Thread by @kixes

🧵 I’ve been sharing updates but wanted to put together a thread covering the substantive points of the Court of Appeal hearing today (well, yesterday now) involving 24 death row prisoners in #Singapore

#DeathPenalty #StopTheKilling

On 1 August, 24 death row prisoners filed an originating claim against the state, in relation to their right to access to justice. They claimed that the practice of handing out punitive cost orders against lawyers have deterred lawyers from taking on late-stage capital cases.

Due to this fear, they say that they’ve faced difficulties finding lawyers to represent them. Therefore, this practice of imposing cost orders has affected their constitutional rights in relation to access to justice.

After filing on 1 August, they were given a pre-trial conference in the morning of 2 August, where they found out that the Attorney-General’s Chambers (i.e. prosecution) intended to file summons to strike out the claim in its entirety. They were told to file submissions by 6pm.

This was an extremely tight timeline that had been fixed because one of the 24 prisoners, Abdul Rahim bin Shapiee, is scheduled to be hanged on 5 August. So the registrar set urgent timelines so that the case could be heard without affecting the prison’s execution timetable.

This was a problem for the 24 prisoners. They were representing themselves on this matter. They live in solitary cells, with family visits only once a week, on Saturdays or Mondays, so they couldn’t rely on family to help them. How were they supposed to prep submissions by 6pm?

In the morning of 3 August, the 24 appeared before the High Court to argue against the AGC’s application to strike out their claim. The hearing was in chambers, so the public couldn’t attend. Later that day, the High Court ruled in the AGC’s favour and struck out the claim.

The High Court did, however, say that Rahim could have an interim stay of execution until the appeal was heard. But then the appeal was fixed for the afternoon of 4 August.

This is an *extremely* expedited and rushed timeline to accommodate the scheduled execution.

In court today, Iskandar, representing the 24, said that the originating claim wasn’t just a stalling tactic to try to stay Rahim’s execution. He told the court that the prisoners had tried to file it earlier, *before* they knew Rahim had been scheduled to hang.

However, Iskandar said, the prison had delayed the filing of the application. He alleged that the prison had known that Rahim was going to get an execution notice soon, and deliberately stalled so that the application would only get filed *after* Rahim’s execution notice…

…and therefore be subjected to an expedited timeline that would make things move very fast, to their disadvantage. He said that while the prison rejected their application the previous week before Rahim’s notice, on 1 Aug (after Rahim’s notice) they processed it with no delay.

Iskandar noted that the High Court judge, in ruling against them, had said that their statement of claim was bereft of detail and particulars of fact. But he argued that a statement of claim is meant to be a non-exhaustive statement briefly setting out the main points.

He said that the prisoners had intended to file affidavits from families and friends who had tried to help them find lawyers to support their claim by stating which lawyers were approached and the reasons they gave for refusing to take up the cases.

However, Iskandar said they were unable to provide such documents and evidence ‘cos of the expedited timeline. As prisoners, they rely on their families for assistance with legal material, etc., but all of them (except Rahim) have not had family visits since the claim was filed.

There was therefore no way for them to communicate with their families on this matter. “We were caught off-guard and totally unprepared to prepare for such an urgent hearing,” he said. He argued this cost them their right to a fair hearing.

Datchinamurthy, another prisoner, also told the court that he had made a request to the prison authorities that he be allowed to discuss and prep for the case with Iskandar. His request was denied.

“To me, the only reason the prison does this is because they don’t want the court decision to become favourable to us, so they can proceed with execution on Friday,” Datchina said. He said even if the prison doesn’t want to help the prisoners, they should at least not obstruct.

“I want the court and public to know that we as death row inmates are not being treated fairly when we are fighting to prepare our case to fight for our lives,” he said. “Let us prepare our case, without addition stress or mental torture from the prison for all of us.”

To this, Chief Justice Sundaresh Menon told Datch that the court is not a position to make directions unless the matter is brought before them as an application. He said if Datch wants to bring this up, he should file an application.

When Datch asked how he could file the application, the CJ said, “I’m not here to give you legal advice” and that he had already given Datch the courtesy of listening to him even though it wasn’t relevant to the case before the court.

On the AGC said, they categorically denied that the prison had delayed the filing of the application last Thursday, saying the prison had facilitated things by filing the application on 1 August. They argued that the timing with Rahim’s execution notice was “pure coincidence”.

The AGC argued there’s a difference between access to legal advice and legal representation. They said prisoners are allowed to see lawyers, and can talk to family, friends, activists. (Note: Usually only immediate family are allowed to visit, and they *can’t* talk to activists.)

The AGC also said that the fact the 24 could appear in court today shows they have equal access to justice even in person, ‘cos they can make representations. They have suffered “no prejudice” through the inability to secure legal representation.

Syed Suhail, another prisoner, pushed back on this point. “As a layperson, access to a lawyer, to me that is being represented.” He pointed to how they can only have visits from immediate family members, and that he *isn’t* allowed to meet activists.

After a 7-hour wait, the Court of Appeal upheld the High Court’s decision to strike out the claim. They said that cost orders are only imposed for vexatious and frivolous applications, and therefore shouldn’t deter lawyers from taking on meritorious cases.

If lawyers cite cost orders as a reason *not* to take on valid cases, then they’ve misunderstood how the cost provisions in the law work, which is their problem, not the court’s. The court was not of the view that any reasonable counsel would reject a claim that has merit.

Another reason lawyers might cite cost orders in rejecting cases is if the cases are devoid of merit—in which case the Court of Appeal is of the view that the cost provisions are working as intended (i.e. to deter lawyers bringing frivolous cases).

The Court of Appeal ruled that cost orders aren’t slapped on lawyers who run cases that turn out to be weak on its merits—they only do it when lawyers run cases that are unmeritorious.

The Court of Appeal said even if the 24 prisoners want to present factual points (i.e. their own experiences, and that of their friends and family who have approached lawyers), there would still need to be a viable legal claim, but CA didn’t think this was the case.

What struck me was the disconnect btwn the court’s view and the prisoners’ *lived experience*. The prisoners were saying that, in their actual experience, it *is* a challenge to get representation ‘cos lawyers are fearful+reluctant, and the court was like “…that can’t be right.”

https://twitter.com/kixes/status/1555270518236127232

As someone who works closely with the families, I *know* that many families and prisoners have struggled with finding a lawyer to take on their case at this late stage (i.e. after the trial and standard appeal). It was quite something to see the court just go “…nah.”

There was also another application that cropped up partway through the hearing: an application by Abdul Rahim bin Shapiee himself seeking a stay of execution. He had separately filed a suit against his trial lawyer, alleging negligence.

Rahim said that he had wanted his trial lawyer to call a witness who could testify in his favour, but the trial lawyer had not done so. He asked the CA for a stay while his new application was pending. The CA treated this as an oral application made to them.

The CA found Rahim’s new application to be an abuse of court process. They ruled that it had been an “afterthought” filed to try to stay the execution, ‘cos Rahim had opportunity to bring this grievance up before but had not. They dismissed his application for a stay.

To be clearer: if lawyers refuse meritorious cases due to fear of cost orders, then they’ve misunderstood how the cost provisions work, and that’s their problem, not an indication of a problem with the practice of imposing cost orders, which the court is legally empowered to do.

https://twitter.com/kixes/status/1555270518236127232

The court hearing started at 2:30pm. Court was stood down around 5pm so the judges could deliberate. They said they would come back at 7:30pm, but didn’t. They eventually came back at 11:55pm and it was 12:41am by the time court ended.

This long, long, *long* wait gave the prisoners the opportunity to talk “face to face” with friends. For instance, Datchina and Pannir were able to speak to each other after years, ‘cos their cells aren’t close so they don’t usually get to speak.

While the judges were away, the 24 were left in the Zoom room together for a long time. It’s really rare for so many of them to share the same space (albeit largely virtually). There was a lot of chat and laughter as they made the most of this unusual time.

But for Rahim, the seven-hour wait for the judges to return with their verdict (which, tbh, was in essence the same as what had been said *before* court stood down) ate into the time he could have had with his family, on the final night of his life.

Reading back this morning, apologies for some of the typos (was super sleep-deprived). I wanted to add a little bit more on Rahim’s oral application.

When asked by the CJ if he had anything to add (after Iskandar presented their arguments), Rahim asked for a stay, citing the suit he had filed against his trial lawyer. Iskandar had earlier told the court that a case conference for that suit had been scheduled for 1 Sept.

As an observer, it didn’t seem to me like Rahim had intended to make an oral application right then and there for the court to rule on his suit. It sounded like he was merely asking for a stay so that his suit could proceed, separate to yesterday’s application.

But the CJ started asking him questions relevant to that suit (and not the joint application), like who the witness was, whether he had expressed unhappiness to his lawyer before, why he didn’t bring this point up at appeal, etc etc.

I don’t think Rahim was expecting or prepared to argue that application for a stay right there, but cos the CJ was asking these questions he likely felt like he had no choice but to answer. He also told the court that if he could get a stay his family could find him a lawyer.