President has no discretion in clemency appeal (Full report)

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“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.

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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.