STATEMENT BY THE PERMANENT MISSION OF SINGAPORE REGARDING STATEMENT FROM UN SPECIAL PROCEDURES MANDATE HOLDERS ON THE DEATH PENALTY IN SINGAPORE

28 April 2022

Accessible at: https://www.mfa.gov.sg/Overseas-Mission/Geneva/Speeches-and-Statements--Permanent-Mission-to-the-UN/2022/04/Statement-by-Perm-Msn-Sgp-Comments-by-OHCHR-Executions

16 May 2022

Mr Morris Tidball-Binz

Special Rapporteur on extrajudicial, summary or arbitrary executions

Mr Mumba Malila SC

Vice-Rapporteur of the Working Group on Arbitrary Detention

Mr Felipe González Morales

Special Rapporteur on the human rights of migrants

Mr Fernand de Varennes

Special Rapporteur on minority issues

Dear Mr Tidball-Binz, Mr Malila, Mr Morales, Mr Varennes,

I refer to the Joint Urgent Appeal dated 27 April 2022 [Ref: UA SGP 5/2022]. I would like to address the serious allegations made about Singapore’s criminal justice system and clarify the facts about the scheduled execution of convicted drug trafficker Datchinamurthy A/L Kataiah (“Datchinamurthy”).

Singapore’s Criminal Justice System is Fair and Impartial

Your letter stated that you had received information alleging that ethnic minorities in Singapore “experience structural discrimination and reduced protection of their rights at various stages of the Singaporean criminal justice system, particularly in the context of drug related offenses”. You expressed concern that “persons belonging to ethnic minorities, particularly Malays, are overrepresented in the criminal justice system in Singapore, especially among persons sentenced to the mandatory death penalty under the Misuse of Drugs Act”, citing a concluding observation of the Committee on the Elimination of Racial Discrimination (“the Committee”) from Singapore’s first review before the Committee last year.

Singapore categorically rejects these allegations. The rule of law is the foundation upon which Singapore was built. It is undergirded by the following principles:

1. No person is above the law; 

2. We maintain a separation of powers amongst the Executive, Legislature and Judiciary. State power is exercised in accordance with the law, and the law is upheld by an impartial and credible judiciary; 

3. We are a society governed by impartial and objective laws which are passed by a democratically elected Parliament, and published for all to see; and 

4. Laws are enforced fairly, without fear or favour. There are avenues for people to challenge any arbitrary exercise of power.

These principles are borne out in practice, at all levels of the criminal justice system. Singapore is known for our fair and impartial criminal justice system, and independent and effective judiciary. Singapore was ranked first in criminal justice within the East Asia and Pacific region, and seventh worldwide in the World Justice Project Rule of Law Index 2021.

Singapore’s laws apply equally to all, regardless of race or nationality. Both attributes play no part in the professional discharge of duties by our law enforcement agencies, in the prosecutorial decisions of the Public Prosecutor, or in the decisions of the judiciary. Those who break our laws will not be subject to differentiated treatment based on race or nationality.

All criminal proceedings in Singapore, including capital cases, are conducted with due process before an impartial and independent judiciary. The Singapore High Court will not record a finding of guilt in a capital case unless the defendant is tried and the Public Prosecutor leads evidence to prove its case at the trial. Defendants can only be convicted and sentenced to the death penalty if their guilt has been proven in accordance with the law.

Further to the above, all persons facing capital charges in the High Court are ensured legal representation under the Legal Assistance Scheme for Capital Offences. Once a person is charged with a capital offence, legal counsel will be offered to the person free of charge regardless of his or her race or nationality.

These points were made very clear to the Committee during Singapore’s review before the Committee last year.

Datchinamurthy’s Case

Right to Fair Trial Not Prejudiced

The facts of Datchinamurthy’s case had already been set out in Singapore’s statement dated 28 April 2022 in response to comments made by the Office of the High Commissioner for Human Rights on 25 April 2022 regarding the scheduled executions of Datchinamurthy and Nagaenthran A/L K Dharmalingam. I append that statement to this letter for reference at the Annex.

Singapore rejects the allegation that Datchinamurthy’s right to fair trial was prejudiced and reiterates that Datchinamurthy was accorded full due process under the law and had access to legal counsel. His petitions to the President of Singapore for clemency were unsuccessful.

In view of a legal application raised by Datchinamurthy on 27 April 2022, the Singapore High Court has granted a stay of execution until the conclusion of the application.

Execution Notice Period

You expressed concern about the notice period for executions and suggested that it amounted to “discriminatory treatment for foreign nationals […] whose families must undertake international travel to visit them […]”.

On being notified of the execution, Datchinamurthy was granted extended visits in prison. The Singapore authorities were in close contact with Datchinamurthy’s family to facilitate their entry into Singapore. Datchinamurthy’s family started visiting him on the same day that they were notified.

Clarifications: Statutory Presumption under the Misuse of Drugs Act (“MDA”)

You reflected concerns about “the existence of laws, particularly those relating to drug offences, where the presumption of innocence is not fully guaranteed, as the burden of proof lies partially on the accused.”

Defendants in Singapore enjoy a presumption of innocence in all criminal cases, including cases involving drug offences under the MDA. This is embodied in the principle that the Prosecution is required to prove the guilt of defendants beyond reasonable doubt. The presumptions in the MDA operate only as evidential tools that shift the burden of disproving certain elements of the offence to the defendant.

However, for these presumptions in the MDA to apply, the Prosecution is first required to prove certain facts that lead to an inference of the presumed fact. Even then, the presumptions can still be and have successfully been rebutted in Court. They do not change the fundamental presumption of innocence, which defendants enjoy and is a fundamental tenet of the rule of law in Singapore.

No International Consensus on Capital Punishment

I reiterate again that there is no international consensus firstly, against the use of the death penalty, and secondly, that the death penalty amounts to cruel, inhuman, or degrading punishment, when it is imposed according to the due process of the law and with judicial safeguards. There is also no explicit definition under international law nor international consensus on what constitutes “most serious crimes”.

It is the sovereign right of every country to decide on the use of capital punishment for itself, considering its own circumstances and in accordance with its international law obligations. This right was reaffirmed most recently, and for the third consecutive time, by a significant number of UN Member States voting in support of the sovereignty amendment in the 75^th UN General Assembly resolution on a “Moratorium on the use of the death penalty”. This right should be respected.

Singapore’s Approach against Drugs Is Effective

Capital punishment in Singapore is only applied to the most serious crimes which cause grave harm to others and to society. This includes drug trafficking, which causes immense harm to drug abusers and their families.

Capital punishment has deterred drug trafficking and kept Singapore’s domestic drug situation well under control. Consequently, we have avoided the crimes and suffering that many societies with liberal drug laws have had to live with.

Countries should be free to choose the approach that best suits their own circumstances, and we will continue to implement measures that have worked well for us in our fight against drugs.

UMEJ BHATIA

Ambassador and Permanent Representative

11 November 2021

Accessible at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36622

2 March 2022

Accessible at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36834

26 April 2022

Mr Morris Tidball-Binz

Special Rapporteur on extrajudicial, summary or arbitrary executions

Mr Gerard Quinn

Special Rapporteur on the rights of persons with disabilities

Ms Tlaleng Mofokeng

Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

Ms Siobhán Mullally

Special Rapporteur on trafficking in persons, especially women and children

Dear Mr Tidball-Binz, Mr Quinn, Ms Mofokeng, Ms Mullally,

I refer to your Joint Urgent Appeal (“JUA”) dated 20 April 2022 [Ref: UA SGP 4/2022].

1. Singapore’s replies dated 11 November 2021 and 2 March 2022 to your previous JUAs regarding the case of Nagaenthran A/L K Dharmalingam (“Nagaenthran”) would have addressed most of the points in your latest JUA. This reply provides clarification about Nagaenthran’s mental condition in prison, the Singapore Court of Appeal’s dismissal of Nagaenthran’s latest legal applications to the courts, and the notification period provided to Nagaenthran’s family prior to Nagaenthran’s scheduled execution. Clarifications Nagaenthran’s Mental Condition 

2. In dismissing Nagaenthran’s latest applications, the Court of Appeal found that there was no evidence to support the assertions that Nagaenthran had a mental age below 18 years, or that his mental faculties had deteriorated since the time of his offence – claims on which Nagaenthran’s legal applications were based. The main piece of evidence presented on behalf of Nagaenthran was the “bare assertion” by Nagaenthran’s counsel – who had himself acknowledged that he had no medical expertise – as to Nagaenthran’s mental condition. The Court of Appeal said that the “firm belief” asserted by Nagaenthran’s counsel in his own speculation about Nagaenthran’s mental condition was “self-serving and not supported by anything at all”. 

3. Further, despite professing a concern over Nagaenthran’s mental faculties, Nagaenthran’s counsel had objected to the admission of Nagaenthran’s recent medical reports as evidence, citing Nagaenthran’s interest in medical confidentiality. Nagaenthran’s counsel also contended that the reports should be sent only to Nagaenthran’s family and counsel, and should not be seen by the courts. The Court of Appeal said that Nagaenthran’s position on the admission of his medical records “smack[ed] of bad faith”, and supported the inference that he “is seeking to prevent the court from accessing that evidence because he knows or believes it would undermine his case”. Dismissal of Nagaenthran’s Legal Applications 

4. You expressed concern that “the legitimate process of appeal proceedings” by Nagaenthran’s legal counsel was “denounced” as an abuse of process. 

5. The Court of Appeal had detailed in its judgment numerous instances in which Nagaenthran’s counsel had acted “in a manner that is contrary to the applicable rules and […] basic expectations of fairness to the other party and of courtesy to the court”.[1] For instance, 

1. During the High Court hearing of Nagaenthran’s originating summons (the “first application”) on 8 November 2021, challenging the carriage of his sentence of death, Nagaenthran’s counsel filed a second application (Criminal Motion 30/2021) which contained “essentially the same” arguments as those presented in the first application and which sought in substance the same relief. Nagaenthran’s counsel failed to explain why it was necessary for him to file this second application. 

2. In support of the second application, Nagaenthran’s counsel tendered two versions of an affidavit (one affirmed on 5 November 2021 and one unaffirmed) from Nagaenthran’s brother, which purported to attest to the same issue of Nagaenthran’s current mental state. However, there were material differences between the two versions for which no explanation was provided. Nagaenthran’s counsel also failed to explain why neither of the affidavits were filed for the first application when at least one of them was available before the said hearing. 

3. Just before the hearing in the Court of Appeal on 9 November 2021 in relation to the first and second applications, Nagaenthran’s counsel filed a third application (Criminal Motion 31/2021) seeking leave to apply for a review of Nagaenthran’s previously concluded appeals. The Court of Appeal observed that the third application was predicated upon the “same factual contention” raised in the first and second applications, and that it was unclear why this third application needed to be pursued separately. In any event, despite being granted leave by the Court of Appeal to make the said review application, Nagaenthran’s counsel took no steps whatsoever to do so. 

4. Before the Court of Appeal hearing first fixed on 9 November 2021, Nagaenthran’s counsel filed two expert reports dated 5 November 2021 and 7 November 2021 respectively, without any explanation as to why these documents had not been filed before the High Court hearing of the first application on 8 November 2021. Further, at the adjourned Court of Appeal hearing on 1 March 2022, Nagaenthran’s new counsel sought to admit a further expert report dated 27 February 2022. She did not provide any explanation for the late attempt to admit this document. 

1. The Court of Appeal, considering the manner in which the various applications have been made, found that it was a “drip-feeding of applications in a bid to thwart the court’s efforts to discharge its responsibility to dispose of the matter timeously, in accordance with its merits.” The Court also posited that Nagaenthran’s brother’s evidence “was deliberately withheld for the purpose of deploying it in support of a further application”. 

2. In relation to the proceedings as a whole, the Court of Appeal concluded that the proceedings “constitute a blatant and egregious abuse of the court’s processes… conducted with the seeming aim of unjustifiably delaying the carrying into effect of the sentence imposed on [Nagaenthran]; and the case mounted by [Nagaenthran’s] counsel was baseless and without merit, both as a matter of fact and of law.” Notification Period 

3. You highlighted information received suggesting that Nagaenthran’s family in Malaysia would not have sufficient time to travel to Singapore to visit him prior to his execution. 

4. The Singapore authorities have been in close contact with Nagaenthran’s family to facilitate their entry and stay in Singapore. Nagaenthran started receiving extended visits from his family member working in Singapore on the day he and his family were notified of the execution date. His other family members began arriving in Singapore for visits the following day. Singapore’s Position on Capital Punishment 

5. I reiterate once again that there is no international consensus firstly, against the use of the death penalty, and secondly, that the death penalty amounts to cruel, inhuman, or degrading punishment, when it is imposed according to the due process of the law and with judicial safeguards. There is also no explicit definition under international law nor international consensus on what constitutes “most serious crimes”. 

6. It is the sovereign right of every country to decide on the use of capital punishment for itself, considering its own circumstances and in accordance with its international law obligations. This right was reaffirmed most recently and for the third consecutive time by a significant number of UN Member States voting in support of the sovereignty amendment in the 75^th UN General Assembly resolution on a “Moratorium on the use of the death penalty”. This right should be respected. Singapore’s Approach against Drugs 

7. Capital punishment in Singapore is only applied to the most serious crimes which cause grave harm to others and to society. This includes drug trafficking, which causes immense harm to the drug abusers and their families. 

8. Capital punishment has deterred drug trafficking and kept Singapore’s domestic drug situation well under control. Consequently, we have avoided the crimes and suffering that many societies with liberal drug laws have had to live with. 

9. Countries should be free to choose the approach that best suits their own circumstances, and we will continue to implement measures that have worked well for us in our fight against drugs.

UMEJ BHATIA

Ambassador and Permanent Representative