KUALA LUMPUR, Feb 25 — The Singapore courts are set to hear next week challenges by two Malaysians with IQ levels of below 70, along with two Singaporeans, against the death penalty being imposed on them.

For these four individuals, the Singapore government had previously informed their families of the dates on which they would be executed or put to death, but their executions have been stayed as these men have filed court challenges against their death sentences.

Constitutional challenge on ethnic composition, alleged compromised confidentiality

On February 28, the High Court in Singapore is scheduled to hear the latest application by Malaysian citizen Pausi Jefridin (with a low IQ level of 67) and Singaporean Roslan Bakar (said to be mentally impaired) to challenge the death penalty for drug offences in Singapore as being unconstitutional.

Having been on death row since April 2010 after being convicted over drug trafficking offences in Singapore, the families of Pausi and Roslan were on February 9 told that the duo would be executed on February 16. The duo were not executed as scheduled however, due to their ongoing court challenges. The Singapore president had also last week granted a respite order for the duo’s executions.

For their joint application to be heard on February 28, Pausi and Roslan are seeking five court declarations, namely declarations that the death penalty for drug offences in Singapore is unconstitutional as it goes against Article 9(1) and Article 12(1) of Singapore’s constitution.

Article 9(1) provides that no person shall be deprived of his life or personal liberty except in accordance with the law, while Article 12(1) provides that all persons are equal before the law and entitled to equal protection of the law.

The five declarations that the duo sought include for such death penalty for drug offences to be declared unconstitutional on grounds including it being disproportionate with ethnic Malay persons accounting for 77 per cent of Singapore residents sentenced to death for drug offences since 2010.

The duo also want death penalties for drug offences to be declared unconstitutional due to privileged information between death row prisoners and their lawyers and families were unlawfully forwarded by the Singapore Prison Services to Singapore’s Attorney General’s Chambers, and as there is surveillance via CCTV cameras in the interview room in Changi Prison where prisoners speak with their lawyers and as prison officers can hear such conversations which would compromise the confidentiality of communication between lawyers and prisoners, as well as due to the Singapore government allegedly having had dealings with drug lords or their businesses as allegedly verified by the US State Department while the Singapore judiciary convicts persons for offences punishable by death under Singapore’s drug law.

Rights group Lawyers for Liberty’s (LFL) chief coordinator Zaid Malek today explained the difference between Pausi’s and Roslan’s lawsuit due to be heard on February 28 —- which he said revolves around having death penalties in Singapore declared unconstitutional —- and their previous court challenge heard and dismissed on February 16 to challenge their death sentences based on their intellectual disabilities.

In an affidavit filed by international human rights lawyer M. Ravi in support of Pausi’s and Roslan’s latest court challenge, he said the duo had compiled statistics based on court judgments that showed 77 individuals — including both Malaysians and Singaporeans — as having been sentenced to death from 2010 to June 1, 2021 due to drug offences and with such death sentences upheld on appeal.

Based on the compilation provided by Pausi and Roslan to the court, 64.9 per cent or 50 of these 77 individuals are of Malay ethnicity, while 10 and 15 are of Chinese and Indian ethnicity and two are of other ethnicities.

When zoomed in to focus only on Singaporean residents who are drug offenders and who had their death sentences upheld, the statistics during the same 2010-June 1, 2021 period also showed that individuals of Malay ethnicity accounted for 77 per cent or 47 of the 61 convicts, while nine and five were of Chinese and Indian ethnicity respectively.

Also to be heard on February 28 is a similar court challenge by Singaporean Rosman Abdullah, who had been on death row since September 2010 and whose family was informed in a February 16 letter that he would be executed on February 23. His execution had been stayed pending the upcoming court hearing.

Kirsten Han, who is a member of the Transformative Justice Collective and was also present in the same press conference, said Rosman’s court challenge is based on similar grounds such as the number of ethnic Malays on Singapore’s death row, and the alleged breach of privileged communications between death row prisoners and their lawyers.

Court challenge by Malaysian citizen Nagaenthran

On March 1 (next Tuesday), the Court of Appeal is set to hear two matters in Malaysian citizen Nagaenthran K. Dharmalingam’s case, including his appeal against the High Court’s dismissal of his previous court challenge against his execution. He was initially scheduled to be executed in November 2021, but his execution was stayed.

Nagaenthran has an IQ level of 69, which is said to be recognised as indicating an intellectual disability.

In his court challenge filed in November 2021, Nagaenthran was seeking for the court to hear his bid for two declarations that the execution of his death sentence would be in breach of his rights under Article 9(1) and Article 12(1), and a declaration that his execution would be unlawful as it is in breach of Singapore’s prisons’ internal policy not to execute the mentally disabled, as well as an order to prohibit or stop his execution.

The other matter to be heard on March 1 is an application by Nagaenthran to the Court of Appeal for it to exercise its power to order for a panel of psychiatrists — comprising the Singapore government’s psychiatrists and independent psychiatrists appointed by Nagaenthran’s family — to assess Nagaenthran, and for his execution to be stayed pending the decision regarding the assessment bid.

What are anti-death penalty and rights groups hoping for

In summing up the main outcomes sought in the court challenges to be heard on February 28 and March 1, Zaid said Nagaenthran’s case is about ensuring those with intellectual disabilities should not be executed, while the others’ cases were to show that executions should not be given out to anyone in Singapore due to its unconstitutionality.

“One is with regards to show that executions should not be given out to persons who have disabilities, and the second part, is to get a declaration that executions in Singapore are unconstitutional as a whole,” he said.

The Transformative Justice Collective movement’s representative Han called for clemency from the Singapore government for the four men.

“Outside of what’s being argued in court, for us as activists, we are calling for clemency... We are emphasising — regardless of court decisions which we will leave to judges to decide — it is possible for the Singapore Cabinet to advise the president to grant clemency. We are calling for clemency, regardless of what the outcomes might be. They could just commute the death sentence anytime without the need to wait for court decisions,” she said.

Typically, clemency could involve commuting or reducing a death sentence to life imprisonment.

Han confirmed that the lawyers for all four men had previously applied to the Singapore courts to seek for them to be resentenced to life imprisonment instead, but that such efforts were not successful.

Angelia Pranthaman, the sister of Malaysian death row prisoner Pannir Selvam Pranthaman, in the same press conference expressed hope for clemency to be granted to prisoners on death row in Singapore.

Pannir, on Singapore’s death row since 2017, was initially scheduled to be executed in May 2019. His execution was later stayed as he pursued a court challenge, which the High Court in February 2020 and the Court of Appeal in November 2021 dismissed.

Unlike Malaysia, where criminal cases can be appealed from the High Court to the Court of Appeal and then further to the Federal Court, cases at Singapore’s High Court can only be appealed to the Court of Appeal as the city-state does not have a Federal Court.

Having been advised by Pannir’s lawyers that the legal challenge for him was over and that the next step would be to seek clemency, Angelia however said the family was “scared” when thinking about the clemency process, as it has been a long time since Singapore last granted clemency.

The Anti-Death Penalty Asia Network (Adpan), which has member organisations from 22 countries in Asia Pacific and which seeks to end death penalties in the region, hosted the press conference via the video-conferencing platform Zoom.

In a statement today, Adpan said it was closely monitoring the upcoming court hearings next week for Rosman, Pausi, Roslan and Nagaenthran, saying that these four cases showed critical flaws in Singapore’s drugs laws and policies and that the implementation of such laws would allegedly be likely to result in miscarriages of justice.

Adpan listed these flaws as including the lack of protection or safeguards for individuals suffering from mental health issues or psychosocial disabilities, as well as the alleged lack of transparency and inconsistency in Singapore’s public prosecutor’s issuance of the certificate of assistance — a document which would be required for a court to be able to exercise its discretion of sentencing a drug courier to life imprisonment instead of death.

Adpan said another flaw was the hasty and onerous court process that undermines the right to fair trial, noting that Roslan and Pausi were required to pay S$20,000 in security costs within an hour of a High Court decision on February 16 in order to proceed with their appeal.  

“The exorbitant sum denies and deters legitimate judicial challenges from being heard as many would unlikely be able to pay such an amount within limited time,” it said, pointing out that convicts on death row and their families are disproportionately poor and largely rely on pro bono legal aid and the requirement to pay such funds before accessing the right to appeal in death penalties cases puts up a prohibitive and discriminatory financial barrier to accessing justice.

Roslan’s and Pausi’s court challenge on February 16 was dismissed by the High Court, with the Court of Appeal hearing and deciding to dismiss their appeal on the same day itself.

Noting the speed in which the hearings and appeals were concluded within hours in recent cases despite the gravity of the death sentence, Adpan said the haste in legal proceedings denied the defence lawyers from having an adequate opportunity to prepare for the appeals.

Adpan urged the Singapore government to impose a moratorium on executions and to join the global trend moving towards the abolition of the death penalty, and to review Singapore’s continued reliance on the death penalty based on what Adpan described as a “false perception” that death penalties are effective to deter crime.

Adpan urged the Singapore government to facilitate independent psychiatric and medical assessments of all death row prisoners at the time execution is listed to ensure that Singapore is complying with its obligations under the UN Convention of Persons with Disability, and to commute the sentences of individuals suffering from mental illness, mental and

psychosocial disabilities, and to ultimately “ensure that no persons with mental illness or disability are executed”.