Ravi rebuts Shanmugam: Law Minister did breach Constitution

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Tuesday, 13 July 2010

Singapore Democrats

Human rights lawyer, Mr M Ravi, took on Mr Shanmugam when the Law Minister denied that he had breached the Constitution by commenting on Mr Yong Vui Kong's impending execution in May this year. Mr Yong is sentenced to die for peddling heroin in Singapore and his appeals have failed. Mr Ravi is representing him.

Mr Ravi issued a press release (see below) stating that Mr Shanmugam's remarks, made just prior to a Court of Appeal decision on whether to grant Mr Yong clemency, were indeed prejudicial to his client's case.

Press Statement

Cabinet should not usurp Elected President’s Constitutional powers

Background and summary

1. This press release is issued in response to the statement from the Ministry of Law regarding the death sentence for Yong Vui Kong.

2. Law Minister Mr Shanmugam first commented directly on Yong’s case on 9 May 2010, stating that “Yong Vui Kong is young. But if we say ‘We let you go’, what is the signal we are sending?”. These remarks were made at a public event and widely reported in the Singaporean media.

3. In a subsequent statement on 9 July 2010, the Ministry of Law asserted that Mr Shanmugam’s remarks were justified as the Government’s policy is “matter of public importance”. Additionally, the Law Ministry took the opportunity to further prejudice the clemency process by highlighting prejudicial information based on charges that were never brought against Yong. These make clear that Cabinet intends to reject my client’s clemency petition even before it has been filed.

4. The consequence of these statements is as follows:

a. There has been an egregious breach of the Constitution as the President, not Cabinet, is supposed to make clemency petition decisions.

b. A Cabinet Minister (Mr Shanmugam) and his Ministry have made public statements referring to my client by name, evincing a plain desire that my client be executed regardless of the clemency process.

c. The crux of the issue is that it is clear that Cabinet cannot play any further role in the clemency process as it has obviously prejudged Yong’s case.

“The President does not have a discretion in this matter”

5. One key concern for my client is that the Attorney-General Walter Woon is on record saying that, “Although in theory it is the President who exercises the prerogative of mercy, in fact it is the Cabinet that makes the decision”. He made this submission in the Court of Appeal. The AG also said, unrebutted, that, “The President does not have a discretion in this matter.”

6. This flies directly in the face of the Constitution which confers the power of clemency on the Elected President himself, and clearly states that Cabinet’s powers are only to advise the Elected President on the exercise of the prerogative. This extraordinary revelation has only come to light as a result of the disclosure made by the Attorney-General in his submissions before the Court of Appeal in Yong’s case.

7. This revelation is startling as clemency petitions are submitted to the Elected President on the assumption that the Constitution is followed in letter and spirit. Cabinet’s exercise of the Elected President’s Constitutional prerogative amounts to a usurpation of the Elected President’s clemency powers conferred on him expressly under Article 22P of the Constitution.

The Law Minister’s remarks

8. The Law Minister’s prejudicial comments were made even before the Court of Appeal had passed judgment. The Court had to decide the very issue of whether it is constitutional to execute a convicted person without considering his youth or other personal circumstances. On 9 May 2010, the Law Minister commented that, “Yong Vui Kong is young. But if we say ‘we let you go’, what is the signal we are sending?” Even before the clemency process is initiated, it is clear from these comments that Yong’s youth and other personal circumstances would count for nothing in the clemency process.

9. As a result of all the above factors, I am confident that there will be a judicial ruling which restores to the President his decision making powers on clemency petitions under Article 22P of the Constitution. However, even if this is done, it cannot erase the prejudice displayed by the body which the Constitution says must advise the President. The views of Cabinet on the merits of Yong’s case have been publicly aired before his current petition has even been received. His youth and personal circumstances have been ruled ineligible for consideration even though these are the very things which the Elected President can take into consideration.

The President must pardon

10. The only way in which the Constitution can be observed in relation to my client is for the Elected President to peremptorily pardon him in order to assuage the gross procedural and substantive improprieties that have taken place in this case. The Elected President must now pardon my client or the Court must grant my client’s application for judicial review where there has not been and cannot be a proper clemency process.

M Ravi,
Counsel for Yong Vui Kong
Dated 11 July 2010

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Comments (20)

Tue 13 Jul 2010 10:41 AM | quantum - On whether the Cabinet violated the Constitution

Isn't this a matter to be decided by the Court?

Tue 13 Jul 2010 10:46 AM | Tan Tai Wei

Is it stated in the Constitution that "in theory the President has the discretion" but "in practice he has not" but "the Cabinet has", and that "although the Caninet in theory only advises the President, in practice it dictates to the President who must act on Cabinet's advice"?

Unless we have not neglected to insert something to definitively assert that, Ravi has a valid point, especially when our Presidency is an elected one to wield power for the exercise of some important discretion.

It cannot be left just an assumption that our President is on this matter only a "figure head" like the queen of England, acting on Cabinet's "advice", especially when we have already countered such assumptions in conferring him discretionary powers (presumably!) for approving spending our "reserves", etc.

Tue 13 Jul 2010 1:11 PM | Tan Tai Wei

The elected presidency was mooted primarily to "safeguard our reserves" and to review and approve a government's key administrative appointments.

But if all this is so only "in theory", and the President is "in pratice" to take the advice of the Cabinet, how then would our reserves be "safeguarded" and government appointees be reviewed?

Or had this matter been deliberately left undefined in order to facilitate that which is widely suspected, ie. that should a "freak election result" be really obtained and the opposition wins, the PAP-nominated President could then wield his power to cripple the new government and precipitate a crisis (and then "the army would have to move in"}?

Tue 13 Jul 2010 4:18 PM | lionnoisy - President have to listen to Council of Presidentia

is it the combined wisdom of both deciding Yong's fate?
quote
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Council of Presidential Advisers (CPA) to advise the President in the exercise of his custodial and discretionary powers...
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www.istana.gov.sg/AboutIstana/CPA/

Tue 13 Jul 2010 9:33 PM | maxchew - Cold-blooded PAP Ministers

Decades of the mandatory capital punishment for drug traffickers have hardened the PAP leaders including the President. They have icy-cold blood coursing through their veins and arteries.
That is the real situation here where human compassion is sorely missing in the august halls of Govt. What have we become?

Tue 13 Jul 2010 11:02 PM | Robox

I wonder if M Ravi might find this useful but first, just as a reminder, the only training I have that can come close to being regarded as a formal training in the law is in the study of two law courses, the first being on the English common law system that is relevant to Singapore. Thus my knowledge is only very general, but I will try and add to this discussion.

When we talk about the Constitution and/or its breaches in Singapore, we tend only to cite what is referred to as the "written Constitution" the link to which is provided here:

http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_retrieve.pl?&actno=Reved-CONST&date=latest&method=part

However, what is regarded as the "unwritten Constitution", a prominent feature of the English common law system that is already being applied here with statutory law such as with "judicial rulings", is equally constitutional (or unconstitutional if it is with regrads to breaches) as the written one; the unwritten Constitution can be referenced as much as the written one. (However, the great difficulty with this is that it usually requires a Ph.D level constitutional expert whose knowledge is extensive.)

While M Ravi is already seeking redress in Yong Vui Kong's case based on the written Constitution, it might be worthwhile to pursue the matter of the unwritten one simultaneously.

Generally, in the English common law system, there are three components to the unwritten components of the Constitution. I will try to be faithful to as much of the original wording of the text that I am taking this information from highlighting them in double quotes (ie. " and "):

1. The first component of the unwritten Constitution encompasses "the entire history of government and includes arrangements, such as the Magna Carta, that were set down in law and others, such as responsible government, that exist only in longstanding practises".

The above may be verifiable by this information, in the Parliament of Singapore website:

http://www.parliament.gov.sg/

"The Singapore Parliament is modelled after the Westminster system of parliamentary democracy where Members of Parliament are voted in at regular General Elections."

In the matter of Yong Vui Kong's case, one of those longstanding practises is that the government does not comment on any case that is at bar (ie. still being decided upon). I'm sure Ravi has already verified this to be true.

(cont...)

Tue 13 Jul 2010 11:05 PM | stevewu77 - Elected president and selected minister

Shanmugam needs to be reminded that the Constitution is explicitly clear about the roles and responsibilities of the presidency. It not up to him, nor the cabinet, nor the PAP to interpret "what's in theory" and "what's in practice" of the presidency.

After all, Nathan was elected by the People, even though technically, it was a walkover. Any action in contempt of the presidency is an action in contempt of the People. Shanmugam, on the other hand, was selected by PAP to be the law minister.

It is a separate matter that the current president is NOT performing to public expectation. He shall be personally accountable for this failure. It is timely to review the constitutional amendment to establish the protocol to impeach an incompetent president.

Tue 13 Jul 2010 11:24 PM | Robox

(...cont)

2. The second unwritten component of the Constitution is unwritten in the same way that statutory law is unwritten. It consists of the judicial decisions interpreting and explaining the written statutes, which in this case refers to any judicial ruling on the written Constitution (ie. judge-made laws) such as was made in Yong Vui Kong's appeal in March at the Court of Appeals.

3. Together with the first component above, the final component of the unwritten Constitution is the one that is most relevant here; "it consists of conventions and can be defined as the customary practises and settled expectations of how the country should be run".

However, "conventions are not law, and courts do not have the power to enforce them; they are enforced only politically".

Thus clearly when the article above says, "Human rights lawyer, Mr M Ravi, took on Mr Shanmugam when the Law Minister denied that he had breached the Constitution by commenting on Mr Yong Vui Kong's impending execution in May this year", it is clearly a breach of the Constitution by K Shanmugam when he commented on Yong Vui Kong's case prior to the Court of Appeals delivering its ruling; K Shanmugam has broached a longstanding convention of government's worldwide not commenting publicly on a case at bar for fear of prejudicing it by applying political pressure on the judiciary.

I'm sure that collaboration with other lawyers, overseas if necessary, to determine this as a fact will be a fruitful exercise.

Wed 14 Jul 2010 7:06 AM | F C D Chan - The Muppet Show - A Jim Henson's Production

What a revelation this is! All along i have had this suspicion that our elected president is just a puppet and this incident has affirmed my suspicion beyond the shadow of a doubt.

Wed 14 Jul 2010 10:07 AM | Tan Tai Wei

thanks, Robox, for the teaching.

But to allow in Singapore for a such "unwritten Constitutionality" might open our Constitution to "free for all" interpretation.

We lack the tradition and even, to some critics, the morality and integrity of past practice the British have to allow for the dictate of past interpretations and conventions.

We have often been reminded that we must, when learning from others, adapt their practice to what suits us. And at this time of our young history and moral development, we might be still in need of clearly justified and written rules.

(This, of course, does not mean that the law minister wasn't wrong in "prejudicing" the case for the appeal, as the sub judice ruling need no "convention" to support it.)

Wed 14 Jul 2010 12:32 PM | Kit - Dangerous Precedent, Mr President

@Robox
Thank you for the information. I suspect that unwritten constitution is more applicable in the UK because they do not have a written constitution in the first place. But hey, what do I know? The only legal knowledge I have is from the media. (Sorry, Straits Times/MediaCorp, not talking about you.)

M Ravi has detailed categorically a case against the Minister of Law. The right approach from the Ministry would be to show irrefutably that the Minister did not prejudice the case. A statement regarding "matter of public importance" brushing M Ravi and the general populace off is not going to cut it. For that matter, which public is the Ministry referring to? The one for the hanging despite prejudice or the one for the Constitution to be respected.

This is a dangerous precedent. I beseech the President, for the sake of the integrity of his office and the people of Singapore, to carry out a thorough investigation.

Wed 14 Jul 2010 9:51 PM | Robox

Thanks to the last two posters for your comments. I had mentioned previously that I can no longer see the line with your nicks, so I don't know who I am replying to. Still, your comments provide me an even better opportunity to provide clarifications on this topic.

To the first poster who said: "...to allow in Singapore for a such "unwritten Constitutionality" might open our Constitution to "free for all" interpretation", I would say this:

I do understand this fear, but in reality it is the unwritten components that often serve as a check against unreasonable interpretations because part of what constitutes the first component of the unwritten Constitution comprises the "framers intention" - what had originally been intended with any one particular constitutional clause or its phrasing. (I will provide one example in the next post.)

More importantly, it is not a matter of allowing or not allowing it into Singapore; it's just a part of our political and legal system.

BTW, the unwritten Constitution is "unwritten" not because there are no written records of it. There are. The problem is that they don't exist in one single place, and as I said we really need a highly qualified constitutional expert, likely a British-trained-and-experienced individual who can be from any British Commonwealth country, to be able to identify those sources.

Yes, its just pure common sense for any public official not to comment on a case at bar without the need to institutionalize it as a convention. This leads me to the my own comment on K Shanmugam's claim that he commented on the case as "matter of public importance".

Of course this is a matter of public importance, but not in the sense that K Shanmugam was trying to mislead the public with. There has been great interest by members of the public, who incidentally do what we do in any properly-functioning system to serve as a watchdog and are at complete freedom to comment on any aspect of the case at any time.

None of that alters the fact that it is still K Shanmugam's job TO SHUT THAT BIG GAP OF HIS! He's a government official and one that is intricately connected to the case.

What K Shanmugam was clearly doing by commenting explicitly on this case and getting it to be reported in the media that his party instructs on such matters, is to generate PUBLICITY for the government's case against Vui Kong. PUBLICITY for the the government's side of the case is an entirely different matter from there being interest by members of the public. (Yet a different type of interest, "the public interest", is already being served by the case being on trial etc. - so that's another claim he cannot make.)

This was just a politically-motivated manipulation on K Shanmugam's part in trying to tilt public opinion on the case so that his government's wrongdoings in it would be mitigated.

That's interference in due process!

Wed 14 Jul 2010 10:20 PM | Robox

To the second poster who said: "I suspect that unwritten constitution is more applicable in the UK because they do not have a written constitution in the first place."

Yes and no. It is actually also relevant in all other British Commonwealth countries such as Canada, Australia and New Zealand. And India and Kenya. All have a written constitution.

I'll illustrate with two examples, the first of which I have written about in this website previously:

1. About a century ago, the fight for the women's franchise in Canada was taken to the Supreme Court where both contending parties relied on the unwritten Constitution to fight their respective cases. The prosecution argued that "persons" - in "all persons are equal under the law" - had originally meant "men" by its framers, which was entirely true. (As a constitutional argument, it was truly a damned good one!) But the "for" side counterargued that the Constitution was also written on the assumption that at no time in human history can we claim to know everything. (Also true.) And that meant that any changes in knowledge and understanding on any topic that exposes flaws in the law can be reasonably accomodated by a judicial review. Well, Canadian women now have the vote. (This, is incidentally at the basis of the fight for gay rights and one that has most recently been successful in India, another Commonwealth country.)

2. To show that we are already relying on the unwritten Constitution, if you recall, Vui Kong's appeal ended in a judge's ruling - the second "unwritten" that I wrote about. That ruling is now the constitutional law in Singapore and can be refrenced in a future case, in which instance, they will berefrencing the unwritten Constitution. In Singapore! This is quite a defining feature of the English common law system but we are practising it in Singapore. (And since there are written court records of it, we shouldn't have to fear making wild interpretations except by the kangaroos in our judiciary.)

Note: Incidentally, in that same ruling, Kangaroo Keong has also forestalled any future challenges to the laws that mandate the death penalty. He was wrong to do that - but as I said, we only have marsupials at the Bench - because I also said earlier "the Constitution was also written on the assumption that at no time in human history can we claim to know everything" and the constitutionality of any law can be challenged when there is greater knowledge around the issues governing a particular law.

Wed 14 Jul 2010 11:10 PM | jbeji - no use talking...

hey guys, nice reading BUT really, with all talkings and interpreting, can you do anything with the "law" or even the "law maker" regardless how you want to interpret and you are right, you may have many "says" but these MIW and MINISTERS just say "is done" means is done,"die" means you die because Singapore is made up mostly of followers of masters, you can't do anything at all and if you have guts ... go out and speak, let's see what will happen to you all like the brave of CSJ or else, keep your silence, really, sometime is pathetic but then again Singaporeans are pathetic lot!

Thu 15 Jul 2010 9:35 AM | F C D Chan - Enough talk already, let's Walk the Talk! - jbeji

jbeji,

Do you feel a lot safer to express your opinions behind the nickname, "jbeji"? (least they track you down and make you an example for expressing dissenting views in this forum?)

Do you feel you/we (Singaporeans) are incapable and powerless to change anything that is clearly wrong in our society?

Do you feel all these exchanges in the forum are just "talk" and that none of the posters is willing to "walk the talk"?

Would you like to start a "Walk the Talk" campaign?

Would you like to suggest that the first thing we should do(walk) in our "Walk the Talk" campaign is to express our opinions in this forum without hiding behind our nicknames?

Regards,
Fang-Chiat Daniel Chan (S7237729Z)

Thu 15 Jul 2010 9:49 AM | Tan Tai Wei

Thanks again, Robox, for clarifying.

Ah, what is meant then, by "unwritten constitution", is, not that other than the Constitution there exists or one is free to make another set of unwritten rules, but that in interpreting the Constitution, we may and probably should refer to past good precedents, etc., written records of which exist as documents extra the Constitution itself.

But that means it is still the Constitution that dictates, although the practice of that would call for correct interpreting of its rulings.

Thu 15 Jul 2010 9:09 PM | Robox

I couldn't have put it better than that!

Sat 17 Jul 2010 11:32 AM | jbeji - F C D CHAN

your words tickle the laughter of my toes.
your 'bravery' go no where, it really shows how stupid you are.
you are not the like of CSJ & the few brave men, so what by putting your IC NO. AND WHY NOT YOUR PHONE NUMBER, HOUSE ADDRESS INCLUDED..I SAY MAN, THEN U GOT GUTS!...don't talk, walk like them (CSJ) & even then, this is still the same govt so what?can u do?...
i shall only salute you when i see you in the next election, stand up, take up your "courage" and fight your talk, otherwise, nothing much then just a talking pot.
by the way, my name is still jBeji tangze.

Mon 19 Jul 2010 12:36 PM | F C D Chan - The pen is mightier than the sword

Jebeji,

Please pardon my igorance. Your admonition has been most encouraging.

Well, the pen is mightier than the sword.

Please find below my contact details:-

+44(0)1797 252 249

81 Dover Road
Folkestone
Kent CT20 1JZ
United Kingdom

Any correpondence from you will be most welcome.

Regards,

Mon 19 Jul 2010 10:37 PM | jbeji - F C D Chan

As expected your "boss" that carry that far give you the guts, otherwise, surely your shrinking ball will not platform you the level of ppple in SDP>
Now who's calling the pot black, my case closed and still, nothing more than talking pot, are you not?
Thank you for the admission of the information therein, well, still seeing you in the coming election?