Singapore court rejects admission of foreign King’s counsels for death row cases

The Singapore High Court has issued a ruling denying the applications of two prominent King’s Counsel, Mr Theodoros Kassimatis from Australia and Mr Edward Fitzgerald from Britain, for ad hoc admission to the Singapore Bar, affecting their ability to represent four drug traffickers currently on death row.

In his judgment dated 30 January, Justice Woo Bih Li highlighted the lack of “special reasons” to grant the applications for ad hoc admission. Despite the significant legal backgrounds of Mr Kassimatis, who has been admitted as a barrister and solicitor since 2001, and Mr Fitzgerald, a Queen’s Counsel since 1995, the court deemed their expertise insufficient for this particular case.

Mr Kassimatis aimed to represent Jumaat Mohamed Sayed and Saminathan Selvaraju, while Mr Fitzgerald sought to advocate for Datchinamurthy Kataiah and Lingkesvaran Rajendaren. All four inmates, convicted of heroin trafficking and sentenced to death between 2015 and 2018, had their appeals dismissed by 2020. Their constitutional challenge against certain burdens of proof under the Misuse of Drugs Act was also rejected by the High Court on 25 November 2022.

Justice Woo, in his judgment, expressed, “The mere fact that the case raised issues of public importance was not sufficient to admit the two foreign lawyers.” He also discussed the unsuccessful attempts to engage local counsel, noting that two local lawyers believed the challenge lacked merit. This viewpoint significantly influenced his decision, suggesting a contradiction in admitting foreign lawyers under such conditions.

The court’s decision fits within a larger framework of legal challenges in Singapore, particularly concerning late-stage appeals in death penalty cases.

On 25 May 2022. the High Court ordered lawyers Mr M Ravi and Ms Violet Netto to pay S$20,000 for the last ditch appeal of Malaysian drug trafficker Nagaenthran K. Dharmalingam. On 23 June 2022, the High Court ordered Mr Ravi and his supervising solicitor, Cheng Kim Kuan, to pay S$20,000 in costs for a failed application by 17 death row inmates who alleged ethnic bias against them, which was deemed “frivolous, vexatious, or an abuse of process”.

These punitive cost orders have raised global concerns about barriers to justice for death-row inmates, impacting their access to effective legal counsel and their right to a fair trial.

Amidst this backdrop, the amendment in November 2022 to the Post-Appeal Applications in Capital Cases Bill, which allows the Court of Appeal to determine abuse of process in capital cases, has further complicated the representation of death row inmates.

Lawyer Johannes Hadi from Eugene Thuraisingam LLP, in an earlier statement to Today, expressed concern about the “unintended consequences for the criminal justice system as a whole,” potentially deterring pro-bono legal representation in such critical cases.

In response to Gutzy’s queries on the court’s ruling, suspended human rights lawyer M Ravi, known for representing death row inmates in their final appeals, conveyed his disturbance: “I am deeply disturbed at the Singapore judiciary’s refusal to allow two King’s Counsel to represent death row convicts in an appeal.”

“Justice Woo has said that because local counsel think that’s there’s no merit to the case, foreign counsel would also be unable to argue it. Why would two King’s Counsel volunteer to take on the case if there’s really ‘no merit’?”

He questioned the judicial approach to foreign specialists, advocating for the unique skills they offer, particularly in cases like Gobi Avedian’s successful capital appeal.

“When I challenged Gobi Avedian’s capital appeal, many senior criminal lawyers told me it was a hopeless case. Amanda Clift-Matthews, a barrister at Edward Fitzgerald’s chambers, encouraged me to fight,” recalled the lawyer who won Singapore’s first capital case in legal history where a death sentence was revoked on review by the Court of Appeal after exhausting all usual avenues of appeal.

Mr Ravi further emphasized the disparity in the court’s attitude towards foreign counsels in commercial versus capital cases and raised concerns over the chilling effect of personal cost orders on Singaporean criminal lawyers, especially in constitutional law and judicial review.

“Even if there was a chance that the KC could have saved their lives, the judiciary should have admitted them. Our courts should take the utmost care to prevent a deprivation of life, no matter how slim the possibility of success might be. This is not a game of cards. This is your life and mine,” stated Mr Ravi.