Mandatory death penalty ruled constitutional
Saturday, May 15, 2010 at 10:47AM Singapore's Court of Appeals have ruled that the mandatory death penalty for drug trafficking as constitutional, setting the legal precedent for the constitutionality of the punishment and upholding the death sentence handed to Yong Vui Kong for drug trafficking. This ruling also forecloses further constitutional challenges to the mandatory death penalty.
He ruled that Article 9 (1) of the Singapore Constitution, which establishes that ‘no person shall be deprived of his life or personal liberty save in accordance with law’, neither precluded ‘inhuman punishment’ nor did it embrace customary international law that prohibits the mandatory death penalty, as lawyer M Ravi had argued.
The Court had used a narrow interpretation of Article 9 (1) to arrive at its ruling, which is an expected outcome. Constitutional challenges to legislation is often a zero-sum game, and in this case, Yong lost. The result means a continuation of our myopic policy to send drug traffickers, who are mostly mules who may or may not know what they are carrying, to death while ignoring the "drug barons" who stay safely out of reach of our legal system.
By foreclosing further challenges, the Court has effectively thrown the ball back to the legislative arm of government if the mandatory death penalty is to be revoked. In a country where both the legislative and executive are one and the same, what the Court really affirmed is the importance of maintaining Singapore's "tough on crime, clean and safe" image rather than face the reality of inconsequential, illogical and outdated laws that does nothing to justify this image.
The following from Chief Justice Chan Sek Keong was particularly disappointing:
The court also did not find applicable the Indian Supreme Court ruling that declared the mandatory death penalty inconsistent with their constitutional equivalent of Article 9 (1). CJ Chan found that to accept the Indian standard of a ‘fair, just and reasonable procedure’ would require judicial interpretation of the scope of ‘reasonable’ – thus potentially leading to a conflict with Parliament.
I find no quarrel with a narrow interpretation of the Constitution, but avoiding judicial interpretation because of a potential conflict with Parliament is untenable for the judiciary, and immediately calls into doubt their independence from the executive and legislative arms.
Questions of executive interference were also raised when Law Minister K Shanmugam offered his defense of the MDP a few days ago. The timing of Shanmugam's opinion was either exquisite or lacked subtlety depending on perspective, but this decision, and the opinion of CJ Chan, does not particularly embellish the reputation or the perception of the judiciary. The minister's statements, and his timing, did not go unnoticed by Yong's defense attorney M Ravi.
Before the session adjourned, M Ravi registered his ‘deepest disquiet’ to the court over statements made by Law Minister K Shanmugam about the case in a dialogue session last weekend.
Speaking to reporters after the ruling, Ravi raised his concerns that the Law Minister’s ‘specific’ comments about Yong’s appeal would transgress sub judice laws prohibiting public opinions on cases awaiting judgment.
What I find most disturbing about CJ Chan's opinion was how easily the judiciary chose to wrap itself in a narrow defense of the constitution and ping-pong its responsibility as the arbiter of justice back to the legislative. The judiciary is there to interpret laws enacted, to judge if legislation is constitutional; this is their job. To avoid judicial interpretation, especially in such a narrow context, because of a potential clash with Parliament is not deference; not avoiding it is not judicial activism, but a responsibility of our judges and our courts. Executive interference or not, this "deference" by the Court of Appeals is egregious.
We cannot afford this ping-ponging of responsibility from any of our branches of government. Until our political landscape changes, the reality is our executive and legislative is really one body, making our judiciary even more crucial to uphold our rights and check executive power and legislative overreach. This outcome merely confirms that our judiciary simply do not have the fortitude to stand up to both these challenges, or to uphold constitutional rights of Singaporeans.
Disappointment barely scratches the surface of my emotions upon hearing this verdict.
Reader Comments (3)
I could not agreewith you more.
Singapore follows the British model of government, which places Supremacy with Parliament, even though we have a Constitution. The fact that our Courts have theoretical power to overturn laws they deem unconstitutional, makes them more powerful that English courts, who can only comment and never overturn (although they can overturn those not in line with EU law).
Our courts have always been deferential to Parliament on most matters of policy, but I do not doubt their independence. Just because our judiciary is not an activist one, does not mean they are incapable of independent action.
@pmg: That's conflating the issue; the court is certainly capable of independent action, but that does not mean it is independent. As for judicial activism, our courts are not above that as well. But I would prefer it if they would not use the excuse of deference in the case of the MDP, and yet exercise activism in non-criminal cases.