The Post-Appeal Applications in Capital Cases Bill: A brief

The Post-Appeal Applications in Capital Cases Bill, read for the first time on 7 November, was passed in Parliament on 29 November. This law has damaging implications on the due process rights of persons on death row.

The law covers a wide range of applications, whether with regard to the criminal cases of death row prisoners or the constitutionality of the provisions under which they are convicted. The importance of protecting the procedural rights of persons on death row cannot be overemphasised.

The legislation also raises more fundamental concerns as to how the government interprets fair trial rights and the approach towards the rule of law.

This brief sets out the issues with the law. References to provisions in this brief are references to the provisions in the law, unless otherwise stated.

The law sets a very high bar for death row prisoners to bring a wide range of applications (referred to as PACC applications). It covers any application involving a stay of execution, or which determination calls into question, or may call into the question the propriety of the conviction and capital punishment.

It forecloses civil lawsuits that challenge the constitutionality of statutes to do with capital cases, and applications relating to the wrongdoing of state actors that may affect the convictions of those on death row (such as the case where prison forwarded privileged correspondence of death row inmates to AGC).

This is in violation of the procedural rights guaranteed under Art 9(1) of the Singapore Constitution.

Further, with regard to applications that might call into question the propriety of convictions having to seek permission to proceed, the Court would effectively have to determine the matter before arguments are fully canvassed and the case is properly decided. This effectively asks the Court to engage in speculative exercises when all evidence might not yet have been brought and not all arguments have been heard.

See s60F SJCA, under definition of “post-appeal application in a capital case”; and see sub-section (b) and Example C in the same definition

The law removes the right of appeal in both the application for permission, and in the hearing of the substantive PACC application.

This is by virtue of making the Court of Appeal the first instance court with regard to the application for permission and the PACC application. The application for permission may be heard by just a single judge of the Court of Appeal.

For contrast, applications for leave for judicial review, and the judicial review itself, are heard at the High Court and can be appealed to the higher court.

The right to appeal a first instance decision of the Court is part of the right to fair trial. As a result of this law, even if there were a clear error in law made by the first instance judge, there would be no recourse for the applicant.

See s60G(13) SJCA; s60H(1) SJCA

If the application for permission, or the PACC application, is filed at a court other than the Court of Appeal, a single judge of the Court of Appeal can determine if the application falls under the PACC application rules. If it does, the judge can strike the application out in whole or in part purely on the procedural grounds that it is filed in the wrong Court.

It is not in the interest of justice that applications regarding issues of life or liberty, and which have significant consequences for a person’s life, can be struck out for purely technical reasons, particularly when the applicants might often be representing themselves.

See s60J(1) and s60J(3)(b) SJCA

The law allows applications for permission and PACC applications to be summarily dismissed without hearing.

This is damaging to the applicants’ access to justice. That there might not be a hearing would mean that the applicant is unable to respond to the respondent’s submissions, which is a fundamental part of hearing a matter.

While the application for permission requires written submissions to be filed by the applicants, death row inmates acting as litigants-in-person often do not have the resources to properly prepare written submissions, and would also rely on making oral arguments to substantiate their case.

See s60G(8) and s60H(6) SJCA

The law provides that only one application for permission or PACC application may be ongoing at one time, unless permission is granted by the judge presiding over the ongoing PACC application to file the separate case.

This would apply to circumstances where, for example, an individual had an ongoing 394H application to review their case, but would like to file a civil suit on a completely separate matter that may affect their conviction.

See s60I SJCA

The law provides that an execution may be carried out even if there is an ongoing application for permission to bring a PACC application, if the person on death row bringing the application had been previously found to have committed an ‘abuse of process’ in a previous PACC application.

See s313 CPC

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