MALAYSIA Tanah Tumpah Darahku


Tuesday, May 31, 2022

Group: Ordering Nagaenthran’s lawyers to pay cost an affront to justice


A group comprising 20 civil society organisations has criticised Singapore’s Court of Appeal for ordering Nagaenthran K Dharmalingam’s lawyers to personally pay the cost of S$20,000 (RM64,000) to the country’s Attorney-General’s Chambers (AGC).

In a statement, they said the AGC had initially sought S$40,000 from the lawyers in question, M Ravi and Violet Netto, for setting out to delay Nagaenthran’s execution by filing unmeritorious applications.

This was said to have resulted in the incursion of unnecessary costs.

“What is even more shocking is that the five-judge Court of Appeal, led by Chief Justice Sundaresh Menon, makes this cost order a month after the said lawyers’ client, Nagaenthran, had been executed,” said the group.

The statement was co-signed by 20 local and international civil society groups including Aliran, Malaysians Against Death Penalty and Torture (Madpet), the North-South Initiative, Black Women for Wages for Housework, and Lawyers Collective (India).

They described such an order as an affront to the right to a fair trial and justice.

“This will seriously impact the ability of lawyers and their clients from doing the needful, including the filing of needed applications in the defence of their clients.

“Whilst in some jurisdictions, it seems possible that the court can order the defendant/accused/convicted person to pay the cost to the prosecution, it is rare.

“Such laws or practices ought to be repealed,” they said.

They cited the Law Reform Commission of Western Australia’s 2002 statement that it is inappropriate for a defendant who is guilty to pay costs to the prosecution given that they would have already been subject to some form of court-ordered penalty.

The group noted that in this case, the Singapore court did not order the defendant to pay the cost to the prosecution.

“The existence of laws, and this action of the Singapore court ordering lawyers to personally pay the cost of prosecution, is a violation of, amongst others, of Rule 16 of the UN Basic Principles on the Role of Lawyers,” they said.

Rule 16 states that governments are to ensure that lawyers are able to perform all professional duties without any form of intimidation and improper interference.

Additionally, it states that lawyers are not to be threatened with prosecution, economic or any other sanctions for actions done in their line of duty, standards and ethics.

The group called on the Singaporean government to immediately repeal its laws that allow for the accused, the convicted or their lawyers to be ordered to pay costs to the prosecution in criminal trials.

“It must be appreciated that new evidence or relevant legal points or arguments may arise at different times, warranting additional applications.

“Such additional applications should never be seen as an abuse of the court process, more so in death penalty cases.

“Hence, we call on Singapore to immediately repeal laws that allow for the accused/convicted and/or their lawyers to be ordered to pay the cost to the prosecution in criminal trials, an example being Part 18 of Singapore’s Criminal Procedure Code,” they said.

Section 355 provides for the accused or convicted to pay the cost “to any other party to the proceedings”, which in criminal trials would be the prosecution.

Section 357 provides the possibility that a lawyer may end up paying the cost to the prosecution.

The group argued that it is reasonable for the convicted to be ordered to pay compensation or damages to the victims of the crime.

However, they said, there is no justification for orders to pay prosecution costs in a criminal trial, more so in a death penalty case.

“At end of the day, it is the role of the courts to consider any or all evidence and legal arguments, irrespective of how late it comes to the attention of the court to ensure that there is no miscarriage of justice especially when the convicted may be executed.”

Mentally impaired

Nagaenthran was a 33-year-old mentally impaired Malaysian, who was sentenced for a drug trafficking offence in Singapore.

He had been on death row for more than a decade for trafficking about 42.7g of heroin into Singapore, which has some of the world's toughest narcotics laws.

His lawyers had said he has a mild intellectual disability due to his lower-than-average IQ of 69.

Nagaenthran was scheduled to hang on Nov 10 last year but was granted a stay of execution on Nov 8 after his Singaporean lawyer M Ravi filed an 11th-hour constitutional challenge.

Although the Singapore High Court dismissed the challenge, it allowed an appeal to the Court of Appeal.

The appeal was supposed to be heard in November but was postponed to March this year when Nagaenthran tested positive for Covid-19 on Nov 9, 2021.

However, his appeal was again rejected on March 29 this year.

Nagaenthran was executed April 27 after his mother failed, the day before, in her last-ditch legal challenge to set aside his conviction and death sentence. - Mkini

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