Court of Appeal · Decided 4 April 2011

Yong Vui Kong v Attorney-General

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[2011] SGCA 9Case no. Civil Appeal No 144 of 2010

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Chan Sek Keong CJ:
Introduction
[1] This is an appeal by Yong Vui Kong (“the Appellant”) against the decision of the High Court judge (“the Judge”) in Yong Vui Kong v Attorney-General [2011] 1 SLR 1 (“the HC Judgment”) dismissing his judicial review application in Originating Summons No 740 of 2010 (“OS 740/2010”).
Factual background
[2] The events leading to the filing of OS 740/2010 are as follows. On 14 November 2008, the Appellant was convicted of trafficking in 47.27g of diamorphine, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”), and was sentenced to death (see Public Prosecutor v Yong Vui Kong [2009] SGHC 4 (“Yong Vui Kong (HC)”)). On 27 November 2008, he appealed, via Criminal Appeal No 13 of 2008 (“CCA 13/2008”), against both his conviction and his sentence. Subsequently, he indicated, via a letter dated 23 April 2009 from his then counsel, that he wished to withdraw CCA 13/2008. The Court of Appeal accepted the withdrawal of that appeal when it came on for hearing on 29 April 2009, and dismissed it formally.
[3] After CCA 13/2008 was formally dismissed, the Appellant submitted a petition to the President on 11 August 2009 for clemency under Art 22P of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”). The President, acting on the advice of the Cabinet, declined on 20 November 2009 to grant clemency. On 30 November 2009, four days before his death sentence was due to be carried out, the Appellant, through his current counsel, Mr M Ravi (“Mr Ravi”), filed Criminal Motion No 41 of 2009 (“CM 41/2009”) seeking leave to pursue his appeal to the Court of Appeal (ie, CCA 13/2008) notwithstanding his earlier decision to withdraw the appeal and its consequential formal dismissal. The ground relied on by the Appellant for seeking leave to pursue CCA 13/2008 was that (inter alia) he had earlier withdrawn that appeal in the mistaken belief that he could not base it on the legal argument that the mandatory death penalty prescribed for the offence of trafficking in more than 15g of diamorphine (see s 33 of the MDA read with the Second Schedule thereto) was unconstitutional. Pending the hearing of CM 41/2009, the President, on the advice of the Attorney-General, granted a temporary stay of execution in respect of the death sentence imposed on the Appellant.
[4] At the hearing of CM 41/2009 on 8 December 2009, the Court of Appeal granted the Appellant leave to proceed with CCA 13/2008 on the ground that his earlier decision to withdraw that appeal was a nullity, given his mistaken belief as to his legal rights (see Yong Vui Kong v Public Prosecutor [2010] 2 SLR 192). Subsequently, CCA 13/2008 was heard on 15 March 2010. In his written submissions for that hearing, the then Attorney-General stated (inter alia) that under Art 22P of the Singapore Constitution (referred to hereafter as “Art 22P” for short), the President had no discretion in exercising the clemency power as he had to act on the advice of the Cabinet. The Court of Appeal reserved judgment at the end of the hearing, and, on 14 May 2010, delivered its decision dismissing CCA 13/2008 (see Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong (No 2)”)).
[5] On 10 May 2010, shortly before the Court of Appeal’s decision on CCA 13/2008 was released, Mr K Shanmugam, the Minister for Law and the then Second Minister for Home Affairs (“the Law Minister”), was reported in a local newspaper, TODAY, as having made, at a community event the previous day, certain comments on the mandatory death penalty for serious drug trafficking offences (these comments will be referred to hereafter as “the Law Minister’s statements”). The material parts of the Law Minister’s statements, as reported in the 10 May 2010 edition of TODAY, are set out below:
[6] In response to the Law Minister’s statements, Mr Ravi declared that those statements had caused the Appellant’s fate to be “‘poisoned’ with ‘biasedness’”. Mr Ravi’s comments were reported in the 15 May 2010 edition of TODAY, which also elaborated on the Law Minister’s statements and a press statement released by the Ministry of Law in respect of those statements (“the MinLaw press statement”), as follows:
[7] Following the above reports in TODAY, the Appellant commenced OS 740/2010 pursuant to O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) on 21 July 2010, naming the Attorney-General as the respondent (“the Respondent”) and seeking the following orders:
[8] In the statement filed by the Appellant as required under O 53 r 1(2) of the Rules of Court (“the Appellant’s O 53 statement”), the Appellant stated that he was seeking the following reliefs:
[9] In summary, in OS 740/2010, the Appellant sought leave to be heard on his application for the grant of the following substantive reliefs:
(a) a declaratory order that under Art 22P, the clemency power was exercisable by the President acting in his discretion, and not in accordance with the advice of the Cabinet (see para 2(a) of the Appellant’s O 53 statement);
(b) a prohibitory order enjoining the President from delegating to the Cabinet his discretion to grant clemency (see paras 2(b) and 2(c) of the Appellant’s O 53 statement);
(c) an indefinite stay of execution of the death sentence imposed on him (see para 2(d) of the Appellant’s O 53 statement);
(d) a declaratory order that clemency should be granted to him for the reasons set out at paras 2(e)–2(g) of the Appellant’s O 53 statement; and
(e) a declaratory order that he was entitled to disclosure of the materials required to be sent to the Cabinet under Art 22P(2) of the Singapore Constitution (referred to hereafter as “the Art 22P(2) materials” for short) in connection with his case (see prayer 11 of OS 740/2010).
The proceedings in the court below
[10] The Judge heard the Appellant’s application for leave together with his application for the substantive reliefs listed in the preceding paragraph.
[11] The Appellant’s case before the Judge was basically as follows:
(a) The clemency power under Art 22P was exercisable by the President acting in his discretion, and not on (that is to say, not in accordance with) the advice of the Cabinet. Hence, the President, in acting on the advice of the Cabinet in this regard, had wrongfully delegated his clemency power to the Cabinet.
(b) The Law Minister’s statements had given rise to a reasonable apprehension that those statements represented not only the Law Minister’s view, but also the view of the Cabinet as a whole. This had in turn engendered “a reasonable apprehension that … any advice which [the] Cabinet [might] give in [relation to the Appellant’s case] ha[d] already been predetermined”;ie, there was “a reasonable suspicion of bias by reason of predetermination”. Accordingly, the Law Minister’s statements had “irreversibly tainted the clemency process with apparent bias”. On this basis, the death sentence imposed on the Appellant could not possibly be executed “in accordance with law” within the meaning of Art 9(1) of the Singapore Constitution, and, therefore, clemency must be granted to the Appellant.
(c) The Appellant was entitled to disclosure of the Art 22P(2) materials relating to his case so that he could make adequate representations to the Cabinet before the Cabinet decided what advice to give to the President vis-à-vis whether clemency should be granted to him.
[12] The Respondent’s case was basically that the clemency power and/or its exercise (collectively referred to hereafter as “the clemency power” for convenience) was not justiciable as the clemency power was “an extra-legal, extra-judicial and extraordinary [power] … that [was] only invoked when the legal process ha[d] reached its final and ultimate conclusion”. Consequently, it was argued, the manner in which the President exercised the clemency power and the decision which he made pursuant to that power would be outside the purview of the courts.
[13] The Judge dismissed OS 740/2010 after carefully analysing in a reserved judgment (ie, the HC Judgment) the parties’ arguments on the facts and the law, as well as case law from various common law jurisdictions on the clemency power. The Appellant then appealed to this court against the Judge’s decision.
The issues on appeal
The Appellant’s case
[14] In his written case for this appeal, the Appellant listed his grounds of appeal under the following headings:
Mr Ravi elaborated on all of the above grounds of appeal in his oral submissions before this court as well as in two “Speaking Notes” which he tendered to the court at the hearing of the appeal.
The Respondent’s case
[15] The Respondent’s written case joined issue with all of the Appellant’s grounds of appeal, and crystallised them into five legal issues as follows:
(a) whether the clemency power under Art 22P is exercised by the President acting in his discretion or whether the President is bound by the advice of the Cabinet in this regard (referred to hereafter as “the Discretion Issue”);
(b) whether, in our local context, the clemency power is subject to judicial review (referred to hereafter as “the Justiciability Issue”);
(c) if the Justiciability Issue is answered in the affirmative, whether breach of natural justice is an applicable ground for reviewing the process of exercising the clemency power (“the clemency process”), and, if it is, whether the clemency process vis-à-vis the Appellant has been tainted by apparent bias in the present case as a result of the Law Minister’s statements (referred to hereafter as “the Natural Justice Issue”);
(d) whether the Appellant is entitled to disclosure of the Art 22P(2) materials relating to his case so that he can make adequate representations to the President on any fresh clemency petition which he may wish to file (referred to hereafter as “the Disclosure Issue”); and
(e) whether declaratory relief can be granted in proceedings commenced under O 53 of the Rules of Court (referred to hereafter as “the Declaratory Relief Issue”).
The surprises which Mr Ravi sprang at the hearing of this appeal
The application for my recusal
[16] At the commencement of the hearing of this appeal, Mr Ravi sprang a surprise by making, without any prior notice to either the court or the Respondent, a preliminary application for me to recuse myself from hearing the appeal on the ground of apparent bias. His reasons for making the application, in his own words (as recorded in the court’s notes taken at the hearing of the appeal), are set out in the following passages:
Mr Ravi explained that his lateness in making his recusal application, despite his having been informed of the coram two weeks before the hearing of the appeal, was due to his foreign legal advisers having advised him only two days before the hearing to raise the aforesaid arguments in the interests of the Appellant.
[17] Whatever reasons Mr Ravi might have for the lateness of his recusal application, his objections to my hearing this appeal were patently without merit. His objections were based on two premises, none of which were tenable in the context of the present case.
[18] The first premise is that I had, qua Attorney-General, given advice to the President which had a bearing on the Discretion Issue. Mr Ravi was unable to make good this premise. When I asked him if he had any evidence for his assertion that I had, during my tenure as Attorney-General, given the President such advice, he replied that his position was “not that you have advised the President” [emphasis added], but that, because the President himself had said in an interview that he did not have any discretion in exercising the clemency power, “it must mean that the [Attorneys-General] have taken that view and given such advice to the President”.
[19] The second premise is that if I had advised the President that he had no discretion in exercising the clemency power, I would have been wrong in law, and this would put me in “in conflict with any reading of the [Singapore] Constitution which states that the President does have power”. However, the legal argument which underlies this premise – viz, the argument that the President can act in his own discretion in exercising the clemency power – is fundamentally flawed. It is trite law that the Head of State in a Constitution based on the Westminster model, such as the Singapore Constitution, is a ceremonial Head of State who: (a) must act in accordance with the advice of the Cabinet in the discharge of his functions; and (b) has no discretionary powers except those expressly conferred on him by the Constitution. In our local context, Art 22P is not a provision which expressly confers discretionary powers on the President. This point is conclusively demonstrated by my colleagues on this bench, Andrew Phang Boon Leong and V K Rajah JJA, in their joint judgment (see, specifically, [156]–[157] and [178]–[180] below). Reference may also be made to the following judicial pronouncements and academic writings: Lee Mau Seng v Minister for Home Affairs and another [1971?1973] SLR(R) 135 (at [31]?[34] per Wee Chong Jin CJ); S Jayakumar, Constitutional Law (with documentary materials) (Singapore Law Series No 1) (Malaya Law Review, 1976); N Madhavan Nair v Government of Malaysia [1975] 2 MLJ 286 (at 289 and 292 per Chang Min Tat J); and R H Hickling, Malaysian Public Law (Pelanduk Publications, 1997) (at pp 67?68).
[20] Notably, with reference to the clemency power specifically, the constitutional law principle outlined at [19] above was stated by the then Prime Minister on 22 December 1965 (in his parliamentary speech at the second reading of the Republic of Singapore Independence Bill 1965 (Bill 43 of 1965), which was subsequently enacted as the Republic of Singapore Independence Act 1965 (Act 9 of 1965)) vis-à-vis the President’s role in the clemency process (see [172]–[173] below). Mr Ravi’s argument that the President has a discretion in exercising the clemency power was rejected by the Judge in a carefully reasoned judgment. Before this court, Mr Ravi made no attempt whatsoever to demonstrate why (in his view) the Judge was wrong, apart from baldly reiterating that the Judge was wrong.
[21] In our legal order, no judge, in discharging his functions, is free to disregard fundamental principles of law. The principle that under the Singapore Constitution, the President must act on the advice of the Cabinet in all matters in the discharge of his functions, except where discretion is expressly conferred on him, is one such fundamental principle of constitutional law. This principle is set out in Art 21(1) read with Art 21(2) of the Singapore Constitution, and has been part of our constitutional order ever since Singapore attained internal self-government in 1959.
[22] It was clear to this court that Mr Ravi postulated a completely unsustainable argument vis-à-vis the President’s exercise of the clemency power – one that contradicts our constitutional history, the text of Arts 21 and 22P and existing case law – for no reason other than it suited his purpose, whatever it was. For the foregoing reasons, this court rejected Mr Ravi’s recusal application.
The late raising of an additional ground of appeal
[23] In the course of his oral submissions before this court on the appeal proper, Mr Ravi sprang another surprise when he argued that, independent of the Appellant’s rights under the Singapore Constitution, the Appellant had a legitimate expectation that the President would act in his discretion, as opposed to on the Cabinet’s advice, in deciding whether or not the Appellant should be granted clemency. Nevertheless, given the grave personal (from the Appellant’s viewpoint) and constitutional implications which the decision in this appeal will have, this court permitted Mr Ravi to raise the argument notwithstanding his lateness in presenting it as one of the Appellant’s grounds of appeal. For convenience, I shall hereafter refer to this issue as “the Legitimate Expectation Issue”.
My approach in this judgment
[24] In this judgment, I shall not discuss in detail all of the issues enumerated at [15] above. I shall, instead, focus on the Justiciability Issue, the Natural Justice Issue, the Disclosure Issue and the Declaratory Relief Issue. With respect to the Discretion Issue and the Legitimate Expectation Issue, I have read the relevant portions of Phang and Rajah JJA’s joint judgment (namely, [151]-[187] below) which deal with these two issues with great clarity, and I fully agree with the decision and the reasoning set out therein.
The Declaratory Relief Issue
[25] I shall begin my analysis with the Discretionary Relief Issue since it can be given short shrift in view of existing case law on the type of relief available in proceedings brought under O 53 of the Rules of Court (see, eg, Chan Hiang Leng Colin and others v Minister for Information and the Arts [1996] 1 SLR(R) 294 at [5]–[6] and Re Application by Dow Jones (Asia) Inc [1987] SLR(R) 627 at [14]). The case authorities show clearly that declaratory relief is not a remedy provided for under O 53 of the Rules of Court, and, thus, the court has no power to grant such relief in proceedings commenced under this Order. Mr Ravi has not convinced us that his argument to the contrary is correct.
The Justiciability Issue
[26] I turn next to the Justiciability Issue, ie, the issue of whether or not, in our local context, the clemency power under Art 22P is amenable to judicial review. This issue has not hitherto been considered by this court. In this regard, I note that in Jabar bin Kadermastan v Public Prosecutor [1995] 1 SLR(R) 326, this court held, with reference to the immediate predecessor of Art 22P (viz, s 8 of the Republic of Singapore Independence Act 1965 (1985 Rev Ed)), that only the President had the power to commute or remit a sentence, or to stay the execution of a sentence (see also the decision to the same effect in Lwee Kwi Ling Mary v Public Prosecutor [2003] 2 SLR(R) 151). These two decisions are not relevant to the Justiciability Issue since they concern the separation of the executive power from the judicial power under the Singapore Constitution, and not the reviewability or otherwise of executive decisions made in exercise of the clemency power.
Preliminary points
[27] Before I begin my analysis of the Justiciability Issue, there are a number of preliminary points which I wish to make. The first concerns the public policy underlying the clemency power (or the pardon power, as it is also called), which originated from the prerogative of mercy in England. In this regard, the following passages from two commentaries on the clemency power under the US Constitution are apposite. The first is from the section on “Pardon and Parole” by John Glenn et al in Corpus Juris Secundum: A Complete Restatement of the Entire American Law as developed by All Reported Cases (West Group, 2010), where the authors explain the relevant public policy considerations as follows (at vol 67A, §11):
The second commentary is from the section on “Pardon and Parole” by Anne M Payne in American Jurisprudence (West Group, 2nd Ed, 2002), where the author states (at vol 59, §11):
[28] My second preliminary point relates to the meaning of the terms “justiciability” and “reviewability” as used in the context of judicial review proceedings. Judges from common law jurisdictions have often discussed the question of whether judicial review applies to the clemency power in terms of the “justiciability” of this power by the courts, with the concept of “justiciability” frequently used synonymously with the concept of “reviewability”. I shall adopt the same approach in this judgment. I shall also adopt the meaning of “justiciable” set out in The Oxford English Dictionary (Clarendon Press, 2nd Ed, 1989) at vol 8, p 327, ie, “[l]iable to be tried in a court of justice; subject to jurisdiction”.
[29] My third preliminary point, which is likewise a definitional one, concerns two expressions which are often used interchangeably in discussions on the clemency power – viz, “clemency power” and “clemency process”. Indeed, in the present case, the Judge expressly stated that he was treating these two terms as synonyms (see [22] of the HC Judgment). Thus, he set out his ruling on the Justiciability Issue as follows in the HC Judgment:
In effect, at [67] of the HC Judgment, the Judge said that “Article 22P” – ie, the clemency power – was not justiciable, whilst at [85] thereof, he said that the clemency process was not justiciable.
[30] Unlike the Judge, I shall not be treating the terms “clemency power” and “clemency process” as synonyms in this judgment. Instead, as indicated earlier, I shall use the expression “the clemency power” to denote the clemency power and/or its exercise where the context so requires (see [12] above), and the expression “the clemency process” to denote the process of exercising the clemency power (see sub-para (c) of [15] above). Admittedly, the distinction between the exercise of the clemency power and the process of exercising that power (ie, the clemency process) is a fine one, and, arguably, the distinction may not even exist at all in certain contexts (eg, the manner in which the clemency power is exercised can be regarded either as an aspect of the clemency process or as an aspect of the clemency power, as defined to include (where appropriate) the exercise of this power). Be that as it may, I think it is worthwhile to make this distinction as it is, in my view, more appropriate to use the expression “the clemency process”, as opposed to “the clemency power”, in discussing the Natural Justice Issue.
The range of matters which are justiciable by the courts
[31] The Justiciability Issue can be seen as a subset of the broader question of whether there are any matters which are non-justiciable, ie, which the courts do not have jurisdiction to rule on. Where Singapore is concerned, I am of the view that by virtue of the judicial power vested in the Supreme Court under Art 93 of the Singapore Constitution, the Supreme Court has jurisdiction to adjudicate on every legal dispute on a subject matter in respect of which Parliament has conferred jurisdiction on it, including any constitutional dispute between the State and an individual. In any modern State whose fundamental law is a written Constitution based on the doctrine of separation of powers (ie, where the judicial power is vested in an independent judiciary), there will (or should) be few, if any, legal disputes between the State and the people from which the judicial power is excluded. In this regard, the following comment by Melville Fuller Weston in his article “Political Questions” (1924–1925) 38 Harv L Rev 296 (“Weston’s article”) is pertinent (at p 299):
[32] The matters which are “intrinsically incapable of submission to … an adjudication” (per Weston’s article at p 299) may vary greatly in different legal contexts. For instance, in Chandler and Others v Director of Public Prosecutions [1964] AC 763 (“Chandler”), Viscount Radcliffe expressed the view that the question of whether it was in the interests of the UK to acquire, retain or house nuclear armaments was “not … a matter for judge or jury” (at 799) because it involved “an infinity of considerations, military and diplomatic, technical, psychological and moral” (at 799) which were not within the province of the courts to assess. In contrast, the converse position was taken in Operation Dismantle Inc and others v Her Majesty The Queen [1985] 1 SCR 441 (“Operation Dismantle”), where the Supreme Court of Canada held that the courts could adjudicate on the issue of whether or not the Canadian government’s decision to allow the US to test cruise missiles in Canada violated s 7 of the Canadian Charter of Rights and Freedoms (“the Canadian Charter”), which sets out “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
Whether the clemency power is justiciable in our local context
The parties’ arguments
[33] Mr Ravi’s argument vis-à-vis the Justiciability Issue in the present appeal is that the clemency power under Art 22P is justiciable, given the principle of legality laid down by this court in Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 (“Chng Suan Tze”) – ie, the principle that “[a]ll power has legal limits” (at [86]). He argues that in view of this principle (referred to hereafter as “the Chng Suan Tze principle”), the clemency power is likewise subject to judicial review if the person or body of persons on whom this power is conferred (“the ultimate authority”) has acted illegally or outside the scope of the power, or has made a decision (pursuant to the power) which is tainted by a reasonable apprehension of bias.
[34] The Respondent does not take the position that Chng Suan Tze was wrongly decided (ie, he accepts the Chng Suan Tze principle). Rather, his position is that:
(a) Because of the doctrine of separation of powers which underlies Singapore’s constitutional framework, “there are clearly provinces of executive decision-making that are, and should be, immune from judicial review” (see Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2007] 2 SLR(R) 453 at [95]).
(b) The clemency power is one area of executive power which is (or should be) non-justiciable.
(c) If, however, the clemency power is indeed justiciable, then its justiciability should be limited to a determination of whether or not a particular clemency decision (ie, a particular decision as to: (i) whether or not to grant clemency; and (ii) if clemency is to be granted, the form and/or extent of clemency to be granted) was made in accordance with Art 22P, and should extend no further.
[35] To elaborate on the Respondent’s position, its central premise is that the clemency power, howsoever exercised, is non-justiciable. In support of this proposition, the Respondent highlighted several factors. The first is the breadth of the power conferred by Art 22P. This Article does not spell out any limits on the scope of the clemency power or how it may be exercised, except for the procedure applicable in what I shall hereafter refer to as a “death sentence case”, ie, a case involving an offender who has been sentenced to death and who has (assuming he appeals against his conviction and/or his sentence) exhausted all his rights of appeal. The second factor emphasised by the Respondent is that a clemency decision is based purely on policy considerations. The third factor which the Respondent pointed out is that the clemency power in Art 22P is derived from the prerogative of mercy. Since mercy “begins where legal rights end” (to use Lord Diplock’s famous aphorism in Michael de Freitas also called Michael Abdul Malik v George Ramoutar Benny and Others [1976] AC 239 (“de Freitas”) at 247), the grant of mercy, so the Respondent submits, is not the subject of legal rights and, therefore, is not amenable to judicial review.
[36] In order to evaluate the opposing views of Mr Ravi and the Respondent respectively on the Justiciability Issue, it is helpful to consider case law from and the constitutional history of England as well as those former British colonies and dominions which have a legal heritage similar to ours. Since Singapore was formerly a British colony, with the clemency power previously exercisable by the Governor of Singapore (and, subsequently, the Yang di-Pertuan Negara) in the name and on behalf of the British sovereign (see further [160]–[168] below), it is only appropriate that I begin by reviewing the English position on the justiciability of the clemency power.
Justiciability of the clemency power in England and former British colonies
(1) The position in England
[37] The traditional approach in England vis-à-vis the justiciability of the clemency power was reiterated in 1971 by the English Court of Appeal in Hanratty and Another v Lord Butler of Saffron Walden (1971) 115 SJ 386 (“Hanratty”), namely, “[t]he law would not inquire into the manner in which [the] prerogative [of mercy] was exercised” (at 386) – ie, the clemency power was not reviewable by the courts. Lord Denning MR (with whom Salmon and Stamp LJJ agreed) explained that this approach was grounded on public policy. The English courts’ traditional reluctance to encroach on the prerogative of mercy stems from the fact that in England, this power has been exercised by the Sovereign from time immemorial, and has always been regarded as an essential attribute of sovereignty. This traditional approach persisted even long after constitutional government had taken root in England, and even after prerogative powers, including the prerogative of mercy, became exercisable by the Executive instead of by the British sovereign.
[38] In 1985, a significant inroad into the non-justiciability of prerogative powers in general was made by the House of Lords in its seminal decision in Council of Civil Service Unions and Others v Minister for the Civil Service [1985] AC 374 (“GCHQ”). In that case, three of the law lords (viz, Lord Scarman, Lord Diplock and Lord Roskill) held that it was no longer constitutionally appropriate to deny the courts supervisory jurisdiction over a governmental decision merely because the legal authority for that decision stemmed from a prerogative power rather than a statutory power (the other two law lords, viz, Lord Fraser of Tullybelton and Lord Brightman, preferred to leave this point open, although they agreed with their fellow law lords that, on the facts of the case, the governmental decision in question was not illegal).
[39] At 407 of GCHQ, Lord Scarman stated:
In essence, what Lord Scarman said in the above passage was that the justiciability of an executive power depended not on the source of the executive power in question (ie, the fact that the executive power was derived from the royal prerogative did not automatically render its exercise immune from judicial review), but on the subject matter in respect of which the executive power was exercised, with the decisive factor being whether that subject matter was one which, either as a matter of law or as a matter of fact, the courts could not adjudicate on.
[40] Notwithstanding the change in judicial attitude expressed by Lord Scarman, Lord Diplock and Lord Roskill in GCHQ apropos the justiciability of prerogative powers, it appears that the prerogative of mercy specifically remained immune from judicial review after GCHQ since that case did not concern that particular prerogative power (it concerned, instead, the prerogative power to make orders regulating the conditions of service of staff employed by the UK Civil Service). Further, Lord Roskill (albeit alone among the law lords) expressed the view (at 418) that the prerogative of mercy was one of the prerogative powers which should remain non-justiciable (the others being, in his Lordship’s view, the prerogative powers relating to, respectively, the making of treaties, the defence of the realm, the grant of honours, the dissolution of Parliament and the appointment of Ministers).
[41] The break from the traditional view (expressed in, inter alia, Hanratty) that there could be no judicial review of the clemency power came in 1994 with the ruling of the Divisional Court in Regina v Secretary of State for the Home Department, Ex parte Bentley [1994] QB 349 (“Bentley”). That case concerned the execution in 1953 of a 19-year-old murderer (“Bentley”). The then Home Secretary had refused to grant Bentley a reprieve from the death sentence even though the jury at the trial had, after returning its verdict of guilty, recommended mercy for Bentley. In 1992, the Home Secretary rejected a petition by Bentley’s sister for Bentley to be granted a posthumous free pardon (under English law, the grant of a free pardon serves to “remove from the subject of the pardon … ‘all pains[,] penalties and punishments whatsoever that from the said conviction may ensue,’ but not … eliminate the conviction itself” (see Regina v Foster [1985] QB 115 at 130)). His reasons were that: (a) he could not substitute his judgment for the judgment of the then Home Secretary in 1953; and (b) it was the Home Office’s established policy not to grant a free pardon to an offender unless the Home Secretary was satisfied that the offender was both morally and technically innocent of any crime.
[42] Bentley’s sister applied for judicial review of the Home Secretary’s decision on the ground that, inter alia, the Home Secretary had failed to recognise that the prerogative of mercy was capable of being exercised in many different circumstances and over a wide range, and had therefore failed to consider the form of pardon which would be appropriate in Bentley’s case. A preliminary question arose before the Divisional Court as to whether the prerogative of mercy was reviewable on the facts before the court. The court declined to follow Hanratty on the basis that it had been decided before GCHQ, and answered the preliminary question in the affirmative, as follows (see Bentley at 362–363 per Watkins LJ):
The Divisional Court noted Lord Roskill’s comment in GCHQ that the clemency power should remain immune from judicial review, but regarded it as obiter (see Bentley at 363).
[43] On the facts before it, the Divisional Court found that the Home Secretary had not given sufficient consideration to his power to grant some form of pardon which would be suitable to the particular circumstances of the case, other than a free pardon. It did not, however, declare the Home Secretary’s decision null and void, but merely invited him to (see Bentley at 365):
[44] In my view, Bentley clearly decided that the prerogative of mercy would be reviewable if it were exercised based on an error of law (in that case, the Home Secretary’s misconstruction of the type of pardon which the Home Office could grant), or based on arbitrary and/or extraneous considerations. In other words, the Divisional Court held that, depending on the facts of the case at hand, it was possible that the prerogative of mercy would be subject to judicial review like any other executive power, whether derived from a statutory source or a prerogative source. However, the Divisional Court also affirmed the long-established administrative law principle that the courts could not review the merits of the Home Secretary’s decision as to whether or not to grant clemency in a particular case.
(2) The position in the Caribbean States
[45] The current legal position in the Caribbean States on the justiciability of the clemency power is that set out by the Privy Council in Neville Lewis v Attorney General of Jamaica and another [2001] 2 AC 50 (“Lewis”). In that case, the Privy Council declined to follow two of its own decisions, viz, de Freitas, an appeal from Trinidad and Tobago, and Thomas Reckley v Minister of Public Safety and Immigration and Others (No 2) [1996] AC 527 (“Reckley”), an appeal from the Bahamas, both of which held that, under the law of the jurisdiction concerned, the clemency power was not amenable to judicial review.
[46] In de Freitas, the offender in question (“MF”) was a convicted murderer who had been sentenced to death. Under the Constitution of Trinidad and Tobago, the prerogative of mercy is exercisable by the Governor-General on the advice of the designated Minister. In a death sentence case, the trial judge’s report and such other information as the designated Minister may require must be placed before the advisory committee on the prerogative of mercy. The designated Minister must consult the advisory committee before he advises the Governor-General, but is not obliged to follow its advice.
[47] MF, after exhausting all his rights of appeal, commenced an action in the High Court of Trinidad and Tobago seeking a declaration that the execution of the death sentence imposed on him would violate his human rights and fundamental freedoms under the Constitution of Trinidad and Tobago. One of the arguments which MF made was that the functions of the advisory committee were quasi-judicial in nature and thus had to be performed in accordance with the rules of natural justice. This meant, MF contended, that whenever the advisory committee met to consider what advice to give to the designated Minister vis-à-vis the prerogative of mercy in a death sentence case, the offender in question was entitled to be shown the materials placed before the advisory committee, and was also entitled to be legally represented and heard at a hearing before the advisory committee.
[48] The Privy Council unanimously rejected MF’s argument. Lord Diplock said (at 247–248):
[49] Some twenty years later, in 1996, the Privy Council reviewed its approach in de Freitas and affirmed it in Reckley, an appeal from the Bahamas. The clemency regime in that jurisdiction is similar to the clemency regime in Trinidad and Tobago, in that: (a) the prerogative of mercy is exercised by the Governor-General on the advice of the designated Minister; and (b) in a death sentence case, the designated Minister must place before the advisory committee on the prerogative of mercy the trial judge’s report of the case and such other information as he (the designated Minister) may require. However, unlike the position in Trinidad and Tobago, in a death sentence case in the Bahamas, the designated Minister is not required to consult the advisory committee before he advises the Governor-General on whether or not mercy should be granted to the offender concerned. The designated Minister may consult the advisory committee if he wishes, but even if he does do so, he is not obliged to accept its advice.
[50] In Reckley, the offender in question (“TR”) was convicted of murder and sentenced to death. His clemency petition to the designated Minister was rejected without his being given the opportunity to see and comment on the trial judge’s report and the other materials placed before the advisory committee. TR filed a constitutional motion alleging that his constitutional rights would be violated if he were executed without his having the opportunity to see those materials and make representations to the advisory committee.
[51] The Privy Council applied the principle laid down in de Freitas and rejected TR’s argument. Lord Goff of Chieveley, delivering the Privy Council’s judgment, said that the observations of Lord Diplock in de Freitas were apposite to the corresponding provisions of the Bahamian Constitution. At 539–540 of Reckley, Lord Goff said:
[52] Approximately five years later, in 2000, in Lewis, an appeal from Jamaica, the majority of the Privy Council (namely, Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton (collectively referred to hereafter as “the majority in Lewis”)) departed from the earlier approach taken in de Freitas and Reckley. The material facts of Lewis, which involved six offenders who had been convicted of murder and sentenced to death (“the applicants in Lewis”), are, in simplified form, as follows.
[53] Under s 90 of the Jamaican Constitution, the Governor-General, acting on the advice of the Jamaican Privy Council (“the JPC”), may grant clemency to an offender in a death sentence case. In this regard, the Governor-General must forward to the JPC the trial judge’s written report of the case and such other information as he (the Governor-General) may require so that the JPC may advise him on whether or not mercy should be granted to the offender concerned.
[54] The applicants in Lewis, after exhausting all their domestic avenues for reprieve from the death sentences imposed on them, applied to the United Nations Human Rights Committee (“the UNHRC”) and the Inter-American Commission on Human Rights (“the IACHR”) alleging breach of their human rights. Pending the decision of these two international human rights bodies, the JPC considered the clemency petitions of all the applicants in Lewis without their knowledge, without their seeing the materials before the JPC and without their making representations to the JPC. Acting on the JPC’s advice, the Governor-General declined to grant clemency to all the applicants in Lewis, who then brought judicial review proceedings to challenge the Governor-General’s decision on the basis that their constitutional right to the protection of the law had been violated since they had been denied natural justice by the JPC when it considered their clemency petitions.
[55] The majority in Lewis (Lord Hoffmann dissenting) ruled in favour of the applicants in Lewis, holding that:
(a) Although there was no legal right to mercy, and although the merits of a decision of the Governor-General (acting on the JPC’s advice) made pursuant to the prerogative of mercy were not reviewable by the courts, the prerogative of mercy should nonetheless, in the light of Jamaica’s international obligations, be exercised pursuant to “procedures which [were] fair and proper and to that end … subject to judicial review” (per Lord Slynn at 79).
(b) In considering what natural justice required, it was relevant to have regard to international human rights norms laid down in treaties to which Jamaica was a party, regardless of whether or not the provisions of those treaties were independently enforceable under Jamaica’s domestic law.
(c) In a death sentence case:
(i) The offender was entitled to have sufficient notice of the date on which the JPC would consider his case so that he or his legal advisers could prepare representations. The JPC was bound to consider such representations before deciding what recommendation to give to the Governor-General vis-à-vis whether or not clemency should be granted to the offender.
(ii) When a report by an international human rights body was available, the JPC should consider it and should give an explanation if it did not accept the recommendations in the report.
(iii) The offender should normally be given a copy of all the documents available to the JPC, and not merely the gist of those documents.
(d) The defects in the procedure adopted in relation to the clemency petitions of the applicants in Lewis had resulted in a breach of the rules of fairness and natural justice. Accordingly, the applicants in Lewis had been deprived of the protection of the law which they were entitled to either under s 13(a) of the Jamaican Constitution (which provides that every person in Jamaica is entitled to, inter alia, “the protection of the law”) or at common law.
[56] Lord Hoffmann issued a strong dissent in Lewis, stating (at 87–89):
[57] Despite Lord Hoffmann’s powerful dissent, the legal position in the Caribbean States generally after Lewis is that the clemency power is subject to judicial review, although the merits of the clemency decision made in a particular case remain non-justiciable (see, eg, the decision of the Caribbean Court of Justice in Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox) (2006) 69 WIR 104 (“Joseph and Boyce”) and the decision of the High Court of Trinidad and Tobago in Allan Henry and others v The Attorney General of Trinidad and Tobago and The Commissioner of Prisons (1 December 2009, unreported)).
(3) The position in Canada
[58] In Canada, the clemency power was held by Reed J in Ivan William Mervin Henry v Minister of Justice (1992) 54 FTR 153 to be reviewable. In this regard, it appears that the Canadian position is that the clemency power is reviewable on both procedural and substantive grounds, with the courts being prepared to review a clemency decision on the merits in an appropriate case. This emerges from the decision in Wilbert Colin Thatcher v The Attorney General of Canada, The Honourable Allan Rock, Minister of Justice, and the Attorney General of Saskatchewan [1997] 1 FC 289 (“Thatcher”).
[59] In Thatcher, Rothstein J pointed out (at [6]) that ever since the decision of the Supreme Court of Canada in Operation Dismantle, Cabinet decisions made pursuant to prerogative powers had been subject to judicial review for compatibility with the Canadian Charter. Specifically, Rothstein J cited the following passage from Dickson J’s judgment in Operation Dismantle at 455:
In effect, Rothstein J held (in Thatcher) that the merits of a clemency decision and the manner in which the decision was made could be scrutinised for compatibility with, respectively, the substantive rights and the procedural rights set out in the Canadian Charter.
(4) The position in Australia
[60] The traditional position in Australia was set out by the High Court of Australia in Horwitz v Connor, Inspector General of Penal Establishments of Victoria (1908) 6 CLR 38 (“Horwitz v Connor”). That case concerned an accused who had been sentenced to a total of six years’ imprisonment. Midway through his term of imprisonment, a writ of habeas corpus was issued directing his immediate release from prison even though the Governor in Council had not ordered remission of any part of the imprisonment term. The Supreme Court of Victoria discharged the writ of habeas corpus. The High Court of Australia refused to grant the accused special leave to appeal against the Supreme Court of Victoria’s decision on the ground that (at 40) “no Court ha[d] jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy”.
[61] The position laid down in Horwitz v Connor was upheld by both Lander J at first instance and the Court of Appeal of the Australian Capital Territory (“ACT”) in Eastman v Australian Capital Territory (2008) 227 FLR 262 (“Eastman (ACT)”). It should be noted, however, that Lander J, while accepting that he was bound by Horwitz v Connor, also stated (see [78]–[79] of Lander J’s judgment as reproduced at [40] of Eastman (ACT)):
In contrast, the ACT Court of Appeal appeared to take a narrower view. It noted the Privy Council decisions (in appeals from the Caribbean States) departing from the traditional view set out in Horwitz v Connor (namely, that the prerogative of mercy was not reviewable), but stated (see Eastman (ACT) at [38]):
[62] The High Court of Australia dismissed the application for special leave to appeal against the ACT Court of Appeal’s decision (see David Harold Eastman v Australian Capital Territory [2008] HCASL 553) on the ground (per Heydon and Kiefel JJ) that it was pointless to allow the application since there was no reason to doubt the ACT Court of Appeal’s decision on the particular issue which would form the crux of any appeal against that decision. It should, however, be noted that Kirby J, whilst agreeing with the decision to dismiss the application, stated (at [2]) that in a proper case, judicial review would be available as a matter of law (Heydon and Kiefel JJ did not comment on this point in their joint judgment). Thus, it would appear that in Australia, the law on whether the clemency power is reviewable by the courts is not settled.
(5) The position in New Zealand
[63] Turning now to clemency cases from New Zealand, the New Zealand Court of Appeal examined the justiciability of the clemency power in Burt v Governor-General [1992] 3 NZLR 672 (“Burt”). The appellant in that case (“Burt”) was convicted of murder and sentenced to life imprisonment. His petition to the Governor-General in Council for a full pardon was dismissed on the ground that the trial verdict could not be considered unsafe. Under s 406 of the Crimes Act 1961 (NZ), the Governor-General in Council, when considering a clemency petition, may (but is not required to) refer to the New Zealand Court of Appeal either a question relating to the petitioner’s conviction or sentence or any other point arising in the clemency petition, whereupon the New Zealand Court of Appeal must rule on the matter referred to it. In Burt, the Governor-General in Council rejected Burt’s clemency petition without referring any matter to the New Zealand Court of Appeal for its consideration. Burt commenced judicial review proceedings, alleging that the Governor-General in Council had failed to act fairly and reasonably in dealing with his clemency petition. The Governor-General in Council applied to dismiss the action on the ground that Burt had no reasonable cause of action since his complaint concerned the exercise of a prerogative, rather than a statutory, power. The Governor-General in Council’s application was allowed at first instance, whereupon Burt appealed.
[64] The New Zealand Court of Appeal dismissed Burt’s appeal. Cooke P, who delivered the judgment of the court, acknowledged that the argument that the prerogative of mercy was justiciable, at least to the extent of ensuring that elementary standards of fair procedure were followed, “[could not] by any means be brushed aside as absurd, extreme or contrary to principle” (at 681), partly because the issues raised by a clemency petition were often not foreign at all to the judicial function. Nevertheless, after referring to the various safeguards in New Zealand against wrongful convictions and unfair procedures, Cooke P held that (at 683) “no pressing reason ha[d] been made out for altering the practice regarding the [r]oyal prerogative of mercy”.
(6) The position in India
[65] In India, the clemency power is subject to judicial review. In Maru Ram v Union of India and others (1981) 1 SCC 107 (“Maru Ram”), a decision by a five-member bench of the Supreme Court of India, it was held in the joint judgment of three of the judges (viz, Y V Chandrachud CJ, P N Bhagwati J and V R Krishna Iyer J) that (at [62]):
The position laid down in Maru Ram was followed by a two-member bench of the Indian Supreme Court in Epuru Sudhakar and another v Govt of A P and others (2006) 8 SCC 161 (“Epuru Sudhakar”), where the court held (at [22]) that it was “fairly well settled that the exercise or non-exercise of pardon power by the President or Governor, as the case [might] be, [was] not immune from judicial review”.
[66] Epuru Sudhakar is an instructive case on the legal limits of judicial review of the clemency power. In that case, the sons of the deceased, who had been murdered by the second respondent, sought judicial review of the order of the Governor of Andhra Pradesh (“the Andhra Pradesh Governor”) remitting seven years out of the ten-year imprisonment sentence which had been imposed on the second respondent upon his conviction for murder. The Andhra Pradesh Governor had made the remission order on the basis of, inter alia, erroneous statements that the second respondent was “a good Congress worker” [emphasis in original omitted] (see Epuru Sudhakar at [55]) and had been falsely implicated in the murder, which had allegedly been committed by another respondent. The Indian Supreme Court held that the clemency process had been tainted by not only the misleading information placed before the Andhra Pradesh Governor, but also the Andhra Pradesh Governor’s conduct in taking into account the assertion that the second respondent was “a good Congress worker” [emphasis in original omitted] (see Epuru Sudhakar at [55]). That factor, the Indian Supreme Court held, had “no relevance to the objects sought to be achieved i.e. the consideration of the question whether pardon/remission was to be granted” (see Epuru Sudhakar at [56]). As the remission order had been made based on extraneous and irrelevant grounds, the Indian Supreme Court set it aside.
(7) The position in Hong Kong
[67] In Hong Kong, the legal position on the justiciability of the clemency power is similar to the English position post-Bentley. This can be seen from the Hong Kong High Court case of Ch’ng Poh v The Chief Executive of the Hong Kong Special Administrative Region Case No 182 of 2002 (3 December 2003, unreported) (“Ch’ng Poh”), where Hartmann J held (at [38]) that while the merits of any clemency decision made by the Chief Executive of the Hong Kong Special Administrative Region of the People’s Republic of China (“SAR Chief Executive”) pursuant to Art 48(12) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (“the Basic Law”) were not subject to judicial review, the lawfulness of the process by which such a decision was made was open to judicial review. His Honour explained that this was because although the Basic Law gave the SAR Chief Executive prerogative powers, it did not seek to place him above the law as his powers were defined and constrained by the Basic Law, the office of SAR Chief Executive being a creature of that law (at [35]).
(8) The position in Malaysia
[68] In Malaysia, the courts have consistently held that both the clemency power and the merits of a clemency decision cannot be questioned by the courts. In Public Prosecutor v Soon Seng Sia Heng [1979] 2 MLJ 170, which concerned (inter alia) the decision of the Yang di-Pertuan Agong to commute the death sentence of an offender who had, at the age of 14, been convicted and sentenced to death under the Emergency (Security Cases) Regulations 1975, the Federal Court made no order on the application for the Yang di-Pertuan Agong’s decision to be reviewed, stating (at 171 per Suffian LP):
[69] The Federal Court took the same approach in Chow Thiam Guan v Superintendent of Pudu Prison & The Government of Malaysia and Connected Appeals [1983] 2 MLJ 116 (“Chow Thiam Guan”). That case concerned an application by the appellant for the execution of the death sentence imposed on him to be stayed pending the hearing of an appeal which he had filed in the Federal Court on the sole ground that the death sentence was unconstitutional. The Federal Court, citing de Freitas, held that the courts had no jurisdiction to deal with the stay application as “[a]ny stay of execution would be … an extension of the prerogative of mercy, [which was] exercisable only by His Majesty the Yang di-Pertuan Agong in accordance with Article 42 of the [Malaysian] Constitution” (at 119).
[70] Chow Thiam Guan was followed in Sim Kie Chon v Superintendent of Pudu Prisons & Ors [1985] 2 MLJ 385, a decision of the Supreme Court of Malaysia. The appellant in that case (“Sim”), who had been sentenced to death and who had exhausted all his avenues of appeal, filed an action against (inter alia) the Pardons Board, alleging that it had not considered his clemency petition properly. The High Court of Malaysia struck out the action. On appeal, the Malaysian Supreme Court upheld that order, stating (at 387):
A second challenge by Sim to the rejection of his clemency petition was dismissed in Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 (“Sim Kie Chon (No 2)”) by the Malaysian Supreme Court, which held (at 497):
[71] The case which bears the closest factual correspondence to the present case is Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64 (“Karpal Singh”). In that case, the applicant applied for a declaration that a public statement allegedly made by the Sultan of Selangor (“the Selangor Sultan”) and reported in two English newspapers – viz, that he would not pardon anyone who had been sentenced to the mandatory death sentence for drug trafficking in Selangor – was in violation of Art 42 of the Malaysian Constitution as the Selangor Sultan had effectively predetermined any clemency petition which might be filed by a convicted drug trafficker. The applicant contended that the Selangor Sultan could only reject a petition for clemency after considering the advice of the Selangor Pardons Board and then applying his mind to the petition before him. The Chief Justice of Malaysia dismissed the application on the ground that the allegation had not been proved, and, therefore, the issue was hypothetical. He also held, citing Sim Kie Chon (No 2), that “an issue concerning the process of clemency … [was] clearly non-justiciable” (see Karpal Singh at 67), and stated that “mercy [was] not the subject of legal rights” (at 66).
[72] Most recently, in Juraimi bin Husin v Pardons Board, State of Pahang & Ors [2002] 4 MLJ 529 (“Juraimi bin Husin”), the Federal Court applied Lord Roskill’s obiter dictum in GCHQ that the prerogative of mercy was not justiciable. In Juraimi bin Husin, the appellant (who had been sentenced to death for murder) submitted a clemency petition to the Sultan of Pahang. His petition was rejected. He applied for a stay of execution of his death sentence pending his application to challenge the constitutionality of the rejection of his clemency petition. The High Court of Malaysia referred to the Federal Court for determination the question of whether the courts could review the decision-making process of the Sultan of Pahang vis-à-vis the clemency power in Art 15 of the Laws of the Constitution of Pahang, read with Art 42 of the Malaysian Constitution. The Federal Court answered this question in the negative, stating (at 537):
In other words, the court held that since the clemency decision made in any given case was not justiciable, the process of making that decision was also not justiciable.
Analysis of the position in Singapore
[73] I turn now to analyse what the legal position in Singapore is vis-à-vis the justiciability of the clemency power.
[74] I start by stating that the clemency power is a legal power of an extraordinary character. It is unlike all other legal powers in that:
(a) It is an executive power which is exercised as an act of executive grace and not as a matter of legal right (see, eg, de Freitas and Reckley).
(b) A decision to grant clemency is “[a] determination of the ultimate authority that the public welfare will be better served by inflicting less [punishment] than what the judgment fixed” (per Oliver Wendell Holmes J in Biddle, Warden v Perovich 274 US 480 (1927) (“Biddle v Perovich”) at 486). Conversely, a decision not to grant clemency represents a determination by the ultimate authority that the public welfare is better served by allowing the law to take its course, ie, by carrying out the punishment prescribed by the law.
(c) Ordinarily, the law should be allowed to take its course. However, when the clemency power is exercised in favour of an offender, it will “involve a departure from the law” (per Lord Goff in Reckley at 540) in that, in the interests of the public welfare, the law (in terms of the punishment mandated by the law) is prevented from taking its course.
(d) The considerations of public welfare that the ultimate authority deems relevant in making a clemency decision are entirely a matter of policy for it to decide. As was said by S H Kapadia J at [65] of Epuru Sudhakar (a decision relied upon by Mr Ravi), “[t]he President and the Governor [viz, the ultimate authority in the context of India’s clemency regime] are the sole judges of the sufficiency of facts and of the appropriateness of granting … pardons and reprieves”.
(e) In the specific context of a death sentence case (which is also the context of the present appeal), the grant of clemency to the offender confers a gift of life on him. This is because the offender has effectively already been deprived of his life by the law due to his conviction for a capital offence. If clemency is granted to the offender, his life will be restored to him, whereas if clemency is not granted, his life will be forfeited as decreed by the law. In other words, in a death sentence case, the clemency decision made, be it in favour of or against the offender, does not deprive the offender of his life; the law (in terms of the conviction and death sentence meted out on the offender by a court of law) has already done so.
[75] Given that the clemency power is a constitutional power vested exclusively in the Executive, it is not justiciable on the merits, firstly, on the basis of the doctrine of separation of powers (see sub-para (d) of [74] above) and, secondly, on the basis of established administrative law principles (see, eg, Chandler at 809–810 per Lord Devlin and Operation Dismantle at 470 per Wilson J). In our local context, this entails that, assuming the clemency power is exercised in accordance with law, the merits of the clemency decision made will fall outside the purview of our courts. Our courts cannot look into whether a clemency decision is wise or foolish, harsh or kind; neither can they substitute their own decision for the clemency decision made by the President simply because they disagree with the President’s view on the matter. This principle is common ground between the parties in the present appeal.
[76] However, this conclusion – viz, that the merits of a clemency decision are not reviewable by our courts – does not, in my view, entail that the clemency power in our constitutional context is therefore an “extra-legal” power in the sense of being a power beyond any legal constraints or restraints. In this regard, the following observations of the Indian Supreme Court in Maru Ram (another decision relied upon by Mr Ravi) are pertinent:
[77] In my view, the aforesaid observations of the Indian Supreme Court are equally applicable to the clemency power under Art 22P. They are substantially a restatement of the Chng Suan Tze principle that no legal power – including a constitutional power (see [79]–[80] below) – is beyond the reach of the supervisory jurisdiction of the courts if it is exercised beyond its legal limits (ie, ultra vires the enabling law) or if it is exercised mala fide (ie, for an extraneous purpose).
[78] In Chng Suan Tze, this court formulated the Chng Suan Tze principle as follows (at [86]):
More accurately stated, the principle is that “all legal powers … have legal limits[;] [t]he notion of a subjective or unfettered discretion is contrary to the rule of law” [emphasis added] (see Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”) at [149]; see also Raja Azlan Shah Ag CJ’s statement in the Malaysian Federal Court case of Pengarah Tanah Dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 (at 148) that “[e]very legal power must have legal limits, otherwise there is dictatorship”).
[79] Significantly, after Chng Suan Tze was decided, Parliament enacted the Constitution of the Republic of Singapore (Amendment) Act 1989 (Act 1 of 1989) to amend Art 149 of the Constitution of the Republic of Singapore (1985 Rev Ed) by inserting what is now Art 149(3) of the Singapore Constitution. The effect of this constitutional amendment was to restrict our courts’ supervisory jurisdiction, apropos national security decisions made under the Internal Security Act (Cap 143, 1985 Rev Ed), to reviewing such decisions for procedural improprieties only. Save for this limitation, Parliament left untouched the full amplitude of the Chng Suan Tze principle, and thereby implicitly endorsed it. Thus, in Phyllis Tan, this court stated that the Chng Suan Tze principle, which was applied to a statutory power in Chng Suan Tze (viz, the power to make detention orders and to suspend such orders under, respectively, s 8 and s 10 of the Internal Security Act), was also applicable to a constitutional power (viz, the Attorney-General’s prosecutorial power under Art 35(8) of the Singapore Constitution).
[80] Specifically, what this court said in Phyllis Tan was as follows (at [149]):
On the basis of the Chng Suan Tze principle as elaborated on in Phyllis Tan, our courts must have the power to review the clemency power under Art 22P on the same legal basis as that stated in the above quotation.
[81] A further reason (apart from the Chng Suan Tze principle) for holding that the clemency power is amenable to judicial review lies in the specific procedural safeguards prescribed by Art 22P for the conduct of the clemency process in death sentence cases. Article 22P, which is set out in full below, makes it clear that these procedural safeguards apply only to death sentence cases, and are inapplicable to non-death sentence cases:
[82] Unlike the position in non-death sentence cases, in a death sentence case, the President is required under Art 22P(2) to cause the report of the trial judge and (where there is an appeal from the trial judge’s decision) the report of the presiding judge of the appellate court to be sent to the Attorney-General, who must give his opinion thereon. The Attorney-General’s opinion and the aforesaid report(s), which collectively form the Art 22P(2) materials in a death sentence case, must then be sent to the Cabinet so that the Cabinet may advise the President on the exercise of the clemency power. In my view, the requirement that the trial judge’s report, the report of the presiding judge of the appellate court (where there is an appeal) and the Attorney-General’s opinion on the report(s) must be sent to the Cabinet for its consideration necessarily implies a constitutional duty on the Cabinet’s part to consider those materials impartially and in good faith before it advises the President on the exercise of the clemency power.
[83] It therefore follows that if, hypothetically speaking, conclusive evidence is produced to the court to show that the Cabinet never met to consider the offender’s case at all, or that the Cabinet did not consider the Art 22P(2) materials placed before it and merely tossed a coin to determine what advice to give to the President (see, in this regard, the example given in Lewis at 76), the Cabinet would have acted in breach of Art 22P(2). If the courts cannot intervene to correct a breach of Art 22P of this nature, the rule of law would be rendered nugatory. In this regard, it should be noted that in Singapore (just as in many other common law jurisdictions which have elevated the clemency power from a common law prerogative power to a constitutional power under a written Constitution), the making of a clemency decision pursuant to Art 22P is now “not a private act of grace from an individual happening to possess power … [but] a part of the [c]onstitutional scheme” (see Biddle v Perovich at 486; see also Epuru Sudhakar at [62]).
[84] My conclusion that the clemency power is subject to judicial review may also be said to be a corollary of the right to life and personal liberty guaranteed by Art 9(1) of the Singapore Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”. In Reckley, Lord Goff said at 540 (also reproduced at [51] above):
[85] I agree with this statement of law (interpreted mutatis mutandis) as regards the applicability of Art 9(1) of the Singapore Constitution to the clemency process, not because an offender has any constitutional or legal right or even any expectation with respect to the grant of clemency to him, but because the requirements of Art 22P(2) must be complied with as that is what the law mandates. As just pointed out at [82]–[83] above, in a death sentence case, the Cabinet must consider impartially and in good faith the Art 22P(2) materials submitted to it before it advises the President on how the clemency power should be exercised. That said, I reiterate that a decision not to exercise the clemency power in favour of the offender in a death sentence case does not, in the legal sense, deprive him of his life or personal liberty since he has already been sentenced to death by a court in accordance with law (see sub-para (e) of [74] above). If clemency is granted to an offender in a death sentence case, it restores to him his life, which the law has already decreed is to be forfeited.
The Natural Justice Issue
[86] I turn now to the Natural Justice Issue, ie, the question of whether breach of natural justice is an applicable ground for reviewing the clemency process (as defined at sub-para (c) of [15] above), and, if it is, whether the clemency process vis-à-vis the Appellant has been tainted by apparent bias in the present case as a result of the Law Minister’s statements.
The rules of natural justice in administrative law
[87] In arguing that there has been a breach of natural justice in the present case, Mr Ravi relied on two specific rules applicable in Singapore as well as in Commonwealth jurisdictions to judicial review of administrative decisions (see William Wade & Christopher Forsyth, Administrative Law (Oxford University Press, 10th Ed, 2009) at p 372). In my discussion of the Natural Justice Issue, I shall refer to these two rules collectively as “the administrative law rules of natural justice” so as to distinguish them from the “fundamental rules of natural justice” discussed by Lord Diplock in the Privy Council cases of Ong Ah Chuan v Public Prosecutor [1981] AC 648 (“Ong Ah Chuan”) (at, inter alia, 671) and Haw Tua Tau v Public Prosecutor [1982] AC 136 (“Haw Tua Tau”) (at, inter alia, 153), which rules will hereafter be termed “the Ong Ah Chuan rules of natural justice”.
[88] The two specific rules which make up the administrative law rules of natural justice are the following:
(a) the rule encapsulated by the maxim “nemo iudex in sua causa” (“no one shall be a judge in his own cause”), which I shall hereafter refer to as “the rule against bias”, as this rule is more commonly known; and
(b) the rule encapsulated by the maxim “audi alteram partem” (“hear the other side”), which I shall hereafter refer to as “the hearing rule”.
A breach of either of these rules in the course of making an administrative decision is an established ground for setting aside the decision in judicial review proceedings. The issue in the present appeal is whether the administrative law rules of natural justice apply to the clemency process as well.
[89] Before I proceed to analyse this issue, I should highlight two points concerning my use of the terms “bias” and “the rule against bias” in this part of my judgment.

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Yong Vui Kong v Attorney-General

Laws this judgment relies on

Grounds of decision

Introduction

Factual background

The proceedings in the court below

The issues on appeal

The Appellant’s case

The Respondent’s case

The surprises which Mr Ravi sprang at the hearing of this appeal

The application for my recusal

The late raising of an additional ground of appeal

My approach in this judgment

The Declaratory Relief Issue

The Justiciability Issue

Preliminary points

The range of matters which are justiciable by the courts

Whether the clemency power is justiciable in our local context

The parties’ arguments

Justiciability of the clemency power in England and former British colonies

(1) The position in England

(2) The position in the Caribbean States

(3) The position in Canada

(4) The position in Australia

(5) The position in New Zealand

(6) The position in India

(7) The position in Hong Kong

(8) The position in Malaysia

Analysis of the position in Singapore

The Natural Justice Issue

The rules of natural justice in administrative law