Mental capacity key to final defence of Malaysian on death row in Singapore

PETALING JAYA: The battle for Nagaenthran K. Dharmalingam’s life seems to have come down to one issue: his ability to make sound decisions.

For lawyers and human rights advocates, executing a person with mental disabilities goes against all legal and moral standards.

On the other hand, a criminologist pointed out that a Malaysian who has committed a crime in another country is subject to that country’s laws, where the legal definition of “unsound mind” may be different.

Nagaenthran, who has been sentenced to death in Singapore for a drug trafficking offence, is scheduled to go to the gallows on Nov 10. His lawyers will be in court on Nov 8 to mount a constitutional challenge as his final defence.

Psychologist Datin Dr Mariani Md Nor said there is a fine line between mental disability and clarity at the time when a crime is being committed.

“In this case, if it is proven that there is (mental) disability, the death penalty should not be imposed,” she said.

Nagaenthran was arrested at the Woodlands border checkpoint in April 2009 for carrying heroin into Singapore. In November 2010, he was found guilty and sentenced to death under the republic’s Misuse of Drugs Act.

His defence team’s contention that he had been diagnosed with mental impediments and that executing him would therefore be a violation of international treaties, failed to hold with the judicial authorities in Singapore.

Lawyer V. Kokila Vaani, who is also chairman of the Selangor Bar, said the death penalty should not even be considered unless it is proven beyond reasonable doubt that the wrongdoer can comprehend the fact that what he was doing was wrong.

“People with intellectual disabilities should not be categorised in that group.”

She said in some countries, such as the United States, there are laws to bar the death penalty from being imposed on people with limited intellectual abilities.

“A person should not be executed if he has significant limitations in his intellectual capability and adaptive behaviour, as expressed in his social skills. This could be in the form of mental retardation or dementia,” Kokila said, adding that mental retardation significantly reduces moral culpability.

Human rights lawyer N. Surendran, who is representing Nagenthran’s family, has criticised the Singapore Home Affairs Ministry for its Nov 3 statement that his client was not mentally “substantially impaired” when the crime was committed.

“Executing anyone with mental or intellectual disabilities is against all customary international laws. This is serious enough for Malaysia to lodge a complaint against Singapore in the International Court of Justice,” he told theSun.

In a statement issued yesterday, the International Federation for Human Rights said imposing the death penalty on Nagenthran appeared to be in breach of several articles of the Convention on Rights of Persons with Disabilities, of which Singapore is a signatory.

Criminologist and psychologist Dr Geshina A. Mat Saat said anyone who commits a crime in another country will be subject to the laws of that country.

In Nagenthran’s case, she said it would depend on the interpretation of the term “unsound mind” under the law in Singapore.

“It may differ from that (which is accepted) in Malaysia.”

She said that Nagenthran’s low FSIQ (full-scale intelligence quotient) aside, there also has to be evidence to prove beyond a reasonable doubt that the accused cannot tell that his actions are against the law.

“Was the accused incapable of knowing that his actions are defined as drug trafficking?”

She also stressed that there are many forms of mental and intellectual disabilities.

“Even if a person suffers from one or more of these disabilities, it does not mean that he does not know right from wrong and therefore, be excluded from the harshest penalty under the law,” she said.

“All the law is interested in are three things – was a crime committed? Who did it? What evidence is there to prove innocence or guilt?”