Recap of Nagen’s Court of Appeal Hearing

What was Nagen’s appeal all about?

His defence counsel asked for an urgent, independent psychiatric assessment and full neurocognitive test profile to evaluate his competency to be executed, and for necessary treatment to be provided.

They asked for enough time to find willing and able psychiatrists to undertake this assessment, and for a panel of psychiatric experts to be appointed by the court to provide a conjoined assessment, given that the determination of intellectual functioning is not straightforward.

They asked for all this on the basis of psychiatric reports by various doctors attesting to Nagen’s intellectual and psychosocial disabilities, all calling for independent assessment to be done.

Chief Justice (CJ) Menon responded that there was no evidentiary basis to move them to grant leave for independent assessment. He said the doctors’ reports did not rely on independent, qualified assessment and were based on the “unqualified opinions” of Nagen’s brother and lawyer M Ravi.

Nagen’s brother, Navin, and lawyer M Ravi, had documented their observations of Nagen’s behaviour and their concerns that his mental state had deteriorated significantly. The doctors’ reports were based on these observations.

Without the court’s permission, these doctors (or any others that his family/lawyers identify) cannot assess Nagen. The defense team was hence asking for permission to carry out independent assessment that could determine Nagen’s state.

But the judges said they needed qualified evidence of Nagen’s deterioriation to authorise such an assessment.

Nagen’s lawyer also asked for the prison’s medical and psychiatric records to be provided to Nagen, and then with his consent, to his family and lawyers. They asked the AGC to confirm if they were in possession of these reports. These points were not addressed directly.

CJ Menon repeatedly referred to the prison’s psych assessments as “objective medical records”, and said that Nagen’s lawyers not consenting to these records being provided to the court was a “suppression” of objective evidence.

To date, Nagen, his family and his lawyers have not seen these records.

CJ Menon said that the best, objective evidence to determine if there’s a real issue with Nagen’s mental state is the prison’s records. Nagen’s lawyer, Violet Netto, repeated that she wants her client to be examined independently, as recommended by psychiatrists.

Singapore’s approach to international law

Netto then argued that executing a person with disabilities is a violation of Singapore’s treaty obligations under the Convention of the Rights of Persons with Disabilities (to which SG is a signatory) and other international treaties, statements, and customary international law

She referred to UN special rapporteurs’ reports on Singapore’s execution of persons who are mentally ill dating back to 2003, and a 2012 report that Singapore’s execution of persons with mental disabilities is in violation of international law.

The judge’s response to this was that Singapore follows the dualist approach to international law. This means that unless specific legislation is passed in parliament to implement an international treaty obligation, it doesn’t have the force of law within Singapore.

The judge said that even if they accept that there is a violation of treaty obligations, they cannot make a ruling on that basis because they are dealing with the mandatory death penalty.

He said that while the executive (government) signs treaties, the legislature (parliament) is responsible for passing laws. And if the court accepts treaty obligations as basis for court proceedings and rulings, it is tantamount to allowing the executive to make laws.

This, crucially, brings up the question of why there aren’t parliamentary processes in place to make sure that treaty obligations are brought up in parliament so as to be written into domestic laws.

If treaty obligations don’t have the force of law, and there also aren’t processes in place to ensure that they are discussed in parliament and legislation to honour these obligations is passed, what is the meaning of signing onto these treaties?

The public prosecutor said that the defense’s “last-minute” application was a “cynical attempt to abuse the court”.

Judge Phang asked if the prosecution would object to the request for independent assessment. The DPP objected, asserting that there was no legal evidence to substantiate the case that Nagen has deteriorated and is not competent for execution.

The public prosecutor said that the defense’s “last-minute” application was a “cynical attempt to abuse the court”.

The DPP also said that it was the prison’s “objective medical evidence” that would allow the court to determine the true nature of Nagen’s status.

Domestic laws don’t protect someone with an ‘abnormality of mind’ from being executed

The final point that the judges and the prosecution agreed on, and which is perhaps the most significant one to come out of this hearing, is that domestic laws don’t protect someone with an ‘abnormality of mind’ from being executed.

CJ Menon said that the statutory default is capital punishment in all circumstances, but for exception to be made, it has to be subject to specific provisions under Misuse of Drugs Act, which don’t cover abnormality of mind at the point of execution.

CJ asked the prosecutor – in the hypothetical case that a prisoner is coming up for execution and it’s not controversial that he’s suffered a deterioration in mental capacity, what would be your position? Would you say it’s a matter for clemency, rather than judicial reprieve?

Prosecution replied that there is nothing in our books dealing specifically with this situation, to suggest that the mental state of an offender prior to execution is a legal basis for any change to death sentence imposed.

The prosecution contrasted this with how in the case of judicial caning, prior to the sentence being carried out, a medical officer can find that the prisoner is unfit for caning and he can be brought back to court for resentencing. This is provided for in the law.

Therefore, the prosecution said, if it is the case that parliament intended it (to evaluate competency at the point of execution), the law would’ve been adjusted to say so.

The DPP agreed with the judge that it is a matter for clemency, saying that there is no legal right on the basis of abnormality of mind at the point of execution.

The DPP said there are carve outs provided for when exceptions can be made to the mandatory death penalty, and when a situation is not covered in the carve out, the court cannot take the additional step to carve it out.

CJ Menon asked Nagen’s lawyer, Netto, if she had anything to say in response to this, and she concluded by asking for judicial mercy in Nagen’s case.

What are the next steps?

Nagen’s hearing concluded with judgment being reserved. The judges said that they will “come back soon”.

Court proceedings have made it clear that we need to focus our efforts on getting Nagen a presidential clemency.

You can help by:

• Writing to the Prime Minister’s Office at pmo_hq@pmo.gov.sg
• Writing to President Halimah Yacob at halimah_yacob@istana.gov.sg
• Hand delivering a letter to the Istana: You can do so by entering the rear gate of the Istana along Cavenagh Road and inform the guards there of your intention. They will lead you to a mail room to drop off your petition. It is a 20-minute walk from Dhoby Ghaut MRT station. Please DM us on Instagram or contact us at transformjustice.sg@gmail.com if you plan to go down and want to coordinate with us.