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In 2009, then 21-year-old Naga was arrested upon entry in Singapore for carrying 43 grams of heroin. He told authorities that a man (“King”) to whom he owed money had strapped a “company product” to his thigh and asked him to deliver it to his brother.
Naga was convicted for drug trafficking in 2010 and sentenced to death under Singapore’s Misuse of Drugs Act (“MDA”). Relying heavily on the official statement recorded by Central Narcotics Bureau (“CNB”) officers in which Naga apparently identified the bundle as heroin, the trial High Court judge found that Naga had failed to rebut a presumption under the MDA that a person in possession of a controlled drug is presumed to know the nature of that drug.
Both during the initial trial and in an appeal the following year, Naga explained that he was under duress due to threats from King and did not know the package was heroin. However, neither court believed that he had a credible threat against him and found it suspicious that he changed his story about whether he knew it was heroin from the time the CNM officers interrogated him to the trial, even though Naga claimed the officers coerced his previous admission.
In 2013, Naga appealed again based on Singapore’s amended death penalty laws which allow for convicted “drug mules” suffering from diminished responsibility to be removed from death row. However, both the trial High Court judge and Court of Appeals found that Naga’s mental illnesses did not qualify him for the diminished responsibility exception, since he knew he would get money for delivering the package.
On October 26, 2021, after nearly a decade on death row, Naga’s family was notified that the execution was set for November 10. From there, Naga’s case gained international attention through online petitions, letters from politicians to celebrities and businessmen asking for the execution to be canceled, and an urgent appeal from four UN Special Rapporteurs. As media pressure increased on Singapore, the Ministry of Home Affairs released a statement arguing that Naga’s “mental responsibility…was not substantially impaired.”
Two days before the scheduled execution, the High Court dismissed a last constitutional challenge from Naga’s lawyer, only allowing for an appeal the very next day. Naga’s lawyer criticized the decision for being a “blatant denial of due process… No criminal justice system in any country which upholds the rule of law, rushes through criminal appeals in this manner; and all the more so in a death penalty case.”
The next day, the Court of Appeals again stayed his execution because Naga tested positive for COVID-19 and therefore could not appear before the court. The last appeal hearing before execution was set again for November 30, 2020 after he completed COVID treatment, but it has been again postponed several times but is now set for this Tuesday, March 1st. Although advocates hope that the appeal will be successful, Singapore’s attorney general office reported that the courts are “not open to challenge the court’s findings pertaining to his mental responsibility, whether directly or indirectly, in yet another attempt to revisit and unravel the finality of those findings.” This unfortunately suggests that the Court of Appeals will not revisit the finding that he does not suffer from diminished responsibility when it hears the appeal on Tuesday.
Much of the international attention on the illegality of the death penalty in Naga’s case has understandably focused on his intellectual disability. Indeed, Naga’s family reported that he is “very disoriented,” takes three-hour baths each day, stands all day and does not speak to anyone else, and talks about coming home, apparently unaware that he will be executed soon. His lawyer also commented that “He’s got no real clue of what is going to happen to him.” His intellectual disability both at the time he was arrested and now make his execution a violation of international law, as his mental disability impacts his ability to make informed decisions.
Under Singapore’s international human rights commitments, Naga cannot be executed. Human rights advocates around the world have signaled that his execution violates the Convention on the Rights of Persons with Disabilities based on the state “duty to refrain from imposing the death penalty on persons with intellectual or psychosocial disability” (further emphasized by UN human rights experts in other cases) and the right to life in Article 6(1) of the International Convention on Civil and Political Rights (“ICCPR”), as explained by the UN Commission on Human Rights in 2003. Although Singapore has not ratified the ICCPR, this understanding contributes towards the growing trend in customary international law not to execute those who are “insane.”
Although arguments around Naga’s mental capacity are important, much of the international advocacy surrounding his case fails to address one crucial point: his position as a victim of human trafficking. Combined with his mental state during the time of the arrest and the subsequent trial, more weight should be given to the ways in which Naga was exploited to be a “drug mule.” Under international law’s nonpunishment principle, victims of trafficking should not be punished – let alone executed – for their actions while they were being exploited, even if those actions were crimes.
In his trial, Naga claimed that King threatened to “finish” and “kill” his girlfriend Shalini if Naga did not deliver the package. Naga had allegedly borrowed money from King to pay for his father’s heart surgery, and told CNB officers that he was smuggling the drugs to pay the debt under alleged “vulgarities and violence” during their strip search. The High Court judge found these duress claims unpersuasive, as (1) he did not relay that defense to the CNB officers upon arrest, and (2) King was not the type of person to “engage in illicit activities” so there was no reasonable apprehension that Shalini faced instant death. The Court of Appeals, too, found that Naga was not “labouring under a threat from King” and simply “committed the offence because he needed money.”
Singapore’s analysis failed to consider whether Naga was a victim of human trafficking under the international definition it accepted in 2015 when it ratified the Trafficking in Persons Protocol and amended its death penalty laws. The Trafficking in Persons Protocol makes it clear that consent by the victim is irrelevant when human trafficking has occurred. Trafficking has three elements:
(i) an “action”
(ii) a ‘means’ by which that action is achieved, and
(iii) a “purpose” of exploitation.
In this case, Naga was used by King to
(i) transport drugs
(ii) by threat of force, abuse of a position of vulnerability (Naga owed King money and his girlfriend was threatened), and the giving of payments to achieve consent (King offered him an additional $500),
(iii) for the purpose of forced labor (as Naga did not voluntarily offer to transport the bundle).
Since these three elements are met, whether Naga consented or not is irrelevant, as he is a victim of human trafficking.
Victims of human trafficking “cease to be autonomous individuals because they are effectively acting under the control of others” and there is a growing international consensus that they are not to be punished for crimes that they commit as victims. This nonpunishment principle has even been understood to extend to potential victims of human trafficking by the European Court of Human Rights. Although not binding on Singapore, this decision has been shaping the global understanding of how the nonpunishment principle should be applied.
Naga’s story underlines the importance of understanding the overlapping factors at play in a person’s life at the moment they “commit a crime.” By endeavoring to create black and white binaries in which a crime is and is not committed, the law does not reflect the lived reality of people like Naga: a man with an intellectual disability taken advantage of and threatened, but still punished to the maximum extent of the law. As the world watches what happens to Naga on Tuesday, it must remember the millions of others stuck in trafficking and forced to commit crimes around the world.
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