MADPET and 73 groups condemn retaliation against Thai HR Defenders for highlighting HR violations?

Joint Statement – 13/06/2016

Statement on the Reprisals against Human Rights Defenders, Ms. Pornpen Khongkachonkiet, Ms. Anchana Heemmina, and Mr. Somchai Homlaor

We, the undersigned civil society groups, are gravely concerned about the legal action taken by the Royal Thai Army for criminal defamation and Computer Crimes Act violations against Woman Human Rights Defenders (WHRD) Ms. Pornpen Khongkachonkiet, Ms. Anchana Heemmina, and HRD Mr. Somchai Homlaor.  Ms. Pornpen, is the Director of the Cross Cultural Foundation – an organization which monitors and documents cases of torture and ill-treatment in Thailand. Mr. Somchai, is the President of the Cross Cultural Foundation, and Ms. Anchana is director of Duay JaiGroup (Hearty Support Group) – a local organization based in Thailand’s ‘Deep South’, which supports people who suffer from the justice system in national security cases. 

All three are co-editors of a report, Torture and ill treatment in The Deep South Documented in 2014-2015[1] documenting 54 cases of inhumane treatment in detention, launched on 10^th February 2016. The research and report was partly funded by the United Nations Voluntary Fund for Victims of Torture, established under the General Assembly resolution 36/151 in 1981, thus under the United Nations (UN) Human Rights Council Resolution 12/2 these HRDs and their colleagues are “individuals who cooperate with the United Nations, its representatives and mechanisms in the field of Human Rights.” 

Pornpen Khongkachonkiet

On 8^th June 2016, Internal Security Operations Command Region 4 (ISOC 4) gave information to Ms. Pornpen through a phone conversation that ISOC 4 sought the power of attorney from the Royal Thai Army and submitted a complaint to Yala Mueang Police Station on 17^th May 2016 for criminal defamation and computer-related violations by the three HRDs. The charges are for alleged criminal defamation under Article 328 of the Thai Criminal Code, and violation of the Computer Crimes Act (2007), Article 14(1)[2]. We are disturbed regarding information that authorities have already interrogated six witnesses. The Police case file is No. 704/2559. 

Anchana Heemmina

This judicial action has been taken despite the Human Rights Defenders’ best efforts to engage authorities on the evidence of torture and ill-treatment presented in the report. Namely, the report was sent to Army Lt Gen Wiwat Pathompak, Commander of the 4th Army Region, on 8th January 2016, one month before its publication. However, high-ranking military government officials have publicly dismissed the accuracy of the report and questioned the intentions of the civil society organisations who compiled the report. Furthermore, Ms. Anchana, WHRD working in Thailand’s ‘Deep South’, faced summons to an Army camp, lengthy questioning by Army officers, and close physical surveillance and intimidation by unidentified, uniformed men[3].

Somchai Homlaor

We deem this action by the Royal Thai Army to be a prompt reprisal against civil society groups seeking to bring to the authorities’ attention the continued abuse of power and ill-treatment of detainees in Thailand. The Royal Thai Army has taken these actions at a time when it the Thai military government has renewed the Thailand’s international commitments to abolishing the use of torture. On 11^th May 2016, at the United Nation’s Universal Periodic Review (UPR) of Thailand 12 UN member states issued recommendations directly relating to the prevention of torture and access to justice for survivors of torture. 

Furthermore, on 24^th May 2016 the Thai military government issued a Cabinet Resolution stating that they will pass a Prevention of Torture and Enforced Disappearance Act. It is troubling that the Royal Thai Army has ordered the legal pursuit of HRDs who have been supporting victims of torture as well as pushing at many levels for policy reform and state action to prevent torture and provide justice to survivors. 

We deem the Royal Thai Army’s action to be an unreasonable, arbitrary, and heavy-handed attempt to silence all complaints of allegations of torture against the authorities. By quashing Ms. Pornpen, Ms. Anchana, and Mr Somchai’s efforts to support torture victims to publicly complain about Human Rights violations by authorities, the Royal Thai Army is seeking to make it more than impossible for torture victims to voice their complaints. Moreover, this is a deplorable act by the Royal Thai Army as it aims to further intimidate existing and potential victims of human rights violations to not report these violations. 

Instead of suppressing the work of Human Rights Defenders, such as Ms. Pornpen, Ms. Anchana, and Mr. Somchai, the Royal Thai Army should, as New Zealand recommended at the UPR, “Promptly investigate and prosecute all allegations of torture and extrajudicial killings,” and as Canada recommended, “Create an independent body to investigate all torture allegations, including in Thailand’s Deep South, and bring perpetrators to justice.”

This judicial harassment constitutes a direct infringement of Ms. Pornpen, Ms. Anchana, and Mr. Somchai’s right to work as a Human Rights Defender in Thailand. As stated in Article 1 of the UN Declaration on Human Rights Defenders “Everyone has the right to (individually and in association with others) promote and to strive for the realization of Human Rights and fundamental freedoms at the national and international level.” We believe that the filing of this criminal legal case against Ms. Pornpen, Ms. Anchana, and Mr. Somchai was undertaken with the purpose of retaliation and that it is in response to the three HRDs peaceful and legitimate activities to hold authorities to account for cases of human rights violations, including torture, in Thailand’s ‘Deep South.’

We call on the Royal Thai Army to:

-   Immediately and unconditionally withdraw the legal action against Ms. Pornpen, Ms. Anchana, and Mr. Somchai. Such legal action against the legitimate work of HRDs is against the public interest.

-      Ensure that no further retaliation is carried out or allowed to happen in the future against HRDs, ill-treatment and torture victims, their colleagues and families. 

We call on the Thai military government to:

-      Respect the universally recognized rights, duties and obligations of everyone and organizations to highlight information about Human Rights violations and injustices to the public, as stated in the UN Declaration on Human Rights Defenders; 

-     Ensure that all persons affected by torture and other human rights violations receive justice, including first and foremost the right to complain which must be respected at all times. 

-    Ensure the implementations of recommendations it accepted during the recent UPR with regard to HRDs.

Signed by:

Organisations

Thailand

Aanglumphong Conservation Groups and Archaeological Site กลุ่มอนุรักษ์สิ่งแวดล้อมอ่างลำพอกและโบราณสถาน สุรินทร์

Assembly of the Poor สมัชชาคนจน กรณีเขื่อนปากมูล

Centre for Community Rights to Manage Natural Resources, Chi Basin ศูนย์พิทักษ์สิทธิการจัดการทรัพยากรชุมชนลุ่มน้ำชี

Center to Study and Develop Law for Human Rights ศูนย์ศึกษาและพัฒนานักกฎหมายเพื่อสิทธิมนุษยนชน

Centre to Study and Ecology Habitation of Community Culture in Phetchabun ศูนย์ศึกษาและฟื้นฟูนิเวศวัฒนธรรมชุมชนเทือกเขาเพชรบูรณ์

Chi Basin Network, Yasothon เครือข่ายน้ำชี จังหวัดยโสธร

Community Resource Centre (CRC) มูลนิธิศูนย์ข้อมูลชุมชน

Campaign Committee for Human Rights (CCHR)คณะกรรมการรณรงค์เพื่อสิทธิมนุษยชน (ครส.)

Empower Foundation เอ็มพาวเวอร์

E-saan Human Rights and Peace Information Centre ศูนย์ข้อมูลสิทธิมุษยชนและสันติภาพ

E-saan Land Reform Network เครือข่ายปฎิรูปที่ดินภาคอีสาน

E-saan Network on Natural Resources and Environmental เครือข่ายทรัพยากรและสิ่งแวดล้อมภาคอีสาน

Foundation for Muslim Attorneys Center มูลนิธิเพื่อศูนย์ทนายความมุสลิม

Foundation for Women มูลนิธิผู้หญิง

Gender equality promoting foundation มูลนิธิส่งเสริมความเสมอภาคทางสังคม

Human Rights Lawyers’ Association (HRLA) สมาคมนักกฎหมายสิทธิมนษยชน

Land Watch Working Group กลุ่มจับตาปัญหาที่ดิน

Mplus Foundation

Namoon Environmental Conservation Group กลุ่มอนุรักษ์สิ่งแวดล้อมบ้านนามูล-ดูนสาด

Network of Indigenous Peoples in Thailand (NIPT) เครือข่ายชนเผ่าพื้นเมืองแห่งประเทศไทย (คชท.)

Network of Thaiban People Deprived of Rights เครือข่ายไทบ้านผู้ไร้สิทธิ์ สกลนคร

People’s Empowerment Foundation

Prorights Foundation มูลนิธิส่งเสริมและคุ้มครองสิทธิมนุษยชน

Southern Peasant Federation of Thailand (SPFT) สหพันธ์เกษตรกรภาคใต้ – สกต

Saiburi River Association สมาคมลุ่มน้ำสายบุรี

Thai Committee for Refugees Foundation (TCR)

Thai Development Support Center (TDSC) ศูนย์เผยแพร่และส่งเสริมงานพัฒนา(ผสพ)

Thai Working Group for ASEAN Human Rights Mechanism คณะทำงานไทยเพื่อกลไกสิทธิมนุษยชนอาเซียน

Togetherness for Equality and Action (TEA) โรงน้ำชา

Udonthani Environmental Conservation Group กลุ่มอนุรักษ์สิ่งแวดล้อมอุดร

Union for Civil liberty (UCL) สมาคมสิทธิเสรีภาพของประชาชน

WARTANI Media Agency สำนักสื่อ Wartani

WE PEACE สมาคมผู้หญิงเพื่อสันติภาพ

Women Struggle for Livelihood กลุ่มหญิงสู้ชีวิต.

WeMove ขบวนผู้หญิงปฎิรูปประเทศไทย

Women Network for Advancement and Peace เครือข่ายผู้หญิงเพื่อความก้าวหน้าและสันติภาพ

Work and Environment Related Patient's Network of Thailand (WEPT สภาเครือข่ายกลุ่มผู้ป่วยจากการทำงานและสิ่งแวดล้อมแห่งประเทศไทย)

Beyond Thailand

Association of Human Rights Defenders and Promoters (HRDP, Myanmar)

Centre for Independent Journalism (Malaysia)

Center for Sustainable Development in Mountainous Areas (CSDM, Vietnam)

Center for Women's Global Leadership (USA)

LBH Masyarakat (Community Legal Aid Institute, Indonesia)

Malaysians Against Death Penalty and Torture (MADPET)

Malaysian Humanist and Rationalist Movement (MyHARAM)

National Free Trade Union (Sri Lanka)

North South Initiative (Malaysia)

PINAY (Filipino Women’s Organization in Quebec)

PUSAT KOMAS (Malaysia)

Safety and Rights Society (Bangladesh)

The Vietnam Committee on Human Rights (France)

Think Centre (Singapore)

Vietnam Indigenous Knowledge Network (VTIK)

Vietnamese Women for Human Rights (VNWHR)

Workers Hub For Change (WH4C, Malaysia)

Regional/International

Amnesty International

ASEAN Youth Forum

Asia Indigenous Peoples Pact (AIPP)

Asia Pacific Forum on Women, Law and Development (APWLD)

AWID

Civil Rights Defenders

FIDH, within the framework of the Observatory for the Protection of Human Rights Defenders

Focus on the Global South

FRIDA | The Young Feminist Fund

International Labor Rights Forum (ILRF)

Migrant Forum in Asia (MFA)

Nazra for Feminist Studies

Network of Patani's Citizens Outside the Motherland

Protection International

Southeast Asian Press Alliance (SEAPA)

The Asian Forum for Human Rights and Development (FORUM-ASIA)

UPR Info AsiaUrgent Action Fund for Women's Human Rights

Urgent Action Fund Latin America

Women Living Under Muslim Laws

World Organisation Against Torture (OMCT), within the framework of the Observatory for the Protection of Human Rights Defenders

Individuals

Ms.  Kanungnit Makchuchit  คนึงนิจ  มากชูชิต

Ms. Naiyana  Waikham นัยนา  หวายคำ

Ms. Chantawipa   Apisuk จันทวิภา อิสุข

Mr. Jumpol  Apisuk จุมพล อภิสุข

Mr. Bordin Saisaeng Researcher, Institute of Human Rights and Peace Studies, Mahidol University บดินทร์ สายแสง สถาบันสิทธิมนุษยชนและสันติศึกษา มหาวิทยาลัยมหิดล

Chompunut Chalieobun ชมพูนุท เฉลียวบุญ

Dr. Eakpant Pidavanija Lecturer, Institute of Human Rights and Peace Studies, Mahidol University เอกพันธุ์ ปิณฑวณิช สถาบันสิทธิมนุษยชนและสันติศึกษา มหาวิทยาลัยมหิดล

Mr. Ismail Hajiwaechi นายอิสมาอีล ฮายีแวจิ 

Assistant Professor Dr Naruemon Thabchumpon, Political Science Faculty, Chalulongkron University ผศ.ดร. นฤมล ทับจุมพล คณะรัฐศาสตร์ จุฬาลงกรณ์มหาวิทยาลัย

Lecturer Ngamsuk Rattanasatian Lecturer, Institute of Human Rights and Peace Studies, Mahidol University งามศุกร์ รัตนเสถียร สถาบันสิทธิมนุษยชนและสันติศึกษา มหาวิทยาลัยมหิดล

Mrs. Ruengrawee Pichaikul นางเรืองรวี พิชัยกุล

Sor Rattanamanee Polkla, Lawyer

Thaweesak Pi, Social Activist นายทวีศักดิ์ ปิ นักกิจกรรมทางสังคม

Victor Bernard

William Nicholas Gomes, Human Rights Defender and Freelance Journalist, UK

Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights, Human Rights Working Group (HRWG, Indonesia)

ANNEX 1 - Human Rights Defender Profiles

Ms. Pornpen is a leading Human Rights Defender in Thailand who has been involved in various Human Rights issues both in Thailand and the region, including women’s rights, indigenous rights and preventing forced disappearances. Her work serves the public interest by ensuring that authorities are held accountable and pressuring authorities to unconditionally respect the Human Rights of all. As Director and President of the Cross Cultural Foundation, Ms. Pornpen and Mr. Somchai have constantly been monitoring and documenting cases of torture and Human Rights violations in Thailand’s southernmost provinces and other parts of the country

Mr. Somchai is a seasoned and respected Human Rights lawyer in Thailand, who has been fighting to defend people’s Human Rights for the past 25 years. He was a Commissioner for the Law Reform Commission of Thailand until it was disbanded by the current military regime. Furthermore, as president of the Cross Cultural Foundation he has been a key figure forging bridges across Thai society. Cross Cultural Foundation organises educational activities, as well as research and legal support to promote people’s Human Rights, especially in Thailand’s southernmost provinces which are in a state of prolonged armed conflict. In September 2014, both Ms. Pornpen and Mr. Somchai, as well as their organization, faced a criminal defamation and computer-related crimes charge filed by Army Task Force 41. The case was eventually dropped by decision of the state prosecutor in June 2015 following an international campaign denouncing the Thai Army’s harassment and intimidation of these HRDs for their legitimate and crucial Human Rights work.

Ms. Anchana is Director of Duay Jai Group which has been working with victims of ill-treatment in national security cases since January 2010, in Thailand’s southernmost, conflict-affected regions. Following the release of the report on torture cases, on 14^th February, Col. Suratep, Head of the Civil Society Organisations unit under the Internal Security Operations Command ('ISOC'), contacted Ms. Anchana and other activists who were involved in compiling the report and summoned them for a discussion. Ms. Anchana presented herself at Sirinthon Army Camp in Yala Province for the discussion with seven security officers. The meeting lasted two and a half hours, during which the officers questioned Ms. Anchana about the cases in the torture report. The officers expressed their discontent with the report and requested the human rights defender to henceforth submit all of her publications to the ISOC prior to their release. Ms. Anchana refused to do so. Thai Lawyers for Human Rights (TLHR)[4] reported that at about 5 pm on Friday, 19^th February 2016, a group of ten men in green uniforms visited the home of Ms. Anchana, in Songkhla Province, but only Ms. Anchana’s mother was home. Without presenting any warrant, they claimed to be border police officers and asked about Ms. Anchana’s work and her personal information. The activist’s mother reported that the men took pictures of her and the house. She added that before they left they told her to inform Ms. Anchana not to use Line, a chat application, or Facebook.

---

[1]               https://voicefromthais.files.wordpress.com/2016/02/torture-report-english-as-of-10-feb-2016-realeased-version.pdf [in English]

[2]               Computer Crimes Act, Article 14.1
“Whoever commits the following offences, shall be punished with imprisonment not exceeding five years and fin not exceeding on hundred thousand baht or both:
(1) input, into computer system, forged computer data in whole or in part or false computer data in a manner likely to cause injury to another person or the public;”

[3]               See Annex 1 – Human Rights Defender Profiles for more details.

[4]               Source: https://tlhr2014.wordpress.com/2016/02/20/south_threaten/

Kho Jabing - Why Threaten Lawyers? Executed before High Court case heard?

Kho Jabing was executed on 20/5/2016 despite the fact that there was still an High Court application that was filed but not yet heard and decided by the courts. Kho Jabing applied to stay his execution until his High Court case was heard and disposed off BUT...stay was denied. So, the application was never heard - and a grave injustice was done.

Kho Jabing was executed before even he got an answer for his application for Clemency  to the President of Singapore.

Brave lawyers came out, and acted for Kho Jabing filing applications, which were certainly Kho Jabing's right..

But alas, Singapore wanted to execute Kho Jabing on 20/5/2016 - and even court applications were rushed...WHY? WHY THE RUSH TO KILL HIM?

Now, the Attorney Generals Chambers come out with a Statement that, in my opinion, is an 'attack' on the lawyers...I must say that the said lawyers did a great job...and did their best to uphold the cause of justice...

I deal with one allegation..i.e. 

'...that Jabing’s eventual death sentence was not proper because one of the Court of Appeal judges, Andrew Phang Boon Leong JA (“Phang JA”), should not have heard both appeals...'

The AG Chambers seems to say that this point had previously been raised BUT the fact of the matter was that the Court never considered this point before, and never decided on it. Therefore, nothing wrong with raising this point again for the Court to now consider it...as it never before considered it, and ruled on it.

"...Mr Mohan had tried to make the same argument during the review, only to drop it subsequently...."

Now, even if a particular argument  was raised and heard by court before - there will be nothing wrong to raise it again, bringing in some new points or new arguments never considered or taken into account before by the courts - more so in a death penalty case. Nobody wants to wrong sent a person to death...

Alas, that same judge, Andrew Phang, sat to decide whether his presence in the previous Court of Appeal was proper...this, in my opinion, is so very wrong. The court was considering whether Andrew Phang's sitting in the re-sentencing Court of Appeal was wrong - and that same Andrew Phang was in the coram that decided this point - odd and improper in my opinion.

CLEMENCY PETITIONS - Kho Jabing never received a reply yet to the Clemency Petition he submitted. It must also be noted many others also applied to Singapore's President for clemency - and this includes the 3 Malaysian Bars(see relevant news report below). But he was still executed...despite there being pending unanswered Clemency Petition/s - WHY? 

MEDIA STATEMENT

25 May 2016

Abuse of Process of Court in Kho Jabing’s Case 

It is a cherished principle in our legal tradition that a legal practitioner must do his utmost to uphold the administration of justice. He must also conduct proceedings before a court in a manner that maintains the fairness, integrity and efficiency of those proceedings. 

2 In this context, it is important to set the record straight concerning the multiple applications filed by three lawyers who appeared before the courts on behalf of convicted murderer Kho Jabing (“Jabing”) on 19 and 20 May 2016 -- namely Mr Gino Hardial Singh (“Mr Singh”), Ms Jeannette Chong-Aruldoss (“Ms Chong-Aruldoss”) and Mr Alfred Dodwell (“Mr Dodwell”). 

3 The facts are clear. Jabing had brutally murdered a construction worker in 2008. His case was considered by both the High Court and Court of Appeal twice – once under the old law, and again after the law on murder was amended. The death penalty was imposed on him in both instances. After Jabing’s rights of appeal had been exhausted, the Court of Appeal gave him a further opportunity to present arguments for his case to be reviewed.

4 In the conduct of his matter, the actions of Jabing’s three lawyers amounted to an abuse of court processes. Simply put, this was a case where, after every legitimate avenue for legal challenge had been attempted and exhausted, legal opportunism prevailed.

1 5 First, Jabing’s lawyers repeatedly raised old arguments that had either been dismissed by the Court or withdrawn by Jabing's previous lawyer in the review, Mr Chandra Mohan (“Mr Mohan”).

6 For example, Mr Singh tried to argue that Jabing’s eventual death sentence was not proper because one of the Court of Appeal judges, Andrew Phang Boon Leong JA (“Phang JA”), should not have heard both appeals. However, Mr Mohan had tried to make the same argument during the review, only to drop it subsequently. Mr Singh should have known that it is improper to file a fresh application containing the same ground that had been previously withdrawn. The Court of Appeal pointed this out and also held that it was not improper for Phang JA to have heard both appeals as they dealt with different issues.

7 Another example: On the same day that Mr Singh’s application was due to be heard before the Court of Appeal, Ms Chong-Aruldoss and Mr Dodwell separately tried to file applications to argue that the death sentence imposed on Jabing violated the Constitution. Once again, these arguments were not new, for Mr Mohan had earlier raised them, and the Court of Appeal had dismissed them. Mr Dodwell eventually dropped his application, after the Court queried as to why both lawyers had attempted to file nearly identical applications.

8 Second, knowing that the criminal process had been exhausted, Ms Chong Aruldoss and Mr Dodwell tried to skirt around the law by raising their arguments under the civil process. Both should have known full well that this type of collateral attack on a criminal decision was an abuse of the legal process.

9 Third, Ms Chong-Aruldoss and Mr Dodwell tried to have the execution stayed, and asked for the hearing of both Ms Chong-Aruldoss’ application and her subsequent appeal after she failed to get a stay of execution to be postponed on the basis that they had not had sufficient time to prepare for the matter. And notwithstanding what he told the Court, Mr Dodwell was eventually able to argue the  2 appeal. 

10 The actions of Mr Singh, Mr Dodwell and Ms Chong-Aruldoss are not in keeping with the paramount duty a lawyer owes to the Court. It is wrong for any lawyer to assert that his duty to the client allows the court’s processes to be abused.

ATTORNEY-GENERAL’S CHAMBERS

Media and Communications Unit

Source: AGC Singapore Website

AGC rebuking lawyers who took-up Kho Jabing’s case, ex-LawSoc President speaks up

By The Independent -

May 26, 2016

The Attorney-General’s Chambers suggested on Wednesday (25 may) that the lawyers of convicted murderer Jabing Kho had abused court processes in his case, by filing multiple court applications last week in a bid to delay their client’s execution. Two of the three lawyers identified by AGC, Alfred Dodwell and Jeannette Chong-Aruldoss, have given a hard-hitting rebuttal to such allegations (see this: http://theindependent.sg/agcs-media-statement-is-not-gospel-truth-lawyer-alfred-dodwell-hits-back/)

Now, a former President of the Law Society, Mr Peter Low, has jumped in to defend the lawyers who defended the convicted murderer. We republish Mr Low’s Facebook note in full.

—
Of A Lawyer’s Role In A Public Interest Case

Coming back from interviewing a capital-case client (assigned by the Supreme Court, for which I’ll be paid an honorarium, instead of regular professional fees), here’s my response to AGC’s Press Statement of 25 May 2016.

Jeannette Aruldoss-Chong and Alfred Dodwell honestly thought that they had legitimate reasons to take up the cause of Kho Jabing. Jeannette even paid – from her own pocket – the court fees for filing the court documents and guaranteed the $20,000 deposit for the appeal costs of the Attorney-General. And, both Jeannette and Alfred sacrificed billable hours (and, sleep) to take up the case. Furthest from their minds was “legal opportunism,” whatever that might mean.

In the last 3 over decades, not many senior private sector lawyers have willingly stepped forward to accept unpopular court cases. I hope the AGC’s Press Statement (25 May 2016) will not deter other private sector lawyers from representing clients in public interest litigation, against government agencies and government leaders.

BTW, here’s a statement which our apex court endorsed about the role of lawyers in unpopular causes – and pro bono work. Even in an “apparently hopeless case.”

“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defendants, representatives or advisers for the latter.” Per Lord Peace in Rondel v Worsley [1969] 1 AC 1914, as affirmed by our Court of Appeal in Tang Liang Hong v Lee Kuan Yew & Anor [1998] 1 SLR 97 - The Independent, 26/5/2016

AGC slams lawyers in last-ditch Kho Jabing appeals for abusing court processes

By Valerie Koh

valeriekohsf@mediacorp.com.sg

Published: 10:01 PM, May 25, 2016

Updated: 11:48 PM, May 25, 2016

SINGAPORE — In a strongly-worded statement, the Attorney-General’s Chambers (AGC) on Wednesday (May 25) slammed the three lawyers who represented convicted murderer Kho Jabing for abusing court processes and demonstrating “legal opportunism”, in their last-ditch attempts to save him from the gallows last week.

Kho, a Sarawakian, was executed last Friday afternoon after he had gone before the Court of Appeal five times, with the final two challenges mounted by Mr Gino Hardial Singh last Wednesday and by Mrs Jeannette Chong-Aruldoss a day before the execution was due to take place. Mr Alfred Dodwell was then roped in by Mrs Chong-Aruldoss to argue an appeal against the court’s dismissal of her application.

The apex court had thrown out both appeals, on the basis that they were rehashed arguments, and the judges rapped Mrs Chong-Aruldoss and Mr Dodwell in particular for abusing the process of the court. The judges said such actions could not be allowed or they would “throw the whole system of justice into disrepute”.

Agreeing with the judges, the AGC said in its statement on Wednesday that the actions of the three lawyers were not in keeping with the “paramount duty a lawyer owes to the court”. It added: “It is wrong for any lawyer to assert that his duty to the clients allows the court’s processes to be abused.”

The AGC noted that it is a “cherished principle in our legal tradition that a legal practitioner must do his utmost to uphold the administration of justice”. “He must also conduct proceedings before a court in a manner that maintains the fairness, integrity and efficiency of those proceedings,” it said. “In this context, it is important to set the record straight concerning the multiple applications filed by (Mr Singh, Mrs Chong-Aruldoss and Mr Dodwell).”

The AGC stressed that the facts are clear: Kho had brutally murdered a construction worker in 2008. “His case was considered by both the High Court and Court of Appeal twice — once under the old law, and again after the law on murder was amended. The death penalty was imposed on him in both instances,” the AGC pointed out.

After Kho’s rights of appeal had been exhausted, the Court of Appeal gave him a further opportunity to present arguments for his case to be reviewed. The AGC said: “In the conduct of his matter, the actions of Jabing’s three lawyers amounted to an abuse of court processes. Simply put, this was a case where, after every legitimate avenue for legal challenge had been attempted and exhausted, legal opportunism prevailed.”

Kho’s lawyers had repeatedly raised old arguments, which were earlier dismissed by the court or withdrawn by Kho’s previous lawyer Chandra Mohan. Also, knowing that the criminal process had been exhausted, Mrs Chong-Aruldoss and Mr Dodwell “tried to skirt around the law” by raising arguments through the civil route, the AGC said. Pleading for more time to prepare their arguments, they had also tried to have the execution stayed, and asked for the hearing of Mrs Chong Aruldoss’ application and subsequent appeal postponed.

Separately, the Ministry of Home Affairs on Wednesday issued a statement to rebut “several inaccurate points” that have been made. Among other things, the ministry noted that the lawyers had not made new arguments, despite filing various last-minute applications. “It appeared that the sole purpose of the applications was to try and delay the execution which had been set for May 20, 2016,” the statement said.

Kho was first given the mandatory death penalty in 2010, after he killed Chinese construction worker Cao Ruyin near Geylang Drive by bashing him over the head with a tree branch. He mounted a failed challenge against the murder conviction in 2011, but was spared the hangman’s noose two years later when amendments to the mandatory death penalty regime came into effect. The High Court re-sentenced him to life imprisonment and 24 strokes of the cane.

The prosecution appealed, and his death sentence was re-imposed. He was due to hang on Nov 6 last year but was granted a stay less than 24 hours before he was to be executed, when Mr Mohan contended that he had new evidence. The apex court dismissed the case in April. Kho’s execution was rescheduled to 6am last Friday before the applications by his lawyers.

Following the conclusion of the case, some including lawyer Choo Zhengxi and anti-death penalty campaigner Kirsten Han spoke up for Kho’s lawyers.

“In the best traditions of the bar, Jeannette and Alfred stepped into the breach and argued their client’s case with vigour,” Mr Choo wrote on Facebook. Ms Han shared Mr Choo’s post and thanked “all the lawyers, past and present, who have tried so hard against such massive odds”.

Mrs Chong-Aruldoss and Mr Dodwell also took to social media to give their side of the story.

Mrs Chong Aruldoss said that she had received a call from Kho’s sister, Jumai, who thanked her for her efforts. “I was merely her lawyer acting under her instructions. A lawyer’s job is to explore, pursue and exhaust his/her client’s legal recourses. Jumai would not regret that she had not done enough for her brother. Neither will I regret that I did not do my best for my client,” she said.

Mr Dodwell said the lawyers “firmly believe that Kho Jabing was undeserving of the death penalty”. “So we mounted a constitutional challenge. Only in Singapore can a constitutional challenge be characterised as an abuse of process. If we invoke the supreme law of the land, the courts should not wave it away to hurry toward execution,” he said. - Today Online, 25/5/2016

Bar Council appeals for clemency for Kho Jabing

Mikha Chan

 | May 18, 2016

Malaysian Bar Council hands in letter of appeal for clemency for death row inmate who is to be hanged after being found guilty of murder.

VIDEO INSIDE

KUALA LUMPUR: The Malaysian Bar Council has joined the list of parties appealing for clemency for death row inmate Kho Jabing in Singapore.

Bar Council Human Rights Committee co-chairman Andrew Khoo today handed in the Bar’s letter of appeal to the Singapore High Commission, representing Bar president Steven Thiru as well as Sabah Law Association president Brenndon Soh and Advocates’ Association of Sarawak president Leonard Shim.

“The question of whether Kho Jabing should die, we respectfully suggest and humbly submit, should not depend on the collective decision of a majority of judges,” the appeal reads.

The Bar pointed out that one Singapore High Court judge and two Singapore Court of Appeal justices had opined that Kho had not displayed a “blatant disregard of human life” and so should not be sentenced to hang.

“The fact that learned judges of Singapore have expressed doubts that Kho Jabing exhibited sufficient mens rea or intention to commit the crime of murder should, in and of itself, give rise to concerns whether Kho Jabing should be made to pay the ultimate price for his crime and be sentenced to hang,” the Bar said.

“If there is any doubt about the level of his intention, and there genuinely is, that doubt must be resolved in Kho Jabing’s favour.”

The Bar however clarified that this was not a questioning of the Singaporean justice system, but rather an appeal for the reconsideration of the case and a grant of mercy.

“We ask Your Excellency to take into account that there is genuine doubt whether a death sentence is justified in this case,” the Bar said.

“The death penalty is an irreversible punishment. Once taken, Kho Jabing’s life cannot be returned to him or his family.”

Kho was convicted of murder in 2010 in Singapore and sentenced to the mandatory death penalty on July 30, 2010.

However, after the 2012 review of mandatory death penalties, the High Court re-sentenced Kho to life imprisonment and 24 strokes of the cane on Aug 14, 2013.

However, on Jan 14, 2015, the Court of Appeal re-imposed the death penalty in a three-to-two decision. -
Free Malaysia Today, 18/5/2016

Kho Jabing v Public Prosecutor [2016] SGCA 36 - 19/5/2015 & Comments

It may of be of interest that the law stipulates specifically when it could be the same High Court Judge, or the same Court of Appeal judge can sit - and, as such, when Andrew Phang sat in the Court of Appeal to hear the appeal from the re-sentencing High Court, and subsequent Court of Appeal applications involving Kho Jabing, he should not have... The grounds in this judgment, in my opinion, is wrong.

Would not the legal maxim of construction, expressio unius est exclusio alterius, ie, the express mention of one matter, implies the exclusion of matters which have not been mentioned? Singapore law was very specific as to when the same judge could have heard the matter? For the Court of Appeal Judge,

 Refer to section 4(6) Penal Code (Amendment) Act 2012

(6)  If —

(a)….

(b) any Judge of Appeal, having heard an appeal relating to an offence of murder, is unable for any reason to affirm the sentence or remit the case back to the High Court under subsection (5),

any other Judge of the High Court or any other Judge of Appeal, respectively, may do so.

It is clear that JA Phang, who was in the coram of the Court of Appeal that considered the original appeal against conviction, should or could  have only been in the coram of the Court of Appeal that affirmed the sentence, hence deciding that the case will not be remitted back to the High Court for re-sentencing; OR in the coram of the Court of Appeal that remitted the case back to the High Court for re-sentencing.

There is no provision in the Act that allows for JA Phang to sit in the coram of the Court of Appeal that hears  an appeal on the decision of re-sentencing High Court.

 

The question of the effect of Andrew Phang in the Court of Appeal(re-sentencing) was in fact never considered or determined by any court before. Mistakes of a previous lawyer, should never prejudice the accused, especially one facing the death penalty..

See also:- 

MADPET CONCERNED ABOUT THE UNFAIRNESS OF THE HEARING OF APPLICATION BY KHO JABING CHALLENGING THE VALIDITY OF A COURT OF APPEAL DECISION BECAUSE JA PHANG WAS ON THAT CORAM.?

MADPET:- QUESTIONABLE VALIDITY OF THE COURT OF APPEAL THAT RE-SENTENCED KHO JABING TO DEATH REASON ENOUGH FOR IMMEDIATE STAY OF EXECUTION OF KHO JABING, NOW SCHEDULED FOR FRIDAY 20/5/2016

 

Kho Jabing v Public Prosecutor [2016] SGCA 36

Case Number	:	Criminal Motion No 13 of 2016
Decision Date	:	19 May 2016
Tribunal/Court	:	Court of Appeal
Coram	:	Chao Hick Tin JA; Andrew Phang Boon Leong JA; Woo Bih Li J; Lee Seiu Kin J; Chan Seng Onn J
Counsel Name(s)	:	Gino Hardial Singh (Prestige Law LLP) for the applicant; Francis Ng, Ruth Teng, and Foong Leong Parn (Attorney-General's Chambers) for the respondent.
Parties	:	Kho Jabing — Public Prosecutor

Courts and Jurisdiction – Court of Appeal – Power to reopen concluded appeals

Courts and Jurisdiction – Court of Appeal – Natural justice

19 May 2016

Chao Hick Tin JA (delivering the judgment of the court ex tempore):

1       This is the second time the applicant has filed an application to set aside the sentence of death imposed on him. The first was on 4 November last year, two days before his sentence was to have been carried out. We heard his application the very next day, adjourned it; and at the conclusion of the restored hearing of the application on 23 November 2015, we reserved judgment, granting a stay of execution pending our decision. We dismissed his first application on 5 April 2016. This application was filed yesterday afternoon. Like his first application, it was filed two days before his sentence was to have been carried out.

2       In this application, he says that this court’s decision to sentence him to death on 14 January 2015 was in breach of natural justice and should be set aside. His main argument is that Justice Andrew Phang was a member of the court which first heard his appeal against his conviction in 2011 and ought not to have heard the Prosecution’s appeal against his sentence in 2015. The fact that Justice Phang did, he submits, gives rise to a reasonable suspicion of bias. He says that in doing so, Justice Phang effectively sat on appeal against his earlier decision in 2011. This is a breach of natural justice, he elaborates, because it is akin to having a person be a judge in his own cause. The applicant further contends that this is a new argument which has not yet been advanced and considered. This is not true.

3       When the applicant first applied to set aside the sentence of death on 4 November last year, he made the exact same argument. However, he withdrew his argument on 20 November 2015 when he amended his notice of motion. He did not give any reasons for doing so, but it is plainly his prerogative to amend his motion as he sees fit in order that he might put forward the best case he possibly can. We then considered his application on the basis of his amended motion and we dismissed it. It is an abuse of the process of the court for a person to file an application containing a particular argument, withdraw the argument sometime before the hearing, and then – after his first application is dismissed – file a fresh application premised on the argument which had been withdrawn. If this were allowed, applicants would prolong matters ad infinitum by drip-feeding their arguments one by one through the filing of multiple applications. We cannot allow this. No court would ever allow this. The English courts set their face against this in the 1800s in a case called Henderson v Henderson (1843) 3 Hare 100 and we have affirmed that principle many times before this. For this reason, we would dismiss this motion.

4       But even if the applicant’s argument were completely new, we would still have dismissed his application. The premise of the applicant’s argument is that the court in 2011 and the court in 2015 were effectively deciding the same issue: that is, how he caused the death of the victim and, in particular, the number of blows he inflicted on the victim. Thus, he argues that it was entirely improper for Justice Phang to have heard and decided the matter in 2011 and then to sit in judgment on the Prosecution’s appeal in 2015. This is also plainly wrong.

5       The issue in 2011 was whether the applicant was guilty of murder. To put matters in the correct legal perspective, the question which the Court of Appeal had to decide then was whether the applicant intentionally inflicted an injury on the victim which, in the ordinary course of things, would lead to death. The court held that he did. The question of what sentence to impose was never at issue, because the sentence of death was mandatory at the time. Subsequently, Parliament made amendments to the Penal Code (Cap 224, 2008 Rev Ed) to provide that a conviction for murder of the kind the applicant was found guilty of would no longer attract the mandatory death penalty. Instead, the court was given the discretion to sentence such a convicted person either to death or to a term of life imprisonment. The Penal Code Amendment Act 2012 (Act 32 of 2012) also permits a convicted person like the applicant who was already sentenced to suffer a previously mandatory death penalty to apply for re-sentencing in accordance with the amended law. Thus, the issue before the Court of Appeal in 2015 was what should be the appropriate sentence to be imposed on the applicant for committing murder. When Justice Phang heard the matter in 2015, therefore, he was deciding a completely different issue than he was in 2011. There is no basis for saying that he was being asked to revisit or review his own earlier decision.

6       In courts all over the world, trial judges who decide on the guilt of accused persons are routinely required to pass sentence on them straightaway. The trial judge is best placed to do this because he is the one who is most familiar with the facts of the case. This is necessarily the case under our re-sentencing regime. Applications for re-sentencing are routinely scheduled to be heard before the same trial judges who decided on the guilt of the accused persons at the trial, however many years ago that might have been. It has never been suggested that there is anything improper with that. Indeed, it is the correct and ideal thing to do, as these trial judges are most familiar with the facts of the case and can exercise their discretion appropriately.

7       Likewise, Justice Phang’s position was, in relation to the issue under consideration, analogous to that of a trial judge who had first convicted an accused person and is now asked to pass sentence on him after the amendments to the Penal Code granted the courts a limited sentencing discretion in such matters. We cannot see any logical basis for the applicant to argue that Justice Phang’s 2011 involvement meant that the decision made by the court in 2015 was tainted by apparent bias. Indeed, if the amended law had in fact been in force at the time the applicant’s first appeal had been heard, the same coram would have determined both the issues of conviction and sentence.

8       Counsel for the applicant also referred to s 30(3) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed). All we wish to say is that he has, with respect, misread that provision.

9       For the foregoing reasons, we dismiss this application. In conclusion, we only wish to say this. The applicant was arrested in 2008. Eight years and an innumerable number of legal applications later, he still stands before this court. When we delivered judgment on 5 April 2016, we stressed the importance of finality. We said that there comes a point, after the appeals have been heard and the applications for reviews have been decided, when the legal process must recede into the background and give way to the search for repose. We think that time has come.

* What is happening in India, is most likely happening in other countries as well including Malaysia

Why is this important? A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.

Seven in ten prisoners said their lawyers did not discuss case details with them. Nearly 77 per cent said they never met their trial court lawyers outside court, and the interaction in court was perfunctory.

The bias of death penalty against the economically vulnerable

The death penalty seems to perpetuate a “systemic marginalization” against prisoners from vulnerable and marginalized backgrounds.

Written by Shailesh Rai | New Delhi | Updated: May 24, 2016 5:42 pm

A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.“One of the more difficult tasks for me as President was to decide on the issue of confirming capital punishment awarded by courts,” former President APJ Abdul Kalam once wrote. “I thought I should get all these cases examined, to my surprise, almost all cases which were pending had a social and economic bias.”

Last week, the Death Penalty Research Project at National Law University, Delhi released a seminal report on the death penalty. For the first time, researchers tried to interview all prisoners under sentence of death and their families, to understand who gets the death penalty and how, and what it is like to live under sentence of death in India.

What they found, in interviews with hundreds of prisoners and their families over two and a half years, was a system plagued by fundamental flaws.Whose structural foundations “render the systematic erosion of basic protections inevitable”, and where the death penalty seemed to perpetuate a “systemic marginalization” against prisoners from vulnerable and marginalized backgrounds.

Media debates in India on the death penalty almost always erupt around an imminent execution, and focus on whether the punishment is morally justified. However most prisoners sentenced to death in India are not eventually executed. (Less than 5 per cent of those sentenced to death by trial courts during the study after higher courts ruled on their appeals.) Yet issues of how prisoners on death row are treated by the criminal justice system are almost never discussed.

The NLU report emphasizes that its findings do not necessarily suggest that there is any direct discrimination at work – which means that state authorities do not intentionally discriminate against poor or less-educated prisoners. But the disparate impacts that it identifies do raise an important question: is there a degree of indirect discrimination at work, which worsens the impact of the denial of fair trial rights for prisoners from disadvantaged backgrounds?

Indirect discrimination occurs when a seemingly neutral practice or rule impacts particular groups disproportionately, even if it is not intentionally directed at that group.

Almost 75 per cent of the prisoners interviewed were “economically vulnerable”, a category the report’s authors defined using occupation and landholding. There is no direct equivalent government statistic, but about 21 per cent of people in India live below the international poverty line of $1.90 a day, and 58 per cent on below $3.10 a day.

Over half the prisoners worked in the organized sector, their occupations reading like a directory of unstable jobs: auto driver, brick kiln labourer, street vendor, manual scavenger, domestic worker, construction worker.

About 19 per cent of those on death row had attended only primary school (including those who started but dropped out). The comparative national figure is about 32 per cent (2011 census). Many prisoners were disadvantaged on both counts; nine out of ten who had never gone to school were also economically vulnerable, for example.

Why is this important? A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.

Take something as basic as the right to be present at one’s own trial -which is an integral part of the right to defend oneself.Only one in four prisoners interviewed said they had attended all their hearings. Some prisoners said the police would be taken to the court premises by the police and then confined to a court lock-up without being produced in the courtroom.

A prisoner named Muhafiz told researchers that he had only been present in court during the depositions of two witnesses, and had been kept in the lock-up for the rest of his trial. He had never been to school, and said that even his limited presence in court would have been more meaningful if he had been educated.

Even when prisoners were present in court, the report says, “the very architecture of several trial courts often prevents any real chance of the accused participating in their own trial.” Accused persons were usually allowed at the back of the courtroom while proceedings between the judge and lawyers took place in front, out of earshot.

Everyone charged with a crime has the right under international human rights law to an interpreter if they do not understand the language used in court, and to translated documents. But this requirement is rarely met. Over half of the prisoners interviewed said they did not understand the proceedings at all – either because of the court architecture or the language used (often English).

Abed, a prisoner who only understood simple English words, said he could not comprehend large parts of his trial, which lasted for over 12 years. He understood the trial court decision to sentence him to death only after his fellow inmates explained it to him. Another prisoner who knew English told researchers he could not understand the proceedings in his trial as they were conducted in a different state language. The trial court rejected his requests for a translator, and went on to sentence him to death.

Part of an accused’s right to a fair hearing is the right to challenge evidence produced against them. In India, trial courts can question the accused directly at any stage, and the Supreme Court has ruled that accused persons must be questioned separately about every material circumstance to be used against them, in a form they can understand.

The study found that these provisions were routinely violated. Over 60 per cent of the prisoners interviewed said they were only asked to give yes/no responses to a string of questions in their trials, with no meaningful opportunity to explain themselves. A prisoner named Hemrajsaid that the judge only asked him one question – whether he had committed the crime. When Hemraj tried to respond to the evidence put forward by the prosecution, the sessions judge didn’t let him speak, and told him that “the lawyer would handle all that.”

The lawyers typically don’t. Seven in ten prisoners said their lawyers did not discuss case details with them. Nearly 77 per cent said they never met their trial court lawyers outside court, and the interaction in court was perfunctory. (Many of the prisoners chose to hire private lawyers at the trial and High Court, despite their economic vulnerability, because of their fear that the underpaid legal aid lawyers would not be competent or interested.)

And on it goes. In higher courts, prisoners had even less information about their cases, often finding out about developments only through prison authorities or television and newspaper reports. As the report puts it, “There is widespread alienation…among prisoners sentenced to death with an intense sentiment of systemic injustice.”

It isn’t just death row prisoners who face these kinds of violations, of course. (And India isn’t the only country with these problems: Amnesty International has also documented how death row prisoners in countries such as Indonesia face similar flagrant fair trial rights violations.) But given the irreversible nature of the death penalty, it is particularly important that fair trial rights are scrupulously followed in these cases. International human rights bodies agree that every death sentence imposed at the end of an unfair trial violates the right to life. The only way to end this injustice, clearly, is to impose an immediate moratorium on the use of the death penalty, as a first step towards abolition.

On the issue of indirect discrimination, human rights treaty bodies such as the Committee on the Elimination of Racial Discrimination have said that it goes “beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect.”

Indirect discrimination isn’t always easy to prove, and can often only be demonstrated circumstantially. But reliable statistics can go some way in showing that it exists where policies and practices appear to be neutral. UN treaty bodies accept statistics as proof of discrimination, as do many European countries. Combined with the knowledge about the broader societal context prejudices, statistics can make out at least a prima facie case of discrimination.

Indian criminal justice authorities follow several practices which hurt poor or otherwise marginalized prisoners much more than others.What needs investigation is whether these practices are just the offshoots of social and economic inequalities, or whether they have become a form of institutionalized indirect discrimination.

Just last year, the Law Commission concluded in a report on the death penalty, “The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.” The NLU study sets out in stark and dismal detail the evidence for these claims. The death penalty is a lethal lottery in India, and the dice are loaded against some.

(Names of prisoners changed)

Shailesh Rai is Senior Policy Advisor,  Amnesty International India. Views expressed by the author are personal.

– See more at: http://indianexpress.com/article/blogs/the-bias-of-the-death-penalty-against-the-economically-vulnerable/#sthash.uUsBigjG.dpuf

Indian Express, 24/5/2016