The highest court in the land yesterday upheld a lower court’s view that the power to grant clemency lies with the Cabinet, not the President.
Before a packed courtroom, the three-judge Court of Appeal unanimously dismissed the final bid through the courts by 23-year-old drug trafficker Yong Vui Kong to escape the gallows.
His only remaining chance of a pardon lies beyond the courts – with the President, who acts on the advice of the Cabinet.
Represented by lawyer M. Ravi, Yong had sought judicial review of the clemency process in the latest of his attempts to have his death sentence set aside.
In this bid, Ravi took issue with comments made by Law minister K. Shanmugam about the death penalty, days before judgment was to be delivered in Yong’s appeal against his death sentence.
In his application for judicial review before High Court judge Steven Chong in July, Ravi – seeking an indefinite stay on the death sentence and clemency for his client – had argued that under the Constitution, it is the President, not the Cabinet, who has the power to decide whether or not to grant clemency to someone on death row.
He further argued that, in usurping the President’s power in this regard, the Cabinet had jeopardised a fair and just determination of his client’s intended clemency petition.
The Cabinet should thus be barred from the clemency process as it has been ‘tainted’ with apparent bias, he said.
Ravi added that his client was entitled to see all documents submitted to the Cabinet in connection with his intended clemency petition.
Justice Chong rejected his arguments in August, and held that the power to grant a pardon lay with the Cabinet, not the President.
Yong’s next stop was thus the Court of Appeal, comprising Chief Justice Chan Sek Keong and Judges of Appeal Andrew Phang and V.K. Rajah, which delivered its decision yesterday.
Justice Phang said it was clear under the Constitution – and supported by legislative history – that the President has no discretion in exercising the power to grant clemency; he does so in favour of an offender only where the Cabinet has advised him to do so, he said.
CJ Chan said the merits of any clemency decision are not reviewable by any court of law, unless the clemency power has been abused or exercised unconstitutionally.
He agreed with Justice Chong’s ruling that Shanmugam’s statements did not constitute apparent bias. He said the minister’s statements in relation to the youthfulness of an offender merely reflected legislative policy – that the death penalty will come down on all serious drug offenders aged 18 and above, and that youthfulness was not a basis for a pardon.
CJ Chan noted in the judgment that the Constitution does not give an offender any right of hearing during the clemency process; neither does the offender have any right of access to the materials – the reports of the various judges or the opinion of the Attorney-General on those reports – which the Cabinet has to consider in its constitutional duty to advise the President on the exercise of the power of clemency.
Yong, his legal options exhausted, was expressionless yesterday. One of his two brothers present in court, Yun Leong, 26, told reporters that although he was prepared for the worst, he was nevertheless disappointed with the decision.
Ravi told reporters: ‘I don’t understand why the President’s office is still in existence if he doesn’t have any work to do.’
He said he will see Yong next week and intends to file a clemency plea.
Also in the public gallery were Singapore Democratic Party member James Gomez and British author Alan Shadrake, who is awaiting the hearing of his appeal against a contempt of court conviction over his book on the death penalty.
Yong’s brothers Yun Leong (left) and Yun Chung (in blue) leaving the High Court yesterday with lawyer M. Ravi, who said he will see Yong next week and intends to file a clemency plea.