International law in Yong Vui Kong’s case

19 Jun

According to the latest updates from Malaysiakini (reproduced in The Death Penalty in Singapore blog), the Malaysian High Commissioner is expected to visit Malaysian, Yong Vui Kong, who is currently on death row in Singapore. The latter’s Singaporean lawyer, M Ravi, had called for a press conference in Malaysia claiming that Vui Kong was denied clemency as a result of ‘flawed and illegal’ process. In particular, he was referring to two specific incidences. In the first place, the Singapore Law Minister had commented on Vui Kong’s execution prior to the Court of Appeal judgement. The Attorney- General also went on to state that clemency decisions lie with the Cabinet while the President ‘exercises the prerogative of mercy’

While the Malaysian government is seen to be acting now, Ravi’s appeal to the former to bring the matter to the International Court of Justice may turn out to be more difficult than it seems. According to the Online Citizen,

‘… Mr Ravi [is] asking the help of the Malaysian government to intervene and seek a ruling from the International Court of Justice to ascertain if the comments made by Singapore’s minister and the Attorney General had “[offended] the rules of natural justice, due process and the Constitution which itself grants the right to seek clemency from the President.’

There are various reasons why the ICJ may not interfere in this matter:

1. The ICJ may not be legally qualified to decide on this matter since its ‘role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies’. Ravi’s arguments that the AG comments offends ‘rules of natural justice, due process and the Constitution’ are legal philosophical principles but not international law per se.

2. Even if the Malaysian government were to go ahead and sought to bring the matter to the ICJ, matters referred to the Court requires the consent of both parties. In this case, it is highly unlikely that the Singapore government would consent to the matter being adjudicated in the international court.

3. Lastly, and this relates to the first reason, there is simply no sound international legal basis based on the grounds that Ravi has suggested.

Given these limitations, the grounds of appeal for Vui Kong through ICJ is not however entirely pessimistic.

There is another possible avenue for his legal advocates to bring the case to the same court.

The Malaysian government could bring the matter up to the ICJ based on the violation of the Vienna Convention on Consular Relations (VCCR) which was brought up in the Nguyen Tuong Van case in 2005.

According to the Singapore Law Academy, the Singapore government could not consider the ICJ case of ‘Avena and other Mexican Nationals (Mexico v United States of America) (31 March 2004, ICJ General List No 128) (“the Avena case”) since its judgment ‘was delivered 11 days after the Grounds of Decision of the trial judge [in Singapore] were released’.

Since this is the first time that Vui Kong would be visited by a Malaysian consular representative, his case is similar to the Avena case where Mexican nationals on death row did not meet up with their own representatives either. In any case, the ICJ ruled against the U.S.

According to the American Society of International Law, the ICJ decided that ‘the U.S. had failed to meet the notification obligations of Article 36’ and that the U.S. has to ‘give additional “review and reconsideration” of the cases “by means of its own choosing’.

Specifically, as the International Justice Project wrote,

‘the ICJ held that in all 51 cases, the United States had breached its obligations under Article 36(1)(b) to inform detained Mexican nationals of their rights, and to notify the Mexican consular post of their detention. In 49 of these cases, the ICJ found that the United States had violated its obligations under Article 36(1)(a) to allow free communication and access between Mexican consular officers and Mexican detainees, as well as its obligation under Article 36(1)(c) concerning the right of consular officers to visit their detained nationals. In 34 cases, including Medellin’s, the ICJ held that the breaches of Article 36(1)(b) also violated the United States’ obligation under Article 36(1)(c) to enable Mexican consular officers to arrange for the legal representation of their nationals. On the question of remedies, the ICJ affirmed its earlier ruling in the LaGrand  Case holding that where there has been a breach of Article 36 rights, the United States must allow the review and reconsideration of the conviction and sentence. The Court considered “that it is the judicial process that is suited to this task”. Contrary to the argument of the United States, the Court stated that consideration by way of executive clemency does not suffice in view of the fact that the clemency process, as currently practiced in the US does not appear to meet the requirements and it is therefore, not sufficient in itself to serve as an appropriate means of “review and reconsideration” ‘.

U.S. response to the ruling infers the influence of the Court. The former Secretary of State, Condoleezza Rice, would later inform the U.N. Secretary General that America  was withdrawing from the Optional Protocol to the VCCR. This means the U.S. is no longer bounded by the decisions of the ICJ based on claims made on the VCCR.

The U.S and Mexican disputes brought to the ICJ shows the relevancy of international law and how it might be applicable to Vui Kong’s case. To summarise,

1. Both Singapore and Malaysia are signatories or have acceded to the VCCR.

2. There is a better chance that the ICJ may adjudicate Vui Kong’s case since it is based on international law – customary and treaty.

3. There is a precedent case in Avena which may compel the Singapore government to reconsider the appeal/ clemency. This is in light of the Nguyen’s case which was decided much earlier than the ICJ ruling of Avena. The Singapore government would now have to consider the ruling in Avena.

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One Response to “International law in Yong Vui Kong’s case”

  1. contrarian July 21, 2010 at 12:40 am #

    Finally, a learned opinion on this matter by someone who knows public international law!

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