Wednesday, January 11, 2012

Death by prosecutorial discretion

The rather uncomfortable fact surrounding the mandatory death penalty for drug trafficking in Singapore is the fact that the presumption of trafficking operates on the basis of the possession of a specified quantity of a prohibited drug. Prosecution does not prove that you are a trafficker. Prosecution proves that you are in possession of a specified quantity of drugs. The law artificially designates you are a trafficker and you stand to be convicted if you cannot prove otherwise.

Firstly, the reversal of the burden of proof (i.e. making the Defendant prove certain facts instead of the Prosecution) on its own raises questions of the right of a private citizen to a fair trial. There may be justifiable reasons for such reversals in limited situations. I am not opposed to reversals of the burden of proof on all occasions. But, the use of this evidential technique in drug trafficking cases, where the failure of the defendant to discharge his burden places him on death row, cannot be described as anything other than a form of injustice. That injustice is, of course, firmly a part of our Misuse of Drugs Act.

Complicating this injustice enshrined in our statute books is the application of prosecutorial discretion. Let me make this clear. I am not opposed to the exercise of discretion by the prosecution. It is a necessary feature of every mature legal system that discretion be given to prosecuting bodies to decide on whether to prosecute at all or to prosecute for any number of given offences. It is also not uncommon that if a person had stolen a mobile phone and a wallet, he is then charged only for the theft of the mobile phone. Such exercise of prosecutorial discretion is not considered as odd, exceptional or an abuse of process. In fact, it is a necessary feature of the proper administration of justice that a prosecutor should be able to exercise discretion.

But, the difference between charging a person for the theft of a mobile phone and a wallet as opposed to charging him for the theft of a mobile phone alone is not substantial. On the other hand, the difference of 0.01g of cocaine in a charge sheet for a drug trafficking offence is as dramatic as either having a noose around your neck or being granted what is effectively a 'prosecutorial pardon'.

This stark difference was played out in the case of Ramalingam Ravinthran. This was a case where his co-accused was charged with trafficking in 499.99g of cannabis and 999.99g of cannabis mixture conveniently shy of the mandatory death penalty by 0.01g. That is just decimal points away from death. Ramalingam himself was charged for the trafficking of quantities that triggered the death penalty. In the end, the facts were such that the charges arose from a single bag containing 5,560.1g of cannabis and 2,078.3g of cannabis mixture. Not only did the prosecution artificially slice the contents of the bag by charging the defendants in the way it did, it also placed one man on death row whilst granting the other his life.

The Court of Appeal has delivered its verdict in the Ramalingam case. Based on the Straits Times report it is not entirely clear as to what was the precise ambit of the decision. It is reported: "IT IS not unlawful for the Attorney-General to artificially reduce the amount of drugs specified in a trafficker's charges, to differentiate from those of his accomplice. Nor is it unconstitutional."
On the other hand, it also reported: "Still, the exercise of prosecutorial discretion is subject to legal limits - the A-G cannot act arbitrarily. This means the A-G must ensure like cases are treated alike. And in cases where several offenders are involved, the A-G must not unlawfully discriminate against an offender."

It is difficult to surmise from the news report itself as to the precise position of the Court. I would have to read the 48 page judgment itself to ascertain the legal position.

I gather roughly from the report that the court has gone for the position that the power of the prosecution to exercise discretion is lawful and constitutional. However, the manner in which such discretion is exercised may be called into question. If that is indeed the position, the decision should be welcomed. (I say this fully aware of the fact that it provides no comfort to either Ramalingam or his family.) It prevents arbitrary decision making on the part of the prosecution and forces prosecuting bodies to consider carefully their reasons before differentiating between two defendants in the same case or for that matter (arguably) two defendants in entirely separate cases where the circumstances might be similar.

I shall read the judgment first before commenting further on this case.


Subra said...

I am still hunting for the judgment online. All the second hand reporting I have read so far is unsatisfactory.

Anybody out there with access to the judgment?

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