“Without concerned citizen action to uphold [human rights] close to home, we shall look in vain for progress in the larger world.”
Eleanor Roosevelt, 1958
On the 27th of April 2022, Nagaenthran K. Dharmalingam, a Malaysian national, was hanged at Changi Prison, Singapore, after being on death row for more than 12 years. The issue has received massive attention worldwide, particularly Malaysia and Singapore, as Nagaenthran was said to be an intellectually disabled person. The University of Malaya Law Society (UMLS) would like to provide our collective stance on this issue from an academic legal perspective.
Background of the Issue
In 2009, Nagaenthran was arrested for trafficking 42.72g grams of diamorphine (pure heroin) into Singapore by strapping it to his thigh. It was decided by the Singaporean courts that although it was proved that he was coerced by ‘King’ to provide the heroin, there was no proof that ‘King’ was capable of carrying out his threat. Thus, he was found guilty and has been put on death row, under Singapore’s narcotic laws.
Many parties have sought for Singapore’s President, Halimah Yacob’s presidential clemency, including our Yang di-Pertuan Agong. Prime Minister Dato’ Sri Ismail Sabri also wrote to Lee Hsien Loong, seeking leniency towards Nagaenthran. However, this was met with continuous rejections.
Subsequently, Nagaenthran’s mother sought an appeal for a stay of execution on the basis of conflict of interest involving Menon CJ, the judge presiding over Nagaenthran’s case. However, this was dismissed as she had no legal standing to be a party to the trial; and secondly, during his prosecution, Nagaenthran had never objected to Menon CJ hearing his case in multiple trials previously. After a series of legal disputes and appeals for clemency, he was unfortunately executed yesterday, which was termed by Reprieve — an anti-death penalty group — as a “tragic miscarriage sentence of justice”.[1]
Mandatory Death Penalty on Drug Offences
The discourse to abolish capital punishment has been around for decades – this includes the imposition of mandatory death penalties on drug offenders.
It is well known that Singapore has one of the toughest narcotics laws in the world. Sections 7 and 33 of the Misuse of Drugs Act 1973 (Singapore) (MDA) provides for a mandatory death sentence for importing drugs, as in Nagaenthran’s case. In Malaysia, after the Dangerous Drugs (Amendment) Act 2017 came into effect, there is no longer a mandatory death sentence for drug trafficking, giving courts the discretion to impose a lighter sentence upon the accused if found to be guilty.[2] This poses a strong comparison between the laws of both countries, proving that Malaysia is willing to make a change towards safeguarding human rights. However, where is Singapore in this fight?
In a statement published to call the halting of Nagaenthran’s execution, the UN High Commissioner for Human Rights explained that the death penalty for drug offences is incompatible with international human rights legislation as such punishment may only be imposed, by countries who still retain capital punishment, for the ‘most serious crimes’.[3] It may be arguable that the term itself is subjective according to countries and all drug-related offences shall be considered of the highest seriousness. Unfortunately, whilst the aim to curb the plaguing drug issues may be noble, the reality of this enforcement of law differs.
Focusing our lens on drug trafficking as per Nagaenthran’s offence, most of the individuals prosecuted are the drug mules who are largely from underprivileged and marginalised backgrounds, whilst the drug lords often get away.[4] The chain would never be broken as there will always be individuals in desperation, willing to take the risk to commit this offence. It may not be a toothless law but is it biting the right way? Even more so in cases where individuals with disabilities, such as Nagaenthran, or those who fall into the traps of eloquent assurances — the price of gullibility and mistake shall never be to have one’s life taken away.
Defence of Unsoundness of Mind
It would then be pertinent to discuss the matter of unsoundness of mind. Although it was found that Nagaenthran’s IQ level was at 69, one point under the internationally recognised threshold of 70 for determining the intellectual disability of a person,[5] the court found that he was able to comprehend his actions.
So, how do Singapore courts determine unsoundness of mind? A common misconception is that a clinical diagnosis is conclusive to determine an accused’s sanity. However, this defence concerns itself with legal sanity, and not medical sanity. The courts then play the role of determining whether an accused is suffering from an unsound mind — and they may take into consideration expert opinion.
To raise this defence, the unsoundness of mind must have caused him to either be incapable of knowing the nature of the act, incapable of knowing what he is doing is wrong, or completely deprived of the power to control his actions. As such, it is not sufficient to prove that he was partially unsound.[6]
Nevertheless, the MDA was amended in 2012, in which Section 33B(3)(b) was added to give Singapore judges the discretion to sentence a drug trafficker to life imprisonment if he was proven — on a balance of probabilities — to be suffering an abnormality of mind and impaired his mental responsibility for his acts and omissions in relation to the offence under Sections 5(1) and 7.
To establish this, there are three limbs that need to be proven:
1) he was suffering from an abnormality of mind;
2) the abnormality arose from a condition of arrested or retarded development of mind, any inherent causes, or was induced by disease or injury; and
3) the abnormality substantially impaired his mental responsibility for his acts in relation to the offence in question.
The court found that even if Nagaenthran managed to fulfil the first two limbs, he failed on the last limb, i.e. he understood the nature of his acts and had not lost his sense of judgement on whether his act was right or wrong.[7]
As such, our question would be — why was it especially easy for the court to disregard the effects of these deficits on what they decided was a ‘calculated risk’? When the court contemplated that his deficits might have made him more prone to engage in risky behaviours, why did they decide that throwing Nagaenthran into the gallows was compatible with the intention of lawmakers when they decided to introduce Section 33B(3)(b)?
We find a serious issue with the court’s findings in which they commented that the Parliament only intended for this to protect offenders suffering from genuine issues, and not transient or self-induced illnesses that have no firm basis in an established psychiatric condition that arose from an arrested or retarded development of mind, any inherent root cause, or was induced by disease or injury.
On this, medical experts who evaluated Nagaenthran in 2013, 2016, and 2017 determined that he possessed borderline functioning intelligence and concurrent cognitive deficits, which may have contributed to his misdirected loyalty and lack of awareness of the risks associated with agreeing to commit the offence.[8]
Therefore, how little does the court think of these deficits and impairments, as to not afford protection onto the sufferers, and extend it to mean ‘transient’ and ‘self-induced'?
Our Stance
The UM Law Society would like to reinstate our stance in the previous article published under our Legal Dossier initiative — Defence of Insanity and Unsoundness of Mind in Criminal Trials — regarding the defence of insanity, that persons with mental disabilities should not be subjected to the death penalty.
We are incredibly saddened by the court’s judgement in this case. It’s disappointing to see a nation which prides itself as a first world nation execute a person with disability. As Singapore has always been in the forefront of human rights, this decision sets a dangerous precedent which may set back the causes fought in championing persons with disabilities, and highlights how Singapore has failed to secure the responsibilities it owes towards them.
We hope that this disappointing outcome would be the last of the use of the death penalty involving persons with disabilities, and we call for both Malaysia and Singapore to re-evaluate the role of mental health in the judicial system especially involving criminal prosecutions.
The people shall not forget the morning of 27th April 2022, when we lost the fight for humanity as an intellectually disabled man was sent to the gallows. May his soul rest in peace.
The views and opinions expressed in this press statement do not necessarily reflect the official position of the Universiti Malaya Faculty of Law and Universiti Malaya respectively. It should also be noted for the sake of conciseness, the UM Law Society has only selected a few issues to elaborate on, and these may not represent the whole picture of the incident.
UM Law Society 21/22
28th April 2022 Email: lawsocietyum@gmail.com Website: www.umlawsociety.com
[1] Chen, L., & Rozanna Latif. (2022, April 27). Singapore executes Malaysian on drugs charges after rejecting mental disability appeal. Reuters. https://www.reuters.com/world/malaysian-man-death-row-singapore-drugs-charges-executed-family-2022-04-27/. [2] Office of the High Commissioner for Human Rights. (2021). Malaysia Universal Periodic Review Mid Term. https://www.ohchr.org/Documents/HRBodies/UPR/NGOsMidTermReports/ADPAN_Malaysia.pdf. [3] United Nations. (2022, April 26). UN rights office calls for Singapore stay of execution for Malaysia. UN News. https://news.un.org/en/story/2022/04/1116812. [4] Ratcliffe, R. & Associated Press. (2022, April 27). Outcry as Singapore executes man with learning difficulties over drugs offence. The Guardian. https://www.theguardian.com/world/2022/apr/27/outcry-as-singapore-executes-man-with-learning-difficulties-over-drugs-offence. [5] Paddock, R. C. (2021, November 5). Rights Groups Urge Singapore Not to Execute Man With Mental Disability. The New York Times. https://www.nytimes.com/2021/11/05/world/asia/singapore-capital-punishment-drugs.html. [6] Singapore Legal Advice. (2022, March 1). The Defence of Unsoundness of Mind in Singapore: What is It?. Singapore Legal Advice. https://singaporelegaladvice.com/law-articles/defence-unsound-mind-singapore/#:~:text=The%20defence%20of%20unsound%20mind%20operates%20on%20this%20mental%20element,find%20such%20an%20accused%20blameworthy. [7] Nagaenthran a/l K Dharmalingam v Public Prosecutor [2019] SGCA 37. [8] Amnesty International. (2022, April 27). Singapore: Abhorrent hangings must end as man with intellectual disability executed. Amnesty International. https://www.amnesty.org/en/latest/news/2022/04/singapore-abhorrent-hangings-must-end-as-man-with-intellectual-disability-executed/.
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