Consider taking S’pore to ICJ, lawyers urge M’sia in bid to save death row inmate

[M Ravi, extreme left; N Surendran; and Nagaenthran’s family]

The effort to save Malaysian Nagaenthran Dharmalingam from being hanged in Singapore gained urgency on Tuesday, 23 July.

At a press conference in Kuala Lumpur on Tuesday, 26 July, lawyers, family and anti-death penalty campaigners urged the Malaysian government to raise his case to the International Court of Justice (ICJ) to prevent Singapore from executing the 30-year old.

Nagaenthran was arrested in 2009 for trafficking 42.72g of diamorphine (heroin) into Singapore. The amount he carried on him exceeded the statutory limit of 15g for the drug, which meant he automatically faced the death penalty. 

In Singapore, the death sentence is carried out through hanging.

The lawyers emphasised that Nagaenthran has a below-average IQ of 69. To hang him, they said, would be “in breach of all known international legal norms.”

Under Singapore’s Misuse of Drugs Act (MDA), the death sentence is mandatory, and judges have no options in sentencing unless the convicted person can satisfy 2 conditions:

  1. That he is a mere courier; and
  2. That he either possesses an “abnormality of mind”, or has been issued a Certificate of Cooperation (CoC)

The CoC is issued by the Public Prosecutor (PP) who must be satisfied that the convicted person “has substantively assisted the Central Narcotics Bureau (CNB) in disrupting drug trafficking activities within or outside Singapore.”

The CoC allows the convicted person to apply to the courts to have his death sentence commuted to a life sentence and caning of not less than 15 strokes. 

These conditions were introduced into the MDA in 2012.

Nagaenthran was denied a CoC. He challenged the PP’s decision on this, but his arguments were dismissed by the courts.

And although the courts accepted that he possesses a below-average IQ of 69, it decided that his intellectual impairment did not amount to an “abnormality of mind”.

His death sentence was thus upheld, and his next avenue for appeal is a clemency petition to the president of Singapore. His lawyers are expected to file the appeal in the coming weeks.

The lawyers noted, however, that the Singapore president has not granted a clemency since 1998.

This is partly why the lawyers and Nagaenthran’s family have turned to the Malaysian government to step in to save him from the gallows in Singapore.

Their hope that the Malaysian government will hear their plea perhaps come from recent developments in Malaysia itself, with regards to capital punishment.

The Mahathir Mohamad government had earlier pledged to abolish the death penalty altogether, but reversed that decision in March this year.

Nonetheless, it has abolished the mandatory death penalty for 11 criminal offences, and leaves the courts to decide if a convicted person should face the death sentence. 

[Lawyer N Surendran, extreme left; with family of Nagaenthran]

Lawyer N Surendran, a founding member of Lawyers for Liberty and a former parliamentarian, told the media on Tuesday that the Malaysian authorities should consider raising Nagaenthran’s case to the ICJ.

“You cannot hang a person who suffers from mental disabilities,” he said, referring to Nagaenthran, adding that the latter also has an attention-deficit hyperactivity disorder (adhd).

“Singapore will be descending into barbarism if they start this practice of executing persons who are suffering from mental disabilities,” the lawyer said. 

It is for these reasons that Mr Surendran is appealing to the Malaysian government to throw its weight behind the effort to save Nagaenthran.

“We are requesting our government not to let our citizens suffering from mental disabilities to be treated in this manner in a foreign country,” Surendran said. “Nowhere in the world can such a thing be tolerated.”

Lawyers for Liberty had said that it believed Singapore had in recent weeks rejected the clemency appeals of at least 10 death row inmates, 4 of whom were Malaysians. Surendran said on Tuesday that he believed there could actually be as many as 13 to 15 appeals rejected. 

M Ravi, who is acting for Nagaenthran’s family and who is a founding member of the Singapore Anti-Death Penalty Campaign, told the media that there should first be diplomatic exchanges between Malaysia and Singapore to save Nagaenthran, failing which Malaysia could then refer the matter to the ICJ.

Mr Ravi has submitted a memorandum to the Malaysian Government, laying out the reasons why an application to the ICJ should be considered.

“Nagaenthran is due to be executed even though he suffers from an intellectual

impairment which raises grave concerns as to whether this could be a

miscarriage of justice considering the legal test to be applied in Singapore,” he said.

He raises two particular issues with Nagaenthran’s case which are of concern.

First, Mr Ravi said Singapore has shown an “inherent bias” against independent psychiatrists, while regarding psychiatrists from the Institute of Mental Health (IMH) as “objective” and “impartial”.

He cited how, in 2010, the Chief Prosecutor had accused independent psychiatrists of being “hired guns”, claiming that they were not objective and were untruthful in court.

Such biases against independent psychiatrists are prejudicial to fair trials, Mr Ravi said.

The former Chief Prosecutor is currently a Senior District Judge.

Mr Ravi also pointed out that one of the three psychiatrists called by the prosecution to testify during Nagaenthran’s trial did not in fact even speak to the accused. 

“Instead, he only looked at the independent psychiatrist’s report in an attempt to poke holes in it,” Mr Ravi said. 

Second, the denial of the CoC for Nagaenthran based on the PP’s decision that the latter did not provide “substantive assistance” to the CNB “intrudes into judicial power and is therefore in breach of the principle of separation of powers.”

Also, the PP’s decision on the CoC is not open to judicial review, unless the decision was made in bad faith or malice; additionally, the PP’s determination of whether “substantive assistance” was rendered by Nagaenthran “is too fluid and unstable a standard by which to determine the penalty which an offender should receive.”

“This is potentially in breach of the rule of law,” Mr Ravi said.

Campaigners do not have much time to save Nagaenthran and others on Singapore’s death row, as Singapore carries out executions swiftly after all appeals are exhausted. 

Anti-death penalty activists in Singapore have noted the shortened time, in recent years, between the rejection of the last appeal and the execution date.

Hangings are carried out at dawn, 6am, on Fridays in Singapore.


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