On 14 November 2022, four death row prisoners — Datchinamurthy Kataiah, Jumaat bin Mohamed Sayed, Lingkesvaran Rajendaren and Saminathan Selvaraju — attended a court hearing via Zoom. They did not have a lawyer. Datch, who’d prepared as well as he could from a single cell deep in Changi Prison Complex, represented them.
The legal challenge centred on the presumption clauses in the Misuse of Drugs Act. Section 18(1) of the legislation states that, if someone is found in possession of anything containing a controlled drug — or even the keys to any thing or place in which a controlled drug is found — they’re presumed to have the drug in their possession. Section 18(2) builds on this: anyone presumed to have the controlled drug in their possession is also presumed to know the nature of the drug.
This shifts the burden of proof on to the accused, requiring them to rebut these presumptions on a balance of probabilities.
Take this example: if drugs were found in a flat, the prosecution need only prove that Person X was in possession of the keys to the flat. They can then rely on Section 18(1) to presume that Person X had the drugs in their possession, while Section 18(2) assumes that Person X knew what the drugs were. It would then be up to Person X to argue their innocence by convincing the judge that the presumptions are more likely than not to be wrong. How should one prove a negative?
Furthermore, the “balance of probabilities” threshold means that, even if there was some doubt that Person X actually knew about the drugs, they could still be convicted and (if the amount of drugs in question was over the stipulated threshold) sentenced to death. Singaporean law is not unique in having presumption clauses, but it’s especially problematic because the stakes are so high — a matter of life and death.
In their application, the four prisoners argued that this violates their constitutional right to a fair trial, because it’s incompatible with the principle of “innocent until proven guilty”.
In regular criminal cases, it’s the prosecution that has to prove beyond a reasonable doubt that the accused person is guilty.
The prisoners proposed that the Misuse of Drugs Act be interpreted in such a way that it should be enough to show that the presumptions could be wrong, because that would mean that the prosecution failed to prove a case beyond a reasonable doubt.
These are complex legal arguments involving discussions of constitutionality, different thresholds of proof, with references to relevant case law from other jurisdictions. Yet the four prisoners weren’t able to find lawyers to take on the case.
Where are the lawyers?
Between the prospect of cost orders and the sense that pushing back against the state’s determination to kill is politically and reputationally risky, most lawyers in Singapore are unwilling to step into the line of fire.
In August last year, 24 death row prisoners filed a civil suit arguing that the prosecution’s pattern of demanding cost orders on the grounds of abuse of process had denied them access to justice by creating an environment in which lawyers are deterred from taking on post-appeal capital cases.
The Court of Appeal dismissed the case, saying that cost orders were only imposed on lawyers who brought cases that were “plainly unmeritorious”. They insisted that this should not deter lawyers, who would not be slapped with cost orders even if they brought a case that might turn out to be “weak on its merits”. But how should a lawyer figure out before presenting their case in court if it’s “weak on its merits” or “plainly unmeritorious”?
The difficulties of self-representation
Even though activists do our best to provide support with research and pointers, getting that information into prison is also a slow, challenging and unwieldy process. As a rule, prisoners on death row are not able to make phone calls — their main source of communication with the outside world is either through lawyers, or the weekly visit their families are allowed to make. If there is no lawyer going in to see them, they can only rely on their family members to help them.
This often involves activists briefing bewildered families about legal arguments, so that they can relay the information as best they can to the prisoner during their visit. If the prisoner has a question that the family member cannot answer, they have to wait an entire week for an answer, because that relative will have to leave the prison, ask the question, then wait for the next visit before they can pass the message back to the prisoner.
The highest stakes in a system stacked against prisoners
Singapore recognises that accused persons in capital cases have a right to legal counsel, but only at the trial and appeal stage.
Once that appeal is over, the prisoner is not considered as needing a lawyer anymore; as far as the state is concerned, they’re supposed to just sit in prison and wait for death.
In November last year, Parliament passed new legislation that makes it even more difficult for post-appeal applications to be filed.
This challenge against the presumptions clauses in the Misuse of Drugs Act highlights just how much the system is stacked against people like Datch, Lingkes, Jumaat and Sami. When they were first caught with drugs and arrested, they were interrogated by the police without access to legal counsel or legal advice. They were then detained without bail while awaiting their trial, and when it came to their day in court there were these presumption clauses that they were expected to rebut “on the balance of probabilities”.
After going through the trial and appeal process, they were deemed no longer in need of lawyers, leaving them struggling to find legal representation if there were any other cases they wanted to bring before the court.
Throughout all these barriers and difficulties hangs the prospect of the harshest of punishments: the death penalty.
Transformative Justice Collective 