I refer to news reports on 12 November that Singapore’s prime minister and foreign minister have said that Nagaenthran Dharmalingam “has been accorded full due process under the law”, in a written response to their Malaysian counterparts.
This response is false, callous and untenable, as it totally ignores Nagaenthran’s mental disabilities. It was this fact – that a person with such mental disabilities was to be hanged – that triggered the worldwide condemnation we have seen in recent weeks.
To say that “due process” has been granted to a person with Nagaenthran’s mental disabilities means nothing at all.
Due process in the case of a person like Nagaenthran must include accommodations and specific procedures in the criminal justice system that take into account his disabilities and make crucial adjustments for it.
From the moment of arrest and investigation to conclusion of trial, these “procedural accommodations” should have been be made in Nagaenthran’s favor. If treated like any other defendant with normal mental abilities, Nagaenthran would not have been accorded a fair process or fair trial.
But this is precisely what transpired: Nagaenthran was dealt with like any normal suspect or accused person. All sorts of police interrogations and statements were recorded from this uncomprehending person. Later, these statements would be used against him in court. In short, Nagaenthran was denied due process from day one.
The fact is, at the time of Nagaenthran’s arrest and the subsequent stages of his case, no such procedural accommodations for disability were made for him, because at that time Singapore did not have any such procedures. This they cannot factually deny.
Since 2013, Singapore is a state party to the UN Convention on the Rights of Persons with Disabilities and must adhere to its obligations. The execution of a person with any form of mental disability runs contrary to those treaty obligations, and consequently to the right to life, contained in Article 9 of the Singapore Constitution.
In view of all this, it is baffling and incomprehensible that the prime minster of Singapore says in his official response to the prime minister of Malaysia that due process has been done. On the contrary, there has been manifest noncompliance with the basic due process that must be afforded to a person with mental disabilities.
There is only one response that Singapore can make to Malaysia that would be consistent with its obligations under the UN convention and its own Constitution. That response is to exercise clemency in favour of Nagaenthran Dharmalingam and to prioritise bringing Singapore’s criminal laws and procedures in accord with the rights of persons with disabilities.
N Surendran is the lawyer for Nagaenthran’s family and advisor to Lawyers for Liberty