Singapore High Court dismisses 36 death row inmates’ challenge against execution delay prevention measures

SINGAPORE: The High Court on Tuesday (5 Dec) dismissed a constitutional challenge against two new provisions aimed at preventing death row inmates from exploiting court processes to delay their executions.

This challenge was presented by 36 individuals facing capital punishment, all of whom represented themselves without legal counsel.

The case specifically addressed the Post-Appeal Applications in Capital Cases Act (PACC Act), which introduces a distinct procedure for certain applications by death row inmates after exhausting their appeal options.

These procedures are outlined in fresh provisions under the Supreme Court of Judicature Act (SCJA).

The PACC Act was passed in Parliament on 29 November 2022, assented to by the President on 27 December 2022, and published in the Government Gazette on 13 January 2023.

However, it has not yet become effective, rendering the new procedure non-operational at this time.

Inmates allege unjust burden imposed by new provisions on applicants

In a supporting affidavit filed for the 36 inmates, Masoud Rahimi Mehrzad, a convicted heroin trafficker, argued that section 60G(7)(d) of the SCJA places an unreasonable burden on applicants.

This section requires applicants to demonstrate a ‘reasonable prospect of success’ to obtain permission for a Post-Appeal Applications in Capital Cases (PACC) application.

Moreover, it dictates that the Court of Appeal must weigh factors, including the potential success of the PACC application when deciding to grant permission.

Mr Masoud argued: “This condition denies an applicant recourse to the processes of the court on grounds of a predictive exercise at the outset of the proceedings. This requirement is onerous, oppressive and in breach of the right to fair trial and access to justice contained in [Art 9 of the Constitution] and inconsistent with [Art 12 of the Constitution].”

Additionally, Masoud criticized the SCJA’s provision that allows the summary dismissal of PACC applications without a formal hearing.

He argued that this prevents applicants from presenting their arguments effectively to the court, especially considering the critical impact these applications have on their lives.

Among the inmates involved in this constitutional challenge are Iskandar Rahmat, convicted in the 2013 Kovan double murder case, Teo Ghim Heng, who committed the murders of his pregnant wife and daughter in 2017, and Syed Suhail bin Syed Zin, convicted in 2015 for heroin trafficking.

Syed Suhail, who was scheduled for execution on September 18, 2020, had his execution halted at the last minute by human rights lawyer M Ravi.

Currently, Syed Suhail is part of a civil litigation suit against the Singapore Prison Service over the release of private letters to the Attorney-General’s Chambers, which has resulted in a stay of his execution pending the outcome of the case.

AG moves to dismiss inmates’ constitutional challenge

In response to the constitutional challenge suit initiated by death row inmates, the Attorney-General sought to dismiss the challenge by asserting that the PACC Act, which the challenge addressed, had not yet taken effect.

Consequently, the provisions of the Act did not presently impact the inmates, thereby undermining their ability to demonstrate an actual or arguable violation of their rights.

Additionally, the AG contended that the provisions in question were in clear alignment with the Constitution, thereby rendering the challenge baseless.

Justice Hoo Sheau Peng, in a written judgment on Tuesday, concurred with the AG’s perspective that the 36 inmates lacked legal standing.

She emphasized that because the provisions had not been legally enforced, they did not impinge upon the inmates’ rights.

Justice Hoo highlighted that the potential future activation of the PACC Act was insufficient grounds to establish legal standing.

Explaining further, she elucidated that the newly established procedure aimed to streamline further applications after exhausting appeals while employing mechanisms to weed out meritless claims.

In this light, she reasoned that the procedure did not infringe upon Article 9.

Justice Hoo concluded that the procedure outlined in the Act was consistent with Article 12, dismissing the inmates’ assertion that it unfairly singled out prisoners facing capital punishment.

“In my view, it is clear that the object of the PACC Act, whether as framed by the AG or by the legislature, is not tantamount to being to introduce the very differentia it embodies. ”

She noted that death row inmates were a specific category with incentives to submit last-minute applications to re-litigate matters, potentially delaying their scheduled sentences.

” Given the grave and final nature of the sentences which PACPs face, they are a class of prisoners who have an incentive to file last minute applications to re-litigate matters which have already been decided, aimed at delaying or frustrating the carrying out of their scheduled sentences. ”

She cited recent instances of such actions by death row inmates, distinguishing them from other prisoners facing non-capital sentences, thus affirming the PACC Act’s intent to address these specific circumstances.

M Ravi raises concerns over lack of representation in death row inmates’ case

M Ravi, an internationally recognised human rights lawyer, in response to the High Court’s dismissal of the inmates’ challenge, took to social media to voice concerns about the lack of legal representation for the 36 death row inmates who argued their cases independently.

“Quite a number of them were my former clients. The adverse personal cost orders I faced when I took up late-stage applications in death penalty cases did cause a chilling effect on the profession.”

Mr Ravi, well-known for his exceptional work in advocating for the underprivileged, criticized the judges and AG for sending a message that undermines trust in the legal system.

“When the state takes away a person’s life, it must allow the opportunity for all avenues to be exhausted given the irreversibility of the death penalty. ”

He said the fact that 36 death row inmates were unrepresented is an indictment on the entire legal profession and a black day for Singapore.

“What has happened to our oath to argue cases without fear or favour? It is clear that it’s a broken system when lawyers are afraid to represent death row inmates and this state of affairs puts the entire profession into disrepute,“ Mr Ravi argued.

On 14 May 2021, The Court of Appeal ordered Mr Ravi to pay the prosecution personal costs of S$5,000 over an application he made in the case of a Malaysian drug trafficker on death row.

The three-judge court stated that Mr Ravi’s conduct was “egregious”, “improper” and even “grandstanding”, as he chose to advance an unmeritorious application and incurring “unnecessary costs”, and highlighting various arguments “to see what would stick”.

On 25 May 2022, Mr Ravi and another lawyer, Ms Violet Netto were ordered to pay S$20,000 in costs to the Attorney-General’s Chambers (AGC) in a last-ditch attempt to halt the execution of Malaysian drug trafficker Nagaenthran K. Dharmalingam.

The Union Internationale des Avocats (UIA-IROL) issued a strongly-worded statement on 3 May condemning the suspension of Mr Ravi by the Singapore Supreme Court over his public criticism of the Singapore prosecution and the Law Society of Singapore in the context of representing a client facing a death sentence for drug-related offences.

UIA-IROL’s statement also expresses deep concern over the chilling effect of misconceived disciplinary proceedings, resulting in lawyers being unwilling to represent death row convicts. UIA-IROL notes several cases where persons facing imminent execution appeared unrepresented.