Activists hold posters of Nagaenthran K. Dharmalingam, who was convicted of a drug offense 10 years ago in Singapore but diagnosed as intellectually disabled, before submitting a memorandum to Parliament in Kuala Lumpur, Malaysia, on November 3.
Hong Kong CNN  — 

Campaigners are making a last ditch effort to save a man with intellectual disabilities from execution in Singapore, in a case that has been described a “sickening” and a “systemic failure,” and put the city-state’s zero-tolerance drug laws back under scrutiny.

Nagaenthran K Dharmalingam, a 33-year-old Malaysian man, was arrested in 2009 for bringing 42.7 grams (1.5 ounces) of heroin into Singapore. He is due to be executed by hanging on Wednesday.

The High Court dismissed a last minute constitutional challenge from his lawyer on Monday but granted a stay of execution so the decision could be appealed, lawyer M. Ravi posted on Facebook – a small glimmer of hope for Dharmalingam’s supporters.

During the appeal hearing on Tuesday, the court ordered another stay of execution after announcing Dharmalingam tested positive for Covid-19, according to Ravi. The stay of execution will remain in place until the new appeal is heard.

Dharmalingam’s older sister, Sarmila Dharmalingham, said in a statement the family has been “struggling” but she is “relieved” to hear the execution had been stayed.

“But I’m only a little bit happy, because I know they haven’t actually stopped the execution, only given it a temporary stay,” she said.

“We have been told by the prison that we will not be allowed to visit him anymore, and that we will only be allowed phone calls with him.”

Dharmalingam’s lawyers and rights groups fighting to save him say Singapore is violating international law by executing a person with a mental impairment. They have exhausted all other legal appeals and a petition to the President for clemency was unsuccessful.

Singapore’s Ministry of Home Affairs said in a statement Dharmalingam “was accorded full due process under the law, and was represented by legal counsel throughout the process.”

However, his lawyers argue that Dharmalingam should not have been sentenced to death under Singaporean law because he was incapable of understanding his actions. A psychologist assessed his IQ to be 69, which is internationally recognized as an intellectual disability. At his trial, the defense also argued he had severe attention deficit hyperactivity disorder (ADHD), borderline intellectual functioning, and severe alcohol use disorder.

Dharmalingam has spent a decade on death row and during that time his condition has further deteriorated, his lawyers said.

“He has not a very good sense of what is happening around him,” said N. Surendran, a Malaysian lawyer who is representing Dharmalingam’s family, and adviser to Malaysian NGO Lawyers for Liberty. “He is disoriented. He’s got no real clue of what is going to happen to him.”

Surendran said executing Dharmalingam “would be tantamount to executing a child.”

An activist holds a placard before submitting a memorandum to parliament in protest at the impending execution of Nagaenthran K. Dharmalingam, in Kuala Lumpur on November 3.

Singapore has some of the strictest drug laws in the world. Trafficking a certain amount of drugs – for example, 15 grams (0.5 ounces) of heroin – results in a mandatory death sentence under the Misuse of Drugs Act. It was only recently – and after Dharmalingam’s case began – the law was amended to allow for a convicted person to escape the death penalty in certain circumstances.

Dharmalingam was convicted of drug trafficking and sentenced to death by Singapore’s High Court in 2010. His first appeal was dismissed a year later. Another appeal after Singapore amended its drug law was again rejected in 2018.

“The Court of Appeal affirmed the High Court’s decision and said that it was satisfied that Nagaenthran clearly understood the nature of his acts,” the Ministry of Home Affairs said in a statement.

The court argued Dharmalingam transported drugs “in order to pay off his debts” and he knew it was unlawful so he “attempted to conceal the bundle by strapping it to his left thigh.” It also said Dharmalingam was “continuously altering his account of his education qualifications, ostensibly to reflect lower educational qualifications each time he was interviewed.”

“This was ‘the working of a criminal mind, weighing the risks and countervailing benefits associated with the criminal conduct in question.’ Nagaenthran considered the risks, balanced it against the reward he had hoped he would get, and decided to take the risk,” the ministry said in its statement, quoting the court’s decision.

Public pressure

Dharmalingam’s case has sparked international condemnation – even British Virgin boss Richard Branson has appealed for clemency.

Malaysian Prime Minister Ismail Sabri Yaakob has written to his Singaporean counterpart Lee Hsein Loong asking for leniency, Malaysian state media Bernama reported.

More than 62,000 people have signed a petition urging Singapore’s President Halimah Yacob to issue a pardon. Last week, dozens of activists protested outside Parliament in the Malaysian capital Kuala Lumpur.

Human Rights Watch, Amnesty International, Anti-Death Penalty Asia Network (ADPAN) and other rights groups have also called on the Singapore government to halt the execution.

“Executing a man with a disability, who was convicted after an investigation and trial that provided no disability-specific accommodations, violates international law and won’t deter crime,” Emina Ćerimović, senior disability rights researcher at Human Rights Watch, said in a statement.

“Singapore should commute Nagaenthran Dharmalingam’s sentence and amend its laws to ensure that no one is subjected to the death penalty, certainly not people with intellectual or psychosocial disabilities.”

Surendran, the lawyer, said the execution order was “sickening beyond belief.”

He criticized the court for ordering the appeal hearings on Tuesday, arguing it gave little time prepare submissions overnight.

“These unreasonable court directions and unholy rush to have both hearings heard in less than 24 hours amounts to a blatant denial of due process to Nagaenthran contrary to Article 9 of the Singapore Constitution. No criminal justice system in any country which upholds the rule of law, rushes through criminal appeals in this manner; and all the more so in a death penalty case,” he said.

Family ‘shocked’

Dharmalingam’s family, who live in Ipoh, northwestern Malaysia, were notified of his impending execution only on October 26. His lawyer in Singapore, M. Ravi posted the letter to Facebook, calling the order “state sanctioned murder.”

The letter stipulated only five members of Dharmalingam’s family would be allowed to enter Singapore and would need to contend with a list of Covid regulations.

Four family members – his mother, brother, sister and a cousin – managed to travel to Singapore and meet with Dharmalingam in Changi prison but were “shocked” at his condition, Surendran said.

“They see a completely different person, they’re not able to get through to him,” he said.

Anti-death penalty activist Kirsten Han, launched a crowdfunding campaign that raised more than $19,000 Singapore dollars to pay for the family’s flights and hotels.

“This is not something that the family could have afforded themselves,” she said.

She said the execution order, made worse because it was issued shortly after the important Hindu festival Deepavali, which Dharmalingam’s family celebrates, is “very emblematic of how cold and clinical the entire death penalty regime is.”

“The Singapore government has insisted for a very long time that (the law) protects Singapore. But drug policy experts say there’s no proof that this sort of punitive capital punishment regime deters drug trafficking,” Han said.