Statement by MinLaw & MHA on ICJ Statement Calling for Singapore to Establish a Moratorium on Executions & Cease the Use of Punitive Cost Orders Against Lawyers

08 SEP 2022

8 September 2022 Posted in Replies

  1. We refer to the statement dated 9 August 2022 by the International Commission of Jurists (“ICJ”) calling for Singapore to establish a moratorium on executions (“the Statement”). The Statement contains a number of misconceptions and inaccuracies.

Access to justice is available to all

  1. The ICJ states that it is “deeply concerned about reports of punitive cost orders against lawyers who have represented clients on death row”, and that the “Singaporean courts have imposed such orders against lawyers of death-row inmates because they had filed late-stage applications to the courts on behalf of their clients, purportedly on the basis that these applications were ‘frivolous, vexatious or an abuse of process’”. The ICJ also claims that the “imposition of punitive cost orders has obstructed death-row inmates’ access to justice and effective remedies”.
  1. These statements are inaccurate. In Singapore, all persons facing capital punishment have access to justice and legal representation. If a person charged with a capital offence cannot afford a lawyer, legal counsel will be offered to the person free of charge, regardless of nationality, under the Legal Assistance Scheme for Capital Offences.
  1. Action has never been taken against lawyers for representing persons facing capital punishment.
  1. All defendants (including those facing capital punishment) are entitled to have counsel defend them. That right does not mean persons can abuse the court process. In many jurisdictions, the courts have powers to prevent abuse of the court process. The ICJ cannot be seriously suggesting that it wants abuses of court processes to go unpunished.
  1. In Singapore, the Supreme Court has taken steps to deal with abuse, in both capital and non-capital cases.
  1. The ICJ has referred to a case involving 24 persons. These 24 persons had full legal representation and the Singapore Court of Appeal had dismissed their cases. They then attempted to reopen their cases. The Court of Appeal heard and dismissed the further attempt and said that their application was completely unmeritorious1.
  1. As stated earlier, the Courts have also dealt with lawyers who have abused the court processes. One lawyer, in particular, was the subject of six of the eight instances in which the Courts had to impose costs orders against lawyers representing persons sentenced to capital punishment. It is public knowledge that that lawyer was prohibited by the Singapore Law Society from practising law in 2015, and then was also suspended from practising law by the Singapore High Court in 2015. In 2016, he was also prohibited from applying for a practising certificate for two years due to his disciplinary breaches. Upon his return to law practice in 2019, he was issued a conditional practising certificate.
  1. The same lawyer has admitted to the High Court during one of his applications that his clients had no basis for obtaining the orders applied for. He was also found to have asked for reliefs which were procedurally unsustainable as a matter of law. The High Court made clear that a solicitor should not be held to have acted unreasonably simply because he acted for a client who had a bad case, but it would be quite different if a solicitor gave his assistance to proceedings which were an abuse of process. It was found that he clearly fell within the latter situation as he had filed an application for which he had no justification to file given its total absence of any legal foundation2. In another related matter, the High Court found that his conduct was not proper. He further brought the application without satisfying the statutory requirements3. In yet another application, he was found by the Court of Appeal to have brought an application when there was no factual basis, and that proceedings were instituted on the basis of speculation. The Court of Appeal further found that the proceedings instituted constituted a blatant and egregious abuse of the court’s processes, by drip-feeding the supposed evidence and arguments4.

Clarifications on Abdul Rahim bin Shapiee’s (“Abdul Rahim”) case

  1. The ICJ also cites Abdul Rahim’s application seeking a stay of execution. The Court of Appeal dismissed this, when upholding the High Court’s dismissal of the application filed by the 24 persons awaiting capital punishment. The Court of Appeal observed that Abdul Rahim’s application was filed at the eleventh hour, shortly before sentence was to be carried out, pertaining to events that occurred between 2016 and 2018. The Court of Appeal found that his application was without merit and an abuse of process, and therefore did not warrant a stay of execution5.

Singapore’s criminal justice system is fair and impartial

  1. The ICJ has also cited the recommendation by the Committee on the Elimination of Racial Discrimination (“the Committee”) from Singapore’s first review before the Committee in 2021, in relation to offences of drug trafficking, to review and amend its “laws and policies leading to racially disparate impacts in the criminal justice system” and to implement “effective national strategies or plans of action aimed at eliminating structural discrimination”. The ICJ added that this was consistent with another application by 17 persons sentenced to capital punishment who alleged that, as ethnic minorities, they were more likely to be investigated, prosecuted and sentenced to capital punishment for drug offences.
  1. It would be helpful if those who make such comments clarify whether they are suggesting that justice be dependent on the individual’s ethnicity and socio-economic status. Ethnicity and socio-economic status play no part in the professional discharge of duties by law enforcement agencies in Singapore, in the prosecutorial decisions of the Public Prosecutor, and in the decisions of the Courts.
  1. In alignment with the International Convention on the Elimination of All Forms of Racial Discrimination, Singapore’s laws apply equally to all, regardless of race, colour, descent, ethnic origin or nationality. All persons are treated equally and accorded due process under our laws.

No international consensus on capital punishment

  1. There is no basis to assert that the imposition of capital punishment for drug offences is a breach of international law. There is no international consensus against the use of capital punishment when it is imposed according to the due process of law and with judicial safeguards. Every country has the sovereign right to determine its own criminal justice system, considering its own circumstances and in accordance with its international law obligations. This right should be respected.
  1. In Singapore’s experience, capital punishment has had a clear, deterrent effect on drug traffickers, and has helped deter major drug syndicates from establishing themselves in Singapore. Drug traffickers have deliberately restricted the amount of drugs they carry to avoid capital punishment.
  1. Capital punishment in Singapore is applied only to the most serious crimes which cause grave harm to others and to society. This includes trafficking in significant quantities of drugs, which causes immense harm, not just to drug abusers, but to their families and society as well.
  1. Countries should continue to be free to choose the approach that best suits their own circumstances in their fight against drugs. Singapore will continue to implement measures that have worked well for us.
  1. In light of the above, we invite the ICJ to examine the facts prior to issuing such statements.

1. See Iskandar Bin Rahmat and others v Attorney-General and another [2022] SGCA 58 (“Iskandar Bin Rahmat”) at [46] and [52].↩

2. See Syed Suhail bin Syed Zin and others v Attorney-General [2021] SGHC 270 at [43] – [48].↩

3. See Syed Suhail bin Syed Zin and others v Attorney-General [2022] SGHC 184 at [5] – [14].↩

4. See Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 44 at [11] – [16].↩

5. See Iskandar Bin Rahmat at [67].↩

MINISTRY OF LAW MINISTRY OF HOME AFFAIRS 8 SEPTEMBER 2022

Last updated on 8 September 2022