Activists protested against the hanging of Nagaenthran Dharmalingam (Image: EPA/Fazry Ismail)

In Australia the fight is on to increase the minimum age of criminal responsibility to 14 from its current Dickensian age of 10.

Meanwhile, Singapore just hanged a man whose mental age was about 10.

Nagaenthran Dharmalingam, a Malaysian national, was caught entering Singapore in 2009 with 42.72 grams of heroin strapped to his body. Under Singapore’s extremely strict drug trafficking laws, that qualified him for the death penalty. After all appeals had failed and clemency was refused, he was executed.

Dharmalingam’s IQ had been measured at 69. On the IQ scale, 100 marks average intelligence. With an IQ of 69, a person will be in the bottom 2% of the population for intelligence and will be considered to have “mental retardation” as it used to be called, or what we’d now identify as severe intellectual disability.

As a general rule, a person with an IQ of Dharmalingam’s level is likely to have the cognitive reasoning ability of an average child who is aged 10 at most. That is to say he was, in intelligence terms, a child. The likelihood that he had any real idea what he was doing when he tried to carry a tiny package of drugs across the border is negligibly low.

For Singapore’s legal system, none of that mattered, despite protests from every human rights organisation in the world. The courts rejected pleas that Dharmalingam suffered a mental disability, ruling that he met the standard for criminal responsibility and knew what he was doing.

Singapore’s case was laid out in a formal response to an urgent appeal from the United Nations bodies that advocate against arbitrary executions and cruel or inhuman treatment, and for people with disabilities.

Specifically on Dharmalingam’s case, Singapore pointed out that the 42 grams of heroin he was carrying is still almost three times the quantity that triggers the death penalty. Its courts had found he was “of borderline intellectual functioning, but did not suffer from mild intellectual disability”.

International law, Singapore contended, does not prohibit the death penalty. That’s true, mainly because most of the most powerful members of the UN still employ capital punishment. For Singapore, it remains what it considers to be a critical element of its criminal justice infrastructure. That is also true, in the sense that you’d have to have the mental age of a 10-year-old to try to import drugs into that country because you’ll almost certainly get caught and then pretty much definitely be executed. It is well known and, at a pragmatic level, it works.

That doesn’t answer the ethical question of whether capital punishment is ever justified, nor the more nuanced question: if it is, then for whom?

I am squarely in the “no” camp for the death penalty, under all circumstances, because I do not believe that an ethical justification can ever be found for taking another person’s life against their will. Nor, I am pleased to say, do most Australians.

It is different elsewhere. As in America, there is strong public support among Singapore’s population for capital punishment as a general concept (about 70%), but that number falls substantially once people are asked about specific case examples. 

The National University of Singapore, which conducted the most recent research, noted: “Singaporeans apparently favoured the death penalty despite admitting that they knew very little about it, were not interested in it and could not give an accurate estimate of the number of persons executed.”

The report’s conclusion was that it is unsafe for the government to continue insisting that it needs to retain the death penalty “because the public supports it”. Studies in the US have produced similar results. It’s all unsurprising: “tough on crime” sentiment is always many times stronger in the abstract than when its real-life consequences come into focus.

On the more granular question — if we execute people, where should the line be drawn — Singapore would say that its stance is consistent with human rights protections. It does not execute juveniles, or people with mental disability. It’s just that Dharmalingam didn’t meet that test.

For me, the fact that one has to even ask such a question is grotesque. Dharmalingam was, in theory, one expert report away from being allowed to live. 

The history books overflow with case studies of children, and adults with children’s brains, who were put to death for crimes they either didn’t commit or couldn’t understand. Drawing lines, on one side of which is the extinguishment of life, is beyond human capacity and should be beyond our presumption of right.

I expect that Dharmalingam’s tragic death will have one positive effect, in that it will be cited from now on as proof of the ethical point which, I hope, will one day motivate Singapore to abolish capital punishment.