Something’s not right when courts call defending poor, weak and marginalised an abuse of process in capital case

In referring to The Straits Times article ‘Stopping abuse of court process‘, which explained how Singapore’s top court is trying to deal with last-minute applications from death-row convicts who try to escape the gallows, lawyer Eugene Thuraisingam said “something’s not right when our courts call defending the poor, weak and marginalised, an abuse of process in a capital case merely because a serious point of law, involving a new piece of legislation, could (in their view) have been argued earlier.”

Last week, the Court of Appeal comprising Chief Justice Sundaresh Menon and Judges of Appeal Chao Hick Tin and Andrew Phang pointed out that the recent applications before it involving capital drug offenders failed to satisfy the necessary requirements under Section 33B of the Misuse of Drugs Act. The court now requires lawyers who file such last-minute applications to explain why they could not raise the arguments during earlier appeals.

Writing in his Facebook about the notice from the Court, Mr Thuraisingam said: “this provision flies in the face of established common law that the executive cannot decide the punishment in each individual offenders’ case. It is for the judiciary to do so. This is called separation of powers, which is trite in any democracy. This section violates that rule.”

Just in case you are not able to read the post, this is what Mr Thuraisingam said.

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Section 33B of the Misuse of drugs Act is a new section which came into force in 2013. It allows for the Public Prosecutor (the executive) to decide in an individual’s case, whether the individual lives or dies.

This provision flies in the face of established common law that the executive cannot decide the punishment in each individual offenders’ case. It is for the judiciary to do so. This is called separation of powers, which is trite in any democracy. This section violates that rule.

Being a new section, it takes time for lawyers to come to terms with the section and formulate serious arguments.
Unfortunately, our Courts have held that notwithstanding the fact that four men faced the ultimate penalty for being innocent couriers, it is an abuse of process and a waste of judicial time to bring what is at the very least a controversial law for clarification before them, simply because it had already been in existence for two years, and could have been argued earlier.

Something is not right when our courts call defending the poor, weak and marginalised, an abuse of process in a capital case merely because a serious point of law, involving a new piece of legislation, could (in their view) have been argued earlier.