Friday, 13 August 2010

Misunderstandings about the Singapore Constitution

The Online Citizen has done a good job reporting the judgment given by Justice Steven Chong today in the Yong Vui Kong case.

The outcome was not in the least bit surprising to me. The Constitution is quite clear -- the President has no discretion on clemency applications, but is instead required to act in accordance with the advice of the Cabinet. To my mind, this judgment is entirely correct in law.

Understanding this better requires a little trip back in legal history. Singapore started off with a constitutional presidency -- the President was the head of state, but was a nominal one and was really a ceremonial post. This was consistent with Singapore being a parliamentary democracy in the Westminster tradition, where executive power lay wholly with the elected government of the day. If you will, the President was the republic's equivalent to the constitutional monarchy in the UK (i.e. the Queen of England).

Under this approach, the President (just like the Queen) has no discretion and must act in accordance with the advice of the Cabinet. A constitutional crisis ensues if the President fails or declines for any reason to act in accordance with the advice of the Cabinet.

But this changed with the Elected Presidency amendments in 1991. They introduced a hybrid approach whereby the President was to be elected, with some veto powers over executive decisions. These veto powers may be exercised by the President in his/her sole discretion, i.e. the President does not need to follow the advice of the Cabinet on such matters. But on all matters, the President continues to be bound by the advice of the Cabinet.

Article 21 of the Singapore Constitution sets out this position. It lists those decisions where the President may use his/her own discretion. All other decisions must be made in accordance with the advice of the Cabinet. It should be clear from Article 21, that the power to grnat a pardon under Article 22 is one where the President is legally bound to follow the decision of the Cabinet.

None of this is actually controversial. When I studied this in law school (and my graduating class is having our 10-year reunion tomorrow, so this was 12-13 years ago), this was taught as a straightforward fact and there was no controversy on this. Indeed, even the Wikipedia entry on the President of Singapore (current last edit being on 18 July 2010) correctly correctly describes how the powers of the President may be exercised.

I want to be clear that I am talking about the law as it is, i.e. applying a "positive" approach to the law here. I am not, in this post, talking about what the law should be (i.e. applying a "normative" approach). I must confess that, bearing in mind that we are a parliamentary democracy and bearing in mind the stated objectives of the Elected Presidency, I see no particular reason why the power to grant a pardon should be one where the President should be entitled to use his/her own discretion and not be bound by the advice of the Cabinet.

Finally, I think it has to be said that the courts have been very fair to Yong Vui Kong ever since the appeal process began in earnest. They have given Yong and his lawyer M. Ravi every opportunity to make every argument possible. In this particular instance, Justice Chong's "invitation" to the prison authorities to extend the deadline for submitting a clemency application, pending a decision by the Court of Appeal on any appeal against his decision, is a very welcome statement.

49 comments:

Learner said...

I was thinking should Singapore has a house of common or congress and would it helps Singapore and make our govt. more transparent and accountable to the citizens?

Loh Hon Chun said...

Nathan is a favourite by PAP.

承楊芸承楊芸承楊芸 said...

百發百中不是一試就成的。..................................................

Alan Wan said...

If the Cabinet has sole discretion to grant clemency and has indeed already made up their mind from what the Law Minister Sham has reiterated, any futher extension is tantamount to give Yong a few more days to stay alive.

That's all about it. What is so fair about about extending his live for a few more days ? Eventually is still put to death.

It is a real pity that Yong did not have a JC or a NMP as his parents. If he had, he need not even have to appeal for clemency !

That is the real cruety of perceived justice in Singapore.

europhia core said...

I think the issue here is not about the constitutional powers confered to the President or the Mandatory Death Penalty per se.

It is about the broader implications on issues of transparency such as use of our public reserves.

I can see the issue that is currently drawing flak from the public.

Mr Siew, do a follow-up on this and address where the constitution stands on Presidential powers and transparency in the not-too-distant future, because SOME Singaporeans are too "stupid" to be able to see the forest between the trees.

Keep up the good work.

Wei Meng said...

Mr Siew, would you agree with my reading that while the President can only use his power of clemency on the advice of the Cabinet, he is free to decline to use that power should he be so advised? (In other words, the only discretion he has in the matter is a veto of clemency.)

I base this upon the following in Article 22P (1): "The President, as occasion shall arise, may, on the advice of the Cabinet...", the key phrase being "may, on the advice of the Cabinet".

Rojak said...

Hmm, you said that the President has to act on the advice of the Cabinet.

Okay, sure. But doesn't that exist on the assumption that the Cabinet is flawless, incorruptible and impartial? Like a friend said, who's going to watch the people who impose the rules, if there's no one around? You can be damn sure that the Cabinet and even LKY is well aware of Singapore's relations to Lor Hsing Han.

Sure, the court system may be fair and just. However, if the Cabinet decides on a certain ultimatum, would the Court be able to challenge or even overturn it? Or perhaps I'm acting on the assumption that it's the Cabinet who decides Yui Kong's fate. And not the Courts.


Rojakgirl

Wei Meng said...

@Rojak: In theory, parliament, and therefore the Cabinet, in voted into power by the people as representatives of the people. The electorate serves as the watchdog in this case, so if you think they are not doing a good job, vote them out next election.

The problem is that often we have no chance to vote because of walkovers.

Gary said...

Kum Hong,

If that is the case, please tell me the entire purpose of this whole charade of seeking a presidential 'clemency' when in fact there is no such thing.

WHY DRAG THE PRESIDENT INTO A PROCESS IN WHICH HE HAS ABSOLUTELY NO ROLE TO PLAY EXCEPT AS A GILDED POST OFFICE? AND WHY IS THE PM AND HIS CABINET HIDING BEHIND THE PRESIDENT AND NOT THE COURAGE OF CONVICTION TO FACE THE 'MOB', SO TO SPEAK? WHAT IS THE PURPOSE OF SUCH A PROVISION IN THE CONSTITUTION WHEN IT IS SUPPOSED TO BE THE FUNDAMENTAL DOCUMENT THAT PROTECTS THE BASIC RIGHTS OF THE PEOPLE?

It should be removed to remove any further misapprehension by Singaporeans of the president's role in the legal process of this country.

(The block capital is mainly for emphasis, not anger.)

Rojakgirl said...

@Wei Meng

Hah but any process can be hijacked and even abused. Even laws meant to deliver mercy can be used to conduct abuse, especially in the hands of unscrupulous lawyers or tyrants and despots. Why? Because everything operates on certain assumptions and presumptions. That's how social engineering is sometimes used by hackers and the like, to obtain passwords and important clues from people over the telephone.

So, there we go: because of a couple of unfair and unjust elements, an entire process/structure which was once implemented to be just and upright has become corrupted and evil. And thanks for the clarification and education.

Siok said...

Hi Kum Hong

Do you really think that it is fair for the Law Minister to make the public statement he did while the case was still under review??

http://app.mfa.gov.sg/pr/read_content.asp?View,14940,
Mr Shanmugam did not want to speculate on the future of the sentence, but set out his thinking on why it is still in place.

He urged the 200 residents to look at cities such as Sydney, New York and elsewhere and see the 'number of lives that are spoilt' through murder, kidnapping and the free availability of hard drugs.

'You walk down the street, there's a needle exchange centre, because the police have given up on it,' he said.

But here, parents appreciate that their children cannot freely get drugs. Most countries have lost this fight.

'But you won't have human rights people standing up and saying: 'Singapore, you've done a great job, having most of your people free of drugs',' he said.

The duty of government, he added, is to ensure that young people have the maximum ability to fulfil their potential:

'You won't hear that written about: that we do that in Singapore. You won't hear about how many thousands of lives are lost to drugs in other countries.'

But the difficulty that the Government has in explaining its stance is that the trade-offs between having the death penalty and not having it, are not apparent:

'The assumption is that nothing else will change. Singapore will be exactly the same, (so) why do we need the mandatory death penalty?'

But had Singapore not taken a tough line, it would have been swamped with drugs, given that it is an air and sea hub near one of the world's great heroin production centres, he added.

'Yong Vui Kong is young. But if we say 'We let you go', what is the signal we are sending?' he asked.

'We are sending a signal to all the drug barons out there: just make sure you choose a victim who is young, or a mother of a young child, and use them as the people to carry the drugs into Singapore.'

And when they are caught, there will be a lot of sympathy generated: 'You will get 10 more. You will get a whole unstoppable stream of people coming through as long as we say we will not enforce our laws.'

Learner said...

Punishment is not always an effective solution thou it might deter it. Education is still the best approach but slow pace. We should also educate pple not to take drugs. Less and no demand = no further supply.

In Japan, children are taught since young not to litter but here in Sg, we actually have to tell pple not to litter ELSE fine. Sad but true.

Yawning Bread Sampler said...

Kum Hong is absolutely right. I know this arrangement looks awfully strange to Singaporeans, but a bit of history will explain why it is like that.

The Westminister system evolved in England. Centuries ago, the king actually ruled. He was the one making decisions. The problem was, most kings were pretty terrible rulers -- after all, they didn't get to be king through merit. Over the centuries, parliament took away more and more powers from the king, and generally, it has been for the better. The position today is that the monarch is a constitutional monarch, he does nothing of his own volition. The monarch can only act ON THE ADVICE of his ministers.

Singapore's basic system is descended from this tradition.

I see no reason to disturb the entire system just because of one case. This doesn't mean appeals for clemency, in particular, for Yong, should not be attempted. They just need to be directed at the right parties.

Gary said...

Alex,
The Westminister model appears to have come full circle for the King or Queen/President has now become (or appeared to be) the 'intercessory' for the people to check the possible excess of govt/parliament!

But, based on things in the black and white of our constitution, as far as pardons go, it is a misrepresentation. A 'Presidential Pardon' is in reality a myth, a figment of imagination perpetuated by the govt and all those trained in law who knows better. You can blame it on the convoluted language that such matters are couched in that can lead to such 'misunderstanding' which is virtually universal, but the fact of the matter is NOBODY has ever come forward in the past to apprise the common folks on the truth (myth) of presidential clemency. In the event, the president is NOTHING more than a glorified POSTMAN between a petitioner and the PM and his cabinet.

Is there any reason why this bit of the president's chore cannot be expunged from his list of duties? At $3M+ per year salary, surely there are better things for him to do?

im4Spore4gd said...

Thanks for your useful comments.

Siew Kum Hong said...

@Learner: If you are suggesting that we adopt a bicameral system (i.e. have an "upper house", e.g. a Senate, in addition to Parliament), then I think that's been suggested before. I think there is some merit (but also some challenges) to it.

@europhia core: actually, there is no need to do a follow-up as you suggested. The fact is that we do not have any freedom of information legislation, and so there is no legal obligation on office-holders in Singapore to disclose information or release documents to the public. They have the right and power to decide what should be disclosed, or whether anything should be disclosed at all. I personally disagree with this and have in the past called for such FOI legislation. Many countries (even China) have such legislation, although the scope and efficacy varies. Selangor in Malaysia is contemplating it as well.

@Wei Meng: The President's refusal to act in accordance with the advice of the Cabinet, when required to do so under the Constitution, would spark a constitutional crisis. That is not a desirable state of affairs. In this case, I believe that the word "may" does not mean that the President truly has discretion.

@Rojak/Rojakgirl: As Wei Meng has pointed out, the Cabinet is an elected government that is accountable to the people. There is no assumption that the Cabinet will be "flawless, incorruptible and impartial", although of course there is the wish/desire/intent. Even the PAP's rhetoric recognises this.

@Gary: Alex Au aka Yawning Bread has answered this. The only thing I would add is that the Elected Presidency has altered things significantly since 1991, such that the Presidency is no longer a purely ceremonial post.

@Siok: I would prefer not to comment on the fairness or otherwise of the Minister's comments. I can only say that if I were in that position (a most improbable if not impossible proposition, I must point out), I would most likely not have made those comments.

@Alex Au aka Yawning Bread: Thanks for filling in that gap!

Yawning Bread Sampler said...

To Kum Hong, I'm not sure if "altered things significantly" is the description I would use. The new discretionary powers given to the Elected President are quite limited in scope, albeit powerful should reserves be in question. Still, in normal circumstances, I don't foresee the President standing in the way of an elected government's request, even a non-PAP government's.

Another thing I have noticed is the conflation of "Presidential pardon" and "grant of clemency". I notice that even the Constitution does not make a clear distinction, but in plain English, they mean different things. A pardon expunges the sentence, but with respect to the death penalty, clemency only reduces it to imprisonment. I don't know how significant this conflation is in the ongoing debate.

Gary - the President has not become an intercessory for the people to check the excesses of the cabinet. Some people might wish for it, but let's not confuse wishing with reality.

Language pertaining to affairs of state always have tradition enmeshed in them. It's not that difficult to understand. Another example of tradition, this time in the UK: when somebody, say, John Smith is prosecuted for a crime, the case is called Crown versus John Smith. This doesn't mean the palace is doing the prosecuting. Everybody knows it's the Crown Prosecution Service, which is part of the executive, and which certainly does not take instruction from Queen Elizabeth.

Gary said...

Alex,
Thanks.
But, when you track the process the appeal actually gets routed to/through the president (however you want to call it). And, as far as we now know, the final decision rests exclusively with the PM and his cabinet. So the obvious question begged is why this embellishment? What is the value of this protocol? To my minimalistic mind, it conveys a picture that's far far away from reality, but of immense propaganda value which goes something like this:'The convict has been given 'all' the chances/avenues possible INCLUDING access to the president himself to save him from the gallows'. Clearly, the PAP in spite of its oft- professed pragmatic approach is not above the rigmarole of playing 'mind tricks' like that where it suits a political purpose.

But we all know it is nothing more than 'wayang kulit'.

Good that you pointed out the distinction between clemency and pardon. The latter is like asking for the sun if clemency is like a lunar landing.

蕾蕾 said...

心中醒,口中說,紙上作,不從身上習過,皆無用也。..................................................

Siew Kum Hong said...

@Alex: I think the EP has in fact changed the institution significantly -- not so much in terms of the substantive powers that are now vested in the office (which I agree are limited in the greater scheme of things), but more in terms of the perception of the office. The comments here are consistent with that.

Now that the President is elected, there is a perception that the President has powers, although it seems that there is limited public understanding of the scope and nature of those powers. More importantly, the President is now also seen as being accountable to the people, to at least some extent, by sheer virtue of the fact that it is technically an elected office (putting aside for now the problems with the eligibility requirements).

It would now be difficult for a President to claim that his/hers is a purely ceremonial post, because it is not. And it is not always easy to delineate clearly where the scope of the President's powers ends. So that is what is different. And yes I think that is significant.

Tan Ah Kow said...

Mr Siew on this point:

"If you will, the President was the republic's equivalent to the constitutional monarchy in the UK (i.e. the Queen of England).

Under this approach, the President (just like the Queen) has no discretion and must act in accordance with the advice of the Cabinet."

I think you need to research more about the UK system before you equate the Singapore's Presidency to the Queen in the UK.

In the context of the UK, the Queen DOES have discretion to make her own decision even if it went against the advised of HER Cabinet. Note the operative word here being HER Cabinet. That is to say, the Cabinet and for that matter all UK citizen are her subject.

You may argue that all these power are theoretical but this does not mean she can't exercise them. Oh yes she can if she wanted to. These powers are Royal Prerogatives, which she willingly DELEGATE it to her Cabinet -- especially in cases of Clemency. I say again she can choose to exercise that power if she wanted.

I am not aware of any modern day example of the queen exercising such power but the power has been invoked by her representative in Australia to remove an elected government -- albeit invoke by a representative the Governor-General in Australia. So you see such power are not as theoretical you might think at least in the UK term. In terms of clemencies, she has delegate to the respective Cabinet member of the different nations in the UK and since she has not taken to exercise it herself, many outsider has the mistaken believe that she is powerless to do so herself.

However, you are right to say that the Queen MUST not (and she does not out of her own choice) exercise such power. That is because, this power can be taken away by the people through the legislature, which itself is sovereign and can't be taken away by the Queen. In other words, Westminister can take the Queen powers away if it so chooses but at the moment it is accepting that the Queen has those powers because it is believe that the Queen as an institution can act as a check. When I say a check I mean real check not the kind of Singapore style check only when in agreement.

Of course, Singapore Presidency is not the same as the UK Queen (or for that matter the Canadian Queen or Australian Queen). What I am at this juncture trying to point out is that you have to be more precise when you choose an analogy to argue your case.

Often, I have this suspicion that when the UK is held as an example, well purely to serve as Straw man argument!

Maybe you should just focus on making your argument on the basis of the intent of the Singapore Constitution and not just its text. Avoid analogies that served only to confuse.

Tan Ah Kow said...

Mr Siew on your point:

"If you will, the President was the republic's equivalent to the constitutional monarchy in the UK (i.e. the Queen of England).

Under this approach, the President (just like the Queen) has no discretion and must act in accordance with the advice of the Cabinet."

When you say must, I am guessing you mean "no prerogative", right?

If that was the case, I have to point out one detail about the Queen in the UK that you might be mistaken as with many outsider do. The Queen does have prerogative -- call Royal Prerogative -- to "veto" executive decision. She has Chosen NOT to do so not because she can't.

Whilst it is very rare, the Royal Prerogative has been exercised to remove an elected government in Australia. So you see the Queen's power is not theoretical.

When you try to compare Singapore and the UK make sure you do your research.

reasonable said...

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.

Chee Wai Lee said...

Tan Ah Kow 17 August 2010 03:41 -
Please cite the occasion where Royal Prerogative was invoked to remove an Australian government. I cannot find any historical reference to what should be an important event through an online search.

All I need is a date and a brief description of the event. Both "History Australia Government" and "Royal Prerogative Australia" turned up nothing.

Wei Meng said...

I think this is what Tan Ah Kow was referring to:

http://en.wikipedia.org/wiki/1975_Australian_constitutional_crisis

As Kum Hong has stated, it is a constitutional crisis when the advice of the cabinet is not followed.

Tan Ah Kow said...

Wei Lee

The year was 1975 I think and the sacked Aussie PM was Gough Whitlam and the AG was Sir John Keer. But you can check out the following blog as a potential source for more info.

http://electionblog2010.blogspot.com/2010/04/queen-sacks-pm-you-heard-it-here-first.html

Mr Siew,

Apologies for repeat comments. First was reported as too long and not permitted. Hence second shorter version.

Chee Wai Lee said...

Thanks for the link.

I had initially thought the Queen was directly involved somehow. Turns out to be her appointed executive. Interesting for him to be caught between a weak government and a strong opposition.

Siew Kum Hong said...

@Tan Ah Kow: I don't agree with your apparent argument that (a) the Queen has a royal prerogative, (b) the Australian Governor-General apparently has certain powers under the Australian Constitution that may be exercised in his/her discretion, and (c) hence the Singapore President also has discretion.

The Queen is bound by constitutional conventions in the UK. The GOvernor-General draws his/her powers from a written Constitution that differs from ours. The Singapore President draws his/her powers from our Constitution. Each of them would have discretion on some matters. Those matters are likely to differ across the different countries. But this does not invalidate the analogy I sought to draw, of them being essentially constitutional heads of states of parliamentary democracies, who by convention or by written constitution generally act on the advice of the Cabinet (failing which a constitutional crisis results).

I am not familiar with English or Australian constitutional law, so I really have little more to contribute on this line of discussion.

@Chee Wai: Thanks for the helpful links.

Tan Ah Kow said...

Mr Siew,

Ok setting aside the exact consitutional arrangement of the UK, my intention of pointing out is really to highlight to you that using the UK as an example is fraught with inconsistencies in this particular argument. I'll leave it to you to examine more about the UK arrangement if you so incline to do so.

However, my point is really targetted at your point that: "the President has no discretion on clemency applications, but is instead required to act in accordance with the advice of the Cabinet" and you then you the example of the UK to illustrate similarity, which I take you mean "hey this is standard practice so accept it".

I will not dispute the fact the consitution of Singapore may indeed preclude "discretion" on the part of the President to act and let's take the that as a fact.

On this point, I am quite certain that this practice does diverge from the UK. You see in the UK clemency, as it stands now(1), is granted by means of Royal Prerogative. Which means, it is a prerogative "delegated" from the Queen (as an institution and person) to the Justice Ministers in England and equivalent in Scotland(2). In other words, the Justice minister does so in the name of Queen to grant clemencies, through the Royal Prerogative invested in him. It is a prerogative afford by the Queen, which she could withdraw, who happens to be represented by a Cabinet minister. So you see the difference now?

Now if your original argument that the President of Singapore has no prerogative -- i.e. CANNOT DO SO -- under the Consitution. In any case, it is already a LEGAL ruling in Singapore. Then clearly it is different from the UK arrangement.

In the case of the Queen of UK, she has the prerogative to grant clemency, it just that it is carried out through a representative. Again this does not change the fact that she has the prerogative to do so whereas in Singapore that is not the case.

You than expand on consitutional crisis as the mechanism as your argument as "no prerogative". A constitutional crisis is not the same as "no prerogative".

When you have one national soverign institutions making a contridictory decision against another, yes it may result in a "crisis" but that does not necessary mean "no prerogative" vested in the different parties. Each institution still have the prerogative to do -- well in short -- as they feel right.

Your argument is that a constitutional crisis is bad, but it happens. By no means a bad thing nor does it necessary lead to revolt -- as in the case of Australian PM being sacked.

In fact, such crisis could be a manifestation of a checked being made on another (bad) one. Of course should such a thing occur it has already entered the nuclear option.

In the UK case, who knows, the Queen's prerogative could come in handy when Parliment(3). She could in extreme situation exercise whatever prerogatives for the good of the Nation.

(1) So far, I am not aware of EU law actually changing this fact.

(2) Clemency of Libyan jailed terrorist.

(3) Royal Prerogatives are not bound by any written laws and as Mr Siew rightly point out govern by conventions (i.e. agreement) that may not stand in any Court of Law in the UK case. I am guessing with the recent ruling in Singapore, I am guessing the President can be bound by the Singapore court -- even at the level of High Court. So another different here.

@Wai Lee:

Just some clarification. I have been using the term the Queen quite loosely. Actually, the term embodies an institution not just the person in the form of Madam Elizabeth. However, any "ruling" exercise through the Royal Perogative ties to her. Hazard of the comes with the job I guess.

reasonable said...

Following what I suggested in my earlier comment regarding the President having the discretionary power to act against the Cabinet's advice ONLY IN THE SITUATION where the Cabinet advises the President to grant clemency, I am suggesting here how this little bit of discretionary power is useful:

Hypothetically, say Singapore is governed by a corrupt government. The Court of Appeal has sentenced the relative of the hypothetical corrupt PM to death due to a criminal offence. The corrupt PM, through his corrupt cabinet, advises the President to grant clemency to his relative. The President, by virtue of Article 22P's word "may", can choose to refuse to grant Presidential Clemency to that criminal.

reasonable said...

High Court Judge Steven Chong said that “The power to do so rests solely with the Cabinet.”

I disagree with Steven Chong’s interpretation.

Even though the President does not have the discretionary power to grant clemency if the Cabinet’s advice is not to grant clemency, the President’s can choose to refuse to grant clemency if the Cabinet’s advice is to grant clemency.

Hence it is wrong for the judge to say that the power to grant clemency rests SOLELY with the Cabinet.

The Constitution’s Article 22P’s “may” means that the President is not obliged to grant clemency even though the Cabinet advises him to do so.

于庭吳 said...

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Jeannette Chong Aruldoss said...

If the President has to act in accordance with the Cabinet's advice, I'm curious to know how the Cabinet's position is obtained.

The Cabinet is a collection of individuals. Do these individuals meet face to face? Or do they arrive at their decision by email circulation? If they are required to meet, is there a notice of meeting? How long is the notice period? Are minutes of the Cabinet's meeting taken? Is the Cabinet's decision arrived at by a majority vote?

Surely there must be a protocol by which Cabinet arrives at the decision (to advise the President that he has) to allow or reject a Clemency Petition.

I could be wrong, but I think I read somewhere that "the President " (aka The Cabinet) has taken as short as days to turn down a Clemency Petition.

So does it mean that the whole Cabinet can be summoned and be able to arrive at a collective decision on a Clemency Petition within a matter of days?

Siew Kum Hong said...

@Tan Ah Kow: OK I think I understand your point better now. If my analogy with the Queen is flawed, then that was my error -- I do not think it was incorrect, but I am not an expert on English constitutional law.

@Jeannette Chong Aruldoss: I believe that the Cabinet meets on a weekly basis.

Tan Ah Kow said...

@reasonable

Personally, I am not surprised by the ruling made by Steven Chong. However, I am not surprised for the same reason as set out Mr Siew.

I am however intrigue by the fact that a lowly High Court Judge could strayed into making a Constitutional ruling. As I see it.

As I see it, the crux of the case was whether justice has been prejudiced by the Law Minister speaking out before the President deliberated on clemency was issued.

Let's assume that Judge Steven had to dismiss the petition, he could have avoided introducing Constitutional arguments.

He could have simply dismiss the petition on the grounds that since the government is advising the President about the case, it would not have prejudice the clemency appeal. Whether a minister speak about a case before the clemency is not material as the same minister would no doubt be advising the president in private or other in public. Anyway, this would be the line I would take if I had to make such a ruling.

There was really no need to for him to determine the or lack of prerogative or discretion of the President to come to his judgement.

As it is now, if the ruling stand after more appeals, you now get a strange situation where a lowly high court Judge making a Constitutional ruling rather than a Constitutional Court. Unless of course I am unaware that such a constitutional ruling had already be made.

But then I suppose the Singapore Judiciary has diverted so much from the Common Law as I understand it, we should not be surprise by such a ruling.

Siew Kum Hong said...

@Tan Ah Kow: I think you are incorrect to suggest (as I read your comment) that all constitutional questions must be determined by a constitutional tribunal under Article 100 of the Constitution. Courts rule on constitutional issues all the time, the world over. That is the approach in common law systems (I can't speak for civil law systems).

If it were otherwise, then common people will be in trouble, because only the President may invoke Article 100.

Tan Ah Kow said...

Mr Siew,

I thought the issue for the court to decide is about the clemency process not about the discretion of the President, and in particular, on whether it is appropriate for the Law minister to comment cases "sub judice".

Of course, courts rules on constitutional issues all the times but usually in cases when the rights of a citizen is transgressed -- e.g. rights to free speech, etc.

But in this case, the issue seemed to have shifted to the President's (or the office of the President) scope of action NOT the rights of a citizen under the constitution. Or did I get the wrong impression?

Wei Meng said...

@Tan Ah Kow: The role of any court is to clarify laws and legislation, regardless of whether it is the Singapore constitution or some random statute making smoking outside of yellow boxes at eateries illegal.

Also, the High Court is the highest court of the land (or specifically, original jurisdiction) in Singapore; the Court of Appeal is the highest appellate court in Singapore. Any judge of the High Court is definitely qualified to pass judgement on any legal cases, even ones involving our constitution.

Going back to the issue of the President's power of clemency, I personally feel it is a sound judgement. As Justice Steven Chong has ruled, the text of the relevant statute has made a clear distinction on where the President may or may not use his discretion: "acting in his discretion" vs "may, on the advice of the cabinet".

To put it another way, from the beginning, the office of the President only has discretion independent of the Cabinet where so stated and empowered by the relevant statute.

Even if you want to interpret the law by the purpose in which it was enacted, it is not clear that the President has discretion in clemency appeals. The Elected President was devised specifically (by the Cabinet, I believe) to act as the protector of Singapore's cash reserves and a check on their use. I do not think legislators truly had the granting of clemency as the purpose behind the amendments to the office of the President.

As an aside, from this episode it should be clear that the role of the court is to clarify the law. Otherwise, we wouldn't be wiser and this debate would never have started.

Also, it's important to note that the law can change. The Court of Appeal could even overturn Justice Chong's ruling on appeal, although I feel that it is rather unlikely. The original ruling is legally sound, or at least its basis is on firm ground.

reasonable said...

@Wei Meng,

I refer to the part which u said: "The Court of Appeal could even overturn Justice Chong's ruling on appeal, although I feel that it is rather unlikely. The original ruling is legally sound, or at least its basis is on firm ground."

What do u think of my suggestion that it is not a sound ruling for Justice Chong to say that the power to grant/decide on clemency rest SOLELY on the Cabinet? ["“The power to do so rests solely with the Cabinet.”]

Am I right to say that Article 22P's "may" does not require the President to grant clemency when the Cabinet advises him to grant clemency? In other words, am I right that Article 22P's "may" empowers the President to choose not to follow the Cabinet's advice in the event that the Cabinet advises him to grant clemency?

[President's ability to refuse to grant clemency is especially useful if it is a corrupt Cabinet that tries to use the clemency process to help a hypothetically corrupt PM's criminal relative to escape the death penalty sentenced by the Court of Appeal]

I may be wrong and stand to be corrected. Thanks :)

Wei Meng said...

@reasonable

Good point, and if you scroll up to the sixth comment, that's the exact point I raised! Glad to see someone else has the same idea. :P

Mr Siew actually replied, it's somewhere in the middle but I'll copy it for convenience:

"@Wei Meng: The President's refusal to act in accordance with the advice of the Cabinet, when required to do so under the Constitution, would spark a constitutional crisis. That is not a desirable state of affairs. In this case, I believe that the word "may" does not mean that the President truly has discretion."

I can see that there is good precedence on which Mr Siew has based his logic - e.g. the British Queen, Australia and the 2009 Perak constitutional crisis. Also taking into consideration the High Court ruling, I would tend to agree with him that the President's refusal would spark off a constitutional crisis.

However, constitutional crises exist because an office holder refused to abide by constitutional conventions and used their personal discretion. This implies that if the President so chooses, he can refuse to exercise his powers as you have pointed out.

The question then is whether the courts would rule that that decision can stand or rule it as illegal.

I have no idea personally. The law is a complex thing that can be influenced by the society, power and politics. Furthermore, our President is a hybrid entity. He is a head-of-state akin to a constitutional monarchy, but at the same time he is elected in direct voting by the people. I don't think there's any good precedent for an office of this particular kind where we can see how other courts are inclined to rule in the case of a crisis.

So yes, I think the President can definitely refuse... But whether it is a legal decision that is within his powers, we have to wait for a test case to arise and the courts to pass judgement for us to *really* know.

reasonable said...

@Wei Meng,

Thanks for your response.

If not because of your response I still would not realise that this point has already been raised by you, and still would not realise that Mr Siew has also shared his view on this aspect.

Because I did not read your earlier post, I made a long post on Article 22P's "may" on "17 August 10:22", haha

reasonable said...

If upon appeal, the Court of Appeal judges that "may" has the same meaning as "shall" in the context of Article 21 & 22, then effectly our President is a metaphoric rubber stamp in clemency matters. There is no need to involve him.

If upon appeal, it is judged that "may" means "is allowed to but not required to" in the granting of clemency, then it gives meaning to the term "Presidential Clemency".

Only if the President is able to refuse the granting of clemency (when the Cabinet advises him to grant clemency) would it make good sense of those past media reports where various affected families thanked a few of our past Presidents granting clemency and hence saving the lives of their sons/relatives.

If the President is a metaphoric rubber stamp in the granting of clemency, then those families and future families should thank the Cabinet only.

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Rojakgirl said...

Went to the talks at Speech Corner on 22nd August.

According to Ravi, the difference about President being a rubber stamp or not lies in him/her being elected and non-elected. President R Nathan was elected but many of the other past presidents were not.

Anyone care to explain something to me? I know that being elected involves some sort of voting process. (No idea who votes in the President.) So does non-elected means "appointed by the Cabinet" or some other entity?

And why does being elected or non-elected make a difference on the powers the President can have? (According to Ravi anyways.)

Not very familiar with the Constitution. =P

Rojakgirl said...

Erm, ignore my post.

I clearly forgot about some of the responses above. Nevermind.

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