Mohd Jeefrey bin Ismail was hanged in the early hours of Friday morning, 21 April, at least according to the scheduled execution date given to his family by the Singapore Prison Service.

He was executed after the Public Prosecutor decided that Jeefrey had not “substantively assisted” the Central Narcotics Bureau (CNB) in “disrupting drug trafficking activities within or outside Singapore.”

In Singapore, the authorities do not make public announcements of hangings, the preferred state-sanctioned killing method for those condemned to death. Lawyers for the inmates and anti-death penalty activists often have to guess if the executions have in fact been carried out.

Executions are typically held just before dawn on Fridays.

Jeefrey, 52, was a drug addict and trafficker, or courier, who was arrested in 2012 and subsequently sentenced to death for trafficking in excess of the statutory limit for the drug diamorphine.

The only person who stood between him and the noose was the Public Prosecutor who, through powers vested in him by law, could have spared his life if he had issued a Certificate of Cooperation (COC) to Jeefrey.

The COC would then allow Jeefrey to apply to the courts to have his death sentence commuted to life imprisonment and caning. The courts’ hands would then have been freed to mete out the alternative sentence.

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.”

But this is extremely hard for anyone to prove, given that the Prosecutor is also not bound to release or make known the reasons for his decision.

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

Such dubious decision making can result in inexplicable outcomes, as in the 2013 case of Abdul Haleem Abdul Karim, 30, and his friend, Muhammad Ridzuan Md Ali, 28.

Both men were arrested in 2010, also for trafficking 72.5g of heroin.

In court, 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.”

Abdul Haleem was sentenced to life imprisonment and caning because in the eyes of the Public Prosecutor, he had fulfilled the criteria of having “substantively assisted” the CNB in “disrupting drug trafficking activities within or outside Singapore.”

Muhammad Ridzuan, on the other hand, was deemed not to have cooperated with the CNB to the same extent.

He was thus sentenced to death which left his family wondering what more he could have done to assist the CNB.

“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 is 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 and 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.”

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?

Why was Mohd Jeefrey not similarly issued the COC, as Haleem Abdul was?

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?

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