SINGAPORE: A High Court judge on Monday (May 20) struck out an application that 36 death row inmates filed over a legal aid scheme's policy not to provide assistance for post-appeal applications.
In an application on May 9, the inmates said that the policy of the Legal Assistance Scheme for Capital Offences (LASCO) was not to assign counsel for applications made after the appeal process has been exhausted.
They sought the court's declaration that this policy was unconstitutional.
"I understand the applicants' argument to be that the LASCO policy amounts to a 'blanket ban' on the assignment of LASCO counsel for post-appeal applications, which consequently affects their ability to bring post-appeal applications, thereby infringing upon their 'access to justice and right to legal representation'," Justice Dedar Singh Gill said in his decision on Monday.
He struck out the inmates' entire application after finding that it contained "no reasonable cause of action".
LASCO is a scheme run by the Supreme Court that offers free legal counsel for those charged with capital offences, regardless of nationality. The accused persons are assigned lawyers to present them at trial and on appeal.
According to the guidelines governing the scheme, LASCO counsel will be assigned when the accused person faces trial for a capital charge, and may be assigned to an appeal where capital punishment is an issue.
The guidelines also state that in the case of appeals or other applications before the Court of Appeal, the LASCO counsel's assignment will "cease immediately upon … the pronouncement of the verdict disposing of the appeal or application".
The Attorney-General did not dispute the existence of LASCO's policy not to assign counsel for post-appeal applications.
In his findings, Justice Gill said that the distinction between an appeal and a post-appeal application was noteworthy.
"Unlike an appeal which is available to accused persons as of right, a post-appeal review is a process that occurs after the merits have been reviewed not only at trial but on appeal," he said.
It is a "discretionary process that is made available to avert possible miscarriages of justice in rare cases where there has been some development in terms of the law or the evidence", he added, quoting a previous High Court judgment.
The inmates' arguments relied on two provisions in Article 9 of Singapore's Constitution.
Article 9(3) states: "Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice."
Justice Singh said the inmates' argument was that Article 9(3) of the Constitution "entitles them to be represented by LASCO counsel not only at the trial and appeal stages but also for post-appeal applications".
He found that Article 9(3) did not disclose any right of accused persons to be provided counsel or legal aid.
Instead, he concluded that LASCO was "perfectly entitled to adopt or change its policy regarding its provision of legal aid".
He also noted that there may be various reasons for LASCO's policy not to provide legal aid for post-appeal applications. These include allocation of resources to new accused persons who have yet to undergo the trial or appeal process, and to prevent abuse of the system.
Article 9(1) states: "No person shall be deprived of his life or personal liberty save in accordance with law."
Justice Singh said the lack of LASCO counsel for post-appeal applications did not deprive the accused persons of their right to life or personal liberty.
He pointed out that the inmates were convicted and sentenced with capital punishment after having their cases heard at the trial and appeal stages.
"They have not been sentenced to capital punishment on the basis of the LASCO policy. It thus cannot be seriously contended that the LASCO policy has deprived them of their right to life and personal liberty," he said.
Justice Singh also said that LASCO's policy did not deprive the inmates of their "alleged right of access to justice".
"A person is not deprived of access to justice or access to the courts just because he is not provided with free legal representation," he said.
"Such a person still retains his right to obtain the representation of legal counsel on his own accord."
The judge also dealt with the inmates' claim that LASCO's policy was applied inconsistently, breaching Article 12 of the Constitution on equal protection before the law.
The inmates raised a few examples when LASCO counsel was assigned for post-appeal cases, to argue that there was unequal treatment.
But Justice Singh found that the inmates failed to establish themselves as equally situated with those examples, because those cases predated the introduction of LASCO's policy, which he traced to late 2017 or after 2017.
"The applicants cannot be considered to be in the same class as persons who requested for LASCO post-appeal representation prior to 2017, who would have been subject to a different policy," he said.
Justice Singh noted that this was not the first time that arguments of a "similar tenor" by the same applicants were heard by the court.
Applicants should not be deterred from filing applications with merit to prevent the miscarriage of justice, said the judge.
But applications brought "at an eleventh hour and without merit" could be seen as a "stopgap" measure to delay the carrying out of the offender's sentence, he said, quoting a previous judgment.
The 36 inmates include 34 convicted drug offenders and two convicted murderers - Iskandar Rahmat and Teo Ghim Heng - who face the death sentence. They were not represented by lawyers for this application.
During their hearing on May 9, which was held in chambers and closed to the media, they had asked the court for more time beyond the two weeks they were given to make written submissions.
The inmates had described themselves as "jailhouse litigants" who needed help from family and friends to make submissions, and faced difficulties preparing their case while in prison.
Justice Gill did not adjourn the case to give the inmates more time. He said they must have known the basis for their application when they filed it, and would not need more than two weeks to make the submissions.
Related:
