FACTS OF THE CASE

Nagaenthran Dharmalingam, who had been on death row for more than a decade, was executed on April 27, 2022 for attempting to import 42.72 grams of diamorphine (heroin) into Singapore in 2009. He was charged under Section 17 of the Misuse of Drugs Act 1973, which carries a presumption that anyone caught in possession of 15 grams or more of Diamorphine is presumed to be carrying it for the purposes of drug trafficking. Unless proven otherwise, the provision carries the mandatory death penalty. 

What is particularly striking about the case at hand is that Nagaenthran’s legal counsel had argued that he is intellectually disabled and thus mentally incompetent, which if proven, carries different obligations under international law. The crux of the issue is that this evidence of Nagaenthran’s borderline intellectual functioning and mental impairment was insufficient for the court to conclude that he had suffered from the common law “abnormality of mind” exception provided under  Section 33(B)3 of the Misuse of Drugs Act. This exception provides statutory relief from the mandatory death sentence by allowing for a discretionary resentencing to life imprisonment, provided the defendant is proven to be a courier at the time of committing the crime. 

 UNDERSTANDING THE “ABNORMALITY OF MIND” EXCEPTION UNDER THE 2012 AMENDMENT  

This “abnormality of mind” exception was first introduced into Singaporean domestic law in 2012 and requires the defendant to satisfy a tripartite test to qualify for a reduced sentence of life imprisonment. For the purposes of this article, the focus will be on the first and second components of the test. The first limb requires that the defendant prove that he was suffering from an “abnormality of the mind”, and the framework adopted by the courts is borrowed from the English criminal case of R v. Byrne on diminished responsibility within murder convictions. This test, amongst other things, requires the court to determine whether the defendant was able to exercise willpower and rational judgment during the offence. It is an objective test, which means it is ultimately a legal question for the court to decide and does not rely solely on an isolated medical inquiry. An assessment of the above would usually take the form of expert medical evidence to determine the defendant’s mental condition. In Nagaenthran’s case, the evidence that the court accepted was that he had mild attention deficit hyperactivity disorder (ADHD) of the inattentive kind and suffered from impaired executive functioning skills, which had ultimately reduced his ability for higher-level abstract reasoning. The court also accepted medical evidence attesting that he possesses an average IQ of 69, which is well below the accepted average threshold of 100 or more. Any score of less than 70 is indicative of developmental and learning disabilities. 

Under the second limb, an “abnormality of mind” must arise from an inherent or permanent cause, which includes situations that give rise to an abnormal mind, such as substance abuse. At the time of arrest, psychiatrist Dr Ung Eng Khean, testified that Nagaenthran suffered from multiple disorders that gave rise to an abnormal mind, namely, severe alcohol use disorder, severe ADHD, and mild intellectual disability.

This evidence was rejected in court on the basis that Nagaenthran’s borderline intellectual functioning was insufficient to meet the “abnormality of mind” threshold as set out above. This was because the court chose to take a narrow approach of what falls under abnormality within section 33(b)(3), departing from the wider approach that was first taken in Byrne. Under this narrow approach, the court did not accept that whilst Nagaenthran’s current mental state did suffer from mild ADHD, it should fall within the narrow threshold of the mental abnormality exception. 

SINGAPORE’S OBLIGATIONS REGARDING THE DEATH PENALTY UNDER INTERNATIONAL LAW

Nonetheless, Nagaenthran’s impairments still fall within the provision concerning disability under international law. Singapore being a signatory to the Treaty on the Convention of the Rights of Persons with Disabilities (CRPD) (hereinafter convention), violates its treaty obligations under the convention when executing a person with mental disabilities. Further, the Economic and Social Resolution 1984/50  prohibits the execution of prisoners who are mentally ill. These instruments are clear in their prohibition of executions that fall within the disability ambit of the convention. This prohibition is in line with the UN Special Rapporteur’s advisory reports on Singapore’s executions of mentally ill persons (2015), which affirmed that the practice stands in violation of internationally accepted norms. UN experts have also provided clarification on the illegality of the matter when the Human Rights Committee called on Pakistan to halt the execution of a prisoner with an intellectual disability in 2019. 

Guiding opinions on the matter indicate that the implementation of the death penalty given these conditions is further exacerbated due to the lack of procedural safeguards during the trial process. Singapore is under a legal duty to refrain from imposing the death penalty on those with mental disabilities, grounded in the fact that it is a disproportionate and discriminatory denial of the right to a fair trial which also guarantees procedural accommodations regarding those disabilities. Christof Heyns, the then UN Special Rapporteur on arbitrary executions, provided clarity on the legality of executions which fall under mental disabilities, clarifying that an inability to access these safeguards means the punishment method falls squarely under summary executions. 

The UN Special Rapporteur on torture additionally assessed executions of this nature to be in violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment because they constitute degrading punishment. This is because, under international law, countries that currently implement the death penalty can only impose the punishment once the guilt of the person charged has been clear upon convincing evidence. This is a clear requirement under the safeguards included under the Economic and Social Council resolution 1984/50, guaranteeing protection of the rights of those facing the death penalty. In this case, the punishment is inherently cruel due to Nagaenthran’s mental disabilities and his inability to comprehend the situation he is faced with. 

Problematic still is the denial of effective procedural safeguards during Nagaenthran’s trial process. According to international law, those who are subject to the CRPD must get the necessary assistance and accommodations to participate fully in their legal proceedings, protections that Nagaenthran was effectively denied. This is particularly concerning because it amounts to a violation of the right to a fair trial under article 6 of the International Covenant of Civil and Political Rights (ICCPR). The lack of procedural safeguards available for Nagaenthran resulted in a summary execution that violated article 6, which offers protection against being “arbitrarily deprived” of one’s life. In this case, UN experts on the matter have concluded in a joint statement that the imposition of the mandatory death penalty does amount to arbitrary deprivation of life because the punishment is mandatory, despite not considering the defendant’s personal circumstances in light of the particular offence. 

This execution is one of many that highlights an alarming trend towards a strong correlation between the “limited support” offered under procedural accommodations for people with psychosocial disabilities and an overrepresentation amongst those who receive death sentences. This was recognised by the office of the United Nations High Commissioner for Human Rights in 2018 when UN experts advised on the legality of the execution of Mr. Khizar Hayat, a man with psychosocial disabilities despite Pakistan’s international obligations. The advisory statement correctly highlights how the lack of access to psychosocial healthcare support in prison constitutes an additional form of discrimination and is tantamount to an arbitrary execution, alongside being a form of degrading punishment, as mentioned above. 

SINGAPORE’S ‘DUALIST’ APPROACH TO INTERNATIONAL OBLIGATIONS

During Nagaenthran’s appeal hearing on March 1st 2022, the judge had taken a striking approach to Singapore’s international treaty obligations. The judge stated that the country adheres to a dualist approach to the treaties it is a signatory to, meaning that unless there is specific legislation passed in parliament that acts to incorporate an international obligation into domestic law, it does not have the force of law domestically. In taking this approach, Chief Justice Menon referred to the Court of Appeal’s 2015 decision of Yong Vui Kong, where the court had explained that where international obligations are concerned, its violation did not impact a court’s enforcement of its domestic law (which in this case, concerns the mandatory death sentence under Section 17 of the Misuse of Drugs Acts for presumed drug trafficking). 

The appeal hearing raises legitimate concerns about Singapore's domestic system's lack of substantive clarity considering its duties under international law. If we accept the court’s reading that international laws do not have force of law unless and until they are incorporated into the domestic legislature by way of parliamentary debate, this crucially highlights a legal gap between what is legally required of Singapore in these instances, and how this translates into on the ground domestic policies. The narrow interpretation of the “abnormality of mind” threshold under section 33(b)3 may fall well below what international law demands regarding protocols safeguarding prisoners sentenced to death. With that in mind, the law on “abnormality of mind” should be carefully reviewed to bring the common law test in line with internationally accepted standards. Singapore’s very narrow view which requires proving specific permissible and accepted mental disorders as the cause of an abnormal mind falls short when considering global standards of disability law. This restricted approach could potentially bring about issues of whether this constricted test is able to meet its wider international obligations. 

Another troubling issue is the absence of parliamentary monitoring and debate to ensure that local law is brought into compliance with recognised international standards. What can be inferred from this unfortunate case is that not only does Singapore not intend to honour the international treaties it is a signatory of, it also does not prioritise the wider humanitarian laws that safeguard the prisoners it has on death row. Singapore is part of a declining trend of countries that still have the death penalty, and as such, it holds a wider obligation to guarantee its domestic policies are closely in line with international safeguards.  If the aim of the 2012 amendment to the Misuse of Drugs Act was to bring serious judicial reform into the way the death sentence is approached regarding drug couriers, this currently accepted narrow interpretation and its subsequent challenges in parliamentary oversight signify that the current law, as it stands, fails to meet those overarching aims. Nagaenthran’s recent execution draws attention to how intentional safeguards should never be deliberately circumvented by relying on legal loopholes at the expense of prisoners within the criminal system. 

*This article covers events up to the date of 27/04/2022.

Joyce is currently a 2nd-year student at the University of Manchester, pursuing an LLB. She is keenly invested in the documentation of Human Rights issues, with a specific interest in the rule of law, constitutional law, and transitional justice.

Linkedin