Kirsten Han /
The Court of Appeal, made up of Chief Justice Chan Sek Keong and Judges VK Rajah and Andrew Phang, have unanimously dismissed Yong Vui Kong’s appeal.
Yong was appealing for a judicial review of the President’s powers in the clemency process and of Law Minister K Shanmugam’s comments.
Shanmugam’s Comments
At a community event in May 2010, Mr Shanmugam responded to a constituent’s question about the mandatory death penalty by saying that it was “a trade-off” for Singapore’s “safety and security”.
“If Yong escapes the death penalty, drug barons will think the signal is that young and vulnerable traffickers will be spared and can be used as drug mules, argued Mr Shanmugam.”
– TODAY, 10 May 2010
In his judgement, CJ Chan supported High Court Judge Steven Chong’s ruling that Mr Shanmugam’s statements “did not constitute apparent bias (amounting to predetermination)”.
He asserted that the Law Minister’s statements merely reflected “the legislative policy” of the mandatory death penalty for drug trafficking and that “youthfulness is… not in itself a ground for granting clemency.”
The President’s Powers
In the course of the hearing on the constitutionality of the mandatory death penalty, then-Attorney General Walter Woon said that “[a]lthough in theory it is the President who exercises the prerogative of mercy, in fact it is the Cabinet that makes the decision.”
This statement prompted Yong’s lawyer Mr M Ravi to take out an application for a judicial review of the President’s powers in August 2010. High Court Judge Steven Chong turned down the application. The decision was affirmed by the Court of Appeal today.
In a joint summary judgement with Justice Rajah, Justice Phang stated that “the terms of Article 22P [of Singapore’s Constitution] make it clear that the President has no discretion as to how the clemency power should be exercised in a particular case.”
“The President may only exercise the clemency power in favour of an offender in circumstances where the Cabinet has advised him to do so,” he added
CJ Chan also upheld Judge Chong’s ruling that the offender seeking clemency does not have the right to see the Article 22P(2) materials submitted to the Cabinet for them to decide on how they should advise the President.
Article 22P(2) materials include the report of the judge who tried the case, the report of the Chief Justice or presiding judge of the appellate court and the opinion of the Attorney General on the judge’s reports.
Following the verdict, Ravi expressed his disappointment. “It’s no longer the President’s clemency; it’s the Cabinet’s clemency,” he said. “So I don’t understand why the President’s office is still in existence, if he doesn’t have any work to do.”
He urged the Malaysian government to take the case to the International Court of Justice and said that he would be filing a complaint with the Human Rights Council, before the Universal Periodic Review of Singapore’s human rights record.
Members of Singapore’s civil society have also expressed their disappointment with the verdict.
“The judgement has come back in a way that makes us question what is the value of 22P, and what is the value of the choice that the President has,” said Ms Braema Mathi, President of human rights NGO MARUAH. “That is the whole thing that I find really disheartening. He holds the highest level, so where is the space for him to assert his choice?”
Yong’s older brother, Yong Yun Leong, told the media that despite losing this appeal, he would not be giving up the fight for his brother’s life.
“Both Vui Kong and I hope that Vui Kong’s story will remind young people not to be misled by drug syndicates,” he added.
Yong will now be given three months to file his clemency petition.
