By M.Ravi
Shanmugam Murugesu was executed May this year on Friday the 13th , which we recall as a black day for Singapore despite a high profile campaign by the civil society in Singapore and also despite my application in Court which was heard 12 hours before the execution and also asking the President to convene a Constitutional Court on the potential breaches of the Constitution, request of which was turned town.
Shanmugam a national athlete who brought fame for Singapore had, on occasions when I met him in the prison, made a personal appeal to me to do all the best to campaign to save Nguyen Tuong Van’s (“Van”) life. He also mentioned that he was the confidante for Van during his time in the prison and would express to me that the feeling among the guys on death row was that if any of them were to get off they would be glad if it was Van, as he was so “very young and a soft spoken soul”. Shanmugam also said that even if Shanmugam’s life was not spared that I should continue to fight to save this young man’s life.
The President had turned down the clemency for Van. It came as a surprise to me given the recent negotiations between the Singapore and Australian Governments on the issue of extraditing McCrea to Singapore.
Discrimination under Article 12(a) of the Constitution, equal treatment and equality before law
Discrimination in Singapore
4. The fact the in McCrea’s case the Singapore Executive had given an undertaking that McCrea will not be executed even if he was convicted of murder, is an indication that the Executive had exercised discretion on the issue of capital punishment. This is even before Mc Crea’s trial had begun.
5.We have been arguing in Singapore that there should be Judicial Discretion in capital cases and most importantly in drug related cases when the burden of proof is reversed on the accused. The reason being an overwhelming number executions are related to drugs. The Singapore Executive had even gone one step further to say that they will advise the President on clemency.
6. Even before Mc Grae’s case begins the Government had given undertaking. Therefore an Executive discretion had been exercised vis-a-vis Judicial discretion. If Mc Crea who is alleged to have committed double murder and even if he is convicted of death, he will not get death sentence. That is the essence of the undertaking of the Singapore Government as far as his case is concerned. If the Courts were to pass death sentence, the President would then grant clemency.
7. If the Governement had decided to exercise discretion, why are Judges prevented in exercising Judicial discretion. Judicial discretion is more endearing by constitutional standards and endures within the realm of the rule of law. Hence Van is treated unequally on the issue of clemency against the backdrop of Mc Crea’s case. Therefore Article 12 is invoked in favour of Van that he is treated unequally before the law and thereby discriminated under the Singapore’s Constituion.
In PP v Taw Chen Kong, the Chief Justice quoted the Privy Council case of Ong Ah Chuan v PP, where Lord Diplock succinctly states the equality provision.
“Equality before the law and equal protection of the law require
that like should be compared with like. What Article 12 (1) of the
Constitution assures to the individual is the right to equal
treatment with other individuals in similar circumstances.”
Discrimination in Australia
8. The fact that the foreign ministry in Australia said that the due process had been followed is flawed and shows their discriminatory attitude to Van’s case. Both cases, springs forth from Australia, – one is a British national who resided in Australia and the other is a Vietnamese citizen of Australia. To further elaborate on the point which I claim that the Australian Foreign Ministry’s comment of “ the due process is followed” is aslo discriminatory to Van under the Australian Constitution when it is plain and obvious that the very Foreign Ministry which canvassed for Mc Crea shut their blind eye to Van on this point of equality before the Constitution.
9.It is inspiring as an anti-death penalty citizen, to note the fervour of the Australians on this issue to save Van from being executed, when all legal avenues are seemingly closed. There were constitutional arguments raised before the Australian Courts on Mc Crea’s case, on the issue of extradition and death penalty. It is up to the Constitutional experts in Australia to explore and advise their Government on this issue of discrimination. But certainly I would like to highlight this issue to Amnesty International Australia and the Australian coalition against death penalty. What is sauce for the goose is sauce for the gander. But Mc Crea’s case is source on the issue of discrimination as far as the clemency process is concerned.
10.The fact that the Australian Government had turned its blind eyes to what is obvious on this Constitutional breach under Article 12 is clearly discriminatory. When they are deeply involved in the Mc Crea’s case on the Constitutional issue of death penalty and the fact they failed to see that it is discrimination before the Singapore Constitution, is discriminatory. Hence the failure to see this discrimination or turning a blind eye is a discrimination before the Australian Constitution.
Article 22(2) of the Singapore Constitution –Nguyen Tuong Van suffers a breach of the principle of natural justice
11.The President’s refusal to grant a pardon to the applicant be set aside by way an application in court or Petition to the President to reconsider his decision. This is based on the on the ground that the Presidential pardon process under Article 22P of the Constitution contravenes the principles of natural justice and further contravenes Article 9(1) of the Constitution, and the execution of the application be stayed or set aside pending the determination on this issue. The essence of the aforesaid is that article 22P(2) itself is in breach of the principles of natural justice because the decision making process involving the pardon is defective because the President’s decision when exercising whether to grant a pardon in a particular case is based on the Attorney General’s opinion. Hence Article 22(P) contravenes Article 9(1) which says “ No person shall be deprived of his life or personal liberty save in accordance with law”. Accordance with law means principles of natural justice are observed.
The whole of Article 22P is reproduced below :
Grant of pardon, etc. 22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet —
(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).
12.It is crystal clear that there has been a breach of the principles of Natural Justice as the decision making process of the pardon is defective in the exercise of the President’s refusal to grant pardon. Also the special reports by judges forwarded to the Cabinet,AG or President are not disclosed and made available to the condemned prisoner to present Clemency petition. The non-disclosure of the reports to the condemned prisoner is laso a breach of natural justice. Annexed herewith is a copy of my affidavit supporting the aforesaid contention which was filed in Court in shanmugam’s case.
President is empowered under Article 100 of the Constitution to convene a Constitutional Court on any issue relating to the Constitution
13. I am urging the President in my capacity as a citizen to convene a Constitutional Court in view of the aforesaid breaches of the Constitution in Van’s case. It is open to the people of Singapore to likewise ask the President to convene a Constitutional Court on an urgent process so that then “ the due process is followed”, before rushing into this execution. I also appeal to the Australians to urge the President to do so.
14. I am submitting my Petition to the President through this Press Conference and the said Petiton will be served on the President by today, a copy of which is enclosed herewith.
15. I respectfully urge that his Excellency treat the matter with urgency given the nature of the Petition. If a reply is not forthcoming by the President by Tuesday,31 October 2005, I wish to place his Excellency on notice that I will proceed to file a complaint to the United Nations Special Rappoteur for Extra-Judicial,Summary or Arbitrary Executions on the aforesaid manifest breaches on due process in pleading with UN to urge the Singapore authorities to stay the execution pending an inquiry by UN on the aforesaid matters and also urge the UN to appeal to the President to conveve a Constitutional Court to address the contravention of the Constitution.
16. I appeal to the Australian public to take this matter on an urgent basis to the United Nations. As my resources are limited, I appeal to the United Nations Experts in Australia to follow up and render immediate assistance on this matter and interested parties can contact me at mravilaw@gmail.com. This is to ensure that all avenues are exhausted including the UN mechanism.
17. From the experience of the 2 cases that I handled pro-bono and where I was only instructed the clemency stage, hanging takes place within three weeks from the date of the rejection of the clemency on the 3rd Friday. Here we are looking at 11th November 2005.
Breach of Article 9 of the Singapore Constitution – no one shall be deprived of his life save in accordance with law. Accordance with law means due process.
18. The President must satisfy that the Constitution is not breached in the spirit of Article 9 above. Unless he does this, the execution is unlawful, unconstitutional, arbitrary, discriminatory and violation of the Constitution. Therefore it is unsafe at this moment to proceed with the execution.
Legal avenues open to Van -The Australian Challenge
19. In the Court of appeal, Van’s lawyers challenged the legality of the mandatory sentence of death,, inter alia, on the ground that the death sentence was unconstitutional and therefore illegal. The appellant relied on Articles 9, and 12
An article by Mr.K.S Rajah,SC, former judicial commissioner( annexed herewith)
“The potential use of international law to infuse meaning into domestic law on
punishment that is rigid, cruel, inhuman or degrading to make it more flexible and human by the court’s exercising discretionary powers when the mandatory sentence is prescribed is now an arguable case.
20. Dealing with the specific mode of execution as being contrary to the prohibition in customary international law against cruel and inhuman treatment in Article 5 of the UDHR which provides:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”
the Court said: “To succeed on this ground of appeal, the appellant must first show that the prohibition against cruel and inhuman treatment or punishment amounts to a customary international rule. Next, the appellant must show that a specific prohibition against hanging as a mode of execution is part of the content of that rule in customary international law.”
21. Singapore cannot for long be a global city and player in the world’s affairs in every respect, except when it comes to punishing offenders for wrongs done.
It is now open to an accused to show through experts in international law that a mandatory death sentence is cruel and inhuman punishment under customary international law. There is light on the path.
Whether an innocent man be hanged Singapore because of because of Procedure?
22. If as counsel for a condemned person, I am able to adduce fresh evidence or
canvass a new argument which has merits, in both situations, after the Appellate
process has been exhausted (that is after an appeal has been heard by the Court of Appeal), what recourse does my client, the condemned man, have?
23. As it stands the court restated their position in the case of Vignes Moorthy v PP that it does not have the power to re-open a case where an appeal had already been heard and dismissed by the Court of Appeal.
24. This is what the Chief Justice meant when he said that –
When Mr Ravi asked the CJ if the public prosecutor was “still maintaining that an innocent man be hanged because of procedure”, the CJ answered : “Yes, the answer is yes.”
Was Vignes Mourthy innocent? Was he hanged due to the legal procedures in Singapore?
Today Online dated 27September 2003
by Teo Hwee Mak and Joy Frances
25. The aforesaid clearly shows that there is a serious defect in our legal system, since it has undeniably been stated by the Chief Justice himself that an innocent man can be hanged.
26. From my point of view the Courts have revisionary powers which they ought to have defined in Vignes Moorthy’s case. Unfortunately, they made a decision
which completely shuts the door on the condemned prisoner. This is brutal where
an innocent person is concerned because a man is presumed to be innocent.
Article 9 (1) states :
“no person shall be deprived of his life or personal liberty save in
accordance with law.”
27. Law here means the due process. Due process must mean that an innocent man cannot be hanged
Further and in the alternative the execution of the applicant be stayed because it is unsafe to carry out the execution of the applicant as it contravenes Article 9(1) of the Constitution.
28. Putting aside the court system in Singapore, where do we go from here?
“The judges said their court was not the constitutional court therefore could not decide the matter”.
Today Online dated 27September 2003
by Teo Hwee Mak and Joy Frances
The problem in relation to the administration of justice in Singapore has
to be addressed before a man’s life is gone.
Campaign against execution of Van
29. I am appealing to the civil society in Singapore to participate in the upcoming campaign in the next two weeks, details of which will be revealed shortly in the next couple of days. I have faith that Singaporeans will show their full support regardless of the nationality,religion and ethnic background of anyone who faces imminent execution here. I have faith that Singaporeans will rise above nationality,race and religion in appealing to the President to reconsider his decision.
30. A letter writing campaign is ongoing as it might help Van to receive letters telling him that Singaporeans care about his situation.
A group of concerned Singaporeans are meeting on Saturday 7pm at Empires’s Café,Raffles Hotel to discuss responses
Launch of book “Hung At Dawn”
31. On 19th November 2005, I’m releasing a novel on the struggles of two condemned prisoner after their appeals was dismissed. And I was involved at the clemency stage in both of these cases, pro bono, when all avenues were closed. There were similar issue raised by me, similarly asking the President to convene Constitutional Court, which the President turned down my requestwithout giving any explanation.
Dated this 27th Day of November 2005 @ Hotel Grand Plaza, 3 p.m.
M.Ravi
Singapore
ELEANOR HALL: Supporters of a convicted Australian drug smuggler Van Nguyen are still hopeful he can be spared the death penalty in Singapore.They’re using the media and international forums to urge the Singaporean authorities not to carry out the planned execution. But Australia’s Prime Minister John Howard is pessimistic about Van Nguyen’s prospects, saying he’s done everything he can do.This report from Brendan Trembath.
ELEANOR HALL: A Singaporean lawyer who’s acted for two death row prisoners says while diplomatic channels have now closed for the Australian drug trafficker Van Nguyen, there is still hope he can be spared execution through a legal appeal.Mr M Ravi, a human rights lawyer who made Singapore’s death penalty a front-page issue when he represented a Singaporean athlete on death row, says while Van Nguyen has only about 10 days to go before he’s likely to be executed, that is time enough to lodge the appeal.And Mr Ravi says if it’s successful, the case could overthrow the death penalty in Singapore altogether.He spoke to me from Singapore earlier today.
Lawyer, activist and author of the book, Hung At Dawn.
Hung At Dawn 