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.