For Want of a Better Title

The Power of Clemency

So there’s been a lot of talk about the Presidential power of clemency and where the decision making powers lie.

Justice S Chong has merely restated what most law students already know (assuming they were paying attention in Constitutional law). The question is whether Singapore’s situation is unique or it shares this common heritage with it’s Commonwealth brethren.

First we should look to our Malaysian friends because the Singaporean constitution was copied of the Malaysian Constitution (the 1963 one). Although both Constitutions have since gone on to develop in their own special ways.

[Malaysia] Article 40a (1)  In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

[Singapore] Article 21. (1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.

As can be seen the two articles are similar in their first part. It seems the Yang di-Pertuan Agong is also bound by the advice of the Cabinet.

[Malaysia] Article 42 (1)The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur and Labuan; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.

The current Malaysian Constitution differs in wording from our own Article 22P. However if you look at Article 42 (11):

[Malaysia] Article 42 (11) For the purpose of this Article, there shall be constituted a single Pardons Board for the Federal Territory of Kuala Lumpur and the Federal territory of Labuan and the provisions of Clauses (5), (6), (7), (8) and (9) shall apply mutatis mutandis to the Pardons Board under this Clause except that reference to “Ruler or Yang di-Pertua Negeri” shall be construed as reference to the Minister responsible for the Federal Territory of Kuala Lumpur and the Federal Territory of Labuan.

The Yang di-Pertuan Negeri are supposed to be advised by a Pardons Board, but that role of “Yang di-Pertuan Negeri” is supplanted by a Minister for the Federal Territories. So if we read all the provisions highlighted together, Malaysia allows the Yang di-Pertuan Agong to grant pardons, but under the advice of the Cabinet, with the Minister in charge of Federal Territories acting on the Agong’s behalf as Chairman of the Pardons Board.

So if Yong were caught in Malaysia (his own country), the situation would be the same. Somehow it is doubtful the Malaysian government would argue that the Agong was free to act on his own and can choose to ignore their advice.

Ok. So maybe we’re still not convinced that under the precedent from our own Constitution and from the Constitution closest to us, the President must act under the Cabinet’s advice and is not free to choose. We should look at the parent constitution of both Singapore and Malaysia, which would be the Indian Constitution and also the English constitutional practice on clemency.

What has been discovered comes from the Indian Legal Service (here)

Their take on the current position on Pardon in the UK

At present, the monarch exercises the power on the advice of the departmental minister the Home Secretary

It appears that the decision is the Home Secretary’s and the judicial review challenges have been made towards the Home Secretary’s decision.

Their take on the Indian position

A worrying trend is respect of the President’s power of pardon is the growing tendency of successive Presidents to disregard the advice of the Council of Ministers in the exercise of this power. Former President A.P.J. Abdul Kalam inherited 12 pending mercy petitions from his predecessor which grew to 20 in his tenure . Despite recommendations for rejection of the same by the Home Ministry, he rejected only 1 petition in his 5 yr tenure – that of Dhanonjoy Chatterjee whose mercy petition had already been rejected by two former Presidents, Shankar Dayal Sharma and K.R. Narayan. The Supreme Court has held in Maru Ram and Kehar Singh that the power under Articles 72 and 161 of the Constitution is to be exercised by the Central and the State Governments and not by the President or Governor on their own. A move by successive Presidents to act on their own jeopardizes the Constitutional scheme and the Court may soon be called upon to decide whether such action furnishes an additional ground for judicial review. Such a contention was already raised in Satpal v State of Haryana which the Court rejected on evidentiary grounds without going into the question as to whether it would be a pardon could be judicially reviewed on this ground.

So it seems that the Indian Legal Service considers it worrying that the Indian President is not following the advice of the Cabinet, and worry that soon the situation may call for a judicial review. They are also of the opinion in the UK the Queen acts with the Home Secretary’s advice.

I checked the Canadian position to see what the practice was:

The Governor General or the Governor in Council grants clemency upon recommendation from the Minister of Public Safety and Emergency Preparedness or at least one other minister

[Note: The Governor in Council is basically the Cabinet.]

I cannot find the Australian position on the Royal Pardon.

From what we can see, the Head of State’s prerogative for Pardon is conditional on the advice of the Cabinet. In Malaysia, Singapore and the UK, the Head of State generally follows the advice of the Cabinet, while in India the Head of State has begun to stray from the trend. It appears that recent Presidents have been bucking the precedent set by their predecessors. So far there have been no judicial reviews on the matter of if the Indian President is bound to act according to the advice of the Cabinet. There appears to be no similar provision to our Article 21 in the Indian Constitution. This must mean that the drafters of the Malaysian Constitution felt it was important enough of an English constitutional practice to place it in their new Constitution, which our own Constitution then adopted.

It appears to me that the practice amongst our Commonwealth brethren is similar to ours. The Head of State take advice from the Cabinet or a member of the Cabinet; this advice is more like an instruction. While the Pardon comes from the font of the Head of State, the decision lies with the Cabinet or particular Minister. So while it may appear rather surprising or dubious from the simple reading of the Constitution, the practice has been that the Head of State acts on the advice of the Cabinet/Minister. The practice was written into our Constitution in Article 21. “Advice” is more than just a considered opinion; it is followed. The probable reason is that the Head of State in a Westminster style government is generally not supposed to make any decisions, but merely act as the “dignified” bit of the constitution, while the Government (Cabinet) is the “efficient” bit of the constitution [See: Walter Bagehot, In Defense of the English Constitution].

It’s up to the individual to come to their own conclusions on whether this practice is a fair one. While the Presidency in Singapore is elected, the idea was for an “economic caretaker” President, not a political active one. It was not an adoption of the American Presidential model, but a modification of the Westminster model. The President in Singapore’s case is a reactive and not a proactive one.