Access to Water is a Human Right
Towards the end of last year, I felt motivated to write about one’s right to water when I came across some interesting cases whilst doing some pro bono cases. The Right to Water, or more accurately the Human Right to Water and Sanitation, was recognised by the United Nations General Assembly on the 28 July 2010 (see more here).
In these past six years, several NGOs and communities have made tremendous efforts in ensuring everyone has sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. Yet, in wealth abundant Singapore, the topic almost never surfaces on the national stage and most readers would in fact, be even surprised that this fundamental right is not carefully guarded nor guaranteed.
The following are key excerpts of my article published in December 2015 by The Online Citizen ….
In modern day Singapore, there are still people who cannot afford to pay their utilities bill, which results in the termination of their water/electricity supply by the Public Utilities Board (PUB) and SP Services.
I came across a few cases when I was doing pro bono work. Most of these people rely heavily on financial assistance from the Community Development Councils to assist them. Before the water supply is cut, the electricity supply is terminated.
These families have to live in darkness and suffer intense distress until they can find a way out. With no electricity in the house, one may even have to grope in darkness, but the real problem lies in their inability to use basic household appliances like the fridge, rice cooker or even charge their phones – their only possible means of communication. The cutting of the water supply also leaves families unable to cook, clean or shower in their homes.
Is this practice by PUB and SP Services legal under International Law? The answer is an unequivocal no! Such actions breach Singapore’s international treaty obligations under the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child. Singapore is a signatory to these treaties.
It has been recognised by the United Nations Committee on Economic, Social and Cultural Rights that water is a basic human right and that every individual is entitled with the right “to sufficient , safe, acceptable, physically accessible and affordable water for personal and domestic uses” [General Comment No 15 : The Right to Water (Articles 11 and 12 of the Covenant), Paragraph 2].
This right to water is also part of the right to an adequate standard of living. These obligations require States to ensure everyone’s access to a sufficient amount of safe drinking water for personal and domestic uses. Water, in that regard, is defined as water for drinking, personal sanitation, washing of clothes, food preparation, and personal as well as household hygiene. …
Additionally, articles 24 and 27 of The Convention on the Rights of the Child direct that “children have the right to good quality health care, clean water” and that children have the right to a standard of living that is good enough to meet their physical and mental needs.
The government should help families who cannot afford to provide this. Whatever issues involving the adults and their inability to pay, it’s not proper to make children suffer as a consequence.
Article 14(2) of CEDAW states “State parties shall take all appropriate measures to eliminate discrimination … to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply…” The United Nations has stated that no individual or group should be denied access to safe drinking water because they cannot afford to pay.
The UN CESCR’s general comment No.15 also highlights that in order to ensure that water is affordable, states should carry out necessary measures such as appropriate pricing policies which include free or low-cost water. …
Such issues that affect basic living standards have to be highlighted so as to ensure that those whom we have elected to serve are fully aware of the problems and are taking steps to rectify it.
Only when those living at the bottom rung and fringes of society are properly taken care of and have the same opportunities can we proudly proclaim that Singapore is a cohesive and inclusive society.
I hope with this article to raise awareness and urge those who suffer in silence (or know of those who do) to come forward and we, through discussions, can highlight the issue and ensure they get the assistance they need.
The complete article is available here:
A Door to Hope: Chijioke Stephen Obioha
Very soon, yet another individual is about to be executed in a state-sanctioned hanging. According to Amnesty International, the date for the execution of Chijioke Stephen Obioha (a Nigerian national) has been set for this Friday, 18 November 2016.
On 9 April 2007, Chijioke was found in possession of more than 2.6 kilograms of cannabis, exceeding the statutory amount of 500 grams that under Singapore law triggers the automatic presumption of trafficking. Also in his possession were keys to a room containing additional prohibited substances, leading the authorities to presume him guilty of possession and knowledge of the drugs.
In August 2010, an appeal against Chijioke’s conviction and sentence was rejected. In 2013, when amendments to Singapore’s mandatory death penalties laws kicked in, Chijioke initially refused to make use of his right to resentencing. In April 2015, his clemency appeal was rejected and his execution was set for May 2015. Just one day before the execution, he was allowed to apply for resentencing. Following legal advice that he would not qualify as a “courier” under the amended laws, Chijioke withdrew his application for resentencing. This led to the lifting of the stay of execution on 24 October 2016 and the setting of the execution date.
Chijioke has endured more than 9 punishing years in prison. He has been detained not for the purposes of treatment nor rehabilitation but for the purposes of awaiting execution. He has faced unprecedented mental anguish. Changes to the law in 2012 gave him a glimmer of hope but this was again snatched away from him. To our knowledge, Chijioke’s case is possibly the longest delay of an execution in Singapore’s history till today.
In Pratt and Morgan v Attorney-General for Jamaica, the Privy Council held that the delay of 5 years and 6 months which had elapsed since an accused’s conviction amounted to cruel and unusual punishment and breached his constitutional right not to be deprived of life.
A Door towards Hope
Arguments showing any prolonged delay in the execution of an accused could be capable of being a violation of human rights, as inhuman and as degrading. A plethora of international human rights instruments prohibit torture or cruel, inhuman or degrading treatment or punishment. This prohibition is also found in numerous domestic constitutions. Studies on death row inmates reveal that delays and uncertainties cause depression, loss of the sense of reality, personality distortions, physical and mental deterioration. Judges in several American and Indian decisions have decided that though the death penalty itself may not be cruel per se, lingering delays in solitude with the knowledge of impending extinction that amounts to cruelty.
There was opportunity for Singapore to address the question of delay in death row in 1995. In Jabar v Public Prosecutor the accused had been languishing in jail for over 5 years awaiting execution. His lawyers placed reliance on Indian cases and the Jamaican case of Pratt and Morgan, however, the Court of Appeal found “dubious” reasons to distinguish those cases and the one before them.
The Court in Jabar’s case concluded that the situation in Singapore was markedly different because the death penalty was mandatory here unlike India. In contrast to the position held during Jabar’s case, Singapore’s mandatory death penalty regime had seen changes in 2012 to give discretion to judges in certain circumstances especially drug trafficking cases. Also, the Court in Jabar overlooked the fact that the unambiguous finding by the Indian Supreme Court was that supervening events might render a lawfully and justifiably imposed death sentence unlawful.
We argue that the fact that the sentence is mandatory does not detract from the mental anguish and torment he had to endure as a result of the delay. At this stage, we are not challenging the judicial death penalty sentence itself, but rather to its execution after such an inordinate delay. We place little emphasis on the duration of the delay itself as this may cause unnecessary controversy in semantics in what is deemed as “unreasonable delay”. It should also not matter also whether it was the accused himself who caused the delay as it would be acceptable for him to take every step conceivable to turn his ill fate around. As a way forward, we wish to emphasise on the actual effects or consequences of the delay in depriving his life and personal liberty.
The Singapore Anti-Death Penalty Campaign and several other local and international human rights groups are working tirelessly to campaign on behalf of Chijioke to halt the execution. The impending execution of Chijioke is clearly unlawful under international law and arguably under Singapore law. We are looking to work closely with our Nigerian counterparts and international community to make a difference.
We call upon the Singapore Government to reconsider its decision and commute the death sentence imposed on Chijioke.
One More Execution: One More Reason to Carry On
Hope did not meet Chijioke in the end and he was eventually executed at 6am Friday 18th November for a drug trafficking offence that he was found guilty of more than 9 years ago. The whole of this week, several of us were busy campaigning, working with a research team and supporting lawyers (in particular Joseph Chen) on filing a constitutional challenge to the impending execution. The application was based on the question whether a prolonged delay and the supervening events in the execution of the death sentence contravened Article 9(1) of the Singapore Constitution in so far as it amounted to cruel and inhumane treatment. Sadly, this application was dismissed by the Court of Appeal the evening before the execution. On the day of the execution, this article was published by The Online Citizen and since then a group of us tried to assist with funeral arrangements only to find out that the Roman Catholic Prison Ministry held the ceremony confidentially and one where no one else was permitted to attend.
Ironically, even his name was spelt wrongly on the list …. almost signifying that errors are inevitable but that the death penalty is irreversible.
A sad week, but one that will not diminish our resolve to end the mandatory death penalty regime for drug offences in Singapore.
The Right to Legal Representation in Death Penalty Cases: A Resolve Not to be Stifled
Since May 2016 and the filing of the media statements by the Attorney-General’s Chambersand the Ministry of Home Affairs, a community of lawyers have observed a steady increase in the number of discouraging comments by the judiciary towards lawyers who chose to defend their clients in certain types of cases. This is especially apparent in death penalty cases where lawyers represent highly sensitive and emotionally strung defendants, often raising constitutional law points.
No doubt it is important that applicants are disallowed from prolonging matters or filing multiple applications simply to waste judicial time. However, where such cases involve the ultimate punishment, namely, the irreversibility of death, the courts should surely not label any counsel’s attempt to argue as “drip-feeding” or “squandering judicial time”. In the latest case of Prabagaran (and three others) who were before the Apex court on their joint constitutional challenge, the court went a step even further to suggest that “when an application is made after the appeal process has been completed, we expect counsel for the applicant to swear or affirm an affidavit setting out the reasons why the points or matters raised in the application could not have been raised earlier in the appeal proper”. This, I argue would seriously stifle lawyers from accepting last minute instructions from death row inmates or their families and from advancing issues of public importance or matters relating to the particular legal issues in their cases. Should this go ahead, the move would be unprecedented and one which would be difficult to fathom in any legal circles.
This article highlights recent cases and the remarks that have been made by judges. It comments on the impact these negative comments have on the core role a lawyer to defend and represent his client to the best of his ability. It comments on how the courts ought to be mindful of an applicant’s need to the right to legal representation (more so in end of life cases) and urges Singapore lawyers to forge ahead no matter how “hopeless” a brief seems especially involving the poor and the defenseless.
Prabagaran was arrested in April 2012 after 22.24 grams of diamorphine was found inside a car, though not owned by him, was driven by him into Singapore through the Malaysian-Singapore Causeway. Under the law, if any unlicensed controlled drug is found in a vehicle, it is presumed to be in possession of the owner of the car, or of the person who was driving the vehicle. If the person is unable to give a satisfactory and convincing account that he was not aware that the drugs were in his car, he is presumed to be guilty of drug trafficking. Unable to convince the court as to why he borrowed the car or to explain the facts logically, Prabagaran was found guilty by the High Court and then again at the Court of Appeal. Prabagaran’s conviction was based entirely on his testimony and the accounts of government officials involved in the case. All the other parties and witnesses mentioned by Prabagaran were not produced in court, nor were their statements taken by the authorities. According to Prabagaran’s lawyers, testimonies made by critical witnesses would have made a material difference his defense. Their testimonies would have helped corroborate Prabagaran’s side of the story. This meant that the courts proceeded to sentence Prabagaran to death based on circumstantial evidence only.
Why was the Latest Appeal Made?
Section 33B of the Misuse of Drugs Act (MDA) confers upon the court the discretion to sentence a person, who is convicted of offences punishable by death, to suffer the lesser punishment of life imprisonment where certain statutorily prescribed requirements are met. Section 33B(2) of the MDA sets out two requirements. The first is that the person convicted must prove on a balance of probabilities, that his involvement in the offence was restricted to the acts prescribed in s 33B(2)(a) of the MDA, i.e. that he was simply a drug courier (“the Courier Requirement”). The second, set out in s 33B(2)(b) of the MDA is that the Public Prosecutor (PP) certifies that the person has substantively assisted in “disrupting drug trafficking activities”.
At the trial level, the PP did not issue a certificate of substantive assistance under s 33B(2)(b) of the MDA, and the High Court judge accordingly imposed the mandatory sentence of death. No finding was also made as to whether the applicant satisfied the Courier Requirement. His appeal against his conviction, premised solely on the issue as to whether he had rebutted the presumptions of knowledge and possession under sections 18(2) and 21 of the MDA respectively, was dismissed in October 2015.
The Prabagaran (and three others) latest appeal questioned the constitutionality of s 33B(2)(b) and s 33B(4), as well as the Second Schedule of the MDA. There were, broadly speaking, two main points of challenge. First, it was argued that the two sections were in breach of the constitutional principle of separation of powers embodied in the Constitution of the Republic of Singapore. Second, that the provisions are not “law” capable of depriving the applicant’s life and liberty under Art 9(1) of the Constitution. The primary relief sought was an order setting aside his death sentence and substituting it with a sentence of imprisonment for life, or an order to stay the execution of the death sentence pending his resentencing under a constitutionally valid provision.
A Blatant Attempt at Re-opening Past Cases?
In the Prabagaran (and three others) judgment, the court remarked whether the applicant’s case was even worthy of hearing since the PP had submitted that it was a “blatant attempt at re-opening previous decisions of this court”.
Following Kho Jabing v PP, the court commented on the “burgeoning number of applications seeking to reopen concluded criminal appeals” and while the court acknowledged that that it had the power to do so, the power should only be exercised where there is “sufficient (new) material on which the court can say there has been a miscarriage of justice.” The court warned that a “seeming legal point which is dressed up as a constitutional issue may not be given much consideration.” The court reiterated that there should be sufficient material that is new in the sense that it has not been canvassed at any stage of the proceedings prior to the Motions and could not have been adduced in court earlier even with reasonable diligence. This criterion of “non-availability” as regards new legal arguments will ordinarily be satisfied only if they concern a change in the law – as determined in the Kho Jabing case.
More Stifling Remarks?
Below are a few more dissuading quotes from judgments:
“Strong reasons must be advanced to explain why a point taken later could not have been made earlier. The courts will not allow themselves to be used by either ingenious counsel or a determined applicant as a means for delaying the conclusion of a case.” – Prabagaran at para 19
“It would be impossible to have a functioning legal system if all legal decisions were open to constant and unceasing challenge … The concern here is not just with the saving of valuable judicial resources (vital though that is), but also with the integrity of the judicial process itself. Nothing can be as corrosive of general confidence in the criminal process as an entrenched culture of self-doubt engendered by abusive and repetitive attempts to re-litigate matters which have already been decided.” – Kho Jabing at para 47
“But, once the processes of appeal and/or review have run their course, the legal process must recede into the background, and attention must then shift from the legal contest to the search for repose. We do not think it benefits anyone – not accused persons, not their families nor society at large – for there to be an endless inquiry into the same facts and the same law with the same raised hopes and dashed expectations that accompany each such fruitless endeavour.” Kho Jabing at para 50
“In our judgment, the filing of the present application at the eleventh hour before the applicant’s scheduled execution in order to prevent the carrying out of a sentence which has been properly imposed by law amounts to an abuse of the court’s processes for collateral motives and amounts to a calculated and contumelious abuse of the process of the court.” – Chijioke Stephen Obioha at para 8
Oath Not be Deterred
All lawyers have a duty not to mislead the court, to be professional, well-prepared and competent to represent their clients. They have a duty not to waste the court’s time and be prudent and efficient. Sadly, we have seen some cases (not just Singaporean cases), where lawyers have brought unmeritorious and frivolous claims to court. Often, these are done by ill-prepared or errant lawyers wanting to line their own pockets.
But this article is not referring to such cases. There is nothing unmeritorious nor frivolous about doing one’s professional best to save a condemned man facing death penalty, even when the margin of success is non-existent. To many, Yong Vui Kong’s case was seen as a hopeless case too but we strived on and he is alive today.
The judiciary and establishment must not forget that unlike in other commonwealth countries, which have alternative avenues of addressing miscarriage of justices through institutions such as National or Regional Human Rights Commissions, Parliamentary Ombudsman and other bodies, we have none in Singapore except for the Courts.
Hence, it is not abuse of process by any definition. For lawyers who lose sleep and sacrifice their billable hours, “legal opportunism” is the last thing on their minds. The courts should understand the magnitude and significance of the challenge that these brave lawyers bring, often on a pro bono basis, sometimes even risking their professional reputation with threats of cost orders and disciplinary actions which may ruin their careers. At times, they even bear expenses from their own pockets for filing court documents and depositing the guarantee amount for the appeal costs of the Attorney-General. Perhaps the Law Society as a representative body should take a stand that legal representation in last ditch attempts to save lives in death penalty cases should not be discouraged or be fettered.
Till then, forge forward and a salute to the lawyers who continue to fight tirelessly to save the lives of their clients.
1. Prabagaran a/l Srivijayan (and 4 others) v PP  SGCA 67
2. Kho Jabing v Public Prosecutor  3 SLR 135
3. Chijioke Stephen Obioha v Public Prosecutor  SGCA 63
4. Yong Vui Kong v Publc Prosecutor  SGCA 11
This article was first published on The Online Citizen, here .
Of Human Rights, Art and Surveys: A Recap
Last week whizzed past. It was eventful, activity-filled and laced with emotions of all sorts. This is just a short piece to note down and, in way, create a digital engraving of pivotal moments.
The week started on the 7th of December with The Online Citizen’s publication of “The Right to Legal Representation in Death Penalty Cases: A Resolve Not to be Stifled” which was my direct response to the judgment in Prabagaran a/l Srivijayan (and 4 others) v PP  SGCA 67 which was decided the week before. In it, I wrote about the court’s suggestion that “when an application is made after the appeal process has been completed, we expect counsel for the applicant to swear or affirm an affidavit setting out the reasons why the points or matters raised in the application could not have been raised earlier in the appeal proper”. This, I argued would stifle lawyers from accepting last minute instructions from death row inmates or their families and from advancing issues of public importance or matters relating to the particular legal issues in their cases. Should this go ahead, the move would be unprecedented and one which would be difficult to fathom in any legal circles.
The article was picked up by other publications such as The Singapore Daily and The Emeritus. What was interesting however, was the timely publication (coincidentally on the same day) in mainstream media about why “11th-hour court appeals now need to be explained” followed by another article exactly two days later on the 9th entitled “Stopping abuse of court process” (as if to drive home the point).
Several lawyers and members on the public spoke about the issue on social media and on the 10th The Independent Singapore published a piece quoting a comment from Eugene Thuraisingam in “Something’s not right when courts call defending poor, weak and marginalised an abuse of process in capital case.”
No one supports abuse of court processes with unmeritorious and frivolous cases. However, as I already stated in my article, “there is nothing unmeritorious nor frivolous about doing one’s professional best to save a condemned man facing death penalty, even when the margin of success is non-existent. To many, Yong Vui Kong’s case was seen as a hopeless case, but by striving, he is alive today. The judiciary and establishment must not forget that unlike in other commonwealth countries, which have alternative avenues of addressing miscarriage of justices through institutions such as National or Regional Human Rights Commissions, Parliamentary Ombudsman and other bodies, we have none in Singapore except for the Courts.
The conversations which took place, online (and privately offline) were particularly important, considering Saturday, 10th December marked Human Rights Day around the world and the United Nations shared this video to mark the day with the following reminder:
It starts with each of us. Step forward and defend the rights of a refugee or migrant, a person with disabilities, an LGBT person, a woman, a child, indigenous peoples, a minority group, or anyone else at risk of discrimination or violence.
To mark the occasion in Singapore, several events took place. On the morning of the 9th, I attended a conference on “Freedom of Religion or Belief in Singapore and ASEAN organised by European Union Delegation to Singapore. In the evening, I attended another event organised by the Law Faculty at NUS.
Invited to speak at the event was Roger Hood, Professor Emeritus of Criminology and Research Associate at Oxford University’s Centre for Criminology and Professor Tan Ern Ser, NUS Sociology Department.
It transpired that despite an earlier survey about Singaporean’s attitude towards, death penalty, where it was reported that “8 in 10 Singaporeans Support the Death Penalty,” Singaporean attitude towards mandatory death penalty is less clear cut. A very insightful piece written by Kirsten Han is available here.
A key local activity held on the 10th was a Speaker’s Corner event organised by Maruah titled “The Sorry State of Human Rights in Singapore” where I was invited as a speaker.
My short speech was essentially a protest note expressing disappointment on the judiciary’s comments equating last ditch attempts in death penalty cases as abuse of court processes. I urged the legal community and the Law Society of Singapore to fulfil its mission statement to speak up for the interests of its members and society at large in the advancement of rule of law. Next, I touched on the latest survey that shows that most Singaporeans do not support the mandatory death sentence and what we must do to continue to educate even more, so that hopefully one day, the collective voice grows loud and clear enough to change the state’s die hard stance on the matter.
Later that same day in the evening, I had organised a small private gathering for friends and colleagues to attend an Art Installation event at the 2nd office of Eugene Thuraisingam LLP’s office in People’s Park Centre where my own desk is based.
I had waited 5 years for this day to arrive and for me to finally own a very symbolic and important piece of art by Seelan Palay titled ‘Dialectical Postmortem Blues’. It documents the ordeals that Tang Lay Lee, a lawyer and church worker went through when she was detained during Operation Spectrum in May 1987. In addressing us about his piece, Seelan said “I read about what Tang Lay Lee went through and I wondered how it must have felt. And so, I wrote “You are a Marxist” in red ink which would be then followed by “No, I am a Catholic,” in blue ink. And after each exchange, I would slap myself as hard as I could before proceeding to repeat the process. By the time I finished the piece, I had a burning sensation in my cheeks.”
The event was covered by The Online Citizen as “Dialectical Postmortem Blues: “Marxist or Catholic?”
A brilliant week!
Urging Malaysia to Save the Life of its Citizen Facing Imminent Execution in Singapore
Today, in my capacity as the founding member of the Singapore Anti-Death Penalty Campaign (SADPC), and former lawyer for the accused, I presented a Memorandum to the Minister of Foreign Affairs of Malaysia which was duly received by the First Secretary, Nur Eliza Jemal Zainal and the Consular Officer, Siti Izayani. Present with me at the Malaysian High Commission this afternoon, was the mother of the convict on death row for a drug tracking offence which took place in 2012. His name – Prabagaran A/L Srivijayan, his age – 29 and his only hope – a successful result from a clemency petition to the President of Singapore.
The Memorandum urges the Malaysian government to initiate an action in the International Court of Justice to save Prabagaran’s life on account of breach of customary international law on the right to a fair trial.
The Independent Singapore, has published the Memorandum in its entirety and it can be viewed here.
I will continue to lobby the Malaysian Parliament and will attend a Press Conference in Malaysia in the first week of January to persuade the Government to initiate legal action at the International Court of Justice. I would like to thank everyone for their support. If you like to help and contribute in anyway to this campaign, please email me privately at firstname.lastname@example.org
Finally, a video made by the Coalition Against the Death Penalty in ASEAN as part of the ‘End Crime, Not Life’ campaign is available here.
Sweet Music, Noise or Public Disorder?
Thaipusam and the Right to Religious & Cultural Practice in Singapore
Thaipusam has been an integral part of my religious and cultural upbringing. As a child, I attended, supported and even participated in the festival (photo of me at age 16 behind my brother, carrying a kavadi, is shared at the end of this article). Singapore’s Tourism Board lists Thaipusam as an event in its rich diverse cultural heritage calendar. Each year, the streets are lined with supporters, devotees and curious tourists alike. The festival however has been shrouded in controversy in Singapore – the consequence being that thousands of Singaporeans would rather chose to flock to “Batu Caves” in Malaysia to celebrate the festival there.
The reason for the controversy was a 42 year old ban on the playing of live music during the festival. First imposed in 1973, the government argued that the blanket ban on loud live music was necessary to quell disorder as several fights often disrupted between competing groups, thus disrupting the procession and risking the lives of spectators and accompanying supporters.
I have written previously about this “Silenced Festival” in my book Kampong Boy and how in 2011, I stepped up as a Plaintiff with the Attorney-General’s Office and the Hindu Endowments Board (HEB) that is responsible for running and organising the festival, as the Defendants. This was the first time someone challenged the live music ban in court. Unfortunately, my legal action before then Justice Steven Chong, did not succeed due to the points I listed in the book.
Article 15(4) of the Constitution gives the executive branch of the government the broad authority to restrict the practice of religion in accordance with the law – the caveat being that the decision-maker’s power to do so may be challenged in Court. Additionally, the Public Order Act and its related regulation empower the Commissioner of Police to impose such conditions as he deems fit for the purposes of making an application for a licence to hold a public assembly or a public procession.
Of particular relevance to Thaipusam are regulations 8(1)c and 8(2)c which do not permit singing or music, gongs, drums or the playing of music-producing equipment. Also public processions require official permits and applications which often have conditions attached.
In 2015, three men were arrested during a scuffle which took place during a Thaipusam festival. In the ensuing case, Vijaya Kumar s/o Rajendran v Attorney-General, the three Applicants cited their constitutional rights to freedom of religious practise and equality before the law to challenge the conditions which prohibited the use of musical instruments (other than at certain fixed points) during the procession.
The Applicants argued that music from an urumi is a fundamental aspect of the religious practice of marching in the Thaipusam procession and that the music conditions imposed constituted a breach of their rights to practice their faith without interference.
The case raised important questions including firstly, the proper meaning of the term “public order” under Article 15(4) of the Constitution, secondly, the type of state interests which can justify restricting a religious liberty, thirdly, the degree of harm that must be posed by a religious liberty before it can be justifiably be restricted, and fourthly, whether the possible hostility of third parties to a person’s peaceful exercise of faith can be deemed as constitutionally relevant under the “public order” consideration.
I got involved in the case through my connections with the legal team at Eugene Thuraisingam LLP representing the Applicants. Everything balanced on being able to prove that the relevance of musical instruments was an integral part of Thaipusam and therefore to the practice and religion of Hinduism. We tried to find experts in Singapore who were able to affirm the position in our favour. We were confronted with the reality that as most temples in Singapore are affiliated to the government’s HEB, no one was willing assist the Applicants. I recall the day, I traveled with Eugene Thuraisingam who led the legal team to seek Hindu experts from across the border who were willing to share the history and origins of the procession and to explain the relevance of music and devotional songs played during the festival. We were thrilled to find Tan Sri Datuk R. Nadarajah, Chairman of the Sri Maha Mariamman Temple Dhevasthanam “Batu Caves” in Kuala Lumpur.
The expert stated that the “playing of the musical instruments forms an integral and inseparable part to the carrying of the Kavadis” because the music facilitates the Kavadi carriers to “enter into a trance” which then enables them to bear the enormous physical burden and pain of the weight of the hoisted Kavadi. The music is an essential part not just to the procession but also to the “nature of worship”. The experts affidavit went as far as to state that the taking away of the musical instruments would be “traumatic” for the Kavadi carrier as the trance will be broken and he will feel immense physical burden and unbearable pain from the body piercings. Without the music, the devotee is more likely to be “distracted from focusing on the divine”.
In the end, the High Court dismissed the application at first instance on the grounds that the public order proviso to freedom of religion was made out, and the differential treatment was justified by a reasonable nexus to the objective of public order. The Applicants appealed, but later decided to withdraw their case in the light of increased dialogue between interested parties and the announcement by the government to relax the live music rule.
Music to the Ears – Latest Developments
In 2016, Hindu devotees in Singapore received their first bout of good news. The 42 year old ban on live music was lifted and live music was allowed to be played from 3 stages at different points during the procession. Broadcasted music was also permitted at 7 other locations. The Chairman of HEB was able to proudly announce that “there won’t be a stretch that is without music”. He also added, “The kavadi bearers pierce their bodies, causing enormous pain, as part of the vows they have taken. The music will be useful in reducing the pain and enhancing their spiritual focus throughout their journey.”
The latest bout of good news came last week. This year’s festival which will fall on the 9th of February 2017, will see music broadcasted at 23 points along the 4km stretch. Live music will be continued to be played at 3 stages where musicians will play traditional classical Indian instruments so that the younger generation understands their rich cultural heritage and be interested to learn these instead of the modern western style drums and bongos which have appeared at the festival in recent years.
No doubt tremendous progress has been made to listen to feedback from the Hindu community and from devotees. Participants are still not yet allowed to bring their own musicians or musical instruments and some restrictions remain. I personally hope some faith will be restored in the celebration of this festival in Singapore and that fewer Singaporean Hindus will see the need to cross the border to partake in such a monumental and colourful festival.
As I wrote in my book, it is hard to think that over 155 years of tradition and devotion could be “cowed into quietude”.
Below, are links to publicly available YouTube videos on the Thaipusam Festival. WARNING: Some scenes may be distressing and viewer discretion is advised.
More Transparency Needed – Certifications of Cooperation under the Misuse of Drugs Act
I will be in Kuala Lumpur shortly for a Press Conference, to attend Judicial Review proceedings to be instituted at the KL High Court on Friday and to campaign for another Malaysian who is facing imminent execution in Singapore around the same time as Prabagaran.
Datchinamurthy (D), 32 was sentenced to death last year for drug trafficking. His co-accused, a Singaporean female, whom he was found to have delivered drugs to was spared the death penalty when the Public Prosecutor (PP) granted her a Certificate of Cooperation (COC). The COC, when granted, gives the court a discretion to sentence a person convicted of an offence under s 5(1), being an offence punishable with death under s 33 of the MDA, to life imprisonment and 15 strokes of the cane instead of death if he: (a) proves on a balance of probabilities that his involvement in the trafficking offence was limited to those acts prescribed in s 33B(2)(a); and (b) the PP certifies that s/he has “substantively assisted” Central Narcotics Bureau (CNB) in disrupting drug trafficking activities within or outside Singapore. The Singaporean female co-accused was able to apply to the court to be re-sentenced to life imprisonment.
For some reason, a COC was not extended to D and the PP is not obliged to give reasons why. As previously addressed in Singapore Anti-Death Campaign’s (SADPC) International Court of Justice (ICJ) memorandum submitted to the Malaysian government (http://www.theindependent.sg/anti-death-penalty-activists-…/), section 33B(2)(b) of the Misuse of Drugs Act seems to give the power to the PP (instead of the court) to decide who should live and who should die. This clearly breaches the right to fair trial under customary international law.
There are just too many questions.
There is a dire lack of transparency in how these COCs are granted. With the world watching Singapore’s treatment of those incarcerated for misuse of drugs crimes, is it not time to increased dialogue or establish some clear principles? Should the PP explain why a COC is not granted (or granted)? What does “substantively assisted” the CNB mean? Why does section 33B(4) of the MDA limit judicial review of the PP’s decision on whether to issue a certificate of substantive assistance to only the grounds of bad faith and malice only?
In the current case, why was a Singaporean granted the COC and not a Malaysian? Are male accusers treated differently than women accusers? What were the differences in their level of cooperation with the authorities? Are we not as members of the legal community and as the public entitled to know? There are just too many unanswered questions.
I wish to reiterate that the issue is not whether D is guilty or not guilty but whether he had received a fair trial before he was sentenced to death. I acknowledge the importance of the right of sovereign states to impose their own laws but the question is whether can we pass any laws and assert sovereignty when such laws are inconsistent with international law that involve a foreign national facing death penalty. We learnt of the importance of international law in a hard way when our armoured vehicles were seized in Hong Kong. I’m sure the lives of humans are more precious and the Singapore state has to satisfy that it does not kill someone without according to him due process under international law.
I would like to thank lawyers Surendren, Latheefa and Raul and Lawyers for Liberty for taking up the case of D in Malaysia. D’s mother will be attending the press conference and SADPC will be campaigning alongside her. Mr Leong Sze Hian who is the President of MARUAH will be following me for the Press Conference and I would like to also thank MARUAH for its solidarity and support.
Looking for Answers
Update on Prabagaran (the Malaysian prisoner on death-row in Singapore for a drug trafficking offence):
We are looking for some ANSWERS. Prabagaran’s Malaysian Lawyers sought access to him through the Singaporean Prisons Service. This access has been denied for reasons unexplained. A similar application was made by a Nigerian lawyer in 2007 to visit Amara Tochi another prisoner (a Nigerian accused of drug-trafficking, also a death-row prisoner). This request was also denied on the basis that he was not an Advocate and Solicitor of Singapore.
There is a serious lack of transparency here and it is unclear the grounds on which the Prisons Service can and cannot grant access for lawyers. We are aware that the Prisons Service had approved foreign lawyers for visits/access in the past. A precedent was set when Australian Lawyers who requested access to visit Van Nguyen (the Australian on death-row) before his execution, were granted access.
Why the discrepancies? Surely something so important as right to access by lawyers cannot be so arbitrary? What about Article 12 and the right to equal treatment under the law?
Where can we get answers for these very critical and fundamental questions? Must we run to the courts every time for such challenges?
I have had access in the past to my Singapore client facing capital punishment in Malaysia. This is so very basic and so very important.
Animal Rights in Singapore – Time to Give Animals a Voice in Court
The culling of 24 free roaming chickens in the Sin Ming area hit the headlines this week. The Agri-Food and Veterinary Authority (the “AVA”) stated that it had received over 200 complaints across the island about such chickens last year. The main complaints related to noise nuisance, but the AVA also explained that an unchecked roaming chicken population could increase the risk of avian flu, which is prevalent in the region. The National Parks Board agreeing with the culling argued about the risk to endangered native junglefowl.
However, some local residents were shocked at the chicken deaths, claiming that the animals were not intrusive and that residents had not been asked their opinion before the cull. The Animal Concerns Research & Education Society (“ACRES”), an animal protection group, responded that a more humane solution could have been found to killing the chickens, such as relocation or adoption. This case, and the increase in reported animal cruelty incidents, highlights the plight of animals in Singapore.
To any skeptics, my concerns have nothing to do with the fact that I am a vegetarian. I became more interested in the standing and rights of animals to be protected by the law, when I personally witnessed crow-culling and stray animal cruelty incidents. My concerns in trying to find a voice for these defenseless animals heightened when I heard about Chippy the macaque monkey which was subject to frequent abuse by the public. After months of petitioning for his rescue and release to a sanctuary in Wales in the UK, Chippy remained missing until this article appeared in August that Chippy had been “removed” for “rehabilitation”.
Legislation in Singapore currently provides for a degree of animal welfare. Animals should not be treated cruelly or be caused pain or suffering. The law also goes further, placing a positive duty of care on animal owners and those working in animal related businesses to ensure the well-being of animals in their care. Under the Animal and Birds (Amendment) Act 2014 (the “Act”), animal owners must take positive steps to find an animal that goes missing, and they must comply with codes of practice relating to animal welfare. However, it is only the AVA that can bring cases to court. In 2016, of 840 reported incidents of animal cruelty, the AVA only had enough evidence to take 104 cases forward. Of those cases that do reach court, few result in the fines or imprisonment provided for in the Act.
Besides the Act, section 428 of Singapore’s Penal Code also makes it an offence to kill, maim, poison, or render useless any animal.
It is important to recognise that current legislation falls shy of actually recognising express rights for animals and giving them the right to be protected by law.
Animal campaign groups would like to see a change in the law so that they and other interested citizens have legal standing to sue on behalf of animals. At present, the rules of legal standing mean that such organisations have to prove that they have a ‘special interest’ in a case. However, it is difficult to prove this special interest when cases are being brought not for the benefit of the organisation but for the animals. The animals themselves do not have legal rights which makes them, effectively, voiceless. Other proposed solutions are a system of a so-called litigant guardian, as provided in some countries to children or the mentally-handicapped; or recognising animals as legal “persons” in the same way the law recognises companies.
The issue of legal standing and animals’ legal rights, so-called non-human rights, is not new. Globally, attitudes are shifting, but progress is slow. New Zealand granted basic rights to certain ape species in 1999 and their use in research, testing and teaching was banned. In 2002, Germany awarded animals rights in the constitution meaning that they must be respected by the state and that they have a right to have their dignity protected. The draft United Nations Universal Declaration on Animal Welfare (“UDAW”) provides that animals should be recognised as ‘sentient’ beings and therefore afforded dignity and respect. However, the UDAW has not been ratified by the UN and remains a draft. Perhaps this is because countries are reluctant to recognise animals as having particular rights. Giving animals rights could raise difficult questions in relation to businesses handling animals, ownership, and so on.
Singapore is moving in the right direction on animal rights issues, with the 2014 Act. However, more change is required. The government should be encouraged to amend the rules on legal standing so that more animal cruelty cases can be brought, and not only by the AVA (which still remains cautious or unwilling to bring prosecutions) but also by interested groups and individuals.
When questionable actions are taken against animals by the AVA itself or by the government, there is no avenue to review or question their decisions. How does one appeal against state-sanctioned transgression against these voiceless entities? Will Singapore go down the Australian route so that organisations can argue for standing?
With so many netizens increasingly taking to social media to report and discuss various incidents of animal abuses in Singapore, we are finally progressing as an animal caring society. Surely animals deserve a degree of legal recognition and protection. Surely we human beings are best placed to stand up for the voiceless.
A free event entitled “Sentient Beings? Time to Give a Voice to Animals in Court” is being held on Sunday 5th of March 2017 to address the issues raised in this article and also to hear views from animal rescuers and animal lovers. The event hopes to generate dialogue on this topic and to give members of the public an opportunity to share views. The event is organised by We Exist Consult and more information is available below: