We, the 22 undersigned groups and organisations, are perturbed to hear that Singapore’s Court of Appeal on 25 May ordered the two lawyers who represented Malaysian Nagaenthran K Dharmalingam – M Ravi and Violet Netto – to personally pay costs of S$20,000 (RM64,000) to the Attorney General’s Chambers.
The Attorney General’s Chambers had originally sought personal costs totaling $40,000 against Ravi and Netto for setting out to delay Nagaenthran’s execution by filing unmeritorious applications, which caused it to incur unnecessary costs.
Nagaenthran was convicted of trafficking 43g of heroin in 2010 and given the mandatory death penalty. Despite being a person suffering from an intellectual disability with an IQ of 69, he was subsequently hanged to death at Changi Prison Complex on 27 April.
What is even more shocking is that the five-judge Court of Appeal, led by Chief Justice Sundaresh Menon, made this order for costs a month after the lawyers’ client, Nagaenthran, was executed.
Right to fair trial
It is an affront to the right to a fair trial and justice if the defendant, accused or convicted, or their lawyer is placed at risk of retaliation by prosecutors and courts, including the possibility of being penalised, by having lawyers pay the costs of the prosecution in a criminal case. This will seriously affect the ability of lawyers and their clients to do what is needed, including the filing of the needed applications in the defence of their client.
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Whilst in some jurisdictions, it seems possible that the court can order the defendant, accused or convicted person to pay costs to the prosecution, it is rare. Such laws or practice ought to be repealed.
In 2002 the Law Reform Commission of Western Australia stated that “it is inappropriate for a Defendant who is guilty to pay costs to the Prosecution given that he or she would have already been subject to some other form of court-ordered penalty”.
Another reason for not awarding costs is that the “prosecution team is supported by state resources and is serving a public duty”.
Violation of state’s obligation to protect lawyers
In this case, the Singapore court did not order the defendant, accused or convicted to pay costs to the prosecution but ordered the lawyers that had acted for him to personally pay costs to the prosecution. The act of ‘attacking’ lawyers directly for things done whilst acting for a client is totally unacceptable and unjust.
Rule 18 of the Basic Principles on the Role of Lawyers, a UN instrument adopted in 1990, states: “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
Note that any applications made to court by a lawyer are done with the instructions and approval of their clients, and, as such, even if there are to be cost orders by the court, such cost orders ought to be against the client – ie the accused or convicted in criminal cases – but never against the lawyer personally.
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, Rule 16 of the UN Basic Principles on the Role of Lawyers.
Rule 16 states: “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) … and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
The existence of laws that today allow the court to order an accused or convicted and/or their lawyer to pay costs to the prosecution for the manner the defence of the person was conducted through the legal process or courts would reasonably be considered intimidation, harassment or improper interference with the right to a fair trial, and the professional duties of a lawyer. It is a violation of human rights and justice and, among others, Rule 16.
Unjust to not bring to court’s attention legal arguments and evidence
Such laws and practices may deter lawyers from filing the needed applications to bring to the attention of the court relevant evidence, new legal arguments or points of law – and this may lead to a miscarriage of justice.
We note that ultimately in the criminal justice system, it is the courts and judges who ultimately decide – and no one else, be it the prosecution or the accused (or their lawyer) – on the merits of any application and whether it will affect the conviction or sentence.
Lawyers and prosecutors should never decide on their own whether to bring [any application] to the attention of the court or not, even if it comes to their attention at the 11th hour. They have no choice but to bring it to the attention of the courts, which will consider and make a just decision.
Not bringing some matters for fear of cost orders may lead to a miscarriage of justice. 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 of laws that allows for the accused, convicted or their lawyers to be ordered to pay costs to the prosecution in criminal trials, an example, being Part 18 of Singapore’s Criminal Procedure Code. Section 355 in this part, for example, provides for an accused or convicted to pay cost to “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 costs to prosecution.
Unjust for convicted (or lawyer) to pay prosecution costs
It is reasonable for convicted persons to be ordered to pay compensation or damages to the victims of the crime, but there is no justification for orders to pay prosecution costs in a criminal trial, more so in a death penalty case.
An order for costs and compensation to a successful defendant or accused who has had his or her charges dismissed, withdrawn or been acquitted is also just. The purpose of such an order for costs is to compensate and indemnify the defendant for the costs, loss of liberty and other losses he or she has incurred or suffered in the process of the legal proceedings.
A client also has a cause of action against his or her own lawyer for, among others, professional negligence.
A lawyer too may be subjected to disciplinary proceeding for breach of professional ethics or conduct.
But a lawyer should never be made to personally pay the cost of prosecution in a criminal case where he acts for the accused or the convicted.
Professionalism to ensure justice
We are also appalled by the involvement of the Attorney General’s Chambers or the prosecution in this application for the lawyers to personally pay costs.
The prosecution should act professionally and independently, with the objective of ensuring there is no miscarriage of justice. It is best that the prosecution is not affected emotionally or is seen to be targeting or retaliating against lawyers. The Attorney General’s Chambers, in this case, should never have applied for or asked for the lawyers to personally pay costs.
Based on the Singapore Attorney General’s past press releases, it appears that on 22 February 2022, the Attorney General’s Chambers did file two disciplinary complaints to the Law Society of Singapore against Ravi and another lawyer.
On 23 October 2020, the Attorney General’s Chambers also did file a disciplinary complaint to the Law Society of Singapore against Ravi Madasamy.
Such past incidents of the Attorney General’s Chambers, who also is the public prosecutor, filing disciplinary complaints against individual lawyers is of concern: it raises the perception that the state, the Attorney General’s Chambers and the public prosecutor’s independence and professionalism may be emotionally compromised.
The public prosecutor and the Attorney General’s Chambers should never be seen to be targeting or going after specific lawyers who appeared in criminal trials as lawyers acting for the accused or the convicted.
We urge that Singapore, the judiciary, the public prosecutor, the Attorney General’s Chambers and lawyers act professionally and independently to ensure the right to a fair trial, and lawyers in trials, especially criminal trials, are not subject to any form of intimidation, hindrance, harassment or improper interference in carrying out their professional responsibility as lawyers for the accused or convicted.
At end of 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.
Charles Hector issued this statement on behalf of the 22 groups below:
- Malaysians Against Death Penalty and Torture (Madpet)
- Black Women for Wages for Housework
- Citizens Against Enforced Disappearances (Caged), Malaysia
- German Coalition to Abolish the Death Penalty (GCADP)
- Haiti Action Committee
- International Women’s Rights Action Watch Asia Pacific
- Japan Innocence and Death Penalty Information Center
- Justice Project Pakistan (Lahore, Pakistan)
- Lawyers Collective, India
- Legal Action for Women, United Kingdom
- lifespark – Movement Against The Death Penalty, Switzerland
- Network of Action for Migrants in Malaysia (NAMM)
- North South Initiative
- Persatuan Komuniti Prihatin Selangor dan KL
- Persatuan Sahabat Wanita Selangor
- Safety and Rights Society (SRS), Bangladesh
- The William Gomes podcast, UK
- Think Centre, Singapore
- Transformative Justice Collective
- Women of Color Global Women’s Strike
- Workers Hub For Change (WH4C)