- See generally WA Schabas The Abolition of the Death Penalty in International Law (3rd edn CUP Cambridge 2002).
- [2004] 2 Singapore L Rep 328 (High Court) (Nguyen). The appeal from this case (Criminal Case Appeal No 5 of 2004) was dismissed in Nguyen Tuong Van v Public Prosecutor [2004] SGCA 47, [2005] 1 Singapore L Rep 103 (Nguyen (appeal)). This article does not deal with the evidential or sentencing issues arising in the case under the Criminal Procedure Code (Cap 68) nor failed arguments that the pardoning process is unconstitutional for usurping judicial power and breaching the separation of powers principle. See Nguyen [95]–[98].
- Cap 185 (2001 revised edn).
- UNGA Res 217A (III) (1948) UN Doc A/810, 71. See also art 7 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR): ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.
- Amnesty International ‘The Death Penalty’ <http://web.amnesty.org/pages/deathpenalty-index-eng> (30 November 2004).
- UNGA Res 44/128 (adopted 15 December 1989, entered into force 11 July 1991) UN GAOR Supp (No 49) annex 44 207, UN Doc A/44/49. This protocol aims at the abolition of the death penalty.
- Seven states have signed but not ratified it: Office for the United Nations High Commissioner for Human Rights ‘Status of Ratifications of the Principal International Human Rights Treaties as of 9 June 2004’ <http://www.unhchr.ch/pdf/report.pdf> (3 December 2004).
- (Adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
- Art 6(2) of the ICCPR provides that in countries where the death penalty exists, this should only be imposed for ‘the most serious crimes'.
- Soering v UK Series A No 161 (1989) 11 EHRR 439.
- eg the Singaporean government gave an assurance to the Australian government in requesting the extradition of a UK national in Australia to be tried for murder that, if convicted, the suspect would not be executed, as Australian extradition law requires. The constitutional validity of such undertaking was at issue in the extradition hearing, where the author was an expert witness for the defence: Michael McCrea v Minister for Customs and Justice of the Commonwealth of Australia (Federal Court of Australia, Victorian District Registry, No 851 of 2003). See ‘Double-murder Suspect Now Wants to be Tried in Britain’ Straits Times (Singapore 14 Feb 2004). Invoking the ‘act of state’ doctrine whereupon a court will not adjudicate on the acts of another sovereign power within its territory, the Federal Court of Australia declined to determine whether the undertaking was valid or enforceable, noting that under the terms of the Australian Extradition Act 1988 (Cth), the Attorney-General had overriding discretion whether to surrender a fugitive offender: see McCrea v Minister for Customs and Justice [2004] FCA 1273.
- See A Langlois The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory (CUP Cambridge 2001) 21–45; Singapore Parliament ‘Shared Values White Paper’ (2 January 1991) (Cmd 1 of 1991).
- However, on corporal punishment, the Clinton administration opposed the caning sentence imposed on an American national for vandalism. See F Bahrampour ‘The Caning of Michael Fay: Can Singapore's Punishment Withstand the Scrutiny of International Law?’ (1995) 10 American UJ of Intl L and Policy 1075.
- The president of a local NGO, Think Centre, has called for a moratorium on the death penalty which was labelled ‘cruel, inhuman and degrading punishment’. See ‘CJ Explains Why Appeal Was Dismissed’ Straits Times (Singapore 18 Oct 2003).
- KS Rajah ‘The Unconstitutional Punishment’ (2003) in ‘Inside the Bar’ 8 L Gazette: An Official Publication of the Law Society of Singapore (August 2003) <http://www.lawgazette.com.sg/2003–8/Aug03-col2.htm> (3 December 2004); KC Vijayan ‘Lawyer wants Review of “Death for Murder” Law’ Straits Times (Singapore 22 August 2003).
- Amnesty International Singapore: The Death Penalty: A Hidden Toll of Executions (Report) (15 Jan 2004) AI Index: ASA 36/001/2004; M Nirmala ‘Govt Points Out 12 “Grave Errors” in Amnesty Report’ Straits Times (Singapore 31 Jan 2004).
- Ministry of Home Affairs The Singapore Government's Response To Amnesty International's Report ‘Singapore—The Death Penalty: A Hidden Toll Of Executions' Press Release (30 Jan 2004) <http://www2.mha.gov.sg/mha/detailed.jsp?artid=990&type=4&root=0&parent=0&cat=0&mode=arc> (30 November 2004).
- On this schizophrenic approach see L Thio ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’ (2002) 20 U of California Los Angeles Pacific Basin LJ 1, 8, 60–62.
- ‘Local conditions’ have been invoked to ground fundamental liberties cases pertaining to religious liberty (Chan Hiang Leng Colin v Public Prosecutor [1994] 3 Singapore L Rep 662, 682); limits to free political speech posed by defamation laws (Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 2 Singapore L Rep 310); and contempt of court (A-G v Wain (No 1) [1991] Singapore L Rep 383). What appears consistent is the requirement that greater weight be accorded to government-defined collective interests or to prioritizing the public reputations of public officials or institutions above the value of free speech in a democratic society. See L Thio ‘An “i” for an “I”: Singapore's Communitarian Model of Constitutional Adjudication’ (1997) 27 Hong Kong LJ 152.
- Practice Statement (Judicial Precedent 11 July 1994) 2 Singapore L Rep 689 (1994). Notably, the Appellate Court hearing Nguyen's appeal stressed: ‘The common law of Singapore has to be developed by our Judiciary for the common good’: Nguyen (appeal) (n 2) [87].
- C McCrudden ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499.
- Cap 97 (1997 revised edn).
- Cap 68 (1985 revised edn); see Nguyen(n 2) 332–44.
- (adopted 24 April 1963, entered into force 19 March 1967) 8638–40 UNTS 596.
- Nguyen (n 2) [36], [39], [41], [42].
- See L Thio ‘The Constitutional Framework of Powers’ in KYL Tan (ed) Singapore Legal System (2nd edn Singapore University Press Singapore 1998).
- Art 4 of the Constitution of the Republic of Singapore (1999 revised edn) declares the supremacy of the Constitution over inconsistent laws.
- Defence counsel, Nguyen (n 2) [73].
- ibid [79].
- ibid [80].
- [1980–1981] Singapore L Rep 48.
- The rational nexus test applied by the Privy Council in the 1981 Singapore case of Ong Ah Chuan v Public Prosecutor (ibid) was elaborated by the Malaysian Federal Court in Datuk Haji Harun Bin Haji Idris v Public Prosecutor [1977] 2 Malayan LJ 155, 167.
- Ong Ah Chuan (n 32) 65 (Lord Diplock).
- Following Kok Hoong Tan Dennis v Public Prosecutor [1997] 1 Singapore L Rep 123, applied in Nguyen (n 2) [78].
- Nguyen (n 2) [82].
- Ong Ah Chuan(n 32) 64.
- ibid.
- Nguyen (n 2) [90].
- [2002] 2 AC 235.
- Laws of Belize, C4 (21 September 1981).
- Reyes (n 40) [29], quoted in Nguyen (n 2) [88]. Notably, ‘cruel and inhuman punishment’ is not exhaustively defined but the Human Rights Committee in its General Comment on art 7 of the ICCPR notes that this depends on the ‘kind, purpose and severity of the particular treatment' including corporal punishment and solitary confinement: General Comment 7 (16th Session 1982) UN Doc HRI\GEN\1\Rev.1 (1994) 7, [2].
- Reyes (n 40) [43], quoted in Nguyen (n 2) [89].
- Nguyen (n 2) [90]. On appeal, the Court noted that full arguments had not been canvassed in relation to proving as ‘insupportable’ the 15 gram differentia in the Misuse of Drugs Act, which was thereby upheld. Nevertheless, this indicates a willingness to consider evidence such as sociological data or legislative history to ascertain ‘the proper weight that ought to be ascribed to the views of Parliament encapsulated in the impugned legislation.’ This underscores that the judicial role transcends ‘a blind acceptance of the legislative fiat’: Nguyen (appeal) (n 2) [73], [77].
- Interestingly, the 1966 Constitutional Commission recommended adopting a new article providing: ‘No person shall be subjected to torture or to inhuman or degrading punishment or other treatment’: text of Wee Report, reproduced in KYL Tan and L Thio Constitutional Law in Malaysia and Singapore (2nd edn Butterworths Asia Singapore 1997) app D.
- Nguyen (n 2) [103]. The Court of Appeal in the Nguyen appeal noted that recent Privy Council jurisprudence in cases including Watson v The Queen (A-G for Jamaica Intervening) [2004] UKPC 34, [2004] 3 WLR 841; Matthew v State of Trinidad and Tobago [2004] UKPC 33, [2004] WLR 812; and Boyce v The Queen [2004] UKPC 32, [2004] WLR 786 had indicated that ‘an integral part of the prohibition against cruel and inhuman treatment or punishment was proportionality and individualised sentencing’. Nguyen (appeal) (n 2) [85]. As such the mandatory death penalty for certain classes of murder could be unconstitutional for violating constitutional prohibitions against cruel or inhuman treatment or punishment: Nguyen (appeal) (n 2) [83]. The Court of Appeal further noted that the Privy Council in Reyes had not pronounced mandatory death sentences ‘absolutely unconstitutional’ as there could be circumstances where this could be ‘sufficiently discriminating to obviate any inhumanity in its operation’, as in the case of the MDA which was held constitutional: Nguyen (appeal) (n 2) [87], [98].
- Nguyen (n 2) [77].
- [1998] 1 Singapore L Rep 943 (High Court) [23]–[24], citing Ong Ah Chuan(n 32) 61.
- Ong Ah Chuan(n 32) 62.
- See A Harding ‘Natural Justice and the Constitution’ [1981] Malaya L Rev 226; TKK Iyer ‘Article 9(1) and “Fundamental Principles of Natural Justice” in the Constitution of Singapore' [1981] Malaya L Rev 213.
- See eg Haw Tua Tau v Public Prosecutor [1980–1981] Singapore L Rep 73 (PC).
- [1993] 1 Singapore L Rep 512 (Court of Criminal Appeal).
- [1980] AC 319 (PC).
- Ong Ah Chuan (n 32) 61 (quoting Lord Wilberforce in Fisher (n 55) 329).
- [1995] 1 Singapore L Rep 617 (Court of Appeal).
- [1983] 2 Supreme Court Rep 582. Prolonged delay in executing a death sentence would be unfair, contrary to art 21 of the Indian Constitution which provides: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Chandrachud CJ noted in activist terms that the horizons of art 21 were ‘ever widening’ as it stood ‘like a sentinel over human misery, degradation and oppression’: Sher Singh 593. The Singapore court in Jabar distinguished the Indian approach on the basis of the different wording of the ‘personal liberty’ guarantee, and the linkage of art 21 to the Indian equality guarantee in art 14 which thus required that the ‘procedure’ for the deprivation of life had to be just and reasonable both before and after the imposition of the death sentence.
- [1994] 2 AC 1 (PC).
- [1983] AC 719 (PC). Art 17 of the Jamaica Constitution prohibits inhuman or degrading treatment although this does not extend to ‘lawful’ punishment. Their Lordships ruled that the death sentence was ‘lawful’ and hence executing the death penalty, even with a delay, was authorized under art 17.
- Pratt(n 59) 29.
- 948 F 2d 1473 (9th Cir 1990).
- Jabar(n 57) 631.
- [1990] 2 AC 418 (HL). See R Jennings and A Watts (eds) Oppenheim's International Law (9th edn Longman Harlow 1992) vol 1, 58–63.
- Public Prosecutor v Salwant Singh s/o Amer Singh [2003] Singapore District Court 146 <http://www.geocities.com/law4u2003/salwantsingh.htm> (3 December 2004). The Constitution was found to take precedence over an extradition agreement, whose terms did not prevail over sentencing power, an aspect of art 93 ‘judicial power’ which is vested in the Supreme Court.
- Jennings and Watts(n 65) 57.
- Notably, the Privy Council in Haw Tua Taw v Public Prosecutor [1980–1981] Singapore L Rep 73 (PC) advocated that in elaborating upon the meaning of ‘fundamental principles of natural justice’, a broad approach should apply, having regard to such sources as the UDHR, the European Convention on Human Rights and comparative constitutional practices, including those of civilian systems. This suggests that universally applicable principles could be found and confirmed by global practice.
- This approach was also enunciated in the Malaysian case of Government of the State of Kelantan v Government of the Federation of Malaya [1963] Malayan LJ 355 (Federal Court).
- In relation to the issue of limits on religious freedom which is constitutionally guaranteed and, as defence counsel argued, a universal human right as embodied in the UDHR, Yong CJ stated: ‘I think the issues here are best resolved by a consideration of the provisions of the Constitution, the Societies Act and the UPA alone’: Chan Hiang Leng Colin(n 19) 681.
- Nguyen (n 2) [36].
- LaGrand Case (Germany v USA) (Merits) [2001] ICJ Rep 466. This case was not directly relevant to Nguyen's case as the US had accepted that by not informing the two accused parties of their right to consular access for 17 years, there had been a breach of art 36(1) of the VCCR, which provides that notification should be done ‘without delay’. Instead, an Australia-People's Republic of China Agreement on Consular Relations (15 September 2000) provided guidelines recommending that notification should be made within three days: see Nguyen (n 2) [39]–[42].
- Nguyen (n 2) [31]–[32].
- ibid [34]–[36].
- ibid [34].
- ibid [36].
- ibid [105].
- ibid [106]. See H Hannum ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995) 25 Georgia J of Intl and Comparative L 287, 317–39.
- [1939] AC 160 (PC) 167–68, cited in Nguyen (n 2) [108].
- Nguyen (n 2) [108].
- ibid.
- [1962] AC 1 (HL). Where statute law is ambiguous, there is a presumption that it should not be interpreted in a way contrary to UK international obligations: R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 (HL). The Singapore Court of Appeal affirmed the proposition that a domestic statute would trump customary international law: Nguyen appeal (n 2) [94].
- 18 F 3d 662 (9th Cir 1994).
- Nguyen (n 2) [107].
- 630 F 2d 876 (2nd Cir 1980).
- [2000] 1 AC 147 (HL).
- [2002] UKHL 19, [2002] AC 883.
- (1992) 175 CLR 1 (HCA).
- E Kuo ‘Confucianism as Political Discourse in Singapore: The Case of an Incomplete Revitalization Movement’ in WM Tu (ed) Confucian Traditions in East Asian Modernity: Moral Education and Economic Culture in Japan and the Four Mini-Dragons (Harvard University Press Cambridge Massachusetts 1996) 294, 303.
- ‘CJ on “Death Penalty” Article’ Straits Times (Singapore 1 October 2003).
Oxford University Commonwealth Law Journal
Volume 4, 2004 - Issue 2