MARUAH’s View of the Police Investigations into SFD Members’ Sale of Death Penalty Book

29 January 2011

MARUAH’s View of the Police Investigations into SFD Members’ Sale of Death Penalty Book

MARUAH notes the statement by NGO Singaporeans for Democracy (SFD) and various media reports about the recent initiation of police investigations into three SFD members over their alleged sale of copies of the book Once A Jolly Hangman: Singapore Justice in the Dock at a film screening held on 14 November 2010 at the Substation. The SFD members are being investigated under Section 502 of the Penal Code, for the knowing “sale of printed or engraved substance containing defamatory matter”.

Although the police commenced investigations against Mr Alan Shadrake, the author of the book, for criminal defamation in 2010, no formal charges have been instituted. It is thus troubling how an investigation can begin into the sale of printed substance containing defamatory matter if the book in question has not been found by a court of law to be defamatory. Indeed, charges have not even been brought.

MARUAH therefore calls upon the Singapore Police Force to explain why it is initiating these criminal investigations on the three SFD members in relation to the sale of the book, when the author himself has not been charged.

Furthermore, if the Government’s position is that the sale of the book would be unlawful, then the proper course of action is to ban the book outright, which is a transparent action that is accountable and subject to judicial review of the courts where appropriate, and also conforms with the rule of law.

MARUAH President Braema Mathi says: “These criminal investigations by the police carry a much heavier ‘footprint’ than contempt proceedings. In this case it is bewildering why the police are investigating sellers of the book when there is no criminal defamation charge against the author or contempt proceedings against the three members.

”MARUAH is opposed to investigations without any reasonable basis, as these will only serve to significantly chill public debate on the death penalty and detract from Singaporeans’ constitutional right to free expression. ”

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.