Nguyen Tuong Van
114
andYong Vui Kong,
115
and the idea of a fair trial inRe Gavin
Millar QC.
116
The courts will apply CIL norms which are ‘clearly and firmly established’,^117
though these are not self-executing and will have no effect unless first ‘accepted and
adopted’ as part of domestic law by the courts, by declaring or applying CIL norms.
Sans judicial recognition, the CIL norm ‘would merely be floating in the air’.^118
While the Court of Appeal inPPv.Nguyen Tuong Van^119 accepted that Article 5
of the UDHR, which prohibits torture and cruel and inhuman punishment
(TCIP), was a CIL rule, it rejected the argument that the method of execution,
death by hanging,^120 was unconstitutional as there was no ‘settled view’^121 that this
violated Article 5. The US decision ofCampbellv.Wood^122 was cited in support, as
was a UN report^123 indicating there is no CIL norm prohibiting the death penalty
in general. The figures show the number of states retaining the death penalty
(seventy-one) was almost equal to the number of abolitionist states (seventy-seven).
Further, most states administer the death penalty ‘by hanging or shooting’.
124
The Court of Appeal agreed with the High Court that even if ‘death by hanging’
violated a CIL norm, a domestic statute like the MDA would prevail against the
CIL norm in the event of inconsistency. The Court of Appeal inYong Vui Kongv.
PP
125
confirmed this implication that CIL within the Singapore legal order has the
rank of a common-law norm, lacking constitutional status.
126
Here it was argued
that the mandatory death penalty itself violated Article 5 of the UDHR such that
MDP legislation was not ‘law’ for the purposes of Article 9 ( 1 ), which was read to
refer to a law consistent with CIL. It was dehumanising as it prevented the judge in
sentencing from considering mitigating factors.
The court distinguished other Commonwealth decisions as these dealt with the
interpretation of constitutional clauses prohibiting TCIP, which had no Singapore
equivalent, and so did not speak directly to the meaning of ‘law’ in Article 9 ( 1 ).^127
(^114) PPv.Nguyen Tuong Van[ 2004 ] 2 SLR 328 ;Nguyen Tuong Vanv.PP[ 2005 ] 1 SLR 103.
(^115) [ 2010 ] 3 SLR 489 (C.A.).
(^116) [ 2008 ] 1 SLR 297. Art. 10 UDHR was invoked to argue that the equality of arms was integral
to a fair trial: see Thio Li-ann, ‘Reading rights rightly: the UDHR and its creeping
influence on the development of Singapore public law’ ( 2008 )SJLS 264.
(^117) [ 2005 ] 1 SLR (R) 103 at 126 ,[ 88 ].
(^118) Yong Vui Kongv.PP[ 2010 ] 3 SLR 489 (C.A.). (^119) [ 2004 ] 2 SLR(R) 328.
(^120) Section 216 of the Criminal Procedure Code states that death sentences are to be carried
out by hanging.
(^121) [ 2004 ] 2 SLR(R) 328 at 360 [ 107 ]. (^12218) F 3 d 662 ( 1994 ).
(^123) UN Commission on Human Rights, ‘Question of the Death Penalty: Report of the
Secretary-General Submitted Pursuant to Commission Resolution 2002 / 77 ’, UN ESCOR,
59 th Sess., UN Doc E/CN. 4 / 2003 / 106 ( 2003 ).
(^124) [ 2005 ] 1 SLR (R) 103 at 128 ,[ 92 ]. (^125) [ 2010 ] 3 SLR 489.
(^126) Following the English approach inChun Chi Cheungv.The King[ 1939 ]AC 160 at 167 – 8 ;
Collco Dealing Ltdv.Inland Revenue Commissioners[ 1962 ]AC 1.
(^127) Yong Vui Kongv.Public Prosecutor[ 2010 ] SGCA 20 at [ 50 ].