See earlier posts:- Commute mentally challenged Malaysian Nagaenthran’s death sentence to imprisonment. Hearing 30/11/2021 A Malay translation of this statement found below. This statement after Malaysian YDP Agung and Prime Minister pleaded to the Singapore President and Prime Minister for clemency. Singapore President replied to the King. No news yet about the Singapore Prime Minister's respomse
When it comes to Clemency or Pardon by the President, considerations differ from what courts consider. That is why clemency/pardon comes later - it looks beyond simply the question of guilt/conviction by courts.
What other considerations the Singapore President can consider?
GOOD BEHAVIOUR - post-conviction behavior matters, and good behavior including no other incidence of law breaking post conviction, or even good behavior after the offence is a consideration.
REPENTANCE - and a desire to be a good person after commission of crime is a good reason.
Mental Capacity - well, in this case, the issue that comes up now is the mental capacity of Nagaenthran A/L K Dharmalingam. As it stands, mental capacity is a pre-requisite to determine whether one can even be charged in court - noting that one lacking the needed mental capacity may not even have the capacity needed to plead guilty or not guilty, as such one lacling said capacity cannot even be charged in court let alone be tried. - In the Nagaenthran's case, there now is the question of whether he should have even be charged and tried in court in the very first place. Did the prosecutor and/or the court even establish his mental capacity - was there a certificate by a medical professional that determined his mental capacity at the stage of him being charged and/or tried? If not, this is a PROBLEM and a RISK that cannot be ignored. [What is needed is not the viewpoint of lay persons, be it prosecutors, judges or even the accused's lawyer - it needs to be an opinion of a competent medical professional].
Diplomatic/Political Considerations-
Errors (even if unintentional) - here the failure of courts/prosecutors to conclusively establishing soundness of mind before one is being charged and tried. The onus is on court and prosecutors - not the accused and/or his lawyers. If, there was '...a certificate in writing signed by a medical officer...'Then, there is also the question of criminal responsibility for the crime - that is both the mental element(mens rea) and action/facts(actus rea)
Procedure if accused is suspected to be of unsound mind (Singapore Criminal Procedure Code)
Certificate of designated medical practitioner 248.—(1) If the designated medical practitioner certifies that the accused is of sound mind and capable of making his defence, the court shall, unless satisfied to the contrary, proceed with the inquiry or trial or other proceeding.[Act 33 of 2012 wef 01/01/2013]
(2) If the designated medical practitioner certifies that that person is of unsound mind and incapable of making his defence, the court shall, unless satisfied to the contrary, find accordingly, and thereupon the inquiry or trial or other proceeding shall be stayed but if the court is satisfied that the accused is of sound mind and capable of making his defence, the court shall proceed with the inquiry or trial or other proceeding, as the case may be. [Act 33 of 2012 wef 01/01/2013]
(3) The determination of the issue as to whether or not the accused is of unsound mind and incapable of making his defence shall, if the finding is that he is of sound mind and capable of making his defence, be deemed to be part of his trial before the court.
(4) The certificate of the designated medical practitioner shall be admissible as evidence under this section. [Act 33 of 2012 wef 01/01/2013](5) If the accused is certified to be of unsound mind and incapable of making his defence, it shall not be necessary for him to be present in court during proceedings under this section and he may be detained in a psychiatric institution pending an order under section 249.
Now, in the Nagaenthran's case, this fact of 'mental capacity' has been raised now - and has the Singapore authorities, be it the public prosecutor or court, even called for an IMMIDIATE medical professional assessment at this stage.
The difficult question, even if he is declared now lacking the needed medical capacity, the question most difficult to answer is (a) Did he have the sufficient mental capacity to enter a plea, go through a trial, intruct lawyers to appeal, etc. THIS ALONE IS SUFFICIENT FOR THE PRESIDENT TO COMMUTE THE DEATH SENTENCE TO IMPRISONMENT at this stage. Further testing and medical opinion maly go further for a 2nd pardon, that may order him to be treated in a medical facility rather than be imprisoned in jail.
Then, there is Section 252
252.—(1) Whenever
the finding states that the accused committed the act alleged, the
court before which the trial has been held shall, if that act would but
for the incapacity found have constituted an offence, order that person
to be kept in safe custody in such place and manner as the court thinks
fit and shall report the case for the orders of the Minister.(2) The
Minister may order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure.
252.—(1) Whenever the finding states that the accused committed the act alleged, the court before which the trial has been held shall, if that act would but for the incapacity found have constituted an offence, order that person to be kept in safe custody in such place and manner as the court thinks fit and shall report the case for the orders of the Minister.(2) The Minister may order that person to be confined in a psychiatric institution, prison or other suitable place of safe custody during the President’s pleasure.
Thus, in the Nagaenthran's case, where there seems to have been NO confirmation by the court(or the prosecution) of the mental capacity of the accussed to stand trial.
Noting that the trial(and maybe appeals), and if the courts can rely on section 252, the courts may (oops...No), it says the MINISTER
The
Minister may order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure.
This may reasonably mean THE PRESIDENT in exercise of his/her powers, be it Clemency powers, can now commute the death sentence and '...order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure...'
With regard to execution of the death penalty, the President also has the '....power to pardoned or the sentence is commuted to another punishment, state this in the order;...'
Section 313 of the Criminal Procedure Code(f)the President must, acting in accordance with the Constitution —
(i) transmit to the Court of Appeal a copy signed and sealed by him of any order he makes; (ii) if the sentence is to be carried out, state the time and place of execution of the sentence in the order; and (iii) if the person sentenced is pardoned or the sentence is commuted to another punishment, state this in the order;
The President also has the power in section 313(h) CPC, the
President may, at any time before the warrant is carried out, order a
respite of the execution of the warrant and afterwards appoint some
other time or other place for its execution;
Of relevance is also Section 314 of the Criminal Procedure Code
No sentence of death against person below 18 years314.
A
sentence of death must not be passed or recorded against an accused
convicted of an offence if the court has reason to believe that,
at the
time the offence was committed, he was below the age of 18 years, but
instead the court must sentence him to life imprisonment.
The question then is WHY no capital punishment for those below 18 - Minimum Age of Criminal Responsibility (MACR) refers to the minimum age
at which a person can be held criminally responsible for his or her
actions. In Singapore, chilren of different ages are treated differently - 10-12 years, 12-16, and 16-18. The issues of concern is whether a child can be criminally
responsible for his or her actions, even if they would otherwise
constitute an offence. Whether a child is sufficiently mature to understand the nature and conduct of his or her actions.
Whilst this 'old method' that only looks at age of the child outdated, the issue really, in my opinion, is looking mental capacity - maybe even IQ.
Should this principle which really look at mental capacity...'criminal responsibility' be regardless of age...for an adult with a low IQ or a mental capacity similar to an average child also be accorded similar consideration when it comes to death penalty. A child can, although very young, may have a high IQ - or the maturity of an adult.
As such, based on the fact that Nagaenthran now has been found to have a rather low IQ - hence, more likely that not may not have the required 'criminal responsibity' that justifies him still being hung to death,
As such, this may be a case that warrants the President using her discretionary powers, even if the Courts do not vary the sentence, to use her Pardon powers, to also commute the death sentence to'...order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure...'
Thus, the Singapore Ministry of Foreign Affairs statement that the President of Singapore had responded to the Malaysian King that that Nagaenthran A/L K Dharmalingam has been accorded full due process
under the law may be insufficient. It will be best if there were more detailed reply stating what exactly had been considered by the President - noting that what is considered by the President of Singapore is really very different from what has been considered by the Courts.
Even if the Courts decide on the death penalty, the President still have PARDON POWERS - still have the PRESIDENTIAL PREROGATIVE(a right or privilege exclusive to a particular individual) not to overturn a conviction, but to vary the sentence only - to commute a death sentence to imprisonment, to some other sentence.
In this case, the President ought to '...order that person to be confined in a psychiatric
institution, prison or other suitable place of safe custody during the
President’s pleasure...'
No certainty as to next hearing date, as it was postponed on 10/11/2021 because Nagaenthran contracted covid - and there is a Stay of Execution currently until the court hears and decides
See also
No sentence of death against person below 18 years314.
A sentence of death must not be passed or recorded against an accused convicted of an offence if the court has reason to believe that,
at the time the offence was committed, he was below the age of 18 years, but instead the court must sentence him to life imprisonment.
Execution of Malaysian in Singapore on 10/11/2021 during Covid-19 pandemic VIOLATES family RIGHTS and opportunity to meet for last times?
PM Ismail Sabri ask Singapore for leniency for Malaysian scheduled to be hanged for drug trafficking? Will PH Plus, DAP, PAS, MIC, MCA,...?
Response
To Media Queries On The Appeal Letters From Malaysian Leaders On The
Judicial Execution Of Nagaenthran A/L K Dharmalingam
03 December 2021
In response to media queries, the MFA Spokesperson said:
President Halimah Yacob has replied to His Majesty Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah Ibni Sultan Haji Ahmad Shah Al-Musta’in Billah, the Yang di-Pertuan Agong of Malaysia, to convey that Nagaenthran A/L K Dharmalingam has been accorded full due process under the law.
MINISTRY OF FOREIGN AFFAIRS
SINGAPORE
Lihat Commute mentally challenged Malaysian Nagaenthran’s death sentence to imprisonment. Hearing 30/11/2021 untuk kenyataan media asal dalam Bahasa Inggeris bertarikh 26/11/2021
Courts, if not Singapore President, justly ought to commute mentally challenged Malaysian Nagaenthran’s death sentence to imprisonment
Stay Of Execution Until President Halimah Decides On Pleas For Clemency
Kenyataan Media – 26/11/2021 (Penterjemahan Kasar)
Mahkamah, jika bukan Presiden Singapura, sepatutnya meringankan hukuman mati Nagaenthran Malaysia yang dicabar secara mental kepada penjara
Tahan Pelaksanaan Hukuman Sehingga Presiden Halimah Memutuskan Rayuan Untuk Pengampunan
MADPET (Rakyat Malaysia Menentang Hukuman Mati dan Penyeksaan) memuji keprihatinan Perdana Menteri Malaysia Ismail Sabri dan YDP Agung Malaysia apabila mereka memohon pengampunan dari kerajaan Singapura dan Presiden Singapura Halimah Binte Yacob untuk menyelamatkan nyawa Nagaenthran K Dharmalingam, warga Malaysia, yang telah dijatuhkan hukuman mati kerana pengedaran dadah oleh Mahkamah Singapura.(Malay Mail, 7/11/2021; FMT, 23/11/2021).
MADPET menyeru Ketua Pembangkang dan semua parti politik Malaysia untuk turut merayu demi selamatkan nyawa rakyat Malaysia ini, di mana kegagalan berbuat demikian untuk prihatin untuk seorang rakyat Malaysia, terutamanya seorang yang berisiko dihukum bunuh di luar negara, menunjukkan kurangnya keprihatinan terhadap individu rakyat Malaysia oleh parti-parti politik ini. Ini memberi petanda negatif bahawa ada parti dan ahli politik yang sedang mencari kuasa untuk mewakili rakyat dan/atau untuk mentadbir, tetapi kurang keprihatinan untuk nyawa individu, hak asasi manusia dan keadilan.
Perlu diingat bahawa Malaysia pada masa ini mempunyai moratorium ke atas pelaksanaan hukuman mati, selaras dengan Resolusi Perhimpunan Agung Pertubuhan Bangsa-Bangsa Bersatu, dimana Malaysia turut mengundi menyokong pada 2018, dan sekali lagi pada 2020 menggesa moratorium pelaksanaan hukuman mati sehingga pemansuhan hukuman mati.
Mahkamah Nagaentran K Dharmalingam Tarikh – 30/11/2021
Nagaenthran K Dharmalingam, yang dijadualkan digantung hingga mati pada 10/11/2021, berjaya mendapatkan penangguhan pelaksanaan sehingga Mahkamah Rayuan mendengar dan memutuskan permohonan yang kini belum selesai didengar di hadapan mahkamah ini. Kes itu, yang dijadualkan dibicarakan pada 10/11/2021, kemudian ditangguhkan lagi apabila Nagaentran dijangkiti Covid-19.
Baru-baru ini telah didedahkan bahawa Mahkamah Singapura kini telah menjadualkan semula pendengaran pada 30/11/2021(Malaysian Insight, 25/11/2021). Dilaporkan bahawa rayuan Nagaenthran Dharmalingam terhadap hukuman matinya akan didengar di Mahkamah Rayuan Singapura pada 30 November, kata keluarganya, selepas menerima maklumat daripada peguam itu.
Nagaentran telah ditangkap pada 2009 dan dijatuhi hukuman mati pada 2011 di bawah Akta Penyalahgunaan Dadah kerana mengimport 42.7g diamorphine secara haram. Kes ini telah mencetuskan bantahan orang ramai dengan perhatian khusus terhadap IQnya yang lebih rendah daripada purata iaitu 69 dan isu kesihatan mental yang lain.
Walaupun apa yang diputuskan oleh Mahkamah, Presiden mempunyai kuasa pengampunan/pengampunan
Tidak kira sama ada Mahkamah mengekalkan hukuman mati, Presiden Singapura masih mempunyai kuasa untuk memberikan pengampunan, dan meringankan hukuman mati kepada penjara, dan dari segi sejarah, ini telah berlaku beberapa kali di Singapura dalam, antara lain, dalam kes berikut:-
a) 1978: Mohamad Kunjo s/o Ramalan, hukuman mati kerana pembunuhan ditukar kepada penjara seumur hidup oleh Presiden Benjamin Sheares ketika itu;
b) 1980: Bobby Chung Hua Watt, hukuman mati kerana membunuh telah ditukar kepada penjara seumur hidup oleh Presiden Benjamin Sheares ketika itu;
c) 1983: Siti Aminah binte Jaffar, hukuman mati kerana pengedaran dadah ditukar kepada penjara seumur hidup oleh kemudian Presiden Devan Nair;
d) 1993: Sim Ah Cheoh, hukuman mati kerana pengedaran dadah pada tahun 1985 telah diringankan dan dia dibebaskan pada 16 Februari 1995 oleh Presiden Wee Kim Wee ketika itu;
e) 1992: Koh Swee Beng, hukuman mati kerana membunuh telah ditukar kepada penjara seumur hidup oleh Presiden Wee Kim Wee ketika itu; dan
f) 1998: Mathavakannan Kalimuthu, hukuman mati kerana membunuh telah ditukar kepada penjara seumur hidup oleh Presiden Ong Teng Cheong ketika itu.
Oleh itu, MADPET memohon pengampunan oleh Presiden Halimah Binte Yacob dalam kes Nagaenthran K Dharmalingam ini, yang baru-baru ini telah ditunjukkan sebagai seorang yang cacat mental dan/atau intelektual – di mana ini adalah satu ketidakadilan yang besar untuk terus melaksanakan tindakan mengantung sampai mati seorang dala, keadaan sebegini.
Perlu perintah Menahan Pelaksanaan Hukuman Mati Sehingga Presiden Halimah Membuat keputusan berkenaan permohonan Pengampunan
MADPET mengenang kembali kes gantung sampai mati seorang warganegara Malaysia Jabing Kho, 32, yang dihukum gantung pada hari yang sama, beberapa jam selepas Mahkamah Rayuan menolak permohonan Mahkamah beliau. (Straits Times, 20/5/2016), dan berharap perkara yang sama tidak berlaku dengan Nagaentran.
Masa mesti diberikan, sebagai tanda hormat kepada Presiden Singapura untuk mempertimbangkan banyak rayuan untuk pengampunan, dan oleh itu MADPET menggesa supaya hukuman mati dihentikan (ditunda) sehingga Presiden Halimah memutuskan sama ada memberikan pengampunan dan meringankan hukuman mati atau tidak.
MADPET mengulangi gesaannya untuk pemansuhan hukuman mati, dan moratorium pelaksanaan hukuman gantung sementara menunggu pemansuhan hukuman mati.
Charles Hector
Untuk dan bagi pihak MADPET(Malaysian Against Death Penalty and Torture)
****
PM: Close relationship between Malaysia, Singapore of immense importance to both countries
.JPG "Singapore’s Prime Minister Lee Hsien Loong and Malaysia’s Prime Minister Datuk Seri Ismail Sabri Yaakob bump fists during the launch of the land Vaccinated Travel Lane between both countries in Singapore November 29, 2021. — Reuters pic")
SINGAPORE, Nov 29 — As close, immediate neighbours the deep relationship between Malaysia and Singapore is of immense importance to both sides, said Malaysian Prime Minister Datuk Seri Ismail Sabri Yaakob.
“More active multi-level engagements and a much stronger cooperation are certainly the way forward for our two countries,” said Ismail Sabri at a joint press conference with his Singapore counterpart Lee Hsien Loong here today. “This is crucial also for our cooperation in undertaking effective and meaningful (economic) recovery efforts so that our countries will come out stronger following the devastating impact of the Covid-19 pandemic.”
The Malaysian premier is on an official visit to Singapore at the invitation of Lee.
He noted that today both countries marked another significant milestone in their cooperation with the reopening of their borders through the launching of the land Vaccinated Travel Lane (VTL-Land).
Ismail Sabri had this morning crossed Tambak Johor or the Johor Causeway and was received by the Singapore Prime Minister at the Woodlands Checkpoint.
“This in itself is very significant as we have also launched VTL-Air. This is part of the gradual reopening of our borders to facilitate travel between the two countries,” the Malaysian premier said.
Ismail Sabri said he had also discussed with his counterpart additional measures that both will undertake with regard to cross-border travels between Malaysia and Singapore.
Both of them have agreed to include all categories of travellers for the VTL-Land, subject to the health requirements determined by both countries.
They also agreed to expand the VTL-land to include additional bus service routes through the Second Link, trains operated by Keretapi Tanah Melayu (KTM), and gradually to include personal vehicles such as motorbikes and cars.
“We acknowledge that the reopening of borders is important to reactivate cross-border social and economic activities that will benefit the people of both countries,” Ismail Sabri said. “We hope that by doing this, it would provide the opportunity for more people on both sides of the Causeway who have been away from their families due to the Covid-19 pandemic, to be reunited with their loved ones — which we know the people of both Malaysia and Singapore have long awaited for.”
Expanding cross-border movement by air to Penang, Langkawi, Kuching and Kota Kinabalu
Both of them also discussed the cross-border travel by air between Singapore and destinations in Malaysia like Penang, Langkawi, Kuching, and Kota Kinabalu.
“Both of us decided that our officials should start to draw up measures for this purpose,” he said.
Ismail Sabri and Lee had a four-eyed meeting at the Istana in the afternoon.
During the discussion, Ismail Sabri said they also agreed on the need to resume work on their existing bilateral mechanisms.
“This includes the 10th Annual Leaders’ Retreat, which we have not been able to convene during the past two years due to the pandemic,” he added. “Insya Allah, we will have our Leaders’ Retreat in the first quarter of next year and I look forward to coming back to Singapore.”
Ismail Sabri revealed that he and Lee also agreed that the work on other mechanisms at the ministerial and official levels should resume as soon as possible.
“This is important to ensure that our multi-faceted cooperation and outstanding issues are kept on the right track with a positive momentum going forward. Subsequently, PM Lee and I will discuss the progress of these bilateral mechanisms at our Leaders’ Retreat,” he said.
Both leaders also discussed the situation in Myanmar.
“We agreed that it is crucial for Asean to continue playing a positive and constructive role in facilitating a durable and peaceful solution in the interest of Myanmar and the larger interest of the Asean Community.
“We share the same view that it is crucial for Myanmar to cooperate in the implementation of the Five-Point Consensus, and the necessity to preserve the credibility and integrity of Asean.
“We look forward to the return to democracy in Myanmar and the
participation of Myanmar at the highest level at future summits,” Ismail
Sabri said. — Bernama - Malay Mail, 29/11/2021
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