Respect prisoners’ right to privacy and fair trials

The Transformative Justice Collective is shocked to see confirmation that private correspondence belonging to 13 death row inmates, including (in some cases) privileged communications with lawyers, was forwarded by the prison service to the Attorney-General’s Chambers, without these inmates’ consent.

This revelation is documented in the High Court’s judgment dismissing the applications brought by 22 death row inmates for pre-action disclosures regarding the forwarding of inmates’ letters. 

What is this all about?

Last year, it was brought up during court proceedings that the Singapore Prison Service (SPS) had made copies of correspondence between two death row inmates—Datchinamurthy a/l Kataiah and Gobi a/l Avedian—and their families, and forwarded it to the Attorney-General’s Chambers (AGC). The court then ruled that, while prison regulations allow the SPS to make copies of inmates’ correspondence, it does not follow that the prison can forward the correspondence to the AGC. The court also stated that if the AGC wished to obtain copies of such correspondence, it would have to get either the prisoner’s consent or a court order.

However, the court also accepted that this had been an oversight on the AGC’s part, and not an attempt to seek an advantage in the court proceedings.

The issue about private correspondence surfaced again later in the year, in the case of another death row inmate, Syed Suhail bin Syed Zin. It was revealed that five of the letters he’d written in 2018—one of which was addressed to his then-defence lawyer—had been copied by the SPS and forwarded to the AGC, at a time when Syed was appealing his conviction and death sentence.

In the High Court’s recent judgment dismissing the originating summons brought by the 22 death row inmates, it was confirmed that the correspondence of a total of 13 death row inmates was forwarded by the SPS to the AGC. The judgement also stated that the AGC had requested the correspondence of the 1st and 12th plaintiff (Syed Suhail bin Syed Zin and Roslan bin Bakar).

What’s the problem here?

The disclosure of these letters, without the inmates’ consent, is a matter of grave concern. Although they are prisoners in the custody of the SPS, all these 13 inmates should still have the right to privacy. We note that, in the cases of Gobi and Datchinamurthy, the Court of Appeal had affirmed that “[there] is an expectation of confidentiality in a letter or document shared between private parties” and that “even if the documents were not privileged or confidential in the strictest sense of the word, they were still the prisoners’ personal property.

The matter becomes even more serious when it involves correspondence with lawyers. Legal advice privilege requires lawyers to keep their communications with their clients confidential. This is crucial, so as to give clients the assurance that the things they tell their lawyers will never be disclosed without their consent.

It is troubling enough that the SPS is able to read the letters that inmates write to, or receive from, their lawyers. It is downright shocking that, in some cases, the SPS has made copies of these letters and forwarded them to the AGC, the state organ that prosecutes/has prosecuted these inmates. 

This has implications for rule of law in Singapore. Every individual has a right to a fair trial and process. The AGC should not be asking for private correspondence without the prisoner’s free and explicit consent; even if the AGC has made such requests, the SPS should not be granting them. 

It is not good enough for such behaviour to be dismissed as oversights, or for the AGC to unilaterally claim that it had not derived, or attempted to derive, any advantage from obtaining such correspondence. In any case, it seems highly unlikely that breaching the privacy of 13 inmates can be the result of oversight on the part of either the AGC or the SPS. 

These revelations only surfaced in the course of proceedings for death row inmates. Have similar breaches occurred for the other thousands of inmates in Changi Prison? 

What should be done

There needs to be accountability from the Singapore Prison Service and Attorney-General’s Chambers for behaviour that has breached inmates’ right to privacy, and undermined the rule of law. It is not enough for the AGC to claim that it has not derived any advantage from such correspondence being in their possession; their claims should be subject to scrutiny and independent verification. 

A public and independent inquiry should be established to look into whether the unauthorised forwarding of correspondence is a common practice within the Singapore Prison Service. If so, all inmates and lawyers who have been affected should be given the opportunity to examine the correspondence that was disclosed without their consent, and to evaluate if the inmate’s right to a fair trial has been breached. The inquiry should also look into appropriate remedies for the inmates whose privacy has been violated.

The government should also immediately introduce measures to ensure that such breaches of privacy and prisoners’ rights do not happen again. Prisoners, their families, and lawyers should have access to independent mechanisms that will consider their complaints and conduct investigations should such incidents occur.

Since the death penalty is irreversible, there should also be an immediate moratorium on the death penalty until this matter has been fully investigated and addressed. This is to avoid any possibility of a miscarriage of justice occurring.

This is a matter that could undermine public confidence in Singapore’s rule of law, and commitment to fair trials. It must therefore be treated not just as an administrative problem to do with careless or misguided public servants, but as an issue of great public interest.

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