In a joint press release on Monday (Nov 7), the Ministry of Law and Ministry of Home Affairs said the Bill will “clarify the process for post-appeal applications in capital cases” and “safeguard the administration of justice and the rule of law”.
Post-appeal applications in capital cases include applications for a death sentence to be stayed, applications calling into question the conviction or death sentence imposed on a prisoner or judicial review applications challenging the President’s decision not to grant clemency.
These applications are for cases where prisoners have been sentenced to death, but have failed in all their appeals and bids for clemency.
Under the new procedures, only the Court of Appeal may hear such applications and grant a stay of execution of the death sentence.
THE NEW PROCESS
The prisoner will first have to apply for permission to make a post-appeal application. The permission hearing may be heard by a single judge exercising the Court of Appeal’s jurisdiction. In some cases, it may even be dealt with without an oral hearing.
The prisoner will have to provide the grounds for the application and reasons for not filing it earlier.
In deciding whether to grant permission under these new rules, the Court of Appeal has to consider several factors.
These include: Whether the application is based on material that could not have been shown in court before the relevant date, whether there was a delay in filing the application after this material or evidence was obtained and the reasons for such a delay, and whether the application has a reasonable chance of success.
Another key part of the amendments to the law pertains to the abuse of court processes.
If the prisoner or his or her lawyer had previously been found by the Court of Appeal to have abused the court’s process in a relevant application, permission must not be granted, unless there is evidence that was not previously adduced.
This applies also if the prisoner or his or her lawyer had previously abused the court’s process in any other application or court action to frustrate or delay the prisoner’s execution.
Should permission be granted, the post-appeal application must be filed within a specified period and a hearing before a court of three or more judges will be fixed.
A warrant of execution may be carried out, unless the Court of Appeal has granted a stay of execution, the President has ordered a respite of the execution, or there is a proper application for permission to apply for a stay of execution.
Additionally, the Court of Appeal may decide whether to find that the prisoner or their lawyer had abused the court process to delay or frustrate the carrying out of the capital sentence.
The court may take additional evidence in deciding whether there was such an abuse of process.
The court will have the discretion to allow challenges, even if they do not comply with the new process.