SINGAPORE: The Court of Appeal on Friday (Oct 23) granted a judicial review in the case of a drug trafficker on death row, after finding a "seeming inconsistency" between an affidavit tendered by the state and known facts.
Lawyer M Ravi had appealed against an earlier court decision dismissing a judicial review for his client, Syed Suhail Syed Zin, 44, who was set to hang last month for a 2015 conviction of possessing heroin for trafficking.
Mr Ravi argued discrimination in the scheduling of execution, saying that even though another prisoner, Datchinamurthy Kataiah, had been sentenced to death before Syed, the date of execution for his client was set earlier.
This is a violation of Article 12 of Singapore's Constitution, which guarantees a right to equal protection, said Mr Ravi.
He argued that the order of execution "does not share a logical nexus with the date of sentencing" and deprived Syed of his right to a fair trial. If the sequence of execution does not follow the order of sentencing, Syed may be deprived of time to adduce new evidence that could allow him to have his case reheard, Mr Ravi argued.
Chief Justice Sundaresh Menon, along with Appeal Judges Andrew Phang and Judith Prakash, granted Syed a judicial review as the threshold to do so was crossed based on the inconsistency between the state's affidavit and known facts.
The affidavit was filed for the state by Mr Lim Zhi Yang from the Ministry of Home Affairs, and stated reasons for the way executions are scheduled.
Mr Lim wrote that it was possible that "in scheduling the execution of sentences, the resolution of different supervening factors based on policy considerations that apply to different offenders may result in the date of execution of sentence for an offender who was sentenced to death later being scheduled ahead of the date of execution of sentence for an offender sentenced to death earlier".
Syed was originally scheduled to hang on Sep 18.
Mr Lim said that at the point of scheduling, Syed was the earliest to have been sentenced to death among all offenders in the same position as he was at the time.
Deputy Chief Prosecutor Francis Ng said this "disposes completely of any argument that Article 12 has been breached" and urged the court to dismiss the appeal.
Chief Justice Sundaresh Menon told Mr Ng that he accepted in principle that the state has a measure of flexibility in deciding how to schedule executions, such as when some prisoners take out judicial applications but others do not.
However, he said, this flexibility "has to be exercised in a way that is rational and doesn't offend considerations of fairness".
"To give you an extreme example, it cannot be right that the state can decide that a certain category of prisoners will have executions indefinitely deferred, whereas another category (has them) carried out," said the Chief Justice.
The fact that a prisoner who had his death sentence pronounced later than another inmate, but yet had his execution scheduled earlier raises "a reasonable suspicion that something is amiss", said the Chief Justice.
Mr Ng said the prosecution was concerned that there would be "an ever-changing case that we have to address" if leave was granted to Mr Ravi for a judicial review.
The Chief Justice assured him that the only issue before the court was Syed's case.
Mr Ng urged the court to allow the prosecution to file a further affidavit explaining the circumstances of Datchinamurthy Kataiah's case, but the court did not grant this.
In granting Syed a judicial review, the court said it should be dealt with "expeditiously" in the high court, with "no drip feeding of evidence" either by Syed or by the state.
The granting of the judicial review comes one week after Mr Ravi had his application for another review of the court's 2018 decision to uphold Syed's conviction and death sentence dismissed by the Court of Appeal.
The High Court will hear the judicial review of Syed's case at a later date.