S'pore envoy rebuts UN experts' claims on trafficker's disability
The High Court had specifically considered whether the drug trafficker met the diagnostic criteria for intellectual disability.
Singapore's envoy to the United Nations in Geneva made clear yesterday that the High Court had found Nagaenthran K. Dharmalingam, a Malaysian facing execution for drug trafficking, was of borderline intellectual functioning but did not suffer from mild intellectual disability.
Ambassador Umej Bhatia was responding to a joint urgent appeal from four special UN rapporteurs, who on Oct 29 called on Singapore to definitively halt Nagaenthran's execution, saying he had psychosocial disabilities.
He was scheduled to be hanged on Wednesday, but was granted a stay of execution on Tuesday by the Court of Appeal after he tested positive for Covid-19 before the start of a hearing.
In his reply, Mr Bhatia said that the High Court had, at Nagaenthran's re-sentencing hearing several years ago, specifically considered whether he met the diagnostic criteria for intellectual disability under the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), which included, among other things, deficits in intellectual and adaptive functioning.
Nagaenthran had filed the application in February 2015, and the High Court, which dismissed it in September 2017, found he did not suffer from mild intellectual disability. "In coming to this finding, the High Court noted that the DSM-V stated that 'IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real life situations and mastery of practical tasks'," said Mr Bhatia.
He added that among the evidence considered was the testimony of Nagaenthran's own psychiatric expert, who agreed he was not suffering from intellectual disability.
"The High Court and Court of Appeal held that Nagaenthran clearly understood the nature of his acts and did not lose his sense of judgment of the rightness or wrongness of what he was doing," said Mr Bhatia. "Despite knowing the unlawfulness of his acts, he undertook the criminal endeavour so that he could pay off some part of a monetary debt. The Court of Appeal found that this was the working of a criminal mind, weighing the risks and countervailing benefits associated with the criminal conduct in question, and that Nagaenthran took a calculated risk which, contrary to his expectations, materialised."
"It was a deliberate, purposeful and calculated decision."
The UN human rights experts - Mr Morris Tidball-Binz, Mr Gerard Quinn, Mr Felipe Gonzalez Morales and Mr Nils Melzer - had also claimed the use of the death penalty for drug crimes is incompatible with international law, and said the penalty should be imposed only for the most serious crimes.
"Drug-related offences do not meet this threshold," they said. "Resorting to this type of punishment to prevent drug trafficking is not only illegal under international law, (but) it is also ineffective."
Mr Bhatia replied that there is no international consensus for or against the use of the death penalty, or on what constitutes the "most serious crimes". He said: "It is the sovereign right of every country to decide the use of capital punishment for itself, considering its own circumstances and in accordance with its international law obligations."
The experts had also claimed that life and death decisions are left in the hands of the Public Prosecutor and that Nagaenthran's family members were given a long list of Covid-19 rules.
Mr Bhatia said the Public Prosecutor carries out its duties independently of the Government, but its discretion is not unfettered and can be subject to judicial review.
He noted that the Public Prosecutor's decision not to issue a certificate of substantive assistance was challenged by Nagaenthran, and his challenge was considered and dismissed by both the High Court and the Court of Appeal.
As for the requirements on his family, Mr Bhatia said they reflect prevailing Covid-19 protocols.
Nagaenthran was arrested in 2009 at the age of 21 with a bundle of heroin strapped to his thigh. He was sentenced to death by the High Court in 2010 after being convicted of trafficking 42.72g of heroin, and his appeal was dismissed in 2011. His appeals against two subsequent High Court applications were dismissed in 2019.
He is currently seeking to challenge his execution, contending he has the mental age of a person below 18. The court has adjourned the hearing to a date to be fixed and issued a stay of execution until all proceedings are concluded.
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