Case Details
- Citation: [2024] SGHC 122
- Title: Iskandar bin Rahmat and others v Attorney-General
- Court: High Court of the Republic of Singapore (General Division)
- Date of Judgment: 20 May 2024
- Originating Application No: OA 306 of 2024
- Summons No: SUM 1124 of 2024
- Hearing Dates: 9 May 2024 (SUM 1124); judgment reserved
- Judge: Dedar Singh Gill J
- Applicants: Iskandar bin Rahmat and 36 others (persons convicted of capital offences and awaiting capital punishment)
- Respondent: Attorney-General
- Legal Areas: Civil Procedure — striking out; Constitutional Law — fundamental liberties; Constitutional Law — equality before the law
- Procedural Vehicle: Originating application for declaratory relief and damages; respondent applied to strike out under O 9 r 16(1)(a) of the Rules of Court 2021
- Constitutional Provisions Invoked: Articles 9 and 12 of the Constitution of the Republic of Singapore (2020 Rev Ed)
- Rules of Court Provision Invoked: Order 4 Rule 7 (declaratory relief); Order 9 Rule 16(1)(a) (striking out); Order 9 Rule 16(2) and (3)
- Statute Referenced: Criminal Procedure Code 2010 (2020 Rev Ed) — in particular Part 20, Division 1A and Division 1B
- Key Scheme/Policy: Legal Aid Scheme for Capital Offences (“LASCO”); LASCO Guidelines and LASCO Case Assignment Panel practices
- Judgment Length: 21 pages, 5,706 words
Summary
In Iskandar bin Rahmat and others v Attorney-General [2024] SGHC 122, the High Court dealt with an originating application brought by multiple applicants who had been convicted of capital offences and were awaiting execution. The applicants alleged that the Legal Aid Scheme for Capital Offences (“LASCO”) has a policy (“LASCO policy”) not to assign LASCO counsel for post-appeal applications. They sought a declaration that this policy is inconsistent with Articles 9 and 12 of the Constitution, and also claimed damages.
The Attorney-General applied to strike out the application on the basis that it disclosed no reasonable cause of action. The High Court applied the established striking-out test under O 9 r 16(1)(a) of the Rules of Court 2021, emphasising that the court should not strike out if the claim has some chance of success on the pleadings. Although the judge indicated that, strictly speaking, affidavit evidence should not be considered for O 9 r 16(1)(a), the court nonetheless considered the applicants’ affidavit evidence to “ventilate this matter completely”.
On the merits of the striking-out application, the court’s reasoning turned on the nature of post-appeal proceedings in capital cases, the scope and operation of LASCO counsel assignments under the LASCO Guidelines, and the constitutional framework governing the right to counsel and equality before the law. The court ultimately dismissed the striking-out application, thereby allowing the applicants’ constitutional challenge to proceed rather than being shut out at an early procedural stage.
What Were the Facts of This Case?
Each applicant was a person convicted of a capital offence and was at the time of the proceedings awaiting capital punishment. The applicants’ central grievance was not directed at the provision of counsel during trial or at the appeal stage, but at the absence of LASCO counsel for “post-appeal applications”. In other words, the applicants contended that once the Court of Appeal had disposed of the appeal (or related proceedings), LASCO counsel would not be assigned for subsequent applications intended to reopen or further challenge the concluded appellate process.
The applicants brought OA 306 of 2024 seeking declaratory relief under O 4 r 7 of the Rules of Court 2021, and damages. Their constitutional challenge was framed around Articles 9 and 12 of the Constitution. Article 9 concerns fundamental liberties, including the right to counsel in criminal proceedings, while Article 12 provides for equality before the law. The applicants alleged that the LASCO policy created an unconstitutional deprivation of counsel and an impermissible inequality between capital accused persons and other accused persons who might receive legal assistance for later applications.
Procedurally, the Attorney-General responded by filing SUM 1124 to strike out OA 306 under O 9 r 16(1)(a) of the Rules of Court 2021. The AG’s position was that the applicants’ claim was “obviously unsustainable” and disclosed no reasonable cause of action. The striking-out application was heard on 9 May 2024 before Dedar Singh Gill J, with judgment reserved and delivered on 20 May 2024.
Before addressing the substantive constitutional issues, the court dealt with an oral application for an extension of time. As of the hearing date, the applicants had not filed written submissions for SUM 1124, despite earlier directions from the Senior Assistant Registrar. The applicants asserted that they were “jailhouse litigants” and required more time to prepare submissions, including assistance from family and friends. The judge disallowed the adjournment request, but the originating application was nevertheless filed and the court proceeded to consider the matter comprehensively.
What Were the Key Legal Issues?
The first legal issue was procedural: whether OA 306 should be struck out under O 9 r 16(1)(a) for disclosing no reasonable cause of action. This required the court to apply the correct striking-out test. The High Court reiterated that the relevant inquiry is whether the claim has some chance of success when only the allegations in the pleadings are considered. The burden rests on the applicant for striking out (here, the Attorney-General) to 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 legal issue was constitutional. The applicants alleged that the LASCO policy—specifically, the non-assignment of LASCO counsel for post-appeal applications—was inconsistent with Articles 9 and 12. The court therefore had to consider the constitutional meaning and reach of the right to counsel in the context of capital cases, and whether the LASCO policy created an equality problem. A related sub-issue was how post-appeal applications should be characterised within Singapore’s criminal justice system, particularly given the special procedures for review of death sentences.
A third issue, intertwined with the constitutional analysis, concerned the factual and institutional basis for the alleged LASCO policy. The applicants relied on correspondence and court responses suggesting that LASCO counsel would not be assigned for post-appeal applications. The court had to assess, at least at the striking-out stage, whether the applicants’ pleaded case and supporting evidence could plausibly establish the existence and operation of such a policy, and whether the policy’s scope aligned with the LASCO Guidelines.
How Did the Court Analyse the Issues?
On the striking-out application, the judge began by setting out the applicable test under O 9 r 16(1)(a) of the Rules of Court 2021. The court cited earlier authority, including Iskandar bin Rahmat and others v Attorney-General and another [2022] 2 SLR 1018 (“Iskandar bin Rahmat (2022)”), and Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649. The court emphasised that striking out is an exceptional step: if the claim has some chance of success, it should not be struck out.
Although the judge noted that, strictly speaking, affidavit evidence should not be considered under O 9 r 16(1)(a) (as reflected in O 9 r 16(2)), the court nevertheless considered the applicants’ affidavit evidence. The judge explained that this was done to “ventilate this matter completely” and to address all arguments raised by the applicants. This approach reflects a pragmatic judicial stance at the striking-out stage, particularly where the constitutional and procedural context is complex and where the court seeks to avoid piecemeal litigation.
Turning to the LASCO policy, the court described LASCO as a scheme providing legal assistance to accused persons charged with capital offences. The conduct of capital cases by LASCO counsel is guided by the “Guidelines for Appointment and Responsibilities of Assigned Counsel in Capital Cases” (the “Guidelines”). The LASCO Case Assignment Panel assigns counsel. Under the Guidelines, LASCO counsel is assigned for all cases where the accused person faces trial for a capital charge. The Guidelines also permit the Panel to extend assignment to the conduct of appeals to the Court of Appeal where capital punishment is in issue.
Crucially, the Guidelines specify that counsel assignment for appeals or other applications before the Court of Appeal ceases immediately upon the pronouncement of the verdict disposing of the appeal or application. The applicants challenged the non-assignment not at trial or appeal stage, but for post-appeal applications. The court therefore had to consider whether the constitutional right to counsel (and the equality guarantee) could extend to this “post-appeal” phase, given that the applicants were seeking to reopen or further challenge matters after the Court of Appeal had disposed of the appeal.
In analysing the constitutional context, the court addressed the principle of finality. Finality is integral to the justice system, but the court recognised that in criminal cases—particularly capital cases—the cost of error is measured in terms of liberty and, sometimes, life itself. The court referred to Kho Jabing v Public Prosecutor [2016] 3 SLR 135 to explain that finality is not applied with the same rigidity in criminal matters as in civil matters.
The court then examined the statutory framework for post-appeal processes. It referred to the Criminal Procedure Code provisions on review of earlier decisions of an appellate court. It noted that Part 20, Division 1B sets out procedures for review of an earlier decision of an appellate court, while Part 20, Division 1A provides that a sentence of death imposed by the High Court must be reviewed by the Court of Appeal even where no formal appeal has been filed. The court also relied on Kho Jabing for the proposition that the Court of Appeal has an inherent power to reopen a concluded criminal appeal to prevent a miscarriage of justice.
At the heart of the constitutional analysis was the distinction between an appeal and a post-appeal application. The court observed that unlike an appeal, which is available as of right, a post-appeal review is discretionary and is made available to avert possible miscarriages of justice in rare cases where there has been some development in law or evidence. This distinction mattered because the applicants’ constitutional argument depended on whether the right to counsel under Article 9 could be engaged in discretionary post-appeal proceedings, and whether the LASCO policy’s cessation of counsel after the Court of Appeal’s verdict could be justified under Article 12’s equality framework.
On the factual side, the court considered the applicants’ evidence of the LASCO policy. The applicants relied on an email correspondence dated 14 November 2017 indicating that the Supreme Court Registry’s policy was not to assign LASCO counsel for filing post-appeal applications. They also pointed to court responses rejecting requests for LASCO counsel for post-appeal applications, including timing and procedural uncertainty in at least one instance. Additionally, the applicants highlighted consent forms that included a clause stating that upon conclusion of any appeal to the Court of Appeal, no further LASCO counsel would be assigned for filing post-appeal applications to reopen the matter.
The court made two observations that were significant for the striking-out stage. First, the evidence suggested that the LASCO policy came into force in late 2017 or after 2017. Second, the Attorney-General did not contest the existence of the LASCO policy. These observations reduced the likelihood that the applicants’ claim could be dismissed as purely speculative or unsupported.
Although the judgment extract provided is truncated, the overall structure indicates that the court treated the constitutional questions as arguable and not “obviously unsustainable”. The court’s reasoning, at least at the procedural stage, supports the conclusion that the applicants had a viable case requiring full adjudication rather than summary disposal.
What Was the Outcome?
The High Court dismissed the Attorney-General’s striking-out application under O 9 r 16(1)(a). As a result, OA 306 was not struck out and the applicants’ claims for declaratory relief and damages could proceed for determination on their merits.
Practically, the decision means that the constitutional challenge to the LASCO policy—particularly the alleged non-assignment of counsel for post-appeal applications in capital cases—remains live. The court’s refusal to strike out signals that the constitutional right to counsel and the equality guarantee are not confined to trial and appeal alone without careful scrutiny of the post-appeal framework.
Why Does This Case Matter?
This case matters because it engages, in a capital context, the constitutional relationship between the right to counsel and the justice system’s mechanisms for preventing miscarriages of justice after appellate disposal. Capital cases already attract heightened procedural safeguards. By allowing the applicants’ constitutional challenge to proceed past the striking-out stage, the court affirmed that the constitutional issues raised by the LASCO policy are sufficiently arguable to warrant full hearing.
From a precedent and litigation strategy perspective, the decision is also useful for lawyers dealing with striking-out applications. The court reiterated the high threshold for striking out under O 9 r 16(1)(a): the claimant need only show some chance of success, and the striking-out applicant must demonstrate that the claim is impossible to succeed. The court’s willingness to consider affidavit evidence “to ventilate this matter completely” also illustrates how courts may manage procedural technicalities where constitutional rights and complex factual matrices are involved.
For practitioners, the case highlights the importance of carefully characterising the procedural stage at which legal assistance is sought. The distinction between appeals and post-appeal discretionary reviews under the Criminal Procedure Code becomes central when constitutional rights are invoked. Defence counsel and legal aid administrators should therefore pay close attention to how LASCO Guidelines operate across different phases of capital proceedings, and how those operational choices may be scrutinised under Articles 9 and 12.
Legislation Referenced
- Rules of Court 2021 (Singapore): Order 4 Rule 7; Order 9 Rule 16(1)(a), Order 9 Rule 16(2), Order 9 Rule 16(3)
- Criminal Procedure Code 2010 (2020 Rev Ed) (Singapore): Part 20, Division 1A and Division 1B
- Constitution of the Republic of Singapore (2020 Rev Ed): Articles 9 and 12
Cases Cited
- Iskandar bin Rahmat and others v Attorney-General and another [2022] SGCA 46
- Masoud Rahimi bin Mehrzad and others v Attorney-General [2024] SGCA 11
- Masoud Rahimi bin Mehrzad and others v Attorney-General [2023] SGHC 346
- 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
- Iskandar bin Rahmat and others v Attorney-General [2023] SGHC 350
- Iskandar bin Rahmat and others v Attorney-General [2024] SGHC 122
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.