On access to justice: What are procedural accommodations?

Over the weekend I sent out a special issue on the death penalty and the state's recent attempts to send three men to the gallows. Since I sent that out, Rosman bin Abdullah has also been granted a stay of execution pending a court hearing at the end of this month.

This means that next week we will see four death row prisoners' applications/appeals heard in court, including that of Nagaenthran K Dharmalingam, whose case attracted so much attention last year. I'm sending out this special issue in the run-up to these nerve-wrecking court hearings.

Towards the end of last year, the case of Nagaenthran K Dharmalingam — a Malaysian man on death row in Singapore — triggered a flurry of international media coverage and anti-death penalty activism on both sides of the Causeway. Nagen’s case attracted a lot of support in a very short amount of time, and many expressed horror that Singapore would seek to execute someone with a far-below-average IQ of 69 (one of the criteria for determining intellectual disability), as well as attention deficit hyperactivity disorder (ADHD) and other impairments related to his executive functioning.

Human rights experts and groups have urged Singapore not to execute a person with psychosocial disabilities. Nagen’s family and lawyers have also indicated extreme concern about his current mental state, arguing that he isn’t in a state to properly comprehend the gravity of his death sentence, and should not be executed.

While the focus has largely been placed upon Nagen’s disabilities and his “fitness to execute”, there’s another aspect of his case that hasn’t received as much public attention. It also has repercussions beyond Nagen’s individual circumstances; other prisoners on death row have also been assessed to have low IQ scores and other conditions that point to psychosocial disabilities. Ultimately, the way the investigation and court processes were conducted for someone like Nagen highlights the crucial issue of access to justice for persons with disabilities in Singapore.

One thing we don't focus on as much is procedural fairness.

When we talk about equality before the law, we often focus on prosecutorial discretion and sentencing in the courts, examining whether different people are subject to the same charges and penalties for similar offences. It offends us, for instance, when we feel like someone got off more lightly than others because of their wealth or privilege — like when young men are given slaps on the wrist for sexual harassment because they have “promising futures”. But one thing we don’t focus on as much is procedural fairness, and whether the entire process, from arrest through investigation to trials and sentencing, has been put together to ensure fairness and equal access to justice for whoever is in conflict with the law.

Access to justice for persons with disabilities

While working on the #SaveNagaenthran campaign, I started learning more about access to justice for persons with disabilities. There have been significant developments and shifts in collective knowledge of best practices in recent years, with a major document being the International Principles and Guidelines on Access to Justice for Persons with Disabilities, published by the United Nations in August 2020. These guidelines were based on the rights and principles stated within the UN Convention on the Rights of Persons with Disabilities, which Singapore signed on 30 November 2012 and ratified on 18 July 2013.

Central to the International Principles and Guidelines is the principle that everyone has the right to equality before the law and equal protection under the law, on an equal basis with others. This comes with the right to meaningful participation, and the right to be heard. It’s a shift from previous assumptions and attitudes toward persons with disabilities, in which their autonomy and agency was systematically ignored. How often have you heard, in the media or in daily life, that someone with a mental illness or disability was deemed to be “unfit to stand trial” or had no capacity to make decisions for themselves? The International Principles urge states to break away from such approaches, and to take steps to implement practices that would allow persons with disabilities to participate in the legal process. The key is to move away from mental capacity assessments and towards a social model approach to defining disability, focusing not on a binary of whether someone has been medically diagnosed or not, but on the barriers that they might encounter when interacting with their social environment.

The key is to move away from mental capacity assessments and towards a social model approach to defining disability, focusing not on whether someone has been medically diagnosed, but on the barriers they might encounter when interacting with their social environment.

Principle 3 of the International Principles and Guidelines states that “Persons with disabilities, including children with disabilities, have the right to appropriate procedural accommodations.” It goes on to say that “States shall provide gender and age-appropriate individualised procedural accommodations for persons with disabilities. They encompass all the necessary and appropriate modifications and adjustments needed in a particular case, including intermediaries or facilitators, procedural adjustments and modifications, adjustments to the environment and communication support, to ensure access to justice for persons with disabilities.”

What does this actually look like?

To understand what such procedural accommodations can look like, I reached out to Víctor Lizama, who works with the Mexican NGO Documenta on matters of justice facilitation and implementing such accommodations, and who identifies as a person with a psychosocial disability. We were joined by Luis Arroyo from the online publication Mad in Mexico, who very kindly translated between English and Spanish, and by Emmy Charissa, a Singaporean activist working on the rights of persons with disabilities.

The fundamental purpose of procedural accommodations, Víctor said, was to eliminate, as much as possible, the barriers that prevent persons with disabilities from exercising their rights in legal processes. Documenta has put this into practice, establishing an agreement in 2017 with the Mexico City justice system that allows their involvement every time someone with disabilities comes into contact with the system.

“Whenever there’s a trial that involves a person with disabilities, the justice system calls Documenta and asks them for a justice facilitator to explore the situation, propose accommodations, and implement these accommodations,” Víctor explained.

“The facilitator goes through the case with the person, working with them side-by-side, and working with the legal system to make sure the accommodations are implemented in the right way.”

This often involves working out effective ways to facilitate communication, allowing the individual to comprehend what’s happening and to express what they’re thinking in that moment. Other accommodations could also do with providing more breaks, or shortening the length of court hearings or sessions, so that people can rest and regroup before continuing to participate. Changes can also be made to regular courtroom practices, such as changing seating positions so that the justice facilitator can sit next to the person they’re working with, or getting judges to take off their usual robes, or not bang their gavels so loudly.

The point of such accommodations is to provide access to justice, through participation in the process, so that people can make their own decisions instead of having others speak for them. The justice facilitator needs to be impartial, regardless of whether the person they’re working with is a victim, a witness about to testify, or the accused. Rather than basing these considerations on medical diagnosis, each person needs to be approached based on their own circumstances, and adjustments tailored to their individual needs, respecting their will and preferences.

The fact that justice facilitators are present can already make a big difference. “Historically and socially, persons with disabilities have been excluded and their rights ignored, so when they know that someone is there by their side, they feel like they have a chance to participate and feel empowered,” Víctor said.

It’s not an easy job, though. Documenta’s justice facilitators often have to deal with a lack of knowledge and sensitivity from administrators who aren’t familiar with the rights of persons with disabilities. Then there are personal assumptions and attitudes that need to be taken into account. Luis, who has his own prior experience as a justice facilitator, learnt that the process requires the facilitator themselves to process their own emotions and learn to be more empathetic. Víctor also highlighted that if the justice facilitator isn’t well-prepared or equipped with the right tools and skills, they might end up doing more harm than good.

“What you have to keep in mind is that you’re not their legal defender, not their psychologist, not their social worker. You are their justice facilitator.”

Luis has a background in psychology, but actually found that to be a barrier to being a justice facilitator. “What they taught us about disability [in university] was sometimes the opposite of what you want to do as a facilitator,” he said.

“I had to focus on what I had to do, what that person needs from me. What they need to participate, to feel secure in that scenario so they have the chance to express themselves,” he added.

“What you have to keep in mind is that you’re not their legal defender, not their psychologist, not their social worker. You are their justice facilitator.”

While all this is important work, Víctor made it clear that they still have a long way to go. Right now, justice facilitators are called by the judge presiding over that particular case, which means that the individual might only get a justice facilitator at the trial stage — ideally, they should have a facilitator from the point of arrest, so that accommodations and adjustments can be made from the very beginning and they can be accompanied throughout the entire process. Víctor also pointed out that it would be much better if persons with disabilities were able to exercise their own agency in asking for a justice facilitator, rather than having it left up to the judge.

That’s what’s happening in Mexico City, but what about Singapore?

In 2015, the Singapore government introduced the Appropriate Adult Scheme for Persons with Mental Disabilities (AAPMD), where trained volunteers accompany people being interviewed by the police, whether as suspect, witness, of victim. I reached out to MINDS, an NGO that works with people with intellectual disabilities, to ask them more about the scheme.

In an email response from Sophia Lim, MINDS’ Head of Strategic Communications and Engagement, the scheme was described as providing “assistance to persons with intellectual disabilities, autism spectrum disorders or mental health issues, who have to undergo interviews with Investigation Officers at law enforcement agencies through Appropriate Adults (AAs).”

Lim added: “AAs are trained volunteers whose role, as a neutral party, is to provide support and serve as a bridge between the defendants, victims or witnesses and the Investigation Officer, to enable effective communication among parties during the investigation process. AAs do not provide legal advice.”

While AAs also work to facilitate communication, based on what I’ve read online and what MINDS said in their email, it doesn’t appear as if such facilitation is available to persons with disabilities outside of police interrogations. Documenta might say that there’s a lot more that needs to be done in Mexico City, but persons with disabilities in Singapore don’t even have access to anything like the justice facilitators they provide there.

How does this relate to death row prisoners?

The concept of procedural accommodations, for persons with disabilities to access justice on an equal basis with others, is relatively new. The International Principles were published in 2020, while Documenta’s trail-blazing work only began in Mexico City in 2017. All this took place after Nagen was arrested, charged and convicted, as did Singapore’s introduction of the AAPMD scheme. According to this page on the Ministry of Social and Family Development’s website, it was only in 2013 that the Singapore Police Force started training officers to identify suspects and witnesses with mental disabilities.

It would therefore be easy for the Singapore government to say that Nagen’s case was handled by the book, and that Singapore can’t be accused of not providing him with procedural accommodations that didn’t exist at the time of his arrest, investigation and trial. Be that as it may, local and international developments show how much we’ve learnt about providing equal access to justice since Nagen’s arrest — lessons and measures that he’d not been able to benefit from. Such a scenario is unavoidable; much as we might wish to do so, we can’t turn the clock back and retrospectively apply reforms to processes that have already taken place. But the fact that Nagen is facing a death sentence should give us pause. Is it really right for us to hang him, knowing that, at the time of his arrest, investigation and trial, he hadn’t had the support and facilitation we now know he should have had to ensure that he could access justice on an equal basis with others?

Is it really right for us to hang someone, knowing that, at the time of their arrest, investigation and trial, they hadn’t had the support and facilitation we now know they should have had to ensure that they could access justice on an equal basis with others?

It's also not just about Nagen. Since I started working on this piece, the state has tried to press forward with the hanging of Roslan bin Bakar, Pausi bin Jefridin and Rosman bin Abdullah. Thankfully, all three executions have been temporarily stayed until the end of this month, but there are similar concerns. Pausi was assessed to have an IQ of 67, while court judgements make reference to Roslan and Rosman likely having either borderline or low IQ. Seeing that these men have, like Nagen, spent around a decade on death row, I think it's safe to assume that there weren't procedural accommodations for them during investigation or trial either.

It’s too late for us to fix the fact that all these men did not receive adequate or appropriate procedural accommodations during investigation and trial. But it’s not too late to stop them from going to the gallows after having been put through a process replete with barriers that might have hampered their access to justice.

Thank you for reading this issue! Access to justice is such an important matter that doesn't get discussed enough — if you feel like this would be useful to someone you know, please don't hesitate to forward this email or share this article with them!

I'd especially like to thank Emmy Charissa, who works on the rights of persons with disabilities, for all her help and guidance in linking me up with Documenta and the writing of this piece! She was so endlessly patient and I've learnt a lot from her in this process. 🥰