The Leader of the Opposition, Mr Pritam Singh, sought several clarifications from the Government on the Post-appeal Applications in Capital Cases Bill during the second reading of the bill on 30 November 2022.
Mr Singh had previously cautioned against a legislative approach to curb abuse of process unless the Courts themselves request such changes.
It would be most appropriate to allow the courts to deal with legal applications deemed to be an abuse of process since there are established consequences to such applications, with cost orders a common outcome.
Pritam Singh’s speech in full
Mr Speaker, the death penalty and the collateral criminal justice processes can be highly emotive matters, particularly after an appeal against the death penalty fails. But the varied considerations do not just include the rights of the condemned prisoner. There are other stakeholders in the criminal justice process too. These include, the rights of victims, the demand for fairness in the judicial system, and the desire that Singapore remains safe for all. For a prisoner awaiting capital punishment, the arguments are not academic discussions of principle, but literally a matter of life and death.
Closing of loop on op-ed
Prior to the introduction of this Bill and after the Government indicated that it was considering introducing post-appeal procedures for capital cases, I authored an op-ed in our local press on the mandatory death penalty. One point I made was to leave the matter of late applications to the courts and allow costs orders to be the appropriate sanction.
My concern was that the legislative changes might be proposed that would either significantly curtail or prohibit post-appeal applications.
WP would oppose if Bill prohibited new evidence or arguments
If this Bill was meant to close off the possibility of new evidence being heard or new legal arguments being made in post-appeal applications in capital cases, or PACCs, the Workers’ Party would vote against this Bill. Because of the irreversibility of the death penalty, lawyers should not be unduly fettered from advancing arguments to ensure that justice is done and their clients are saved from the noose.
But I note that new material in the form of evidence and legal arguments are not prohibited by the proposals before the House today. The Court of Appeal is to be empowered under the Bill to take new evidence.
While this Bill may appear to some as putting a spanner in the works for lawyers who wish to file PACCs, in my view, it serves to regulate the process better, and does not close off defences not heard at trial. As a matter of principle, I do not see this Bill as hampering legal counsel who represent their clients dutifully.
Human effects
The regulation of the PACC process has come into focus arising from the reality of vexatious applications. When I say come into focus, I am not talking only about the sterile procedural aspects of PACCs. The point here is that PACCs cause profound human effects. One cannot discount the reality of these applications taking their toll on the prisoner, their spouses, their children, their parents, their extended families and their friends.
If the hopes created by PACCs are reasonably achievable hopes, natural justice demands that we do not close any door to them. However, in cases of vexatious applications which have a zero chance of success, then the hopes are wickedly false, if the lawyers are aware of that fact.
While these prisoners are persons who have been convicted of crimes and who have exhausted their avenues of appeal, we must do right by them as that reflects what we want to be as a society. If I can sum it up in one word, what most of us want in the system is fairness.
Fairness
Fairness must be a guiding principle in scrutinising all procedures relating to the death penalty. Of course, some may argue that it is not fair at all for the State to take the life of any person. But that is not the discussion for today. The mandatory death penalty is in our statutes for now. That may change as society or circumstances change, but our purpose today is to look at a sliver of the process and consider the just and fair handling of PACCs.
In the interests of achieving a fair process for PACCs, I would ask for a few clarifications about the Bill.
First clarification – extent of discretion mentioned by MinLaw spokesman
My first clarification relates to the statement made by the Ministry of Law spokesman and quoted in the Straits Times of 7 Nov. The spokesman said:
“The proposed amendments will clearly set out the process for such applications, and the court will have discretion to allow challenges even if they do not comply with this process.”
May I ask the Minister what is this discretion referred to here and what is its extent? Is the spokesman merely referring to the provisions in the proposed section 60J under which the Court Appeal may treat an application in another court as a PACC application? If not, could the Minister clarify?
Second clarification – s60G(7)(d), “reasonable prospect of success “
My second clarification concerns the proposed section 60G(7) which provides the matters the Court of Appeal must consider in deciding whether to grant an application for PACC permission. In particular, the matter for consideration in 60G(7)(d) is whether the PACC application has a “reasonable prospect of success”.
I would like to confirm if the legislative intent is for para 7(d) to set a threshold standard? Or is 60G(7)(d) merely one of four factors which must be considered, but which may be overridden by other considerations, at the discretion of the Court of Appeal judge?
Mr Speaker, if it is meant to be a threshold standard, it may set a high bar that may prevent the applicant from even making a possibly meritorious main application under section 60H. As the such, I would like to clarify if the threshold standard required here would be that of an arguable case, and that this would represent the legislative intent insofar as section 60G(7)(d) is concerned.
If 60G(7)(d) is not meant to be a threshold standard but merely a consideration which could possibly be disregarded if an arguable case comes before the Court, I would suggest that this be confirmed in the Minister’s round-up speech.
Third clarification – “even with reasonable diligence”
My third clarification concerns the phrase “even with reasonable diligence” used in the proposed section 60G(7)(a), section 60G(15)(c) and more than once in section 60M.
May I ask the Minister what the intention is in using the word “even” in the phrase “even with reasonable diligence”? My reading is that the use of the word “even” suggests that reasonable diligence is being compared with a higher standard, say, due diligence. Is that the intention? If so, then to the extent that it endeavours to set a reachable standard,
I do not object to it.
If the Minister can clarify this, then should the Bill be passed, it would make clear to the Court of Appeal the legislative intent is to set a lower standard than that of due diligence.
Fourth clarification – section 60G(15)
The use of this term “reasonable diligence” brings me to my fourth clarification.
The proposed section 60G(15) provides that where there has been abuse of process, the Court of Appeal I quote, “must not” grant the application for PACC permission. This is unless evidence or legal arguments are presented that were not adduced before the finding of abuse of process and the evidence or legal arguments could not, even with reasonable diligence, have been adduced in court before the finding. The phrase used is “must not”, which can only mean that the Court of Appeal judge has no discretion in the matter.
Here Sir, there is a need to distinguish between the prisoner and the lawyer representing that prisoner. It is possible to conceive of a situation where the lawyer who made the prior application which was an abuse of process was not thorough enough in not raising evidence or legal arguments that were reasonably available. The prisoner then changes lawyers and the new, more diligent lawyer then raises the evidence and legal arguments which were available previously, but not raised.
In such a possible scenario, based on the Bill before us, due to 60G(15)(d), the Court of Appeal must not grant the application for PACC permission. In such a scenario, it would appear that the Court of Appeal would have no discretion to take into consideration such a situation.
May I ask the Minister whether such a scenario was considered when the Bill was drafted? And if it was, how does this relate to the proposed 60G(15)(d)? The remedy against the lawyer who did not raise the arguments could be a personal cost order, but the prisoner should not be unfairly prejudiced.
May I ask the Minister why the words “must not” were used? Is it necessary to remove the Court of Appeal’s discretion in this case?
Mr Speaker, all my clarifications seek to promote fair outcomes for all parties, which I am sure is also the intention of the Government. I look forward to hearing the Minister’s responses.
Subject to the replies to my queries, I support the Bill.
The Ministry of Law’s Response
On behalf of the Minister for Law, Ms Rahayu Mazam responded to Mr Pritam Singh’s queries during the wrap-up speech for the Bill. Her speech may be viewed in full at the 7:08 mark of this video.
In respect of Mr Singh’s second clarification on the threshold required by the phrase “reasonable prospect of success” in Section 60G(7) of the Bill, Ms Rahayu clarified that the Court retains the discretion to grant permission “even if any or all of the conditions are not met”.
Stating that the bill was “enabling” in nature to advance the interests of justice, Ms Rahayu noted that, ultimately, the Court will retain some discretion.
“Parliament’s intention is that, in such applications where the conditions in this Bill have not been satisfied, should generally not succeed given the legislative intent expressed through the Bill to set out the process to be followed. The Court will exercise considerable care because there is finality. Because we don’t want to rule out the possibility… The intention is for the framework to be followed.”
Responding to Mr Singh’s concerns over the use of the phrase “must not” in Section 60G(15) of the Bill, Ms Rahayu made clear that the provision referred to abuse on the part of the prisoner and not the lawyer.
“When they have previously abused the process, we think that Section 60G(15) is a fair requirement because the Court can still grant permission if the requirements in Section 60G(15)(c) and (d) are met – which are reasonable requirements.”
On Mr Singh’s query about the term “even with reasonable diligence” in Section 60G(15) C of the Bill, Ms Rahayu stated that this is a factor for the Court to take into consideration when deciding whether the evidence and arguments in the application could have been brought earlier. She also pointed out that this is not a new requirement as it is already found in Section 349J of the Criminal Procedure Code 2010.
The Bill, which was passed in Parliament on 29 November 2022, may be read at this link.
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