The Right to Legal Representation in Death Penalty Cases: A Resolve Not to be Stifled

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By: M Ravi

Since May 2016 and the filing of the media statements by the Attorney-General’s Chambers and the Ministry of Home Affairs, a community of lawyers have observed a steady increase in the number of discouraging comments by the judiciary towards lawyers who chose to defend their clients in certain types of cases. This is especially apparent in death penalty cases where lawyers represent highly sensitive and emotionally strung defendants, often raising constitutional law points.

No doubt it is important that applicants are disallowed from prolonging matters or filing multiple applications simply to waste judicial time. However, where such cases involve the ultimate punishment, namely, the irreversibility of death, the courts should surely not label any counsel’s attempt to argue as “drip-feeding” or “squandering judicial time”. In the latest case of Prabagaran        (and three others)1 who were before the Apex court on their joint constitutional challenge, the court went a step even further to suggest that “when an application is made after the appeal process has been completed, we expect counsel for the applicant to swear or affirm an affidavit setting out the reasons why the points or matters raised in the application could not have been raised earlier in the appeal proper”. This, I argue would seriously stifle lawyers from accepting last minute instructions from death row inmates or their families and from advancing issues of public importance or matters relating to the particular legal issues in their  cases. Should this go ahead, the move would be unprecedented and one which would be difficult to fathom in any legal circles.

This article highlights recent cases and the remarks that have been made by judges. It comments on the impact these negative comments have on the core role a lawyer to defend and represent his client to the best of his ability. It comments on how the courts ought to be mindful of an applicant’s need to the right to legal representation (more so in end of life cases) and urges Singapore lawyers to forge ahead no matter how “hopeless” a brief seems especially involving the poor and the defenceless.

Prabagaran’s Case

Prabagaran was arrested in April 2012 after 22.24 grams of diamorphine was found inside a car, though not owned by him, was driven by him into Singapore through the Malaysian-Singapore Causeway. Under the law, if any unlicensed controlled drug is found in a vehicle, it is presumed to be in possession of the owner of the car, or of the person who was driving the vehicle. If the person is unable to give a satisfactory and convincing account that he was not aware that the drugs were in his car, he is presumed to be guilty of drug trafficking. Unable to convince the court as to why he borrowed the car or to explain the facts logically, Prabagaran was found guilty by the High Court and then again at the Court of Appeal. Prabagaran’s conviction was based entirely on his testimony and the accounts of government officials involved in the case.  All the other parties and witnesses mentioned by Prabagaran were not produced in court, nor were their statements taken by the authorities. According to Prabagaran’s lawyers, testimonies made by critical witnesses would have made a material difference his defense. Their testimonies would have helped corroborate Prabagaran’s side of the story. This meant that the courts proceeded to sentence Prabagaran to death based on circumstantial evidence only.

Why was the Latest Appeal Made?

Section 33B of the Misuse of Drugs Act (MDA) confers upon the court the discretion to sentence a person, who is convicted of offences punishable by death, to suffer the lesser punishment of life imprisonment where certain statutorily prescribed requirements are met. Section 33B(2) of the MDA sets out two requirements. The first is that the person convicted must prove on a balance of probabilities, that his involvement in the offence was restricted to the acts prescribed in s 33B(2)(a) of the MDA, i.e. that he was simply a drug courier (“the Courier Requirement”). The second, set out in s 33B(2)(b) of the MDA is that the Public Prosecutor (PP) certifies that the person has substantively assisted in “disrupting drug trafficking activities”.

At the trial level, the PP did not issue a certificate of substantive assistance under s 33B(2)(b) of the MDA, and the High Court judge accordingly imposed the mandatory sentence of death. No finding was also made as to whether the applicant satisfied the Courier Requirement. His appeal against his conviction, premised solely on the issue as to whether he had rebutted the presumptions of knowledge and possession under sections 18(2) and 21 of the MDA respectively, was dismissed in October 2015.

The Prabagaran (and three others) latest appeal questioned the constitutionality of s 33B(2)(b) and s 33B(4), as well as the Second Schedule of the MDA. There were, broadly speaking, two main points of challenge. First, it was argued that the two sections were in breach of the constitutional principle of separation of powers embodied in the Constitution of the Republic of Singapore. Second, that the provisions are not “law” capable of depriving the applicant’s life and liberty under Art 9(1) of the Constitution. The primary relief sought was an order setting aside his death sentence and substituting it with a sentence of imprisonment for life, or an order to stay the execution of the death sentence pending his resentencing under a constitutionally valid provision.

A Blatant Attempt at Re-opening Past Cases?

In the Prabagaran (and three others) judgment, the court remarked whether the applicant’s case was even worthy of hearing since the PP had submitted that it was a “blatant attempt at re-opening previous decisions of this court”.

Following Kho Jabing v PP2, the court commented on the “burgeoning number of applications seeking to reopen concluded criminal appeals” and while the court acknowledged that that it had the power to do so, the power should only be exercised where there is “sufficient (new) material on which the court can say there has been a miscarriage of justice.” The court warned that a “seeming legal point which is dressed up as a constitutional issue may not be given much consideration.” The court reiterated that there should be sufficient material that is new in the sense that it has not been canvassed at any stage of the proceedings prior to the Motions and could not have been adduced in court earlier even with reasonable diligence. This criterion of “non-availability” as regards new legal arguments will ordinarily be satisfied only if they concern a change in the law – as determined in the Kho Jabing case.

More Stifling Remarks?

Below are a few more dissuading quotes from judgments:

“Strong reasons must be advanced to explain why a point taken later could not have been made earlier. The courts will not allow themselves to be used by either ingenious counsel or a determined applicant as a means for delaying the conclusion of a case.” – Prabagaran at para 19

“It would be impossible to have a functioning legal system if all legal decisions were open to constant and unceasing challenge … The concern here is not just with the saving of valuable judicial resources (vital though that is), but also with the integrity of the judicial process itself. Nothing can be as corrosive of general confidence in the criminal process as an entrenched culture of self-doubt engendered by abusive and repetitive attempts to re-litigate matters which have already been decided.” – Kho Jabing at para 47

“But, once the processes of appeal and/or review have run their course, the legal process must recede into the background, and attention must then shift from the legal contest to the search for repose. We do not think it benefits anyone – not accused persons, not their families nor society at large – for there to be an endless inquiry into the same facts and the same law with the same raised hopes and dashed expectations that accompany each such fruitless endeavour.” Kho Jabing at para 50

“In our judgment, the filing of the present application at the eleventh hour before the applicant’s scheduled execution in order to prevent the carrying out of a sentence which has been properly imposed by law amounts to an abuse of the court’s processes for collateral motives and amounts to a calculated and contumelious abuse of the process of the court.” – Chijioke Stephen Obioha3 at para 8

Oath Not be Deterred

All lawyers have a duty not to mislead the court, to be professional, well-prepared and competent to represent their clients. They have a duty not to waste the court’s time and be prudent and efficient. Sadly, we have seen some cases (not just Singaporean cases), where lawyers have brought unmeritorious and frivolous claims to court. Often, these are done by ill-prepared or errant lawyers wanting to line their own pockets.

But this article is not referring to such cases. There is nothing unmeritorious nor frivolous about doing one’s professional best to save a condemned man facing death penalty, even when the margin of success is non-existent. To many, Yong Vui Kong’s case4 was seen as a hopeless case too but we strived on and he is alive today. The judiciary and estalishment must also not forget that unlike in other commonwealth countries, which have alternative avenues of addressing miscarriage of justices through institutions such as National or Regional Human Rights Commissions, Parliamentary Ombudsman and other bodies, we have none in Singapore except for the Courts.

Hence, it is not abuse of process by any definition. For lawyers who lose sleep and sacrifice their billable hours, “legal opportunism” is the last thing on their minds. The courts should understand the magnitude and significance of the challenge that these brave lawyers bring, often on a pro bono basis, sometimes even risking their professional reputation with threats of cost orders and disciplinary actions which may ruin their careers. At times, they even bear expenses from their own pockets for filing court documents and depositing the guarantee amount for the appeal costs of the Attorney-General. Perhaps the Law Society as a representative body should take a stand that legal representation in last ditch attempts to save lives in death penalty cases should not be discouraged or be fettered.

Till then, forge forward and a salute to the lawyers who continue to fight tirelessly to save the lives of their clients.

  1. Prabagaran a/l Srivijayan (and 4 others) v PP [2016] SGCA 67
  2. Kho Jabing v Public Prosecutor [2016] 3 SLR 135
  3. Chijioke Stephen Obioha v Public Prosecutor [2016] SGCA 63

4. Yong Vui Kong v Publc Prosecutor [2015] SGCA 11