By Teo Soh Lung
The Newpaper reported on 9 Dec 2016 that the Court of Appeal comprising Chief Justice Sundaresh Menon and Judges of Appeal Chao Hick Tin and Andrew Phang “gave notice that lawyers who submit such last minute applications will now have to explain why they could not raise the arguments during earlier appeals.”
TNP went on to say that the court had recently faced a string of last-minute applications from death-row convicts and wants a stop to what it sees as an abuse of the court process.
I do not know how many last-minute applications have been argued before the court and over what period of time. But four death row prisoners had appealed against the sentence of death in the first week of December.
The applications raised constitutional arguments touching on the separation of powers under our constitution – that the legislature, executive and judiciary have separate powers and functions. This principle has never been argued in capital cases relating to the requirement of a prosecutor’s certificate confirming that the convicted offender had assisted in “disrupting drug trafficking activities” before his case can be reviewed by a High Court judge who can then decide to grant him life and caning instead of the death.
Earlier this year, there were two applications from Kho Jabing who faced imminent execution. A few months later, one application from a Nigerian, Chijioke Stephen Obioha who argued that an eight-year wait in death row amounts to cruel and inhuman punishment. As the High Court is now in recess till January 2017, I think there will not be any other applications for the year.
Six death row prisoners in one year have caused the judges to issue the stern and unreasonable warning to lawyers not to file last minute applications without reasons. I hope that the Law Society of Singapore being “one of the major components of civil society” (to use the words of the president) will speak up on behalf of all the brave lawyers who not only volunteered their money, time and effort to save lives but who received endless criticisms from the bench.
I was at the hearing of the applications of two of the six prisoners – Kho Jabing and Chijioke Stephen Obioha. The judges sat to hear both applications after 5 pm.
Kho Jabing
In Kho Jabing’s case, the registry staff probably worked till the early hours of the morning. I was told that just before midnight, they sent a notice to the lawyers that his application would be heard at 9.30 am the next day. That compelled the lawyers to return to their office to work through the wee hours of the morning. They sacrificed their sleep.
Who caused all those extended hours of work for the judges, staff of the registry and lawyers? Could not the application be heard the following week or month? What was the urgency? To hang the man on the scheduled date and time so as not to trouble the president at the Istana or waste the time of the executioner waiting at the gallows?
Kho Jabing was hanged three hours after the verdict. I was eating my lunch when I received the news. It was chilling and everyone who heard it was upset. What was the urgency? Why deny his mother, sister and cousins who came from Sarawak a few more visits?
When it all started
I think it all started with the case of Kho Jabing. I was in court when the judges kept chiding the lawyers for filing last minute applications. They were clearly agitated. But if they would pause to look and think about the man in the dock who was fighting for his life, I think they would not be so unhappy that their valuable time was being “wasted” by lawyers.
Kho Jabing was a native of Sarawak, a Iban who I think did not understand the English language. He had an interpreter but how much of what the judges said was interpreted to him, I do not know.
I felt terrible sitting in the gallery, listening to all the petty utterances from the bench. I felt so sorry for the poor, simple minded Iban who in his own unselfish culture in Sarawak must feel bewildered though gratified that so many lawyers have acted for him gratis and so many young people paid for the airfares of his mother and sister to come to Singapore to meet him before his death.
Why deny the prisoner?
The hearing of the application of Chijioke Stephen Obioha was equally disturbing. The judges kept asking for the reasons as to why the application was made at the very last minute. The young lawyer could not answer as he was instructed just a few days ago. He did not represent the prisoner in his trial or appeal. The judges kept harping on the fact that it was not the first time that Chijioke Stephen Obioha had filed last minute applications after the execution date was fixed. They should have asked his previous lawyers and not the newly appointed lawyer. They must have voiced their unhappiness four or five times.
Chijioke Stephen Obioha’s family do not live in Singapore and they were not in court. The judges didn’t think that in this day and age, there would be problems communicating with the prisoner. As a former prisoner myself, I can confirm that there are huge problems. Every letter to an inmate goes through several hands and may never reach him. Emails are helpful but the inmate does not have access to a computer. In the end, Judge Andrew Phang himself volunteered the answer. He said “You (the lawyer) don’t know the answer”. The lawyer agreed.
Chijioke Stephen Obioha was silent in the dock. I think he understood the words of the judges but he did not interject or tell his minders that he wished to speak with his lawyer or address the judges. He probably knew he had no chance with the hostile words from the bench.
After the hearing, the judges did not dismiss the application immediately but adjourned to deliberate. The prisoner was led out of the court and the observers sat glumly waiting for the inevitable verdict.
When the judges emerged after more than half an hour and sat on the bench again, the lawyer for Chijioke Stephen Obioha informed them that his client would like to explain why he had made the last minute application. Judge Andrew Phang hesitated and without consulting his fellow judges said he did not wish to hear him. In any case he said, the reason was “not central.”
If the reason for the last minute application was “not central”, then why harp on that throughout the hearing?
I cannot imagine how Chijioke Stephen Obioha felt that evening. It was incredible that he did not burst into tears and sob aloud when he was denied his request to speak. Maybe he was terrified.
What were his thoughts when he walked with shackled feet to the gallows at dawn. Would he question why he was denied the opportunity to explain why his application was made so late in the day. Perhaps in the next world, Chijioke Stephen Obioha will find the answer.
Chijioke Stephen Obioha’s lawyer had argued that it was cruel and inhuman punishment to be on death row for eight years and that his sentence should be commuted to life and caning. The judges did not agree and said that it was Chijioke Stephen Obioha’s filing of last minute applications that delayed his execution. The blame for the delay was on him and not on the State which took time (about two years) to draft the new law pertaining to the discretionary powers of the prosecutor to issue the certificate necessary to beg for his life.
The ground that eight years on death row constitutes cruel and inhuman punishment has never been argued before the Singapore courts though it had been successfully canvassed elsewhere. It seems strange to me that the judges were disinterested in the argument even if this application was made at the very last minute. Surely life is precious and more important than judicial time.
Very few people know how death row inmates live in Changi Prison. I may be wrong but I understand that prisoners are confined to a row of single cells with iron bar gates. The gallows are located on the same floor as the cells so that when a shackled prisoner walks or is dragged crying, singing or shouting to the gallows, it is within view and hearing of the others. The operation of the gallows is within the hearing of the prisoners. The loud cranking sound when the floor board opens and the prisoner drops to his death is heard by all prisoners. I am told the floor trembles. If being confined for eight years in such hellish condition is not cruel and inhuman punishment, I don’t know what is.
Representing death row prisoners who are mostly impoverished, demands the highest calling from lawyers. They should be complimented, appreciated and encouraged, not condemned and looked upon as trouble makers. These lawyers are not paid by the State under so called pro bono schemes. They acted for these prisoners out of the goodness of their hearts and their sense of justice. They are brave lawyers and ought to be praised and recognised for their selflessness and commitment to justice. The Law Society of Singapore and the judiciary should recognise their contributions. To be reprimanded for doing what they did is not what we expect of a civilised society.