The accused, Ravinthran, and his co-accused, one Sundar Arujunan, had been arrested on 13 July 2006 for being in possession of significant quantities of cannabis and cannabis mixture.
Despite both defendants being in possession of the same bag containing the drugs, they were charged differently. While Ravinthran was charged with possession of a quantity of controlled drugs that met the threshold which would carry the death penalty, Arujunan had the quantities he was charged for reduced to reflect a non-capital offence.
Mr Ravi had submitted a motion on 9 September 2011 arguing that the prosecution, in prejudicing his client in selecting the charge, had used its discretion in a manner that breached Article 12 of the Constitution – that which pertains to a person’s right to equal protection of the law.
In the 10 January statement, Chief Justice Chan Sek Keong stated that “… in the context of the prosecutorial power, the Prosecution is obliged to consider, in addition to the legal guilt of the offender, his moral blameworthiness, the gravity of harm caused to the [sic] public welfare by his criminal activity, and a myriad of other factors…”. CJ Chan added that mere allegations of unlawful discrimination on the part of the A-G were insufficient to invoke the intervention of the court to review his prosecution and “…in the absence of prima facie evidence to the contrary, the inference would be that the Prosecution has based its differentiation on relevant considerations.”
Deeming there being insufficient evidence to prove the prosecution’s violation of Art. 12, and that evidence on record was insufficient to rebut the constitutionality of the A-G’s use of prosecutorial discretion, CJ Keong dismissed the motion.
Gut-wrenching scenes filled the courtroom upon the announcement of the verdict, as Ravinthran’s wife collapsed to the floor of the gallery, grief-stricken and crying out in tears as her husband remained largely impassive, seated inside the holding pen.
Ravinthran’s only remaining legal recourse now is to appeal to President Tony Tan for clemency, failing which he will be hanged. His co-accused on the other hand had previously been dealt a non-capital sentence of a 20-year jail term and 24 strokes of the cane – for carrying out the very same offence.
Following the judgement, Mr Ravi commented said, “What is worrying in the judgement is that the prosecutor, with wide discretion, appears to have reserved the right to base his decision partly on moral (non-legal) considerations.”
He added, “Giving such wide discretion to the prosecution and virtually denying any discretion to the court in the mandatory sentence system is a clear departure from the progress made in Commonwealth countries.”
Mr Ravi also stressed that since the prosecution’s considerations in exercising its discretion in this case were never disclosed, this lack of transparency was as an impediment to evaluating the validity or adequacy of these very considerations.
The outcome of the case brings to light several implications that we should regard with significant concern. Specifically, the decision of the Court in this case must be given the highest respect and must be regarded as the definitive judgment upon two very important issues.
First, it appears it sanctions the right of the prosecutor to pick and chose his targets for prosecution without giving reasons. It is one thing to give a prosecutor a wide latitude. However to exempt him altogether from giving reasons may be said to be difficult to reconcile with the tradition of transparency and the requirement for reasoned decisions that applies generally in the civil and criminal justice system.
Second, it appears the decision allows the prosecutor to offer one potential criminal a lighter outcome or even a total escape in return for his testimony against another. This takes the concept of plea bargaining (where the State essentially buys an accused’s plea of guilty with a promise to go softer on his offence) to a completely new level – that of buying off one criminal to get a conviction of another. This must raise serious issues of whether the testimony is reliable and of the propriety of the State to be in a position to play off one alleged criminal against another. Arguably it entails the purchase of evidence.
These are not uncontroversial postures for a society based on the rule of law to adopt, and these issues go to the very heart of a fair and transparent criminal justice system.
The apparent judicial imprimatur of such conduct will certainly not end the debate, although it may seal the fate of the unfortunate litigants who have lost this battle.