Singaporean international human rights lawyer M Ravi (centre, in black), Malaysia's Lawyers For Liberty's N Surendran (centre, in white) and Melissa Sasidaran (extreme left), and Ngeow Chow Ying of the Civil Rights Committee KLSCAH with the family of Nagaenthran K Dharmalingam, a Malaysian death row prisoner in Singapore, after a press conference at LFL's office in Petaling Jaya on Tue (23 Jul 2019). Source: TOC/Danisha Hakeem

Executing mentally impaired M’sian death row prisoner contravenes international law and even S’pore’s laws: Lawyers For Liberty

Singapore’s decision to execute a mentally impaired Malaysian death row prisoner breaches the standards of international law and even the Republic’s own laws, said Malaysian lawyer N. Surendran in a joint press conference with Singaporean international human rights lawyer M Ravi at the Lawyers For Liberty office in Petaling Jaya on Tue (23 Jul).

Surendran, who is also the founder of the Malaysian human rights and law reform organisation, said: “Can you hang a person who has got [an] IQ [of] 69, and who an independent psychiatrist has declared as [having a] mental disability? … We are saying you cannot. That is in breach of international law and even Singapore’s laws.”

“In a capital punishment case, you can’t make an assessment without even seeing the patient, and on top of it, accepting in toto the State psychiatrists’ evidence and attacking the evidence of the independent psychiatrist,” he added.

Surendran, the Malaysian lawyer for Pannir Selvam Pranthaman who was granted a stay of execution by the SGCA at the end of May, argued: “How can that be part of a fair trial? How can [it be said that] our [Malaysian] citizens have been treated fairly? I think it’s staring everyone in the face that Nagaenthran was not treated fairly.”

Labelling it “a matter of grave seriousness”, Surendran also alleged that Malaysians in particular “are being targeted by Singapore for this kind of treatment”, which he claimed is in line with Singapore’s Law and Home Affairs Minister K. Shanmugam’s statement in May regarding Malaysian death row prisoners convicted of drug trafficking in Singapore.

Mr Shanmugam told The Straits Times on 24 May that while he acknowledges that some ministers in the Pakatan Harapan government are “ideologically opposed” to the death penalty, Singapore will remain steadfast in its decision to continue imposing the death penalty on persons found guilty of drug trafficking, and thus expects Malaysia to “respect that condition as well.”

“It is not tenable to give a special moratorium to Malaysians, and impose it on everyone else, including Singaporeans who commit offences which carry the death penalty,” said Mr Shanmugam, adding that the Singapore government will not “be deflected from doing the right thing for Singapore” and its population, whom he believes “is supportive of that stand”.

“That is the question I want to ask Mr [K] Shanmugam: When you said in May that you won’t go easy on Malaysians, does that mean you will even execute a Malaysian suffering from mental disability? Is that what you mean, Mr Shanmugam?” Surendran charged.

Nagaenthran was arrested in 2009 and convicted in 2010 for trafficking not less than 42.72 grams of diamorphine into Singapore via Woodlands Checkpoint in Apr 2009. He was subsequently sentenced to the death penalty.

M Ravi stressed that according to the State’s psychiatrists’ evidence, Nagaenthran “suffers from a mild form of Attention Deficit Hyperactivity Disorder of the inattentive type where his executive functioning skills are impaired”.

“Despite these findings, the High Court Judge and the Court of Appeal opined that borderline intellectual functioning was insufficient to qualify Naga as suffering from ‘an abnormality of the mind’,” M Ravi highlighted.

Singapore a signatory to the UN Convention on the Rights of Persons with Disabilities – so why is Nagaenthran, a person with disabilities, placed on death row?: Lawyers

M Ravi and Surendran both highlighted that while Singapore has, without reservations, signed and ratified the Convention on the Rights of Persons with Disabilities (CRPD), Nagaenthran’s impending execution signals a discrepancy in the ratification of said convention and the State’s treatment of prisoners such as Nagaenthran.

“The CRPD should also protect Nagaenthran, because cruel and inhuman punishment [of PWD] is prohibited,” said M Ravi.

However, M Ravi noted during the press conference that under Section 33B(3)(b) of the Misuse of Drugs Act (MDA), what needs to be demonstrated in terms of mental impairment falls under Singapore’s domestic law, which places a high bar as to what disabilities or impairments are covered under the exceptions, while the CRPD includes a “wide range of conditions” among which Nagaenthran will qualify for.

In 2013, Singapore’s drug laws were amended to allow drug couriers to escape the death sentence in limited situations, such as if the offender is in possession of a certificate of substantive assistance from the Public Prosecutor (PP), or was suffering from an abnormality of mind substantially impairing his mental responsibility when committing the offence.

However, argued M Ravi, granting a non-judicial officer such as the PP the power to grant such a certificate may be “in breach of the principle of separation of powers”, given that the PP is designated under the Attorney-General’s Chambers (AGC), which falls under the executive arm of the government.

Singaporean international human rights lawyer M Ravi speaking at the Lawyers For Liberty press conference in Petaling Jaya on Tue (23 Jul). Source: TOC/Danisha Hakeem

M Ravi, who is also the founder of the Singapore Anti Death Penalty Committee, also reiterated the statement he had made in May — after the Singapore Court of Appeal (SGCA) had dismissed Nagaenthran’s appeal against the death sentence — that “Nagaenthran suffers from mental illness or intellectual disability according to his own medical expert Dr Ken Ung”.

Dr Ung’s observation, said M Ravi in May, “could have saved him from the gallows if he had been able to convince the court that he suffers from such mental impairment”.

“Unfortunately, the Court chose instead to rely on IMH psychiatrists’ reports which indicated that Nagenthran’s mental condition does not sufficiently qualify as a mental impairment. Nevertheless, the prosecution and the High Court below accepted that he suffers from a mild intellectual disability,” said the lawyer via a Facebook post on 27 May.

Citing UK-based human rights organisation Reprieve’s work on handing death sentences to mentally ill or intellectually disabled persons, M Ravi said that “Both international and domestic law in many countries around the world prohibit the execution of people with mental illness or intellectual disabilities”.

He also added that the expert evidence of Dr Koh, the State’s third medical expert, was made “without further independent medical examination” of Nagaenthran, but instead was made for the purpose of ‘making observations’ on Dr Ung’s opinion.

M Ravi also rehashed his earlier view that such a practice, dubbed as ‘poking holes’ in the Defence’s report, is “unacceptable” in criminal trials, and would mean that the SGCA’s decision is in contravention of Nagaenthran’s “right to a fair trial under international law”.

Singaporean international human rights lawyer M Ravi (left) with Lawyers For Liberty founder and Malaysian lawyer N. Surendran at the Lawyers For Liberty press conference in Petaling Jaya on Tue (23 Jul). Source: TOC/Danisha Hakeem

Surendran, during the press conference, urged the Singapore government to not execute Nagaenthran, as executing someone with an IQ of 69 will be in grave contravention of international human rights law and even Singapore’s domestic laws, and will signify Singapore’s descend into “barbarism”.

M Ravi said that should direct exchanges between the two countries fail, and Singapore continues to carry out executions upon its Malaysian death row prisoners, Malaysia has the right to take Nagaenthran’s case to the International Court of Justice (ICJ).

Concurring with M Ravi’s point, Surendran said: “There is already a case to haul Singapore to the ICJ. Other countries have hauled each other [to the ICJ] for lesser reasons than this … By executing our citizens with mental problems, Malaysia has the right to do so.”

“Of course the ICJ can make rulings in order to stop [Singapore from carrying out such executions], and Singapore is obliged to comply with some of the rulings of the ICJ,” he added.

Surendran highlighted that the act of execution of a disabled person by the State serves as one of the strongest cases that would necessitate the intervention of the ICJ, in addition to warning that this issue may affect bilateral ties between Malaysia and Singapore.

“I think even on previous occasions, many of our ministers spoke up against the imminent execution of our [Malaysian] citizens [on death row in Singapore]. But now, things have taken [a turn for] the worse with Nagaenthran’s case, because it concerns a person with disabilities,” said Surendran.

M Ravi said that following Nagaenthran’s case and the string of rejected clemency petitions of Malaysian death row prisoners by Singapore, he has drafted a complaint to the ICJ on behalf of Malaysia. Malaysia’s de facto Law Minister Liew Vui Keong has also received the draft, he added.

Both lawyers noted that Singapore has not approved any clemency petitions since 1998, and that “hundreds” of prisoners have been executed under the death penalty, with most of them convicted for drug trafficking. Only a small number of death row prisoners were executed for murder convictions and other serious crimes.

Lawyers For Liberty director and Malaysian lawyer Melissa Sasidaran speaking at the Lawyers for Liberty press conference in Petaling Jaya on Tue (23 Jul). Source: TOC/Danisha Hakeem

Melissa Sasidaran, the director of LFL, said that “Singapore seems hellbent” on joining countries such as China — which she dubbed “the world’s leading executioner” — as well as Iran and Saudi Arabia, as seen in the string of rejected clemency petitions made by Malaysian death row prisoners in particular.

Illustrating her point, she cited the cases of Nagaenthran, Pannir Selvam and the cases of four other Malaysian death row prisoners in Singapore.

She pointed out that the increase in State executions in Singapore are made in a time where “all around the world” countries are “reducing the number of executions”.

“It is particularly troubling in this case where it is a Malaysian citizen [who is involved], and at a time when Malaysia itself is looking at our own death penalty laws, and we have already imposed a moratorium on the death penalty.

“I think Singapore should look into their death penalty laws, in light of the developments in the region and also worldwide … Hopefully the death penalty will be abolished in Singapore,” Sasidaran added.

Wholesale rejection of clemency petitions of Malaysian death row prisoners in Singapore “unprecedented” and “shocking”; Singapore appears to be “preparing for an execution binge”: N. Surendran

Surendran earlier in a press statement on 12 Jul said that while the rejection of 10 death row prisoners’ clemency petition in a short span of one week by President Halimah Yacob “is a record number”, the society is concerned that “the actual number of rejections may be even higher than the information” it has received so far.

“The large and sudden number of clemency rejections are unprecedented and shocking. It indicates that Singapore is preparing for an execution binge, in total disregard of international legal norms and decent world opinion,” said Surendran, highlighting that the urgency at which clemency petitions are rejected “also raises serious questions as to whether each prisoner’s case was duly considered by the Cabinet and President”.

“In Singapore, the rejection of clemency petition is usually followed soon after by the prisoner’s execution. Hence, it is probable that these prisoners will be executed within weeks from now,” said Surendran.

“We also urge the Malaysian government to make urgent and necessary representations to Singapore on behalf of the 4 Malaysian citizens facing imminent execution,” he added.

During the press conference, Surendran revealed that the number of rejected clemency petitions might have risen up to 15 as of today, and that at least 13 have been confirmed.

Granting clemency not fully contingent on President’s wishes; President likely bound by Cabinet’s advice?

The act of granting clemency upon prisoners on death row in Singapore comes with restrictions — the President, according to the Constitution of the Republic, does not appear to have full and unfettered discretion over the decision to pardon said prisoners.

Under Article 22P(2) of the Singapore Constitution, the Cabinet has the power to give advice to the President on how the powers of clemency can and should be exercised, after the Attorney-General had given his opinion on a particular case involving a clemency petition based on judicial reports related to the case.

Section 21(1) of the Constitution similarly — but more broadly — stipulates that the President shall carry out the powers vested within her role “in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet”, which may possibly, in cases involving clemency petitions, refer to the Minister for Law and Home Affairs as an example of a relevant Minister in question.