Home / Asia and Pacific / Unfit For Trial – The Hyper-Complexity In Executing Intellectually Disabled Inmates For Drug-Related Offences in Singapore

Unfit For Trial – The Hyper-Complexity In Executing Intellectually Disabled Inmates For Drug-Related Offences in Singapore

20 May, 2022

by Sam Biden, Global Leadership Fellow

Singapore’s ‘War On Drugs’

As the world continues to crack down on the use and trade of illegal substances, many governments have dedicated significant resources to lessen the harmful influence these substances have on society. States such as Mexico took this from an anti-organized crime perspective with the shutdown of the key cartel trade routes and the capture of prolific figures. Singapore has done quite the opposite. Instead, the island state has been focusing on those in possession either for personal use or trade and labelling them under the same banner of a criminal worthy of capital punishment.

Singapore seeks out those involved with drugs at an alarming rate, so much so that 67% of their prison population are inside for drug-related offences, a staggering 48% higher than the UN’s evaluation of male convicted drug felons. These statistics are driven by the Criminal Law (Temporary Provisions Act), a piece of Singaporean legislation that allows indefinite detainment without trial on suspicious grounds related to drug trafficking. Already we are seeing issues of effective remedies and the right to a fair trial before delving further. Additional legislation, the Misuse of Drugs Act makes it an offence to traffic drugs which is perfectly reasonable but also criminalizes the discussion of drugs online. The legislation also grants authorities the power to demand urine samples to check sobriety levels without any reasonable suspicion.

Alongside these dangerous provisions comes a more daunting one. Singaporean legislation presumes drug possession even if there is no physical evidence to prove it. This occurs mainly at the lower organized-crime levels where carriers are more prone to carrying drugs and therefore fail to account for those in control of supply. Because of this, the ‘war on drugs’ is more like a war on the desperate and disadvantaged who turn to crime to provide, not those who facilitate the mass import and export of drugs.

Nagaenthran Dharmalingam

Mr. Dharmalingam was a man with significant learning disabilities and a registered IQ of 69, some 37 points lower than the average Singaporean. Mr. Dharmalingam further suffered from attention deficit hyperactivity disorder (ADHD), a disorder where sufferers have; a short attention span, make careless mistakes, are forgetful, unable to focus, unable to listen and have difficulty organizing basic tasks. Mr. Dharmalingam was arrested in 2009 on charges of smuggling 43g of heroin, the equivalent of roughly £4,300 street value in the UK. Mr. Dharmalingam claimed that he was coerced into committing the offence. He claimed he was not aware of what was in the package and that it was forcefully strapped to his thigh for carrying. He unequivocally denied intent to supply or knowledge of the contents.

Due to Mr. Dharmalingam’s disabilities, his understanding of his situation was severely limited. During incarceration, he failed to maintain eye contact, form basic sentences and was incoherent. Mr. Dharmalingam would obsessively talk about ‘going home’ so he could enjoy eating his mother’s ‘home-cooked food’, alongside this, his mother feared he did not understand what ‘execution’ means, showing he was unaware he was going to die.

Mr. Dharmalingam was due to be executed in November 2020. However, he successfully appealed the execution and gained more time. His lawyers attempted to argue that executing him would be a violation of international law, yet their case was rejected on the grounds it was ‘baseless’ and an ‘abuse of the court to delay the sentence’. Mr. Dharmalingam was sadly executed on April 22, 2022.

ICCPR – art.6

The death penalty under art.6 (right to life) has been discussed extensively and does not arrive at a mere ‘you cannot execute people’ conclusion but is far more complicated. There are several key elements to the Article, including:

  1. Everyone has the inherent right to life, no one shall be arbitrarily deprived of this right.
  2. Death sentences may only be imposed for the most serious crimes in accordance with the law. This does not apply to genocide.
  3. Anyone sentenced to death shall have the right of appeal.

 1. ‘Most Serious Crimes’

The very broad context of ‘most serious crimes’ has been notoriously exploited since its inception. The OHCHR defined ‘most serious crimes’ as relating to crimes of extreme gravity. This includes; murder, attempted murder, corruption and other political crimes, armed robbery, piracy, abduction, drug offences and sexual offences. These categories do not aid our situation any further. The issue is not the offence, but the magnitude of the offence. For example, a basic reading of sexual offences may include sexual harassment and rape under the same banner, yet they are of vastly different magnitudes. Similarly, drug-related offences such as the distribution of a single gram of cannabis can be under the same banner as the import of 10kg of heroin. This lack of clarity only aids Singapore’s domestic position on the death penalty.

Both the Economic and Social Council (ECOSOC) as well as the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions hold opposing views to the OHCHR. ECOSOC stated that for countries that enforce the death penalty for the most serious crimes that these circumstances should not go beyond crimes involving the intentional causing of death (murder) or other crimes with extremely grave consequences. The use of ‘extremely grave’ in their analysis is far less liberal when compared to their OHCHR counterpart. We often discuss the worst of the worst crimes within the ‘extremely grave’ category. Crimes such as genocide, crimes against humanity, serial murder, serial rape etc. It’s very clear from ECOSOC’s perspective that handling the equivalent of a few thousand pounds worth of drugs could never meet the criteria of ‘extremely grave’. Perhaps if Mr. Dharmalingam was a ringleader and could be linked to the import of millions of pounds of lethal narcotics alongside deaths attributed to this distribution, then an argument could be made against him. However, Mr. Dharmalingam’s circumstances do not allow for this conclusion. The Special Rapporteur has made similar claims, citing that the death penalty should not be imposed for economic, drug-related or victimless offences.

With these varied perspectives in mind, we must also consider the perspective of Singapore itself. While it can produce draconian effects, public law guarantees certain freedoms and freedoms from intervention in state affairs. The ICCPR is most notorious for allowing a margin of appreciation regarding its interpretation and only applies strict limits in extreme circumstances, such as the absolute prohibition of Article 7 (Freedom from torture). What we are essentially trying to justify here is cultural relativity or the imposition of culturally driven values upon citizens of a state. For example, in the Islamic world, adultery is considered one of the highest offences to be committed and people can be punished with 100 lashes for committing it. In the UK however, while adultery is a ground for divorce and frowned upon, it does not carry these kinds of draconian punishments. I am of course critical of physical harm as a form of punishment, yet state discretion overrules my views. It is the job of the international community to assert control over these kinds of punitive measures, yet it appears important bodies disagree on how this is to be imposed.

The saving grace in this circumstance is the very specific relevance of mental health grounds, to which some common ground has been made.

2. Intellectual Disabilities & Execution

Although not explicitly mentioned in the ICCPR, further commentary and analysis have deemed those with intellectual disabilities to be partially protected from the death penalty. There are two circumstances in which mental health concerns can void a state’s ability to impose the death penalty. These are; underlying mental health conditions present before the crime was committed or imposition of the death penalty and the development of mental health concerns during incarceration.

The former is somewhat established. The OHCHR in Resolution 2003/67 explicitly stated that the execution of anyone suffering from a ‘mental disorder’ is a violation of the right to life. ECOSOC agreed with this proposition but defined ‘mental disorder’ as ‘insane’ instead, these can be used interchangeably. 5 years later, ECOSOC reasserted this position when they expanded this protection to include anyone suffering from mental retardation or extremely limited mental competence. Mental underdevelopment, although debated, does have an IQ level associated with its diagnosis. Scoring below 70-75 in an IQ test has been identified as one component of the diagnosis of mental underdevelopment. With an IQ of 69, Mr. Dharmalingam falls within this criterion. The 70-75 IQ range was posited by the American Association of Intellectual and Development Disabilities, an international and well-established non-profit organization. Therefore, this lends credence to the argument that perhaps Mr. Dharmalingam is intellectually disabled and therefore unfit to stand trial let alone be executed.

The development of mental illness during incarceration is a very real concern when considering the death penalty. Inmates are often kept locked away for years without any indication of when they will be executed. This can have overwhelming effects on the inmate, including feeling helpless and as if they have no control. This prolonged and uncertain treatment is known as the ‘death row phenomenon’ and has been found to constitute inhuman and degrading treatment or punishment. Therefore, inflicting the phenomenon upon inmates, even if it is beyond the control of the state, constitutes a violation of Article 7 ICCPR. There is no doubt that with a lack of understanding, impaired cognitive ability, and an inability to process the magnitude of his situation that Mr. Dharmalingam may have been a victim of inhuman and degrading treatment as well as corporal punishment.

Convention on the Rights of Persons with Disabilities (CRPD)

The CRPD, to which Singapore are a signatory party, is a convention designed for the protection of persons with disabilities. A few provisions have been breached by Singapore’s venture into the death penalty for Mr. Dharmalingam.

1. Article 13 – Substantive Assistance (Access to Justice)

This Article guarantees the right to equal access to effective justice for persons with disabilities, especially with reference to indirect/direct participation in the offence.

In Yong Vui Kong v. Public Prosecutor, a threshold of involvement was established to determine the level of involvement and understanding of an individual when being sentenced for drug-related offences. Also known as being granted a ‘Certificate of Substantive Assistance’, this decision explains that if the accused is found to be a courier rather than a ringleader in drug-related operations they can be granted life in prison as opposed to the death penalty. There are two key tests that must be satisfied to grant Mr. Dharmalingam life in prison instead of the death penalty. First, it must be proved that Mr. Dharmalingam’s role in the offence was limited to the transportation, sending or delivery of a controlled drug. Second, Mr. Dharmalingam had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities in or outside Singapore.

Mr. Dharmalingam’s role in the trafficking process was very clearly that of an uninformed courier. He was not involved in the manufacturing, selling or advertising of drugs, his role was strictly limited. Additionally, Mr. Dharmalingam was totally unaware of the contents of the package, ensuring the fact he did not know he was a courier for drugs. Because of this, Mr. Dharmalingam has satisfied the first test. Regarding his ‘substantial assistance’ to the Central Narcotics Bureau, amendments made in 2012 remove Mr. Dharmalingam’s criminal liability for the death penalty. In section 33B (3, b) of the Misuse of Drugs Act, those suffering from an abnormality of the mind or who are substantially impaired in his or her responsibility do not qualify for the death penalty regarding drug-related offences. Mr. Dharmalingam’s mental capabilities can easily be described as substantially impaired. Given he can be legally classed as mentally intelectually disabled, failed to be coherent and form basic sentences, couldn’t comprehend the magnitude of his situation nor understand he was going to die, he is protected by section 33B.

This raises a question of equal treatment in society more broadly, specifically it causes issues under Article 5 CRPD.

2. Article 5 (1, 2) (Equality and non-discrimination)

These Article sections require that states recognize all persons are equal before the law, including the equal benefit of the law, as well as prohibit all discrimination based on disability and guarantee those with disabilities equal and effective protection against discrimination.

Singapore has violated both sections on the same grounds. The notion of ‘equal’ protection alongside ‘equal’ and ‘effective’ protection exists under the Misuse of Drugs Act but was not upheld in Mr. Dharmalingam’s trial. For Mr. Dharmalingam to have received equal protection provided by law, section 33B must have been considered in much greater detail. Mr. Dharmalingam’s mental health complications were entirely ignored by Singapore, despite having legislative backing designed to protect him from the death penalty.

From this, there was never ‘equal’ protection given to Mr. Dharmalingam. In fact, the basis for his equal treatment, that being this Convention as well as the exception under the Misuse of Drugs Act, were not applied equally to Mr. Dharmalingam. Alongside this, the extent of his involvement in the offence such that he was an uninformed courier has seemingly been ignored as well. When combining these issues, it becomes clear that the Singaporean government treated Mr. Dharmalingam not considering his disabilities but considering gaining an advance in Singapore’s failing ‘war on drugs’ regardless of the consequences.

Final Thoughts

The death penalty remains a very contentious issue, yet liberty surrounding when it can be granted has been steadily mounting for decades. Despite this guidance, the Singaporean government failed to accede to several international and domestic provisions that place significant restrictions on the ability to execute disabled people. In addition, Singapore seems far more focused on the pursuit of its ‘war on drugs’ than the rights of disabled people. So much so that they are willing to sidestep their own domestic protections for disabled people to just keep 45g of drugs off the streets.

Image: The Supreme Court of Singapore, where Nagaenthran’s final appeal was heard by its higher division – known as the Court of Appeal (Source: Jacklee via CC BY-SA 3.0)

About Sam Biden

Sam Biden is a double law graduate from Aberystwyth University whose degree focused primarily in the enforcement and protection of civil liberties. His research surrounded areas such as data protection, protection from unlawful interference, environmental law, freedom from torture, inhuman or degrading treatment, humanitarian law and natural law jurisprudence. Sam’s areas of interest include the advocating for the protection of digital liberties, ensuring of safe passage and treatment for the victims of the migration crisis and the drafting of solutions to repair corporate exploitation resulting in human rights violations and exacerbated climate damage.