2 charged for same crime but only one will hang – Prosecutor’s role raises questions

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The two men were charged for the same crime of drug trafficking but because of a technicality, only one of them will be hanged.

On Wednesday, his clemency appeal to the President was rejected. In Singapore, clemency petitions are decided by the Cabinet, and the President has no choice but to accede to it.

The fate of 32-year old Muhammad Ridzuan bin Md Ali is now sealed, pending some miracle, and he will be executed on Friday.

He was arrested along with Abdul Haleem in 2010 for trafficking 72.5g of heroin into Singapore.

Abdul Haleem, however, was spared the death sentence because he was granted the Certificate of Cooperation (COC) by the Prosecutor, while Muhammad was denied one.

Muhammad’s pending execution has thus once again shines the spotlight on what anti-death penalty activists call a flaw in the Misuse of Drugs Act (MDA) – the Public Prosecutor’s powers vis a vis the COC.

In Singapore, the Attorney General is also the Public Prosecutor, unlike in some other countries where the two roles are separate.

Under Singapore’s Misuse of Drugs Act (MDA), a trafficker can be spared the death sentence if he satisfies two criteria:

  1. That his role in trafficking drugs was that of a courier, and nothing more
  2. That the Prosecutor has issued him a COC

The convict should also have helped in “disrupting drug trafficking activities within or outside Singapore.”

The Prosecutor, during the court case, has in fact certified that Muhammad was a mere courier. However, for unknown reasons, the Prosecutor also decided not to issue him the COC which would have allowed Muhammad to apply to the court to have his death sentence commuted to life imprisonment and 15 strokes of the cane, as was the case with Abdul Haleem.

“Despite the finding by the Court that Ridzuan was a mere courier, the Public Prosecutor refused to give Ridzuan a certificate of substantial assistance,” Eugene Thuraisingam, Muhammad’s lawyer, posted on his Facebook page following the president’s rejection of clemency.

“The Public Prosecutor however gave his joint trafficker, Abdul Haleem a certificate of substantial assistance. Ridzuan was therefore sentenced to death, while Abdul Haleem was given a certificate of substantial assistance and sentence to life imprisonment.”

During sentencing by the courts, Abdul Haleem had asked to be given the same sentence as Muhammad Ridzuan, if the latter was sent to the gallows.

The Straits Times reported the exchange between Abdul Haleem and judge Tay Yong Kwang:

Choking with emotion, he [Abdul Haleem] told Justice Tay Yong Kwang: “If you are sparing my life and not sparing his life, I’d rather go down with him.”

But the judge replied: “The court does not have complete discretion to do whatever you want me do.”

Abdul Haleem then pointed out that he and his friend faced the same charges.

The judge told him: “You have certification from the Attorney-General’s Chambers, he does not.”

In effect, the Public Prosecutor now has power over the courts as well: if the Public Prosecutor does not issue a convict with the COC, the courts cannot commute his sentence.

Yet, in the Misuse of Drugs Act (MDA), the Prosecutor’s decision making, in whether a COC is issued or not, is shrouded in secrecy and not even the highest court in the land, the Court of Appeal, can question it, or conduct a judicial review of it unless “it is proved to the court that the determination was done in bad faith or with malice.”

The MDA states:

“THE ISSUE OF THE CERTIFICATE WILL BE DETERMINED BY THE PUBLIC PROSECUTOR IN HIS SOLE DISCRETION. NO ACTION OR PROCEEDING SHALL LIE AGAINST THE PUBLIC PROSECUTOR IN RELATION TO ANY SUCH DETERMINATION UNLESS IT IS PROVED TO THE COURT THAT THE DETERMINATION WAS DONE IN BAD FAITH OR WITH MALICE.”

In short, the Prosecutor has iron-clad, virtually unfettered powers to decide whether a person gets to live or die.

Such dubious decisions, done behind closed doors and with complete non-transparency, can result in inexplicable outcomes, as it is with Muhammad’s case, where two men charged for the same crime can receive exactly opposite punishments.

“Ridzuan told the [Central Narcotics Bureau] who gave him the drugs,” said his sister Noraisah. “He gave them a description, with full name and identification. I feel that this information is quite strong, and I don’t know why they said that they are still not happy with it.”

No one knows why the Prosecutor decided to issue Abdul Haleem the COC, while denying the same to Muhammad Ridzuan because the Prosecutor is not required by law to release or explain his reasons, either to the convict’s lawyers or even to his family.

Everything is decided behind a veil of silence and secrecy.

It is disturbing that a person can be condemned to his death just because he is deemed to not have “substantively assisted” the police in “disrupting drug trafficking activities within or outside Singapore.”

Whether drug trafficking activities are “disrupted” or not depends on so many different factors, most of which would be beyond the control of the inmate.

For example, it would depend on whether the authorities actually act on information provided by the inmate.

It would also depend on whether the authorities take the appropriate action, or are competent in doing so.

And how would an inmate incarcerated on death row in Changi Prison in Singapore be able to “disrupt” drug activities “outside Singapore”? Would this not depend entirely on how the authorities act on the information provided by the inmate?

With the law prohibiting any judicial review or questioning of the Prosecutor’s decision, except when such decision is proved to have been made on bad faith or malice, there really is no way of knowing if the Prosecutor has done the right or necessary thing in acting on the information provided by the inmate.

Clearly, this practice of vesting the Prosecutor with so much power is highly flawed.

His decision and decision-making process are effectively unquestionable, giving him seemingly unfettered authority.

Such absurdity has resulted in decisions which allow one person to be spared death while another, charged for the same crime, is sent to the gallows.

The rule of law insists that decisions, especially those involving capital punishment which are irreversible, must be made according to the law, and must be opened to review or question.

In 2011, lawyer M Ravi filed a constitutional challenge on the case of Yong Vui Kong, which centred on whether the Cabinet’s decision in granting clemency is opened to judicial review.

The Court of Appeal, in its ruling, said “the making of a clemency decision pursuant to Art 22P is now ‘not a private act of grace from an individual happening to possess power … [but] a part of the [c]onstitutional scheme’.”

Article 22P refers to the president’s powers to grant clemencies.

The Court of Appeal said that if “conclusive evidence is produced to the court to show that the Cabinet never met to consider the offender’s case at all, or that the Cabinet did not consider the Art 22P(2) materials placed before it and merely tossed a coin to determine what advice to give to the President, the Cabinet would have acted in breach of Art 22P(2).”

The Court added:

“IF THE COURTS CANNOT INTERVENE TO CORRECT A BREACH OF ART 22P OF THIS NATURE, THE RULE OF LAW WOULD BE RENDERED NUGATORY.”

Would it also not follow that if the courts are unable to intervene and question the Prosecutor’s decision on granting the COC, there is a risk that the Prosecutor could make an erroneous decision based on wrong facts or even on superficial whims which, under existing laws, could result in the death of an inmate?

Yet the law says such decisions “shall be at the sole discretion of the Public Prosecutor… unless it is proved to the court that the determination was done in bad faith or with malice.”

The granting, or not, of a COC by the Prosecutor, to borrow the words of the Court of Appeal, is ‘not a private act of grace from an individual happening to possess power.’

It is in fact from constitutional powers vested in him which should make him accountable, and not protected behind a wall of opacity.

And if he is to be accountable, then surely his decisions must be opened to judicial review.

Why was Haleem Abdul spared death, while Muhammad Ridzuan was not?

How is it that a person can be condemned to death just simply because he is deemed to not have “substantively assisted” the police?

How did we arrive at a law which says that not cooperating with the police is, effectively, a capital offence?