A mother is suing the federal government to compel Putrajaya to institute proceedings against Singapore at the International Court of Justice over the island republic's decision to hang her son, S Prabagaran, on drug trafficking charges.

V Eswary, in her application for judicial review, also sought a declaration that the Malaysian government was legally obliged to protect Prabagaran's right to a fair trial as well as the right to life and liberty as stipulated in the Federal Constitution.

The suit was filed with the Kuala Lumpur High Court this morning. Eswary was represented by N Surendran, Latheefa Koya and Melissa Sasidaran.

Surendran said this form of judicial review was a first. He added that Malaysia has an obligation towards the treatment of its citizens abroad.

Prabagaran, 29, has already exhausted all his legal avenues for appeal in Singapore. However, there is still some room for doubt in his conviction, following certain evidence left out during his trial.

In Eswary's affidavit in support, she said her son was convicted by the Singapore High Court under Section 7 of the Misuse of Drugs Act (MDA) on July 22, 2014 for allegedly trafficking in 22.24 grammes of diamorphone.

The following year, the Court of Appeal upheld his conviction and sentence.

He then went to the Court of Appeal again, filing to re-open his appeal to set aside his death sentence but his motion was dismissed on Dec 2 last year.

Right to fair trial affected

According to Eswary, her solicitors believe the court may impose a life imprisonment sentence, instead of the death penalty, if the Singapore public prosecutor certifies that the accused had assisted the Central Narcotics Bureau under Section 33B (2) (b).

“In my son’s case, the Singapore prosecutors did not certify this and consequentially Prabagaran was sentenced to death,” she said, adding this affected her son's right to a fair trial.

She further said in her affidavit that Section 33B (2) (b) of the MDA is in breach of fundamental rules of natural justice as Prabagaran was denied any notice on the essential factual allegations considered and relied upon in deciding the certification of substantive assistance under that section, and he was also denied any opportunity to have his case heard before an independent and impartial tribunal.

Eswary further claimed that the section is also incompatible with the rule of law as the discretionary powers by Singapore prosecutors are justiciable.

“I am advised by my solicitors that the obligation to provide a fair trial for my son is part of customary international law that binds all states,” she said.

This can be seen in Articles 14 and 15 of the International Covenant on Civil and Political Rights, which is part of customary international law binding both Singapore and Malaysia.

She said Malaysia, in the exercise of diplomatic protection of its nationals, is entitled to full reparation for the wrongs done in the form of annulling, setting aside or otherwise depriving of full force and effect of the conviction and sentence on her son.

Eswary said she submitted a memorandum to the Malaysian government at the Malaysian High Commission in Singapore on Dec 21 on her son's behalf for the case to be referred to the ICJ, but there has been no reply to date.

Surendran said the action does not infringe Singapore's jurisdiction as this involves a Malaysian citizen, and he further cited a case brought by the Mexican government against the United States, where its citizens who are on death row were denied a Mexican legal representative as a basis for action by the ICJ in 2004.

Last week, Eswary appealed to Prime Minister Najib Abdul Razak and the government to intervene in Prabagaran's case.