High Court strikes out lawsuit by 24 death row inmates who claim access to lawyers is obstructed

SINGAPORE — A High Court judge on Wednesday (Aug 3) struck out a lawsuit filed by 24 death row inmates who claimed that their access to lawyers for appeals and reviews of their cases were obstructed.

In a civil claim filed against the Attorney-General on Monday, the inmates argued that the power of the courts to order costs against defence lawyers made them afraid to take up the legal challenges.

The inmates sought a declaration that the costs provisions were unconstitutional and therefore null, void and unlawful. They also sought damages for breach of the defendant's statutory duty to allow "access to justice".

Under the Criminal Procedure Code, the Court of Appeal and the High Court can order costs to be paid by any party to any other party in a case, of such amount as the court thinks fit.

Costs orders are generally justified only in cases where the court is satisfied that the proceedings are frivolous, vexatious or an abuse of process.

Recent instances of costs awarded against defence lawyers representing prisoners on death row include orders for Charles Yeo to pay S$4,000, and for M Ravi and his supervising solicitor to pay S$20,000.

The Attorney-General applied to strike out the inmates' claim, arguing that this was in the interests of justice as the claim showed no reasonable course of action and was an abuse of process.

A hearing for the strike-out application was held at the High Court on Wednesday morning, whereupon Justice See Kee Oon found that the inmates' claim was "plainly unsustainable and unmeritorious".

CASE OF DATCHINAMURTHY KATAIAH

In a judgment seen by CNA, Justice See said the inmates' application contained "broad-brush and sweeping claims" for all but one of the claimants.

Specifics were only given for the case of convicted drug trafficker Datchinamurthy Kataiah, and "even then, those facts are selectively self-serving and misleading", he said.

Datchinamurthy was sentenced to death in 2015, and granted a stay of execution after representing himself in judicial review proceedings in April.

The inmates alleged that Datchinamurthy could not get legal representation for the judicial review as well as another ongoing civil claim involving him. Justice See said this was untrue as Datchinamurthy was represented in the civil claim.

"I accept that legal advice and legal representation can be helpful, and there may be certain claimants who may benefit from assistance in drafting or preparing the necessary documents for any contemplated court applications," said the judge.

But he said that in the judicial review, Datchinamurthy did not appear to have been prejudiced by the fact that he was unrepresented, as his application was successful.

The judge said that given the "questionable" factual basis of Datchinamurthy's allegations, attempts by the rest of the inmates to ride on his position were without basis and bound to fail.

He also rejected the inmates' reliance on an affidavit by the late Kalwant Singh, a convicted drug trafficker who was hanged in July.

Justice See said a suggestion that Singh faced difficulty getting legal representation because lawyers were fearful of potential costs orders against them was "manifestly false".

VALID REASONS FOR TURNING DOWN CASES

Noting that the inmates did not provide details on which lawyers they approached, the judge said there may have been "perfectly valid and legitimate reasons" why they declined to take up the cases apart from costs orders.

"From their oral submissions, the claimants appear to conveniently assume that the cases they would wish to have the lawyers argue on their behalf are all sufficiently meritorious. This is not necessarily the case," said Justice See.

He found that where costs orders were made, these were in the context of improper applications that were not genuine, and the inmates had no grounds to suggest they were unjustified.

"The costs provisions are unlikely to deter counsel from providing bona fide legal advice and representing their clients in good faith in making appropriate applications if necessary," said the judge.

The inmates provided no legal or factual basis for their claim that costs provisions are unconstitutional and a breach of statutory duty, said Justice See. He added that there is "a presumption of constitutionality in validly enacted legislation".

"The claimants rely on inadmissible hearsay evidence at best, which appears to have come from unidentified lawyers and/or from 'family, friends and activists assisting their families'," he added, quoting from their statement of claim.

The judge made no finding on the Attorney-General's argument that the inmates' claim was an abuse of process, saying that it was unnecessary for the purposes of deciding on the strike-out application.

Addressing a request for a stay of execution by one of the claimants, Abdul Rahim Shapiee, whose execution is scheduled for Friday, the judge said he would allow a stay if the claimants appealed against his decision by Thursday morning.

The lawsuit was filed by former policeman Iskandar Rahmat — who is on death row for committing a double murder in Kovan in 2013 — on behalf of the 23 other inmates.

Aside from Datchinamurthy and Abdul Rahim, the other claimants are: Rosman Abdullah, Pannir Selvam Pranthaman, Saminathan Selvaraju, Masoud Rahimi Merzad, Mohammad Rizwan Akbar Husain, Roslan Bakar, Pausi Jefridin, Jumaat Mohamed Sayed, Ramdhan Lajis, Lingkesvaran Rajendaren, Syed Suhail Syed Zin, Mohammad Azwan Bohari, Hamzah Ibrahim, Mohammad Reduan Mustaffar, Moad Fadzir Mustaffa, Mohamed Shalleh Abdul Latiff, Zamri Mohd Tahir, Muhammad Faizal Mohd Shariff, Sulaiman Jumari, Tangaraju Suppiah and Tan Kay Yong. CNA