Friday, August 20, 2010

Clemency and the Constitution

I didn’t think that there was much hope for Vui Kong in the recent application before the High Court. Even if the Court had decided that the President may exercise his discretion, it would not have won Vui Kong a reprieve. But, the decision appears to have aroused a primal cry from netizens and armed critics with another weapon with which to mock the highly paid and allegedly powerless ‘Elected President’.

Many decry the legal confirmation of the President as a figurehead. Some have taken the Court ruling to mean that the President has no legal authority at all under the Constitution and that he is nothing more than a puppet. At the other end of the spectrum, there are lawyers and legally trained persons who are puzzled as to why M Ravi attempted this outrageous application when a ‘plain’ reading of Article 21 and Article 22P of the Constitution is supposed to reveal that the President does not have discretion in the matter of the Pardon.

I think that it is important to understand the Constitutional position.

1) Is the President a powerless figurehead under the Constitution?

No. By virtue of Art 21(2), the President has a number of discretionary powers.

Art 21(2) is as follows:
(2) The President may act in his discretion in the performance of the following functions:
(a) the appointment of the Prime Minister in accordance with Article 25;
(b) the withholding of consent to a request for a dissolution of Parliament;
(c) the withholding of assent to any Bill under Article *5A, 22E, 22H, 144 (2) or 148A;
(d) the withholding of concurrence under Article 144 to any guarantee or loan to be given or raised by the Government;
(e) the withholding of concurrence and approval to the appointments and budgets of the statutory boards and Government companies to which Articles 22A and 22C, respectively, apply;
(f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G;
(g) the withholding of concurrence under Article 151 (4) in relation to the detention or further detention of any person under any law or ordinance made or promulgated in pursuance of Part XII;
(h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony Act (Cap. 167A); and
(i) any other function the performance of which the President is authorised by this Constitution to act in his discretion.

Some netizens have gone overboard in making remarks that the High Court’s decision confirms what everyone privately feared… that the President is just an expensive rubber stamp. I find this to be an extreme response to the Court’s decision. The judge was examining one of the President’s powers and made a ruling that this power was constrained and the President had to act in accordance with the Cabinet’s advice.
Activists have to act with care not to make the assertion that the President is a rubber stamp (period). On the question of the pardon, the President is required to rubber stamp the Cabinet’s decision and not in relation to all functions.

2) Did the Court get it obviously wrong in deciding that the President had no discretion in the granting of the pardon?

No. There is a strong and irresistible conclusion that one can arrive at in reading the Constitution plainly that the President has no discretion in the use of the Art 22P power.

Arguments have been brandished (without reading the Constitution properly, I believe) that Art 22P states that the President ‘may on the advise of the Cabinet’ grant a pardon. Art 22P read in isolation leads one to conclude that the President has full discretion in the grant of the pardon.

Art 22P is as follows:
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).

I understand perfectly well that the plain reading of this provision indicates that when the clemency issue arises, the President will call for reports from the judges to be sent to the AG who will send these reports together with his opinion to the Cabinet for the Cabinet to advise the President. The provision appears to leave the exercise of discretion by the President hanging ambiguously in the background.
Many lawyers and even law students will point out quickly that interpretive problem can be easily unravelled by reading Art 21.

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.

So, Art 22P confers on the President the function of granting the Presidential Pardon. Art 21 states that in the exercise of this and other functions, the President ‘shall’ act in accordance with the advice of the Cabinet. The use of the word ‘shall’ is mandatory and affords no discretion in the matter.

Art 21(2) lists out the different powers that are given to the President and that can be exercised with full discretion contrary to what is stated in Art 21(1). The list of these powers has been reproduced above. Art 22P is not listed nor is the granting of pardon referred to expressly. Therefore, quite justifiably there is a camp of lawyers who would assert boldly that the President has no discretion in clemency matters.

3) Did M Ravi miss the obvious and get his arguments wildly off the mark?

No. He raises an equally viable argument vis a vis Art 22P.

I have seen some comments posted by some individuals questioning M Ravi’s failure to see the obvious: i.e. the Constitution is clear and unambiguous in Art 21(1) and 21(2). But, I think they have failed to see the thrust of Ravi’s submissions to the Court. The interpretation that he proposed of Art 22P is a plausible reading of Art 21(1), Art 21(2)(i) and Art 22P.

Art 21(1) suggests that the President shall act in accordance with the Cabinet’s advice.

Art 21(2) provides for exceptions where the President can exercise his discretion.

One of the exceptions is as follows:
Art 21(2)(i) - any other function the performance of which the President is authorised by this Constitution to act in his discretion.

‘authorised… to act in his discretion’
Whilst Ravi’s argument is not the most obvious way to read the Constitution, it presents a perfectly valid legal argument that stands in competition with the simplistic reading of the Constitution as requiring the President to exercise no discretion in the granting of the pardon. Ravi claims that the function of granting pardons falls within the kind of functions referred to at Art 21(2)(i) (any other function the performance of which the President is authorised by this Constitution to act in his discretion).

The Constitution spells out the President’s powers in a number of ways. I have selected 3 provisions to illustrate the different approaches:

Article 25. —(1) The President shall appoint as Prime Minister a Member of Parliament who in his judgment is likely to command the confidence of the majority of the Members of Parliament, and shall, acting in accordance with the advice of the Prime Minister, appoint other Ministers from among the Members of Parliament

Article 22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet — (a) grant a pardon………..

Article 22A. —(1) Notwithstanding any other provision of this Constitution — (a) where the President is authorised by any written law to appoint the chairman, member or chief executive officer of any statutory board to which this Article applies, the President, acting in his discretion, may refuse to make any such appointment or to revoke such appointment if he does not concur with the advice or recommendation of the authority on whose advice or recommendation he is required to act…

The salient parts of the 3 provisions can be set out in the following way:
(1). The President shall, acting in accordance with the advice of the PM, ……
(2). The President may on the advice of the Cabinet…
(3). The President, acting in his discretion, may

There are two ways of dealing with these three phrases. The first argument would be that the word ‘shall’ is a prescription to the President to do something and that it affords no discretion to him. The word ‘may’ presents an option to the President so that he now has discretion and the advise of the Cabinet that he considers goes towards the exercise of his discretion. Therefore, (1) is a provision that gives no discretion and (2) and (3) confer a discretion on the President. Interpreted in this manner Art 22P (the granting of the pardon) is arguably within the ambit of Art 21(2)(i) and therefore, Vui Kong’s counsel has a valid point in stating that the President has discretion.

The second way of dealing with the 3 phrases is to assert that only those provisions that state specifically that the President is ‘acting in his discretion’ would qualify under the proviso in Art 21(2)(i). Eventually, it appears that the Court has interpreted the Constitution in this manner. There are a number of provision that state ‘the President, acting in his discretion, may”. These provisions were contrasted from Art 22P which states that the ‘President may on the advice of the Cabinet’ grant the pardon. The Court, therefore, concluded that Art 22P does not provide for the President to act in his discretion.

The short of the long story?

The power under Article 22P was open to interpretation. The High Court has interpreted it. Let us see how the Court of Appeal views the provision and whether it is declared that the President does or does not have discretion in the grant of the pardon.