[shadowsun7]

The problem is that Dr Ung walks back certain elements of his report, as is summarised in the final judgment:

> the High Court found that the appellant had borderline intellectual functioning; not that he was suffering from mild intellectual disability. This was conceded by the appellant’s own psychiatrist, Dr Ung Eng Khean (“Dr Ung”). Further, Dr Ung also accepted (see Nagaenthran (CM) at [76]) that borderline intellectual functioning is not a mental “disorder” as set out in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association Publishing, 5th Ed, 2013). Further, in Nagaenthran (CA) (at [34]–[41]), we held that even assuming the appellant suffered from an abnormality of mind, any such abnormality did not substantially impair his mental responsibility, because he did not lose his ability to tell right from wrong.

I then think Nagaenthran's lawyer made a grievous concession:

> [The appellant’s counsel, Mr Thuraisingam] eventually conceded that this was a case of a poor assessment of the risks on the appellant’s part. But, as the Minister stated in Singapore Parliamentary Debates, Official Reports (14 November 2012) vol 89 … ‘[g]enuine cases of mental disability are recognised [under s 33B(3)(b) of the MDA], while, errors of judgment will not afford a defence’. To put it quite bluntly, this was the working of a criminal mind, weighing the risks and countervailing benefits associated with the criminal conduct in question. The appellant in the end took a calculated risk which, contrary to his expectations, materialised. Even if we accepted that his ability to assess risk was impaired, on no basis could this amount to an impairment of his mental responsibility for his acts. He fully knew and intended to act as he did. His alleged deficiency in assessing risks might have made him more prone to engage in risky behaviour; that, however, does not in any way diminish his culpability.

I'm not sure if your reading of 'intellectually disabled man' aligns with the court's reading, and I don't think it's as clear cut as "oh, Singapore executed a man with no mental responsibility over what he is doing, according to the rule of law there, and so LHL is evil"

> Malaysia currently has a moratorium on the death penalty, due to serious national debate (in which the government has been an active participant) on whether to abolish it, or at least significantly narrow its scope

You're right on the moratorium. 'Due to healthy debate' is a rather charitable reading, though. There's a depressing account of the entire moratorium in Chapter 45, 'Law Reform', from former AG Tommy Thomas's autobiography My Story: Justice in the Wilderness, which lays out the background machinations of the former administration's attempt to repeal the death penalty, which was ultimately a failure. The moratorium was implemented by the Prisons Board under the instructions of acting AG Engku Nor Faizah Engku Atek, and supported by Thomas. More surprisingly, (if Thomas is to be believed) the Prisons Board themselves had no objection to abolishing the death penalty! I won't try to summarise the complex political machinations here, but saying that 'strong National debate' is a factor for the moratorium would not be Tommy Thomas's reading of the situation. I don't expect the moratorium to last — though I pray that it will. But it's difficult to say which side might use it as a political football given the current state of Malaysian politics.

My overall point: using the moratorium on the death penalty as an example of Malaysia's 'enlightened approach' vs Singapore is grossly mistaken; it's more accurate to describe it as a political football used to score points against one's opponents (made complicated by the fact that there is quiet support for the penalty from both the conservative Malay power base as well as the conservative Chinese political power base, on both sides of the parliament, as Thomas found out the hard way). I say that the chapter is depressing because 'national debate' seems to have very little to do with it.

[skissane]

I disagree with what you say on the intellectual disability issue, but don't have the time or motivation right now to respond in detail. I did want to comment on one thing you said though:

> More surprisingly, (if Thomas is to be believed) the Prisons Board themselves had no objection to abolishing the death penalty!

That's actually not surprising at all. If you look at the experience in most European countries – and also Australia, Canada and New Zealand – often the prison bureaucracy was a strong proponent of abolition. The staff of prisons often find they dislike killing prisoners, it eats at their conscience, and even many who support the death penalty turn into opponents when it becomes their job to play part in implementing it. It is easy to support killing people when they are nameless abstractions such as "murderers" or "terrorists" or "drug traffickers", much harder when they are specific individuals with names and faces and personalities, whom you see and talk to every day. Even if the executives aren't seeing the condemned every day, the perspective of their indirect reports who do often trickles up to them (and some of them will have risen through the ranks from that position). To some extent, part of the reason why the US has kept the death penalty while the UK/Canada/Australia/NZ/Ireland/etc have abolished it, is that in the Commonwealth governments have historically tended to be much more responsive to the demands and wishes of bureaucratic elites than in the US, especially when those demands/wishes conflict with the majority of popular opinion.

The European and Commonwealth model of abolition has generally been that governments need to lead public opinion rather than waiting for it. The former Malaysian government was attempting the same approach, even if it didn't work out quite as well for them – maybe unsurprising given the significant political and cultural differences between Malaysia and those other countries in which it has been quite successful – but I'm not sure if they should be criticised for trying. (Maybe moving too fast on this issue hastened their demise, and they should have waited to act until their position was more secure; but maybe their demise was inevitable no matter what they did on this issue.) If the Singaporean government tried to lead public opinion toward abolition, it is possible they might have much more success than was had in Malaysia – but they do not appear to be interested in trying.