I was heartened to learn that Suhakam has stepped forward to urge government intervention in the impending execution of four Malaysians in Singapore, allegedly for drug trafficking.
But let us be clear: this cannot be framed as a plea for mercy, rather one of constitutional integrity.
Both Malaysia and Singapore have long leaned on the case of Ong Ah Chuan v Public Prosecutor, a 1980 decision of the Privy Council on appeal from Singapore.
In that case, the Privy Council, then the highest appellate court of both the Malaysian and Singaporean legal systems, upheld the constitutionality of Singapore’s Misuse of Drugs Act.
It ruled that the statutory presumption of trafficking based on the accused’s possession of a threshold quantity of drugs and the mandatory death penalty did not violate Articles 9(1) or 12(1) of the Singapore Constitution.
The court said such laws were consistent with fundamental rules of natural justice. It also ruled that the constitution allows different classes of offenders to be treated differently, justifying the death penalty for some and not others.
In my considered view, however, the case is flawed. It elevates the statutory presumption, a colonial legal fiction, into something so potent that it strips judges of their constitutional soul — preventing them from exercising true judicial power in accordance with their oath of office.
The legal fraternity in applying the principles derived from that case has failed to appraise the court of the constitutional doctrine embedded in the oaths taken by judges in England, Singapore and Malaysia.
They have failed to address the distinction between parliamentary supremacy and constitutional supremacy.
Neither have they dissected the jurisprudential consequences of the legal fiction brought about by the application of various presumptions of law and fact to criminal cases.
Let me be blunt: Ong Ah Chuan is a notoriously bad decision in any jurisdiction where the constitution is supreme.
It is inconceivable that an English court today would uphold a death sentence based on mere presumption without substantive evidence of trafficking.
To hang anyone on the premise of a legal fiction is to commit a constitutional sin.
During my tenure as a judicial commissioner in East Malaysia, I presided over numerous drug trafficking cases. I found, almost without exception, that the accused in each case did not meet the commonsense definition of a trafficker.
The drugs were expensive, yet the prosecution never once demonstrated a financial trail — no bank records, no transactions — to crown the accused as a trafficker.
What they relied on was legal fiction masquerading as presumption.
The wise Lord Denning always called for commonsense to guide judicial power. Yet in drug cases, commonsense has been conspicuously absent.
The oaths of office used in Malaysia and Singapore are identical. They demand fidelity to the constitution, not blind obedience to statutory presumptions.
In Public Prosecutor v Aluma Mark Chinonso & Anor (2020), I called in the strongest terms for an end to the death penalty based on legal fiction.
As the national human rights institution, Suhakam must take up the cause. It must fearlessly advocate the unconstitutionality of depriving life based on this legal fiction.
I urge the commission to convene a panel of eminent jurists, including from India and the United Kingdom, to deliberate on the matter, including the various points raised in my judgment, which has not been disturbed by the Federal Court.
Singapore tends to routinely reject pleas premised on mercy. But here the challenge is one of unconstitutionality and a violation of human rights path.
That is the path Suhakam and all champions of human rights must take to rid Malaysia and Singapore once and for all of the death penalty premised on legal fiction.
The views expressed are those of the writer and do not necessarily reflect those of FMT.