By Wong Chun Han
The Court of Appeal reserved judgement today in the case of convicted Malaysian drug mule Yong Vui Kong, who has challenged the constitutionality of the mandatory death sentence he received.
Chief Justice Chan Sek Keong told a packed courthouse, after a two-and-a-half-hour-long hearing, that the Court would retire to consider the case and announce its decision at a later date.
Yong, who was sentenced to death in November 2008 for trafficking 47 grammes of heroin, will have his execution stayed pending the outcome of the appeal.
M Ravi, representing 21-year-old Yong, argued the unconstitutionality of the mandatory death penalty on the grounds that it does not allow judges to sentence criminals with punishments proportionate to their crimes and individual circumstances.
He told appeal judges CJ Chan and Justices Andrew Phang and V K Rajah that this denial of judicial discretion in capital cases amounted to inhuman punishment.
The mandatory death penalty thus violates customary international law forbidding the use of “cruel, inhuman or degrading treatment or punishment”, as stated in Article 5 of the Universal Declaration of Human Rights.
Such a violation means the mandatory death penalty falls foul of Article 9 (1) of the Singapore Constitution, which states that “no person shall be deprived of his life or personal liberty save in accordance with law”, Ravi argued.
The Court thus ought to exercise it powers of constitutional adjudication and rule the mandatory death penalty as unconstitutional, he added.
Clarifying that he was against the mandatory imposition of the death penalty and not the death penalty per se, Ravi concluded: “Kill if you must, but not in an automated, robotic, spasmodic and reactionary manner.”
Attorney-General Walter Woon, responding for the prosecution, challenged Ravi’s arguments, saying that the removal of the mandatory death penalty is a political issue rather than a legal one, its retention or otherwise was a matter for Parliament to decide.
He also challenged Ravi’s argument that the deprivation of judicial discretion in sentencing amounted to inhuman punishment, since the same logic ought to then apply to all mandatory penalties.
The mandatory death penalty, AG Woon said, also remains permissible under both common and customary international law.
No rule of customary international law denounces the use of the mandatory death penalty, he claimed, as the punishment is being applied by 31 countries – including China and India. Its use was not deemed objectionable by world powers such as the United States and Britain under the Universal Declaration of Human Rights for much of the 20th century.
Ravi countered these arguments, noting that the current situation – where only the Court has no discretion in deciding the punishment in capital cases – is untenable. In contrast, the prosecution has discretion over whether to press charges for a capital case while the President exercises clemency powers.
Given that the law makes assumptions on criminal culpability, vis-à-vis ages of majority for example, providing discretion in sentencing would allow the Court to investigate these assumptions through the considering of individual circumstances.
Ravi also clarified that China and India in fact operate discretionary death penalties, and refuted AG Woon’s suggestion that Asian countries have resisted European attempts to create a new legal custom, given that many Asian countries do not impose mandatory death penalties.
Hong Kong has no death penalty, while China, India and Japan do not have the mandatory death penalty, and South Korea and Taiwan have held moratoriums on executions, he said.
Southeast Asian nations have also made overtures with regards to the protection of human rights since signing the Asean charter, Ravi added.
Ravi was aided by three London lawyers, including international human rights law expert Edward Fitzgerald QC of Doughty Street Chambers, who helped research the case. All four are working on a pro bono basis.
No date has been set for the Court’s decision, which is expected within the next three weeks.