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/Reserved: Judgment reserved after hearing on 9 May 2024
- 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 for Relief: Originating Application for declaratory relief and damages
- Procedural Vehicle for Challenge: Striking out under O 9 r 16(1)(a) of the Rules of Court 2021
- Rules of Court Referenced: Order 4 Rule 7; Order 9 Rule 16 (including O 9 r 16(2) and (3))
- Constitutional Provisions Referenced: Articles 9 and 12 of the Constitution of the Republic of Singapore (2020 Rev Ed)
- Statute Referenced: Criminal Procedure Code 2010 (2020 Rev Ed) (Part 20, Division 1A and Division 1B)
- Key Scheme/Policy: Legal Aid Scheme for Capital Offences (“LASCO”) and the “LASCO policy” not to assign LASCO counsel for post-appeal applications
- Judgment Length: 21 pages, 5,706 words
- Cases Cited (as per metadata): [2022] SGCA 46; [2023] SGHC 346; [2023] SGHC 350; [2024] SGCA 11; [2024] SGHC 122
Summary
In Iskandar bin Rahmat and others v Attorney-General [2024] SGHC 122, a group of applicants who were convicted of capital offences and awaiting capital punishment sought declaratory relief and damages against the Attorney-General. Their central complaint was that the Legal Aid Scheme for Capital Offences (“LASCO”) operates a policy of not assigning LASCO counsel for “post-appeal applications” after the conclusion of proceedings before the Court of Appeal. The applicants alleged that this LASCO policy is inconsistent with constitutional guarantees, particularly Articles 9 and 12 of the Constitution of the Republic of Singapore (2020 Rev Ed).
The Attorney-General applied to strike out the originating application on the basis that it disclosed no reasonable cause of action. The High Court, applying the well-established striking-out test under O 9 r 16(1)(a) of the Rules of Court 2021, considered whether the applicants’ pleadings had any real prospect of success. The court also addressed procedural fairness concerns raised by the applicants, including their request for an extension of time to file written submissions in the striking-out application.
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’ constitutional challenge was not directed at the provision of LASCO counsel during trial or during the appeal stage. Instead, they focused on the period after the Court of Appeal has disposed of the appeal or application, when the applicants sought further post-appeal processes that may reopen concluded criminal matters in rare circumstances.
The applicants brought OA 306 of 2024 seeking a declaration that the LASCO policy—described as a policy to not assign LASCO counsel for post-appeal applications—is inconsistent with Articles 9 and 12 of the Constitution. They also sought damages. The Attorney-General responded by filing SUM 1124 of 2024 to strike out OA 306 under O 9 r 16(1)(a) of the Rules of Court 2021, arguing that the originating application disclosed no reasonable cause of action.
As part of the procedural context, the striking-out hearing took place on 9 May 2024. By that date, the applicants had not filed written submissions for SUM 1124, despite directions from the Senior Assistant Registrar requiring submissions by 6 May 2024. During the hearing, the applicants orally sought an adjournment of four to five weeks, explaining that they were “jailhouse litigants” and required additional time to prepare submissions with assistance from family and friends, as well as due to the practical difficulties of preparing legal materials while in prison. The court disallowed the adjournment, but OA 306 was nevertheless filed.
On the merits of the LASCO policy, the applicants relied on evidence they said demonstrated the existence and operation of the policy. Most notably, they pointed to an email correspondence dated 14 November 2017 to the 1st applicant’s sister, stating that the Supreme Court Registry’s policy is not to assign LASCO counsel for filing post-appeal applications. They also referred to responses over time rejecting requests by some applicants for LASCO counsel in post-appeal applications, and to consent forms for LASCO assignment that included a clause indicating that no further LASCO counsel would be assigned for post-appeal applications to re-open the matter after the conclusion of any appeal to the Court of Appeal.
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 for disclosing no reasonable cause of action. This required the court to apply the striking-out test, which asks whether the claim has some chance of success when only the allegations in the pleadings are considered. The Attorney-General, as the applicant for striking out, bore the burden of showing that the claim was “obviously unsustainable” and that it was impossible, not merely improbable, for the claim to succeed.
The second key issue was constitutional. The applicants alleged that the LASCO policy of not assigning counsel for post-appeal applications violates Articles 9 and 12 of the Constitution. Article 9 concerns fundamental liberties, including the right to counsel in criminal proceedings. Article 12 provides for equality before the law and equal protection of the law. The court had to determine whether the applicants’ pleaded case, if accepted, could establish a constitutional breach.
A further issue, intertwined with the constitutional analysis, was the legal character of “post-appeal applications” in the criminal process. The court examined the distinction between an appeal (which is available as of right in the relevant sense) and post-appeal review processes that occur after merits have been reviewed at trial and on appeal. The applicants’ constitutional argument depended on whether the right to counsel and equality principles extend to these post-appeal stages.
How Did the Court Analyse the Issues?
On the striking-out application, the court began by restating the governing principles. Under O 9 r 16(1)(a) of the Rules of Court 2021, the court should not decide the case on evidence; rather, it should assess whether the claim has some chance of success based on the pleadings. The court cited prior authority for the proposition that if the action has some chance of success, it should not be struck out. Conversely, striking out is appropriate where the claim is unarguably bad and obviously unsustainable.
The court also addressed the procedural limitation in O 9 r 16(2), which generally prevents the court from considering affidavit evidence in a striking-out application. However, the judge indicated that, to “ventilate this matter completely”, he would consider the applicants’ affidavit evidence notwithstanding the strict rule. This approach was taken to ensure the court could address the arguments raised by the applicants fully, even while maintaining the underlying striking-out framework.
Turning to the procedural request for an extension of time, the court considered the applicants’ explanation that they were jailhouse litigants and needed more time to prepare submissions. The Attorney-General emphasised that the applicants had already demonstrated capacity to file substantial affidavit material—such as a 238-page affidavit shortly after the Court of Appeal dismissed an appeal in another related matter—and had filed a supplementary affidavit soon after permission was granted. The court concluded that, even allowing for the constraints of prison litigation, the applicants would not have required more than the two-week period to prepare written submissions for SUM 1124. The adjournment was therefore disallowed.
On the LASCO policy itself, the court analysed the scheme’s structure and the relevant guidelines governing counsel assignment. 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, and may extend assignment to conduct appeals to the Court of Appeal where capital punishment is in issue. The guidelines also provide that counsel assignment for appeals or other applications before the Court of Appeal ceases immediately upon pronouncement of the verdict disposing of the appeal or application.
The applicants’ challenge was therefore framed against a narrower point: the non-assignment of counsel for post-appeal applications. The court acknowledged that finality is an integral part of the justice system, but also recognised that in criminal cases the cost of error is measured in terms of liberty and sometimes life. The court referred to Kho Jabing v Public Prosecutor [2016] 3 SLR 135, which emphasises that finality is not applied in as unyielding a manner in criminal cases as in civil matters. The court then examined the Criminal Procedure Code provisions relevant to review processes after appellate disposition, including Part 20, Division 1A (mandatory review of death sentences by the Court of Appeal even without a formal appeal) and Division 1B (procedures for review of an earlier decision of an appellate court). The court also noted the Court of Appeal’s recognition of an inherent power to reopen a concluded criminal appeal to prevent a miscarriage of justice.
However, the court highlighted the distinction between an appeal and a post-appeal application. Unlike an appeal available as of right, post-appeal review is a discretionary process designed to avert miscarriages of justice in rare cases, typically where there has been some development in law or evidence. This distinction mattered for the constitutional analysis because the applicants’ argument depended on whether the constitutional right to counsel and equality protections extend to discretionary post-appeal processes.
On the evidence of the LASCO policy, the court made two observations. First, the evidence adduced by the applicants suggested that the policy came into force in late 2017 or after 2017. Second, the Attorney-General did not contest the existence of the LASCO policy. This meant the dispute was less about whether the policy existed and more about whether its operation could be unconstitutional and actionable.
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. The constitutional analysis therefore proceeded within a context where the court could consider whether the pleaded constitutional claims had a real prospect of success, rather than being dismissed on procedural grounds.
What Was the Outcome?
The High Court ultimately dealt with the Attorney-General’s striking-out application and the applicants’ constitutional challenge. The judgment’s structure and reasoning indicate that the court approached the matter through the lens of whether the applicants’ pleadings were “obviously unsustainable” under the O 9 r 16(1)(a) test, while also considering the constitutional implications of counsel assignment in post-appeal stages.
Based on the court’s application of the striking-out principles and its analysis of the LASCO scheme and the appeal versus post-appeal distinction, the outcome was that the applicants’ originating application did not proceed in the form sought. The practical effect is that the applicants were not granted the declaratory relief and damages at this stage, and the constitutional challenge was curtailed by the striking-out process.
Why Does This Case Matter?
This case matters for practitioners because it sits at the intersection of constitutional rights and criminal legal aid administration. It raises the question of how far constitutional guarantees—particularly the right to counsel in criminal proceedings and equality before the law—extend beyond the core stages of trial and appeal into discretionary post-appeal review mechanisms. The court’s emphasis on the difference between appeals and post-appeal applications provides a doctrinal framework for future litigants assessing whether constitutional protections apply to later stages of criminal process.
From a civil procedure perspective, the case also illustrates the operation of striking-out applications under O 9 r 16(1)(a). The court reiterated that striking out is reserved for claims that are unarguably bad and impossible to succeed. This is important for lawyers drafting constitutional pleadings: the case underscores that, even where constitutional issues are raised, the pleadings must still disclose a claim with a real prospect of success to avoid early dismissal.
Finally, the judgment is practically significant for the administration of LASCO and similar schemes. While the Attorney-General did not contest the existence of the LASCO policy, the court’s analysis suggests that the constitutional assessment will turn on the legal character of the stage in question (appeal versus post-appeal review), the discretionary nature of post-appeal processes, and the scope of constitutional rights in that context. Defence counsel and legal aid administrators should therefore pay close attention to how counsel assignment policies are framed and justified across different procedural stages.
Legislation Referenced
- Rules of Court 2021 (Singapore): Order 4 Rule 7; Order 9 Rule 16 (including O 9 r 16(1)(a), O 9 r 16(2), and O 9 r 16(3))
- Constitution of the Republic of Singapore (2020 Rev Ed): Articles 9 and 12
- Criminal Procedure Code 2010 (2020 Rev Ed): Part 20, Division 1A and Division 1B
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
- [2023] SGHC 350
- [2022] SGCA 46
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.