The Anti-Death Penalty Asia Network (ADPAN) welcomes the proposed bill by the Malaysian government  to abolish the mandatory death penalty. 

The mandatory death penalty deprives the court of the necessary discretion to hear and provide fair  punishment based on aggravating and mitigating circumstances which has consigned countless persons  who do not deserve the death penalty to death row. This is apparent when comparing the 1,324 death  row inmates to other countries in the Asia Pacific, such as Indonesia (355+), India (539+), and Thailand  (510+). Malaysia, for its size, has a significantly disproportionately high number of people on death row. 

Under international law, the death penalty can only be applied to the ‘most serious crime’, which has been  defined as the crime of intentionally killing. The abolition of the mandatory death penalty would bring  Malaysia closer in line with international standards for those countries that retain the death penalty.  Whilst Malaysia retains the death penalty, lawmakers must ensure that the principle of ‘most serious crime’  

will be the foundational policy to be applied by the Attorney General Chambers and other actors in  implementing the death penalty. 

The effectiveness of the death penalty as a deterrent is questionable at best. Research and expert opinions  have indicated that there are no effective nor functional means to evaluate the deterrent effect of the  death penalty on crime at a macro level. Furthermore, the abolition of the death penalty in several  countries was noted to have been followed by lower crime rates 1 . In Malaysia, the government has  maintained a moratorium on execution since May 2018, and the crime rate reports from the Depart of  Statistic Malaysia (DOSM) indicate that murder cases have consistently fallen over the past five years from  379 cases in 2017 to 243 cases in 2021. 

It should also be noted that public support for the death penalty has been relatively consistent. The survey  and research conducted by The Centre in 2019 and 2022 did not depart significantly from an earlier study  by Professor Roger Hood in 2013. There is no majority public support for the mandatory death penalty for  intentional murder. When presented with mitigating circumstances, the support for the mandatory death  penalty falls significantly2 . For drug offences, less than 20% of respondents expressed support for the  death penalty for the transport and sale of drugs, and this support fell based on mitigating factors and the  type of drugs involved3. 

Last but not least, there are significant indicators that demonstrate that the death penalty is counterproductive in that it supports or enables crime syndicates, especially for drug offences. The  executions of drug mules in Singapore have resulted in the execution of key witnesses who have had  significant information that could lead to the arrest of crime syndicates in Malaysia 4 . In the past, the  Singapore Minister of Law stated that the death penalty had kept the prices of drugs high and lowered  purity5. However, this has not changed the reality that the quantities of drugs supplied and consumed  remained relatively consistent. This suggeststhat drug syndicates are financially benefiting from increased  prices derived imposed by the perceived supply constraints imposed by the death penalty. 

Abolishing the mandatory death penalty represents a progressive step towards significant reform of the  criminal justice system. ADPAN calls on lawmakers to support this important move towards abolition.

1. ‘What Happens to Murder Rates when the Death Penalty is Scrapped? A Look at Eleven Countries Might Surprise  You’ (Abdorrahman Boroumand Center , 13 December 2018) https://www.iranrights.org/library/document/3501 2‘How do Malaysian really feel about the death penalty’ (The Center, 2019)  
2. https://app.centre.my/uploads/2020/06/Death-Penalty-Survey-Report-The-Centre-June-2020-compressed.pdf
3. 3 ‘How do Malaysians really feel about drugs’ (The Centre, July 2022)   https://app.centre.my/uploads/2020/06/Death-Penalty-Survey-Report-The-Centre-June-2020-compressed.pdf

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.

The Anti-Death Penalty Asia Network (ADPAN) is concerned with the scheduled execution of Kalwant  Singh, a young Malaysian individual convicted of drug trafficking in Singapore in 2016. His execution has  been scheduled to take place on 7 July 2022. 

Kalwant Singh was convicted of possession of 60.15 grams of diamorphine and trafficking 120.9 grams of  diamorphine. Kalwant was 23 years old at the time of the offence. A co-accused was also convicted of  possessing the same 120.9 grams of diamorphine, for the purposes of trafficking. Both the Trial Court and  Court of Appeal found that Kalwant Singh and his co-accused were acting as nothing more than a courier.  While the co-accused was granted a Certificate of Substantive Assistance by police, he was sentenced to  life imprisonment and fifteen strokes of the cane. Kalwant Singh received the death penalty. 

The government of Singapore has, on multiple occasions, claimed that without the death penalty,  Singapore would not be able to protect its citizens from the drug menace. Yet the death penalty has done  little to eliminate the syndicates that recruit and exploit people as drug couriers and profit from the  distribution of drugs in Singapore. The series of executions by Singapore since its resumption in 2022 has  only involved couriers and petty peddlers, and there are no indications that this scheduled execution  would be any different. 

On 28 April 2022, immediately after executing Nagaenthran Dharmalingam, an intellectually disabled man,  Singapore intended to execute Datchinamurthy Kataiah, who still had an outstanding legal challenge in  the court. The Public Prosecution had insisted that his execution would not affect the legal challenge  posed and persisted in appealing against the stay of execution. It should also be noted that  Datchinamurthy had to file the appeal himself with no legal representation due to the onerous conditions  and punitive cost measures imposed against capital defence lawyers in Singapore previously. 

Singapore’s eagerness to pursue executions for drug offences is a flagrant disregard for the right to a fair  trial, and in April 2022, it was described by the United Nations as “incompatible with human rights law”.  Pursuing these cases has substantially damaged Singapore’s reputation. This further planned execution  will only cement the perception that Singapore does not value human life but only cares to maintain the  façade of success in their ‘war on drugs’. 

ADPAN calls for Singapore to halt the scheduled execution, impose a moratorium on further executions  and bring Singapore’s law in line with international standards where the death penalty can only be applied  for the most serious crime involving intentional killing.

Anti-Death Penalty Asia Network (ADPAN) welcomes the announcement by the Malaysian government  that it will be reviewing and abolishing the mandatory death penalty in Malaysia. 

The mandatory death penalty regime does not provide justice as it deprives judges of the discretion to  sentence based on the situation of each individual offender. This regime has resulted in absurd sentences  that have led to public outcries, such as those involving Hairun Jalmani, a single mother sentenced to  death for drug trafficking in Tawau, and Mainthan Arumugam, a person on death row for a murder that  never happened. 

In addition to abolishing the mandatory death penalty, critical reform, including but not limited to mental  health and criminal culpability; redefining drug offenses to account for drug mules and other exploited  individuals within the drug trade; and strengthening rehabilitative justice and victim support system needs  to be considered. 

ADPAN reiterates our support for Malaysia’s abolition of the mandatory death penalty and calls on the  Malaysian government to engage with key stakeholders and experts to support and further the systemic  reform suggested by the Minister of Law.

The Anti-Death Penalty Asia Network (ADPAN) is appalled by the rejection of the appeal by activist Khaw  Min Yu and lawmaker Phyo Zeya Thaw and two other political prisoners against the death sentence  imposed by a military tribunal. 

Since the military coup, Myanmar has witnessed a rise in the number of death sentences issued by military  tribunals, accompanied by a growing prevalence of extrajudicial killings involving protestors and pro democracy activists in Myanmar. In addition to violence resulting directly from the coup, the military junta  has resumed its military campaigns across Myanmar, leading to large-scale killings, arbitrary detentions and displacement of civilians in several states. 

The Tatmadaw has no legitimacy as a government and must cease the atrocities committed against the  people of Myanmar. Execution of world-renowned human rights activists, lawmakers and political actors  will only further contribute to the Tatmadaw’s besmirched history of human rights violations and  atrocities and deprive the Myanmar of the peace, stability and growth it deserves. 

ADPAN echoes the sentiment of the ASEAN Parliamentarian for Human Rights (APHR) that the executions  are nothing less than cold-blooded political assassinations and call on the Tatmadaw’s senior leadership  to return democracy to Myanmar and put an end to executions and extrajudicial killings. 

The Anti-Death Penalty Asia Network (ADPAN) condemns the execution of Nagaenthran K Dharmalingam  by the Singaporean government on the morning of 27 April 2022 at Changi Prison. 

Nagaenthran was a young man convicted of trafficking 42.72 grams of diamorphine (heroin). Nagaenthran had an intellectual disability and a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). His  execution in Singapore was conducted in defiance of international law and norms prohibiting the  execution of a person with intellectual or psychosocial disability (United Nations Convention on the Rights  of Persons with Disabilities). In addition, the execution also failed to meet the international threshold of  the ‘most serious crimes’ as the offence of which Nagaenthran was convicted of was a non-violent drug  offence. 

Since the execution was scheduled for October 2021 until his execution today, the Singapore government  has refused to acknowledge the undisputed fact that Nagaenthran’s IQ of 69, a level which is  internationally recognised as an intellectual disability. Concerns raised about his recent mental health  condition and his vulnerability to further deterioration in detention, particularly solitary confinement,  have not been addressed by the Singapore government in any form. It is a great shame that until the end,  there was no independent assessment of Nagaenthran’s mental condition. 

Following Nagaenthran’s execution, the Singapore government scheduled the execution of  Datchinamurthy Kataiah, another Malaysian individual on death row for drug trafficking. Datchinamurthy  still has a pending legal challenge in the High Court of Singapore that has a hearing listed on 4 May 2022 in relation to an alleged breach of privileged communications by the Singapore Prison Service providing  letters between persons on death row and their lawyers to the Attorney-Generals’ Office. This injustice is  compounded when the nature of the allegation that Datchinamurthy is seeking to litigate is based on a  profound breach of fair trial rights in itself. Datchinamurthy represented himself in court as he was unable  to secure legal representation. Fortunately, Datchinamurthy managed to secure a stay of execution with  further appeals by the Public Prosecutor dismissed. 

Singapore’s international reputation has already deteriorated significantly with the execution of  Nagaenthran. Further executions in direct violation of Singapore’s international obligations will only  alienate Singapore from its peers on the global stage.  

ADPAN calls for Singapore to abolish the death penalty and impose a moratorium on executions pending  abolition of the death penalty. Contrary to the overwhelming global trend to move away from the use of  the death penalty, in the last month, Singapore has proceeded with the execution of Abdul Kahar bin  Othman and Nagenthran; Datchinamurthy’s execution is set to take place on Friday, and three other  persons are at imminent risk: Roslan bin Bakar, Rosman bin Abdullah, and Pannir Selvam Pranthaman. 

The common thread between these six individuals is that they came from vulnerable families with very  limited resources, and all played relatively minor roles in relation to the drug trade. There is no evidence  that their deaths will have any effect on the illicit drug trade in Singapore or globally; there is no proof that the death penalty has been an effective deterrent to drug-related offenses.  

ADPAN would also like to extend our condolences to the family and friends of Nagaenthran. ADPAN stands  in solidarity with the lawyers and activists in Singapore and Malaysia who have the unenviable task of  supporting the families of those facing execution in extremely challenging circumstances.

The Anti-Death Penalty Asia Network (ADPAN) and Transformative Justice Collective (TJC) are alarmed by the scheduled execution of Nagaenthran K Dharmalingam by the Singapore government on 27th April 2022, during the holy month of Ramadhan observed by the Muslim communities in Malaysia and Singapore. 

Nagaenthran was convicted under Singapore’s Misuse of Drugs Act for trafficking 42.72 grams of Diamorphine (heroin). His I.Q. has been assessed to be 69, a level that is internationally recognised as an intellectual disability. 

His last legal challenge was dismissed on 29 March 2022, leaving him with no further legal avenue to challenge the scheduled execution. During the hearing, the Public Prosecutor alluded that the issue of fitness to execute is an issue that should be addressed through the clemency process as opposed to legal process. On 1 June 2020, the President’s office rejected Nagaenthran’s clemency application. On 3 December 2021, a further clemency petition was submitted by Nagaenthran’s mother and family; on 31 March 2022 – after Nagaenthran’s final court hearing – the President’s office advised that it had not shifted its position and that the sentence of death remained in place. 

Under Article 22P of the Singapore Constitution, the clemency process is not a discretionary power afforded to the President, but a layered process where the trial judge, the appeal judges, and the Attorney-General provide their respective opinions and feedback to the Cabinet before an advice is made to the President. 

The timeframe in which Nagaenthran’s legal challenge was dismissed and his clemency application was dismissed raises substantial questions as to whether the clemency process outlined under Article 22P(2) of the Singapore constitution was complied with. If the process was complied with, there is a question as to what was the opinion provided by all the stakeholders involved, particularly in relation to the information that arose during Nagaenthran’s legal challenge regarding the possibility that he suffered from declining mental health including psychosis during his detention. 

The opaque nature of the clemency process leaves little to no room for Nagaenthran or his lawyers to ascertain whether due process was complied with inline with Article 22P(2). This

potentially deprives Nagaenthran a fair opportunity to pursue clemency in light of his present circumstance. 

To date, the Singapore government has not provided Nagaenthran with any independent psychiatric assessment and has dismissed the issue of psychosis based solely on the statement and feedback from the Singapore Prison Services. To provide Nagaenthran with an independent psychiatric assessment at this stage would cause no prejudice to the State; rather it would demonstrate that Singapore takes its obligations under Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, namely that they “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. 

ADPAN and TJC calls for the Singapore government to halt the execution and conform with international human rights law on executing persons with intellectual or psychosocial disabilities. We reiterate the call for Singapore to abolish the death penalty and impose a moratorium on executions pending abolition of the death penalty.

The Anti-Death Penalty Asia Network (ADPAN) is closely monitoring the upcoming court hearings  involving Rosman bin Abdullah, Pausi bin Jefredin, Roslan bin Bakar, and Nagaenthran a/l  Dharmalingam taking place in Singapore on 28 February and 1 March 2022. 

These cases highlight the fundamental and critical flaws of the drug laws and policies in Singapore  and why the implementation of these law are likely to result in miscarriages of justice. These  flaws include: 

i) The Lack of Protection or Safeguards for Individuals Suffering from Mental Health  Issues or Psychosocial Disabilities 

Nagaenthran, Pausi, and Roslan have been noted to either suffer from an intellectual  disability or borderline intellectual functioning by psychiatrists. Despite the  acknowledgement of their conditions, they were considered to have the necessary  mental capacity at the time of their offence. As the consideration of ‘abnormality of  the mind’ is only open to accused persons who are said to have played a minor  ‘courier’ role in offending, there is very limited scope for the court to give proper  consideration of an accused person’s mental and psychosocial profile. 

All four incarcerated persons were arrested and tried prior to Singapore’s ratification  of the United Nations Convention on the Rights of Persons with Disabilities and were  therefore unlikely to have received appropriate procedural accomodations at the time  of arrest and initial trial. Now Singapore has committed to protect the rights of  persons with disabilities, under Article 12 they must ensure they “take appropriate  measures to provide access by persons with disabilities to the support they may  require in exercising their legal capacity”. Furthermore, Singapore has not addressed  the issue that, irrespective of their culpability, persons with mental and psychosocial  disabilities should not be executed as their execution would amount to cruel and  inhuman punishment and is a violation of international law.  

ii) Lack of Transparency and Inconsistency in Issuance of Certificate of Assistance by  Public Prosecutor

Earlier court decisions on the issue of Certificate of Assistance suggests that  substantive assistance that is required cannot be based on the defence’s subjective  beliefs but on the will of the Public Prosecutor.  

The lack of an objective, transparent and consistent methodology in the issuance of  the Certificate of Assistance gives rise to a sense of injustice or perception of bias or  abuse.  

For these reasons, ADPAN maintains its view that given the courts are the ultimate  adjudicators in criminal trials, the decision whether or not an accused person’s level  of cooperation amounts to ‘substantive assistance’ should lie with the judiciary.  Judicial determination of ‘substantive assistance’ would allow objective measures to  be set and create a mechanism for a proper review of such decisions.  

iii) Hasty and Onerous Judicial Processes that Undermines the Right to Fair Trial 

The haste in the recent cases raises additional concerns regarding the potential  violation of important fair trial guarentees. Despite the gravity of the death sentence,  the hearings and subsequent appeals were concluded within hours. The speed in  which the matters were ‘resolved’ effectively denies the defence an adequate  opportunity to prepare and argue complex appelant casework and casts doubt as to  whether the arguments were given due consideration by the court. Legal counsel,  appearing on a pro-bono basis, are put in an excruciatingly difficult position where  they are required to brief their clients on the case whilst drafting an appeal that needs  to be filed within the hour. 

Furthermore, in the case of Roslan and Pausi, the court required a security of cost  order of 20,000SGD be lodged to the court on behalf of the Applicants within an hour  of the decision by the High Court. The exorbitant sum denies and deters legitimate  judicial challenges from being heard as many would unlikely be able to pay such an  amount within limited time. Incarcerated persons on death row and their families are  disproportionately indigent and largely reliant on pro-bono legal assistance,  particularly at the final appeal stage of their cases. The requirement to lodge funds  before accessing the right to appeal in a death penalty case sets a prohibitive and  discriminatory financial barrier to accessing justice.  

The presence of any one of these issues ought to have been enough of a concern for the death  penalty to be set aside for the incarerated persons on death row concerned. Unfortunately, this  has not been the case in Singapore despite the presence of multiple or all these factors in a single  case. The irreversible nature of the death penalty means that courts must uphold the strictest 

observance of fair trial guarentees. Furthermore, international norms dictate that for the  minority of States that still apply the death penalty, it can only be applied to ‘the most serious  crimes’. This is a threshold that drug offences does not meet and has been consistently excluded  from the category of ‘the most serious crimes’. 

ADPAN calls on the Government of Singapore: 

• To impose a moratorium on executions and join the clear global trend that is moving  towards abolotion of the death penalty;
• To review Singapore’s continued reliance on the death penalty based on the false perception that the death penalty is an effective deterrence to crime;
• To facilitate independent psychiatric and medical assessments of all death row prisoners at the time an execution is listed, to ensure that Singapore is adhering to its obligations under the UN Convention of Persons with Disability; 
• To commute the sentences of individuals suffering from mental illness, mental and psychosocial disabilities;
• and to ensure that no persons with mental illness or disability are executed.