User:Hjtan2012/sandbox

Yong Vui Kong v Attorney-General is an appeal to the Court of Appeal of Singapore following a 2008 conviction of the appellant of a capital drug trafficking offence. This article focuses on the justiciability of the clemency process, one of the key issues raised in the appeal.

Before deciding on the other issues raised, the Court of Appeal had to decide whether or not the President’s clemency power under Art 22P of the Constitution of Singapore is subject to judicial review. This issue had not been brought before the court before. Chief Justice (as he then was) Chan Sek Keong held that while the courts may not review the merits of a clemency decision, clemency power was not without any legal restraints. He explained that the courts could review the decision if the power was exercised beyond its legal limits (ultra vires) or for an extraneous purpose (mala fide). He added that there had been constitutional duties placed on Cabinet by Art 22P, and the court can also review cases where the requirements had not been met.

Background and Facts
The appellant, Yong Vui Kong, was sentenced to death following his conviction of a drug trafficking offence under s 5(1)(a) of the Misuse of Drugs Act. He submitted a petition to the President for clemency under Art 22P of the Constitution of the Republic of Singapore, but the President declined to grant clemency. Subsequently, he appealed against his conviction and sentence to the Court of Appeal, but his appeal was dismissed on 14 May 2010.

Following the dismissal, the appellant applied for leave to commence judicial review proceedings in the Singaporean High Court, seeking inter alia a declaration that clemency power was exercisable by the President acting in his own discretion, instead of on the advice of Cabinet. In his application, the applicant also argued that the power to grant pardon was not immune to judicial review. The respondents disputed this, and argued that “the manner in which the President exercised the clemency power and the decision which he made pursuant to that power would be outside the purview of the courts.” The High Court dismissed his application, and this case is his appeal to the Court of Appeal against that dismissal.

Clemency
A grant of clemency or a pardon is the clearance of criminal liability and the cancellation of any prescribed sentence attached to it. It is premised on fundamental moral values of mercy and justice and exists to give relief to convicted persons from sentences that may be overly harsh. In this way, it also serves as a check on the exercise of judicial power by the executive. Historically, the power to grant clemency originated in England as the prerogative of mercy. Since the commission of crimes was seen to be a violation of the King’s peace in his realm, the right to pardon vested in the King himself. However, when England developed into a parliamentary democracy, the Crown only exercised clemency power on the advice of its ministers. With the prevalence of constitutional government, many countries today have specific agencies, usually bodies within the executive government, empowered to exercise clemency power.

In Singapore, the President is empowered to grant a pardon under Art 22P of the Singaporean Constitution. However, in line with the practice in England, he can only do so on the advice of the Cabinet. The relevant article also gives him the power to delay the execution of any sentence or cancel only part of any sentence, as well as impose conditions on the grant of pardon.

Justiciability
Justiciability refers to the limits to which courts can exercise judicial power over legal issues. Some matters, which are regarded as beyond the court’s ability to provide resolution, are deemed non-justiciable. This means that the court cannot or should not be the authority to resolve the dispute, because the litigation process or the expertise of the judges is unsuitable for the particular issue. Most courts possess a very wide jurisdiction to hear legal disputes, but will decide on their own jurisdiction and may decline to hear an issue, which they feel is non-justiciable.

Issues that are commonly regarded as non-justiciable include “matters of policy or subjective preference, or polycentric public policy issues”. These are seen as better left to democratically elected representatives, who possess the mandate of the people and are thus in a better position to weigh competing interests and to give effect to the will of the people. Similarly, issues affecting international relations have been seen as non-justiciable in Singapore so as to maintain a consistent national position and to avoid embarrassing the other branches of government.

There is no clear definition of what is or is not a justiciable issue, and the courts must decide on each case whether they should have jurisdiction to decide on the issue. This leads to some degree of uncertainty. However, justiciability remains a useful tool to determine the right balance of power between the branches of government and represents recognition of the practical limits on judicial capabilities.

Position in Singapore
In his judgment, Chan Sek Keong C.J. gave two reasons supporting his views for the justiciability of the clemency process.

Firstly, all legal powers have legal limits, no matter how “extraordinary” the power is. Chan CJ first highlighted that “the clemency power is a legal power of an extraordinary character.” However, this does not mean that this clemency power is an “extra-legal” power in the sense of being a power beyond any legal constraints of restraints. Quoting the Chng Suan Tze principle that no legal power – including a constitutional power – is beyond the reach of the supervisory jurisdiction of the courts if it is exercised beyond its legal limits (ie, ultra vires the enabling law) or if it is exercised mala fide (ie, for an extraneous purpose), Chan CJ referred to Law Society of Singapore v Tan Guat Neo Phyllis, where it was held that the Chng Suan Tze principle was also applicable to a constitutional power. Therefore, Chan CJ stated that “our courts must have the power to review the clemency power under Art 22P on the same legal basis as that stated in [Phyllis Tan].”

The second reason for the justiciability of the clemency process is to ensure that “the Cabinet … consider[s] impartially and in good faith the Art 22P(2) materials submitted to it before it advises the President on how the clemency power should be exercised”. Chan CJ reasoned that the clemency power should be amenable to judicial review due to the “specific procedural safeguards prescribed by Art 22P for the conduct of the clemency process in death sentence cases”. He further explained:

"“In my view, the requirement that the trial judge’s report, the report of the presiding judge of the appellate court (where there is an appeal) and the Attorney-General’s opinion on the report(s) must be sent to the Cabinet for its consideration necessarily implies a constitutional duty on the Cabinet’s part to consider those materials impartially and in good faith before it advises the President on the exercise of the clemency power.”"

Under Art 22P(2), the Cabinet must have met to consider the offender’s case or consider the Art 22P(2) materials placed before it carefully before determining what advice to give to the President. If done otherwise, the Cabinet would be in breach of Art 22P(2). As such, “[i]f the courts cannot intervene to correct a breach of Art 22P of this nature, the rule of law would be rendered nugatory.”

In this regard, it should be noted that in Singapore, the making of a clemency decision pursuant to Art 22P is now “not a private act of grace from an individual happening to possess power ... [but] a part of the [c]onstitutional scheme”.

In addition, Chan CJ submitted that subjecting the clemency power to judicial review is also “a corollary of the right to life and personal liberty guaranteed by Art 9(1) of the Singapore Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”." Chan CJ agreed with what Lord Goff said in Thomas Reckley v Minister of Public Safety and Immigration (No 2)  that “a man is still entitled to his fundamental rights, and in particular to his right to the protection of the law, even after he has been sentenced to death.” Therefore, the clemency power should be subjected to judicial review “not because an offender has any constitutional or legal right or even any expectation with respect to the grant of clemency to him, but because the requirements of Art 22P(2) must be complied with as that is what the law mandates.”

In his judgment, Chan CJ also repeatedly emphasized that an exercise of clemency power confers a gift of life on the offender. “[A] decision not to exercise the clemency power in favour of the offender in a death sentence case does not, in the legal sense, deprive him of his life or personal liberty since he has already been sentenced to death by a court in accordance with law. If clemency is granted to an offender in a death sentence case, it restores to him his life, which the law has already decreed is to be forfeited.”

Position in other countries
Clemency is justiciable in several countries such as England, the Caribbean States,  Canada,   India,   New Zealand and Hong Kong. In these countries, as per administrative law review principles, only the procedural aspect of clemency, and not the merits of the decision, may be reviewed. Exceptionally in Canada,  clemency may be reviewed on its merits. It is not reviewable in Malaysia and Australia.

England
Traditionally, clemency was not reviewable by the courts. This “traditional reluctance to encroach on the prerogative of mercy stems from the fact that in England, this power has been exercised by the Sovereign from time immemorial, and has always been regarded as an essential attribute of sovereignty”. In 1994, the courts held that clemency would be reviewable if it were exercised based on an error of law.

Carribean States
Like in England, clemency was originally not reviewable by courts as “[mercy] begins where legal rights end”. However in 2001, it was held by the Court of Appeal that in light of Jamaica’s international obligations and what natural justice required, clemency was reviewable except on its merits.

Canada
Clemency is justiciable in Canada. Exceptionally in Canada, the merits of the decision and the manner in which it was made can be reviewed for compatibility with the Canadian Charter.

India
It was held by the Supreme Court that clemency is reviewable despite its wide ambit “for no legal power can run unruly … but must keep sensibly to a steady course”. In a later case, the same court set aside an order for clemency which was made based on extraneous and irrelevant grounds.

New Zealand
Clemency is justiciable “at least to the extent of ensuring that elementary standards of fair procedure were followed” in New Zealand.

Hong Kong
Lawfulness, not the merits, of a clemency is justiciable in Hong Kong as the Basic Law of the Hong Kong Administrative Region of the People’s Republic of China did not seek to place the SAR Chief Executive above the law as his prerogative powers were defined and constrained by the Basic Law.

Malaysia
Courts have consistently held that clemency is not justiciable as “the Constitution has empowered the nation's highest executive as the repository of the clemency power, the court cannot intervene and judicial review is excluded by implication”.

Australia
The courts are undecided as to the justiciability of clemency. In Horwitz v Connor, Inspector General of Penal Establishments of Victoria, the Australian High Court held that “no court ha[d] jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy". Thus according to Horwitz v Connor, clemency was not justiciable. However in the case of Eastman v Australian Capital Territory, while accepting it was bound by Horwitz v Connor, Lander J stated, “I am not, I think, prevented ... from concluding that the processes [pertaining to the exercise of the prerogative of mercy] ... are subject to judicial review”. Thus suggesting that legality of the clemency decision was reviewable. However, in Australian Capital Territory, the Court of Appeal in the same case took a narrower view and was “not persuaded that they may depart from the decision in Horwitz v Connor”.

Subsequent affirmation and academic views
The justiciability of the clemency process was cited and elaborated on in Mathavakannan s/o Kalimuthu v AG. The case, regarding an application as to the precise interpretation of a sentence of life imprisonment as commuted by then President Ong Teng Cheong, required the court to interpret the President’s commutation order. In doing so, the court referred to Yong Vui Kong’s holding that the “procedural safeguards vis-à-vis the exercise of clemency power were amenable to judicial review,” and reasoned that the “logical prior step” to this would likely “involve an interpretation of the clemency order itself.”

In Ramalingam Ravinthran v AG, Yong Vui Kong was also cited. It was observed that CJ Chan, whilst discussing the issue of justiciability of the clemency process, held that “until the contrary is shown, the courts… should proceed on the basis of presumptive legality…" and therefore, the same principle should apply in the context of prosecutorial decisions. Hence, the court applied “a presumption of constitutionality in the prosecutorial context."

Lastly, Professor Thio Li Ann raised the analysis of the issue in Yong Vui Kong as an example of how courts have become increasingly willing to consider judicial review. Speaking for a Straits Times Article, she brought up the example of the court’s “excursion of the law in jurisdictions from Australia to the Caribbean states” and remarked that:

""In the past, it would seem that the courts took a simplistic, 'no, cannot review' (approach) over some decisions. Nowadays, when it comes to certain executive powers, it is clear that the courts will review to some extent.""

Further readings

 * Thio, Li-Ann (2010), "Administrative and Constitutional Law", SAL Annual Review 1: 19-20.
 * Thio, Li-Ann (2011), "Administrative and Constitutional Law", SAL Annual Review 1: 13-16.