Death Row Prisoners Sue the Government
PRIVATE CORRESPONDENCE FORWARDED TO THE AGC
In the course of other legal proceedings, it emerged that the Singapore Prison Service had, without consent, copied private correspondence between prisoners and their families or lawyers and forwarded them to the Attorney-General’s Chambers (i.e. the prosecution).
In 2020, 22 death row prisoners filed an originating summons seeking pre-action disclosures related to the prison’s practice of forwarding their private correspondence. Although the High Court ultimately dismissed the application, it was confirmed that the prison had copied and forwarded the correspondence of 13 prisoners without authorisation. This included letters written between prisoners and their defence counsels, which should have been protected by client-solitictor privilege.
This issue is still pending before the courts, as the 13 prisoners — 12 of whom are currently on death row — have filed a civil suit against the AGC over the breach of their privacy.
Further reading:
Court dismisses applications by 22 death-row inmates over forwarding of letters by prisons to AGC
When the prison sends inmate correspondence to the prosecution 😱
Respect prisoners’ right to privacy and fair trials
ON COST ORDERS AND PRISONERS’ ACCESS TO JUSTICE
In August 2022, 24 death row prisoners brought a civil suit against the state. They argued that the AGC’s practice of accusing lawyers of “abusing court process” and demanding cost orders when late-stage applications are filed has created a chilling effect where lawyers are now afraid of taking on post-appeal death row cases. This, the prisoners said, has affected their right to access justice.
Unable to find legal counsel, the 24 prisoners had no choice but to self-represent. Their case moved much faster than a regular civil suit as Adbul Rahim bin Shapiee, who was among the 24, had already been issued an execution notice for the end of the week. The High Court dismissed the case on 4 August. The next day, the prisoners once again had to represent themselves before the Court of Appeal. The court stood down for seven hours to deliberate, returning close to midnight to dismiss their appeal.
The appeal judges did not agree that the prisoners had been denied access to justice, saying that it could not be correct that cost orders had deterred lawyers from taking on cases. The courts, they said, are empowered to impose cost orders if they find that unmeritorious cases had been filed to abuse process. If lawyers were frightened by the cost orders, that simply meant that they had misunderstood how the system works.
The dismissal of the appeal meant that Abdul Rahim bin Shapiee was executed mere hours later.
Further reading:
WTC Long Read: The death row prisoners’ Zoom meeting
ETHNIC BIAS IN PROSECUTION
Investigating the presence of structural biases in the criminal punishment system
In August 2021, 17 ethnic Malay individuals facing the death penalty filed a suit seeking a court declaration that the Attorney-General’s Chambers had discriminated against them on the racial grounds when prosecuting them.
64.9% of offenders who received death sentences between 2010 and 2021 for drug offences were of Malay ethnicity. This demonstrates a clear over-representation of Malays on death row in Singapore, given that Malays only make up 13.5% of Singapore’s population. Based on this and other statistical data, human rights lawyer M Ravi argued that there was direct or indirect bias on the part of the state prosecution in their handling of capital cases.
The court dismissed the case, saying that there was insufficient evidence to prove discrimination. The judge also said that the application was an abuse of process.
Acquittals and Reviews
The cases mentioned below are only a selection of acquittals and reviews that have taken place in Singapore.
Raj Kumar Aiyachami
The Court of Appeal overturned the conviction and death sentence of Raj in May 2022. Raj had originally been convicted in 2020 of trafficking over 1.8kg of cannabis on 21 September 2015.
In his defence, Raj had argued that he had actually ordered chemically-sprayed tobacco known as ‘Butterfly’, but had been delivered cannabis instead. While in remand after his arrest, Raj met Mark Kalaivanan Tamilarasan in the prison yard. In the course of their conversation, they realised that Mark had also been at the same location on 21 September 2015, and had ordered cannabis but received “Butterfly” instead.
Mark testified at Raj’s trial, but the High Court judge did not believe their account, saying that there had been “ample opportunity” for the two men to have concocted the story. The Court of Appeal, in acquitting Raj, said that the trial judge had erred in rejecting Mark’s testimony without an actual finding of collusion.
Even with Mark’s testimony, the trial judge had found that Raj had failed to rebut the presumption of knowledge under the Misuse of Drugs Act (which says that, if someone is found in possession of a certain amount of drugs, it is presumed that they knew the nature of the drug unless they are able to prove otherwise) and sentenced him to death. It had been pure chance that Raj had met Mark in the prison yard. If the two men had not met, Raj would likely have had an even more difficult time proving that he did not known the nature of the drug, and might not have succeeded even during his appeal.
Further reading:
Court of Appeal acquits man on death row accused of trafficking 1.8kg of cannabis
A Dead Hamster Just Helped a Man Get Off Death Row
Apex court acquits 2 men of cannabis trafficking; 1 of them was on death row
Gobi Avedian
Gobi had been charged with trafficking 40.22g of heroin. Although the trial judge found that he had succeeded in rebutting the presumption of knowledge — and accordingly convicted him of an amended charge of attempting to import a Class C controlled drug — the state prosecution filed an appeal. The Court of Appeal ruled in the prosecution’s favour and convicted Gobi of the capital charge.
Gobi had already exhausted all his legal options, and even his appeal for clemency from the president, when human rights lawyer M Ravi stepped in to take on his case pro bono. Ravi filed a criminal motion pointing to developments in the law relating to how presumption clauses under the Misuse of Drugs Act can be invoked by the prosecution. In essence, Ravi argued that the prosecution could not use the presumption of knowledge clause alongside an argument of wilful blindness on Gobi’s part.
The Court of Appeal agreed with Ravi’s argument. They also found that the prosecution had run two different arguments at trial and appeal, in a way that was “ultimately prejudicial” to Gobi. They decided to set aside Gobi’s death sentence and reinstate the sentence — 15 years’ imprisonment and 10 strokes of the cane — that the High Court had originally handed down.
Gobi’s case highlights the dangers of capital punishment, and how easy it could be for wrongful executions to occur. If M Ravi had not stepped forward to take on this case pro bono, Gobi would likely have been executed.
Further reading:
Singapore escapes a wrongful execution
Ilechukwu Uchechukwu Chukwudi
Ilechukwu Uchechukwu Chukwudi had originally been acquitted of trafficking almost 2kg of methamphetamine by the trial judge, but the decision was reversed by the Court of Appeal after the prosecution appealed the case.
During the sentencing stage, evidence was submitted demonstrating that Ilechukwu suffered from post-traumatic stress disorder. A psychiatrist found that his symptoms had been triggered when informed by the police after his arrest that he was being investigated for a death penalty charge, which is why he had lied in his statements to the police.
In the light of this new evidence, the Court of Appeal ordered a review of his case. In 2020, four of the five appeal judges found that Ilechukwu had not known that he was transporting drugs, and acquitted him.
Certificates of Substantive Assistance
The Certificate of Substantive Assistance (CSA) provides an opportunity for people under investigation for capital drug trafficking offences to escape a death sentence. However, its implementation is highly problematic.
CSAs are issued by the prosecution, based on input from the Central Narcotics Bureau. There is little transparency into how the decision whether or not to issue such a certificate is made, but the case of Pannir Selvam Pranthaman has provided a little more (troubling) clarity.
In examining the wording of the law as well as parliamentary intent, the court found that the underlying reason for the Certificate of Substantive Assistance system was not to allow drug couriers a path to escape the death penalty, but to enhance the “operational effectiveness” of the Central Narcotics Bureau. Although it was accepted that Pannir had cooperated with the authorities, the police said that they had not used the information that he’d given them. He was therefore not deemed worthy of a Certificate of Substantive Assistance.
As Pannir’s case amply demonstrates, the Certificate of Substantive Assistance system subordinates human life to law enforcement goals. Beyond that, it places people under investigation in difficult positions where they have to make the choice between telling the police as much as possible — likely incriminating themselves and undermining any defence they might want to mount later — in the hopes of being issued a certificate, or to remain silent but lose this chance of avoiding a death sentence should they be found guilty. To make matters worse, this decision has to be made without legal advice, as people are not allowed to be accompanied by lawyers during interrogation in Singapore.
The death penalty and persons with disabilities
Nagaenthran K Dharmalingam was convicted for trafficking a total of 42.72g of heroin and was originally scheduled for execution on the 10th of November 2021. His execution was later stayed after an appeal hearing had to be adjourned because he had tested positive for Covid-19.
Section 33(b)(3) of the Misuse of Drugs Act allows an individual to avoid a death sentence on the grounds that they have an “abnormality of mind” that impairs their “mental responsibility” for the act. Psychiatric associations in other jurisdictions have expressed discomfort in being asked to comment on the fundamentally non-medical issue of substantial impairment of mental responsibility.
Nagaen had psychosocial disabilities — he had an IQ score of 69, well below the average of 100, and had also been diagnosed with ADHD and other cognitive impairments. However, despite calls from international human rights experts for him to be spared the death penalty, the Singapore government did not recognise him as someone with intellectual disabilities.
Medical experts for state and defence often disagree over whether defendants have disabilities or what impact it had on their actions, highlighting the problem with reliance on medical professionals as experts and emphasising why mental capacity assessments are arbitrary.
It is also worth noting that, despite Nagaen’s psychosocial disabilities, he had not been granted procedural accommodations throughout the process of his arrest, investigation, trial and sentencing.
Nagaen was executed on 27 April 2022.
Further reading:
Chilling Letter Details Execution of ‘Intellectually Disabled’ Inmate
Recap of Nagen’s Court of Appeal Hearing
Singapore: Halt Execution of Man with Intellectual Disability