Case Details
- Citation: [2023] SGHC 346
- Title: Masoud Rahimi bin Mehrzad & 35 Ors v Attorney-General of Singapore
- Court: High Court (General Division)
- Originating Application No: 987 of 2023
- Summons No: 3096 of 2023
- Decision Date: 21 November 2023 (Judgment reserved; decision delivered 5 December 2023)
- Judge: Hoo Sheau Peng J
- Applicants: Masoud Rahimi bin Mehrzad and 35 other prisoners awaiting capital punishment
- Respondent: Attorney-General of Singapore
- Legal Area: Civil Procedure (striking out); Constitutional Law (equality before the law; fundamental liberties)
- Constitutional Provisions Invoked: Articles 9 and 12 of the Constitution of the Republic of Singapore (2020 Rev Ed)
- Statutory Provisions Challenged: Sections 60G(7)(d) and 60G(8) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed), introduced by s 2(b) of the Post-appeal Applications in Capital Cases Act 2022 (No. 41 of 2022) (“PACC Act”)
- Procedural Vehicle: Striking out under O 9 r 16(1)(a) and O 9 r 16(3) of the Rules of Court 2021 (“ROC”)
- Key Procedural Context: The PACC Act had been enacted but had not come into force at the time of the application; the impugned provisions were therefore not yet operative
- Judgment Length: 30 pages; 8,611 words
Summary
In Masoud Rahimi bin Mehrzad & 35 Ors v Attorney-General [2023] SGHC 346, a group of prisoners awaiting capital punishment sought constitutional declarations that two provisions introduced by the Post-appeal Applications in Capital Cases Act 2022 (“PACC Act”) were void. The impugned provisions were ss 60G(7)(d) and 60G(8) of the Supreme Court of Judicature Act 1969 (“SCJA”), which govern the Court of Appeal’s permission stage for post-appeal applications in capital cases (“PACC applications”). The applicants argued that the permission threshold requiring a “reasonable prospect of success” and the ability to summarily deal with permission applications without setting them down for hearing violated their rights to fair trial and access to justice under Article 9, and were inconsistent with Article 12.
The Attorney-General applied to strike out the originating application under O 9 r 16(1)(a) of the Rules of Court 2021 on the basis that it disclosed no reasonable cause of action. The High Court (Hoo Sheau Peng J) accepted that the striking-out test required the court to assess whether the applicants’ pleadings had some chance of success, but also emphasised that constitutional challenges must satisfy threshold requirements such as locus standi and the existence of an actual or arguable violation of personal rights. A central difficulty for the applicants was that the PACC Act had not yet come into force, and the impugned provisions were therefore not operative at the time the constitutional challenge was filed.
What Were the Facts of This Case?
The applicants were 36 prisoners awaiting capital punishment. They brought an originating application in the High Court seeking declarations that two provisions introduced by the PACC Act were unconstitutional. The constitutional challenge was framed around the permission stage for PACC applications, which are applications made by prisoners after all appeals in their capital cases have been exhausted. The PACC regime was designed to create a structured process for such post-appeal applications, while also incorporating safeguards intended to prevent abuse of process.
Under the PACC Act, new provisions were introduced into the SCJA as ss 60F to 60M. In broad terms, a prisoner seeking to file a PACC application must first obtain “PACC permission” from the Court of Appeal. The Court of Appeal, when deciding whether to grant permission, must consider four matters in s 60G(7)(a)–(d), including whether the proposed PACC application has a “reasonable prospect of success”. The applicants’ challenge focused on s 60G(7)(d), which requires the Court of Appeal to assess the reasonable prospect of success at the permission stage.
The second challenged provision, s 60G(8), allows a PACC permission application to be “summarily dealt with by a written order” without being set down for hearing. The applicants contended that this summary process would prevent them from effectively canvassing their arguments before the court at a stage where their life and liberty were at stake.
However, a crucial factual and procedural point was that the PACC Act had been enacted and assented to, but had not yet come into force. As a result, the impugned provisions were not yet operative when the applicants filed OA987. The Attorney-General therefore argued that the constitutional challenge was premature and that the applicants could not show an actual or arguable infringement of their personal rights because the challenged provisions were not yet affecting them.
What Were the Key Legal Issues?
The first legal issue was whether the applicants met the threshold requirements for bringing a constitutional challenge in the form and at the time they did. This included questions of locus standi and whether there was an “actual or arguable” violation of personal rights. The High Court had to consider whether the non-operative status of the PACC Act at the time of filing meant that the applicants’ claims disclosed no reasonable cause of action.
The second issue was whether, even if the challenge was not barred for prematurity or lack of locus, the applicants had a viable claim on the merits. In particular, the court had to consider whether the permission threshold requiring a “reasonable prospect of success” and the summary written disposition mechanism were capable of being unconstitutional under Articles 9 and 12.
These issues were addressed within the procedural framework of a striking-out application. The court therefore also had to determine the appropriate test to apply under O 9 r 16(1)(a) of the ROC: whether the originating application, based on the allegations pleaded, had some chance of success, and whether the constitutional pleadings were sufficiently arguable to survive the striking-out stage.
How Did the Court Analyse the Issues?
The court began by setting out the applicable principles for striking out under O 9 r 16(1)(a) of the ROC. The Attorney-General relied on the established approach that, for striking out, the court should consider whether the action has some chance of success when only the allegations in the pleadings are taken into account. This is a relatively low threshold, but it is not a mere formality: if the pleadings are incapable of sustaining a legal claim, the court may strike them out.
In addition, the court considered the nature of constitutional declarations sought by the applicants. While constitutional litigation is often approached with sensitivity to access to justice, the court still requires that applicants demonstrate a legally relevant basis for the court’s intervention. The Attorney-General’s submissions emphasised that where declarations are sought, the burden lies on the applicants to show that they have a viable legal claim to begin with. The court therefore had to reconcile the permissive “some chance of success” standard for striking out with the substantive threshold requirements for constitutional standing and justiciability.
A key part of the analysis concerned the applicants’ argument that the impugned provisions were unconstitutional because they would allegedly deny fair trial and access to justice. The applicants’ position was that s 60G(7)(d) imposed an onerous predictive assessment at the outset by requiring a “reasonable prospect of success”, and that s 60G(8) allowed summary dismissal without a hearing, allegedly preventing meaningful engagement with the court at a stage where the outcome could be determinative.
However, the court also had to confront the AG’s threshold argument that the PACC Act had not come into force and the provisions were not operative. The AG’s case was that the applicants could not show an actual or arguable violation of personal rights because the challenged mechanisms were not yet being applied to them. The court accepted that this non-operative status was highly relevant to whether the applicants had an arguable constitutional grievance at the time of filing. In other words, the court treated the timing and operational effect of the impugned provisions as central to whether the originating application disclosed a reasonable cause of action.
On locus standi and justiciability, the court examined whether the applicants had the necessary standing to seek declarations and whether there was a real controversy. The applicants asserted that they had standing as convicted persons under capital sentence whose constitutional rights were obstructed or hindered by the impugned provisions. The AG countered that, because the provisions were not yet in force, they were not currently affecting the applicants’ rights, and thus the constitutional challenge was a “non-starter”. The court’s reasoning reflected the principle that constitutional courts require more than abstract disagreement with legislative policy; there must be an arguable infringement of rights that is legally relevant to the applicants’ position.
Although the truncated extract does not reproduce the court’s full merits analysis, the structure of the judgment indicates that the court addressed both issues: first, whether the threshold requirements were met (including the effect of non-enactment/ non-operational status), and second, whether the applicants’ constitutional arguments could, in principle, establish a viable claim under Articles 9 and 12. The court ultimately concluded that the originating application should be struck out, meaning that the applicants’ pleadings did not disclose a reasonable cause of action.
What Was the Outcome?
The High Court granted the Attorney-General’s striking-out application under O 9 r 16(1)(a) of the ROC. In practical terms, OA987 was dismissed at an early stage because the court found that the applicants’ constitutional pleadings did not meet the threshold requirements for a viable claim. The effect of the decision was that the applicants could not proceed with the constitutional declarations in the form and timing they had chosen.
The outcome also signals that, in Singapore constitutional litigation, courts will scrutinise whether the impugned provisions are operative and whether applicants can show an actual or arguable infringement of personal rights, even where the subject matter is grave (capital punishment) and the applicants are directly affected persons.
Why Does This Case Matter?
This case is significant for constitutional litigation strategy and for the procedural management of high-stakes challenges. First, it illustrates that striking-out applications can be effective even in constitutional cases, particularly where the court considers that the pleadings fail to satisfy threshold requirements such as locus standi, justiciability, and the existence of an arguable violation of rights. Practitioners should therefore treat constitutional claims as requiring careful attention to timing and operational effect, not merely to the substantive constitutional arguments.
Second, the decision is relevant to the broader design of post-appeal mechanisms in capital cases. The PACC regime aims to balance access to further legal review with safeguards against abuse of process. By challenging the permission threshold and summary written disposition, the applicants sought to test whether procedural efficiency would undermine fair trial and access to justice. While the High Court did not allow the challenge to proceed, the case nonetheless highlights the constitutional sensitivity of permission-stage procedures in capital contexts.
Third, the judgment provides a useful reminder about the relationship between constitutional rights and procedural law. Article 9’s protection of fair trial and access to justice is not automatically infringed by procedural mechanisms such as permission thresholds or summary dispositions; however, the court’s willingness to entertain such arguments depends on whether the provisions are operative and whether the applicants can show an arguable personal impact. Lawyers should therefore consider whether to frame constitutional challenges around concrete applications of the law rather than speculative future effects.
Legislation Referenced
- Post-appeal Applications in Capital Cases Act 2022 (No. 41 of 2022)
- Supreme Court of Judicature Act 1969 (2020 Rev Ed), ss 60F–60M (in particular ss 60G(7)(d) and 60G(8)) [CDN] [SSO]
- Rules of Court 2021, O 9 r 16(1)(a) 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) (referenced in the definition of “review application” under the PACC framework)
Cases Cited
- Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649
- Iskandar bin Rahmat and others v Attorney-General and another [2022] 2 SLR 1018
- Tan Eng Hong v Attorney General [2012] 4 SLR 390
Source Documents
This article analyses [2023] SGHC 346 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.