Malaysia – No Public Prosecutor’s OK – no judges discretion to impose sentence other than death

Malaysia have been talking for some time about the abolition of the death penalty, especially the mandatory death penalty. Now, a Bill has been tabled with regard to drug trafficking which now carries the mandatory death penalty. The Bill, which was supposed to return discretion in sentencing yo judges – now gives the judges a choice between the death penalty and life imprisonment(with at least 15 strokes of the whip). However, judges will not get this discretion unless the Public Prosecutor gives a written certification of assistance…

Public prosecutor granted ‘too much power’ over life and death, says human rights group

Bede Hong
A HUMAN rights group is critical of an amendment to the law governing the death penalty, saying it gives too much power to the public prosecutor over the judge in determining who deserved to be sentenced to death.

Yesterday, the bill for the Dangerous Drugs (Amendment) Act 2017 was passed in Parliament, amending Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. The new law allows the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking. 

However, a clause states that the judge may impose a sentence other than the death penalty, only if and when the “public prosecutor certifies in writing to the court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.”

“It is wrong to give the public prosecutor the power to decide who dies and who may live,” Malaysians Against Death Penalty and Torture (Madpet) coordinator Charles Hector said in a statement today. 

“Remember, that he is also responsible for prosecution in a criminal trial, and the power to the public prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial.”

According to the proposed amending act, if the public prosecutor does not provide the certification, judges will have no choice but to impose the death penalty.  

Hector said the power of sentencing should rest with the judge alone. 

“The existence of appeals to higher courts helps ensure that there be no errors.”

Before sentencing, the judge usually hears and considers the submissions of the prosecution and the convicted person to impose an appropriate sentence. 

“Thus, the question of whether there was assistance or not could be included as one of the listed matters that should be considered by the judge before he decides and pronounces sentence.” 

“Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide and maybe should be a point to be considered before sentencing.”

In a statement today also condemning the law amendment,  Lawyers for Liberty executive director Eric Paulsen said there was little guarantee that the law enforcement agencies and public prosecutor would not abuse such “unfettered and arbitrary power”.
“It is basic that the act of prosecution is an executive function of the state and the office of the public prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death,” he said.
By compelling judges to impose a life or death sentence based on the public prosecutor’s certification is an “unnecessary fetter” on their discretion and interferes with judicial independence and justice, Paulsen said.
As of March, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to Prison Department statistics.

Madpet has called for all death sentences to be commuted to imprisonment. It further calls on the government to impose a moratorium on pending executions and speed up efforts towards the abolition of the death penalty. – November 24, 2017.- Malaysian Insight, 24/11/2017

Media Statement – 24/11/2017

JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG

Dangerous Drugs (Amendment) Act 2017 Meant To Abolish Mandatory Death Penalty And Return Sentencing Discretion To Judges Has Too Many Flaws

MADPET(Malaysians Against Death Penalty and Torture) welcomes the fact that the Bill to amend Section 39B of the Dangerous Drugs Act 1952, which has the mandatory death penalty, to now give judges discretion in sentencing, that will allow the imposition of life imprisonment instead of the death penalty has finally been tabled in Dewan Rakyat(House of Representatives). The said Bill, the Dangerous Drugs (Amendment) Act 2017, which has taken a long time, was finally tabled in Parliament on 23/11/2017 for the first reading.

SENTENCING DISCRETION TO JUDGES ONLY WHEN THE PUBLIC PROSECUTOR ALLOWS IT

MADPET is disappointed that discretion when it comes to sentencing those convicted for the offence drug trafficking (Section 39B) is not going to be given to judges in all cases. Judges will only get the discretion to impose a sentence other than the death penalty, only if and when the ‘Public Prosecutor certifies in writing to the Court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia.’(Section 2(b) of the Amending Act)

 

Rightly, it must be Judges and the courts that consider and decide whether one has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’.

Before sentencing, judges will usually hear and consider submissions of both the prosecution and the convicted person, and then impose an appropriate sentence. Thus, the question, of whether there was assistance or not could be included as one of the listed matters that should be considered by the Judge before he decides and pronounce the sentence. Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide, and maybe should be a point to be considered before sentencing. There may be also other relevant considerations of safety of oneself and/or family as many of these drug kingpins may threaten to cause harm, and Malaysia may not yet be ready to provide the requisite protection to the accused family and loved ones.

It is wrong to give the Public Prosecutor the power to decide who dies and who may live. Remember, that he is also responsible for prosecution in a criminal trial, and the power to the Public Prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial.

Now, according to the proposed amending Act, if the Public Prosecutor does not provide this ‘certification’, judges would have no choice but to impose the death penalty. This mandatory requirement for such a ‘certification’ by the Public Prosecutor must be deleted.

NO REVIEW OF DISCRETION OF PUBLIC PROSECUTOR TO PROVIDE CERTIFICATION

Further, it is stated in the proposed amendments that, ‘The determination of whether or not any person has assisted an enforcement agency in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination done by him in good faith, in such capacity’.

Well, that suggests that no one may be able to question or challenge the correctness of the Public Prosecutor’s decision – not even the courts by way of Judicial Review. This invites the possibility of miscarriage of justice, because if there is no required ‘certification’ by the Public Prosecutor, then the said convict will be sentenced to death.

Judicial Review is an essential ‘check and balance’ especially in a Democracy. One should be able to move the court to review even the decisions of the Public Prosecutor. Further, as it is Public Prosecutor, who decides whether to prosecute or not, this issuance or issuance of this ‘certification’ maybe for the wrong reasons, possibly even to ensure that the prosecution wins the case.

The power and discretion when it comes to sentencing must always rest with Judges alone. The existence of appeals to higher courts, helps ensure that there be no errors.

800 OR MORE ALREADY CONVICTED ON DEATH ROW WILL STILL BE EXECUTED?

In March, Minister Azalina said that according to Prison Department statistics, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B) (Star, 24/3/2017). These would all be persons already convicted.

The new proposed amendments, however, will not help any of these persons, whose trial is over and they have been convicted and sentenced.

The proposed amendment, in Section 3(2) of the proposed Amending Act, states very clearly that new amendments, when it comes into force, will only be used for persons who ‘…has not been convicted under section 39B…’. This means that all 800 or more on death row for drug trafficking will still be executed, unless they are pardoned by the King and/or rulers.

As such, MADPET urges that the sentence of all 800 or more persons currently convicted and on death row be immediately commuted to imprisonment.

MANDATORY SENTENCES CONTINUE TO EXIST

Even with the amendment, there still will be mandatory sentences – Death(if the Public Prosecutor Does Not Certify), and when there is certification, then judges can impose either Death or Imprisonment for Life(plus whipping of not less than 15 strokes). There is no discretion given to judges to impose a lower prison term, but judges seem to have the discretion to order whipping of more than 15 strokes.

With regard persons being tried under Section 39B Drug Trafficking, we know that many of them may have had the drugs for various different reason, knowingly or unknowingly, and some maybe out of desperation because of poverty.

We know that section 37(da) Dangerous Drugs Act states that “…any person who is found in possession of-(i) 15 grammes or more in weight of heroin;(ii)… otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug.” This and other similar legal presumptions shift the burden of proof to the accused person, and it is most difficult for an accused person, more so if he/she is poor, to prove that the drugs found did not belong to him/her.

Should a ‘fool’ who made one mistake be sentenced to death or life in prison. A mandatory life sentence is also grossly unjust. Judges should be given real discretion even with regard to the length of imprisonment, and as such a mandatory life sentence also needs to be reviewed, and judges should have the discretion to impose lower sentence. There should be lower prison sentences for first time offenders, and higher for repeat offenders. We should be emphasizing rehabilitation rather than a ‘lock them up and throw away the key’ policy.

WHAT ABOUT OTHER MANDATORY DEATH PENALTY OFFENCES?

Malaysia have been studying the abolition of the death penalty, and to date we are only seeing action with regard the drug trafficking. There are so many other offences that provide for mandatory death penalty including crimes that do not result death and/or grievous hurt to victims.

Malaysia needs to speed up at least the abolition of the mandatory death penalty for all offences, and returning sentencing discretion to judges.

MADPET calls

  1. That discretion when it comes to sentencing should be with judges. The proposed pre-condition before a judge can exercise judicial discretion in sentencing, being the written certification by the Public Prosecutor that the convicted has ‘assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia’ should be deleted. Such conditions are unacceptable;
  1. That the death sentence of the 800 or over persons on death row for drug trafficking(section 39B) be forthwith commuted to imprisonment;
  1. That Malaysia speed up its efforts towards the abolition of the death penalty, especially the mandatory death penalty for all offences;
  1. That Malaysia impose a moratorium on executions pending abolition of the death penalty.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Death penalty reforms must be an opportunity for positive human rights change — Amnesty International Malaysia

Friday November 3, 2017
05:34 PM GMT+8

ICYMI

 

NOVEMBER 3 — Amnesty International Malaysia welcomes the statement by the Malaysian government outlining its efforts  to amend Section 39B of the Dangerous Drugs Act 1952 and to provide courts with the discretion to spare lives when imposing the death penalty. The organisation encourages the Government of Malaysia to ensure that the proposed amendments will fully remove the mandatory death penalty and establish a moratorium on all executions as first critical steps towards abolition of the death penalty.

The announcement comes after a parliamentary reply by Law Minister Datuk Seri Azalina Othman Said on 30 October 2017,  stating that the first draft of the amendment has been completed by the Attorney General’s Chambers and is awaiting the approval of the cabinet.

The organisation also welcomes the support of the Attorney General, Tan Sri Mohamed Apandi Ali  in giving the discretionary power to the judiciary in drug-related offences in a statement made on 31 October.

While Amnesty International believes that these amendments is a step in the right direction, the organisation hopes that these amendments will be implemented in a manner that is effective and far-reaching.

The organisation renews its call on the Malaysian authorities to abolish the mandatory death penalty for all offences and restrict the scope of the death penalty to the “most serious crimes”, which do not include drug-related offences. International law prohibits the use of the mandatory death penalty and restricts the use of the ultimate punishment, in countries where it has not yet been abolished, to intentional killing.

Amnesty International Malaysia is in fact concerned that the statement of the Attorney General suggested that the death penalty legislative amendments, as currently drafted, would introduce limited sentencing discretion only for those found guilty of transporting prohibited substances. Amnesty International’s analysis of the impact of similar reforms implemented in Singapore since 2013 indicate that the introduction of limited sentencing discretion that fell short of fully abolishing the mandatory death penalty has done little to improve the protection of human rights.

In its report  Cooperate or Die; Singapore’s Flawed Reforms to the Mandatory Death Penalty, Amnesty International found that  the mandatory death penalty continues to be extensively imposed in Singapore, and that drug trafficking continues to involve the great majority of the death sentences imposed in the country. In cases where information is available, the burden of the death penalty once again appears to fall on those with less advantaged socioeconomic backgrounds and convicted of importing relatively small amounts of controlled substances.

The amendments also introduced a new section in the Singaporean Misuse of Drugs Act, giving courts discretion to sentence persons to life imprisonment, if found guilty of drug trafficking or importing prohibited substances over certain amounts if they can prove their involvement in the offence was restricted to that of a “courier”; and if the Public Prosecutor issues a “certificate of substantive assistance”, confirming that the convicted person has substantively assisted in disrupting drug trafficking activities.

This not only narrows the court’s discretionary powers considerably, it violates the right to a fair trial as it places life and death decisions in the hands of an official who is neither a judge nor a neutral party in the trial and should not have such powers.

It is our hope that the Malaysian authorities will make the ongoing legislative reforms on the death penalty a meaningful opportunity to improve the protection of human rights and adopt a comprehensive approach on its policies on the death penalty.

Pending abolition of the death penalty, Amnesty International Malaysia renews our call on the authorities to establish a moratorium on all executions. The government had stated that as of April 30, 2016, 1,042 people comprising 629 Malaysians and 413 foreign nationals were sentenced to death due to murder, drug trafficking, firearms trafficking or kidnapping; Sixteen (16) death row inmates have been executed since 2010 in Malaysia.

Even with plans to amend laws and rulers granting pardon to death row inmates, Amnesty International Malaysia still calls for the total abolition of the death penalty as it is proven multiple times not to have a unique deterrent effect on crimes, and violates the Universal Declaration of Human rights, including the right to life and the right to live free from torture.

It is in this context that Amnesty International Malaysia welcomes the pardon by the Sultan of Perak on November 1 of  two prisoners, who have been imprisoned for more than 16 years. Death row prisoners are usually kept in solitary confinement once their sentence has been imposed.

In a country where information on the use of the death penalty is not publicly available, the announcement of the pardon is a positive development which the organisation hopes it can be replicated to allow for greater transparency and more commutations of death sentences.

Background

Mandatory death sentences leave courts no option but to condemn drug  offenders and those convicted of murder to the gallows. Drug trafficking does not meet the threshold of the “most serious crimes” to which the use of the death penalty must be restricted under international human rights law.

Amnesty International opposes the death penalty in all cases and under any circumstances, regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to carry out the execution. The organisation considers the death penalty a violation of the right to life as recognised in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment.

Pending full abolition of the death penalty, Amnesty International calls for the government’s urgent intervention to halt all executions and to broaden the scope of the proposed reforms to encompass all capital offences; and to abolish the automatic presumptions of drug possession and trafficking allowed under Section 37 of the Dangerous Drugs Act, 1952 as initial steps.

Amnesty International has ranked Malaysia tenth in the use of the death penalty among 23 countries that carried out capital punishment last year.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

Read more at http://www.themalaymailonline.com/what-you-think/article/death-penalty-reforms-must-be-an-opportunity-for-positive-human-rights-chan#rZW2Ylw0ewe2kUVa.99

Pakistan – UPR Submission by ADPAN and 15 CSOs

 PAKISTAN: The Death Penalty

 For the United Nations Universal Periodic Review of Pakistan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and

15 Civil Society Organisations(CSOs) listed below

After 8 years of moratorium on execution, in the wake of Peshawar massacre of 2014, when more than 150 people (there was no official figure available as many injured succumbed to injuries later) mostly school pupils were martyred and many others were seriously injured, the government of Pakistan decided to lift the moratorium on death penalty in terrorism related cases, however later it has silently lifted the moratorium for all capital cases.

About 471 prisoners have been said to be executed since Pakistan had lifted moratorium.

In 2016, only about 7 out of the 87 executed were for terrorism offences.  Thus, only 8% of persons executed for terrorism offences, the very reason given by Pakistan to end the moratorium on executions 8 years ago.(see Human Rights Commission of Pakistan website at http://hrcp-web.org/hrcpweb/wp-content/uploads/2016/12/Final-Executions-2016.xlsx-9.pdf )

As of December 2017 more than 8000 are languishing on death row in Pakistan, as suggested by various reports, as there is no official data available.

 

UNFAIR TRIALS – Military Courts and the 21st & 23rd Constitutional Amendment

Pakistan created special military courts to try persons, including civilians, alleged to have committed terrorism offences but these courts fall short of fair trial standards. There is not even no right to appeal from the decisions of these courts.

The special military courts, to try alleged terrorism related offenders, were set up in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment. (http://www.na.gov.pk/uploads/documents/1449574923_658.pdf) This special legislation had a sunset clause by the virtue of which it would expire on Jan 7, 2017 and the military courts would cease to exist. But through Twenty third amendment Act of 2017, military courts have been revived for further two years period up to January 2019. (http://www.na.gov.pk/uploads/documents/1491460727_515.pdf)

The military courts began trials in February 2015 and during the period from January 2015 to January 2017, had convicted 274 hardcore militants of which 161 were sentenced to death whereas 113 others were awarded prison terms, mostly life imprisonment. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2017/1/8

Human Rights groups in Pakistan have time and again voiced serious concerns over the procedure adopted by the military courts.

Reports state that most of the relatives of the persons arrested, detained and convicted by these military courts, only came to know about the conviction of their dear and near ones through media when the Inter Services Public Relations made public the convictions and sentence through issuance of press releases. In several of the cases people had complained that their convicted relatives were believed to be “missing persons” when in fact they had been in detention for many years before their trial and subsequent convictions.

Military court trials, in pursuant to the constitutional amendments, fall far short of international fair trial standards and also to the guarantees enshrined in the Constitution of Pakistan (especially right to life, right to fair trial and right to have counsel of one’s own choice, Article 9, 10 and 10 (a)).

Further, in most of the cases it has been alleged that the accused confessed his crime which itself questions the justice of the whole arrest, detention, prosecution and the trial before such military courts.(ISPR press release of May 12, July 14, October 13, November 7,22, December 16, 28, 2016. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2016/12/28

High number of confessions raised serious questions about the interrogation methods employed, and suggest the possibility of even torture and threats.

Non availability of oversight of Superior Courts is another point of concern as decisions of military courts are only permissible to limited judicial review, that is only with regard the question of lack of jurisdiction, coram non judice or mala fides.

It must be noted in that a, sentence of death awarded in the formal justice system of Pakistan by any session court is subject to confirmation by a two member bench of the High Court but this necessary protection against miscarriage of justice is not available to persons charged and tried by these military courts.

Though, Pakistan Army amendment Act, 2017, provides some protection like, ground of arrest within 24 hours of arrest, right to engage counsel of one’s own choice, application of Qanoon e Shahadat Order 1984 (Law of Evidence, 1984) but still since there is no right of comprehensive judicial review or even right of appeal to higher courts, the right or ability to challenge the deprivation of such rights and protections provided for in the Army Act, is easily denied.

Military Courts have also tried and convicted juveniles. One example is the case of Haider Ali.

Haider Ali, was convicted by military court but his mother challenged the conviction on the grounds that when Haider Ali was taken in to custody by military agencies, he was grade 10 student(about 15 years old), and that the military courts have no jurisdiction to try a juvenile. Unfortunately, both the High Court and the Supreme Court agreed with the prosecution that that the amendments to the Army Act superseded all other laws,(section 4, Pakistan Army Amendment Act 2017) and military courts could legally try individuals suspected of committing terrorism-related offences, even if they were under the age of 18 at the time of offence. http://www.supremecourt.gov.pk/web/user_files/File/C.P._842_2016.pdf ;http://www.na.gov.pk/uploads/documents/1491460313_135.pdf

Reforms in the legal framework:

Though Pakistan has ratified ICCPR, UNCAT UNCRC that required the State Parties to limit the death penalty only to the most serious offences, to not resort to torture, and to ensure special protection for children but the Pakistan, military courts are dispensing “justice”, and even trying civilians and children in contravention to Pakistan’s commitment to these UN Conventions and/or Treaties..

The only source of information of those who arrested, detained, tried and convicted by military courts is a media statement of the Inter Service Public Relation (ISPR) after sentence has been meted out, with no other necessary details.

Death penalty through the military courts for those committing acts of terrorism has failed to deter such crimes. The series of attacks since the end of the moratorium and the imposition of the death penalty is sufficient proof of this.

There were only 2 crimes carrying death penalty in 1947 when Pakistan came in to being but now there are altogether 27 offences that carry death penalty in Pakistan.  Further, Death penalty in Pakistan is not reserved to the most serious crimes but also now includes ordinary offences like kidnapping and drug offences.

RECOMMENDATIONS:

  1. Abolish Military Courts System. Pakistan should try all persons, including those accused of committing terrorist linked offences in the normal criminal courts. Repeal the twenty third constitutional amendments and all subsequent amendments in the Army Act that allow military courts to try civilians, that undermine legal safeguards that ensure fair trial.

 

  1. Until the military courts system is abolished, and the 23rd Constitutional amendment is repealed, there must be:-

a. Immediate access to lawyers and family members of persons arrested and detained for alleged terrorist acts

b.The right to a fair and open trial, with the right to appeal;

c. Immediate public disclosure of persons arrested, detained and being tried

d. The transfer of all cases pending or before the military court involving civilians should be transferred and tried before the ordinary criminal courts;

e. That all those persons convicted and sentenced to death by military courts shall not be executed, until and unless the conviction and sentenced have been reviewed and confirmed by a 2 member bench of the High Court, as is the requirement for cases where persons are sentenced to death in the normal courts in Pakistan;

f. That juveniles and/or children shall not be tried in military courts, and should never be sentenced to death.

g. Make public the exact number of death row prisoners along with case details of all those who have been tried and convicted by military courts since the introduction of 21st constitutional amendment.

 

General Recommendations:

  1. Being a party to the International Covenant on The Civil And Political Rights (ICCPR), Pakistan should immediately impose moratorium on death penalty as a first step towards abolition, restrict the number of offences carrying death penalty to the most serious crime only, as reflected in Article 6 of the ICCPR.

Dated: 7 November 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Democratic Commission for Human Development, Pakistan

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

Odhikar, Bangladesh

Christian Development Alternative (CDA), Bangladesh

South Asia Partnership- Pakistan

Youth for Democracy and Development

Malaysian Physicians for Social Responsibility

Australians Against Capital Punishment(AACP)

Women in Struggle for Empowerment, Pakistan (WISE)

Centre for Human Rights Education- Pakistan

National Commission for Justice and Peace, Pakistan

NGO’s Development Society- NDS Sindh

PIRBHAT Women’s Development Society Sindh

Saeeda Diep Institute For Peace And Secular Studies