Singapore | Lawyers say proposed changes to last-minute appeals for capital cases clarify processes, but flag 'unintended consequences'
But a few lawyers disagreed, raising concerns that the proposals, if passed, would set too high a bar for cases where a human life is at stake. Some were also concerned that they could turn more lawyers away from picking up such death row cases on a pro bono basis, hence limiting legal access for this group.
Speaking to TODAY on the Post-Appeal Applications in Capital Cases Bill that was tabled by the Law Ministry on Monday (Nov 7), six lawyers said that it would make the process of post-appeal applications clearer if passed.
Such applications could involve stays of execution or judicial reviews that challenge the President’s decision to not grant clemency.
RELATED | New Bill to clarify court process for applications in death penalty cases after appeals have failed
Lawyer Sunil Sudheesan, who heads Quahe Woo & Palmer LLC's criminal department, said: "There is no need for all the sensationalism of the last-minute filing of stay applications. In fact, it is downright cruel to give accused persons false hope and for this hope to be horribly extinguished at the last moment.
"It does not allow for closure... Our courts have always heard meritorious arguments. This Bill just makes sure that things are done in good time,” added Mr Sudheesan.
WHAT IS THE PROPOSED LAW ABOUT?
In a bid to streamline post-appeal application processes and save on court resources, the new Bill proposes that post-appeal applications will only be heard by the Court of Appeal instead of the General Division of the High Court.
If the Bill is passed, prisoners on death row must first seek permission if they intend to make a post-appeal application, after all other avenues for appeals and bids for clemency have failed.
The application for permission may then be heard by a single judge, who can deal with it without an oral hearing. The judge’s decision to grant permission will be based on several criteria, including whether new material has surfaced.
Unless they can prove that a new appeal application is based on new material, prisoners on death row who have been found by the Court of Appeal to have abused the court’s process after their appeal, would be barred from filing another post-appeal application.
This comes after a spate of last-minute appeals to the Court of Appeal (CA) recently, which were dismissed by apex court judges as abuse of court processes.
MAKING APPEAL PROCESSES CLEARER: LAWYERS
High Court strikes out lawsuit by 24 death row inmates who claim access to lawyers is obstructed Speaking to TODAY, legal practitioners in Singapore welcomed the new, proposed changes as necessary to clarify post-appeal application processes and make the court processes more efficient.
Mr Suresh Damodara of Damodara Ong LLC said that these changes are “timely” as there has been “some uncertainty about the basis of reopening capital cases after the appellate process has been exhausted”.
He added that the proposed changes do not infringe on the rights of the defendants as the law has been stated out clearly so defendants understand their rights, and do not “indulge in applications that do not comply or serve the law and therefore prejudice their own interests”.
He also said that the legislation does not introduce any punitive measures to deter legal representation of defendants on death row, and instead provides them with broad grounds to apply appeals on “just grounds”.
“One of the pillars of justice is finality, meaning legal proceedings cannot be instituted incessantly and repeatedly without basis and the legislation addresses this effectively by incorporating certainty into the law on the reopening of cases,” Mr Damodara said.
Mr Noor Mohamed Marican, senior lawyer at Marican & Associates, agreed that court processes would be made clearer and more efficient if the Bill is passed, as the proposed criteria that the Court of Appeal considers in order to grant permission is clearly spelt out in the Bill.
Quahe Woo & Palmer's Mr Sudheesan said that the Bill “does not affect the diligent, reasonable lawyer”.
He added that the appeal process in the legal system is “crystal clear”, and that if there are new matters that appear post-appeal, they should be raised as soon as is practicable.
Mr Sui Yi Siong, a senior associate at Harry Elias Partnership, also agreed that current procedure is "somewhat unclear" and that the new Bill would clarify the circumstances for filing a post-appeal application. He added that the proposed law does not affect an accused person's right to fair trial as it only applies to post-appeal applications.
“By that stage, an accused person would have already gone through a full trial with the opportunity to lead evidence and cross-examine prosecution witnesses and would also have had the chance to appeal against both conviction and sentence to a higher court,” Mr Sui said.
CONCERNS OVER PROPOSED CHANGES
Likewise, Mr Chenthil Kumarasingam, a partner at Withers LLP, agreed that the new Bill will streamline the post-appeal applications for death row prisoners.
But he also noted concerns over the "overly strong" emphasis in the Bill on the timeline that new material becomes available to warrant a post-appeal application.
"While it is important that any applicant makes it clear when he or she obtained such material, this should arguably only be one of a number of factors that the court will consider in deciding whether to stay an execution,” said Mr Kumarasingam.
On top of this, another part of the Bill proposed that the applicant has to show “reasonable prospects of success” for such applications.
Mr Kumarasingam said that this was “too high a standard considering that a human life is at stake".
Posting on his LinkedIn page, Mr M Ravi, a lawyer who has defended several prisoners on death row, also raised similar concerns about the high stakes involved as the Bill was "about safeguarding the right to life and the right to a fair trial”.
Mr Ravi was the lawyer for Nagaenthran Dharmalingam, a Malaysian drug trafficker sentenced to death, whose last-minute appeal was rejected by a High Court judge.
Referring to his cases, Mr Ravi added that legal aid by the state is not enough and that it is already taxing on lawyers who handle capital cases, since they have to expend many resources given that court applications “move at breakneck speed, especially (for) late-stage applications”.
Mr Johannes Hadi, a lawyer at Eugene Thuraisingam LLP, was concerned about the “unintended consequences for the criminal justice system as a whole”, which could end up discouraging pro-bono legal representation of death row cases.
His law firm has successfully represented clients in post-appeal applications, such as the case of Nigerian man imprisoned for nine years for a capital drug trafficking charge.
Said Mr Hadi: “Capital punishment cases are typically conducted by lawyers on a pro bono or 'low bono' basis as a service to society and the profession.
"There may be cases where the full merits only crystallise after being tested by an opponent and the court. Most lawyers would not want to take the risk of arguing a case that may eventually be found to have been an abuse of process,” he added.
Source: todayonline.com, Staff, November 11, 2022
🚩 | Report an error, an omission, a typo; suggest a story or a new angle to an existing story; submit a piece, a comment; recommend a resource; contact the webmaster, contact us: deathpenaltynews@gmail.com.
 |  |
Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!
"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde