′s “may”. the President has the power to act against the Cabinet’s advice only if the Cabinet’s advice is that clemency should be granted to a person in a case.
In short, the President does not have the discretion to grant clemency if the Cabinet’s advice is against granting clemency, while the President has the discretion to refuse to grant clemency if the Cabinet’s advice is to grant clemency.
Block the media?
Sure got things to hide.
reasonable
Because of Article 21, the President has no power to act against the Cabinet’s advice if the Cabinet’s advice is that clemency should not be granted to a person in a case.
A moot point?
you forgot that no one else has the power to initiate clemency proceedings. Hence the Cabinet will never find themselves in a position to give advice to NOT grant clemency.
Save Vui Kong,
As long as you realised I was talking about ‘idiots’. And I am not ‘their kind’ if you have read my posts in the other threads.
e.g of idiots and brilliant solutions:
In one episode of Friends, one of the guys broke the heater’s switch, resulting in a very hot room as they couldn’t turn it off. None of them knew how to turn off the heater (nb: Ross was a professor, Chandler was some big shot). The show’s ‘idiot’, Joey, then came into the warm room and turn off the power to the heater to switch it off. Everyone else look on in surprise at his brilliant (and simple) solution…
Eg for PAP context:
- Solar panels for some housing estates and one of the airport terminals. (at least it is a step in the right direction of being green)
- More barrier free access for the disabled (still a lot to be done, but at least something was done)
- Personally, COE wasn’t a bad idea, just bad implementation.
- … well it’s hard to come out with more. lol
p.s they are not really idiots (extreme), so their solutions are not brilliant (extreme) as well.
lobo76 wrote that “Hence the Cabinet will never find themselves in a position to give advice to NOT grant clemency.”
Are you very sure of what you wrote above? Otherwise you should wrote using terms like “It seems”, “Apparently” etc
Yong Vui Kong’s case was one example where the Cabinet actually gave the advice that clemency should not be granted.
Hence last year it was reported in the media, quoting the President’s letter, that “I am directed to refer to the petition for clemency of Yong Vui Kong and to inform you that the President, after due consideration of the petition and on the advice of the Cabinet, has decided that the sentence of death should stand.”
According to Article 22, the judge submits the application to the President, who in turn (quoting from Article 22) “shall cause the reports which are made to him by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General with instructions that, after the Attorney-General has given his opinion thereon, the reports shall be sent, together with the Attorney-General’s opinion, to the Cabinet so that the Cabinet may advise the President on the exercise of the power conferred on him”
It seems that it is not the Cabinet that initiate the clemency proceedings; the Cabinet comes into the picture only at the last but one stage.
defendant’s lawyer > judge > President
and then,
President directs the judge to forward documents as follow:
judge > AG > Cabinet > President
‘to lobo76′,
1. why can’t you just stick to one username, instead of using these ad hoc ones? Your first para is already quite clear you are replying to me.
2. You may be right regarding the clemency procedure.
3. I didn’t use ‘apparently’ or ‘i think’, because that may be redundant, given that I started my post with ‘A moot point?’. i.e the question mark already shows my less than 100% certainty. =)
I am no lawyer but I am reading this topic with immense interest because the constitution (or whatever you call it in legal prose) appears convoluted, tautological and incoherent. Now I understand why it is so difficult for lay people to defend themselves in court and lawyers command huge fees just to represent a case.
Our current President is an elected one. By election, it means commoners based their judgment on what they think the President can do and how he can be trusted upon to represent the cause of the people based on humanitarian and compassionate grounds. Not on a set of convoluted legal maze that even lawyers cannot understand. If not for Mr. Ravi, whom I think did the right thing to question the constitution, our understanding of the clemency process may never be corrected. The implication is that lay people will assume that the President has exercised mercy in all pardons, or non-pardons, which will influence their decision at the ballot box.
Now that it is clear the President has no discretion to grant pardons, it leads me to think that maybe we have also misunderstood the power of the President with regard to his discretion over our reserves?
“It seems that it is not the Cabinet that initiate the clemency proceedings; the Cabinet comes into the picture only at the last but one stage.
defendant’s lawyer > judge > President
and then,
President directs the judge to forward documents as follow:
judge > AG > Cabinet > President”
Not exactly. Clemency is extra-judicial.
The situation now is:
Decision made
lawyer->judge: Quash the decision, ask him to redecide.
if judge quashes:
lawyer->president: redecide
So it is not lawyer->judge->president
“Now that it is clear the President has no discretion to grant pardons, it leads me to think that maybe we have also misunderstood the power of the President with regard to his discretion over our reserves?”
No, s/he definitely has discretion for that.
Though the current president’s understanding of it was a little worrying – basically he said as long as they had a plan, he would approve it (merits of the plan didn’t matter).
It is so simple!
When the cabinet say “NO”, the president cannot say “YES”
When the cabinet say “YES”, the president “may” say “NO”.
Great article. I actually generate a revenue by building websites.
In Russia the President Putin created the post of a Prime Minister, became the PM and let someone else be the President. Why. In order to distance his illegal and demonic acts from himself.
Jayakumar’s spelling out the President’s limitations shows clearly that the President post in Singapore is just such an eyewash. Sounds nice, keeper of the reserve etc, but part of the PAP programme to milk the country nevertheless, pointing to the scapegoat, the President’s acquiescence in any controversial action by the PM.If the would be President aspires to be another Ong Teng Cheong, he better not live long for the ISD would have found their way into the Istana in due course. Billions are paid for such a prop, and the prop better toe the line while being President. Taxpayers’ money are liberally spent on a magnificently high salary for the President to make it worthwhile for him to merge into the monolithic structure of the PAP rule. The stakes for the Ruling Party to stay in Power and continue to do powerful things for themselves are very high, compared to which the expenditure on a President is peanuts as they are wont to say.
Prof Jayakumar’s statements about the President’s legal scope is meant as a sieve for choosing the right mentality in the next President. He is by Law restrained over what he can do. So when the PAP does the next big thing for itself, say claiming a share of the Reserves for their descendents and the President can’t stop it, don’t blame the President.Blame our collective bad luck.
Everything that is done is done to protect the PAP’s power over the honeypots of the country-those institutions which make wealth for the Nation. So when you complain that the Ministers and President have mockingly large salaries, the PAP present you with a Salary Review Committee whose members are clones of themselves but not actual PAP members. When you think that a good President can act as a bulwark against the greed of the PAP members, Jayakumar sprank up to remind you that he still has to toe the Law as promulgated by the PAP.My fellow citizens, recall that one wrong word from you will send you to a cell without trial or will have you face a judge who is the bulldog of the PAP. In other words you are tightly watched and tightly gagged. Over the 50 years PAP and their relatives and friends have become managers of the wealth producing State Institutions making magnificent money as salaries and fees. They will not allow any of you to stray inside and witness and disrupt what a fortune producing machinery they have wrought. So understand that Review Committee and the elected President are created to ensure a secure environment for the Ruling Party to continue the status quo at the honey pots of the country. Real change will only come when we as a Society are willing to lose our lives and livelihoods like in Egypt, Tunisia and Libya. Mere shuffling with the existing systems just shuffles how the ISD will deal with you and how the judges will deal with your indiscretions.
When we as a Society are confronted with many many more cardbox collecting citizens in the midst of glittering towers of wealth, then you will have to take the requisite action, for then you will have lost everything.
Don’t put much hope in the Ministerial and Presidential salaries review committee, nor even in the elected President. These are battlements to safeguard the hold that the Ruling Party and its cohort have on the system of fee-taking for managing the country’s wealth producing assets. Suharto’s Indonesia used to own the assets outright. Here the rule of law necessitates a different game plan.
All these straw men, including the elected President will never do anything out of their own initiative. Alternative solutions even on clemency appeals are stopped at the gates of the Rule of Law, upon which the Law Minister prides himself and the whole cabinet preen in chorus, as in a Greek tragedy.
Wonder whether the President’s voluptous increase of salary of almost $900,000 in March 2011 soon after he was brought down by Justice Chong in the Yong Vui Kong case in August 2010 as having no powers for clemency is a perverse show of power by the PAP. For it has been clarified by the bigwigs that the power of clemency has always resided in the Cabinet of Ministers in Parliament. I wonder what other of his powers will be usurped when expedient to do so.I wonder why have a President at all, if you do not leave him with a modicum of self propulsion. Why pay 4 million dollars a year to a useless caricature of a President? I think the answer lies in the legitimization of the Acts of the PAP.In the last 10 years they have been doing great things for themselves: Appointing themselves to choice honey pots of the Land, paying themselves farcifically high salaries, bringing a million foreigners to work here,adding 120,000 new citizens per year for the last five years and of course suing the life out of their opponents by means of a corrupt judiciary. If things turn bad, they could always recoil and have the President protect their acts. In fact he is assumed to listen to all proceedings in Parliament and demur to those he does not like.Characteristically he has in fact not demurred to anything, but that would not absolve him if a wrong is committed by the PAP. At the rate they go, the PAP is bound to overstep common decency very soon ( as in raising their own paychecks). The President is their steady lifeguard lolling in beaches of bright sand, intrinsically harmless, showing the benign face of a ju-ju. He also serves who only stands and wait, on the beaches of strategy. For the waiting he reaps millions of taxpayers’ money. But this is to ensure billions being paid to the PAP cohorts throughout the Land continue to flow.