This whole situation is just really sad.
Claims have been made by a selection of Singapore’s activists in an attempt to stave off the execution of Malaysian, Nagaenthran a/l K Dharmalingam. They claim that Nagaenthran, ought not be hanged because he has ADHD, an IQ of 69 and was presumably incapable of knowing what he was doing when he attempted to conceal and smuggle into Singapore over 42 grams of heroin.
At the end of October, a petition to President Halimah Yacob called upon the President to pardon Nagaenthran a/l K Dharmalingam, allegedly, “an intellectually disabled man” who had been “sentenced to death for a non-violent crime”. At the time of writing, the petition had obtained more than 80,000 signatures.
The petition said that Nagaenthran is “intellectually disabled, committed a non-violent crime, and was allegedly coerced by assaults and threats”. She urged President Halimah Yacob to “uphold Singapore’s commitment” to the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) by pardoning his death sentence.
The Ministry of Home Affairs (MHA) comprehensively responded to the petition and press inquiries in two separate press releases, dated 3 November and 5 November 2021 respectively. In both press releases (recommended reading), the MHA disagreed with the assertions of fact made in the petition, pointing to the findings of the Singapore courts in a string of legal proceedings which dated back to 2010. It added that Nagaenthran was accorded full due process under the law, was represented by legal counsel throughout the process, and noted that his petition to the President for clemency against his death sentence was unsuccessful.
In view of the disputes of facts, Regardless has decided to review the findings of the Singapore courts to clarify a number of matters surrounding Nagaenthran. After all, if Singapore is to have “more conversations” on social issues, these conversations should ideally be conducted on the basis of common facts, even though opinions may differ.
Was Nagaenthran “Coerced”?
On 22 April 2009, Nagaenthran was arrested at the Woodlands Checkpoint while entering Singapore from Malaysia. He was found to be carrying 42.72 grams of diamorphine and charged under the Misuse of Drugs Act (MDA). According to the MHA, this was the equivalent of 3,560 straws of heroin – enough to feed the addiction of about 510 abusers for a week.
His case was heard in the High Court before Justice Chan Seng Onn. Nagaenthran was defended by his assigned lawyers, Amolat Singh and Balvir Singh Gill.
In his defence in the criminal proceedings, Nagaenthran argued that he was coerced under duress from a person named “King”, who allegedly slapped and punched Nagaenthran and threatened to kill Nagaenthran’s girlfriend Shalini.
According to the MHA, this was the equivalent of 3,560 straws of heroin – enough to feed the addiction of about 510 abusers for a week.
Nagaenthran had also explained in his statement to the police that he had to deliver the heroin because he had owed King money and King promised to pass him “another five hundred dollars after [his] delivery”.
In a 2011 decision, Justice Chan rejected Nagaenthran’s defence of duress, observing that “nothing untoward seemed to have happened to Shalini” after the delivery of the bundle failed. The Judge added, “This, while admittedly not in itself conclusive, nevertheless would still go some way in demonstrating that the entire episode of King’s threat could have been a fabrication or afterthought by the accused after all.”
Furthermore, Nagaenthran alleged that a police officer, Sergeant Shahrulnizam assaulted him during the strip search, claiming that Sergeant Shahrulnizam’s punches had landed on exactly the same spot where King had previously assaulted him in King’s car.
On the alleged assault from Sergeant Shahrulnizam, Justice Chan opined that “the post-statement recording medical examination conducted on [Nagaenthran] would have detected at least some physical injuries on [Nagaenthran] sustained from not just one but two episodes of violence which had occurred within a relatively short time interval” if Nagaenthran’s allegations were true. However, according to the medical report, “nothing unusual was detected at the medical examination”.
When Nagaenthran appealed to Singapore’s highest court, the Court of Appeal, the appellate court agreed with the findings of Justice Chan in its decision delivered in September 2011.
Was Nagaenthran “Intellectually Disabled”?
In 2012, the Singapore Parliament amended the MDA. Under the amendments, the Public Prosecutor could certify that a courier of drugs had rendered substantive assistance to the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.
Alternatively, if the person was a courier and was “suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions”, the court must sentence the person to life imprisonment instead of the death penalty. Ostensibly, this was intended to cover those who may have been taken advantage of on account of mental handicaps and used as drug mules.
The amendments took effect at the start of 2013.
Nagaenthran availed himself of both options.
In his application for resentencing, Nagaenthran through his lawyer Eugene Thuraisingam argued that he was suffering from “abnormality of mind”.
Both the prosecution and defence called upon psychiatrists. Nagaenthran led evidence from Dr Ung Eng Khean from Adam Road Medical Centre, whereas the Prosecution led evidence from Dr Kenneth Gerald Koh from the Department of General and Forensic Psychiatry at the Institute of Mental Health (IMH).
Dr Ung diagnosed Nagaenthran to be suffering from the following conditions: (1) Severe Alcohol Use Disorder, (2) Severe ADHD Combined Type and (3) Mild Intellectual Disability.
However, this was contradicted by Dr Koh, who found that Nagaenthran “had no mental illness at the time of the offence”. According to Dr Koh, Nagaenthran was not “clinically mentally retarded”, but had a “borderline range of intelligence”. Two additional reports were given by psychologists Ms Eunice Seah and Dr Patricia Yap from the IMH, who reported similar findings.
In a judgment delivered in September 2017, Justice Chan considered the reports of two psychiatrists and two psychologists and found, on the basis of the reports from three of these experts, that Nagaenthran “only suffered from borderline intellectual functioning, and did not suffer from mild intellectual disability”. Thus, it was not proven that Nagaenthran’s condition “was an abnormality of such a degree as to impair the applicant’s mental capacity to understand events, judge the rightness or wrongness of one’s actions, or exercise self-control”.
Nagaenthran only suffered from borderline intellectual functioning, and did not suffer from mild intellectual disability
Nagaenthran had also said at trial that he had passed the Malaysian equivalent of the GCE ‘O’ Levels (Sijil Pelajaran Malaysia (SPM)), but told the different experts on different occasions that he had failed his SPM, and even failed the Malaysian equivalent of the Primary School Leaving Examinations (Ujian Penilaian Sekolah Rendah (UPSR)). The Judge thus concluded that Nagaenthran “was continuously altering his account of his educational qualifications, ostensibly to reflect lower educational qualifications each time he was interviewed.”
Separately, Nagaenthran’s application to challenge the Public Prosecutor’s refusal to issue him a certificate of substantive assistance was dismissed by the High Court in 2018.
These decisions were upheld on appeal. A rare five-judge panel of the Court of Appeal – which is convened in more significant cases – remarked,
“[Nagaenthran] in the end took a calculated risk which, contrary to his expectations, materialised. Even if we accepted that his ability to assess risk was impaired, on no basis could this amount to an impairment of his mental responsibility for his acts. He fully knew and intended to act as he did. His alleged deficiency in assessing risks might have made him more prone to engage in risky behaviour; that, however, does not in any way diminish his culpability.”
Nagaenthran’s last-ditch effort to stave off his execution was dismissed by the High Court on 8 November when Justice See Kee Oon rejected his lawyer M. Ravi’s argument that Nagaenthran had the mental age of a person below 18 years old. The Judge noted that the alleged mental age was based on the opinion of his lawyer, who has no medical expertise and has met the prisoner only once, on 2 November, for 26 minutes. Justice See added that it was “not open to [Nagaenthran] to challenge the court’s findings pertaining to his mental responsibility, whether directly or indirectly, in yet another attempt to revisit and unravel the finality of those findings.”
In a strange turn of events, the hearing of the appeal on 9 November did not proceed when it was revealed that Nagaenthran had tested positive for Covid-19. As of writing, the hearing has been indefinitely postponed and Nagaenthran’s execution has been halted.
Singaporeans’ Perspectives on the Death Penalty
At a deeper level, the perspectives above reflect a wider debate: Should Singapore impose the mandatory death penalty for drug trafficking? Or even impose the death penalty at all?
Surveys have found that the majority of Singaporeans are generally supportive of the death penalty, although perspectives are more nuanced on a closer look.
According to the results of a survey published by the National University of Singapore (NUS) Faculty of Law in 2018, about 7 in 10 persons supported the use of the death penalty ‘in general’. A higher proportion (about 9 in 10 persons) supported the use of the death penalty when asked specifically about three types of capital offences: namely, intentional murder, drug trafficking (above certain amounts) and non-lethal discharge of a firearm when committing certain crimes (‘firearms offences’).
The NUS survey had been conducted among 1,500 Singaporeans aged between 18 to 74 years.
Nevertheless, the same study found that, when presented with scenarios containing factual circumstances of cases of intentional murder, drug trafficking, and firearms offences (all of which would have merited the mandatory death penalty under Singapore law), “the level of support for the death penalty was in fact lower than what the respondents had claimed it to be”. It also noted that there was “little support for the death penalty in typical cases of drug trafficking brought before the courts”, despite 86.9% of respondents having claimed that they supported it.
Another 2018 survey commissioned by the Ministry of Home Affairs (MHA) found that, among 2,000 Singapore citizens and permanent residents, 69.6% of respondents agreed with the statement that the “death penalty is an appropriate punishment for drug traffickers who traffic a large amount of drugs”. Support was lower among those aged 13 to 30 (52.7% agreed with the statement), as compared to those aged above 30 (74.6% agreed with the statement).
There was “little support for the death penalty in typical cases of drug trafficking brought before the courts”, despite 86.9% of respondents having claimed that they supported it.
By comparison, 93% of respondents to the MHA survey agreed that it was “appropriate” to imprison drug traffickers as punishment, whereas 80.1% agreed that “caning is an appropriate punishment for drug traffickers”.
A Difference in Principles?
In its second press release regarding the latest petition, MHA additionally stressed that Singapore adopts “a zero-tolerance stance against illicit drugs”. “The penalties, including the death penalty, for the illegal trafficking, importation or exportation of drugs are made clear at our borders, to warn traffickers and syndicates of the harsh penalties they potentially face.” It credited Singapore’s approach with making Singapore “one of the safest places in the world to live, relatively free of serious crime, and without the scourge of drug-related crimes and homicides”.
This is a prime reflection of Singapore’s pragmatic approach to law and policy. In 2016, then-Foreign Minister Vivian Balakrishnan similarly argued at a UN high-level side event that “the way we have implemented our judicial system in Singapore has been pivotal in our efforts to foster a peaceful, safe, harmonious and inclusive society.”
A study, published in the January 2020 edition of the Home Team Journal, buttresses the role of the death penalty as a deterrent factor against drug trafficking. The study was conducted among offenders by psychologists from the Singapore Prison Service and Central Narcotics Bureau, who concluded that
“there is strong evidence that many drug traffickers in Singapore restrict their trafficking activities to minimise the potential consequences of their drug trafficking activities, thereby lending support to the presence of restrictive deterrence.”
Advocates against the death penalty have questioned such data. In a post, the Transformative Justice Collective objected when K. Shanmugam (in his capacity as Minister for Home Affairs) cited the above data in support of deterrence, and argued that: “There is no conclusive evidence that the death penalty is more effective than any other punishment at deterring crime.”
Apart from rejecting the role of the death penalty as deterrence, the argument against the death penalty rests on a number of key principles.
One of these principles is a commitment to the intrinsic value of all human life. Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
While the ICCPR does not of itself prohibit the death penalty, Article 6(2) of the ICCPR stipulates that the “sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime”. The death sentence must also be consistent with the ICCPR and the Convention on the Prevention and Punishment of the Crime of Genocide, and the penalty can only be carried out pursuant to a final judgement rendered by a competent court.
Anyone sentenced to death must also have the right to seek pardon or commutation of the sentence, under Article 6(4) of the ICCPR.
Singapore is not a party to the ICCPR, but is a party to other human rights treaties, such as the CRPD where “States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.” (Article 10 of the CRPD)
Another of these principles is that of limited government. This “limited government” argument against the death penalty considers that governments ought not to be given too much power, let alone the power to take lives, except in the face of a direct and imminent threat to lives. The Singapore government had rejected in the 1991 Shared Values White Paper as a “Western idea” that “a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise”.
From the perspective of these principles, arguments based on deterrence sound like an impermissible use of the logic “the end justifies the means”, because the means (killing) is not seen to be justified in the first place.
On the contrary, those arguing for capital punishment base their arguments on communitarian grounds. They argue that to genuinely protect life, there must be a serious and credible threat to the one who would choose to deliberately endanger the lives of others, affect families and beleaguer the broader community.
Still others argue on the basis of human rights, They hold that they have a right to live in a safe community without threat or danger, and use Singapore’s safety-by-deterrence model to validate the death penalty for drug traffickers.
Whichever position one takes, it is important that our debates should take place on the basis of common facts as far as possible. Differences of opinions are fine, but differences over facts should not be. At best, doubts over facts show things that need to be investigated in greater detail. It is not appropriate to make assertions which have been objectively found to be untrue, and that is something we all ought to wake up to.
