The decision dismissing the latest (and last) appeal by Yong Vui Kong, delivered 4 April 2011, was entirely expected. I had given it zero chance of success. The only hope now lies with a fresh appeal to President S R Nathan for clemency. An earlier clemency appeal made in 2009 was rejected by the President in December that year, a fact that does not bode well.
I call on President Nathan to grant him clemency without hesitation. If anyone deserves it, it is Yong, who has expressed remorse for his actions.
For trafficking 47 grams of diamorphine (commonly known as heroin), he was sentenced to death in January 2009. Singapore’s Misuse of Drugs Act makes the death penalty mandatory for trafficking more than 15 grams of heroin; judges have no discretion in varying the sentence. Yong was only nineteen years old when he was caught.
It has been a valiant battle through the courts by Yong’s lawyer, M Ravi. The latest appeal rested on two issues: Whether a comment made to the media by Law Minister K Shanmugam in May 2010 prejudiced the courts, and whether it was unconstitutional for the president to consider himself bound by the cabinet’s advice on questions of clemency.
Chief Justice Chan Sek Keong affirmed a High Court Judge’s ruling that
Mr Shanmugam’s statements did not constitute apparent bias. He said the minister’s statements in relation to the youthfulness of an offender merely reflected legislative policy – that the death penalty will come down on all serious drug offenders aged 18 and above, and that youthfulness was not a basis for a pardon.
— Straits Times, 5 April 2011, Trafficker fails in clemency challenge
As for the clemency process, the Justice of Appeal Andrew Phang, speaking for the court,
said it was clear under the Constitution – and supported by legislative history – that the President has no discretion in exercising the power to grant clemency; he does so in favour of an offender only where the Cabinet has advised him to do so, he said.
In my view, both are correct findings.
This is not to say that I hold Singapore courts in such high regard. Readers will know that when it comes to politically sensitive cases, I have had a very low opinion of their decisions and the tortuous logic they have applied. In this case however, there was little need for the court to depart from standard logic to arrive at the decision it did. It’s what we might all an “open and shut” case.
Especially on the question of clemency process, it was never realistic to expect the court to overturn settled constitutional practice just to save one person.
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In most ways, campaigning against the death penalty in Singapore has parallels with any other advocacy campaign. At the beginning, you’re faced with a society that neither understands the issues nor even want to understand the issues, a society smug in its uncritical acceptance of the status quo. Conditioned by the Singapore government’s heavy fist, ordinary citizens too see advocates as trouble-makers, out to disrupt the civil peace — never mind if it’s the peace of self-imprisoned minds — they have grown up with. They react with suspicion towards advocates and stay away, fearful that any form of association with these trouble-makers will put themselves at risk when the government cracks down.
Advocates find themselves trying to talk to dead wood.
It was like that (and in many ways, still like that) when the women’s movement started in the 1950s, when the gay movement started in the 1990s, when the first activists started doing something about the exploitation of migrant labour.
At the beginning, campaigners also come up against a government that is quick to see any organising they have not blessed as a potential threat to their monopoly of power. The first people who worked with migrant labour got the worst of it — detained without trial and demonised in the government-controlled media as “Marxist conspirators”. The anti-death penalty campaign may be holding the record for being the second worst off, what with contempt of court charge being thrown at Alan Shadrake, one of its proponents.
Even short of detention or contempt of court, the government would put up numerous hurdles. Media would be warned off from giving coverage; other civil society groups ticked off for extending support or even merely renting out a room for a meeting. Potential funders quickly take the cue and tell the activists: “Sorry, the issue you’re trying to promote just does not align with our funding objectives,” they say politely, when what they mean is “I’d be crazy to give you guys money; the government will single me out for their displeasure.”
As perhaps the most recent of civil society movements, the anti-death penalty campaign is right there at the starting point and facing these obstacles more starkly than other, older movements, who’ve managed over the years to crawl over the sharpest rocks to gentler terrain. It takes time and persistence to to whittle away social indifference and government suspicion.
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Unfortunately, the anti-death penalty movement has a unique facet: none other than the death penalty itself, imposed every now and then on real people. The result is that every now and then, the whole movement is jerked to one side to campaign for a particular case with its particular facts and issues. It changes shape from a campaign for a principle into a campaign to save an individual.
One the one hand, it has benefits: keeping the issue alive and in the headlines — as headlines go, under a regime of press control. On the other hand, it leaves the already unreceptive public confused, hearing (if they hear at all) arguments about the particular far more than arguments about the general, thus leaving them with no coherent message.
For example, to save one individual, pleas are made about his youth; to save another, pleas are founded on her childhood poverty and criminal environment. To save a third, pleas are made with respect to his previous heroism saving a young girl from drowning. And the public is left wondering: So, are you guys saying that youthful age, childhood circumstances and the karma of past heroism are the reasons why we should do away with the death penalty?
To complicate matters, I can glimpse three different campaigns — (a) those against the death penalty totally, (b) those against the death penalty for drug offences, but OK for murder, (c) those who are actually in favour of the death penalty but against mandatory sentencing. That’s plenty more to leave the public confused.
Don’t think it doesn’t matter. It may be that individual cases go through courts and executive decisions rather than public opinion, and therefore the arguments need to be made in courts and conference rooms, arguments that naturally must be tailored to the particular cases. However, it would be foolish to think that public opinion has no bearing on how judges, prosecutors and ministers make their decisions. In fact, I’d say that until public opinion moves, judges, prosecutors and ministers will not be moved.
The problem is, just keeping up the campaigns to save one or the other on death row takes so much energy, there is little left to address the public on the principle. In the absence of a sustained conversation about that, the public remains confused, unconvinced and uninvolved. So public opinion doesn’t move. But until it moves, we can’t get judges or ministers to move. Yet we have no time to get the public moving. A capital case is carried on a relentless conveyor belt of court dates, and saving a life now always is more pressing than addressing the public on abstract generalities. It’s a horrible Catch-22.