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:
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.
No comments
Post a Comment