The Supreme Court of New Zealand noted that neither the ICCPR nor the ECHR provide for a right to trial by jury, but that New Zealand law does.
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The Supreme Court of New Zealand noted that neither the ICCPR nor the ECHR provide for a right to trial by jury, but that New Zealand law does.
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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 YongVui 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.
The general issue in this appeal is whether the mandatory death penalty (“the MDP”) ispermitted by the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). The specificissue 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.
Court ruling:
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.
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.
61 First, unlike the Constitutions of the Caribbean States, the Singapore Constitution does not contain any express prohibition against inhuman punishment.
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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 proposa lwas ultimately rejected by the Government.
https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/2010-sgca-20.pdf