On 22nd October, the Ministry of Home Affairs’ (MHA) in Singapore shared its response to Sir Richard Branson’s Blog Post on 10th October in conjunction with the 20th World Day Against the Death Penalty. The content of the MHA response was not new, evidenced by references to their earlier statements, their self-proclaimed ‘Facts of the Case of Nagaenthran a/l K Dharmalingam’ and quotes given by Minister K. Shanmugam in media interviews. 

The Anti-Death Penalty Asia Network (ADPAN) – a regional network of anti-death penalty advocates – takes up the opportunity to respond to key errors reiterated in the MHA press release. 

This statement is borne out of the inability of Singapore to meaningfully engage with Singaporean experts, lawyers, activists, journalists and family members of those on death row who are all too aware of the cruel realities and laws of the practice of the death penalty in the nation. Yet MHA seek to draw attention to themselves by inviting Mr Branson for a live televised debate on the matter. 

Firstly, to best understand the cruel realities and flaws of the practice of the death penalty in Singapore (where so far at least 11 men have been killed this year, all for non-violent drug offences) head over to the #StopTheKilling campaign. Transformative Justice Collective is the movement of activists, journalists and human rights defenders in Singapore behind this campaign whose work is informed directly by death row prisoners and their families. #StopTheKilling calls for an immediate moratorium on executions, followed by an independent and transparent review of the use of the death penalty in Singapore. 

• Error #1: MHA’s claim that Nagaenthran A/L K Dharmalingam was not intellectually disabled

In 2017, the High Court of Singapore found that Nagaenthran had a diagnosis of borderline intellectual function (IQ: 69) and ADHD. These diagnoses did not amount to the legal test of ‘abnormality of the mind’ under s33B(3) of the Misuse of Drugs Act; this does not mean that the MHA can erase the reality that Nagaenthran lived with a disability. The MHA ought to be guided by the voices of persons with disabilities in Singapore. In November 2021, We Who Witness released a joint Call from Persons with Disabilities to Halt the Imminent Execution of Nagaenthran a/l K Dharmalingam, noting that Nagaenthran had “difficulties with attention, verbal fluency, set-shifting, abstract reasoning, strategy formation and problem solving, and may have had difficulties in knowing who to trust”.

Rather than debating whether or not an assessed IQ score of 69 fits into the Singaporean Governments’ chosen definition of ‘intellectual disability’, Singapore should adhere to its obligations as a State Party to the United Nations Convention on the Rights of Persons with Disabilities, which “takes an interactions-based, rather than individual and medical, approach to disability”2. A person with Nagaenthran’s diagnostic profile should have been afforded procedural accommodations at all stages of the criminal justice system, from police interview right up until the point of execution. 

A retrospective debate about Singapore’s definitions of intellectual disability in relation to Nagaenthran causes further trauma to his family given that Nagaenthran was hanged by Singapore on 27 April this year. 

• Error #2: MHA’s claim that Singapores’ drug policy has had a  clear deterrent effect on drug traffickers’

Regardless of the selective reliance on survey data by the MHA to justify its ongoing ‘war on drugs’ policy, there is no evidence-based research to support the claim that “the death penalty in fact deters drug-related or other crime more than other methods of punishment”. Surveying peoples’ opinions regarding drug trafficking into Singapore is not a measure of actual deterrence effect. 

In 2019, the United Nations Office on Drugs and Crime confirmed that not only is the death penalty not supported by any of the three international drug conventions, but countries that maintain the death penalty for drug offences are impeded in their ability to fight drug trafficking due to other countries’ domestic laws prohibiting the exchange of information and extradition with states that retain the death penalty. There are ample evidence-based harm reduction policies in relation to persons who use drugs and crime; MHA ought to

meaningfully engage with subject-matter experts to be guided on best practices, rather than remain one of the handful of countries that execute persons for drug offending. 

• Error #3: MHA’s claim that ‘suspicion of alleged racial bias’ of those on death row and those executed is false

There is evidence of an over-representation of persons of ethnic-Malay descent and other minorities sentenced to death in Singapore. Transformative Justice Collective reports that “64.9% of persons who received death sentences between 2010 and 2021 for drug offences were of Malay ethnicity, from different nationalities”. UN experts corroborate that “A disproportionate number of minority persons were being sentenced to the mandatory death penalty in Singapore.”

In its response, MHA asserts that any allegations of racial bias are ‘sweeping generalisations unsubstantiated by any specific evidence’ without the support of data on racial composition of the death row population. Unfortunately in July this year, Minister K. Shanmugam maintained he would not disclose data due to concerns regarding the adverse impact this could have on society.

This lack of transparency by the authorities has led to the ongoing debate on the matter, both locally and internationally. If the MHA is right about the unsubstantiated claims of racial bias, simply righting this narrative with specific data will not have any adverse impact on society as claimed by Minister Shanmugam. 

• Error #4: MHA claims that it is a ‘falsehood’ to allege capital defence lawyers are unwilling to appear on capital cases

The MHA maintains that ‘Every accused person who faces a capital sentence is provided with legal counsel to defend them’. Access to Counsel is only meaningful if it is provided from the start of a police investigation until the moment an execution is carried out. The practice of seeking personal costs orders against lawyers who appear pro-bono for persons on death row has meant lawyers no longer feel they can appear on late-stage hearings, regardless of the perceived merit of the case. 

The Attorney-General Chambers and the judiciary has insisted that these filings constitute an abuse of court processes and consistently reject any legal appeal put forward by lawyers. However, past cases suggest such challenges and appeals cannot be considered as an abuse of court processes. In the Yong Vui Kong case in 2013, his life was spared following last-minute appeals; more recently in the case of Pannir Selvam Pranthaman where, after a stay of execution was granted, it was discovered that private correspondence with legal counsel was exposed to the Attorney-General Chambers. 

Since April 2022, there have been a number of Court hearings where persons facing imminent execution have had to self-represent before the full Court of Appeal. This is an incredibly intimidating and stressful situation to be in less than 24 hours before ones’ death. ADPAN concurs with the joint letter of the International Bar Association’s Human Rights Institute and the International Commission of Jurists on 27 October, who note that where cases involve the death penalty, they must strictly adhere to fair trial guarantees. Otherwise, these cases violate the right to life under international law. Surely Singapore cannot in good conscience consider a situation where those on death row must represent themselves in appellate courts as an example of fair trial rights being upheld? 

ADPAN repeats its numerous calls for Singapore to halt its current spate of executions. The global trend towards abolition of the death penalty reflects both a respect for the dignity of humanity, an abhorrence of the cruelty of the practice, and evidence-based knowledge that the death penalty is not a more effective deterrent than other forms of serious punishment. ADPAN calls on the MHA engage in direct dialogue with civil society to move towards abolition of the death penalty. This would demonstrate that they are committed to being an ethical state actor, open to serving the people that they are elected to represent, through meaningful and transparent engagement.

1. We Who Witness, ‘Call from Persons with Disabilities to Halt the Imminent Execution of Nagaenthran a/l K Dharmalingam’ (6 November 2021) 
2. Ibid 
3. UN HRC, Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, Annual Report of the UNHCHR and reports of the OHRSG (A/HR/42/28, 28 August 2019) 
4. UNODC, Statement attributable to the UNODC spokesperson on the use of the death penalty (27 June 2019) 
5. United Nations, ‘Experts of the Committee on the Elimination of Racial Discrimination congratulate Singapore on initial report, and ask about the death penalty and about protection against discrimination for migrant workers’ (Media Release, 19 November 2021) 
6. ‘Investigating the presence of structural bias in the criminal punishment system’, Transformative Justice Collective (Web page, 16 August 2021) 
7. United Nations, ‘UN experts deplore execution of Malaysian nationals in Singapore’ (Media Release, 8 July 2022) 
8. Yong Vui Kong v Public Prosecutor [2012] SGCA 23 
9. Bernama ‘Singapore Court of Appeal grants stay to Pannir Selvam’, New Straits Times, (Web page, 23 May 2019) 
10. Pannir Selvam a/l Pranthaman v Attorney General [2022] SGCA 35 
11. IBAHRI & ICJ, Letter to H.E. Mr K Shanmugam, Minister for Law and Home Affairs, Singapore (Letter, 27 October 2022) 

On the 20th World Day Against the Death Penalty, ILGA Asia and the Anti-Death Penalty Asia Network (ADPAN) condemn the death penalty and its arbitrary use to punish LGBTIQ persons in Asia and call for its unconditional abolition. 

As of today, nearly 70 countries around the world still criminalise consensual same-sex  sexual conduct. Furthermore, 11 countries – Afghanistan, Brunei Darussalam, Iran,  Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, the United Arab Emirates  and Yemen – of which 8 are in Asia, retain the death penalty as a possible punishment  for same-sex sexual conduct. The use of criminal sanctions, including capital punishment  against lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) individuals is  rampant in Asia, especially against those from disadvantaged socio-economic  backgrounds and/or belonging to racial, ethnic or religious minority groups. Moreover,  limited access to legal aid and legal representation, as well as bias within the criminal  justice system, has a detrimental impact on LGBTIQ people’s ability to be guaranteed a  fair trial.  

The death penalty has been imposed to punish LGBTIQ persons in Asia, with Iran being  the most prolific in terms of carrying out executions. In early 2022, reports indicated that  two gay men were executed on charges of ‘sodomy’ after they spent several years on the  death row. Further, in August 2022, two women belonging to the LGBTIQ community – 

Zahra Sedighi-Hamadani (Sareh) and Elham Choubdar – were arrested by the  Revolutionary Court of Urumieh, in the West Azerbaijan Province of Iran, and were  sentenced to death under the charges of “corruption on earth” and “trafficking.” Experts have expressed their concern about the arrests being based on their involvement in  LGBTIQ rights activism and non-normative gender expression. Reports have pointed out  that the vague provision of ‘corruption on Earth’, while not containing any explicit  reference to sexual orientation, gender identity and expression, or sex characteristics,  has been used to arrest LGBTIQ individuals.  

“We reiterate our position that consensual same-sex sexual conduct should be  decriminalised, and the death penalty should be abolished under any  circumstances. Further, we urge authorities in all the countries that continue to  retain the death penalty to introduce a moratorium on its use, as a necessary first  step towards the abolition of the death penalty. Lastly, we call on authorities to  ensure that all necessary safeguards are in place in order to ensure access to legal  representation, fair trials and judicial transparency for those currently facing the  death penalty in connection with their real or perceived sexual orientation and/or  gender identity,” said Ajita Banerjie, Research and Policy Officer at ILGA Asia.

In 2017, the UN Human Rights Council passed a resolution condemning the imposition  of the death penalty for consensual same-sex sexual conduct. The resolution urged  member States that continue to retain the death penalty to ensure that it is not “applied  arbitrarily or in a discriminatory manner.” In 2016, the Report of the Special Rapporteur  on torture took note of the unique experiences of LGBTI persons and noted that victims  of violence “face significant hurdles in accessing justice and reparations, including  absence of or shortcomings in domestic legal frameworks to hold perpetrators  accountable, and practical obstacles such as the significant expense involved in  accessing court.” In its General Recommendation on Access to Justice in 2015, the  CEDAW Committee noted that “discrimination against women is compounded by  intersecting factors”, one of which was “being lesbian, bisexual, transgender women or  intersex persons. These intersecting factors make it more difficult for women from those  groups to gain access to justice.” 

The use of the death penalty is not consistent with the right to life and the right to live free  from torture or cruel, inhuman, or degrading treatment or punishment. All countries that  continue to retain the death penalty for consensual same-sex sexual conduct must  abolish the death penalty and introduce a moratorium on its use, as a necessary first step  towards abolition. Further, authorities must ensure that all necessary safeguards are in  place to ensure access to legal representation, fair trials and judicial transparency for  those currently facing the death penalty in connection with their real or perceived sexual  orientation and/or gender identity. Lastly, laws criminalising consensual same-sex sexual  conduct must be repealed, including vague and broadly defined provisions that can be  misused against individuals based on their real or purported SOGIESC.  

“With over 90% of the world’s executions taking place in Asia, the need to limit the  application of the death penalty in this region is crucial. In 2022, there is no place  for the death penalty in any circumstances and certainly not for the continued  persecution of individuals based on their sexual orientation and/or gender identity.  On the 20th World Day Against the Death Penalty, we call on countries that identify  as death penalty abolitionists and as allies to the LGBTIQ communities, to work  together to oppose and challenge executions of any persons based on their sexual  orientation and/or gender identity and provide refuge for those requiring it, said  Sara Kowal, Executive Committee, ADPAN.

Recommendations  

• Abolish the death penalty; establish a moratorium on all executions and commute all death sentences 
• Remove the mandatory death penalty for all crimes, including for offences relating to same-sex sexual acts and other vague provisions that criminalise persons of diverse gender expressions 
• Bring national legislations in line with international law and standards by removing legal provisions that allow for the use of the death penalty for offences that do not meet the threshold of the “most serious crimes” 
• Repeal all discriminatory laws that punish same-sex sexual relationships and non normative gender expression. 
• Ensure that all persons facing the death penalty – especially including those from disadvantaged or marginalized backgrounds – are provided access to effective legal assistance, 
• Ensure judicial transparency by publishing full and detailed information, disaggregated by gender identity and sexual orientation, among other factors.