The Online Citizen

High Court reserves judgement on judicial review application

High Court reserves judgement on judicial review application
July 28
23:30 2010

Wong Chun Han -

The Supreme Court reserved judgement Wednesday in a hearing on the pardon process for Malaysian death row convict Yong Vui Kong, who is asking for his execution to be stayed on the grounds that he had been denied a fair clemency process.

The 22-year-old – sentenced to death in 2008 for drug trafficking – was asking the High Court to grant a judicial review on his clemency process, which he claimed had been prejudiced by the actions of a Cabinet minister.

If the High Court finds in Yong’s favour, another hearing will be arranged – allowing the court to review his claims that his clemency process had been tainted.

In Wednesday’s hearing, which was closed to the public, Yong’s lawyer M Ravi presented arguments in an attempt to persuade Justice Steven Chong that his client has valid grounds to file for a judicial review.

Ravi told the judge that public comments made by Law Minister K Shanmugam and his ministry in May had prejudiced his client’s clemency plea even before it had been filed.

Yong was awaiting the outcome of his appeal which he made in March when Law Minister K Shanmugam spoke publicly on his case on May 9.

Shanmugam, responding to a question at a public dialogue session, had said that to pardon Yong would be “sending a signal to all drug barons out there” that they should choose as drug mules people who are “young or a mother of a young child”. ““Yong Vui Kong is young. But if we say ‘we let you go’, what is the signal we are sending?” the minister had said.

The Ministry of Law later issued a statement saying the minister had “reiterated the policy and philosophy behind the death penalty and why Singapore adopted a tough stance.”

The Court of Appeal subsequently quashed Yong’s appeal, announcing its judgement five days after the comments.

In his court submissions, Ravi cited as context the timing of the comments, the influence and importance of the Law Minister in the Cabinet, the lack of contrarian views from other Cabinet members, and the rebuffing of Yong’s earlier clemency plea.

Given these circumstances, he argued that it was “reasonable inference that [Shanmugam’s] remarks reflect the views of [the] Cabinet and that [the] Cabinet intends to reject [Yong’s] clemency petition even before it has been filed.”

This represents a “usurpation of the Elected President’s clemency powers” and “a de facto preemptive exercise by [the] Cabinet of the Elected President’s Constitutional prerogative,” he said in his submissions.

As such the “constitutional process for handling [Yong’s] clemency petition has been irreversibly tainted to the prejudice of [Yong],” he said.

Senior state counsel David Chong, responding for the Attorney General, argued that the High Court was not in a position to grant a judicial review to Yong.

The clemency process was not subject to judicial review, he said, citing two cases in Malaysia that provided precedent on the matter.

In those cases the Malaysian courts found that the clemency process was not reviewable, he said.

However, he conceded that there have been no similar cases in Singapore that could provide legal precedence.

In response, Ravi cited cases in England, India and South Africa in which judges ruled the clemency process to be reviewable by the judiciary. He also clarified the Malaysian cases raised by Chong, citing differences between them and his client’s case.

Chong also argued that under Article 22P of the Singapore Constitution, the President has no discretion in deciding the outcome of a plea for pardon.

In addition, Article 22K grants the President immunity from most types of legal proceedings, which therefore makes Yong’s case unreviewable, he said.

Ravi argued in response that if the Cabinet is the effective decision maker in the granting of pardon – as then-Attorney General Walter Woon had asserted in March – then the judiciary would have the authority to review Cabinet actions for bias.

The lack of such an authority would represent a breach of natural justice, he said.

It is unclear when the High Court would announce its ruling on the case, but Justice Chong said he would try to expedite the judgement, following a marathon six-and-a-half-hour-long hearing in chambers.

On a related note, the Malaysian government, The Online Citizen understands, has written to the Singapore government on the matter of granting clemency to Yong. On 5 July, the Malaysian Foreign Minister had promised to “do everything possible within our powers or diplomatic means” to seek clemency for Yong.

Yong’s family has also written to the president. (See The Star Online report.)

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Download Mr M Ravi’s submissions here.

Download the Attorney General’s submissions here.

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