The Nagaenthran Case: Capital Punishment and Compatibility with International Human Rights Law

By Kristen Palmer

Protest against the execution of Nagaenthran
Source: https://www.theguardian.com/world/2021/nov/09/singapore-stay-of-execution-nagaenthran-dharmalingam-learning-disabilities-covid

Facts

In 2009, Mr. Nagaenthran a/l K Dharmalingam was apprehended after crossing the border carrying 42.72 grams of diamorphine, a narcotic analgesic used to treat severe pain. He was subsequently sentenced to the death penalty in 2010 and has been on death row since.


Singapore's Domestic Laws Surrounding the Death Penalty

Singapore’s domestic constitutional jurisprudence stipulates that the state may not deprive someone of their life, “save in accordance with law”. Rendered positively, this means the state may deprive someone of his or her life, if it is in accordance with law.


However, Singapore amended its drugs legislation in 2012, allowing drug couriers to be sentenced to life imprisonment (1) if they provide substantive assistance to the Public Prosecutor or (2) in cases of “abnormality of the mind.”[1] Mr. Dharmalingam’s lawyers argued that he should not have received the death penalty because he was incapable of comprehending his actions due to his intellectual disability. During his trial, it was revealed that Mr. Dharmalingam has an IQ of 69.


The Death Penalty in Light of International Human Rights Law

Given that Singapore is not under any relevant treaty obligation, international law does not expressly forbid Singapore from employing the death penalty in any circumstance. Article 6 of the ICCPR dictates that countries which have retained the death penalty may only impose it for the most serious crimes, such as intentional killing. However, Singapore has yet to ratify the ICCPR. Further, the Universal Declaration of Human Rights (UDHR) protects the right to life [2] and the right to live free from torture or cruel, inhuman or degrading treatment or punishment.[3] These provisions are arguably recognised as customary international law. Though Singapore as a member of the UN is expected to respect these rights laid out in the UDHR, the extent to which states may disregard or violate customary international law is politically and legally contentious.


According to UN human rights experts, “Resorting to this type of punishment to prevent drug trafficking is not only illegal under international law, it is also ineffective. There is a lack of any persuasive evidence that the death penalty contributes more than any other punishment to eradicating drug trafficking.[4]


”We are concerned that Mr. Nagaenthran a/l K Dharmalingam did not have access to procedural accommodations for his disability during his interrogation. We further highlight that death sentences must not be carried out on persons with serious psychosocial and intellectual disabilities.”[5]


Moreover, they voiced concerns that Mr Dharmalingam’s past 11 years on death row “reportedly caused further deterioration of his mental health.” They further raised that undertaking the execution during the pandemic exacerbates the burden on Mr Dharmalingam’s family, who had to make “frantic arrangements to travel to Singapore” which possibly amounted “to torture or other cruel, inhuman or degrading treatment or punishment.”


Singapore authorities have maintained that Mr. Dharmalingam was aware of his actions when he committed the offence. During Mr. Dharmalingam’s final appeal, Justice See held that there was no legal basis for international law to supersede domestic law. Despite appealing for re-sentencing and clemency, Mr. Dharmalingam remains on death row.




References:

[1] Misuse of Drugs Act, s.33B

[2] Universal Declaration of Human Rights 1948, art.3

[3] Ibid, art.5

[4] ‘Rights experts urge Singapore to halt execution of man with mental disability’ (United Nations News, 8 November 2021) <https://news.un.org/en/story/2021/11/1105192> accessed 12 December 2021

[5] Ibid.