More Transparency Needed – Certifications of Cooperation under the Misuse of Drugs Act

I will be in Kuala Lumpur shortly for a Press Conference, to attend Judicial Review proceedings to be instituted at the KL High Court on Friday and to campaign for another Malaysian who is facing imminent execution in Singapore around the same time as Prabagaran.

Datchinamurthy (D), 32 was sentenced to death last year for drug trafficking. His co-accused, a Singaporean female, whom he was found to have delivered drugs to was spared the death penalty when the Public Prosecutor (PP) granted her a Certificate of Cooperation (COC). The COC, when granted, gives the court a discretion to sentence a person convicted of an offence under s 5(1), being an offence punishable with death under s 33 of the MDA, to life imprisonment and 15 strokes of the cane instead of death if he: (a) proves on a balance of probabilities that his involvement in the trafficking offence was limited to those acts prescribed in s 33B(2)(a); and (b) the PP certifies that s/he has “substantively assisted” Central Narcotics Bureau (CNB) in disrupting drug trafficking activities within or outside Singapore. The Singaporean female co-accused was able to apply to the court to be re-sentenced to life imprisonment.

For some reason, a COC was not extended to D and the PP is not obliged to give reasons why. As previously addressed in Singapore Anti-Death Campaign’s (SADPC) International Court of Justice (ICJ) memorandum submitted to the Malaysian government (http://www.theindependent.sg/anti-death-penalty-activists-…/), section 33B(2)(b) of the Misuse of Drugs Act seems to give the power to the PP (instead of the court) to decide who should live and who should die. This clearly breaches the right to fair trial under customary international law.

There are just too many questions.

There is a dire lack of transparency in how these COCs are granted. With the world watching Singapore’s treatment of those incarcerated for misuse of drugs crimes, is it not time to increased dialogue or establish some clear principles? Should the PP explain why a COC is not granted (or granted)? What does “substantively assisted” the CNB mean? Why does section 33B(4) of the MDA limit judicial review of the PP’s decision on whether to issue a certificate of substantive assistance to only the grounds of bad faith and malice only?

In the current case, why was a Singaporean granted the COC and not a Malaysian? Are male accusers treated differently than women accusers? What were the differences in their level of cooperation with the authorities? Are we not as members of the legal community and as the public entitled to know? There are just too many unanswered questions.

I wish to reiterate that the issue is not whether D is guilty or not guilty but whether he had received a fair trial before he was sentenced to death. I acknowledge the importance of the right of sovereign states to impose their own laws but the question is whether can we pass any laws and assert sovereignty when such laws are inconsistent with international law that involve a foreign national facing death penalty. We learnt of the importance of international law in a hard way when our armoured vehicles were seized in Hong Kong. I’m sure the lives of humans are more precious and the Singapore state has to satisfy that it does not kill someone without according to him due process under international law.

I would like to thank lawyers Surendren, Latheefa and Raul and Lawyers for Liberty for taking up the case of D in Malaysia. D’s mother will be attending the press conference and SADPC will be campaigning alongside her. Mr Leong Sze Hian who is the President of MARUAH will be following me for the Press Conference and I would like to also thank MARUAH for its solidarity and support.