Saturday, April 30, 2022

If You Believe that There is Class Nobody Gives a S**About – You Must be a S***

 

The hot news yesterday was the fact that the Court granted a stay of execution for Mr. Datchinamurthy Kataiah (“Datchi”), a Malaysian Tamil who was due to be hanged today (29 April 2022). What makes this case so newsworthy is the fact that Mr. Datchi was one of 13 inmates who had taken out a suite against the Attorney-General’s Chambers (AGC) because it was found that the Prison Service had been copying letters between the prisoners and their then lawyer and forwarding them to the Attorney-General’s Chambers (AGC) in April 2020.

The hearing against the AGC was set for 20 May 2022. However, Mr. Datchi was informed on 21 April 2022 that he was going to be hanged on 29 April 2022. Mr. Datchi was forced to go to court without legal representation to get a stay of execution and despite having no representation, he managed to get the stay. The AGC filled for an immediate appeal against setting aside this execution, which was subsequently rejected by the Court of Three Judges. The story can be found at:

https://www.singaporelawwatch.sg/Headlines/court-grants-stay-of-execution-for-inmate-who-has-civil-case-pending-against-a-g

 


 As with all death penalty cases, this was a highly emotive affair. On one hand you have the activist against the death penalty. On the other, you have the crowd that sees “Western Liberalism” as the cause of all ills and every death sentence passed down is a victory for “Asian Values.” As was reported by the Independent Singapore reported, attitudes based on online comments seem to have hardened in favour of the death penalty. The report can be found at:

https://theindependent.sg/netizens-sg-authorities-double-down-on-defending-nagaenthrans-execution-for-drug-convictions/?utm_medium=Social&utm_source=Facebook&fbclid=IwAR0SJq8JkOjxcuoQa0DZ9xemobBirwj4xZ2O9FcV_e5UKIq-WN6HKCxI-_0#Echobox=1651146921

I’m going to leave the legalities and moralities of the death penalty to people who are wiser and far smarter than me. What I will focus on, is something that is more troubling – namely the way in which this case has been pursued because it shows us something very fundamental about the rule of law in Singapore, which is supposed to be one of the key selling points of Singapore.

Let’s start with the facts that nobody disputes. Mr. Datchi was caught with 44.96g of heroin in April 2015. So, as per the penal code he has to be hanged. However, he has the right to go through various avenues of appeal, which are more often than not unsuccessful but because we claim to value the rule of law and we don’t want to make mistakes, we have to allow for various avenues of appeal until everything is exhausted. As this involves the court, the process can run into several years.

Just as nobody disputes that Mr. Datchi was caught with the amount of heroin that mandates the death sentence, it is clear that sometime in April 2020, Mr. Datchi and several inmates made a complaint that their correspondences with their lawyer, were being copied by the Prison Service and forwarded to the AGC. It is not in doubt that the courts have ruled that the Prison Service has no right to copy correspondences and forward them onto the AGC without the prisoner’s consent. Mr. Datchi and his group have launched a civil action against the AGC.

Its clear that there are two separate issues here. One, is Mr. Datchi’s crime of having been caught with heroin and the other is violation of the basic rights that should have been accorded to Mr. Datchi and his group. These are two separate issues that need to be resolved separately. One could say both are equally important to society – one involves the “scourge of drugs” and the other involves “violation of legal process.”

I will stress that I am not a qualified lawyer and I would be interested in what a qualified legal professional might say. However, as one of those issues involves ending Mr. Datchi’s life, it comes across as common sense that the civil action against the AGC be resolved before Mr. Datchi’s execution.

So, given that this was what would be the logical way of dealing with the two separate affairs, how was it such that Mr. Datchi was informed on 21 April 2022 that he was to be executed on 29 April 2022, when the court system knew that he was involved in a civil proceeding against the AGC on 20 May 2022. Logic has it that the civil action set for 20 May 2022 would be highly compromised if one of the key players in that action was to be removed. Why would the AGC, with all the resources of the state at its disposal need to go through all of this to hobble the civil action that is be heard on 20 May 2022?

The impression that the AGC was trying to hobble the Civil Action of 20 May 2022 was further compounded by the urgency in which an appeal against the court ordering a stay of the execution was filed.

An account of the dialogue between the AGC and the three judges is recorded on the Facebook page of Mr. Too Xing Ji, an activist who was at court on 28 October 2022:

https://www.facebook.com/too.xing.ji

 


 


 


 






I will qualify that I don’t know Mr. Too personally. I came across his post via the Facebook page of a cousin. As such, I can’t verify the accuracy of his transcription. However, I notice that some of the people who have liked his post are qualified lawyers.

What I will say from my personal reading and understanding of this transcription, it appears that the very senior lawyer from the AGC got a dressing down from the two of the three judges. One of the most damning statements came from Justice Andrew Phang states “Due process is a very strange but necessary creature.” Why would a judge need to explain the importance of due process to a senior lawyer from the AGC?

Throughout the exchange, the judges kept telling the AGC that this was not a hypothetical situation and that it was important to see through the civil action. Justice Judith Prakash states “There is no suggestion the facts are made up. The letters were disclosed when they should not have been,” and Justice Phang told the AGC “This is not a hypothetical question that we sometimes pose in law school for learning, and you would know about that, because you went to law school, and it is a good learning exercise. Here we have a real life person, and you cannot ignore that. It might be slightly different if the consequences were not so dire, but given that they are so dire, frankly I am surprised that the AG is pursuing this appeal.

Throughout this dialogue, it is clear that the judges believe that something has not gone right between the prison service and the AGC. One of the key moments comes when Justice Phang says ,“ This is not the vanilla sort of action. It stems from our unusual observations in Gobi about breach of prison procedure. And then this action is filed. And it is unlikely it will be filed everyday. In fact, I hope this action will not be filed everyday, because they involve very serious allegations about the prison and what has been going on.

To the common man, the Justice is saying that something, somewhere has gone wrong. Due process, which is one of the things that underwrites the “rule of law,” which in turn one of the things that underwrites Singapore Society, has been violated somewhere along the line.

Just as its clear that Mr. Datchi got caught with the heroin, it should be clear that the due process of law was violated. While it is unlikely that the civil action will have an effect on the outcome of the criminal trial, the civil trial is likely to show that the state did on act in the most above-board of ways, when it came to the judicial process.

It’s a good sign that the judges stood by the rule of law and ruled without fear or favour. In order for the rule of law to be maintained you need to have judges who are willing to rule according to facts. Judges who don’t do what is expedient for the rich and more importantly, the powerful.

However, its sad to see the AGC rushing to have a man executed, particularly when the man looks like he can embarrass the government. The AGC is effectively the government’s lawyer. It should be a body that people see as playing an active role in ensuring that the law works for people regardless of who they are. It should not, as it appears to be in this case, being seen as a body that protects the interest of powerful people at the expense of the poor and unfortunate.   

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Maira Gall