How come the President so like dat one?

(To increase the font of this essay – hold down the Ctrl key and keep pressing +) This is an interview has been conducted between Harphoon and Missy Dotty (who is a lawyer with a Master’s degree from King’s College in International Law) concerning the recent controversy sorrounding the Vui Kong case and the role of the President in the clemency process.

Q: Dotty how would you respond to the assertion, where it is stated, “It is clear that the framework under the Constitution is such that in situations where the President is empowered to act in his own discretion, the relevant provision provides for the President “acting in his discretion”. This is to be contrasted with Article 22P where a contrary intention appears from the use of the words, “may, on the advice of the Cabinet.”

The question I wish to ask Dotty is does “may” used in this context synonymous with “must” take the advice of the cabinet? Does this mean that the President does not have any role in the clemency process? And if so why is there a need to even keep up appearances?

A: I am sorry, you have raised too many issues for me to be able to respond to each one of them coherently. Allow me to just say this. The issue has never been in dispute. The president cannot act by his own accord when deciding on the matters of clemency.

Q: Not even if the constitution specifies it?

A: I am not so sure the constitution expressly specifies this.

Q: But isn’t it clear to you the provisions of Article 22P, shouldn’t this apply to the clemency process?

A: That is my point, its silent on the matter, hardly clear at all. There may be a need for legal context to clarify the spirit and intent of Article 22P, but I have to insist Harphoon.  I see no provision that either impliedly or expressly states –  the president has the power to act on his own accord. The provisions may require some historical context.

Q: What do you mean by historical context?

A: History plays a preponderant role in determining the actual role of the President when it comes to the clemency process.  Lawyers refer to this as either case law which derives from the doctrine of precedent and constitutional conventions – that is practices that are widely accepted as being the sine quo non in the absence of legal text.

Q: So are you saying the clemency process may be a constitutional historical artifact?

A: “May,” is the key and operative word here. You may need to direct that question to a Constitutional historian instead of a lawyer. All I am saying is the law is steeped in history. And if we really wish to understand how the president has a role in the clemency process, it may be helpful to look at the whole process from a historical context.

Q: Can you give us an example where you have mentioned history may take precedence over the written law to either give or restrict the power of a figure head?

A: Yes certainly. If you look at the constitutional make up of the United Kingdom. The first thing that strikes you is unlike Singapore, there is no written constitution! So this behooves most to ask where does the constitution derive its legitimacy from? Well in the case of the UK, it comes  largely from both case law and convention. Both make extensive use of history.

Q: Could you give us an example of where a figure head has power but is not able to exercise it completely because they are restricted by the power of convention and caselaw?

A: Certainly, if you look again at the UK constitutional make up. On paper, it would appear the monarchy has the final right to either ratify or reject an enabling act that is passed by the legislature in the form of the house of commons – but since convention dictates the role of the monarchy is only ceremonial – although the queen can in theory stymie the passage of a bill through Parliament, she cannot decline the royal assent as it is assumed she would take advice from her ministers.

Q: Are you saying the role of the President has been colored in part by historicism?

A: Yes, I think it’s fair to say that harphyboy. Though I would prefer it if a historian gives it his seal of approval first. But what most people may not realize is Singapore was once part of Malaya. And we were therefore part of the greater Commonwealth. So many of the principle tenets that make up the DNA of our legal framework is really an accretion of British constitutional inheritance, rather than a product of legal evolution. It’s important to bear this in mind, otherwise we run the risk of adopting a presentist attitude –historicism does play a role here, without any shadow of doubt to determine the role of the President and law.

Q: Dotty I am sure as a lawyer who has a speciality in International Law you have followed this case in the internet closely? Tell me where do you think the campaign to save Vui Kong went wrong? How could the message have come across better to most netizens?

A: Yes I have been following this matter very closely. But since I get most of my briefings directly from Singaporedaddy who happens to be our Internet Liaison officer. I can speak only for our little community who number less than 800 or so and not for others in greater blogosphere. Besides our community is already quite cut off from the rest.

I think most of us are confused as to what is the main thrust of the save Vui Kong campaign. None of us can even agree on what are the main issues. To add to the confusion.

Many of the commentators are not legally trained so they may not have the requisite knowledge to navigate through the thicket. I am not trying to be elitist here. Only the law can at times be very misleading even if it appears to be clear, I have personally experienced this where many people have pointed out to me, the law said this. Only for me to explain that it actually meant a completely different thing.

It’s worth emphasizing Harphy Boy, the law lives in the valley of its own sayings. So when a layman tries to decrypt it – at best he is most likely to confuse himself and others, at worst he may simply find himself barking up the wrong tree. Do you understand Harphy?

Q: Yes Missy Dotty. So in your opinion, Mr Ravi and The Online Citizen should have distilled their goal to a few points?

A: Yes that’s terribly clever of you Harphy. Distill is the right word. As what that word implies is boiling everything down to it’s essence.

I think when we talk about essence in the context of mounting a campaign against an existing law like the death penalty – a good place to start is by first coming out with a manifesto to encapsulate all the views from all the camps represented.

As what many may fail to recognize is there are so many vantage points to view this subject from. One for example can view it from the position of Mr Alex Au as he writes about it from Alan Shadrake perspective about the death penalty. Then it can be approached from a humanitarian stand point. Added to all this there is the uncertainty as to whether these activist are against the death penalty or do they just take exception against the Mandatory Death Penalty? And does it apply to only drug offences? Or is it equally applicable to the violent offences?

As you can see Harphy Boy, this is really an awlfully big geography to squeeze into one’s head. So one really cannot blame the average reader from feeling completely disorientated and confused by all of this.

Had these activist come up with a manifesto from the very beginning. I believe they would have been able to offer a compelling case that could have been considered by many on a serious basis.

As it is they were really checkmated by the Brotherhood Liaison. As not only did he perceive this weakness. But he even capitalized on it to deadly effect.

Q: Are you saying as it is, there is no basis to consider it on a serious basis?

A: Of course not Harphy Boy. Are you trying to be evil like Darkness by asking me leading questions? All I am saying it’s very difficult to make out the trees from the forest when things are so foggy. There are no rights and wrongs here. Besides it is very easy for me to talk. But you have to bear in mind that I am not actually in the thick of it..wot?

Q: How do you think TOC could have better handled this matter?

A: From what little I have been able to gather, only 150 turned up. Now this seems small even by our standards. As even if my read club threw a pot luck party. I am sure to get at least 3 or 4 times this number. So I think it is fair to say, TOC alienated many netizens. And the only reason that I can think of is when they censored and deleted the comments of the Liaison officer of the Brotherhood. He is a diplomat. So naturally many people consider this a slight. And when this is done repeatedly, they will of course ask, what else are you deleting and censoring? And what is behind all this? What are you hoping to accomplish?

Of course if you ask TOC they will have their reasons. They may even be valid reasons as to why they have choosen to adopt this attitude. They may even circulate private e-mail amongst a few select bloggers to explain themselves admirably as to why they do this. But TOC should remember, the Liaison officer has been a feature to us for as long as we can remember – even predating the advent of Mr Brown and TOC.

Once you silence a diplomat with under handed arm twisting methods. No matter what the reason. You have already lost so much moral ground that it’s hard if not impossible to recruit the support of the righteous especially if what you are purporting to do is to right a moral wrong. 

You really have to be consistent in your thoughts and actions to delicately manage the public perception. As many people are really watching you.

To be fair to TOC, this may be something the Brotherhood Liaison does not tell people. 

Singaporedaddy is after all a very crafty chap who regularly selects information like chess pieces. But I think his influence should never be underestimated in blogosphere. You may not believe this. But to most sane and educated people, blogosphere is much more than the sum of TOC, Yawning Bread and the Singaporedaily. Much more.

Q: The Brotherhood Press thanks you Missy Dotty…

A: Before, we end this Harphoon. I wish to convey a personal message to Mr Yong and his family – our thoughts are always with all of you. May you all continue to derive strenght and comfort from your faith, family and friends and never despair. Though words, however gentle, can never take away your feelings of loss, my hope is these wishes sent now will help comfort you today, tomorrow and forever. Our thoughts are always with you Vui Kong and your family. And should you require any help in any capacity. Please do write directly to me and I will personally make sure it reaches Darkness. Thank you Harphoon.

The Brotherhood Press 2010