JUDGMENT

Hanipah Farikullah J:

Introduction

[1] The applicants in this application ("Prabagaran") and the applicants in the application for judicial review No WA-25-24-02-2017 ("Datchinamurthy"), collectively known as "the applicants" seek leave to apply for:

i) An order of mandamus directing the respondents to institute proceeding against the Republic of Singapore in the International court of Justice (ICJ) in the case of the 1st applicant, a Malaysian convicted in Singapore who is facing the death penalty, for appropriate reliefs including but not limited to annulling or otherwise depriving of full force or effect the conviction and/or sentence of the applicants, pursuant to art 35, art 36, and art 41 of the Statute of the International court of Justice (ICJ).

ii) A declaration that the respondents are legally obliged to protect, and give effect to the applicants' right to a fair trial and/or right to life and liberty.

[2] The applicants also applied to amend to include the following reliefs:

i) A declaration that the respondents have a duty to take all reasonable steps to uphold and protect the rights of the 1st applicant.

ii) A mandamus order directing the respondents, in carrying out their duty to uphold and protect the rights of the 1st applicant, to make appropriate diplomatic representations to the Government of Singapore.

[3] By consent, the applicants and the Senior Federal Counsel acting for the Attorney General Chambers agreed for the two applications to be heard together as the applications involve similar facts and law.

[4] In these cases, the applicants challenged the respondents' decision in failing to institute proceedings in the ICJ, or make diplomatic representations.

[5] Both the applicants ie Prabagaran and Datchinamurthy were separately convicted for drug trafficking under Singapore's Misuse of Drugs Act (Cap 185, 2008 Rev Edn) (MDA) and are currently on death row. They have exhausted all their appeals.

[6] It was submitted for the applicants that the reliefs prayed for in these applications do not interfere with policy decisions of the respondents but to compel the respondents into taking lawful steps to protect the life and liberty of the applicants.

The Applicants' Case

i) The Respondents Have A Duty Under Article 5 Of The Federal Constitution To Protect The Life And Liberty Of Its Citizens

[7] It was contended for the applicants that based on art 5 of the Federal Constitution, the applicants are guaranteed constitutionally to receive a fair trial. In support of his contention, the learned counsel for the plaintiff relied on the Federal court's decision in ; [2009] 5 MLJ 301; [2009] 5 CLJ 631; [2010] 2 AMR 245.

[8] The learned counsel for the applicants submitted that right to a fair trial was breached by the State of Singapore in both the cases of the applicants due to the operation of s 33B(2)(b) of MDA which infringed the doctrine of separation of powers as it transfers from the judiciary to the Public Prosecutor the power to determine whether or not the applicants receive the sentence of death or life imprisonment.

ii) The Respondents Can Be Compelled To Refer Case To ICJ Or Make Diplomatic Representations

[9] The applicants relied on the Prosecutor v. Zlatko Aleksovski (Case No: IT- 95-14/1-T) to demonstrate that the right to a fair trial is guaranteed as part of Customary International Law.

[10] Based on the above principles, the learned counsel for the applicants submitted that the court can compel the respondents to protect the fair trial rights of the applicants by approaching the ICJ for remedy. Such an order was granted by the Gujarat High court in Jagjit Singh Aurora & Ors v. Union of India [2012] 1 GLH 362:

"In our opinion, the act of approaching the International court of Justice is not an instance of third-party-mediation but one of enforcement of the right of the State to have its imprisoned soldiers returned back to their motherland and to enable them to live with dignity, an obligation case upon the Stat