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.

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The Marxist Conspiracy of 1987 - revisiting a legal footnote

Five young activists have organized a gathering at Hong Lim Park to commemorate 21st May 1987. I’m glad to see that there are still many who recall the alleged ‘Marxist Conspiracy' of that era. I was 19 at that time and watched incredulously as a parade of tales emanated from the available media outlets.

There are so many things that we could recollect in relation to those days. Where were we? How did the news unfold? The general skepticism amongst many of us. I’d like to use this occasion to commemorate the day that our judiciary stood tall in the context of the rather limited legal role that it has in the review of executive action.

Chng Suan Tse v Minister for Home Affairs (1998) SLR 132
The case involved Operation Spectrum and the primary issue was over the court’s ability to review the Executive’s decision to detain under the Internal Security Act. It proved to be a landmark decision as the Court of Appeal chose to apply an objective test in assessing the discretion of the Executive instead of applying a purely subjective test as the courts had done in the past. Prior to this case, the position of the courts was to adopt a subjective approach as in the case of Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137.

What was the implication of the Chng Suan Tse decision? The Internal Security Act demands that the as a precondition to detention, the President be ‘satisfied’ as to certain matters. If the test was purely subjective as it was in Lee Mau Seng, there was little that a detainee could do to question the exercise of discretion. If the test was objective as propounded by the Court of Appeal in Chng Suan Tse, then it was possible for the court to assess at least whether objectively the President was ‘satisfied’.

The then Chief Justice, Wee Chong Jin stated in the judgment:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so.”

“It must be clear therefore that the boundaries of the decisionmaker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. There is also, as counsel for the appellant has pointed out, no ouster clause in respect of s 8 or 10 of the ISA. Adopting the objective test in respect of ss 8 and 10 of the ISA would also be consistent with arts 9(2) and 93 of the Constitution. Further, it is, in our view, no answer to refer to accountability to Parliament as an alternative safeguard. As Lord Diplock put it in R v IRC, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 644:
It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge


The Court went on to rule that:

"the President’s satisfaction under s 8 of the ISA and the minister’s satisfaction under s 10 of the ISA are both reviewable by a court of law as:
(1) the subjective test adopted in Karam Singh [1969] 2 MLJ 129 and its progeny can no longer be supported and the objective test is applicable upon a judicial review of the exercise of these discretions; and
(2) although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations; similarly, although the court will not question whether detention was necessary for the purpose specified in s 8(1), the courts can examine whether the matters relied on by the executive fall within the scope of those specified purposes"


Of course, the story did not end there. Parliament duly amended the Internal Security Act in 1989 to nullify the effect of this case in relation to detentions under the ISA. By virtue of s.8B, the law on judicial review with regard to the ISA detentions was brought back to the position in 1971 and by virtue of s.8D the legislative change was to have effect in relation to any proceedings whether commenced before or after the amendment.

Law applicable to judicial review.
8B. —(1) Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply.
(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.
- Act 2/89 wef 30.1.89.

Commencement provision.8D. Sections 8A and 8B shall apply to any proceedings instituted by way of judicial review of any decision made or act done under the provisions of this Act, whether such proceedings have been instituted before or after the commencement of the Internal Security (Amendment) Act 1989.
- Act 2/89wef30.1.89.