06 July 2011

Until human judgment is infallible

It has been »widely reported that the current President Nathan stated last year that he can only grant pardon from the death penalty "on" the advice of the Cabinet.  That is, a President has no discretion - the Cabinet decides, the President signs.

The operative paragraph is para 22P of the Singapore Constitution which states:

Grant of pardon, etc.
22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet
(a) grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;
(b) grant to any offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence pronounced on such offender; or
(c) remit the whole or any part of such sentence or of any penalty or forfeiture imposed by law.
(2) Where any offender has been condemned to death by the sentence of any court and in the event of an appeal such sentence has been confirmed by the appellate court, the President shall cause the reports which are made to him by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General with instructions that, after the Attorney-General has given his opinion thereon, the reports shall be sent, together with the Attorney-General’s opinion, to the Cabinet so that the Cabinet may advise the President on the exercise of the power conferred on him by clause (1)

Per »Siew Kum Hong's analysis, I agree that this has to be read in conjunction with para 21 of the Constitution, a few paragraphs up from para 22P:
21. —(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.
(2) The President may act in his discretion in the performance of the following functions:...
However, Siew implicitly argues that para 21 contains an exhaustive listing of all the decisions that the President has discretion to decide.   Since the death sentence pardon in para 22P falls outside of para 21, there is no discretion allowed.

I disagree on this last point, for para 21(1) states "except as provided by this Constitution" not "except as provided by this paragraph".    It is not beyond the shadow of doubt for me that para 21 necessarily precludes discretion of the President in para 22P.

My question is why para 22P uses "on the advice of the Cabinet".  Why has para 22P not used  "in accordance with the advice of the Cabinet", which would have left no room for doubt?  In my mind, one interpretation of "on the advice" could be that the President has to necessarily seek counsel from the Cabinet before granting a pardon and give weight to its advice.  But he or she may not necessarily end up acting in accordance to it.

There are only two possibilities as to why para 22P does not use "in accordance with":  (a) the draughtsman did not give too much thought; (b) it was deliberate.  Either is possible, but in all likelihood, (a) is the more probable case.  (If you have seen how lawyers work and the kind of time pressure they are under, it will not come as a surprise.)

If the draughtsman didn't give too much thought, the onus then falls upon the judiciary to interpret it in a reasonable way.   Sim Kum Hong and the Court did not think that there was room for any other interpretation.  »M Ravi thought there was and proposed the very attractive doctrine of legitimate expectations.  It was however defeated in court. 

It is not an outcome I like.  I can accept it if President Nathan did not want to grant the case at hand (Yong Vui Kong, for drug trafficking) a pardon.  In fact, I have often explained to people that we cannot run a country if we keep granting ex post exceptions.  It is however very dissatisfying to see President Nathan deflect his personal burden of saying no by instead creating a constitutional interpretation that Presidents have no discretion to grant clemency.  It further begs the question of whether past pardons are constitutional, if it turns out that past Presidents somehow did not act in accordance with the Cabinet "advice".  If I were one of the seven lucky people in Singapore's history who managed to receive a pardon from past Presidents, I would be very worried.

But the law is the law,  and the letter of the law has failed the popular expectation of what it is supposed to do.   The only thing we can do now is to change it.

My attention turned onto the issue of pardon recently because of the compounded effect of the mandatory death sentence.  I have seen those three words many times in the last 20 years, but did not fully grasp its full meaning until a week ago.  Mandatory death sentence does not mean "a maximum penalty of death sentence".  In the specific case of drug trafficking, it means simply this: if you are in possession of more than x grams of drug y, the public prosecutor is obliged to push for the death sentence and the judge is obliged to sentence the same.  There is no gray area, no extenuating circumstances, no judicial discretion in prescribing something other than death sentence.  

This is my understanding of how »Schedule 2 of the Misuse of Drugs Act works.  I would love to be told that I am wrong, but it is unlikely.

All these come together to mean the following: if you are caught with more than x grams of drugs, and you are unable to rebut the presumption that you have knowledge of it, the presidential pardon is essentially the only hope.  However, we are now faced with the situation that the decision for this pardon lies not with the President, but with the Cabinet who is most unlikely to diverge from the stance of the public prosecutor.

We cannot allow both to exist in our system for the simple reason that the British MP Sydney Silverman has put so elegantly in 1948 -

Until human judgment is infallible, we have no right to inflict irrevocable doom.

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