The execution by Singaporean authorities was not just morally wrong, but faulty on both criminal law and international law principles.
ON April 27, Singapore authorities hanged Nagaenthran Dharmalingam, a 33-year-old Malaysian national, who was sentenced to death in 2010 for bringing 42.72 grams (approximately three tablespoons) of diamorphine into the country.
Under Singapore’s Misuse of Drugs Act [MDA], the death penalty is mandatory for anyone found guilty of importing more than 15 grams (1.19 tablespoons) of diamorphine. Under amendments passed in 2012, courts have the discretion to impose a life sentence rather than the death penalty if they find that the defendant was merely acting as a courier and “he was suffering from such abnormality of mind…as substantially impaired his mental responsibility for his acts and omissions in relation to the offence….”
After being sentenced to death, Dharmalingam filed a criminal motion in 2015 challenging the sentence. However, the high court dismissed the motion on the ground that he was not found to be suffering from an abnormality of mind that would impair his mental faculties. At the Supreme Court of Singapore (whose judgment in this case can be viewed here), the bench observed that the trial court had confirmed that Dharmalingam was not suffering from intellectual disability but he had borderline intellectual functioning. That is to say, Dharmalingam could understand the nature and consequences of his actions.
The court does not appear to differentiate between the condition of intellectual disability and mental illness, and while determining the mens rea, applies the same test for both. This is flawed since mental illness is temporary in nature and has comparatively stringent parameters to determine capacity.
However, we contest that the court has erred in not recognising the distinction between intellectual disability and mental illnesses which are diagnosable and curable. This discourse was found absent in the Supreme Court’s pronouncement. The court also failed to take cognisance of the mental condition of Dharmalingam at the time of execution.
Below, we will analyse the settled principles of international law and criminal law, and then argue how the judgement failed to take cognisance of these principles.
Ambiguity around mental condition
Before proceeding to the substantive part of the analysis, it is essential to establish the different degrees of mental condition and the Singaporean courts’ understanding of it. Section 33B(3)(b) of the MDA talks about the abnormality of the mind (whether arising from a condition of arrested or retarded development of mind, or any inherent causes, or induced by disease or injury) which renders a person incapable of decision making during the commission of an offence. The definition appears to cover both mental illness and intellectual disability which have varying features and degrees (See this).
The definition, however, necessitates that this abnormality should lead to inability in decision-making by the accused to avail of the benefit (which is a question of fact). Thus, the court does not appear to differentiate between the condition of intellectual disability and mental illness, and while determining the mens rea, applies the same test for both. This is flawed since mental illness is temporary in nature and has comparatively stringent parameters to determine capacity. The court also wrongly determined the mental condition of the accused with an IQ level of 69 (explained later).
Singaporean authorities failed to understand that customary international law operates against providing the death penalty to mentally disabled persons not only at the time of trial but also post-conviction and during the pendency of execution.
The Resolution 1989/64 adopted by the United Nation [UN] Economic and Social Council, while advocating its earlier resolutions and UN reports on the death penalty, recommended members States “to eliminate the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution.” This recommendation was subsequently supported by other UN bodies. In 2000, UN’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions advocated the resolution and urged the State to take action that reflected these restrictions in domestic law.
Section 3(e) of the UN Commission on Human Rights Resolution (2000/85) on the death penalty also urges States “Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person”.
The UN General Assembly [UNGA] Resolution on Death Penalty (69/186), admonishes countries retaining the death penalty (Singapore retained it in their domestic law) to not impose the death sentence on persons with mental or intellectual disabilities. This resolution does not prescribe the severity of the mental illness, and hence can be interpreted in general terms given the earlier interventions by the UN bodies on the same line. In 2020, UNGA adopted the eighth iteration of this resolution after its passage in December 2014, with 123 votes calling upon States to “progressively restrict the usage of the death penalty and not to impose capital punishment on…Persons with mental or intellectual disabilities”.
These mandates have been repeatedly advocated by different agencies of the UN, which consider the conviction of mentally disabled persons for the death penalty as an infringement of human dignity, and a violation of the prohibition of torture and other cruel, inhumane and degrading punishments or treatments.
The idea of deterrence does not hold in such a case because the intellectual impairment of a person precludes their ability to weigh the possibility of the death penalty in calculating their different course of action.
Singaporean authorities failed to understand that customary international law operates against providing the death penalty to mentally disabled persons not only at the time of trial but also post-conviction and during the pendency of execution (more on this in the next part). Canadian legal academic Professor William Schabas has also written that it is a norm of customary law that the insane may not be executed.
The UN Committee on the Rights of Persons with Disabilities has stated that “the duty to refrain from imposing the death penalty on persons with intellectual or psychosocial disability is grounded on the disproportionate and discriminatory denial of fair trial guarantees and procedural accommodations to them.” Singapore ratified the UN Convention on the Rights of Persons with Disabilities in 2013.
Against the common law principle of criminal law
The modern approach to crime is a functional approach wherein criminal law is an instrument for the well-being of the society. This view was advocated in the Report of the Departmental Committee on Homosexual Offences and Prostitution published in the United Kingdom by a committee led by British educationalist Sir John Wolfenden, which provided that the function of the criminal law is “…to provide public order and decency, and to provide sufficient safeguards against exploitation of persons who are… weak in body and mind”. (emphasis supplied). The well-being of society cannot be advanced by making examples of vulnerable and marginalised people.
Justice T. Marshall, in the U.S. Supreme Court judgment in Ford versus Wainwright (1986), discussed common law principles that apply in the execution of the “insane”. He, while disallowing the death penalty to the mentally disabled, observed that “for centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.” Thus, the U.S. Supreme Court, while prohibiting such execution, interpreted this mandate vide common law principles of human dignity and rule of law.
Additionally, the idea of retribution as envisaged by criminal law is not furthered either because the death penalty is disproportionate to the culpability of the person with intellectual disabilities. In a purported statement, Singapore authorities said that the death penalty is a deterrent against drug trafficking and most of its citizens support the death penalty. However, the idea of deterrence does not hold in such a case because the intellectual impairment of a person precludes their ability to weigh the possibility of the death penalty in calculating their different course of action.
Customary international law is binding on all States without it being enabled by domestic legislation unless it is directly in contravention to the municipal law of the land.
Common law criminal jurisprudence has further advanced to not just recognise the mental status of the accused at the time of conviction, but also while executing the final punishment (here, the death penalty). The U.S. Supreme Court has recognised this principle in two important recent constitutional judgments of Ford versus Wainwright and Panetti versus Quarterman (2007). In the latter case, the court stressed that the accused must know the “rational understanding of the reason for the execution.”
The Indian Supreme Court has also shunned the practice of executing mentally disabled persons. In 2019, in the case ofX versus State of Maharashtra, then Justice N.V. Ramana wrote in the judgment that “….if the accused is not able to understand the impact and purpose of his execution because of his disability the raison d’etre for the execution itself collapses.”
In 2019, Pakistan was also asked by UN experts to halt the execution of one Khizar Hayat, who was in jail for more than 15 years on a death sentence for the murder of a fellow police officer. However, in 2021, in a landmark ruling by the Pakistan Supreme Court in Safia Bano versus Home Department, the court held that if a condemned person, due to mental illness, is found to be unable to comprehend the rationale and reasons behind their punishment, then carrying out the death sentence will not serve the ends of justice.
The UN Human Rights Committee, while deciding one of the first cases of death penalty of a person with mental illness in Francis versus Jamaica (1994), recognised the state of deterioration of mental health of the accused over the period of ten years in prison. The mental status of the accused was not considered appropriate to be given death penalty, and the committee prevented his execution.
Analysing the Singapore Supreme Court’s judgement
In our assessment, the court has erred in delivering the judgment on three counts:
That Declaration 6 of the UN Declaration on the Rights of Mentally Retarded Persons or Article 15 of the UN Convention on the Rights of Persons with Disabilities did not have the force of law in Singapore. The court, in relying on a precedent, wrongly observed that as a dualist regime, Singapore cannot read customary international law into the Singaporean Constitution.
That the accused person’s mental abilities were not substantially impaired during the commission of the offence such that he did not lose his ability to tell right from wrong. However, the court has disregarded the mental state of the accused at the time of execution.
That the court had disregarded the hallucinations and short-term memory loss that the accused was suffering from in November 2021. It remarked, “Even assuming that he did suffer from an abnormality of mind, such abnormality did not substantially impair his mental responsibility such that s 33B(3) could be invoked.” The Court erred in not using its discretion under section 33B of the MDA despite there being a doubt about the mental soundness of the accused.
On the first count, as established earlier, it is a settled piece of law that executing the intellectually disabled is a violation of customary international law. The court averred that customary international law cannot be read into the Constitution. However, customary international law is binding on all States without it being enabled by domestic legislation unless it is directly in contravention to the municipal law of the land. In common law jurisdictions, it has become prevalent for courts to read customary norms into domestic legislation. For instance, the principle of non-refoulement or granting immunity to visiting heads of State are legally binding norms regardless of them being accompanied by domestic legislation.
In the instant case, it was incumbent upon the court to examine how the essential ingredients of customary law, namely State Practiceand Opinio Juriswere fulfilled. Per contra, the bench expressed a cursory opinion that the accused party had failed to show how there was consistent State practice and legal obligation on States not to execute the insane. The bench did not scrutinise that executing the insane also amounted to a violation of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits torture as a matter of jus cogens norm, and Article 7 of the International Covenant on Civil and Political Rights.
On the second count, the court ignored the fact that the accused was assessed to possess an IQ of 69 (low). However, an IQ of 69 qualifies as ‘Mild Intellectual Disability’ [MID]. Persons living with MID are at a greater risk of mental health, behavioural and academic problems, and are also likely to be more socio-economically disadvantaged. Further, there was sufficient evidence that his condition had deteriorated during his 11 years of imprisonment, even as he was suffering from hallucinations and short-term memory loss in November 2021. The court herein, while dealing with the issue of abnormality of mind, did not as much delve into mental condition at the time of the offence as his condition during imprisonment.
In Ford versus Wainwright, there was no question about the offender’s competence at the time of the offence. However, during the trial, because he manifested signs of mental disorder, the U.S. Supreme Court overturned the order of execution. As a corollary to the second criticism, the issue of exercising discretion in Dharmalingam’s case flows. A scheme launched by Singapore authorities called ‘Appropriate Adults’ itself recognized that people with special needs often confessed to an offence they did not commit or incriminated themselves because of a lack of communication skills.
The interaction of a mentally disabled person with criminal justice for less heinous crimes often falls through the cracks in the discourse on judicial reforms.
Considering the doubts raised about the accused’s sanity, his IQ and other circumstances, the court could have exercised its discretion in quashing the execution order vide powers vested in it under section 33B(3)(b). It is also true that there were discrepancies and failure to advance evidence by the defence lawyer; however, death penalty, because of its finality, requires a higher degree of satisfaction than “beyond reasonable doubt”. Hence, even though the accused was not suffering from an extreme instance of intellectual disability and could exercise basic intellectual functioning, his case could have been brought within the fold of the exception under section 33B(3)(b).
Upholding justice for mentally disabled convicts
The execution by Singaporean authorities was not just morally wrong, but faulty on both criminal law and international law principles. The swiftness displayed by the court in executing a mentally disabled person has done more harm to its system than good as it has undone years of struggle of the disability movement in the country. This action, however, ignites a more portent issue for all countries including in India: that of the mental health condition of prisoners and death penalty convicts.
A study by Project 39A, a legal research, advocacy and intervention initiative o f the National Law University, Delhi titledDeathworthy reported that 60 per cent of death penalty convicts in India live with mental illness. The procedural safeguards as advocated by the UN Human Rights Council are still absent in India, unlike a few other nations which have adopted measures to accommodate mentally disabled persons interacting with the criminal justice system. For instance, the U.S. introduced a best practices kit for state and local governments under its Americans with Disabilities Act, Azerbaijan modified its procedural code to allow all disabled persons to testify at their residences, and Australia introduced its Disability Access Bench book for criminal authorities.
The interaction of a mentally disabled person with criminal justice for less heinous crimes often falls through the cracks in the discourse on judicial reforms. It is imperative to have their interest represented while drafting or amending criminal law legislation. Sensitisation of judges is sine qua non to prevent another Singapore-like case because, as the U.S. Supreme Court ruled in Hall versus Florida (2014), “intellectual disability is a condition and not just a number”.