MASOUD RAHIMI BIN MEHRZAD & 35 Ors v ATTORNEY-GENERAL OF SINGAPORE

Facts

In HC/OA987/2023, 36 prisoners awaiting capital punishment, led by Mr Masoud Rahimi bin Mehrzad, sought declarations that two provisions added to the Supreme Court of Judicature Act 1969 by the Post-appeal Applications in Capital Cases Act 2022 (the PACC Act) were void as inconsistent with Arts 9 and 12 of the Constitution. The PACC Act sets up a procedure for post-appeal applications in capital cases: a prisoner must first obtain permission from the Court of Appeal, which must consider, among other things, whether the application has a reasonable prospect of success (s 60G(7)(d)), and may deal with a permission application summarily by written order without a hearing (s 60G(8)).

The PACC Act was passed on 29 November 2022 and published in the Gazette on 13 January 2023, but had not come into force. The applicants said that the reasonable-prospect requirement was oppressive and predictive, and that summary disposal would stop them addressing the court on an application on which their lives depended. The Attorney-General applied in HC/SUM 3096/2023 to strike out OA987 under O 9 r 16(1)(a) of the Rules of Court 2021 as disclosing no reasonable cause of action. The applicants acted in person.

Issues

1. Whether the applicants had standing to challenge provisions that were not yet in force
2. Whether there was a viable claim that ss 60G(7)(d) and 60G(8) were inconsistent with Art 9 of the Constitution
3. Whether there was a viable claim that the provisions breached the equal protection guarantee in Art 12

Holding

Hoo Sheau Peng J allowed the Attorney-General's application and struck out OA987 under O 9 r 16(1)(a) of the Rules of Court 2021, holding that the applicants had no standing and that the claim had no chance of success.

Reasoning

The court accepted that the burden of showing no reasonable cause of action lay on the Attorney-General, while the applicants still had to show a viable claim. On standing, it applied the three requirements in Karaha Bodas and Tan Eng Hong v Attorney General [2012] 4 SLR 390. The provisions had no legal effect yet, so they did not engage the applicants' rights; any post-appeal application could currently be filed without reference to them. A future prospect of operation was not enough, by analogy with Tan Seng Kee v Attorney-General and other appeals [2022] 1 SLR 1347. Nor was this the rare case where a law's mere existence violates rights: the provisions were procedural, not a criminal prohibition that affects conduct by its existence. There was therefore no real controversy and no real interest.

On Art 9, the right to a fair trial had to be seen across the whole process, and these provisions apply only after appeals are exhausted, where finality carries great weight. Preliminary merits filters and summary disposal without an oral hearing are familiar features of the legal system. The test does not require the court to predict outcomes; applicants are expected to put their full case forward. Art 9 does not guarantee an oral hearing, and the procedure clarifies rather than blocks access to justice.

On Art 12, applying the approach in Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 as the one more favourable to the applicants, the differentia was prisoners awaiting capital punishment. The object of preventing abuse of process was not circular, as such prisoners have an incentive to file last-minute applications and there had been recent instances of this. The relation between differentia and object easily withstood scrutiny.

From the judgment