S'pore Court of Appeal rejects 36 death row inmates' PACC Act constitutional challenge

Source: Gutzy Asia
Author: Yee Loon

SINGAPORE: The Court of Appeal of Singapore on Wednesday (27 March) dismissed an appeal lodged by 36 death row prisoners challenging two new provisions introduced by a law aimed at preventing death row inmates from exploiting court processes to delay their executions.

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.

In December 2023, a High Court judge dismissed the inmates' challenge, ruling that they lacked legal standing to bring the challenge since the provisions were not yet in operation and thus did not affect the rights and interests of the 36 inmates.

Justice Hoo Sheau Peng, presiding over the case at the time, made this determination.

The 36 inmates, who were not represented by a lawyer, argued that two of the provisions were "onerous," "oppressive," and inconsistent with the rights to a fair trial and access to justice as outlined in Article 9 of the Constitution.

Subsequently, the inmates appealed against the High Court decision.

On Wednesday, the inmates participated in a Zoom hearing before the Court of Appeal, which was composed of Chief Justice Sundaresh Menon and Justices Steven Chong and Belinda Ang.

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.

During the hearing, the Chief Justice clarified to the inmates that the Act was not currently in force and thus did not impact any applications they had filed.

Masoud expressed the inmates' uncertainty regarding the enactment timeline of the law.

The Chief Justice responded that there was no hindrance to them filing the challenge once the Act became effective.

Inmate Iskandar argued that the Act would be enforced at some point in the future.

The Chief Justice explained that the law would not be applied retroactively.

Following a brief recess, the apex court dismissed the inmates' appeal, concurring with the High Court judge's analysis.

In delivering the apex court's decision, the Chief Justice emphasized that the crucial question in the present case was whether the prisoners had actually been impacted by the provisions.

He stated unequivocally that they had not.

"The appellants are currently free to bring any application they wish without being affected in any way by the PACC Act provisions, because these are not currently in force," he clarified.

He added that any application made by the inmates would not be affected by the Pacc Act coming into force in the future, as the Act expressly applies only prospectively.

The Chief Justice highlighted the importance of actual or intended applications affected by the PACC procedure for assessing the appellants' basis to object to the provisions' validity or determine whether they were prejudiced in any way.

"That is a purely theoretical challenge which we see no basis or justification for determining today. "

He concluded that the appellants' challenge amounted to an abuse of the court's process, as it sought to address potential future effects without a current basis.

Although the case was dismissed solely on the issue of standing, the court acknowledged that the expectations of due process for a prisoner who has exhausted all avenues of appeal are likely to differ significantly from those of an accused person undergoing trial for the first time.

In December 2023, M Ravi, an internationally recognised human rights lawyer, expressed his concern over the High Court's dismissal of the inmates' challenge 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.