Published at East Asian Law Journal, Vol. 1 No. 2
By M. Ravi, Practitioner at L.F. Violet Netto, Lawyer for Yong Vui Kong and Alan Shadrake; Co-author Choo Zheng Xi
Overview: harsh substantive law unsupported by criminological statistics
Systematic penalogical data is hard to come by in Singapore, which has led the immediate past president of the Singapore Law Society to lament that “Singapore is sadly lacking a principled and transparent penal Policy because Government has not published detailed statistics of crime and punishment”. Neither of Singapore’s two universities offering law degrees have a department of criminology in their law faculties.
This statistical lacunae of general criminological data is alarming, but is rendered exponentially more egregious when one considers the most controversial application of the death penalty in Singapore: that trafficking in more than a quantity of drugs prescribed in the Schedule of the Misuse of Drugs Act is sufficient for a man to hang. The uniquely draconian nature of Singapore’s “Misuse of Drugs Act” deserves some elucidation.
The first aspect of the death penalty for drug trafficking in Singapore is that it attracts not just the possibility of a sentence of death, but the mandatory death penalty.
Secondly, the mandatory nature of the death penalty for trafficking is coupled with a presumption of trafficking in cases of possession. This reverses the basic principle of criminal law that a charge must be proven beyond a reasonable doubt for conviction to follow.
This means that if person A is asked by person B to pass a packet of heroin to person C on the pretext that the packet contains herbs, person A will be found guilty of trafficking if he does not inspect the package.
This was in fact exactly the situation in the conviction of the 18-year-old Nigerian boy Amara Tochi in 2006. Although the trial judge held that although “There was no direct evidence that he (Tochi) knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out on his own”, Tochi had “wilfully turned a blind eye on the contents of the capsules”.  The prosecution’s duty to discharge their burden of proof beyond a reasonable doubt was reversed on Tochi to rebut the presumption of trafficking by showing he did not actually have knowledge of the contents of the package he was asked to carry.
That Tochi was evidentially unable to discharge this presumption of knowledge illustrates how high the courts have set the bar even in such a situation where the substantive law is so stacked against the defence: in an attempt to prove to the investigating police officers that he genuinely thought the container contained African herbs, Tochi swallowed a “potentially lethal quantity of diamorphine” in front of them.
What little data is available is provided by international sources, and this points to an alarming rate of executions being carried out in Singapore. Indeed, Professor Michael Hor notes that “nowhere in the world is the war on drugs waged as savagely as in Singapore”. The statistics provided by Amnesty International bear this out: in a report commissioned in 2004, it noted that Singapore is likely to have the ignoble distinction of having the world’s highest per capita execution rate relative to its population. Amnesty notes that the UN Secretary General’s quinquennial report on capital punishment for the period 1994 to 1999 showed Singapore had a rate of 13.57 executions per one million population, leaving Saudi Arabi a poor second at 4.65 executions per million.
Sentence and Execution of the Death Penalty
Prisoners on death row are kept in isolation cells around three-square metres, including a toilet. Cells are sparsely furnished with no bedding and only a bucket for bathing. They are allowed a single 20-minute visit per week in a room separated from visitors by a pane of glass through which they have to communicate via a telephone. 
Approximately 24 hours before a scheduled execution, the condemned man is asked to pose for a photo shoot in around a dozen different positions depicting normal life: sitting at a desk, in a suit, etc. These photos are then provided to the family.
No physical contact with the condemned prisoner is allowed. The only exception to this rule was made for convicted Vietnamese-Australian drug trafficker Nguyen Tuong Van in 2005. The Singapore government turned down a request by Nguyen’s mother to be allowed to embrace her son, permitting her only to hold his hand through prison bars and feel his face and hair before his execution.
Hangings in Singapore are conducted almost uniformly at 6.00 a.m. at the maximum security Changi Prison. The prisoner’s arms are handcuffed behind his back, and his legs are strapped together to prevent him kicking out during the fall. He is then positioned over twin trapdoors. The noose is placed around the neck with the knot behind the right ear in an attempt to ensure that the prisoner’s spinal cord is snapped instantly. 
Victim Protection Policy
No compensation policy exists for the victim and their family members. All funeral costs are borne by the family of the deceased. In informing the family of the condemned man of the impending execution, a terse letter is usually sent out stating the date of execution, final visitation time, and informing the family to make funeral arrangements in lieu of which the state will cremate the body.
Attitudes of Government and Society regarding the approving/abolishing of the death penalty
i) Historically limited reach of the abolitionist cause
Despite the lack of criminological data, the Singapore government has repeatedly reaffirmed the need for the mandatory death penalty and cited its’ alleged contribution to a society with low crime rates. In response to the criticisms of Amnesty International, the Ministry of Home Affairs replied in a press release with the sweeping assertion that “In the case of drug trafficking, the death penalty has deterred major drug syndicates from establishing themselves in Singapore”
One might think that the legal community would be uniquely placed to spearhead the abolitionist movement, and to give some credit where it is due, members of the bar have made tentative attempts to question the mandatory death penalty. However, any efforts the Law Society of Singapore might make towards spearheading a sustained abolitionist movement are hamstrung by Section 38 (1) (c) of the Legal Professions Act which confines the Law Society from commenting on legislation only if it has been “submitted to it” by the government. This provision was specifically introduced in October 1986 to, in the words of then Law Minister Mr E W Barker, “tie down the Law Society”.
The personal toll to comprehensively taking on the state in capital cases is also not to be underestimated. By this I mean the toll from exploring options for abolishing the death penalty over and beyond the merits of the individual case in an attempt to start a societal dialogue about more than what the law is to what the law should be. The state media in Singapore, which is a virtual duopoly, systematically ran a smear campaign against me after my first capital case in 2003. The media went to the extent of highlighting the fact that my late father was an alcoholic and my late mother had committed suicide. 
The debate in the wider public is almost completely non-existent due to the fact that the media in Singapore is tightly regulated under the Newspaper and Printing Presses Act and often uncritically reports the government’s view. A recent unscientific video survey of different demographies of Singaporeans conducted by Singaporean news website The Online Citizen (TOC) showed a widespread lack of understanding of the issues surrounding the death penalty. For instance, many interviewees did not understand the implications of the term “mandatory” used in conjunction with “death penalty”. This is not for lack of formal education: the Singaporean education system is regularly touted by the government to be one of the best in the world.
Civil society support is largely ad-hoc and the only group directly committed to abolition is the Singapore Anti-Death Penalty Campaign (SADPC), formed in October 2005. The only political party to consistently and vocally oppose the death penalty has been the Singapore Democratic Party (SDP) headed by Dr Chee Soon Juan. Online media has also recently been playing an increasingly important role in galvanizing the abolitionist movement, with TOC partnering the SADPC to spearhead the latest campaign to abolish the death penalty.
ii) Debate rejuvenated: The case of Yong Vui Kong (Constitutional Appeal)
Despite the many impediments to public debate on the death penalty, a confluence of events have conspired to make this last year probably one of the most significant in abolitionist history in Singapore.
The first catalyst was the case of Malaysian boy Yong Vui Kong, who was 19 years old when he was caught trying to smuggle 47.27g of diamorphine into Singapore. He was convicted and sentenced to death by the High Court in 2009, withdrew his right to appeal, and had a clemency plea to the President rejected. Yong’s case drew little attention in the national newspapers and even in the online media. He was represented by state assigned counsel at this stage of the process.
Around December 2009, Yong’s case was brought to my attention by a fellow practitioner who asked me to consider if there was anything further that could be done on Yong’s behalf. Four days before Yong was supposed to be hanged, I filed a Criminal Motion seeking leave to pursue an appeal on the grounds that the mandatory death penalty was unconstitutional. The Court of Appeal granted leave to do so.
The basis of my constitutional challenge was that the Constitutional right to life enshrined in Article 9 (1) of the Constitution of the Republic of Singapore which states that no person may be deprived of his life “save in accordance with law” should be read to in a manner that does not contravene customary international law, and should in fact incorporate the international consensus that that mandatory death penalty is an impermissible violation to the right to life as it constitutes “cruel and inhuman punishment”. The mandatory death penalty for drug trafficking was thus unconstitutional.
In addition I sought to admit the evidence of Professor Fagan and his published article comparing Hong Kong and Singapore which dealt with the question of deterrence. At the least it shows that resort to the mandatory death penalty cannot be shown to act as a significant deterrence to offenders. If the death penalty itself is not proven to deter any more than the penalty of life imprisonment, then the introduction of some discretion in the sentencing of those convicted of trafficking in drugs cannot possibly be rejected on the grounds of deterrence. I invited the Court to have Professor Fagan’s expert testimony be adduced as evidence because the court in a previous case of Nguyen did suggest that it would have been assisted by some factual material on types of offence and offender that would be subject to the mandatory death penalty in the same way as the Indian Court in the case of Mithu.
The court chose instead to take an extreme positivist interpretation of the Constitution, with the startling conclusion that bears repeating in full:
“the right to freedom from inhuman punishment was not elevated to a constitutional right. There is, in substance, no difference between repealing an existing constitutional provision prohibiting inhuman punishment and deliberately deciding not to enact such a constitutional provision in the first place. On this ground alone, there is no legitimate basis for this court to now expand, via an interpretative exercise, the scope of Art 9(1) so as to include a prohibition against inhuman punishment”. 
Additionally, the Court of Appeal adopted a firm dualist stance towards the reception of international law, going to the extent of foreclosing future constitutional challenges in court to the constitutionality of the death penalty brought on the grounds of Article 9(1) of the Singapore Constitution. This would be regardless of “any changes in CIL (customary international law) and any foreign constitutional or judicial developments in relation to the MDP (mandatory death penalty) as an inhuman punishment”. In other words, even if every other country in the world were to accept that the mandatory death penalty violated a customary international law norm against cruel and inhuman punishment and resolutions were passed in the United Nations to that effect, still no judicial remedy would be available unless Parliament in Singapore chose to legislate such a norm into being.
iii) The case of Yong Vui Kong (Judicial Review)
Although Yong’s Constitutional appeal was rejected by the Court of Appeal, another unprecedented opening for legal recourse opened itself up from an unexpected quarter.
On 9 May 2010, four days before the Court of Appeal delivered judgment on Yong’s case, Singapore’s Law Minister Mr K Shanmugam commented directly on Yong’s case in a public forum. He stated that “If Yong escapes the death penalty, drug barons will think the signal is that young and vulnerable traffickers will be spared and can be used as drug mules”. These remarks were widely reported in the Singaporean media. Under Article 22P of the Constitution, Cabinet advises the President on the grant of clemency.
In a subsequent statement on 9 July 2010, the Ministry of Law issued a press release stating that Mr Shanmugam’s remarks were justified as the Government’s policy is a “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 by claiming as a fact that he had previously trafficked quantities of ketamine and erimine.
The main thrust of the new argument for judicial review was based on the legal theory of apparent bias: that the rules of natural justice apply to the process of clemency, and that those rules had been breached by Mr Shanmugam’s comments.
Further, another important constitutional point was also open to be challenged as a result of the remarks of Singapore’s Attorney-General when he argued the State’s case at the Constitutional appeal level. The then Attorney-General Walter Woon had argued 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”. This is despite the wording of the pardon provision in Article 22P of the Constitution, which states that “The President may on the advice of Cabinet pardon”.
This is significant because until that statement in court, it had been assumed by members of the public and the criminal bar that Singapore’s Elected President had discretion in making the decision of whether or not to exercise the high prerogative of mercy. All petitions for clemency are sent to the President’s office, and written rejections are made in his name.
If I were to be able to successfully argue that the President has discretion in deciding clemency petitions, the revelation by the Attorney-General that Cabinet practice is to not give the President discretion would mean that all previous clemency rejections and subsequent executions were miscarriages of justice, including Yong’s first rejected clemency petition.
iv) Leave application: High Court ruling
As I am currently waiting to appeal the High Court ruling to the Court of Appeal in September, I will attempt to refrain from commenting on the merits of the judgment and give a survey of the Court’s main findings.
I filed a prohibiting order under Order 53/1/3 of the Rules of Supreme Court to request leave for the High Court to prevent Yong’s execution from moving ahead on the basis that the process of clemency was irreversibly tainted by the Law Minister’s comments as set out in the above section.
The main grounds on which the Court had to decide the case were completely unprecedented, as noted by Justice Steven Chong in his decision. The first point of law to be decided was whether or not the clemency process was subject to judicial review, and the second was on whether or not the President had any discretion under Article 22P of the Constitution to pardon.
Before I address the substantive issues raised in the judgment, I should perhaps address the threshold question for the standard for leave to be granted for substantive arguments to be heard on judicial review. An Order 53 application is essentially an ex parte application that the court has the discretion to turn into an inter partes proceeding. There is authority on point stating that the courts should only conduct a quick perusal of the materials to determine whether it discloses an arguable case for granting the reliefs claimed and that the threshold for leave should be met if there is an arguable case in favour of granting the relief claimed.  However, the court chose to interpret this to apply only to cases where all the evidence is not before the court and there is a necessity for it to be produced in a substantive hearing. Accordingly, the Court proceeded to analyze all the substantive grounds of the judicial review action in its’ judgment.
a. Justiciability of the clemency process
On the first substantive issue, the Court agreed with Mr David Chong SC from the Attorney-General’s Chamber’s submission that the actions of Cabinet in relation to clemency proceedings was beyond justiciability. At the high watermark of the Mr Chong’s submissions, he argued that the position in law should be that no matter how capricious or arbitrary even to the extent of discriminating on the basis of race, a decision of Cabinet at the clemency process stage would not be reviewable by the courts.
It might seem to a casual observer that the Court did not venture as far as to agree with Mr Chong’s submission, as it instead cited the seminal holding in Chng Tsuan Tze v Minister for Home Affairs with approval: “all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.  Unfortunately, the substance of the decision which held that the clemency process is not justiciable is essentially irreconcilable with this statement.
The next point to note is the extent to which the clemency process in Singapore has been placed beyond review encompasses the whole process from before a petition of clemency is filed up until it is rejected. The High Court held that “it was clear that the courts have consistently declined to review the process for the exercise of the prerogative of mercy on any ground at all” and that the cases cited by the Mr David Chong SC were indistinguishable from Yong’s case.
This implicitly rejected the distinction that formed the crux of the defense’s case: that comments made by the Law Minister were made before the clemency process had begun, a situation which has no precedent in Commonwealth case law. It is unfortunate that the uniqueness of this distinction was not recognized, and it remains for me to convince the Court of Appeal that at least this stage of the process should be subject to judicial review.
b. The power of the Elected President to Pardon
The second prong of Yong’s defense was that the Elected President of Singapore under Article 22P of the Constitution has the discretion to pardon, with Cabinet advising him on whether or not to. The Article reads that the President “may on the advice of Cabinet Pardon” (emphasis added), and defense lawyers have for years been sending petitions to the President on the belief that he was the one who was making a final decision.
Of legal significance to Yong’s case is this fact: that if the President indeed has the discretion on whether or not to pardon, then the description by the Attorney-General in the Court of Appeal at the Constitutional stage that “the President has no discretion in this matter” would be an admission that Yong’s rights had been violated when his first clemency appeal was turned down.
On this point, the High Court preferred Mr Chong’s strictly textualist reading of the Constitution. Mr Chong’s argument was that Article 21 (1) states the default position that the President is to act on advice of Cabinet unless specific provision is made for him to exercise his discretion. Article 21(2) of the Constitution sets out the discretionary grants of power given to the Cabinet. The Court however disagreed with defence that Article 21(2)(i) which states that “any other function the performance of which the President is authorized by this Constitution to act in his discretion” was a savings clause sufficient to encompass the power of Presidential pardon in Article 22P.
v) Resurgent public interest and campaign
The trajectory of public interest in Yong’s case has arced steadily upwards as every battle in court has managed to extend the number of days Yong is alive. This is due in part to the increasing interest of the Malaysian government in his case, as well as the extra time abolitionist activists have had to organize public outreach events to support Yong’s cause.
Even until the end of the Constitutional appeal stage in May 2010, Yong’s case was hardly reported in the Malaysian press. Up until June 14, journalist for online Malaysian news portal Malaysiakini Susan Loone lamented that Malaysia had been “painfully silent on the upcoming execution of Yong Vui Kong”. Since the failure of the appeal, I visited Malaysian capital Kuala Lumpur several times to liase with the Malaysian Bar Council and NGO group Lawyers for Liberty in an attempt to find opportunities to bringing Yong’s case to the attention of the Malaysian government.
Finally, the breakthrough arrived on 5 July 2010, after months of attempting to seize the Malaysian government’s interest in Yong’s case. A week prior to 5 July, I was introduced to one Ms Ngeow Chow Ying, a dynamic young lawyer from a Malaysian Chinese lobbying group, the Selangor Chinese Assembly Hall. She arranged a meeting with a prominent member of the opposition Mr Tian Chua, who promised to find a way to get the attention of the Malaysian Foreign Ministry and seek their support for the Malaysian government’s intercession on Yong’s behalf.
On 5 July, the opposition proposed an emergency motion in the Malaysian Parliament to debate support for Yong. Although the motion was rejected on technical grounds by the Speaker of Parliament, this tactical move was significant enough to get the attention of Malaysian Foreign Minister Anifah Aman, and his agreement to meet with me to discuss possible intervention. In our meeting, the Foreign Minister agreed to provide robust support in attempting to save Yong, and promised to write to the Singapore government to plead for clemency on Yong’s behalf. 
This event was the turning point of arousing public interest on both sides of the Malaysia-Singapore causeway. Almost every single Malaysian media outlet was present at the press conference Mr Tian Chua helped me organize after the meeting: now that the Minister had spoken all eyes were on the Malaysian government’s next action. The news was subsequently carried in the mainstream press and given even more prominence in the vernacular Chinese press in Malaysia.
In Singapore, activists were re-energized by the possibility that a last ditch plea by the Malaysian government might be effective considering the close ties between the two governments. Campaigners in Malaysia started a campaign called “Give Vui Kong a second chance”, and to date have collected around 40,000 signatures across Malaysia. In Singapore, 150 people turned up at Singapore’s free speech corner to take part in a joint TOC-SADPC photo campaign and petition drive in support of the Malaysian effort. Taking into account Singaporeans’ usual reluctance to be associated with controversial causes, the willingness of 150 ordinary citizens to be photographed in support of Vui Kong’s cause was significant.
vi) Alan Shadrake: International spotlight on Singapore’s death penalty
Yet another unexpected catalyst for public debate on the death penalty showed up in Singapore in the form of veteran British journalist Alan Shadrake. 75-year-old Shadrake entered Singapore on 17 July 2010 to launch his wide-ranging book criticizing the death penalty in Singapore. His principle contribution to the death penalty dialogue until then had been an exclusive interview with Singapore’s veteran hangman, Darshan Singh in 2003, around the time of the hanging of Vietnamese-Australian Nguyen Tuong Van on charges of smuggling.
Using his interview with Singh as the premise for his book, entitled “Once a Jolly Hangman”, Shadrake uses court documents, interviews with former undercover Central Narcotics Bureau officers, and interviews with practicing lawyers to highlight controversial cases where the death penalty was applied or withdrawn.
At 8am in the morning after the book launch, Shadrake was arrested at his hotel and called in for questioning on charges of contempt of court and criminal defamation. This turned what would otherwise have been another isolated attack on the death penalty in Singapore into an international cause célèbre for freedom of speech: Shadrake’s arrest was carried prominently in international press, making headlines on BBC online, BBC radio news service, and The Guardian.
Alan Shadrake’s case is set to be heard on 30 August 2010. As I am representing him in these proceedings it would not be appropriate for me to comment further on the case.
While the process of public engagement on abolishing the death penalty is still in its incipient stage, the past year has seen a confluence of events that have created many possibilities for abolitionists to begin a sustained public debate about the justice of the punishment.
I have attempted to provide a survey of the intertwining challenges to abolition in this brief article to highlight how the road to dismantling the death penalty in Singapore is a long and winding one.
In Singapore, the war for abolition cannot be won solely in the courtrooms. It has to be part of the struggle to build an independent and supportive press, integral to the effort to re-empower the local bar, and most importantly to win the hearts and minds of citizens whose eyes have been too long closed to the most fundamental questions of civil and political rights.
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