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Grounds publishedDecided 14 May 2010
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Court of Appeal

Yong Vui Kong v Public Prosecutor and another matter

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[2010] SGCA 20Case no. Criminal Appeal No 13 of 2008; Criminal Motion No 7 of 2010

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  1. Chan Sek Keong CJ (delivering the judgment of the court):

  2. Introduction

  3. [1] The appellant, Yong Vui Kong (“the Appellant”), was convicted of trafficking in 47.27g of diamorphine, a controlled drug, and sentenced to death (see Public Prosecutor v Yong Vui Kong [2009] SGHC 4). He appealed against the conviction and the sentence, but later withdrew that appeal. Four days before the sentence was to be carried out, he filed Criminal Motion No 41 of 2009 (“CM 41/2009”) seeking leave to pursue his appeal. This court granted him leave to do so (see Yong Vui Kong v Public Prosecutor [2009] SGCA 64). In the present proceedings, the Appellant’s counsel, Mr M Ravi (“Mr Ravi”), has confirmed that the Appellant is appealing against only his sentence, and not his conviction.

  4. The issues raised in this appeal

  5. [2] The general issue in this appeal is whether the mandatory death penalty (“the MDP”) is permitted by the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). The specific issue is whether the MDP imposed under certain provisions of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), in particular, is permitted by the Constitution of the Republic of Singapore.

  6. [3] In this judgment, the cases to be considered and the legal points to be discussed relate to different revised editions of both the Constitution of the Republic of Singapore and the Misuse of Drugs Act. For simplicity, we shall hereafter refer to the particular revised edition of the statute that is relevant to the case or legal point being discussed as “the Singapore Constitution” (vis-à-vis the Constitution of the Republic of Singapore) and “the MDA” (vis-à-vis the Misuse of Drugs Act).

  7. [4] The Appellant is challenging the constitutional validity of s 33 read with the Second Schedule to the MDA (collectively referred to hereafter as “the MDP provisions in the MDA”), under which he was sentenced to suffer the MDP. This challenge against the MDP for drug-related offences is not new. It was made in 1980 before the Privy Council in Ong Ah Chuan v Public Prosecutor [1981] AC 648 (“Ong Ah Chuan”) and in 2004 before this court in Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 (“Nguyen”). In both cases, it was contended that the MDP prescribed by the MDA for the offence in question (viz, trafficking in controlled drugs in Ong Ah Chuan and importation of controlled drugs in Nguyen) was unconstitutional because it infringed Arts 9(1) and 12(1) of the Singapore Constitution. In both cases, the constitutional challenge to the MDP was dismissed.

  8. [5] Notwithstanding the decisions in Ong Ah Chuan and Nguyen, both of which affirm the constitutionality of the MDP provisions in the MDA, we gave leave to the Appellant in CM 41/2009 to pursue the present appeal and argue both the general issue and the specific issue delineated at [2] above because Mr Ravi said that he had new arguments based on new materials to show that both Ong Ah Chuan and Nguyen were wrongly decided at the relevant time, and that, today, this court should depart from those decisions and declare the MDP unconstitutional in view of Art 9(1) and/or Art 12(1) of the Singapore Constitution.

  9. [6] We should point out at this juncture that the issue of whether the death penalty per se (ie, the death penalty as a form of punishment for an offence) is unconstitutional does not arise in this appeal since the Appellant (as Mr Ravi has emphasised) is only challenging the constitutional validity of the MDP. It is not surprising that the Appellant has adopted this stance because Art 9(1) expressly allows a person to be deprived of his life “in accordance with law”; ie, it expressly sanctions the death penalty. This precludes the Appellant from challenging the constitutionality of the death penalty per se (see in this regard the observations of the Privy Council in Ong Ah Chuan at 672 as quoted at [20] below). The Appellant has thus chosen to argue that:

  10. (a) as the MDP is an inhuman punishment, any legislation that prescribes the MDP as the punishment for an offence (referred to hereafter as “MDP legislation” generically) violates the right to life set out in Art 9(1) and, therefore, is not “law” for the purposes of this provision;

  11. (b) MDP legislation is also not “law” for the purposes of Art 9(1) because the term “law” therein includes customary international law (“CIL”), which prohibits the MDP as an inhuman punishment; and

  12. (c) the differentia employed in the MDA for determining when the MDP is to be imposed is arbitrary, thus making the MDP provisions in the MDA inconsistent with the right under Art 12(1) of equal protection of the law.

  13. [7] The Appellant’s challenge to the MDP based on Art 9(1) (“the Article 9(1) challenge”) is targeted at the mandatory nature of the MDP. It rests on the premise that, because MDP legislation does not give the court any discretion to decide (in view of the circumstances of the case at hand) whether or not to impose the death penalty, such legislation “treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death” (per Stewart J in Woodson et al v North Carolina 428 US 280 (1976) (“Woodson”) at 304). From this perspective, MDP legislation is regarded as being inhuman and, thus, antithetical to the right to life set out in Art 9(1). The Article 9(1) challenge, if successful, will affect the constitutionality of not only the MDP provisions in the MDA, but also all other MDP legislation, such as:

  14. (a) s 302 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Singapore Penal Code”) vis-à-vis the offence of murder;

  15. (b) s 4 of the Arms Offences Act (Cap 14, 2008 Rev Ed) vis-à-vis the offence of using or attempting to use arms;

  16. (c) s 4A of the Arms Offences Act vis-à-vis the offence of using or attempting to use arms to commit or to attempt to commit an offence listed in the Schedule to the Act; and

  17. (d) s 58(1) of the Internal Security Act (Cap 143, 1985 Rev Ed) vis-à-vis the offence of having or carrying, without lawful excuse and without lawful authority, any firearm, ammunition or explosive in a security area (as defined in s 2 of that Act).

  18. [8] In contrast, the Appellant’s challenge to the MDP based on Art 12(1) (“the Article 12(1) challenge”), if successful, will affect only the MDP provisions in the MDA. In other words, the Appellant’s argument on Art 12(1) is specific to the MDP provisions in the MDA and does not impinge on the constitutional validity of other MDP legislation. The Appellant’s submission in this regard is that the MDP provisions in the MDA, in making the quantity of controlled drugs trafficked the sole determinant of when the MDP is to be imposed, draw arbitrary distinctions between offenders who traffic in different amounts of controlled drugs. (In the case of trafficking in diamorphine specifically, the MDP provisions in the MDA state that the MDP applies so long as more than 15g of diamorphine is trafficked. For convenience, we shall hereafter refer to this criterion as “the 15g differentia”.)

  19. [9] Although the Article 9(1) challenge and the Article 12(1) challenge are different in so far as they pertain to two different constitutional provisions, they are at the same time related in that the Appellant does not need to rely on the Article 12(1) challenge if he succeeds on the Article 9(1) challenge. In other words, if the MDP provisions in the MDA violate Art 9(1) because, in making the death penalty mandatory, they lay down an inhuman punishment, they would be unconstitutional regardless of whether or not they also, contrary to Art 12(1), draw arbitrary distinctions between offenders who traffic in different amounts of controlled drugs. For this reason, we shall address the Article 9(1) challenge first before the Article 12(1) challenge.

  20. The Article 9(1) challenge: Whether the MDP is consistent with the right to life in Article 9(1)

  21. [10] To understand the parties’ arguments on Art 9(1) of the Singapore Constitution, it is necessary to appreciate the legal context of those arguments. We shall set out this legal context first, followed by the parties’ arguments and then our decision on the Article 9(1) challenge.

  22. The legal context of the Article 9(1) challenge

  23. [11] Article 9(1) of the Singapore Constitution provides as follows:

  24. The expression “law” is defined in Art 2(1) as follows:

  25. In this regard, the expression “written law” means (see likewise Art 2(1)):

  26. [12] Prima facie, the MDA, being legislation in force in Singapore, is “written law” and is thus “law” as defined in Art 2(1); the same applies to other MDP legislation currently in force in Singapore. The meaning of the term “law” was considered by the Privy Council in Ong Ah Chuan and by this court in Nguyen. Before we turn to examine these two decisions, we note in passing that, although Art 2(1) defines the expression “law” to include “custom or usage” (per Art 2(1)), Mr Ravi has not argued that these words are intended to include CIL. If such an argument had been made, we would have rejected it because, in our view, the phrase “custom or usage” in Art 2(1) refers to local customs and usages which (in the words of this provision) “[have] the force of law in Singapore”, that is to say, local customs and usages which are already part of our domestic law.

  27. The decision in Ong Ah Chuan

  28. [13] In Ong Ah Chuan, the appellants were convicted of the offence of drug trafficking and sentenced to death. They appealed against their convictions on, inter alia, the ground that the rebuttable presumption of trafficking which arose under the MDA upon proof of possession of controlled drugs exceeding the stipulated quantity was a violation of due process of law and was therefore not “in accordance with law” for the purposes of Art 9(1).

  29. [14] The Prosecution in that case argued that, since the expression “law” was defined in Art 2(1) to include written law and since “written law” included all Acts of Parliament, the requirements of Art 9(1) were satisfied so long as the deprivation of life or personal liberty complained of was carried out in accordance with provisions contained in “any Act passed by the Parliament of Singapore, however arbitrary or contrary to fundamental rules of natural justice the provisions of such Act [might] be” [emphasis added] (see Ong Ah Chuan at 670). The Privy Council rejected this argument (which was characterised as “extreme” in the later Privy Council decision of Haw Tua Tau and others v Public Prosecutor [1981–1982] SLR(R) 133 at [7]) for the following reasons (see Ong Ah Chuan at 670–671):

  30. [15] Having set out its interpretation of the expression “law”, the Privy Council in Ong Ah Chuan tested the provisions of the MDA against that interpretation to determine their constitutional validity, and held that they did not breach the fundamental rules of natural justice. Hence, the Privy Council rejected the appellants’ constitutional challenge to the statutory presumption of trafficking in the MDA.

  31. [16] We should point out that, at the hearing before the Privy Council, the Board (per Lord Diplock) specifically asked counsel for the Prosecution whether he was contending that, so long as a statute was an Act of Parliament, it would be justified by Art 9(1), however unfair, absurd or oppressive it might be (see Ong Ah Chuan at 659). When counsel answered that the Prosecution was not advancing that argument and that it was unnecessary for him to rely on that argument since the Prosecution considered its case against each appellant to be plain on its facts, Lord Diplock replied (likewise at 659):

  32. However, beyond what was actually decided in Ong Ah Chuan itself, it is not clear what the Privy Council had in mind vis-à-vis the kind of legislation that would not qualify as “law” for the purposes of Art 9(1). Perhaps, the Privy Council had in mind colourable legislation which purported to enact a “law” as generally understood (ie, a legislative rule of general application), but which in effect was a legislative judgment, that is to say, legislation directed at securing the conviction of particular known individuals (see Don John Francis Douglas Liyanage and others v The Queen [1967] 1 AC 259 at 291), or legislation of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being “law” when they crafted the constitutional provisions protecting fundamental liberties (ie, the provisions now set out in Pt IV of the Singapore Constitution).

  33. [17] In this connection, it is useful to put in context the following statement by Yong Pung How CJ (delivering the judgment of this court) in Jabar bin Kadermastan v Public Prosecutor [1995] 1 SLR(R) 326 (“Jabar”) at [52]:

  34. [18] Upon a first reading, Yong CJ’s statement may appear to contradict the Privy Council’s interpretation of the expression “law” in Ong Ah Chuan at 670–671 (see the extract quoted at [14] above). In our view, however, there is in fact no such contradiction. Yong CJ’s statement was made in the context of a case where the appellant argued, in reliance on Earl Pratt and another v Attorney-General for Jamaica and another [1994] 2 AC 1 (“Pratt”), that Art 9(1) of the Singapore Constitution was applicable to render the execution of the death sentence imposed on him unconstitutional as he had been incarcerated on death row for more than five years since his conviction. In Pratt, the Privy Council held that a prolonged delay in the execution of a death sentence constituted inhuman punishment and contravened s 17(1) of the Constitution of Jamaica, which stated that no person should be subjected to “torture or to inhuman or degrading punishment or other treatment”. This ruling was rejected in Jabar by this court, which preferred the decision in Willie Lee Richmond v Samuel A Lewis 948 F 2d 1473 (1990). In that case, the US Court of Appeals, Ninth Circuit, held that the carrying out of a death sentence after the offender had spent 16 years on death row did not constitute cruel and unusual punishment in contravention of the Eighth and the Fourteenth Amendments to the US Constitution where the delay was occasioned by the offender initiating unmeritorious legal proceedings.

  35. [19] The issue raised in Jabar concerned the constitutionality of carrying out the MDP, given the period of time which had lapsed since the appellant’s conviction, and not the constitutionality of the MDP per se. That was why this court held that the question of whether the relevant MDP legislation (which, on the facts of Jabar, was s 302 of the Penal Code (Cap 224, 1985 Rev Ed)) was fair, just and reasonable was not relevant. Yong CJ’s statement should be read in this context, and not as a definitive interpretation of the term “law” in Art 9(1); otherwise, that statement would be inconsistent with the approach taken in Nguyen, where this court (Yong CJ presiding) affirmed (at [82]) the Privy Council’s interpretation of “law” in Ong Ah Chuan.

  36. [20] Returning to the facts of Ong Ah Chuan, the appellants, apart from challenging the constitutionality of the statutory presumption of trafficking (see [13] above), also disputed the constitutionality of the MDP. The Privy Council made the following observations about the death penalty in general (at 672):

  37. [21] With regard to the MDP specifically, the Privy Council commented (at 672–673):

  38. The decision in Nguyen

  39. [22] Moving on to Nguyen, the appellant in that case was convicted of importing 396.2g of diamorphine into Singapore without authorisation, an offence under s 7 of the MDA, and was, pursuant to the MDP provisions in the MDA, sentenced to suffer the MDP. He appealed against both his conviction and his sentence, contending that those provisions were unconstitutional because they violated Arts 9(1), 12(1) and 93 of the Singapore Constitution (these Articles concern, respectively, the right to life, the right to equal protection of the law and the judicial power of Singapore).

  40. [23] For present purposes, we shall examine only the appellant’s argument based on Art 9(1) and this court’s decision on that argument. The appellant’s argument was that: (a) the MDP was arbitrary because it precluded proportional and individualised sentencing, which form of sentencing was protected by the prohibition against cruel and inhuman treatment or punishment; and (b) even if the MDP were not arbitrary, execution by hanging amounted to cruel and inhuman punishment. In making this argument, the appellant took the position that the expression “law” in Art 9(1) incorporated CIL, specifically, the CIL prohibition against cruel, inhuman, degrading or unusual treatment or punishment. (In this regard, we shall hereafter refer to such treatment or punishment as “inhuman punishment” generically since Mr Ravi has, in his arguments, emphasised the prohibition against inhuman treatment or punishment in particular; it should, however, be noted that the terms “cruel”, “inhuman”, “degrading” and “unusual” do not share the exact same meaning.)

  41. [24] The way in which the appellant in Nguyen framed his argument on Art 9(1) was probably influenced by post-Ong Ah Chuan Privy Council decisions on the constitutional validity of the MDP under the Constitutions of other Commonwealth States, principally the Caribbean States. Counsel for the appellant cited those cases in an attempt to persuade this court that either Ong Ah Chuan had been wrongly decided at the material time or, alternatively, the Privy Council would have decided the case differently in 2004. The decisions which counsel referred to were:

  42. (a) Reyes v The Queen [2002] 2 AC 235 (“Reyes”), an appeal from a decision of the Court of Appeal of Belize;

  43. (b) Boyce and another v The Queen [2005] 1 AC 400 (“Boyce”), an appeal from a decision of the Court of Appeal of Barbados;

  44. (c) Matthew v State of Trinidad and Tobago [2005] 1 AC 433 (“Matthew”), an appeal from a decision of the Court of Appeal of Trinidad and Tobago; and

  45. (d) Watson v The Queen (Attorney General for Jamaica intervening) [2005] 1 AC 472 (“Watson”), an appeal from a decision of the Court of Appeal of Jamaica.

  46. [25] In considering whether the MDP provided for under the MDA was arbitrary, this court affirmed in Nguyen (at [82]) as established law the Privy Council’s decision in Ong Ah Chuan at 670–671 (quoted at [14] above) on the meaning of the phrase “in accordance with law” in Art 9(1). The court noted that the Privy Council had ruled in both Watson and Reyes that “the [MDP] in respect of certain classes of murder was … unconstitutional as a violation of the prohibition against cruel or inhuman treatment or punishment” (see Nguyen at [83]), and opined (likewise at [83]) that the Privy Council would have ruled in the same way in Matthew and Boyce “but for certain ‘saving provisions’ in the relevant national Constitutions which preserved pre-existing national laws”.

  47. [26] In Reyes, the Privy Council held that the MDP was unconstitutional under s 7 of the Constitution of Belize (Laws of Belize, c 4) (“the Belize Constitution”), which specifically prohibited, inter alia, inhuman punishment. The Privy Council (per Lord Bingham of Cornhill) observed thus (at [43]):

  48. [27] In Nguyen, this court held (at [84]) that the Privy Council’s reasoning in Reyes as to why the MDP was unconstitutional was not applicable to Singapore because neither the Singapore Constitution nor any other Singapore statute contained an equivalent of s 7 of the Belize Constitution. The court also pointed out (at [85] of Nguyen) that Reyes was decided “in the light of the various international norms that had been ‘accepted by Belize as consistent with the fundamental standards of humanity’”, such as those encapsulated in the Universal Declaration of Human Rights (10 December 1948), GA Res 217A (III), UN Doc A/810 (“the UDHR”) and the International Covenant on Civil and Political Rights (19 December 1966), 999 UNTS 171.

  49. [28] With regard to Watson, this court distinguished it in Nguyen (at [86]) on the same grounds as those outlined in the preceding paragraph. At the same time, this court acknowledged (likewise at [86]) the following comments by Lord Hope of Craighead, who delivered the judgment of the majority in Watson (at [29]–[30]):

  50. [29] Ultimately, in Nguyen, this court upheld the constitutionality of the MDP in view of two factors, namely: (a) the difference between the wording of the applicable constitutional provisions in Reyes and Watson and that of the relevant provisions of the Singapore Constitution; and (b) the difference between the constitutional history of the States from which those two Privy Council appeals arose (namely, Belize where Reyes was concerned, and Jamaica where Watson was concerned) and the constitutional history of Singapore. In so ruling, this court effectively distinguished Reyes, Watson and other like cases on the ground that Art 9(1) of the Singapore Constitution did not contain any words prohibiting inhuman punishment.

  51. [30] To complete this account of the decision in Nguyen, we should add that the basis on which this court distinguished Reyes and Watson was in pari materia with the basis on which the Privy Council in Bowe and another v The Queen [2006] 1 WLR 1623 (“Bowe”), an appeal from the Commonwealth of the Bahamas (“the Bahamas”), distinguished Ong Ah Chuan, namely, the Bahamian Constitution expressly prohibited inhuman punishment whereas the Singapore Constitution contained no such express prohibition. In Bowe, the Privy Council observed thus (at [41]):

  52. [31] With regard to the argument by the appellant in Nguyen that death by hanging was inhuman punishment and that the prohibition against such punishment was incorporated in the expression “law” in Art 9(1) of the Singapore Constitution, this court said (at [91]–[92]) that while it was widely accepted that the prohibition against inhuman punishment amounted to a rule of CIL, there was insufficient evidence of state practice to demonstrate that the content of this CIL prohibition was such as to prohibit hanging as a mode of execution. This court also noted that there was no CIL prohibition against the death penalty per se.

  53. [32] The above summary of what was decided in Ong Ah Chuan and Nguyen forms the legal backdrop to the form and structure of the arguments advanced by Mr Ravi in this appeal. We shall now consider the Article 9(1) challenge proper.

  54. The two limbs of the Article 9(1) challenge

  55. [33] As indicated at [6] above, there are two limbs to the Article 9(1) challenge, namely:

  56. (a) MDP legislation is not “law” for the purposes of Art 9(1) as it prescribes the MDP, which is an inhuman punishment, as the punishment for an offence; and

  57. (b) the MDP is prohibited under CIL, which is included in the expression “law” in Art 9(1), and, accordingly, the MDP is prohibited by Art 9(1).

  58. For convenience, we shall hereafter refer to the first limb as “the ‘inhuman punishment’ limb” and the second limb as “the ‘contrary to CIL’ limb”.

  59. The parties’ arguments on the “inhuman punishment” limb

  60. The Appellant’s submissions

  61. [34] With regard to the “inhuman punishment” limb of the Article 9(1) challenge, Mr Ravi contends that the MDP is an inhuman punishment because it has been held to be so in a long string of Privy Council cases decided post-Ong Ah Chuan and/or post-Nguyen, as well as in cases emanating from the US Supreme Court, the Supreme Court of India, the Supreme Court of Uganda and the High Court of Malawi. The cases cited by Mr Ravi in this regard (collectively, “the Appellant’s Art 9(1) cases”) and the constitutional provisions on which the respective decisions in these cases were based are as follows:

  62. (a) Reyes, which concerned the stipulation in s 7 of the Belize Constitution that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment”;

  63. (b) Fox v The Queen [2002] 2 AC 284, which concerned the stipulation in s 7 of the Constitution of Saint Christopher and Nevis that “[a] person shall not be subjected to torture or to inhuman or degrading punishment or other like treatment”;

  64. (c) Regina v Hughes [2002] 2 AC 259 (“Hughes”), which concerned the stipulation in s 5 of the Constitution of Saint Lucia that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment”;

  65. (d) Boyce, which concerned the stipulation in s 15(1) of the Constitution of Barbados that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment”;

  66. (e) Watson, which concerned the stipulation in s 17(1) of the Constitution of Jamaica that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment”;

  67. (f) Matthew, which concerned the stipulation in s 5(2)(b) of the Constitution of Trinidad and Tobago that the Parliament could not “impose or authorise the imposition of cruel and unusual treatment or punishment”;

  68. (g) Bowe, which concerned the stipulation in s 3 of the 1963 and the 1969 Constitutions of the Bahamas (and, subsequently, s 17 of the 1973 Constitution of the Bahamas) that “[n]o person shall be subjected to torture or to inhuman or degrading treatment or punishment”;

  69. (h) Bernard Coard and others v The Attorney General [2007] UKPC 7, which concerned the stipulation in s 5(1) of the Constitution of Grenada that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment”;

  70. (i) Woodson, which concerned the scope of the Eighth Amendment to the US Constitution prohibiting excessive bail, excessive fines and cruel and unusual punishment;

  71. (j) Attorney General v Susan Kigula & 417 others Constitutional Appeal No 3 of 2006 (21 January 2009), which concerned the stipulation in Art 24 of the Constitution of Uganda that “[n]o person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment”;

  72. (k) Francis Kafantayeni and others v Attorney General Constitutional Case No 12 of 2005 (27 April 2007), which concerned the stipulation in s 19(3) of the Constitution of Malawi that no person should be subjected to torture of any kind or to cruel, inhuman or degrading treatment or punishment; and

  73. (l) Mithu v State of Punjab AIR 1983 SC 473 (“Mithu”), which concerned the Indian equivalent of Arts 9(1) and 12(1) of the Singapore Constitution (namely, Arts 21 and 14 respectively of the Constitution of India (“the Indian Constitution”)).

  74. It may be noted that many of the above cases were decided prior to Nguyen, and were considered and distinguished by this court in Nguyen. To this extent, Mr Ravi is traversing old ground.

  75. [35] Mr Ravi’s argument before this court is that the Appellant’s Art 9(1) cases cast doubt on the correctness of the decisions in Ong Ah Chuan and Nguyen, and support the view that the MDP dehumanises the offender by debarring the trial judge from considering, during the sentencing process, any and all mitigating circumstances as to why the offender should not suffer death. In this respect, three of the Appellant’s Art 9(1) cases should be noted in particular.

  76. [36] The first is the Privy Council case of Reyes. In that case, the appellant was convicted of two counts of murder for shooting his neighbour and his neighbour’s wife in a dispute over the neighbour’s attempt to build a fence 2ft from the back of the appellant’s house. Under s 102(3)(b) of the Criminal Code of Belize (Laws of Belize, c 84) (“the Belize Criminal Code”), murder by shooting was classified as a “class A” murder, and, under s 102(1) of the same statute, it attracted the MDP. The appellant appealed against his sentence, contending that s 102 of the Belize Criminal Code was contrary to s 7 of the Belize Constitution. The Privy Council, in allowing the appeal, made the following observations (at [43]):

  77. [37] The second case which we wish to highlight is Woodson, where the US Supreme Court (by a majority of 5:4) struck down MDP legislation as unconstitutional in view of the prohibition against (inter alia) “cruel and unusual punishments” set out in the Eighth Amendment to the US Constitution. Stewart J, who delivered the judgment of the majority, said in a passage at 303–305 (which was later cited with approval by Lord Bingham at [34] of Reyes):

  78. [38] It should be noted that, although Stewart J highlighted in the above passage the qualitative difference between the death sentence and a sentence of imprisonment (because of the finality of death) and the “corresponding difference in the need for reliability in the determination that death [would be] the appropriate punishment in a specific case” (see Woodson at 305), he did not say that the possibility of error in making this determination rendered the MDP dehumanising. Instead, he held that it was the exclusion of judicial discretion – specifically, the exclusion of “the character and record of the individual offender and the circumstances of the particular offense” (see Woodson at 304) from the court’s consideration – which made the MDP dehumanising. Stewart J also added that if every offender convicted of murder were punished with death, the law would be treating all such offenders as “a faceless, undifferentiated mass” (see Woodson at 304) and would be dehumanising them; from that perspective, the MDP was an inhuman punishment.

  79. [39] The third of the Appellant’s Art 9(1) cases which we wish to draw attention to is Mithu. Several extracts of the Indian Supreme Court’s judgment in that case were cited in a passage at [36] of Reyes. That passage (“the composite passage from Mithu”) comprises certain observations made by Y V Chandrachud CJ (at [12] and [16]) and Chinnappa Reddy J (at [25]) on s 303 of the Penal Code 1860 (Act 45 of 1860) (India) (“the Indian Penal Code”), which imposes the MDP on a person who commits murder while under a sentence of life imprisonment. The passage reads as follows:

  80. Mr Ravi has referred to [12] of Mithu in his submissions, but not to [16] and [25] of that judgment.

  81. [40] In addition to the Appellant’s Art 9(1) cases, Mr Ravi has also relied on the opinions of two experts on international human rights law to contend that the MDP is an inhuman punishment. The first of these experts is Ms Asma Jilani Jahangir (“Ms Jahangir”), Special Rapporteur of the UN Commission on Human Rights on extrajudicial, summary or arbitrary executions (from August 1998 to July 2004), who, in her report to the UN General Assembly, expressed the view that “the death penalty should under no circumstances be mandatory, regardless of the charges involved” [emphasis added] (see Interim Report of the Special Rapporteur of the Commission on Human Rights on Extrajudicial, Summary or Arbitrary Executions, UN Doc A/55/288 (11 August 2000) at para 34). The second of the abovesaid experts is Mr Philip Alston (“Mr Alston”), the current Special Rapporteur of the UN Commission on Human Rights on extrajudicial, summary or arbitrary executions. In a critique of the decision in Nguyen (see “Expert on arbitrary executions calls on Singapore Government not to carry out mandatory death sentence” (15 November 2005)), Mr Alston expressed the view that, in Nguyen, this court failed to examine Boyce, where the dissenting members of the Privy Council (viz, Lord Bingham, Lord Nicholls of Birkenhead, Lord Steyn and Lord Walker of Gestingthorpe) accepted the submission (at [81]) that:

  82. [41] Mr Ravi argues that in view of the post-Ong Ah Chuan and/or post-Nguyen decisions from other Commonwealth jurisdictions condemning the MDP as an inhuman punishment, coupled with the opinions of Ms Jahangir and Mr Alston as mentioned in the preceding paragraph, this court should declare that Art 9(1) of the Singapore Constitution prohibits the MDP.

  83. The Prosecution’s response

  84. [42] In response to Mr Ravi’s submission that the MDP is an inhuman punishment and that MDP legislation is therefore not “law” for the purposes of Art 9(1), the then Attorney-General, Prof Walter Woon SC (“the AG”), who appeared in his capacity as the Public Prosecutor, has pointed out that the Privy Council in Ong Ah Chuan and this court in Nguyen decided otherwise. The AG submits that the position laid down in Ong Ah Chuan and Nguyen holds good, and that the Privy Council’s decisions in post-Ong Ah Chuan and/or post-Nguyen cases should not be followed because the Privy Council does not dictate human rights standards for the rest of humanity.

  85. The parties’ arguments on the “contrary to CIL” limb

  86. The Appellant’s submissions

  87. [43] Turning now to the “contrary to CIL” limb of the Article 9(1) challenge, Mr Ravi’s submission is that CIL is part of the expression “law” in Art 9(1). It should be noted that Mr Ravi has not cited any authority for this proposition, although, with regard to the contention that there is a CIL rule prohibiting the MDP as an inhuman punishment, he has pointed to the fact that there are a diminishing number of States which still retain the MDP for drug-related offences. According to Mr Ravi, at last count, only 14 States still retain the MDP for such offences (cf the figure given by the AG as to the number of States which still retain the MDP for drug-related and other serious offences (see [45] below)). This, Mr Ravi asserts, demonstrates the existence of a CIL prohibition against the MDP as an inhuman punishment. In our view, Mr Ravi’s argument is not devoid of merit, but it does not explain why the expression “law” in Art 9(1) should be interpreted to include CIL, in particular, the CIL rule prohibiting inhuman punishment.

  88. The Prosecution’s response

  89. [44] In response to the Appellant’s argument that the word “law” in Art 9(1) includes CIL, the AG has submitted that there are two possible interpretations of this word: the first is that it refers only to statutes and the common law as applied in Singapore; the second is that it also includes CIL in addition to statutes and the common law as applied locally. When asked to clarify his position as to which was the preferred interpretation, the AG said that, in principle, the expression “law” should be interpreted to include CIL. We do not think that the AG, by this reply, was conceding that the expression “law” in Art 9(1) includes CIL in the sense that “law” has been defined to include CIL, with the consequence that, once it is shown that there is a rule of CIL prohibiting the MDP as an inhuman punishment, that CIL rule automatically becomes part of “law” for the purposes of Art 9(1). Indeed, the constitutional definition of “law” in Art 2(1) is quite different (see [11] above). Besides, such a concession would be contrary to the decision in Nguyen, where this court held at [94], citing (inter alia) the Privy Council case of Chung Chi Cheung v The King [1939] AC 160 (“Chung Chi Cheung”), that in the event of a conflict between a rule of CIL and a domestic statute, the latter would prevail. From his other submissions, it seems clear enough to us that what the AG meant when he said that the expression “law” should be interpreted to include CIL was that this expression would include a CIL rule which had already been recognised and applied by a domestic court as part of Singapore law.

  90. [45] The AG disagrees with Mr Ravi’s contention that the MDP violates the CIL prohibition against inhuman punishment. In this regard, the AG has submitted that the post-Ong Ah Chuan and/or post-Nguyen Privy Council decisions cited by Mr Ravi (“the Privy Council cases relating to Art 9(1)”) merely reflect a change in the Privy Council’s attitude towards the MDP and, like the rest of the Appellant’s Art 9(1) cases, do not reflect an international consensus that the MDP is prohibited as a rule of CIL. The AG has also pointed out that since there are 31 States which continue to impose the MDP for drug-related and other serious offences, the widespread state practice and the opinio juris sive necessitatis (“opinio juris”) necessary to establish the prohibition of that penalty as a rule of CIL are lacking.

  91. Our decision on the Article 9(1) challenge

  92. The “inhuman punishment” limb

  93. [46] We shall first consider the “inhuman punishment” limb of the Article 9(1) challenge, which rests on the premise that the expression “law” in Art 9(1) should be interpreted as excluding MDP legislation because such legislation lays down an inhuman punishment (viz, the MDP). Article 9(1), which we set out earlier at [11] above and which we reproduce again below for ease of reference, provides as follows:

  94. [47] In view of the wording of Art 9(1), the key issue in the Article 9(1) challenge is whether the MDP deprives a person of his life “in accordance with law”. This, in turn, raises the question of what the word “law” as used in Art 9(1) means (in this regard, see [13]–[19] above, where we set out our local jurisprudence on the meaning of “law” in Art 9(1)). Mr Ravi accepts (in keeping with the case law which he has referred to) that any law (ie, any common law rule or any legislation properly enacted by the Legislature) that provides for the death penalty as a form of punishment is, prima facie, “law” for the purposes of Art 9(1). Hence, he accepts – correctly – that the death penalty per se does not violate Art 9(1) (in this regard, see also [6] above). What he argues (in reliance on the Appellant’s Art 9(1) cases as defined at [34] above) is, instead, that MDP legislation violates Art 9(1) because such legislation prescribes an inhuman punishment (ie, the MDP) for an offence. As alluded to at [7] above, Mr Ravi’s contention is that it is the taking away of judicial discretion as to whether or not to impose the death penalty which makes the MDP an inhuman punishment as each offender is then treated in the same way as any other offender convicted of the same offence, regardless of the circumstances in which he committed the offence and, thus, regardless of his personal culpability.

  95. [48] Significantly, all of the Appellant’s Art 9(1) cases concern the offence of murder, unlike the offence in issue in this appeal, which is the offence of drug trafficking. Hence, the rationale underlying those cases has no direct application to the present appeal. In this regard, it is pertinent to note the following comments made by Lord Diplock in Ong Ah Chuan at 674 (these comments, although made in relation to Art 12(1), are also relevant to the present discussion on Art 9(1)):

  96. [49] With regard to the offence of drug trafficking, what is an appropriate threshold of culpability for imposing the MDP is, in our view, really a matter of policy, and it is for Parliament to decide, having regard to public interest requirements, how the scale of punishment ought to be calibrated. This is par excellence a policy issue for the Legislature and/or the Executive, and not a judicial issue for the Judiciary. The MDA does not recognise any gradations in culpability in drug trafficking offences except in terms of the amount of controlled drugs trafficked. In this regard, it is a matter of common sense that the larger the amount trafficked, the greater the likelihood of harm done to society. Accordingly, even if the Appellant’s Art 9(1) cases bear out the conclusion that the MDP is an inhuman punishment when it is prescribed as the punishment for murder, it does not necessarily follow that the MDP, when prescribed as the punishment for drug trafficking, is likewise an inhuman punishment. In any event, whatever might be the merits of the argument (based on the Appellant’s Art 9(1) cases) that the MDP imposed for the offence of murder is an inhuman punishment and is thus unconstitutional, this argument has been foreclosed by constitutional developments in Singapore (see [61]–[72] below).

  97. [50] It should also be noted that the Appellant’s Art 9(1) cases (leaving aside Mithu) were decided in a different textual context. All of those cases (save for Mithu) involved Constitutions which expressly prohibited inhuman punishment. The key issue in those cases was thus interpretative in nature, ie: in relation to the constitutional prohibition against inhuman punishment, was the MDP an inhuman punishment? The decisions in the Appellant’s Art 9(1) cases (apart from Mithu) are therefore technically decisions on the question of what kind of punishment would constitute inhuman punishment and, strictly speaking, are not relevant to the meaning of the expression “law” in Art 9(1) of the Singapore Constitution. Hence, these cases are not direct authority on the question of whether the MDP provisions in the MDA constitute “law” for the purposes of Art 9(1).

  98. [51] That the Appellant’s Art 9(1) cases (other than Mithu) concern interpretative issues can be seen from the following comments by Lord Bingham in Reyes:

  99. [52] In this appeal, Mr Ravi is arguing that, as a matter of interpretation, Art 9(1) of the Singapore Constitution should be read as incorporating some form of prohibition against inhuman punishment similar to the prohibition expressed in the various Constitutions at issue in the Appellant’s Art 9(1) cases (apart from Mithu). In other words, what Mr Ravi is seeking to argue is that the expression “law” in Art 9(1) excludes a law that provides for an inhuman punishment. We must emphasise that Mr Ravi is not arguing that Art 9(1) expressly prohibits inhuman punishment. He cannot make that argument on the face of Art 9(1) without asking the court to (in effect) legislate those words into Art 9(1). What he is arguing, instead, is that Art 9(1) should be interpreted generously to prohibit a law that prescribes an inhuman punishment because human values have changed and legal norms should also change to reflect such changed human values. Mr Ravi’s argument, really, is that the world has changed and so have the civilised norms of humanity, with the result that the MDP is no longer acceptable, and, thus, this court should depart from Ong Ah Chuan and Nguyen.

  100. [53] Indeed, Mr Ravi has argued that the world had already changed by the time Ong Ah Chuan was decided in 1980, with the MDP being widely recognised by then as an inhuman punishment which was not “in accordance with law” for the purposes of Art 9(1), but the Privy Council in Ong Ah Chuan failed to recognise or understand this. In this connection, Mr Ravi has referred to Bowe, where the Privy Council held that the Bahamian courts had made a similar mistake in failing to recognise, prior to the coming into force of the 1973 Constitution of the Bahamas, the incompatibility of the MDP with the constitutional prohibition against (inter alia) inhuman punishment (this prohibition was first set out in s 3 of the 1963 Constitution of the Bahamas; it was subsequently reproduced as, respectively, s 3 of the 1969 Constitution of the Bahamas and s 17 of the 1973 Constitution of the Bahamas). Lord Bingham said (at [42]):

  101. [54] We do not accept Mr Ravi’s criticism of Ong Ah Chuan. There may be good reasons why Lord Bingham held in Bowe that the Bahamian courts had made the mistake outlined in the preceding paragraph (we should add that his Lordship’s holding was based on the constitutional development of the Bahamas from colonial times until the Bahamas became an independent State in 1973 (see [13]–[21] of Bowe)). But, where the Singapore Constitution is concerned, Mr Ravi’s criticism of Ong Ah Chuan borders on the fanciful as it suggests incorrectly that: (a) Lord Diplock did not understand the nature of the MDP and thus failed to recognise it as an inhuman punishment (when his Lordship had specifically said (at 673 of Ong Ah Chuan) that there was nothing unusual about a capital sentence being mandatory and that the efficacy of a capital sentence as a deterrent might to some extent be diminished if it were not mandatory); and (b) our courts (in post-Ong Ah Chuan decisions) did not understand the term “law” as interpreted by the Privy Council in Ong Ah Chuan.

  102. [55] Mr Ravi has made much of the Privy Council cases relating to Art 9(1) (as defined at [45] above) in attempting to buttress his case that Art 9(1) should be read as prohibiting inhuman punishment, including the MDP. His argument implies that even though there is no express prohibition against inhuman punishment in the Singapore Constitution, it does not follow that Art 9(1), which sets out the right to life, cannot be interpreted as prohibiting such punishment. In this regard, Mr Ravi points to Reyes, where the Privy Council stated that, given its decision that the MDP provided for under s 102(1) of the Belize Criminal Code vis-à-vis the offence of “class A” murder violated s 7 of the Belize Constitution, it was unnecessary to analyse the compatibility of that provision with ss 3 and 4 of the Belize Constitution (apropos the right to life), but “[that] should not … be taken as a rejection of the defendant’s arguments based on those sections” (at [48]). Another case which Mr Ravi has relied on is Matthew, where the Privy Council, although focusing its analysis on the issue of whether the MDP was cruel and unusual punishment and, thus, inconsistent with the prohibition against such punishment in s 5(2)(b) of the Constitution of Trinidad and Tobago, also stated (in addition to finding that the MDP was inconsistent with that constitutional provision) that the MDP was inconsistent with s 4(a) of the Constitution of Trinidad and Tobago (which sets out “the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law” [emphasis added]).

  103. [56] Mr Ravi has further submitted that international human rights norms are relevant in interpreting the Singapore Constitution as our courts, to the extent that is permitted by the language of the Singapore Constitution, will be slow to interpret constitutional provisions as being inconsistent with Singapore’s international legal obligations. In this regard, Mr Ravi argues that, even though the Singapore Constitution does not expressly prohibit inhuman punishment, this court should, following the path made on Caribbean soil by the Privy Council in cases such as Reyes and Matthew, likewise read the moral bases of human rights – which include the right to be protected from inhuman punishment – into the expression “law” in Art 9(1). This right (ie, the right to be protected from inhuman punishment), Mr Ravi emphasises, is recognised in, inter alia, Art 5 of the UDHR, which provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, and Art 3 of the European Convention on Human Rights (4 November 1950), 213 UNTS 221 (“the ECHR”), which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

  104. [57] In his book The Idea of Justice (Allen Lane, 2009), Prof Amartya Sen (“Prof Sen”) points out (at p 359):

  105. [58] In this regard, Prof Sen agrees (at p 363) with Herbert Hart’s view that moral rights (which would include human rights) should be seen as “parents of law” [emphasis in original] – ie, as motivators of specific legislation – rather than as “child[ren] of law” (see, likewise, p 363), which was Jeremy Bentham’s view. This observation has resonance in the following comments by Lord Bingham in Reyes at [27]–[28] (although it should be noted that his Lordship’s comments were made for a different purpose):

  106. [59] We agree that domestic law, including the Singapore Constitution, should, as far as possible, be interpreted consistently with Singapore’s international legal obligations. There are, however, inherent limits on the extent to which our courts may refer to international human rights norms for this purpose. For instance, reference to international human rights norms would not be appropriate where the express wording of the Singapore Constitution is not amenable to the incorporation of the international norms in question, or where Singapore’s constitutional history is such as to militate against the incorporation of those international norms (in this regard, see further [61]–[72] below). In such circumstances, in order for our courts to give full effect to international human rights norms, it would be necessary for Parliament to first enact new laws (as the drafters of the UDHR hoped States would do) or even amend the Singapore Constitution to expressly provide for rights which have not already been incorporated therein. Both of these measures are, as Lord Bingham observed in Reyes at [28] (reproduced in the preceding paragraph), well within the prerogative of a sovereign State. In short, the point which we seek to make is this: where our courts have reached the limits on the extent to which they may properly have regard to international human rights norms in interpreting the Singapore Constitution, it would not be appropriate for them to legislate new rights into the Singapore Constitution under the guise of interpreting existing constitutional provisions.

  107. [60] Where the Singapore Constitution is concerned, we are of the view that it is not possible to incorporate a prohibition against inhuman punishment through the interpretation of existing constitutional provisions (in this case, Art 9(1)) for two reasons.

  108. [61] First, unlike the Constitutions of the Caribbean States, the Singapore Constitution does not contain any express prohibition against inhuman punishment. Our constitutional history is quite different from that of the Caribbean States. Belize and the other Caribbean States modelled their Constitutions after the ECHR, whereas the Singapore Constitution – specifically, Pt IV thereof on fundamental liberties – was derived (albeit with significant modifications) from Pt II of the 1957 Constitution of the Federation of Malaya (“the 1957 Malayan Constitution”), which formed the basis of what we shall hereafter refer to as “the 1963 Malaysian Constitution” (viz, the Constitution of Malaysia that came into effect when Malaysia (comprising the Federation of Malaya, Singapore, Sabah and Sarawak) was formed on 16 September 1963). It is a little known legal fact that the ECHR was made applicable to Singapore and the Federation of Malaya in 1953 just as it was made applicable to Belize and several other British colonies by virtue of the UK’s declaration under Art 63 of the ECHR (see Karel Vasak, “The European Convention of Human Rights Beyond the Frontiers of Europe” (1963) 12 ICLQ 1206 at p 1210). The ECHR ceased to apply in the respective British colonies upon their independence (in the case of Singapore, the ECHR ceased to apply when we became a constituent State of Malaysia in 1963), but Belize and many other former British colonies (especially those in the Caribbean) modelled their Constitutions after the ECHR. As a result, the Constitutions of these countries included a prohibition against inhuman punishment. This was not the case for either Malaysia or Singapore.

  109. [62] When the 1957 Malayan Constitution was drafted (pursuant to advice from the Federation of Malaya Constitutional Commission chaired by Lord Reid (“the Reid Commission”)), no reference was made to a prohibition against inhuman punishment in any provision of the draft Constitution; ie, the Reid Commission did not recommend the incorporation of such a prohibition. Given that the Reid Commission’s report (viz, Report of the Federation of Malaya Constitutional Commission 1957 (11 February 1957)) was published in 1957 when the prohibition against inhuman punishment already existed in the ECHR (which applied to the Federation of Malaya prior to its independence), the omission of a similar prohibition from the 1957 Malayan Constitution was clearly not due to ignorance or oversight on the part of the Reid Commission. The prohibition against inhuman punishment was likewise omitted from the 1963 Malaysian Constitution.

  110. [63] When Singapore separated from Malaysia and became an independent sovereign republic on 9 August 1965, we inherited a state Constitution (ie, the Constitution of the State of Singapore set out in Schedule 3 to the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (GN No S1 of 1963)) and many provisions of the 1963 Malaysian Constitution, including (inter alia) the provisions on fundamental liberties that are now Arts 9–16 in Pt IV of the Singapore Constitution. As a result of the aforesaid developments in our constitutional history, the Singapore Constitution, unlike many other Commonwealth Constitutions, is not modelled after the ECHR and does not contain an express prohibition against inhuman punishment. This weakens Mr Ravi’s contention that the Singapore Constitution should be read as incorporating an implied prohibition to this effect.

  111. [64] The second and more important reason why it is not possible to interpret the Singapore Constitution as incorporating a prohibition against inhuman punishment is that a proposal to add an express constitutional provision to this effect was made to the Government in 1966 by the constitutional commission chaired by Wee Chong Jin CJ (“the Wee Commission”), but that proposal was ultimately rejected by the Government. The Wee Commission was appointed to look into (among other things) the protection of minority rights in Singapore after we became an independent sovereign republic. To this end, the Wee Commission studied the constitutional texts of some 40 different British colonies and dominions and newly independent nations as well as non-Commonwealth Constitutions (see Evolution of a Revolution: Forty years of the Singapore Constitution (Li-ann Thio & Kevin Y L Tan eds) (Routledge Cavendish, 2009) at pp 11–12), and, in its written report (viz, Report of the Constitutional Commission 1966 (27 August 1966) (“the 1966 Report”)), went out of its way to recommend, inter alia, the inclusion of a constitutional provision prohibiting torture or inhuman punishment.

  112. [65] The Wee Commission gave the following reasons for its recommendation (see the 1966 Report at para 40):

  113. For convenience, we shall hereafter refer to the new Article proposed by the Wee Commission as “the proposed Art 13”, and to the two subsections of this proposed Article as, respectively, “the proposed Art 13(1)” and “the proposed Art 13(2)”.

  114. [66] Three things may be noted about the proposed Art 13. The first is that the proposed Art 13(1) is effectively word for word the same as both Art 3 of the ECHR and s 7 of the Belize Constitution (which was the subject matter of the decision in Reyes). The second is that the proposed Art 13(1) and the proposed Art 13(2) are in pari materia with: (a) ss 15(1) and 15(2) respectively of the Constitution of Barbados (which provisions were commented on by the Privy Council in Boyce at, inter alia, [28]); and (b) ss 17(1) and 17(2) respectively of the Constitution of Jamaica (which Constitution was construed in Pratt, a decision rejected by this court in Jabar (see [18] above)). Third, the proposed Art 13(2), which is essentially a savings clause to preserve the validity of punishments existing before the coming into force of the proposed Art 13 (regardless of whether or not such punishments are inhuman), is also substantially the same as para 10 of Schedule 2 to the Saint Lucia Constitution Order 1978 (SI 1978/1901) (“the Saint Lucia savings clause”).

  115. [67] The Saint Lucia savings clause reads as follows:

  116. [68] In Hughes, the Privy Council held that the above clause was inadequate to save the MDP imposed for murder under s 178 of the Criminal Code of Saint Lucia as revised in 1992 (“Saint Lucia’s Criminal Code”) from unconstitutionality (in terms of violating the constitutional prohibition against inhuman punishment set out in s 5 of the Constitution of Saint Lucia). The Privy Council, relying on the word “authorises” (which is also used in the proposed Art 13(2)), stated (at [47] of Hughes):

  117. Proceeding on this basis, the Privy Council held that s 178 of Saint Lucia’s Criminal Code fell outside the scope of the Saint Lucia savings clause “to the extent that it … require[d] the infliction of the death penalty in all cases of murder” (at [48]). In other words, the Saint Lucia savings clause saved only the discretionary death penalty, but not the MDP.

  118. [69] Since the proposed Art 13 is not part of the Singapore Constitution, the Privy Council’s decision in Hughes, which turned on the interpretation of the word “authorises” in the Saint Lucia savings clause, is not relevant in the present appeal. Nevertheless, we wish to add that, whatever the legislative intent of the Saint Lucia savings clause was, we find it difficult to believe that when the Wee Commission raised the proposed Art 13(2) for the Government’s consideration, it intended to exclude from the protection of this provision all punishments “required” by law, such as the MDP for murder, mandatory caning for other offences as well as the various mandatory minimum punishments prescribed under the then existing criminal statutes (for example, the Vandalism Act 1966 (Act 38 of 1966), which came into force on 16 September 1966). It seems to us that the converse was more likely, ie, the Wee Commission intended the proposed Art 13(2) to prevent the raising of any argument that any pre-existing lawful punishment of whatever nature would be in violation of the proposed Art 13 (1) upon the proposed Art 13 taking effect.

  119. [70] In this regard, we note that the word “requires” was not used in the proposed Art 13(2). The word used was, instead, “authorises”. It is an established principle of interpretation that the meaning of a word is derived from the context in which that word is used. The purpose of a savings clause in the nature of the proposed Art 13(2) is clearly to save from possible unconstitutionality all existing punishments that were lawful prior to the coming into effect of a new constitutional right (such as that set out in the proposed Art 13(1)). If the word “authorises” in such a savings clause is indeed intended to exclude existing punishments that are “required” to be imposed (ie, mandatory punishments such as the MDP), it would be far easier to simply abrogate all those punishments so as to conform to the new constitutional right in question, instead of leaving the constitutional validity of those punishments in doubt until a court decides, long after the event, which of the “required” punishments are saved and which are not. It seems to us rather surprising that a punishment which the court is “required” to impose for a particular offence (eg, the MDP) can be construed as falling outside the ambit of “authorised” punishments. This is because, if the court is “required” to inflict a particular punishment, it is a fortiori authorised to inflict that punishment.

  120. [71] Returning to the Wee Commission’s recommendations as set out in the 1966 Report, the Government accepted many of those recommendations in their entirety. There were other recommendations which the Government agreed to in principle, but not with regard to the details; and there were yet other recommendations which the Government found to be unacceptable. In respect of the proposed Art 13, the Government accepted in principle that no individual should be subjected to torture, but it omitted any reference to protection from inhuman punishment (see Singapore Parliamentary Debates, Official Report (21 December 1966) vol 25 at cols 1052–1053) (Mr E W Barker, Minister for Law and National Development)). Ultimately, the Government did not include the proposed Art 13 in the amendments to the Singapore Constitution, and the Constitution (Amendment) Act 1969 (Act 19 of 1969), which was passed to give effect to provisions of the 1966 Report that the Government accepted, provided for only the establishment of what is now the Presidential Council for Minority Rights to, inter alia, serve as “an additional check on … matters which might affect the minorities” (see the 1966 Report at para 16).

  121. [72] The Government’s rejection of the proposed Art 13 was unambiguous, whatever the reasons for such rejection were. This development, in our view, forecloses Mr Ravi’s argument that it is open to this court to interpret Art 9(1) of the Singapore Constitution as incorporating a prohibition against inhuman punishment. We may reasonably assume that the Wee Commission recommended the inclusion of the proposed Art 13 in the Singapore Constitution because Art 9(1) did not deal with the same subject matter as that of the proposed Art 13(1) (viz, prohibition of inhuman punishment); otherwise, Art 9(1) would have been redundant. The Government’s rejection of the proposed Art 13(1) – the content of which forms the basis of the ruling in the Privy Council cases relating to Art 9(1) that the MDP is an inhuman punishment – makes it impossible for the Appellant to now challenge the constitutionality of the MDP by relying on these Privy Council cases. It is not legitimate for this court to read into Art 9(1) a constitutional right which was decisively rejected by the Government in 1969, especially given the historical context in which that right was rejected. We therefore conclude that Mr Ravi’s proposed interpretation of Art 9(1) as incorporating a prohibition against inhuman punishment is an interpretation which our courts are barred from adopting.

  122. [73] In this connection, we wish to highlight Lord Bingham’s observation in Reyes at [28] (quoted at [58] above) that States are not bound to give effect in their Constitutions to norms and standards accepted elsewhere, perhaps in very different societies. It is also pertinent to refer to the judgment of Lord Nicholls in Matthew, where his Lordship said:

  123. [74] In our view, the reasoning of Lord Nicholls in the above quotation is equally apt to apply to the Government’s decision in 1969 to reject the proposed Art 13, with the result that the right to freedom from inhuman punishment was not elevated to a constitutional right. There is, in substance, no difference between repealing an existing constitutional provision prohibiting inhuman punishment and deliberately deciding not to enact such a constitutional provision in the first place. On this ground alone, there is no legitimate basis for this court to now expand, via an interpretative exercise, the scope of Art 9(1) so as to include a prohibition against inhuman punishment.

  124. [75] This conclusion does not mean that, because the proposed Art 13 included a prohibition against torture, an Act of Parliament that permits torture can form part of “law” for the purposes of Art 9(1). Currently, no domestic legislation permits torture. In any case, torture is not the issue before us. All that is necessary is for us to reiterate the Privy Council’s position in Ong Ah Chuan (at 659 (quoted at [16] above)) that Art 9(1) does not justify all legislation, whatever its nature. It also bears mention that the Government has expressed the view that torture is wrong (see Singapore Parliamentary Debates, Official Report (29 July 1987) vol 49 at cols 1491–1492 (Prof S Jayakumar, Minister for Home Affairs)). This explicit recognition by the Government that torture is wrong in the local context stands in sharp contrast to the absence of any statement on its part (in the context of our national policy on combating drug trafficking in Singapore) that the MDP is an inhuman punishment. In addition, torture, in so far as it causes harm to the body with criminal intent, is already criminalised under ch XVI of the Singapore Penal Code, which sets out the types of offences affecting the human body.

  125. [76] We shall now consider the Appellant’s reliance on Mithu to support the contention that Art 9(1) of the Singapore Constitution should be read as incorporating a prohibition against inhuman punishment. Mr Ravi has submitted that, in Mithu, the Supreme Court of India ruled that the MDP was unconstitutional as it violated Arts 14 and 21 of the Indian Constitution (viz, the Indian equivalent of, respectively, Arts 12(1) and 9(1) of the Singapore Constitution).

  126. [77] Articles 14 and 21 of the Indian Constitution read as follows:

  127. The issue in Mithu was whether s 303 of the Indian Penal Code (which, as mentioned at [39] above, lays down the MDP for the offence of murder committed by a person whilst under a sentence of life imprisonment) infringed these two Articles of the Indian Constitution. The Supreme Court of India held that s 303 infringed Art 14 as there was no rational justification for making a distinction between the punishment imposed on a person who committed murder whilst under a sentence of life imprisonment and the punishment imposed on a person who committed murder under other circumstances.

  128. [78] With regard to Art 21, the Indian Supreme Court held that the phrase “procedure established by law” meant “according to fair, just and reasonable procedure established by valid law” (see Mithu at [6]). On this basis, the Supreme Court held, further, that:

  129. (a) it was harsh, unjust and unfair to condemn a murderer to death without taking into account the circumstances in which he committed the murder (at [12]); and

  130. (b) a provision which precluded the court from exercising judicial discretion as to whether or not the MDP should be imposed was arbitrary and oppressive (at [25]).

  131. In short, what the Indian Supreme Court objected to in Mithu was the fact that, under s 303 of the Indian Penal Code (at [25]):

  132. [79] In our view, there are three reasons why, contrary to what Mr Ravi advocated, we cannot apply the reasoning in Mithu to interpret Art 9(1) of the Singapore Constitution as prohibiting inhuman punishment generally and the MDP in particular. The first reason is that the test for the constitutional validity of laws under Art 9(1) of the Singapore Constitution is different from the test under Art 21 of the Indian Constitution. Mithu was not a case about inhuman punishment (cf the decisions in the rest of the Appellant’s Art 9(1) cases), although Chandrachud CJ did say in his judgment (at [6]) that “[a] savage sentence [was] anathema to the civilized jurisprudence of Article 21” (in this regard, the learned Chief Justice gave the example of cutting off the offender’s hands as a punishment for theft). The issue before the court was not whether the MDP was inhuman, but whether s 303 of the Indian Penal Code was procedurally “fair, just and reasonable” (at [6]) when it “deprive[d] the Court of the use of its wise and beneficent discretion in a matter of life and death” (at [12]). What we now have to consider is whether this test of fair, just and reasonable procedure employed by the Indian Supreme Court (“the ‘fair, just and reasonable procedure’ test”) for the purposes of determining the constitutional validity of laws under Art 21 of the Indian Constitution is applicable in our local context to Art 9(1) of the Singapore Constitution.

  133. [80] As stated earlier (at [11] and [46] above), Art 9(1) of the Singapore Constitution provides as follows:

  134. Although the expression “law” may include substantive law as well as procedural law, it does not follow that any procedural law must be “fair, just and reasonable” (see Mithu at [6]) before it can constitute “law” for the purposes of Art 9(1). Article 9(1) contains no such qualification; nor can such a qualification be implied from its context or its wording. It must also be noted that the Privy Council in Ong Ah Chuan did not adopt the “fair, just and reasonable procedure” test as the criterion for determining the constitutional validity of laws under Art 9(1) (because that would have been too vague a test of constitutionality). Such a test hinges on the court’s view of the reasonableness of the law in question, and requires the court to intrude into the legislative sphere of Parliament as well as engage in policy making. Thus, in Ong Ah Chuan, the Privy Council only required, for the purposes of Art 9(1), that any law depriving a person of his life or personal liberty must be consistent with “fundamental principles of natural justice” (at 670).

  135. [81] Our second reason for rejecting Mr Ravi’s submissions on Mithu is that the Indian Supreme Court in that case paid no regard to the overall context of Art 21 of the Indian Constitution, which applies not only to deprivation of life, but also deprivation of personal liberty. The court declared the MDP as provided for under s 303 of the Indian Penal Code to be inconsistent with Art 21 without reference to the context of that Article, which (as just mentioned) also allows for derogation from the right to personal liberty. If the objection to the MDP is the absence of judicial discretion to calibrate the sentence according to the circumstances of the case, then all mandatory sentences (and, indeed, all fixed minimum and maximum sentences prescribed by the Legislature) will contravene Art 21. It may be that this is the law in India. But, it is not the law in Singapore. In Ong Ah Chuan, this was an extreme position which the appellants’ counsel refrained from taking (see Ong Ah Chuan at 673 (as reproduced at [21] above)). Mr Ravi has also not taken this position before this court.

  136. [82] It may well be that the Indian Supreme Court in Mithu considered that the death penalty was qualitatively different from other punishments (a view also expressed by Stewart J in Woodson at 305 (quoted at [37] above)), and, thus, a different standard must be adhered to in terms of the procedure for imposing the death penalty. With respect, we do not think this reasoning is applicable to Art 9(1) of the Singapore Constitution. While we agree that it is beyond doubt that the death penalty is qualitatively different from other lesser punishments, the relevant question in this appeal is whether Parliament’s power to legislate for the imposition of the death penalty as the mandatory punishment for a serious offence is circumscribed because of this qualitative difference. In our view, the plain wording of Art 9(1) does not support the conclusion that Parliament cannot make the death penalty mandatory. We do not think that we can give to Art 9(1) of the Singapore Constitution the same expansive interpretation as that which the Indian Supreme Court has given to Art 21 of the Indian Constitution.

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