Case Details
- Title: ISKANDAR BIN RAHMAT & 35 Ors v ATTORNEY-GENERAL OF SINGAPORE
- Citation: [2024] SGHC 122
- Court: High Court (General Division)
- Originating Application No: 306 of 2024
- Summons No: 1124 of 2024
- Decision Date: 9 May 2024 (hearing); judgment reserved; decision delivered on 20 May 2024
- Judge: Dedar Singh Gill J
- Plaintiffs/Applicants: Iskandar bin Rahmat and 35 others
- Defendant/Respondent: Attorney-General of Singapore
- Procedural Posture: Respondent applied to strike out the originating application under O 9 r 16(1)(a) of the Rules of Court 2021
- Key Procedural Issue: Whether the originating application disclosed no reasonable cause of action (obviously unsustainable claim)
- Constitutional Provisions Invoked: Articles 9 and 12 of the Constitution of the Republic of Singapore (2020 Rev Ed)
- Statutory/Rules Provisions Invoked: Order 4 Rule 7 and Order 9 Rule 16 of the Rules of Court 2021
- Legal Aid Scheme: Legal Aid Scheme for Capital Offences (“LASCO”)
- Core Policy Allegation: “LASCO policy” not to assign LASCO counsel for post-appeal applications
- Reliefs Sought: Declaratory relief that the policy is inconsistent with Articles 9 and 12; damages
- Judgment Length: 21 pages; 5,706 words
Summary
In Iskandar bin Rahmat & 35 Ors v Attorney-General of Singapore ([2024] SGHC 122), the High Court considered an application by the Attorney-General to strike out the applicants’ originating application. The applicants were persons convicted of capital offences and awaiting capital punishment. They alleged that the Legal Aid Scheme for Capital Offences (“LASCO”) has a policy not to assign LASCO counsel for post-appeal applications, and they sought declarations that this policy is inconsistent with Articles 9 and 12 of the Constitution, together with damages.
The court applied the established striking-out test under O 9 r 16(1)(a) of the Rules of Court 2021, focusing on whether the claim had any chance of success when only the allegations in the pleadings are considered. While the court acknowledged that it could not strictly consider affidavit evidence for the striking-out analysis, it nevertheless dealt with the applicants’ arguments comprehensively, including the affidavit material, to “ventilate this matter completely”.
Ultimately, the court dismissed the applicants’ procedural request for an adjournment and proceeded to determine the striking-out application. The judgment’s central thrust is procedural and constitutional: it examines whether the applicants’ constitutional challenge to the LASCO post-appeal assignment policy is “obviously unsustainable” and whether the alleged denial of counsel engages the constitutional guarantees relied upon.
What Were the Facts of This Case?
Each applicant is a convicted person facing capital punishment and currently awaiting execution of sentence. Their case is not about representation at the trial or the initial appeal process. Instead, the applicants’ complaint is narrower and more specific: they allege that LASCO counsel is not assigned for “post-appeal applications”. In practice, this means that after the Court of Appeal has disposed of an appeal (or an application before it), subsequent applications to reopen or review the matter do not attract LASCO counsel assignment.
The applicants brought Originating Application No 306 of 2024 (“OA 306”) seeking declaratory relief and damages. They relied on the constitutional framework, asserting that the LASCO policy violates the constitutional right to counsel and the constitutional guarantee of equality before the law. The alleged policy is described as the “LASCO policy”, and it is said to operate as a blanket rule that prevents LASCO counsel from being assigned for post-appeal applications.
Procedurally, the Attorney-General responded by filing Summons No 1124 of 2024 (“SUM 1124”), applying to strike out OA 306 under O 9 r 16(1)(a) of the Rules of Court 2021. The Attorney-General’s position was that the originating application disclosed no reasonable cause of action. In other words, the Attorney-General argued that the applicants’ claim was not merely weak, but legally unsustainable to the point that it should not proceed to trial or full hearing.
Before addressing the merits of the striking-out application, the court dealt with an oral application for an extension of time. As of the hearing date for SUM 1124, the applicants had not filed written submissions despite directions from the Senior Assistant Registrar. The applicants attributed the delay to their status as “jailhouse litigants”, requiring assistance from family and friends to prepare submissions and facing additional difficulties from preparing their case in prison. The Attorney-General countered that the applicants had demonstrated capacity to file extensive affidavits and supplementary affidavits, and that they should have been able to prepare written submissions within the timeline. The court rejected the adjournment request.
What Were the Key Legal Issues?
The first key issue was procedural: whether OA 306 should be struck out under O 9 r 16(1)(a) of the Rules of Court 2021 on the ground that it disclosed no reasonable cause of action. The court reiterated the relevant test: the action should not be struck out if it has “some chance of success” when only the allegations in the pleadings are considered. The burden on the applicant for striking out is high; it must show that the claim is “obviously unsustainable”, that the pleadings are “unarguably bad”, and that it is “impossible, not just improbable” for the claim to succeed.
The second key issue was constitutional. The applicants invoked Articles 9 and 12 of the Constitution. Article 9 is concerned with fundamental liberties, including the right to counsel in criminal proceedings. Article 12 provides for equality before the law. The court had to determine whether the applicants’ pleaded case—namely, that LASCO counsel is not assigned for post-appeal applications—could plausibly engage these constitutional guarantees.
A further sub-issue concerned the legal characterisation of “post-appeal applications” in relation to the criminal process. The applicants’ challenge depended on whether post-appeal applications are sufficiently connected to the criminal adjudication process such that the constitutional right to counsel should apply, or whether they are better understood as discretionary, exceptional mechanisms where the constitutional analysis differs.
How Did the Court Analyse the Issues?
The court began with the striking-out framework. It cited the approach that, at the striking-out stage, the court asks whether the claim has some chance of success based on the pleadings. It also emphasised the burden on the party seeking striking out: the claim must be obviously unsustainable, with pleadings that are unarguably bad. This is consistent with the principle that striking out is a draconian remedy and should not be used to shut out claims that are arguable on their pleaded facts.
Although the court noted that, strictly speaking, it could not consider affidavit evidence under O 9 r 16(2) of the Rules of Court 2021, it nonetheless chose to consider the applicants’ affidavit evidence to “ventilate this matter completely”. This approach reflects a pragmatic judicial method: while respecting the procedural constraints of striking out, the court ensured that the constitutional and factual context of the LASCO policy was fully canvassed.
On the substantive constitutional question, the court examined the LASCO scheme and its assignment guidelines. LASCO provides legal assistance to accused persons charged with capital offences, and counsel conduct is guided by the “Guidelines for Appointment and Responsibilities of Assigned Counsel in Capital Cases”. The LASCO Case Assignment Panel assigns counsel for all cases where the accused faces trial for a capital charge. However, the guidelines also provide that the Panel “may also extend” the assignment of counsel to the conduct of appeals to the Court of Appeal where capital punishment is in issue. Importantly, the guidelines state that for assignments for appeals or other applications before the Court of Appeal, the assignment ceases immediately upon the pronouncement of the verdict disposing of the appeal or application.
The applicants’ challenge was therefore not directed at the trial stage or the appeal stage. Instead, it targeted the period after the Court of Appeal has disposed of the matter. The court recognised that the principle of finality is integral to the justice system. Yet it also acknowledged that, in criminal cases—particularly capital cases—the cost of error is measured in terms of liberty and, sometimes, life. Accordingly, finality is not applied in as unyielding a manner as in civil matters.
To contextualise post-appeal processes, the court referred to the Criminal Procedure Code provisions on review of earlier decisions of an appellate court. It also relied on the Court of Appeal’s reasoning in Kho Jabing v Public Prosecutor ([2016] 3 SLR 135), including the proposition that the Court of Appeal has inherent power to reopen a concluded criminal appeal to prevent a miscarriage of justice. The court further drew a distinction between an appeal (available as of right) and a post-appeal review mechanism (a discretionary process designed to avert miscarriages of justice in rare cases where there is development in law or evidence).
This distinction mattered for the constitutional analysis. The applicants argued that the denial of LASCO counsel for post-appeal applications should be treated as a denial of counsel in a criminal process engaging Article 9, and that it should be assessed under Article 12 for equality. The court, however, had to consider whether post-appeal applications are sufficiently analogous to the appeal stage such that the constitutional right to counsel applies in the same way, or whether the discretionary and exceptional nature of post-appeal review affects the constitutional threshold.
In addition, the court assessed the evidence put forward to show the existence of the LASCO policy. The applicants relied on correspondence and court responses rejecting requests for LASCO counsel for post-appeal applications. The court made two observations: first, the evidence suggested that the policy came into force either in late 2017 or after 2017; second, the Attorney-General did not contest the existence of the LASCO policy. This meant that the case was not primarily about whether the policy existed, but about whether it was constitutionally permissible and whether the applicants’ pleaded constitutional claims were legally sustainable.
Finally, the court addressed the declaratory relief framework. Under O 4 r 7 of the Rules of Court 2021, the court may make a declaratory judgment or order whether or not any other relief is sought. The Attorney-General did not contest the procedural regularity of OA 306, which narrowed the dispute to the substantive constitutional and striking-out issues rather than to jurisdiction or form.
What Was the Outcome?
The court dismissed the applicants’ oral application for an adjournment. It held that, even taking into account the constraints faced by incarcerated litigants, the applicants would not have required more than the two weeks originally allowed to prepare written submissions for SUM 1124. OA 306 was therefore proceeded with in the context of the striking-out application.
On the striking-out application, the court determined whether OA 306 disclosed no reasonable cause of action. The judgment’s conclusion (as reflected in the court’s treatment of the constitutional arguments and the procedural test) addresses whether the applicants’ constitutional challenge to the LASCO post-appeal counsel assignment policy is sufficiently arguable to survive a striking-out application, or whether it is legally untenable.
Why Does This Case Matter?
This case is significant for practitioners because it engages the constitutional dimensions of legal aid in capital cases, particularly the right to counsel and equality in the context of post-appeal review mechanisms. While LASCO is already a well-established scheme, the judgment focuses on a specific policy boundary: whether counsel assignment can be curtailed after the Court of Appeal has disposed of the matter, and whether that curtailment can withstand constitutional scrutiny.
From a constitutional litigation perspective, the case also illustrates how courts approach the intersection of finality and fairness in capital cases. The court’s discussion of discretionary post-appeal review and the inherent power to reopen concluded appeals underscores that the criminal justice system treats finality differently where the stakes are life and liberty. This provides a doctrinal lens for future arguments about what procedural safeguards must attach at different stages of the criminal process.
For lawyers, the case is also a useful procedural reference on striking out under O 9 r 16(1)(a) of the Rules of Court 2021. It reiterates the high threshold for striking out and clarifies that, while affidavit evidence is generally not considered at the strict pleading stage, the court may still address the factual context to fully resolve the dispute. Practitioners should therefore ensure that constitutional claims are pleaded with sufficient clarity and that the factual basis for the alleged policy is supported, because the court may engage with the evidence even at the striking-out stage.
Legislation Referenced
- Rules of Court 2021 (Singapore): Order 4 Rule 7; Order 9 Rule 16
- Constitution of the Republic of Singapore (2020 Rev Ed): Article 9; Article 12
- Criminal Procedure Code 2010 (2020 Rev Ed): Part 20, Division 1A and Division 1B (review of appellate decisions)
Cases Cited
- Iskandar bin Rahmat and others v Attorney-General and another [2022] 2 SLR 1018
- Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649
- Leong Quee Ching Karen v Lim Soon Huat and others [2023] 4 SLR 1133
- Kho Jabing v Public Prosecutor [2016] 3 SLR 135
- Masoud Rahimi bin Mehrzad and others v Attorney-General [2024] SGCA 11
- Masoud Rahimi bin Mehrzad and others v Attorney-General [2023] SGHC 346
Source Documents
This article analyses [2024] SGHC 122 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.