SINGAPORE — A High Court judge has dismissed an application by Malaysian drug mule Pannir Selvam Pranthaman who was granted an 11-hour stay of execution in May last year to commence judicial review proceedings.

The core issue in the intended judicial review — which can be sought to ensure that the law is not in conflict with the doctrines of rule of law and separation of powers, or inconsistent with the Constitution — is centred on the 31-year-old’s right to life, Pannir’s lawyers argued.

Oral submissions on the application to commence the judicial review were presented in a hearing behind closed doors on Tuesday (Feb 11). In a ruling on Wednesday afternoon, High Court Judge See Kee Oon rejected the application.

Pannir’s lawyers, Mr Too Xing Ji and Mr Lee Ji En from BMS Law LLC, argued that their client has the “fundamental right” to not be deprived of life under Article 9 of the Constitution, which sets out a person’s right to life and personal liberty.

“The process that resulted in the ultimate decision by the President, that the applicant was to be executed and thus deprived of his life, was one that required the strictest adherence to the law,” they stated in written submissions.

“Were it otherwise, the applicant’s constitutional guarantee that his life would only be denied in ‘accordance with law’ would have been rendered illusory.”

THE CASE

Pannir was convicted in 2017 of trafficking 51.84g of diamorphine, also known as heroin, into Singapore through Woodlands Checkpoint in September 2014.

He was sentenced to the mandatory death penalty after the public prosecutor did not issue him a certificate of substantial assistance that could have helped him escape the hangman’s noose.

Such a certificate is given to offenders who substantively assist the Central Narcotics Bureau (CNB) in disrupting drug trafficking activities within or outside Singapore.

On May 23 last year, a day before he was due to hang, the Court of Appeal granted Pannir a stay of his execution.

MAIN AREAS OF CHALLENGE

Pannir’s lawyers set out arguments stating that the judicial review, if allowed, would mount a challenge on three fronts:

• The public prosecutor’s refusal to issue Pannir a certificate of substantive assistance

• The prison’s refusal to grant access to Zamri Mohd Tahir, a drug trafficker who was arrested upon the information Pannir had given CNB

• The Cabinet’s advice to the President to not commute Pannir’s death sentence

On the first challenge, the defence lawyers said the applicant was not served a mandatory death penalty notice at the time of his arrest.

They said he was therefore not given notice that he could save his life by providing substantive assistance when he was arrested. This constitutes a “serious procedural impropriety”, they claimed.

Notwithstanding that, they argued that Pannir gave information to the CNB that led to Zamri’s arrest, which is an “example par excellence” of substantive assistance as defined by the legislature in the explanatory statement to the 2012 Misuse of Drugs Act (Amendment) Act.

Consequently, the public prosecutor’s refusal to issue a certificate of substantive assistance is “irrational, illegal, or both”, the lawyers said.

On their attempt to access Zamri for an interview, the lawyers argued that he could be the defence’s potential witness, but not only did the prison authorities disallow their access to Zamri, they also barred Pannir from speaking to Zamri while in prison.

The Attorney-General’s Chambers, on behalf of the prison, also continued to refuse access, and they said this further confirms that they were withholding access to “force the premature disclosure of privileged information”.

“Their refusal to grant access and their enforced separation of (Pannir) and Zamri were motivated by improper purpose and (is) thus illegal,” they added.

Lastly, the lawyers said there is “reasonable suspicion” that the Cabinet failed to take into account Pannir’s substantive assistance to the CNB in advising the President to allow Pannir to be executed.

The State had refused to confirm exactly when the Cabinet had advised the President to reject Pannir’s petition for clemency, save for saying that it was prior to May 7 last year, they said.

Up to four separate petitions were filed on different dates prior to the Cabinet’s advice, so there is a “real concern” that the Cabinet may not have been privy to the full extent of assistance provided by Pannir, they argued.

“This application is not frivolous or unmeritorious – the applicant’s life is ultimately at risk,” they concluded.

THE ATTORNEY-GENERAL'S SUBMISSIONS

The Attorney-General, represented by a team led by Deputy Chief Prosecutor Francis Ng, argued that the application for a judicial review is “patently unmeritorious”. They added that it does not satisfy the threshold for granting leave to commence judicial review proceedings.

They pointed out that one of three conditions for leave to be granted for the judicial review is that the material brought before the court should disclose “an arguable case” or “a prima facie case of reasonable suspicion” in favour of granting the remedies sought by the applicant.

“Until the applicant has crossed this threshold, the decision-maker is not required to justify his decision,” they stated.

They added that the courts would also require an applicant to adduce evidence to back up allegations that were made.

However, they pointed out that each of the grounds that Pannir relies on is “not made out” either in law or based on the evidence he has adduced.

They called the claim that information Pannir had provided to the CNB amounted to substantive assistance “misconceived and baseless”.

“The applicant has not properly particularised how the alleged illegality, irrationality or procedural impropriety has arisen in this case,” they said.

Pannir has one month to appeal against the dismissal of the application to commence a judicial review.