We, persons with disabilities, call on the
Singapore government and president to halt the imminent execution of
Nagaenthran a/l K Dharmalingam, a person with intellectual and
psychosocial disabilities.
In this statement, we would like to inform
the public and the state about points that we understand may not be
so well-known, but that are essential to ensuring the rights and
dignity of persons with disabilities to life and access to justice.
We will address:
Who
is a person with a disability?
Why
there have been specific calls to stop imposing the death penalty on
persons with intellectual and/or psychosocial disabilities
Barriers
to due process and fair trial guarantees, and the need for
procedural accommodations for persons with disabilities
Real
access to justice for persons with disabilities
The
need to recognise what persons with disabilities are saying about
what we need, and to give us an accessible timeline to do so
Preamble
For too long, the needs of persons with
disabilities have been decided on by nondisabled people who do not
pay attention to what we are actually saying. We are told that we are
too complicated to understand. We have been fit into boxes and given
black and white labels that nondisabled people find easier to
comprehend. Then, we are told that we do or do not require certain
supports because we do or do not fit certain diagnostic labels, and
that certain treatment is or is not appropriate for us based on
someone else’s perspective. This is not how our lives work.
Nor can a society say that it is inclusive
if the support we ask for is considered goodwill and not something
that is our right so that we will have equity in participation in all
aspects of life, including in having a fair trial.
Who is a
person with a disability?
The United Nations Convention on the Rights
with Persons with Disabilities (CRPD), which Singapore is a State
Party to, takes an interactions-based, rather than individual and
medical, approach to disability. It says:
“[D]isability
is an evolving concept and that disability results from the
interaction between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective
participation in society on an equal basis with others”
i
This means that Nagaenthran’s exact
medical diagnosis is not the issue. What matters is that barriers
were put in his way. The criminal legal system is hard to navigate on
its own, and even the court experts could not deny that Nagaenthran
has significant differences in communication and thinking.
We know that Nagaenthran has difficulties
with attention, verbal fluency, set-shifting, abstract reasoning,
strategy formation and problem solving, and may have had difficulties
in knowing who to trust. This is something that many of us who are
persons with intellectual disabilities, persons with psychosocial
disabilities, and/or Autistic people have experienced.
We consider Nagaenthran to be one of us
persons with intellectual and/or psychosocial disabilities. We fully
believe that he had a right to the full range of procedural
accommodations, including a justice facilitator whose job it is to
advocate for procedural accommodations in how police interviews and
court proceedings are carried out, to dispel prejudice, and to
provide emotional support and communication facilitation. This should
have been provided throughout his interactions with the criminal
legal system, beginning from the time of his arrest.
Why
there have been specific calls to stop imposing the death penalty on
persons with intellectual and/or psychosocial disabilities
Singapore has signed and ratified the
Convention
on the Rights of Persons with Disabilities.
A ratification is a promise that a state makes, where it agrees to be
legally bound to, in Singapore’s case, align its laws with a
convention. Nevertheless, it must also immediately stop any
violations like executions from happening to persons with
disabilities — and it
has
the ability to do so through presidential clemency or an immediate
moratorium with subsequent changes to the laws.
Executing Nagaenthran would, without doubt,
violate Singapore’s obligations under the CRPD. In particular, it
would violate Article 10 on right to life, Article 13 on access to
justice, and Article 15 on freedom from torture or cruel, inhuman or
degrading treatment or punishment, amongst others.
The CRPD Committee has made calls in
multiple Concluding Observations to abolish the death penalty,
especially for people with intellectual and/or psychosocial
disabilities, and has called on states to suspend all current death
sentences and halt the execution of persons with intellectual or
psychosocial disabilities.
ii
Further, in its Concluding Observation to
Iran, the CRPD Committee expressed concern that “persons with
disabilities, particularly persons with psychosocial and/or
intellectual disabilities may be at risk of facing a greater risk of
death penalty due to lack of procedural accommodations, in criminal
proceedings.”
iii
Disproportionate
barriers to due process and fair trial guarantees, and the need for
procedural accommodations
The Committee on the Rights of Persons with
Disabilities has expressed:
“The
CRPD Committee is of the opinion that the duty to refrain from
imposing the death penalty on persons with intellectual or
psychosocial disability is grounded on the disproportionate and
discriminatory denial of fair trial guarantees and procedural
accommodations to them …”
iv
Singapore itself has acknowledge the
importance of procedural accommodations. But Singapore’s version of
justice facilitators, the Appropriate Adult Scheme
v,
did not exist in 2009, when Nagaenthran was interrogated by the
police. The
Straits Times
reported in 2015 about the importance of the Appropriate Adult
Scheme, where a volunteer with the scheme was quoted as saying that
the programme is important because persons whom the scheme seeks to
support “can easily agree to accusations” because they are
“fearful of police or other authority figures”.
vi
This casts doubt as to whether it is fair or even just reasonable to
take Nagaenthran’s confessions during his initial police
investigation as his most authoritative statement.
Additionally, in response to the court’s
criticism that Nagaenthran had given inconsistent statements to
mental health professionals, we would like to affirm as fellow
persons with disabilities that medical and mental health
professionals can absolutely
also
be figures of authority. Many of us have experienced medical trauma,
or have had bad, even dehumanising, experiences with doctors. Even in
non-criminal cases, we may not feel safe around doctors, and may say
different things to different professionals depending on how safe we
feel around them. Inconsistencies in what we say often comes from a
place of fear.
What
Singapore has said about access to justice for persons with
disabilities
In its reply to the CRPD Committee in April
this year, Singapore stated that, with emphases added:
“There
are procedural accommodations that facilitate effective access to
justice for persons with disabilities at
all
stagesthroughout
of legal proceedings. The Police are trained to identify suspects and
witnesses with mental disabilities and to take steps to reduce the
trauma experienced by them
investigations.”
vii
Nagaenthran was not accorded these
procedural accommodations in his interaction with the police, his
trial or his appeals over the course of 10 years. While he had legal
counsel, the courts do not implement the procedural accommodations
required by the
International
Principles and Guidelines on Access to Persons with Disabilities,
which was jointly released by the CRPD Committee.
viii
Real
access to justice for persons with disabilities
Real understandings of what access to
justice means for persons with disabilities is something that has
gained greater prominence only recently, and this was accomplished
through the advocacy and central participation of persons with
disabilities ourselves. The International Principles and Guidelines
on Access to Justice for Persons with Disabilities
ix,
issued by the United Nations, was released only last year, in August
2020, after Nagaenthran’s court of appeal case and his failed
application for presidential clemency in 2019.
After centuries of discrimination, it is of
utmost urgency that states adopt and implement access to justice for
us as it will make a significant difference. For instance, because of
the state-of-the-art advocacy and training by the Mexican NGO
Documenta, and since the introduction of justice facilitators in the
Mexico City justice system, there have been cases where judges have
ruled that criminal proceedings cannot be initiated against an
accused person with a disability because procedural accommodations
had not been provided
from the
time of arrest.
Nothing
about us without us
We would like to note how little time there
is for us after the announcement of this execution to do advocacy,
especially since it concerns us, persons with intellectual and/or
psychosocial disabilities. For some of us, it takes much longer for
us to read the information or express out our thoughts on this issue.
Some of us require easy read versions to access information about
what is happening to one of us.
For some of us, it may not be possible to
do all this by November 10, and Nagaenthran might have been executed
before we can respond. Many of us have hated ourselves for not
meeting normative standards of how quickly things should be done, and
some of us will blame ourselves for Nagaenthran’s death too. This
is yet another reason why irreversible penalties like the death
penalty should not be imposed on persons with disabilities.
After a
discriminatory society and an inaccessible criminal legal system, a
cruel, irreversible punishment
For Nagaenthran, there was a lack and even
total absence of procedural accommodation accorded to him from the
start, both when interrogated by the police and in the courtroom.
This means that he was denied true due process based on current best
practices about access to justice for persons with disabilities, and
even by Singapore’s own current standards.
Ascertaining whether access to justice has
been equally fulfilled for persons with disabilities always involves
an element of added subjectivity and therefore added arbitrariness. A
sentence with the finality of the death penalty should not apply when
such a disproportionate degree of arbitrariness exists.
x
People like Nagaenthran, people like us,
face discrimination in our daily lives. We face discrimination in
employment, find it harder to find acceptance, and are more likely to
experience or be threatened with violence, abuse and exploitation.
Many of us are driven to death by suicide by these messages and by an
inaccessible society that tells us that our lives are less worth
living. We ask you: In this context, what message would the execution
of Nagaenthran tell us about us our worth as persons with
disabilities?
Nagaenthran is a person who has been
disabled by society and by the courts, and now, after navigating a
world and court system that was inaccessible to him, he faces the
death penalty, the ultimate rejection of his humanity.
We submit that the central issue is not
whether Nagaenthran met certain tests to quality for ‘abnormality
of mind’ that would excuse him from mental responsibility for his
actions and therefore the death penalty, but with what the state did
or did not provide. In this case, the state did
not
provide.
We emphasise
the need for the Singapore criminal legal system to study the latest
standards and emerging best practices about justice, and access to
justice, for persons with disabilities.
We call for
an immediate moratorium on the death penalty for persons with
disabilities in line with the Convention on the Rights of Persons
with Disabilities and the International Principles and Guidelines on
Access to Justice for Persons with Disabilities.
We urge
the Singapore government and the Singapore president to halt the
execution of a/l K Dharmalingam.
Signatories
Disabled People’s Organisations
We Who Witness (Singapore)
Autistic Women and Nonbinary Network (USA)
Center for the Human Rights of Users and
Survivors of Psychiatry
Entropía Social, A.C. (Mexico)
SinColectivo (Mexico)
Sociedad y Discapacidad (Peru)
Individual Signatories
Emmy Charissa (Singapore)
Timothy Ng (Singapore)
Mari Yamamoto, Board Member, World Network
of Users and Survivors of Psychiatry (Japan)
Cora Segal, MA Candidate in Gender &
Women’s Studies (USA)
Signatures in Support
Organisations Working on Access to
Justice for Persons with Disabilities
Documenta (Mexico)
For more information:
International
Principles and Guidelines on Access to Justice for Persons with
Disabilities
“Nothing
About Us Without Us”
i The CPRD Committee reiterated this in its Concluding Observations to
Guatelama in where it stated: “The
Committee is concerned that the State party has not established a
procedure for certifying degree of disability and that assessments
are made on the basis of a medical and charity-based approach”,
and “The Committee recommends that the State party define the
criteria for assessing the degree of a person’s disability in
accordance with the human rights principles enshrined in the
Convention and establish appropriate regulation in its legislation
and policies.” (CRPD/C/GTM/CO/1).
ii CRPD/C/IRN/CO/1, CRPD/C/KWT/CO/1, CRPD/C/SAU/CO/1, CRPD/C/GTM/CO/1.
iii CRPD/C/IRN/CO/1.
ivCommittee
on the Rights of Persons with Disabilities, “Comments on the Draft
General Comment No. 36 of the Human Rights Committee on Article 6 of
the International Covenant on Civil and Political Rights,” October
6, 2017.
v We would like to register our disagreement with the term
“Appropriate Adult”, which reinforces patronising stereotypes
that people with disabilities forever remain children.
vi Amir Hussain, “
New
Scheme to Help Persons with Developmental Disabilities During Police
Investigations,”
Straits
Times (Singapore),
Mar. 31, 2015,
https://www.straitstimes.com/singapore/courts-crime/new-scheme-to-help-persons-with-developmental-disabilities-during-police.
vii “Replies of Singapore to the list of issues in relation to its
initial report”, September 29, 2020 (distributed April 29, 2021).
viii The
International
Principles and Guidelines
was jointly released by the United Nations Special Rapporteur on the
rights of persons with disabilities, the Committee on the Rights of
Persons with Disabilities, and the United Nation’s Special Envoy
Special Envoy of the Secretary-General on Disability and
Accessibility.
ix "UN experts launch ground-breaking guidance on access to
justice for people with disabilities", Office for the High
Commissioner of Human Rights (Geneva), Aug. 28, 2020,
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26193&LangID=E.
xThe
CRPD Committee has also noted the heighted arbitrary nature of the
death penalty for persons with disabilities. In its Concluding
Observations to Iran in 2017, it said: “The Committee recommends
that the State party take measures to replace death penalty as form
of punishment and ensure that persons with disabilities are not
subject to arbitrary deprivation of life.” (CRPD/C/IRN/CO/1.)
