ABOLITION OF DEATH PENALTY IN MALAYSIA AND ASIA PACIFIC
MALAYSIAN NATIONAL CONFERENCE 21-22 JULY 2017, KUALA LUMPUR MALAYSIA
TABLE OF CONTENTS
Introduction about ADPAN 5
Day 1, 21 July 2017
WELCOME ADDRESS 5
Executive Committee, Anti-Death Penalty Asia Network (ADPAN)
Executive Director, Ensemble contre la peine de mort (ECPM)
KEYNOTE ADDRESS 6
Tan Sri Razali Bin Ismail
Chairperson, The Malaysian Human Rights Commission (SUHAKAM)
SESSION 1: Death Penalty in Asia – an Overview 7
President, Reprieve Australia
SESSION 2: Death Penalty in Malaysia – an Overview 9
Co-chair, The Malaysian Bar CouncilHuman Rights Committee
SESSION 3: The Catholic Church and the Death Penalty in Malaysia 10
Rev. Fr. Gregory Chan
SESSION 4: Death Penalty and the ‘Best Interest of the Child’ and Family 13
Child Rights Activist and Former SUHAKAM Commissioner
Khasturi A/P Krishnan
Association of Women Lawyers
SESSION 5: Death Penalty – Migrants and Foreign Nationals 15
Chairperson, Migrants, Refugees and Immigration Affairs Committee, Bar Council of Malaysia
Human Rights Officer, Amnesty International Philippines
SESSION 6: Death Penalty & ‘Secret’ Executions 18
Amnesty International Malaysia
SESSION 7: Towards Abolition of Death Penalty in Malaysia (Part 1) 20
Secretary of the Parliamentarians for Global Action (PGA) National Group, Member of Parliament, Malaysia
Head of Law Reform Division, SUHAKAM
Human Rights Activist and Freedom of Expression Advocate, Journalist
Executive Committee Member, Aliran
Representative from Death Row Inmate Family Support Group
SESSION 8: Conditions of Detention in Malaysia 25
Lim Chi Chao
Malaysian Bar Council
Deputy Secretary, Communications Group, SUHAKAM
Day 2, 22 July 2017
SESSION 9: Poverty, Crime, and the Death Penalty – an Indian Experience 29
Associate, Centre on the Death Penalty, National Law University Delhi
SESSION 10: Towards Abolition of Death Penalty in Malaysia (Part 2) 31
Malaysian Bar Council
KL and Selangor Chinese Assembly Hall (KLSCAH) Civil Rights Committee
Representative from Prison Counselling Group
SESSION 11: Mental Health and the Death Penalty 36
President, Reprieve Australia
SESSION 12: Lobbying the World for the Abolition of Death Penalty in Malaysia
– UPR and UN Mechanisms 38
United Nations Human Rights Office of the High Commisioner/OCHR
Yap Swee Seng
Former Executive Director, FORUM-ASIA – International Lobbying Group working at the United Nation
SESSION 13: Marching on towards Abolition of the Death Penalty in Malaysia 42
Drafting and Presentation of Conference Statement
SESSION 14: SMART Exercise 43
SESSION 15: Training on Conducting Fact Finding Mission 43
CLOSING REMARKS 46
List of Participants
About Anti-Death Penalty Asia Network (ADPAN)
ADPAN was formed in 2006 in Hong Kong initiated by Amnesty International. In 2012, the network became independent and executive committee commission was formed in 2014, more information can be read from the website. Now there are 22 countries and almost 75 organizational members, covering mostly Asia-Pacific countries, from Saudi Arabia to New Zealand. The main project of the organization is to work towards the abolition of death penalty.
Charles Hector, the Executive Committee of Anti-Death Penalty Asia Network (ADPAN), opened the conference by welcoming all participants. Before introducing the overview of the conference background, he requested all to rise for one-minute silence to remember PrabagaranSrivijayan, a Malaysian who was just executed in Singapore on 14th July 2017, and all other victims of death penalty.
Next, he mentioned about the latest update of Adilur Rahman Khan, a Bangladeshi human rights activist who was detained at the airport on his way to speak in this conference. Mr. Adilur was deported back to Bangladesh, even though he had been granted visa at the High Commission in Dhaka before coming. The action of stopping and preventing him from entering Malaysia was unjustified. Nonetheless, Adilur had been successfully voted into the executive committee commission the day before.
Charles continued by introducing ADPAN and the overview of the conference agenda. In this two days conference, issues related to death penalty will be discussed from wide range of topics, including the current condition of the prisoners, poverty and crime, mental health, best interests of the child and family, migrants and foreign nationals, secret executions, conventions and detentions. Sharing and presentations will be given by experts, academics, activists from NGOs, members of parliaments. Participants will also look at other possible mechanisms that can be used to advocate for the abolition of death penalty, like the Child Rights Convention Reviews, Fact Finding Commission.
RaphaëlChenuil-Hazan, Executive Director, Ensemble contre la peine de mort (ECPM) gave another welcome address by thankingADPAN and KLSCAH for organizing this conference. Although there has been quite different in histories and approaches in each country, the same goal ofabolishing the death penalty has not changed. ADPAN has always been an important pioneer to push forward the goal in the region.
He also mentioned that this conference was a project supported by the ECPM, which has three main pillars, with civil society being the first pillar to support ADPAN members and the initiators and citizens in the region. The second pillar is about how to politically raise the issue in parliaments, to the leaders and policy makers. The third pillar is the role played by the international Human Rights institutions.
The statistics of death penalty has been decreasing worldwide since the last 30 years. Now among the 55 countries that are still having death penalty, only 23 countries are still carrying out execution last year, all of which are Asian countries, eg. China, Saudi Arabia, Iran etc. The reality of death penalty is now mainly in Asia, so works have to be done more in this region. International organizations like ICCPR is international instruments that can help to raise awareness and issues on a bigger platform.
Lastly, he ended the speech by mentioning Liu Xiao Bo,the Nobel Peace Price Winner who passed away in China after having been detained since 2009. Liu was an activist who advocated for human rights and the abolition of death penalty. His spirits and soul will always be remembered.
Tan Sri Razali Bin Ismail, the Chairperson of The Human Rights Commission of Malaysia (SUHAKAM)was invited to give a keynote speech on this conference. He welcomed all to discuss and learn. He promised that SUHAKAM will join the efforts to achieve the abolition of the death penalty in Malaysia, which he thought that day would not be far away, as the movement has been getting wider attention, national momentum and supports from the mainstream people.
At this time Malaysia remained as one of the countries using death penalty as part of the criminal justice system. Laws such as Dangerous Drugs Act and Penal Code 1972 are still in position todeath sentences. Between 2014 to Feb 2017, 16 prisoners have been executed, 15 for murder and 1 for firearms related crime.
In theory, death penalty can be served as deterrent. However, based on the fact that1122 individuals have been found guilty and sentenced to death by the court in Malaysia, the figure proved otherwise.
SUHAKAM has been advocating alongside with Bar Council and other human rights organizations to stand for the rights to life. The commission has continuously recommended to the government to imposemoratorium on the death penalty, and to commute the prisoners to life imprisonment, especially for those who have been prisoned for more than five years.
Internationally, the most compelling argument for death penalty is simply the Rights to life, that the life of each individuals should be respected at the foundation of all other rights, and should be protected at all times, including the times of emergency. Moratorium should be imposed in order to abolish death penalty. The increase of stakes who supports the abolishment of death penalty as capital punishment illustrates a strong call to put an end to this cruel inhuman and degrading punishment.
However, Malaysia continues to vote against that moratorium. In the Human Rights Council 2013, Malaysia received 232 recommendations from other member states to improve the human rights conditions, and one of the two top recommendations made by the member states was to move away the death penalty. Unfortunately, the government responded by not supporting the recommendations made by the fellow members of the United Nation.
Nonetheless, the government has announced that efforts would be taken to amend laws to abolish mandatory death penalty in drug related cases, and to reinstate the powers of the judges to decide the penalties of these cases.
The Human Rights Commissions understands that there are ministers of Malaysia who are supporting the abolition of death penalty, and the people should be heartened by all these developments, although they are yet to be made official. Tan Sri Razali ended his speech by saying he did not intend to speak for the government nor defending them, but the recent conversations are indicating the progressive acceptance that would bring change.
SESSION 1: Death Penalty in Asia – An Overview
Facilitator : Arthur Wilson
Speaker : Julian McMahon, President, Reprieve Australia
Mr. Julian McMahon, the president of Reprieve Australia, started his presentation by saying it was important to remember that in some part of the world, the situation hasbecome worse. One cannot discuss “Asia” as if it is one thing, because different nations have very different histories, cultures, religions, and political situations. What we can see is that within a region, how criticism can be made and by comparing a country’s situation with its neighbouring countries, and how it can be played out in international politics.
The insurgence of intolerance, poverty that leads to death sentences, more repression from the authorities are happening more commonly in many countries. Examples given were the judges being sacked by the government in Poland, mass killings in Turkey and the Philippines, the kidnapping of booksellers in Hong Kong etc. So given this background and framework, the question is, can we conceptually grasp the diversity in Asia?
Mr. Julian McMahonwent on to highlight some diversities in the region. Two years ago, Papua New Guineawas about to bring back the death penalty as a quick solution to crime and offences. In Pakistan, there had been a moratorium on executions since 2008, but the moratorium was lifted since the terror attacks in 2014. There were 8000 death row inmates, and the government has executed over 400 prisoners since 2014. There is a huge difference between obtaining a moratorium and abolishing the death penalty. It is also not hard to imagine how difficult and dangerous could the situation be for the lawyers and judges in Pakistan at the moment.
Meanwhile in the north of Asia there is Taiwan, where strong civil societies are well functioning in negotiating and fighting with the government. Taiwan is a place where we can look up to. The Mongolian government has abolished the death penalty, congratulations on their strong civil society leadership.
In East Asia like the Philippines, the current president Duterte is planning to bring back the long-abolished death penalty. Since he was in office, serious allegations of Human Rights have been happening, with almost 30 killings everyday.In Vietnam, recent report revealed that 429 executions were given in the past three years until 2016.
China is still practising secret execution, with estimation of having 3000 executions in a year, which is lesser than what has been recorded as 8000-10,000 yearly executions in previous years. Amnesty has stopped updating the numbers because it was too unclear.
Lastly, in Thailand, there are still over 450 prisoners on death row. With the new King and leadership in power, perhaps changes and new steps can take place to change for the better. But it’s still deteriorating at the moment.
Mr. McMahon pointed out thatpolitical reform on human rights issues would not bepossible without having fair trials and free press. Given so, what can be done? More pressure shall be put ontothe International NGOs like ICCPR. Supporters and advocators should report the cases they know and draw as many public opinions as possible to generate supports. All sorts of supports, be it emotionally or financially, and identification of cases happening in each country are equally important. Law society should speak courageously on this issue and practically support cases that need assistance.Issues on the process of trials, mental health, migrant workers who have limited resources, pregnant women, family of imprisonment need to be touched upon. Cooperation with universities are also needed, as wide support can be gained only when detailed, sophisticated researches are to be seen.
Questions and Comments
The president of the Philippines is now trying to ignore the international human rights commitments like ICCPR, because he would say it wasn’t him who signed the commissions. What would the implication be to case like this?
Just to put into context, ICCPR was the most powerful protocol in the world concerning the death penalty, and it’s not allowed for withdrawal. The Philippines has signed the protocol in the state’s name, legally no other country has withdrawn, it’d be unacceptable for them to take their step back.
What can the world do when a country did something bad? Probably you can’t do much. The kidnapping of the Hong Kong bookseller, and the sacking of judges in Poland which has demonstrated a badly damaged rule of law in a European nation, what have the world donein response to that? I have heard next to nothing. It comes to a point when the world take action, but before that it usually takes a long time, and right now it is unthinkable.
SESSION 2: Death Penalty in Malaysia – An Overview
Facilitator : Ngeow Chow Ying
Speaker : Andrew Khoo, Co-Chair, Human Rights Committee, Bar Council Malaysia
Andrew Khoo, the co-chair of the Malaysian Bar CouncilHuman Rights Committee, apologized on behalf of George Varughese, the original speaker, for not being able to attend the conference as he was at another LAWASIA Conference in Sri Lanka.
Firstly, Khoo gave an overview of the death penalty in Malaysia, by introducing the mandatory and discretionary offences.
The Mandatory death penalty offences include:-
- Offences against the rulers and governors of the state (the Yang di-PertuanAgung) – under Penal Code, section 121A;
- Committing terrorist acts (Penal Code, Section 130C);
- Murder (Penal Code, Section 302);
- Attempted murder (Penal Code Section 307 (2));
- Hostage-taking (Penal Code Section 374A);
- Rape resulting in death (Penal Code, Section 376(3));
- Trafficking in dangerous drugs (Dangerous Drugs Act 1952, Section 39B);
- Discharging a firearm in the commission of a scheduled offence (Firearms (Increased Penalties) Act 1971, Section 3);
- Being an accomplice in the discharge of a firearm (Firearms (Increased Penalties) Act 1971, Section 3A)
Discretionary offences include:
- Waging/attempting to wage war against the Yang di-PertuanAgong, Ruler or Yang di-PertuaNegeri (Penal Code, Section 121);
- Mutiny (Penal Code, Section 132);
- Abetment of suicide of child or insane person (Penal Code, Section 305);
- Kidnapping (Penal Code, Section 364);
- Gang robbery with murder (Penal Code, Section 396);
- Abduction (Kidnapping Act 1961, Section 3(1)).
Possibility of Abolition
Khoo has worked with three ministers who worked on the abolition of death penalty. He realized that there is no obvious pressure to push for the abolition domestically or regionally. Ground movements are not strong enough in public perception.
The religious rationale in Malaysia (the prominence of Syariah Law) played an important role in deterring politicians to speak about their opinions on death penalty. States in Malaysia have religious acts with reference to the use of death penalty. To interfere into that area is to be seen as interfering with the religious philosophy, and very few politicians would want to go into that, and to be labelled as anti-Islamic. With the general election coming, this issue is likely a “vote loser”, criticism against the abolition are still strong. Hence the political wills are not in favour of the abolition.
One defence of the death penalty is the retribution value of punishment – an eye for an eye. But the punishment by taking away one’s life has violated the sacred-ty of life. There is a fundamental contradiction in it. As to another defence on deterrent value that death penalty would give, sentencing the prisoners with drug-related offences to death, did not show any deterrent effects to public.
Backlog of executions – Every year there are about 6 executions, but 70-80 convictions which bring about death penalty. The numbers of prisoners waiting to be killed just keep growing. This directly leads to the problem of overcrowding in prisons.
Khoo stressed that Malaysia needs more external pressures from the international committees, for example via Universal Periodic Review Recommendations. Since 2009 the government has announced to review and change the mandatory death sentence to life imprisonment. Next year will be the third UPR cycle. It has been a lot of talking, but very slow in progress.
This year Malaysia will be in candidacy for the United Nations Human Rights Council 2018-2020, election in October 2017. Perhaps we have to start with phased abolition, with “baby steps”, at least start with drug trafficking mandatory death sentence.
Malaysia is also seriously lack of access to more international treaties or conventions. Is Malaysian laws consonant with International Human Rights norms? That would be a continuing debate between Western vs Eastern view to be continue.
Questions and Comments
Question 1: Saudi Arabia is also a member in the council, how can the international committee work if their members are themselves a human rights abuser?
Khoo:Members of the UN commission sometimes look like a gallery of violators of human rights, but that is the nature of the international system, because of its structural factors such as regional elections system etc. If we look at the papers that Malaysia submitted to the Commission, there are lots of broad promises to work more closely with the international communities. We are not the worse but we still have to improve the international standards of Human Rights. We have to engage.
SESSION 3: The Catholic Church and the Death Penalty in Malaysia
To discuss the position of the Catholic Church vis-a-vis the Death Penalty.
Facilitator : Mr Francis Pereira
Speaker : Rev. Fr. Gregory Chan
Father Gregory Chanwas a practiced lawyer, an Advocate and Solicitor of the High Court of Malaya from 1993 to 2005, but turned to become a priest after retired in 2013. He is currently appointed Director of the Archdiocese Single Adults and Youth Office (ASAYO) of the Archdiocese of Kuala Lumpur. He also serves in the Marriage Tribunal and is actively promoting the safe guarding of Children, Youth and Young Adults from abuse.
Assuming the participants are familiar with how Catholic Church talks about sanctity of life, Chan started the session by asking, what justify us to take a life? Is there any circumstances?Mostly it was done in self-defence, but it happened only undervery little circumstances.
The judicial teaching of the catholic church does not exclude the cause of death penalty. However, if this is the only possible way of defending human lives against the aggressor, we have to look not immediately at death penalty, but the not lethal means in which we can protect a person’s safety against such aggressiveness.
Is killing really necessary? If we can control a person in non-lethal means, then by all means let us do so. Unless this person cannot be controlled. There are plenty of non-lethal means.
Why does the catholic church take this view? Simply because every men and women have equal dignity, only God can take their lives. Chan quoted several lines from the Bible, showing that it is man’s duty to protect life, not to take away from it.
The Catholic churches in Malaysia have been seeking ways and campaign for the abolition of death penalty, together with other civil societies such as Amnesty International and SUHAKAM.
In fact, no justice system is perfect. If a person’s life is taken and years later he was found innocent and the crime was conducted by other person, his/her life would not be reversed. Jiang Guo-qingin Taiwan was a typical example, in which the authority had confessed that they executed him for the crime that he did not commit.
Life is irreversible. There are other ways to tackle crime.
Chanalso shared his experience of visiting the prisoners and how they would feel in prison. It normally takes up to 10 years for the prisoners to go through the legal processes and not knowing whether they are going to be executed or not. This mental torture is unbearable and intolerable.
We also have to ask, who are we punishing? Most of the death row prisoners are drug carriers but not takers. Most of them are migrant workers, women. We are not punishing the right people, in the most ineffective and cruel way. This has to stop.
Questions and Comments
Do you have the figure of the numbers of women to be executed?
No, the numbers are kept secret.
Comment from Susanna:
I worked as a criminal lawyer for 16 years. I want to share a case of her client, who couldn’t afford to hire a lawyer because it costed RM50,000. They had to take the lawyer appointed by Court, who did not perform professionally, and causing the client to be sentenced to death. The brother suffered from mental illness because of the case. In fact 70% of the case results are caused the lawyers’ faults.
Question 2 from RaphelChenuil-Hazan:
What is the stand of the Catholic Church on Syariah Law?
There’s a saying “an eye for an eye makes the world go blind.” The Catholic churches emphasize more on rehabilitation and love, because only sins are being hate but sinners are to be loved and protected.
Question 3 from Kiara:
Is there chances to share your experience with other parties and convey the prisoners’ messages to the authorities?
We can’t really disclose the prisoners’ stories to other parties.
Question 4: What are the responses from the authority?
Chan: The authorities are not blind, they can see that the prisoners become calmer when they see us. They don’t deter us from doing counselling. But at the same time, there are obstacles that we need to encounter. For example, we are prevented from giving Bibles in certain language.
Question 5: Prisoners are sometimes put in solitary confinements for up to ten years. What kind of toll does that take on that person?
Chan: The sanity, the ability to access facts. Some of them begin to believe in certain things that’s not true. They need counselling and care. Sometimes all we can do is reach out to them and touch them by hand.
Question 6 from Samantha: I’m a prosecutor and used to be a supporter of death penalty, and switched to the other side. I always argue with other prosecutors, judges and they always replied by saying “if you were the next of kin of the victim, what would you do”. How should I respond to this if you could give some advices?
Chan: Mercy is very important, even mercy to the perpetrator, to acknowledge that he/she might need counselling. The “survivors” need counselling, so as the perpetrator. This sickness cannot be solved by killing them, but can only be solved by talking to them openly. And it takes time. It takes years of counselling.
The facilitator, Mr Francis Pereira ended the session with a quote from Pope Francis in 2015, who is also a prominent advocate for abolition of death penalty: “The death penalty loses all legitimacy due to the defective selectivity of the criminal justice system and in the face of the possibility of judicial error. Human justice is imperfect, and the failure to recognize its fallibility can transform it into a source of injustice.”
SESSION 4: Death Penalty and the ‘Best Interest of the Child’ and Family
To discuss the impact of death penalty on family especially children, as well as the inconsistency with the UN Child Rights Convention.
Facilitator : Rachel Zeng
- James Nayagam, Child Rights Activist and Former SUHAKAM Commissioner
- Khasturi A/P Krishnan, Association of Women Lawyers
James Nayagamhas been working with children and the parents for the past 35 years. He started his sharing with a quote from John Bowlby “A society that values its children must cherish their parents.”
According to the Article 2 in the UN Rights of the Child, “the child has the right to be free from all forms of discrimination based on the status of his or her parent(s). There has been strong stigma attached to capital punishment, this right may be violated when a parent is executed. Research suggested that parental incarceration is associated with a range of significant negative outcomes for many children.
Discussions regarding children always tend to think from the “best interest” of the child. However, in fact when a parent is executed, the pain is likely to cause more harm especially to the children. Capital punishment affects the whole community and multiple generations. To date, very little attempt has been made to research and understand the full impact and consequences that a parent’s death sentence has for a child, both in order to provide the special care and protection that he or she may need.
- Stigma – Capital punishment leads to isolation due to stigma and their own feelings of criminalisation; intensified conflict between family members with different grieving styles; diminished self-esteem.
- Homeless – Overnight with all that happened, wives and children (could become homeless and subject to all kinds of exploitation and harassment.
- Family members are also ‘disenfranchised’ (deprived) from their grief, as society does not socially validate their pain.
- Shame – For the child, seeing their parent so belittled and powerless may cause confusion, anger and guilt. Bullying would follow in schools.
- Prone to Life of Violence – Studies from around the world consistently indicate that children exhibit a range of behavioural and emotional problems, as greater risk of becoming both perpetrators and victims of violence. 30% of the children with behavioural problem started since young.
- Children learn that death penalty is the ultimate collective affirmation that violence, in the form of State-authorised killing.
- Grief and problems would transmit or communicated across generations.
- Long Period of Wait for the Execution –some have been waiting for as long as 15 years. Can you imagine the trauma and the mental torture the prisoners and their families had to bear? Some used to tell James, Sir, just hang me, I’m ready…
Role of the State
The impact on the children of the accused seem to have almost entirely overlooked. With the shock, shame, stigma, repression and isolation, the innocent child becomes completely invisible. They do not receive the recognition, support and assistance or counselling. For worse, they are not legally considered to be victims.
States parties to the UN Convention on the Rights of the Child are required to provide care when a State action (the parent’s execution or incarceration on death row) causes the child to be deprived of his or her family environment (Article 20).
James ended his sharing by making three recommendations: (i) moratorium should be created; (ii) the best interests of the child has to be taken into account when sentencing a parent, including a possible death sentence; and (iii) pivotal role has to be played by National Human Rights Institutions.
James stressed that the voice of the children can never be easily heard, which was why he was there today to present the voice of silenced majority.
Khasturi A/P Krishnanfrom the Association of Women Lawyersmade her first point by reminding one often fails to realize what would happen to the families of the prisoners after death sentencing. Problems arose include who is now going to be the breadwinner, the poverty that follows, the language barrier, lack of documentations and registrations to show the status of their family members in prison, who will the child stay with, and so on. Worse still, in Malaysia data and news are hard to get regarding when would the execution take place until the very last minute.
Article 3 of Child Rights (HR convention) stated the best interest of the child, but what is happening does not coincide with the child rights. There are loopholes that have been overlooked over years.
For example, is the guaranteed free education provided sufficient enough for the child as he/she grows up? What about the mental trauma that they have to go through? Article 6 of the Child Rights mentioned the survival and development of the child, but as the state takes away the lives of the prisoner, have we ever thought about the development of mental health of the child?
Article 9,10,20 are specific articles which provides that that state must ensure the children are protected and being taken care by the family, children should not be deprived of united family environment. But when someone in the family is executed, it all becomes contradictory.
Malaysia has signed the Convention and Child Rights which states that if the child is not taken care or being abused, the welfare officers may submit to the court to take further action. But what happens when the child is abandoned? We have yet to have such provisions. The love, care and respect that we should give to the child has never been discussed.
Most of the time discussions have been revolving punishments for the offences committed, but there is no paradigm shifts in changing mindsets to look into the actual reasons why they committed the crime. Most people are committing drugs is not because they want to commit crime/drugs, but because of poverty. Have we addressed and lobbied the issue? The system that accused the person may not know what their family have been through. How many can afford for lawyer?
Article 2 in the Child Rights Convention mentioned non-discrimination; Article 8 talked about parents’ and states’ responsibilities; Article 18 talked about social security. The emotional parts of the child and the families are the main things that the government need to acknowledge, and to actually talk to the family. Public’s mindset need to be changed to recognize the child as the victim as they parted away from their parents. It is mental abuse, not physically but mentally. One can feel it when talking to them.
Questions and Comments
Question 1: Is there any research done to compare the children and family of the death row prisoners, as compared to those of the prisoners in custody? That would give us a difference about the lesser of the two evils.
James: This is a good question that raised in my mind as I prepare for this presentation too. I will look into that after this conference.
SESSION 5: Death Penalty – Migrants and Foreign Nationals
To discuss the various issues surrounding foreign nationals in facing death penalty, from arrest to conviction and beyond.
Facilitator :PuriKencanaPutri, ADPAN Indonesia
- M. Ramachelvam, Chairperson, Migrants, Refugees and Immigration Affairs Committee, Bar Council of Malaysia
- Wilnor Papa, Human Rights Officer, Amnesty International Philippines
- Ramachelvam recapped the offences for mandatory and discretion death sentences (which have already presented y Andrew Khoo in the previous session). Then, he mentioned the fundamental liberties under the Malaysian Constitution in Article 5 (1): No person shall be deprived of his life or personal liberty save in accordance with law; and Article 8 (1): All persons are equal before the law and entitled to the equal protection of the law.
Malaysia has mandatory death sentences for many offences including common law murder and drug trafficking. The Constitution of Malaysia does not prohibit cruel, inhumane or degrading treatment of punishment, and is not a signatory to the Convention Against Torture (CAT).
According to the The Star Online dated 27th March 2017, there are 1,100 prisoners now on death row as at March 2017, and the number of execution from 2014 until February 2017 are 16 persons (14 Malaysians and 1 Foreigner).
The number of Migrants in Malaysia are as below:-
- Documented : 2.9 million
- Undocumented : 4.0 million
- Total : 6.9 million
- Nationalities : Indonesian, Nepali, Bangladesh, Myanmar (Burma), India, Sri Lanka
Issues Faced by Accused Persons facing the Death Penalty in Malaysia
- Non Nationality
- Previously most detainees are from South East Asia, Africans and Latin America; but recently there are more drug traffickers from Iran, India.
- Most migrants are represented by Court Assigned Counsel, mainly because of financial reason (private hired lawyer would cost RM50k).
- Issues pertaining to obtaining witnesses for the Defence – especially with murder cases, and if the witness is not citizen, they would not want to speak out.
- Language Barrier – Issues pertaining to Interpreters
- This is especially the case at the investigation state, where no interpreters can be of help. Some migrant workers can only speak their own languages. That’s a real challenge especially for the accused person. But the situation now has improved a lot, and this is part of the good things from the privatization of the government sectors. Now Urdu, Nepalese, Burmese etc have interpreters.
- No support mechanism – Lawyers have to fight individually against the entire system. The state does not provide any resources when other countries there will be police, professionals backing up.
- No full disclosure of evidence by the Prosecution before trial – There’s the problem of accountability of the police force. For worse, evidence provided were favourable to defence.
- Issues pertaining to age verification – determination of accused being a child and tried as an adult.
- Issues pertaining to investigation – no proper investigation / selective investigation / corruption during investigation. Police would normally want to close case as fast as possible. When they charge, they always go for the heaviest charge, likely murder or drug trafficking before everything else. As a result, you can only fight or face being hanged, there is no option for longer imprisonment.
- No effective participation at the trial – Today trials are only on recording, no more written words on papers. This would restrict the chances for defence to study or interpret the case slowly, especially if they are migrant workers who do not understand well on court. Technology improves things but it has its drawbacks as well.
- Issues pertaining assistance from embassies – Only high-profile cases would receive attention from the embassies and officials. The civil society has to take up the role like drafting a clemency.
Wilnor Papa, theHuman Rights Officer of Amnesty International Philippines started his sharing by raising five facts about the Philippines: (i) Death penalty was abolished in 2006, but Duterte is bringing it back; (ii) The Philippines was a signatory of ICCPR since 2007; (iii) One of the nation’s biggest exports to the whole world is labour forces, especially in neighbour countries like Malaysia, Hong Kong etc. (iv) Most SEA countries still have death penalty; (v) There are more than 70 death row inmates in Philippine nationals in different parts of the world, 41 of them are in Malaysia.
Throughout the years, Philippines negotiated with other countries by demonstrating that the country still runs well without having the death penalty, and that there is better way for punishment than execution. Howeverif the government tries to bring executions back, the country will lose its moral, ethical and political status to lobby for abolition in the legal system.
Questions and Comments
Is DNA evidence being used and recognized? A case in Thailand where the person was charge based on DNA evidence, was not sufficient to nail a case.
The judicial system needs a chain of evidence, you have to demonstrate how to get the samples, how did you keep them, and the chemistry department in Malaysia has to do analyses. It has become a norm that whatever that has been discovered would be sent for DNA analysis. But it is still up to the judges whether to accept the evidence or not. Generally it is acceptable.
Respond from participant:
I’m quite certain that this approach has reasonable doubt, as one can see from Anwar Ibrahim’s trials.
I don’t disagree with you, but this is what the court judges.
How successful have clemency been imposed on the drug offenders facing death sentences?
On clemency, we have Pardons of the power of the state, where the case in Pahang goes to Sultan of Pahang, case in Johor goes to sultan of Johor etc. But the States Pardon Board have never met for years. Bar council is preparing the clemency petitions and submitting to the relevant Rulers of the State or the governors of states without Rulers. Very few states are taking action on these petitions except Johor in reducing years of imprisonment etc, but there need to be more.
Will woman be executed?
Women have been executed but generally the mechanism is designed to execute men. In Malaysia only one women executed in the last two decades.
Is there any financial supports for the death row inmates in Malaysia, especially the Indian migrant workers?
For high profile cases, sometimes the government will appoint lawyers. As far as I know there is no financial assistance provided.
What can we do to stop Philippines from bringing back the death penalty?
There are Senators who are still showing sympathy and still working on this issue, with certain level of independence for the public to voice out. So there is still hope.
Susanne’s respond on DNA:
I used to challenge the DNA result but it went unreported. According to the judge, the court did not concern about how the test was done, but only the result. In fact the tests are mostly badly done, testing tools are seldom changed due to high maintenance fees, and this would cause misleading results. Unfortunately, it is the reality in Malaysia for now.
SESSION 6: Death Penalty & ‘Secret’ Executions
To discuss the recent executions in Malaysia, its secrecy and the last-minute information of executions preventing effective intervention.
Facilitator : AltantuyaBatdorj, Amnesty International Mongolia
Speaker : ShaminiDarshni, Amnesty International Malaysia
ShaminiDarshinifrom the Amnesty International Malaysia gave an overview on the death penalty condition in Malaysia, in which as at March 2017, 1,122 people have been put on death row for murder, drug trafficking, firearms trafficking or kidnapping. 12 offences are on mandatory death penalty, and 40% of the inmates are foreign nationals.
There were 9 executions as at Oct 2016 (Home Ministry Statistics, 2016); 4 executions in 2017 to date. Data and the names of the executed were collected from media reports, three of which were RamesBatumalai, SutharBatumalai and Yong KarMun, one remained unknown individual.
Malaysia is the 10th biggest executioner in 2016, according to the Death Sentences and Executions 2016 report published by the Amnesty International. About 450 were executed from 1960 to 2011; 12 were executed from 2010 to 2016.
Why do we call it Secretive Executions?
The main problem in Malaysia is the serious lack of public disclosure on death penalty data, in terms of the crimes, nationality, ethnicity, gender, age etc. Every time when Amnesty received calls on Wednesdays before 7pm, it would be most likely be a call for Friday’s executions.
The families usually came to Amnesty by accident, because they have no other way to seek help. There are no clear procedures before execution – families received late notification, and when clemency failed, the prisoners and families are not even notified. No immediate disclosure to the public before or after execution.
Shamini went on to share Ramesand SutharBatumalai‘s case in 2016. When AI Malaysia was notified of an imminent execution on 23th February two days before, they initiated the campaigned to extend the stay of execution, by filing clemency application, and reaching to the media and international community. However, execution was carried out on March 15 without informing the family members regarding the clemency application status. In June 2017, the family’s lawyer N. Surendran requested Kajang prison authorities and Home Ministry to explain why execution was carried out without exhausting legal process, but no respond has been given.
Letters to the families areusually sent two weeks in advance, but only reaching the them 72 hours prior execution.
On happier story – In 14 March 2014, Osariakhi Ernest Obayangbon (aka Michael Phillips) was scheduled to be executed. When AI Malaysia received the call 72 hours before execution, he was already on his way for execution in changed cloth. He has been diagnosed schizophrenia, and now his life has spared and turned into life sentence.
In another case, ChandranPaskaranwas sentenced to death for murder by Johor High Court in 2008, and was scheduled to be executed on 7 February 2014. AI Malaysia received the call on 5 February 2014, and after global campaign has initiated, Sultan of Johor offered a royal pardon and execution was halted.
How to Stop an Execution? From AI’s experience, there is no set formula. Shamini shared that they could only do whatever they could to stop someone from being hanged, but the outcome is never known.
Questions and Comments
Question 1: Do you work with the lawyer or independently?
Shamini: As an NGO we always work with lawyers especially if he/she is working on clemency application, then we would refer to what the lawyer think best in terms of strategies.
Question 2: Where did Amnesty get the statistics in the presentation?
Shamini: Usually from the parliamentary responses.
Question 3: Given such short notice every time you receive the execution call, how do you engage with the larger groups and generate more international dynamics?
Shamini: The thing is when you are dealing with imminent execution, the information you get keeps changing second by second. We need to draw something effective within short period of time. International dynamic is very, very important, but it has to be dealt case by case. Sometimes when we are dealing with the families, at first they agreed to have international pressure and exposure, but the next hour they changed their minds. This is something we have to handle sensitively.
Question 4: The statistics that you mentioned previously were actually in Law reports, is there any campaigns or works being done to compile the data and information together from various sources, so as to identify which case has been exhausted in the Federal Court, and which are really waiting to die?
Shamini: First, we do monitor death penalty statistics across the country. We don’t have the campaign per se on what you mentioned, we will consider start doing that through our partners. The data of 1,122 death row prisoners came from parliamentary responses, but imminent executions will always come as surprise.
Question 5: I was shocked to know that 40% of the death row inmates are foreign nationals. Several years ago there was a Chinese prisoner being executed in Japan. Is there similar cases in other countries as well?
Response from participant: Currently there is a Pakistanese on death row in India.
Comment from Andrew Khoo: Just to add on to Shamini’s sharing, until today it still remains unknown for us who would be selected for execution. We also would not know whether the person is represented at the time when he was selected to be executed. When the case in court is over, the lawyer’s job finishes, and they would not be engaged with the process of filing clemency application. So when the family received call of execution, they have no one to contact, there is no lawyer to follow up. Now the government provides legal aid for people who want to apply for clemency, it is improving.
The third mystery is that when you ask the family whether or not clemency has been filed, they would say no, but the authority would say yes. Is someone lying? I don’t think so.Perhaps there is some forms of clemency application that is put through by individual with the absence of the authority. The question is, how comprehensive would it be? The clemency application itself is flawed with lots of uncertainties and lack of information. The Federal Court does not coordinate as it is at the hand of the state’s authorities.
SESSION 7: Towards Abolition of Death Penalty in Malaysia (Part 1)
To discuss and consider the efforts, strategies, obstacles, and success of the different stakeholders in the campaign towards the abolition of the death penalty in Malaysia.
Facilitator : Wu Jia-Zhen (Taiwan)
- K. Haridas, Executive Committee Member of Aliran, Malaysia
- AmerIzyanif, Head of Law Reform Division, SUHAKAM
- MasjalizaHamzah, Human Rights Activist and Freedom of Expression Advocate with Background in Media
- KasturiPatto, Member of Parliament, Malaysia
- Sam, Representative from Death Row Inmate Family Support Group
K.Haridas first spoke on behalf of Aliran, a media advocating and promoting social justice movements in Malaysia for over three decades. Over years Aliran has carried articles on various Human Rights issues including accountability and transparency, but the abolition of death penalty is definitely one of the main issues that is in concern. “Lives representthe highest value” is the core value that Aliranupholds.
Haridaswas surprised to read from ADPAN’s brochure that most inmates are executed in Asia Pacific than in the world combined, at the time when the numbers of execution is declining. In many ways, this highlights how important it is to work for abolition in this region.
Aliran is very grateful to be part of this campaign. Aliran also believes the right to second chance. People must be given a second to reform, to realize, to change. If we believe in these possibilities, then we need to create the institutions, structures, policies and processes that help those who are ignited to move forward. Being just punitive is not enough, respecting lives make valuable cause for more in-depth processes and systems.
People support death penalty for many reasons: poverty, hatreds, revenge, retaliation; but people may realize their errors of judgement. One thing that we can do far better is while we are campaigning for abolition death penalty, we shall see more from other countries where death penalty has been abolished, what has it contributed to the country’s justice system and development? That could be a very persuasive tool for cross reference.
NGO like Aliran should inspire more progressive mindsets. There was a film show featuring a killer and victim meeting one and another after many years, and the perpetrator who was responsible for the killing has changed his mindset tremendously. From that film it showed that how much one can change to seek forgiveness and reconciliation. In countries like Sweden and Norway, prisons have no more prisoners. There must be something we can take away and learn from those examples.
Taking lives form others have consequences even if that person did not realize it. Something would break inside that individual, and that itself is already a punishment. What they need is rehabilitation, and that is what we can help focusing on among others.
MasjalizaHamzah, an Human Rights Activist and Freedom of Expression Advocate, has been working on campaigning the abolition of death penalty for 12 years, together with some experience working in media firm. She found that media usually do report a quantity of the cases, and English media often cover the issue in more depths. Howeverquantity aside, the quality, the variety and diversity of how it is reported, whether there is human aspect, are also important.
In that sense, as readers we need to ask what kind of reporting do we want? There are many challenges with regards to this. Most journalists only see the issue of the abolition of death penalty as one of the human rights issues among others. Therefore, the efforts and resources have to be divided equally with other issues that needs to be covered.
Moreover, as the executions are often done secretly, data and information are often limited. Journalists have difficulties to follow up, develop and keep focusing on this issue given the lack of access of information, studies and human stories.
The campaign is hard when politicians do not have the political wills to support and speak openly for change. Last year at a conference in Norway, Mongolia announced abolition and Malaysian participants were all cheering. But when it came to Malaysia it was just about the completion of a study.
There is a notion of there is a lack of empathy from public to support the abolition. According to the report done and released by the media, when people are asked whether they support death penalty, 91% said yes without thinking much. But when they are given more details and circumstances, less supports were given. People think more when they dig deeper. It is just like the public perception on Syariah Law in Malaysia. So, the campaigners need to work through the cracks and to encourage more thinking with more details.
Lastly,Hamzah shared some thoughts on how can the media address the issue of abolition of death penalty. For one, the works done by Amnesty and other NGOs are necessary. Meanwhile, media terms such as “moratorium” that seems more achievable can become a catchword for media to report and call upon the supports to the campaign. Media strategy is a key component to run the campaign. ADPAN has started to hire a person to work specifically on the issue of death penalty, which is a good start that needs to carry on.
In response, the moderator, Wu Jia-Zhen shared her experience of communicating with the media in Taiwan. Whenever the reporters asked them questions, they always ask whether the NGO supported the abolition of death penalty. Taiwan Alliance to end the Death Penalty (TAEDP) where she works would in turn suggest the reporters to cover issues such as ICCPR, how would the ministry of Justice handle cases on death penalty, and so on. By directing them to other perspectives, they could reveal more information for public good.
AmerIzyaniffrom SUHAKAMintroduced that The Human Rights Commission of Malaysia was established in 2000 in Parliament. It has been mandated by the government among others to create awareness andto make recommendations on issues concerning human rights. Admittedly the Commission started quite late on the issue of death penalty, as in earlier years the Commission focused on other issues such as freedom of media and expression, freedom and assembly etc.
In 2011, the deputy Chairman of the Commission suggested that the issue of death penalty to be taken up by the Commission. Since then campaigns and initiatives have started in corporation with other institutions such as UniversitiPendidikan Sultan Idris, a university for teachers, and UniversitiKebangsaan Malaya (UKM). Death penalty has become one issue of interests to be discussed among students. She thought it was a good strategy to raise awareness among the students, as they would in turn disseminate the ideas and continue discussions with their students in the future.
Besides that, SUHAKAM have also worked with international partners and joined international campaigns. They werealso disappointed to hear Nancy’s announcement in Oslo last year, as they were expecting more since sheopenly announced his full support to the abolition of death penalty in 2011. It was seen as a sign of mindset changes in the government, but unfortunately politicians will always bepoliticians. They would use any opportunity to gain support, at the same time sided with louder voice.
SUHAKAM has been having meetings with the ministers of parliament like Azalina to campaign for the abolition. So far some have agreed that it should be abolished in the future, but no one knows when. The campaign is a long struggle. Everyone have their roles to play, all stakeholders shall join hands and work together on this long haul.
KasturiPatto, Member of Parliament of Democratic Action Party in BatuKawan, Penang,started her speech by condemning the unjustified detention and deportation of the activist Adilur Rahman Khan from Bangladesh, who has barred from entering the country and supposed to join this conference. Many Malaysiansshared his sentiment as many of the members of parliament are now not allowed to go out and some not allowed to come in.
Kasturi represented her colleague Kulasegaran who was unable to attend today. The members of parliament have been building a task force to first focus on drug trafficking lead to death penalty. However, the government is in fact hypocritically listening to the public on specific matters. When people disagree with GST, they would not listen, but when public agreed with death penalty, they listened. This is indeed ironic particularly Malaysia is envisioned to be a progressive nation by 2050.
The executions in Malaysia in the past two years were all non-drug related cases. The cabinet has tried to start with amending Dangerous Drugs Act, particularly 39 (B), but no amendment was done in the last and current parliament sitting. Kasturiwith the party is trying to advocate the issue in line with SEA Games in coming parliament. The nation cannot execute people and at the same time welcome people to come.
What needs to be done is engaging with the public, humanizing the issue, making it a bread and butter issue, for them to warm up thinking “it could happen to me” especially in drug-trafficking cases.
One cannot advocate for the abolition by simply asking the question whether or not he/she supports death penalty. Yes and no question won’t work. Questions have to be custom made, with supporting proposals and reports backing up.
Kasturi thought that it is not abouther party and her own struggle to push towards the abolition of death penalty, but it has to be in collective efforts. “I love my country but sometimes I feel ashamed to realize that it is not cool to execute people anymore, especially you don’t work hard enough to end crime.” Indonesia has set up a commission on a parliamentary level to study the background of those on death rows – whether they came from a poor family, was the family abusive, were they victims of drug addicts, were they school drop-outs, were they illiterates – those are the contributing factors to see how young people got stuck into the cycle of poverty which makes them vulnerable to be exploited by drug dealers. We are yet to have something like that in Malaysia.
She used to request the number of Malaysians who are on death row abroad and on what offences in March 2017, but have yet to receive any answers. The Attorney General used to openly support the abolition, but he has been quiet recently. Basically Nazri and Azalina are pushing for the issue to be tabled and discussed in the cabinet, as far as Human Rights activists are concerned.
Mr. Sam, the representative from the Death Row Inmate Family Support Group, was the last speaker of the session. Mr. Sam’s brother was sentenced to death for murdering his wife who had suffered from depression. Since then, Sam joined a Buddhist group to serve the death row inmates and their families.
As the family of victim, Sam received a lot of support from the Buddhist counselling group. Every Tuesday they would visit the inmates and do counselling. He has received lots of letters and petitions from NGOs, parliament members, media reports who helped to cover the case and push for the abolition during his hard time.
Sam attended all hearings, during that time he still worked in bank, and had to take leave to attend court with lawyer. He spent almost all his money to help his brother to go through legal processes. They did not know what to do and have nowhere to seek assistance when the incident happened. The first lawyer they approached had lost the case, and they had to find another lawyer for appeal. They still lost. They had to seek pardon from the Sultan. At that time, he approached NGO to create awareness not only about them, but to the public.
Questions and Comments
Question 1 from Chow Ying to Kasturi: We have heard about politicians losing votes because of raising the issue of abolition, will this be your concern or your party’s concern?
Kasturi: It is just the risk that I have to take, I need to educate my constituents that you cannot pick and choose what kind of human rights issue that you want to fight and defend. As for my party, Democratic Action Party (DAP) stands firm to support the abolition of death penalty, and I stand along with my party line, and my moral and religious conviction, that there is no place in this world, for a government to take the life of a citizen rather than being committed to fight crime.
Question 2 from Wu Jia-Zhen to Mr. Sam: On your case, what were the responses you received from your own family and community? Was there any pressure from the neighbours?
Mr.Sam: When the news came up showing my brother killed his wife, people started asking whether I was the killer or the brother? I said if I were the brother I would not be here. We grew up in a poor family, my brother was not well educated, we seldom talk closely. We did not share with the public regarding what has happened when there were quarrels. After the incident, when I talked to my brother’s two daughters about their parents, the elder sister would keep quiet and cried, because she witnessed the incident when she was 7, whereas the younger was only 3. All my other siblings did not stay around. During that time whenever I walked out people would look at me. I told myself that I had to look forward. I had to thank the NGOs and the people who had helped me through the hard times and taught me to seek assistance.
SESSION 8: Conditions of Detention in Malaysia
To provide an overview of the conditions of detention in Malaysia and a discussion on specific cases as well as methods to gain access.
Facilitator : ShaminiDarshni
- Simon Karunagaram, Deputy Secretary, Communications Group, SUHAKAM
- Lim Chi Chao, The Malaysian Bar Council
Simon Karunagaram, the Deputy Secretary of the SUHAKAM Communication Group,introduced that there are 700 police lockups in Malaysia, with 200 still in use. There are about 36 prisons in the country, and about 13 immigration detention centres, in which they have access to all the above mentioned.
The prisons laws are covered by Prison Act 1995 and Prison Regulations 2000, and Nelson Mandela Rules, which is a UN standard minimum rules for the treatment of prisoners.
Out of the 36 prisons located all over the country, 26 places death row prisoners. Among the oldest prisons are in Taiping, Seremban, AlorSetar, Batu Gajah and Penang. Taiping was the first complex built in 1979. So the conditions of these five prisons are different from the others.
The SUHAKAM Commission members are allowed to the access to prison under the Human Rights Commission of Malaysia Act 1999 (Act 597) – Section 4 (1)(d) that allows inquiries into complaints regarding infringements of human rights; and Section 4 (2)(d) to visit places of detention and to make necessary recommendations.
Besides NGO members, visiting justice is also allowed access to prison. Under Section 65 (1) of of Prison Act 1995. A Visiting Justice may:-
(a) at any time, visit any prison in the State or Federal Territory for which he is appointed;
(b) inspect the wards, cells, yards and other apartments and divisions of the prison;
(c) inspect and test the quality and quantity of the prisoners food;
(d) hear the complaints, if any, of the prisoners;
(e)question any prisoner or prison officer.
Visits by judges and magistrates under Section 66 of Prison Act 1995 allows:-
(1) A Judge of the High Court, a Sessions Court Judge, and a Magistrate having jurisdiction in a place where a prison is situated may, whenever he thinks fit-
(a) enter and examine the condition of the prison and of the prisoners in the prison;
(b) question any prisoner or prison officer, and enter any observations he thinks fit to make in reference to the condition of the prison and the prisoners in a Visitors’ Book.
Facilities in Prison
- Healthcare – Most prisons have clinics, doctors, medical assistants, dispensary and sick bays.
- Medical examination upon admission
- Bedding in accordance with a scale approved
- Clothing shall be changed and washed weekly – prisoners wash their own clothes.
- Diet – Prisoners cook their own food. The general condition of the kitchens in prisons are better than in police lockups, where vendors are hired in cheapest price possible.
- Exercise and physical activities are allowed on daily basis
- Use of books and writing materials – they can write letters
- Education – access to books, library. There are schools for young prisoners.
- Workshops – batik, sewing, baking, handicraft etc.
- Family visits – 45 mins
- Phone calls are allowed.
Challenges in Prison
The main challenge in prisons are overcrowding. The overall capacity of the prisons in Malaysia are about 50,000 and the current capacity is between 51,000-52,000. The condition in Sg. Buloh and Kajang are particularly bad, as there are currently about 6,000 inmates in the prison which can only accommodate 3,000 inmates. Most of them are remand prisoners.
Secondly, the old prisons are still using bucket system instead of private toilets, and space are limited for each individual. The buildings are too old for renovation.
Moreover, water and electricity are insufficient. Blackouts happen. When being asked, the officers put the blame on prisoners for charging their handphones.
Other challenges in prisons include poor health facilities, excessive use of force, death in custody, punishment as rehabilitation, lack of budget and human resources.
For prisoners under death sentences, they are confined in a separate cell and kept apart from all other prisoners. The cell/room shall not be unlocked except under supervision. They are allowed to be visited by religious personnel, and given one letter a week. Family can visit every week for 45 mins or to write one letter in lieu. Legal advisers are allowed to pay visit as well.
In Tapah Prison for example, an inmate is allowed to keep 2 to 3 reading materials, MP3 player/Walkman, light exercise – indoor /40 mins twice a day, water dispenser, make phone calls, and special food without bones to avoid them from committing suicide.
However, the death row prisoners are not allowed to have activities like workshops, baking classes. Inmates are under very close supervision. The anxiety of “waiting to die” is often unbearable as they go through a long court processes from High Court – Appeal Court to Federal Court; then to Pardon Board to seek pardon from the King or Sultan. The lack of communication and mental pressure are hard to imagine.
Lim Chi Chao from the Malaysian Bar Council shared the conditions in lockups, a place when the person got arrested and has yet to go to court to be charged. The period would be 7 days to 14 days. There are two lockups in Kuala Lumpur located in Jinjang and Dang Wangi, with different designs and structures. In general, the lockups have two cells, one big one small. The small cell can fit 7-9 people, but it can go up to 15 people. The big cell is supposed to fit 15 people, but it can go up to 30. In some instances when the police detained thousands of people in entertainment centres, the lockups would get overcrowded.
How do they sleep in lockups? Basically, there is no bed and blankets like what prisons provided. The condition in Dang Wangi they can only sleep on podiums on cement. The condition in Jinjang is much better, whereby they got to sleep on the wooden plank on top of the podium, also with no blanket. There are flushed toilets, with unlimited water supply. Two toilets in big cell and one toilet in small cell. Cleanliness depends on the inmates themselves to sustain. Police will no send anyone to do housekeeping, however the area outside are quite clean as the inmates take turn to take care of the common area.
The food is budgeted at RM3.80. Breakfast is either bread or biscuit. Lunch would be rice, small piece of meat, small packet of vegetables, sometimes with fruits. The food are is small portion and according his client, tasteless.
There are CCTVs in lockups for safety purposes, due to previous cases of suspects committing suicide inside lockups. They could provide evidence for police to prove any death doesn’t caused by food or whatever.
Besides lockups, there are safety house or rumahtahanan for victims of human trafficking. Most of the time it would be overcrowded. Worse still, medical officers are not provided. Diseases would spread due to delayed medication. Detention centres are also in bad condition and troubled with overcrowding, not enough food and no medical supports.
When Lee was with the Bar Committee, they would meet up with the officer in charge of the police station to discuss and improve the situation. One problem now is that different prisons have their own in-house rules on how many people are allowed to visit etc. We are trying to push for a standard for that. The poor living condition is also taken action on, particularly medical access and food. However family or friends can send medicines from outside with prescriptions given by doctors, but it has to be given daily.
Lawyers can access to the client with two daysnotification beforehand. Friends are not allowed to pay visit unless they are guaranteed by closed family members.
Just to add on to previous discussion, Lee knows a prisoner in SimpangRenggam who has been on death row for 30 years. Most of the cases that got pardoned from the Sultans are drugs-related cases, and not so much on murder cases.
Questions and Comments
Question 1: Is there any sharing on the conditions in women prisons?
Simon: Based on personal experience, women’s conditions are better than men’s especially in terms of cleanliness.
Lim: As for lockups, they were given same food and medical service.
Participant added: Some women are not allowed to wear bras with reason given to avoid committing suicide. But this made them exposing themselves more, and we should look at this issue.
Lim: They are not separated in different cell but still in the same area, which can see each other through the bars.
Question 2: Regarding the issue of deaths in custody, do you or any organization have any power to investigate?
Simon: Yes we have the power to investigate.
Lim: The family has the right to hire a lawyer to investigate, the lawyer has the chance to ask the relevant officers questions in detention centre about the condition of the deceased before he/she passed away.
Question 3: Is there any arrangements for the prisoners to prepare before they go into prison and when they are inside? For example, do they get to choose any clothes they want?
Lim: They are allowed to choose what food they want to eat. From what I heard from the officers in prisons, if they request for special dish they will get one. The clothes are usually sent by their family members.
Question 4 from Susana: Is SUHAKAM aware of these conditions: (i) Now the inmates in some prisons do not get food in trays but in pails; (ii) During Ramadan some prisons only break fast at 11pm; (iii) If one prisoner did something wrong, the whole cell won’t get fish or chicken for a week.
Simon: (i) From what we know that is happening in Sg. Buloh prison because it is overcrowded. (ii) We have not learn about this issue, and will look into the details. (iii) Under the Prison Act, internal regulations are allowed, the officers can actually punish the inmates.
Question 5: Does the CCTV operate in toilets in police lockups?
Simon: Firstly, normally 8 out of 10 CCTVs in the lockups cannot function due to budget constraints. But yes, CCTVs are operating in toilets too, but the they are designed to only monitor the general movements in the whole cell, close-up details are not to be seen.
Question 6: Regarding the overcrowded problem in SgBuloh prison, what are the reasons?
Simon: Besides the reason of having too many remand prisoners, we need to look at the whole justice system. There are also economical and social reasons, where prisoners who are poor could not get bailed and can only stuck inside the prison.
Lim: Based on my own experience, the court usually give bails even for non-minimal offences. But like Simon said, those who are in remand are either they are unable to pay the bail, or their cases are unbailable.
Question 7: The access to prison with lawyer, how frequently and for how long can the permit lawyer’s application last? Do lawyers have medical access to prisoner’s records? Is the communication censored?
Lim: You can access to the prison by submitting notice to the officers two days prior to visit. There seems no restrictions on how many times a lawyer can visit the client in a month. The visiting hour is 1 to 1.5 hours for every visit, regardless of how many clients you are visiting. Lawyers can request access for prisoner’s medical records by writing to the Court. Communication is censored.
DAY 2 – 22 July 2017
SESSION 9: Poverty, Crime, and the Death Penalty – An Indian Experience
To discuss the social aspects of the death penalty and to provide understanding on how the poor are often times the ones subjected to capital offences and how poverty resorts to unequal justice.
Facilitator : Ted Tan
Speaker : Himanshu Agarwal, Associate, Centre on the Death Penalty, National Law University Delhi
**This session was scheduled at Session 4 on 21st July in the agenda, but postponed to the first session on 22ndJuly 2017.
HimanshuAgarwalfrom the Centre on the Death Penalty in Delhi, Indiahas been conducting researches and projects about mental health of the prisoners on death rows. In this session, he mainly focused on presenting the findings of the Report on Death Penalty India Report released in 2016from National Law University, particularly the social impacts of poverty on prisoners.
The definition of poverty in this session in understood under the Committee on Economic, Social and Cultural Rights which states that “a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.” (E/C.12/2001/10, para. 8)
Most prisoners did not have any documentation on their statuses of income, as most of them did not even have stable financial system.Nonetheless, based on the Report on Death Penalty India Report which included 373 prisoners (12 women, 361 men) from June 2013 to January 2015 via conversational interviews and questionnaires with prisoners and their families, “economic vulnerability” was a main factor that leads to crime and death penalty. Economic vulnerability is understood from occupation and land holding. 74.1% (273 prisoners) are economically vulnerable, whereas 25.9% (96 prisoners) are non-economically vulnerable. 63% of the prisoners were major contributors to family income. Other recent reports also suggested similar findings for under-trial prisoners.
The educational profile showed that 61.6% prisoners did not complete secondary schools. Based on cross-referenced results, 30.2% (108 prisoners) were economically vulnerable, had not completed their secondary education and belonged to the religious minorities.
The Effects of Poverty
The poverty status of the prisoner would easilymake them suspects of committing crimes. Himanshu mentioned the case of Adambhai Suleiman Ajameri, in which he was picked by the police and accused of involving in an act of terrorism in 2002. He was poor and belonged to a religious minority group, and these economic and social vulnerability have made him an easy suspect that led him to the death row for 11 years. He was acquitted in May 2014 by the Supreme Court.
Another vulnerability of being poor is that the prisoners have less capacity to participate in legal processes. In the case of Saiful Ali, he was arrested and lodged in a police station distanced three hours away from his house, making it nearly impossible for the family to trace him immediately. No one from Saiful’s family was informed. Saiful did not know what rights he had as a prisoner, and no lawyer was provided to him, even after he was presented before a judge.
89.4% prisoners did not have a lawyer at the time of their first production before the Magistrate. 80% prisoners said they were tortured in police custody, and 78.3% of them admitted that they made confessions due to torture.
During trials, chances for the accused to participate in trial have been minimum, and that usually leads to no defence witnesses being examined. The prosecution witnesses are not properly cross examined, and the accused does not have enough capacity to engage a skilled lawyer. 70.2% prisoners said that their trial court lawyers did not discuss their case details with them. 68.4% prisoners never interacted with or even met their High Court lawyers. 44.1% prisoners did not know the names of the lawyers representing them in the Supreme Court.
The absence of interaction played out significantly during the sentencing phase of the trial. Most cases had no mitigating evidence presented and after conviction the sentence was passed on the same day.How has poverty presented is also important. If poverty was seen as the cause ofcommitting crimes (ie. kidnapping for ransom, murder arising in a property dispute), it would be considered as mitigating circumstance, otherwise it’s rejected. The judge’s opinion study showed that most Supreme Court judges felt that socio-economic circumstances were irrelevant in sentencing.
Impacts on the Families
It is not only that poverty leads to death penalty, but death penalty also leads to poverty of the families. Himanshu recalled a family member of his client once said: “Although it is the convict who is sentenced to death, but it is his family that dies everyday”.
The immense stigma attached with the death penalty also attached with the family of the convict. Many families have had to migrate and move out because of this stigma. Moreover, the family would have enormous mental sufferings for fearing the prisoner may be executed. The condition of the death row inmates inside the confinement would always add to the pain and sorrow.
The prisoner on death row spends about 16 hours in solitary confinement. Central jails are usually with gallows for execution. Since the gallows are usually not anywhere in the city, families would need to spend money, energy and time to meet the prisoners.
Trials need money too, and the burden of spending and looking for money would be on the families. According to the report findings, 70.6% prisoners at the trial court and 68.7% prisoners at the High Court level had private representation. However, the figure fell dramatically to 29.9% when it does to the Supreme Court.Of the prisoners accessing private lawyers in the trial courts and High Courts, 70.6% were economically vulnerable.
Questions and Comments
Question 1:Does the state help to appoint lawyer for those who can’t afford one?
Himanshu: At the Supreme Court yes, but I have yet to see a single case in the Magistrate to have a lawyer appointed for the accused. Even if there is lawyer appointed, he/she would have big difficulties in accessing any information to prepare for the case.
Question 2 from Chow Ying: How do you gain access to the prisoners and the families to obtain the numbers on torture?
Himanshu: We get in touch with university research centres, contact the institutions for access. We have projects to track down the families of the prisoners, and 80% have admitted that they were tortured. We don’t have the study for those who are not in death row, but I suspect the results are similar.
Question 3. Why do you connect poverty to land ownership instead of family income?
Himanshu: We won’t know the family income, but we can look for other indicators, and the size of the land holdings said something.
Question 4: Is there any remedies for people who are subjected to torture?
Himanshu: In fact it was supposed to be the responsibility of the state, unfortunately the State is not doing anything. Now you can’t even speak out that you’re tortured even when you have the evidence.
Comment from World Coalition: The materials presented in this session is very important reference for the 15th World Day Against the Death Penalty: Poverty which will be held at 10 October 2017. Participants may take note on that.
SSESSION 10: Towards Abolition of Death Penalty in Malaysia (Part 2)
Facilitator : Ricky Gunawan, Director of LBH Masyarakat (Indonesia)
- Andrew Khoo, Presentation of Public Opinion Survey in Malaysia by the Death Penalty Project and the Malaysian Bar Council
- Ngeow ChowYing, KL and Selangor Chinese Assembly Hall (KLSCAH) Civil Rights Committee
- Cheng SokFok, Representative from Prison Counselling Group
Andrew Khoo presented the results of the survey commissioned by The Death Penalty Project in Malaysia, that was designed and analysed by the University of Oxford. It was lead and carried out by Roger Hood from the Centre for Criminology in 2012, and was reported in 2013. A total of 1,535 Malaysian citizen from all over the country were participated in this survey through face-to-face interviews between 8 November and 28 December 2012. The survey looked at the public opinion on the mandatory death penalty for three specific offences, which were drug trafficking, murder and firearms offences.
When the respondents were asked whether they are concerned with the death penalty issue in general, 48% were interested, while 36% were not. When they were asked whether they the statistics about the death penalty? 66% admitted that they did not know any statistics of execution in Malaysia, and less than 18% used to talk about this issue with the others. This showed that there is a big ignorance among Malaysian citizens regarding the issue of the death penalty.
The findings of the general questions of whether they support mandatory death penalty for the three offences were stated as below:-
- Between 25% and 44% were in favour of the mandatory death penalty for drug trafficking depending upon the drug (whether heroin, cocaine, amphetamines, cannabis or opium) and the amount of possession. 80% among those were strongly in favour (without being asked to differentiate between the five types of drug). Thus, 20% were strongly in favour of mandatory death penalty for trafficking heroin of 15 grams or more.
- 56% said they were in favour of the mandatory death penalty for murder, 88% of them being strongly in favour. Thus almost 50% of all respondents were strongly in favor of the mandatory death penalty for murder. Murder was the only one of these three types of crime for which at least half the respondents supported the mandatory death penalty.
- 45% were in favour of the mandatory death penalty for Firearms Act offences, even when nobody had been killed – 78% of them being strongly in favour. Thus, 35% of Malaysians were strongly in favour of the mandatory death penalty for firearms offences.
- Only 12% said that they supported the mandatory death penalty for all these types of crime (including separately all five drug offences) for which it is laid down in Malaysian law
- 70% said they were in favour of the mandatory death penalty for at least one of these of crimes
- 76% were in favour of a discretionary death penalty for at least one of these crimes; and • 30% did not favour the mandatory death penalty for any of these crimes
Regarding the background of the respondents, although many friends always think we shouldn’t bring down things to ethnicity, it still helps to a certain extent to show whether racial, cultural and religion influence the perspectives in death penalty.
In Peninsular Malaysia, 54% of the sample who classified themselves as Malays, were more in favour of the mandatory death penalty for murder (62%) than were the 27% who were Chinese, 54% of whom were in favour, and the 8% of the sample who said they were Indian, 52% of whom favoured the mandatory death penalty for murder. However, among the respondents who said they belonged to one of the other ethnic groups (the non-Malay Bumiputera), who comprised 11% of the sample, only 38% were in favour.
For trafficking in heroin, Malays (26%) and Indians (27%) were slightly more likely to support the mandatory death penalty than were citizens of Chinese origin (23%) and non-Malay Bumiputera (19%). The same pattern was observed for firearms offences.
In relation to religious belief, those who said they were of Islamic faith (60% of the sample) were more likely (60%) to say they were in favour of the mandatory death penalty for murder than were the 22% who were Buddhists and seven per cent of Hindus – 53% of both groups being in favour – and the nine per cent who were Christians (46% in favour). For smuggling heroin, Hindus (28%) were slightly more likely to favour the mandatory death penalty than were Muslims (25%) and Buddhists (22%), although Christians were the most likely (31%). This pattern was also found in relation to firearms offences.
When the respondents were given different circumstances of the cases, their supports to mandatory death penalty decreased. Several cases were mentioned and results were varied.
It seems that a lot of people are still influenced by the idea of retribution, not rehabilitation but revenge. They tend to believe that if one takes a life, he/she deserves to lose his/hers. But only 15% said death penalty is a deterrence sentence.
The conclusion of the survey showed that although a higher proportion of respondents (56%) said they favoured the death penalty to be mandatory punishment in all cases of murder, when they were provided with different ‘scenarios’ – some with aggravating and some with mitigating features – only a mere 14% of minority chose death as the appropriate penalty for all the cases they were asked to judge. This is only 8% of all 1,535 respondents. Furthermore at least 70% did not think that persons convicted of murder in a ‘joint enterprise’ who had not actually killed the victim, should be found guilty of murder and, thus, liable to be punished by death.
The whole outcome of the Death Penalty Project Malaysia Report can be viewed here: http://www.deathpenaltyproject.org/wp-content/uploads/2013/07/Malaysia-report.pdf
Cheng SokFokfrom the Prison Counselling Group delivered his sharing in Chinese and was interpreted by NgeowChow Ying. He has been giving prison counselling for 20 years, and now he is working in 7 prisons for about 300 sessions in a year, all on self-funded basis. His persistence in doing this voluntary job is because of the positive human interactions and stories he received over the years. In the past three years, he has known about 32 death row prisoners being released on appeal.
Most prisoners would lose hope and mental capacities while waiting to be executed. What Cheng and his groupdo is to accompany them, listen to them, give them counselling and teach them about Buddhist teachings. They would encourage them to have hope in life, hope would be there as long as they are still alive. Prisoners are encouraged to fill their time with writing, painting, doing handicrafts even though resources for those activities are limited and often needs applications.
Most inmates come from poor families, if they ask lawyers to write a clemency petitions for them, some lawyers would charge them RM 5000 for one letter, and they would not be able to afford that. Inmates who are illiterate do not know where to go and who to seek help on this last chance of clemency.
A few weeks ago, one of Cheng’s students was being executed, and that caused him sleepless for nights. He hopedthat civil societies and the international NGOs can speed up for the abolition campaigns because some inmates have been waiting for too many years, until their families have also given hope on them.
He hopedthat all the efforts the inmates have put to change can be seen by the public, and that the government will stop executing people one day. We all know that the authority will not take initiative to pardon, but for those who have been putting behind the wall with nowhere to go and no one to look for, are diminishing day by day and losing hope.
Ngeow Chow Ying who has beena member of Civil Rights Committee (CRC)in KLSCAH for six years,shared her experience and reflections, as well as the challenges of doing the death penalty abolition campaign in Malaysia.
Many civil societies faced the same problem that they were not formed to deal with only single issue, but always work on many other issues such as aboriginal rights, death in custody and so on. CRC is especially the case.
Secondly, given that Malaysia is a multicultural and multilingual country, campaigns or movements always have to take care and be aware of the language and cultural difference within the nation. CRC’s biggest base is the grassroot Chinese community, even though they have also tried to approach other communities with different languages and religious practises. In the past few years they have been working with other NGOs such as Amnesty which is more English-based, and Bar Council that consisted mainly English-speaking “upper class” community.
Ngeow believed that good integration within the civil societies are necessary in Malaysian context. CRC has been buildinga close knitted network with rights-based NGOs, but there are still many NGOs that can be approached and reached out to, such as prison counselling groups, drug rehabilitationcentres which was the place that dealt with drug abusers in the society. Imagine if a veteran from a drug rehabilitation centre come out and say “hey, executing drug traffickers will never solve the problem of drug abuses”, or doctors speaking out about the mental health of the prisoners and their families, they would add more convincing voices to the movement.
Ngeow was inspired by the research project in India by looking at the profiling of the death row inmates. Unfortunately, in Malaysia it is yet to be done. Figures and data were often taken from the internet, media reports and parliamentary answers. More studies and researches relating to deterrent effects and death penalty should be conducted in Malaysia or within Asia region. At times, they faced difficulties in showing new figures or stories to the public while campaigning, because even basic information is hard to get from the government.
Ngeow also suggested that media needs to be engaged more actively, whether print or digital, online or offline. One challenge they faced while engaging with the media was, sometimes when a reporter did exclusive interviews on the organization and the campaign, then moved on to another issue after news reports are completed. But when there is another event, another reporter would come and ask the same question, as if they had no idea what wasthe campaign about. Hence, consistent education of the media is important in Malaysia, as correct and constantly updated messages need to be sent to the public.
In terms of legal assistance, CRC has managed to provide lawyers to help those in poor financial condition on pro-bono basis. However, much more legal representatives are in need.Ngeow recalled alawyer friend actually confessed that “I can do this for free, but I can’t keep doing this for free”.
Questions and Comments
Question 1: Is the report Andrew presented provided only in English? This is also happening in Singpore where most reports released and published are in English, but the public in other language pools should be engaged actively by the organizations that start the initiatives too.
Khoo: Short answer is no. Primarily the target of the report is to ultimately convince the government. That is why the main intention of the report is to find the evidence of the supports and non-supports of mandatory death penalty, and to show to the policy makers, legislators, judges, in order to influence them in decision making.
Question 2 from Connie: For the survey, did you ask different views from different political parties? Did they change their position before and after the election? For Chong, do you do anything on the day before the execution?
Khoo: Did the report go to political parties? Short answer is no, because it was meant to be a public opinion. It was not an issue that directed to political parties. In the previous parliamentary session that talks about death penalty, I took a look at the attendance list and it was so predictable, all members from opposition party were there and government members were not. This is not an issue that will generate huge political traction from the government, MPs who form the majority.
Chong: On the day before execution, the prison will allow the religion groups to do counselling, but the time period for hanging is too long. For example, they do counselling in the morning and the hanging is the next day evening. It is usually during this time that the prisoners collapse. More time should also be given for the last counselling before execution.
Question 3 to AndrewKhoo: What is the logistics of doing the survey, ie. how many are involved, how much it was spent, in what language it was conducted and targeted at, so it can be reference for other societies to conduct one.
Khoo: Practically, the survey was not done by the Bar Council but the Death Penalty Project, so we left details to them. What we have are only broad information, that 1,535 people were surveyed, and face-to-face interviews were done in different languages, in whichever language the person being interviewed felt comfortable responding to. I have no information regarding the cost of the survey at the moment.
Comment from Chow Ying: Many Malaysians and Singaporeans still believe that the death penalty has deterrent effects. Nowadays people don’t like to read words, so it needs more different approaches like visuals. KLSCAH did an exhibition and worked with curators, artists to reach to more audiences.
Khoo: We used to have exhibition in shopping centres, and used stories to attract people. Unfortunately, this is still not a “sexy” topic that people would easily get interested.
Question 4: How effective would clemency application be?
Khoo: Clemency petitions did workfor very long time and chances for approval to be granted are there. The problem is that it did not work systematically, because each state decides in its own way, to a certain extent, it is very much depending on the opinion or the feelings of that rulers, and his (it’s always a he) attitude on the issue.
There were criticisms asking whether the rulers are guided by any advices, as Malaysia is still a constitutional monarchy. But nonetheless the ruler from each state would cover himself by recommendations from the states’ pardon board. In order to make that recommendation, there will also include the attorney federal general, and the current attorney federal general is not a strong supporter of the death penalty abolishment. Nonetheless clemency does not only bound to death sentence, any crime can appeal for clemency. So, at times the rulers would grant some clemencies for the prisoners on their birthdays.
SESSION 11: Mental Health and the Death Penalty
To provide capacities for advocates, especially lawyers, to strengthen legal arguments for those with mental illnesses.
Speaker : Julian McMahon, President, Reprieve Australia
Jullian McMahon, the President from Reprieve Australia began his presentation by asking the most fundamental question: Why does it matter at all to deal with mental illness and disabilities? To explain, one has to acknowledge that a mentally-illed person is especially vulnerable, just like a child. Once he/she is diagnosed with mental illness, he/she has to be treated in a humane way.
Over the years, campaign advocators have talked about taking action to stop execution on the young, the very old, and stopping execution on inmates with mental disabilities would clearly be the next step.
Internationally, it has been generally accepted that executing a mentally disabled/-illed person has no purpose and meaning. The reasons come with different arguments in different parts of the world, from the ancient ideas in China and Japan, the English Common Law to the Jewish Law. This is because crime is about intention, punishment is about deterrence. So, if a person has no intention to commit the crime, or if he/she is insane enough to not knowing what he/she is doing, sentencing to death for deterrence has no point.
For lawyers, the case cannot proceed if the client is mentally-illed/disabled, because lawyers would not get full instructionsfrom the client who might not be able to fully participate in the trials. This can be very difficult circumstances, as the lawyers might only come to understand the client’s mental status in the middle of preparing the cases. Lawyers will then have the responsibilities to be make professional judgements, to prepare to fight with the judge for the benefit of the clients, by claiming that the trial cannot proceed because of the mentality and inability of the client to give instructions.
Secondly, what are the key categories that lawyers have to deal with? The terms of mental health such as mental retardation, mental illness, mental disorder,even insanity, are different in medical and legal documents. For instance, mental disability usually refers to in-born or got in early environment, life-long condition in mind. In law, it is still called mental retardation which is linked to intellectual deficit, that the person would be assumed not being able to work and cope with life. Therefore, the lack of clarification needs to be aware of.Terms that have been accepted might not be accepted today. The decision made by the UN Supreme Court in March 2017 can be served as an authoritative reference, in which checklists are provided for identification.
He reminded that if the lawyers are dealing with a case that looks like it is going to end up being a death penalty case, they need to do all preparations and works concerning mental health prior to trial or sentencing, or else the case would be very hard to be acknowledged.
There are still a lot of biases, prejudices and confusions on mental illness in different regions around the world, with some people even blame it on religion. He mentioned a case in which the client walked into a mosque one day, stepped on some people and killed one. It seemed to be a clear-cut murder case, however made no sense. He was diagnosed as a drug abuser. They sent him to a top psychiatrist who insisted that there was nothing wrong with a drug abuser who committed murdercrime need to be put in jail. Julian and him were not satisfied, and they went back to his family to ask for his life stories. Then they got to know thatthe murderer had done a lot of strange things throughout his life. The second doctor acknowledge that he had been mentally-illed all his life. Life was unbearable that he took drugs to spare life. They prepared all materials to the prosecutions with three medical opinions from the defence, two of which said he was mentally-illed. In the end, the man was put in mental institution despite killing people.
The international community should build a stronger network by using and sharing more resources. ADPAN is a decent platform for all to use. Under international law, one should not be executed because it is simply cruel, unusual and a breach of ICCPR.
Lastly, Julian McMahon closed his speech by mentioning M. Ravi, a veteran activist from Singapore who has been lobbying for the abolition of death penalty for more than 2 decades. He has been suffering from mental illness (bipolar) in recent years, his practising permit was revoked due to his illness, and he is going to lose his house foe not being able to pay rents. We should remember him, especially in this session, wish him well and in good health.
SESSION12: Lobbying the World for the Abolition of Death Penalty in Malaysia – UPR and UN Mechanisms
To discuss and consider the effective use of international tools and mechanisms for campaigning and its challenges.
Facilitator : Charles Hector
- Jennifer Jokstad, United Nations Human Rights Office of the High Commissioner/OCHR
- Yap Swee Seng, Former Executive Director, FORUM-ASIA, International Lobbying Group working at the United Nation
Jennifer Jokstad delivered her speech from Bangkok, Thailand through skype. Firstly, she introduced the UN Human Rights Office which was mandated to promote and protect all
human rights in all countries, through standard-setting, monitoring, and implementation on
the ground. The Regional Office in Bangkok where she works, covers human rights issues that OHCHR focuses on in South-East Asian region include freedom of expression, freedom of assembly, economic, social and cultural rights, arbitrary detention, torture and of course the death penalty. One of the main priorities for the office is also to strengthen and support the work of civil society and human rights defenders in the region who work on the issues mentioned above.
Although there is still no international consensus regarding the use of the death penalty, the United Nations opposes the death penalty because it “negates the right to life and its
application raises serious human rights concerns”. Furthermore, death penalty is in contravention of the right of every individual to life, liberty and security as set out in Article 3 of the Universal Declaration of Human Rights (UDHR). The UN Human Rights Office advocates for the universal abolition of the death penalty, under its mandate to promote and protect the enjoyment and full realization of all human rights.
Amongst the main reasons to advocate against the death penalty are: the fundamental nature of the right to life; the unacceptable risk of executing innocent people by mistake; and the absence of proof that the death penalty serves as a deterrent to crime.
Since 2007, the UN General Assembly has also been calling for a global moratorium on the death penalty. In line with General Assembly resolutions calling for a phasing out the death penalty, the UN Human Rights Office supports Member States, civil society and other stakeholders campaigning for a moratorium on the death penalty and ultimately its
Today, more than 160 Members States of the United Nations have either abolished the
death penalty or do not practise it. These countries represent diverse legal systems,
traditions, cultures and religious backgrounds.
However, despite these positive trends globally, several countries in South-East Asia are still practicing the death penalty or have not yet fully abolished it, including for offences that are not seen as ‘most serious crimes’ such as drugs related offences.
As a response to this, the UN Human Rights Office monitors and documents the use of the death penalty and analyses trends and developments across the region, including national legislations on death penalty. The office believes in continuous cooperation and
constructive dialogue with governments and other national stakeholders, whose support,
engagement and commitment is crucial in the fight to abolish the death penalty.
The Office also advocates for the ratification of international human rights conventions,
including conventions that touch upon the death penalty, such as the UN Convention
Against Torture, the International Covenant on Civil and Political Rights the Second Optional Protocol to the ICCPR which specifically aims at the abolition of the death penalty. Unfortunately, Malaysia has a relatively low ratification rate of International Human Rights Conventions and has not yet ratified any of these conventions.
There are also several UN human rights mechanisms available which play an important part in advocating against the death penalty. For instance, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Ms. Agnes Callamard, who is an independent expert appointed by the Human Rights Council, has a specific mandate to seek, receive, examine and respond to concerns about all violations of the right to life. In addition to conducting thematic research and presenting reports to the Human Rights Council and General Assembly, the Special Rapporteur also undertakes official country visits to examine the situation of extrajudicial, summary or arbitrary executions in the respective country, and to formulate recommendations to the Government and other actors on upholding the right to life. However, to undertake country visits, Special Rapporteurs must receive an official invitation by the concerned government.
The Special Rapporteur also sends allegation letters and urgent appeals to governments and other relevant actors, and issues press statements, with regard to individuals reported to be at risk of imminent executions, as well as on past alleged cases of executions. In the case of imminent executions, these letters can contribute to raising the profile of the individual concerned and may even provide a form of protection. All letters and responses from the government are published on Special Procedures’ website and can also serve as a useful advocacy tool for defenders.
Moreover, through the Universal Periodic Review, which is a unique State-driven process
that involves a review of the human rights records of all UN Member States, specific human rights concerns, including the death penalty, is discussed. Civil society can also submit reports on the use of the death penalty and these reports will be compiled in the ‘other stakeholders report’, which together with the government’s report and the UN’s report are the three core reports under review.
During the Universal Periodic Review of Malaysia at the United Nations Human Rights
Council on 11 February 2009 and its second review on 24 October 2013, the Malaysian government received a number of recommendations from member states regarding the use of death penalty, in particular regarding the mandatory death sentences, and calling for a moratorium on the death penalty.
This conference provides an important opportunity for anti-death penalty activists from diverse backgrounds to come together to share their experiences and work together.
Yap Swee Seng followed by sharing the ways to lobbying the world for the abolition of death penalty in Malaysia, mainly through Universal Periodic Review (UPR) Process and UN Mechanism.
The UPR Process takes place in Geneva every 4.5 years, and Malaysia has gone through once in 2009. The process includes submitting reports in the first year, which is where the NGOs campaign for the issues of their concerns. The NGOs have to engage with the government to make sure their concerns are addressed in the reports. NGOs should write their own reports as alternative reports to be submitted apart from the state report submitted by the government. The Working Groups then would look into these reports, and in the UPR would have the session opening for everyone to discuss and adopt the actual recommendations. The NGOs can make statements in the process, but Yap thinks that the intervention from NGOs comes too late and the time given to them are too short.
After recommendations, implementation will be initiated under the supervisionof the Human Rights Council. After four years, a new cycle begins again.
It is important for the UPR process to start at the capital level. For example, NGOs should lobby with the embassies before going into UPR process to double the efforts and resources. The embassies are able to make intervention and try to push recommendations in the UPR process.
The UPR Review of Malaysia in 2009 made 103 recommendations in total, 62 were accepted, 22 rejected, and 19 in unclear position. Recommendations from Djibouti, Lithuanian, Italy, Israel, Chile on abolishing death penalty and moratorium have been made, but all recommendations were rejected by the Malaysian government.
It is important to know what countries are concerning about Malaysia, so the NGO can always go to them for problems, advices or supports. It is also ironic that the officers are easier to be met in Geneva than in Malaysia.
The UPR Reviews of Malaysia in 2014 made 232 recommendations in total, 113 were fully accepted, 21 were accepted in principle, 15 partly accepted (including those on death penalty), and 83 were rejected. The rrecommendations on death penalty and moratorium were made by more countries which include Ukraine, Egypt, Ecuador, Australia, Bulgaria, Sweden, Cyprus, Belgium, Spain, Germany, Albania, Switzerland, Mexico, Norway, Montenegro, Chile and France. Most were Western countries. Malaysian NGOs should try to engage and lobby more Asian Pacific countries to speak and involve more closely.
In response to civil societies’ demands on creating moratorium and abolition of death penalty, the Malaysian government reacted by having AG Chambers to undertake a comprehensive study. Findings and recommendations of the study will be presented to the Government for policy consideration and decision. The country has also discontinued application of the death penalty on minors. Malaysia rejects the assertion that seeks to equate torture, inhuman, cruel or degrading treatment or punishment with corporal punishment, including whipping and other forms of punishment as prescribed under existing laws.
UN Treaty Bodies is the committee that oversees the implementation of different conventions in UN Human Rights Council. The country has to rectify the conventions for the NGOs to use the mechanism. The convention that related to death penalty is ICCPR, but unfortunately Malaysia is not a party to the convention.
The submission process is similar with the UPR process. Malaysia have rectified three conventions – Child Rights Convention (CRC) which prohibits all forms of discrimination of the child and women, Convention on the Rights of Persons with Disabilities (CRPD), and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The local NGOs should utilize these tools to lobby their concerns, for instance, CRPD can be used when lobbying for mental illness.
UN Special Procedure is another useful tool as it does not require a country to rectify certain convention. Any NGO can send complaints for the UN to put pressure on certain issue. The procedure includes country visits, communications, expert consultation, technical assistance, annual reports. This is where Malaysia can raise the issue of death penalty and get international attention.
Other international bodies that NGOs can go to include the Office of the High Commissioner for Human Rights (their OHCHR office in Bangkok is especially importnat for the region), Global Alliance of National Human Rights Institutions (GANHRI), and Asia Pacific Forum of National Human Rights Institutions (APF).
In 2016, SUHAKAM joined the 6th World Congress Against the Death Penalty held in Oslo. The Congress encouraged NHRIs to “to systematically add questions on the death penalty to their agendas and to encourage their States to abolish the death penalty vote in favour of the UNGASS resolution calling for a universal moratorium on capital punishment in 2016”. NHRIs would also look forward “to working with all stakeholders, particularly in the lead up to discussion on the General Assembly moratorium resolution later this year, as together we seek to advance the abolition of the death penalty across the world.”
In short, all lobbyists and activists should follow up with the UPR processes and recommendations, to explore every possible interventions in Treaty bodies and the UN special procedures, to work with foreign embassies of respective countries, and to work more closely with NHRIs.
Questions and Comments
Question 1: Can retentionist countries like the UK and US make recommendations as well to abolition of death penalty?
Yap: Yes, they can.
Comment 2: There has been growing interactions between the treaty bodies reviews and the UPR, because in the treaty bodies the state does not get to say yes or no to the recommendations, but some are using UPR recommendations to adopt the implemented recommendations from the treaty bodies. So that could be really helpful in the UPR mechanism.
Also, even if the individual is unable to go to Geneva for the UPR process, he/she can still send documents or reports and statements to the office.
Comment 3: We need not only communication but effective communication to make change happens. That means not only reports and statements are at work, but media and other mechanisms need to be included for the campaign to success.
Yap: It is important for the NGOs to be creative to utilize whatever that is out there, may it be the UN system or other mechanisms. There are ways you can bypass the blockades set by the government and address the same issue by using other mechanisms.
Comment 4: The UN is not responding well to all submission.
Yap: Yes, it depends on quality of repertoires and how it is framed, as many recommendations are quite general. We shall go for the ultimate goal in campaigns and lobbies, at the same time set minor goals to achieve in shorter time.
SESSION 13: Marching on Towards Abolition of the Death Penalty in Malaysia
Presentation of possible synergy from the stakeholders and the strategies towards abolition of death penalty in Malaysia.
- Facilitator/speaker: ADPAN and conference members
All participants are invited to share their opinions, suggestions and observations for the drafting of the conference statement.
Susanna from Malaysia suggested the Amnesty to go to prisons to visit those who are in helpless situation and when the families are not available.
A participant from China hoped to have access to all materials and reports mentioned in the conference, for the participants to referand carry similar works in their own countries.
Lin Por-Yee from Taiwan also suggested to set up a discussion space online to continue with the discussions and stories, apart from sharing materials. (Charles Hector responded that all materials to be uploaded on adpan.org.)
Connie from HK thanked the organizer for providing this inspiring journey to learn about the situation in Malaysia, but it would be better to have more balanced sharing on other regions or countries in South East Asia or East Asia.
A lawyer participant shared that she has always been stuck inside her own circle, but this conference has opened up some other perspectives and providedher more bullets to talk and discuss the issue with friends. She suggested to have psychiatrists, doctors or medical professions to share their experiences and insights when dealing with mental health cases.
Presentation of the Draft of Conference Statement
Sarmad Ali, the member of ADPAN presented the Conference Statement after recommendations and editing were made by the participants.
*Attachment of the Conference Statement
SESSION 14: SMART Exercise
Participants will practice drafting and revising effective recommendations specifically targeted for the Universal Periodic Review.
Speaker: Amy Bergquist
Amy Bergquist began this workshop by putting forward the key point of: What makes a good UPR recommendations? The participants were given a list of real recommendations to discuss among themselves in groups, on the effectiveness of the recommendation, to evaluate and make some adjustments to improve the recommendations. Finally, they are to pick a topic relevant to Malaysia, and create their own SMART recommendations for the UPR.
Five criteria need to be considered while creating SMART recommendations: whether it is measurable, specific, achievable, relevant and time-bound.
** Attachment of the list of recommendations.
SESSION 15: Training on Conducting Fact Finding Mission
This session aims at demonstrating ways to conduct fact-finding missions, identifying the players to interview, what are the questions to ask, monitoring principles and security guidelines when carrying out fact-finding missions, preparing interview questions and role playing.
Trainer: Amy Bergquist
Amy Bergquiststarted by introducing her organization, The Advocates for Human Rights, that works to implement international human rights standards in order to promote civil societies and reinforce the rules of law. The organization coordinates closely with the World Coalition on human rights monitoring, creating reports and recommendations for the UPR, monitoring strategies and principles etc. As an NGO there are a lot of pro-bono attorneys in the US and Europe preparing to provide services free of charge for the abolition of death penalty.
Next, she explained that fact-findingas one of the main issues focused by the World Coalition this year. Members of the Coalition were encouraged to gather information about death penalty by doing fact-findings in respective countries. The results and the process are important for advocacy not only for own community, but also for the world.
Human Rights Monitoringis an important component in fact-finding. It involved collecting, verifying and using information about human rights violations, as well as documenting the results after processing and compilingthe results.The purpose is to help the victims, to raise awareness, to influence public policy, to provide early warning of potential violence, to pressure government to fulfil their obligations, to empower right-holders to handle the issue systematically, and to build the human rights movement.
KarynKaplyn, the co-founder of Thai AIDS Treatment Action Group used to say, “Documenting human rights abuses is the heart of human rights work. The effectiveness of human rights as a tool depends on the accuracy and comprehensiveness of the evidence gathered. It can contribute to educating and organizing as well as advocating at a political or legal level. Government leaders have been brought down through documentation of human rights violations; the power of the process, both for the victim and the perpetrator, should not be underestimated.”
The international human rights standards need to be studied and put into considerations through the treaties, declarations, and resolutions. Those standards might have flaws with the laws themselves, flaws might occur in implementation, government may fail to protect against human rights violations by private parties, and there may be lack of remedies for victims. Humanright monitors need to seekidentification and to investigate the gap between international standards and those standards in reality.
To get the whole story, systematicmeasures, societal attitudes and individualexperiences are among the three main criteria to belooked at – What is in laws, policies, and programs and how they are applied in practice, what the media and public opinion say about society’s attitudes, and what people tell us about their own life experiences.
The diagram below showed the four steps in Human Rights Monitoring:
STEP 1: PRIORITIZING in project planning
While determining the objectives of the project to be done, the key considerations include: (i) Need – is there a need for a monitoring project? (ii) Focus – what right, group, or area will the project focus on? (iii) Goal – what do we hope to accomplish through the monitoring project? (iv) Consultation – how can rights-holders and others inform our project?
Then, one should draw the connections between his/her project to international human rights standards, specifically with reference to the Universal Declaration of Human Rights, Nelson Mandela Rules, Vienna Convention on Consular Relations, Death Penalty Safeguards, International Covenant on Civil and Political Rights (ICCPR).
The methods of monitoring include interviews, media monitoring, forensic examinations, process observation, inspections, surveys, focus groups, community meetings, reviewing case files and legislative monitoring.
TheHuman Rights Monitoring Principles are also important to be put in mind:
- DO NO HARM (ensure safety and security) and put people in danger;
- Respect the mandate;
- Know the international human rights standards;
- Understand and consult with the community;
- Protect confidentiality of information;
- Always exercise good judgment/act professionally;
- Be impartial, objective, accurate, and patient.
Interview is one of the key components. When preparing the interview questions, start with international human rights standards, at the same time examine relevant laws, regulations, and policies. Open-ended questions are often more reasonable than yes or no questions. One shall begin with non-controversial and less sensitive questions. Ask for clarification of anything you don’t understand, as there may be no second chances. Avoid leading questions, ask questions in concise language (no lingo or slang), and let the interviewers tell their story, as detailed as possible.
After the detailed introduction given by Amy, participants are required to practice by narrating 5 interview questions out from the following three categories: Consular official (Vienna Convention Art. 36, Nelson Mandela Rule 62), Foreign-national detainee (Vienna Convention Art. 36, Nelson Mandela Rules 2, 58, 61-62) and Prison official (Vienna Convention Art. 36, Nelson Mandela Rules 2, 58, 61-62).
Afterthat, participants sharedtheir interview questions and Amy respondedwithsomereminders and principlesmentionedabove.
Before the conference ends, Charles Hector expressedhis gratitude to all speakers, moderators, participants, staffs from the organizers, and volunteers for makingthisconferencesuccessful and fruitful. ADPAN will continue to worktirelessly on the abolition of the death penalty, and hebelieved all otherNGOswillbedoing the same.
Conference Ends at 6:00pm.