KUALA LUMPUR – Malaysian death row inmate Nagaenthran Dharmalingam’s last-minute application, filed just two days before his scheduled execution, “appears to be a calculated attempt” to halt the sentence, Singapore’s appellate court ruled yesterday.
In dismissing the final plea, Justice Andrew Phang, who delivered the judgment on behalf of the panel comprising himself, Judith Prakash and Belinda Ang, said that the bid was “devoid of merit” and was an endeavour that appeared to seek to “diminish the finality of the court process”.
Reiterating the decision in Kho Jabing v Attorney-General [2016], the judge stressed that “no court in the world would allow an applicant to prolong matters ad infinitum” by filing multiple applications.
“There must come a time when the last word of the court is the last word,” said Phang, adding that for Nagaenthran, “that time had actually arrived some time ago”.
Addressing the claim in the application that Chief Justice Sundaresh Menon was serving as attorney-general at the time of Nagaenthran’s conviction in 2010 and sentencing in 2011, the judges ruled that it is “but a bare assertion” that does not necessarily conclude the presence of any apparent bias.
Phang noted that in the course of Sundaresh’s tenure as AG, the latter was not personally involved in prosecuting Nagaenthran and in the death row inmate’s appeal against his conviction and sentence, and did not make any decisions regarding Nagaenthran’s case.
The judge added that it was Nagaenthran’s responsibility to raise any objection against Sundaresh presiding over the case later as a judge “at the appropriate juncture and not at the eleventh hour in a separate application in the attempt to delay his execution”.
“Far from being irrelevant, it is telling that (Nagaenthran) had never raised any concern about a reasonable apprehension of bias from 2 December 2016 when (Chief Justice Sundaresh) first heard the (criminal motion) until just two days before his rescheduled execution.”
The judges also rejected Nagaenthran’s argument that Sundaresh’s purported involvement had “fundamentally breached” Article 9(1) of the Singapore constitution and that the Court of Appeal was “bound by law” to have reconstituted the coram without Sundaresh on its own volition.
Nothing in Article 9(1), they reasoned, imposes such a duty on the courts, “especially where the litigant has expressly stated that he has no objections” during checks on any conflict of interest and has “thereafter chosen not to raise any objections as regards the propriety” of the coram’s make-up.
The final application, the judges said, is “yet another instance where a litigant seeks to utilise an allegation of judicial bias as a backdoor attempt” to undermine the finality of the court process.
“This ill-disguised application is nothing more than a blatant and impermissible attempt to further obstruct the imposition of the sentence imposed on (Nagaenthran),” they said, adding that the last-minute bid is simply “a clear continuation of the drip-feeding of applications” to block the court from carrying out its duties efficiently.
On the application made under Section 394H of the Criminal Procedure Code 2010 seeking a review of the Court of Appeal’s decisions, the judges disallowed it on the grounds of Section 394K(1) of the same legislation, which stipulates that one cannot file more than one review application related to any decision of an appellate court.
The judges also reasoned that it is “a non-starter” for Nagaenthran to wish to invoke the Court of Appeal’s inherent jurisdiction to file further review applications regarding the court’s decisions, citing the “lack of good faith” and “abusive conduct” on his part in initiating several actions to delay his execution.
“(T)here are to be no further improper applications that have the effect of stymying the court’s process in order to prevent the law from taking its course,” they said.
In a judgement delivered last month by the same court, it attributed the decision to uphold Nagaenthran’s execution to the lack of evidence on his alleged mental instability as well as his lawyers’ “abuse of court process”.
The appellate court presided over by Sundaresh, Phang, Judith, Ang and Chao Hick Tin labelled several legal challenges filed by Nagaenthran’s lawyers as a “blatant and egregious abuse of court process” with the aim of delaying the sentence.
Lawyers for Liberty’s N. Surendran later alleged a “serious conflict of interest” relating to Sundaresh on the matter.
However, Nagaenthran’s lawyers were criticised for not bringing up the alleged conflict of interest during the earlier proceedings.
Nagaenthran, who was arrested in 2009 for trafficking 42.72g of heroin into neighbouring Singapore, was certified during his trial to have an IQ of 69.
However, the trial judge ruled that he was on the borderline of having a functional intellect and the court concluded that he was aware he was committing a crime. – The Vibes, April 27, 2022
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