29-year old Nagaenthran a/l K Dharmalingam is an individual who has an IQ of 69, a finding by the prosecution’s psychiatrist which judges, including in the Court of Appeal, accepted and affirmed.
This level of IQ meant that Nagaenthran is among those with “extremely low range of functioning”, according to the internationally recognised WAIS-IV test, which measures cognitive abilities.
In other words, he has borderline intellectual functions.
The courts have also accepted the evidence from the prosecution’s psychiatrists that Nagaethran suffered from mild ADHD of the inattentive type; and that his executive functioning skills (including verbal fluency, set-shifting, abstract reasoning, strategy formative, and problem solving) were impaired.
Yet, today the Malaysia national sits in Singapore’s Changi Prison, some 10 years after he was first arrested for trafficking in 42.72g of diamorphine, commonly known as heroin.
Nagaethran has spent 8 of those 10 years on death row – and has seen all his legal battles against his death sentence come to naught, including a denial by the Public Prosecutor to issue him a Certificate of Cooperation (COC) which would have allowed the courts to commute his death sentence to life imprisonment.
His last hope of escaping the gallows comes down to a grant of clemency from the Singapore President who will be advised by the Singapore cabinet.
The outcome of the clemency application is being filed and the outcome will be delivered soon afterward, which also means that he might have even less time to lodge any further challenges, given that Singapore is swift in carrying out executions after the final appeal for mercy is denied.
Nagaethran’s sentence should jolt us all and raise serious questions of how the death sentence is carried out in Singapore which, as Nagaethran’s case shows, does not show mercy even to those in his shoes.
Mr M Ravi, Nagaethran’s family lawyer, highlighted another issue in his piece on Malaysian news portal, Malaysiakini:
A very significant point which was not raised in Nagaenthran’s appeal was that the expert evidence of the state’s third medical expert, Dr Koh Wun Wu, was made without further independent medical examination of Nagaenthran.
It was made instead with the objective of “making observations” on Ung’s [defence’s psychiatrist] conclusions.
This practice, known as ‘poking holes’ in the defence’s report, is an unacceptable practice in criminal trials. To me, this renders the Court of Appeal’s decision as being one in breach of the right to a fair trial under international law.
And while the Misuse of Drugs Act (MDA), under which Nagaethran was charged and found guilty, provides for the courts to sentence persons with an “abnormality of mind” to life imprisonment instead of death in capital cases, the judges in Nagaethran’s case found that “borderline intellectual functioning” was insufficient to qualify as “abnormality of mind” as stipulated in the MDA.
Even so, supporters of Nagaenthran are not giving up just yet.
Mr Ravi is submitting a Memorandum to the Malaysian Government on Tuesday, 16 July, calling on it to raise Nagaethran’s case with the International Court of Justice (ICJ).
In his submission, Mr Ravi argues that executing Nagaethran even though he suffers from an intellectual impairment “raises grave concerns as to whether this could be a miscarriage of justice considering the legal test to be applied in Singapore.”
Mr Ravi also cites international conventions, treatises, and customary international laws which bind Singapore, and which prohibit the execution of persons with such intellectual impairment.
He notes that the U.N General Assembly, since 2007, admonishes countries which retain the death penalty from imposing it “on persons with mental or intellectual disabilities”.
The European Union and court decisions in India have all prohibited the execution of intellectually or mentally impaired persons, he added.
“This matter should compel the Malaysian government to lodge a complaint with the ICJ,” Mr Ravi said in his memorandum to the Malaysia government. He urged the Malaysian government to safeguard the life of its own citizen who is facing impending death.
“In light of the punishment’s irreversibility, the very limited time available may not be enough for preparing submissions to the ICJ. Therefore, if a submission to the ICJ is to be ultimately made, that submission should ideally be made as soon as possible.”
“As I am in the process of drafting a memorandum to the Malaysian government,” Mr Ravi said, “I sadly recall his distraught mother and brother’s pleas and how I was consoling them not to lose hope.”
Mr Ravi, along with activists, will hold a press conference in the Malaysian capital, Kuala Lumpur, on 23 July, on the case.
Nagaethran’s legal battle:
- 22 April 2009: Arrested in Singapore
- 22 Nov 2011: Convicted by High Court, sentenced to death
- 27 Jul 2011: Appeal dismissed by Court of Appeal
- 2012: MDA amended by Singapore Parliament
- 10 Dec 2014:PP informed Court Naga would not be issued COC
- 2015: Sought leave to commence judicial review of COC denial
- 4 May 2018: Application for leave refused by court
- 2016: Naga sought to re-open his appeal (against the PP’s denial to issue a COC)
- 2 Dec 2016: Application dismissed by Court of Appeal
- 14 Sept 2017: Application for re-sentencing rejected
- 27 May 2019: Appeal against re-sentencing rejection denied
- 2019: Appeal for presidential clemency submitted
Currently: Awaiting outcome of clemency appeal