Written by: Averroes
(1.0) Introduction
This articles explains the issue by referencing Nagaenthran a/l K Dharmalingam v Public Prosecutor and Another Appeal [2019] SGCA 37; [2019] 2 SLR 216,
High Court decision
The case involved Nagaenthran, a Malaysian who was charged under section 7 of the Misused of Drugs Act 1973 (MDA), which is a Singaporean drug law. He imported 42.72g of diamorphine on 22nd April 2009.
The Central Narcotics Bureau (CNB) of Singapore apprehended him at the Woodlands Checkpoint. The CNB found the drugs strapped to his thigh. When they questioned him, he said that a friend named King ordered him to be a courier.
However, in court he said he did not know what were the drugs and said that they were company product or company spares. He further said that he was under duress by King and pressure. He said that King slapped and punched him if he did not follow his orders.
He was also threatened that his girlfriend would be killed if he refused to import the drugs into Singapore.
The mandatory death penalty in Singapore changed when their Parliament amended the law by inserting section 33B(3)(a) and section 33B(3)(b) of MDA, commuting the death penalty to life imprisonment if he could prove that he was only a courier and had abnormality of mind.
In Malaysia, our drug law is known as the Dangerous Drugs Act 1952 (DDA) and our law also has the mandatory death penalty as under section 39B(2).
In 2010, court found that he was merely a courier, but did not find that he had abnormality of mind. Court sentenced him to the mandatory death penalty. Court found that the statements he made to the CNB were voluntary and that his new allegations in court were fabricated.
This was because, he knew what he had on his thigh and even told the CNB that they were heroin. Nagaenthran then appealed, but in 2019, the court affirmed his death sentence. As he made a final appeal in 2022, he was still set to receive the death penalty.
The only option he has is probably getting grace from Singapore's President, Halimah Yacob.
Court of Appeal decision
The court of appeal interpreting section 33B(3)(b) of MDA referred to the Byrne formulae, whereby to determine abnormality of the mind, it depends on activities on all aspects. It depends if they understand the events, able to determine between right or wrong and self-control.
However, court found there was no abnormality as it was a transient and a self-induced disease by Nagaenthran.
He himself admitted that he was in desperate need of money, coerced and under duress by King and under gang loyalty and knew that he was delivering diamorphine. He still committed the offence, despite the risks. Therefore this could not be seen as an abnormality of mind.
(2.0) Efforts to release Nagaenthran
After exhausting appeals finally to Singapore's apex court on March 29, 2022, several NGOs and parties have advocated for Nagaenthran's release. Amnesty International even sent a letter of appeal to Madam Halimah Yacob, President of the Republic of Singapore at her office at the Istana, Orchard Road.
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The letter urged her to halt plans to execute him as there are grave violations of international human rights law. It is contrary to international law and standards as imposing death penalties to those with intellectual or thinking capabilities.
They are found under the Convention of Rights of Persons with Disabilities (CRPD), Singapore being a State party and the International Covenant on Civil and Political Rights (ICCPR).
They also argued that several medical experts confirmed that he had intellectual functioning and cognitive deficits, that affects hi ability to assess and gather accounts of circumstances. They found concurrent cognitive deficits, which may contributed to his misguided judgment to carry out the offence.
The letter suggested that Singapore ends the death penalty for drug offences and emphasise more on evidence-based and community-based approaches to drugs.
Lastly, the letter pleads to issue a moratorium on all death penalties as a gradual step towards the abolishment of the mandatory death penalty.
(3.0) Public Response
Criticisms grew from all the dismissed appeals and that, the European Union and British billionaire Richard Branson condemned the continued plans for the death penalty.
Even during the last appeal that Nagaenthran's lawyers argued that the death penalty violates international law, Singapore's Chief Justice Sundaresh Menon said that domestic law takes precedence over international law. Therefore, there is no legal basis.
The most depressing scene was the family of Nagaenthran could not meet him for more than 2 years due to the pandemic and that they were devastated by the court's decision. They were shocked, because Nagaenthran has a low IQ of 69 and was miscarriage of justice to hang a man with such condition.
(4.0) Conclusion
In the author's opinion, the death penalty is a matter of domestic and local concern. The death penalty may maintain, but it should be reserved for certain situations. We should adopt section 33B of the Singapore's MDA, as they allow exceptions to the death penalty.
Malaysia should amend our DDA, whereby no death penalty would be issued if the offender cooperates with the police to track down who is the actual mastermind and boss who branches out the systematic crime as well as those suffering from weak mental thinking capacities.
(5.0) References;
Amnesty International (2021) Unlawful Execution Set for Malaysian National. Retrieved from, https://www.amnesty.org/en/wp-content/uploads/2021/11/ASA3649462021ENGLISH.pdf
AFP (March, 2022) Singapore court dismisses mentally disabled man's death sentence appeal. Retrieved from, https://www.nst.com.my/world/world/2022/03/784170/singapore-court-dismisses-mentally-disabled-mans-death-sentence-appeal
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