Review death sentence of Malaysian on Singapore death row

Take into account the revelation of Nagaenthran's mental illness and intellectual disability

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Graphic: amnestyusa.org

Malaysians Against Death Penalty and Torture (Madpet) is appalled by the short two-week notice given to the family about the date of execution of a Malaysian in Singapore.

It is only just and morally responsible that family and friends of persons to be executed, including children involved, be accorded an opportunity and the right to say final goodbyes to a loved one before he or she dies. The ‘to-be-executed’ may be guilty, but let’s not forget the rights of the family and his or her friends, who are innocent victims of the situation in which Singapore has full control.

Hurdles to international travel

During the Covid pandemic, when travel from Malaysia to Singapore is restricted, Singapore scheduled when Malaysian Nagaenthran Dharmalingam is to be hanged to death for drug trafficking.

The family was informed through a letter dated 26 October which stated: “Please be informed that the death sentence passed on your son Nagaenthran A/L K Dharmalingam, will be carried out on 10 November 2021.”

Travel from Malaysia into Singapore during this pandemic is highly restricted, as is the case of cross-border travel across the world.

A perusal of Singapore’s Immigration and Checkpoints Authority of Singapore (ICA) website, suggests that the only available travel option for family and friends in Malaysia of the soon-to-be-hanged Nagaenthran seems to be under the “Death & Critical Illness Emergency Visit” option:

…This Death & Critical Illness Emergency Visit (DCEV) Lane caters to all foreign travellers who are seeking urgent entry into Singapore to attend to the death or critical medical condition of an immediate family member in Singapore. A maximum of two travellers may be granted entry per case…

One can assume the family and friends of a soon-to-be-executed-by-the-state person would be able to apply for this DCEV pass to enter Singapore from Malaysia.

It is also unjust that the DCEV pass is only available for just two persons, which means many family members and friends will not be able to even enter Singapore, let alone get permission to have a last visit with the soon-to-be-executed.

READ MORE:  Rushed appeal hearings in Nagaenthran's case a blatant denial of due process

In normal times, travel to Singapore happens simply with a passport and an on-arrival social visit pass, but that is not the case now because of the Covid pandemic. Now, it takes days to do the needed tests and get the needed approvals before one will be able to enter Singapore from Malaysia.

Give a reasonably long notice

Madpet believes that its only morally responsible and reasonable that Singapore during this Covid pandemic should not only have given a much longer notice to family about execution dates, but should also have done the needful to ensure the rights of family and friends of the person to be executed are not violated – the right to have a last meeting and say final goodbyes.

As such, Madpet calls on Singapore to immediately vacate the execution date of 10 November 2021, and fix a much later date giving a longer notice period to enable all family members and friends the right to a last visit of the soon-to-be-executed person.

Should higher amount of drugs warrant higher sentences?

Nagaenthran in 2009 was caught with a mere 42g (less than three tablespoons) of diamorphine entering Singapore, and on conviction he was sentenced to death. If he was caught trafficking 10 kg or 1 tonne of drugs, the sentence would be the same.

As such, this creates an unjust and unreasonable situation, and Madpet calls for a review of drug trafficking sentencing, and as that appropriate sentence be given depending on the weight of drugs involved, the acts of trafficking that the state has proven and also the age and whether or not he is a first-time offender.

Mental disability and sentences

Recently, the Malaysian Bar, the Advocates Association of Sarawak, the Sabah Law Society and many other groups raised the issue of ‘mental disability’ and asked that the Singapore government not proceed with the execution as Nagaenthran suffers from a mental disability.

READ MORE:  Singapore's statement on Nagaenthran contains 'outright falsities'

Nagaenthran’s mental capacity had diminished ever since he was convicted, and he has been diagnosed with a borderline intellectual disability with an IQ of 69.

Noting that the death penalty is imposed to deter others from committing the crime of drug trafficking – for it certainly is not a deterrent to the convicted, who can never be deterred after he or she is no longer alive. Hence, the important question is, would the conviction and execution of a person suffering from a mental disorder or abnormality deter others?

Persons with terminal diseases have also been seen to be released prematurely from prison.

Not a deterrent

In a 2011, in the Australian High Court case of Muldrock v R, the convicted appellant was described as being mentally and intellectually disabled, and assessed to have an IQ of 62. The High Court held in that case that the appellant was not a vehicle for general deterrence given his intellectual disability and quoted the following passage given by Justice Young:

General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others

The sentence was significantly reduced in the context of more weight being given to the appellant’s intellectual disability.

In India, a study on the mental illness and intellectual disability among 88 death row prisoners by the National Law University Delhi found that an “overwhelming” majority of death row prisoners interviewed (62.2%) had a mental illness and 11% had an intellectual disability. The study revealed that 19 out of the 88 prisoners who were interviewed were ultimately acquitted and the sentence of 33 prisoners was commuted to various terms of life imprisonment (The Week, 22 October 2021).

READ MORE:  Singapore: Awaiting Nagaenthran's fate

As such, justice will be served if Nagaenthran, due to his current borderline intellectual disability with an IQ of 69, is acquitted or at the very least, has his death sentence commuted to imprisonment. A sentence-serving prisoner with a mental illness or intellectual disability really should be treated – not simply continue to be imprisoned and worse, hanged. A failure of determination and of bringing to the attention of the trial judge during trial or sentencing Nagaenthran’s mental health and condition may also lead to a miscarriage of justice.

As such, Madpet:

  • Calls for Nagaenthran’s execution date of 10 November to be immediately vacated to allow the rights of his family and friends to the last visit and final goodbyes, taking into account the travel and movement restrictions during this Covid pandemic
  • Calls on Singapore to review Nagaenthran’s death sentence in light of the revelation of his mental illness and intellectual disability, and taking into consideration acquittal or a commutation of the death penalty to imprisonment
  • Calls on Singapore to review its sentencing of persons convicted for drug trafficking, which justly should also factor in the amount of drugs involved, and the actual acts he or she did with the drugs and
  • Calls on Singapore, being part of the UN, to immediately impose a moratorium on executions pending the abolition of the death penalty, in line with the UN General Assembly resolution adopted in December 2020, which was supported by 123 nation states, including Malaysia. The global support for a moratorium on executions continues to grow, when in 2007 there were only 104 that voted in favour of this similar resolution.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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