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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Media Statement – 24/11/2017

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

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

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

SENTENCING DISCRETION TO JUDGES ONLY WHEN THE PUBLIC PROSECUTOR ALLOWS IT

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

 

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

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

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

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

NO REVIEW OF DISCRETION OF PUBLIC PROSECUTOR TO PROVIDE CERTIFICATION

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

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

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

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

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

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

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

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

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

MANDATORY SENTENCES CONTINUE TO EXIST

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

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

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

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

WHAT ABOUT OTHER MANDATORY DEATH PENALTY OFFENCES?

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

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

MADPET calls

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

Charles Hector

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

ADPAN – Pakistan:- NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

ADPAN

Media Statement – 22/9/2017

NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

Abolish the Death Penalty, And  Re-Introduce the Moratorium on Execution Pending Abolition

ADPAN is appalled reports that another 4 persons, tried by Pakistan’s military courts, may be executed soon after their death sentence was confirmed by the Chief of Army. This Military Court, which came into being in January 2015, for the purpose of speedily trying persons accused of committing terrorist offences, falls short of international fair trial standards and requirements, including the denial of the right to appeal.

Decisions of these military courts, unlike normal criminal courts in Pakistan, are not subject to appeals to the High Court and/or the Supreme Court.

This denial of the right to appeal means appellate courts will not have the  opportunity of  analysing  the  evidence  produced  before  the military court  or  dwelling  into the “merits” of the case.  This reasonably will increase the possibility of miscarriage of justice, and hence the likelihood of a person not deserving the death penalty (or even an innocent person) to be wrongfully deprived of his/her life.

The Chief of Army Staff General Qamar Javed Bajwa confirmed on Wednesday(20/9/2017)  the death sentences awarded to four alleged ‘ terrorists’. This ‘confirmation’ is really an execution order, and this four persons could thereafter be executed at any time. (Geo News, 20/9/2017; Sify.com 20/9/2017; Dawn 20/9/2017; Pakistan News Service – PakTribune 21/9/2017 ).

Shabbir Ahmed,  Umara Khan,  Tahir Ali and Aftabud Din, according to a government statement, vide the Inter Services Public Relations, stated that these 4 persons  were ‘involved in killing of 21 persons and injuring another person’ and also that ‘…arms and explosives were also recovered from their possession…’. It also stated that they were tried by military courts that then sentenced them to death.

Earlier this month, on 8/9/2017, it was also reported that Army Chief General Qamar Javed Bajwa  had confirmed the death sentence of four other persons, being Raiz Ahmed, Hafeez ur Rehman, Muhammad Saleem and Kifayatullah. (Daily Pakistan, 8/9/2017). These persons were said to have caused the death of 16 persons, and that arms were recovered in their possession. It was also disclosed that 23 others were also awarded imprisonment of various durations by the military courts.

Pakistan had a moratorium on executions for about 8 years, until the end of 2014, when it was lifted for terrorist linked offences, and thereafter for other capital offences. Since then, about 471 persons have been executed for various crimes.

After the December 2014 terrorist attack at the Army Public School in Peshawar, the Pakistan government set up this military court for speedy trial of detained terrorists. The military courts (Field General Court Martial – FGCM) came into being in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment.  This legislation had a sunset clause, and would have expired on Jan 7, 2017.

However, in March 2017, President Mamnoon Hussain signed the 23rd Amendment Bill 2017, which has now become an Act of Parliament, that had the effect of extending duration of the military courts for another two years, starting from January 7, 2017.

Article 10 of the UN Declaration of Human Rights stipulates that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ The trying and sentencing of a person/s allegedly committing a certain kind of offence before a special ‘court’, different from the  court having the jurisdiction to try criminal cases in Pakistan may also be considered discriminatory,

Article 14(5) of the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, states   clearly that, ‘ Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’

The current unavailability of the right of appeal to higher courts on convictions and/or sentences of these military courts is clearly is a violation of the International Covenant on Civil and Political Rights, and a denial of the right to a fair trial.

ADPAN calls on Pakistan not to proceed with the executions of persons convicted and sentenced to death by the military courts, until they have been accorded the right to a fair trial including the right to have the conviction and sentence reviewed by a higher tribunal, which would reasonably be the High Court and thereafter the Supreme Court of Pakistan;

ADPAN calls for the repeal of the Constitution Amendment/s and the law that created these military courts;

ADPAN calls for all persons charged with a crime in Pakistan be tried by the already existing criminal courts of Pakistan, and shall be accorded a fair and public hearing by an independent and impartial tribunal;

ADPAN calls on Pakistan to immediately re-impose a moratorium on execution, pending abolition of the death penalty.

 

Charles Hector
For and on behalf of ADPAN (Anti Death Penalty Asia Network)

Pakistan – 4 more persons death sentence by Military Court confirmed by Army Chief

On 20/9/2017, the death sentence of Pakistan's military court of 4 persons was confirmed. On about 8/9/2017, the death sentence of 4 others were also confirmed. The Military Court, that now tries civilians for alleged terrorist linked offences, came into being in 2015  - Below are some news report, plus also a news article entitled, 'Here's All You Should Know About Pakistan's Military Court

COAS confirms death sentence of four terrorists tried by military courts

Armed forces personnel transport militants in Lower Dir. Photo: File

Chief of Army Staff General Qamar Javed Bajwa confirmed on Wednesday the death sentences awarded to four “hardcore” terrorists involved in heinous offences related to terrorism, according to the army’s media wing.

The Inter Services Public Relations said in a statement that the suspects are accused of abducting/slaughtering of soldiers and attacking law enforcement agencies and armed forces personnel.

“On the whole, they were involved in killing of 21 persons and injuring another person. Arms and explosives were also recovered from their possession. These convicts were tried by military courts. They were awarded death sentence,” the statement reads.

Army chief approves death sentence for four terrorists

The army shared the following details of the accused:

1. Shabbir Ahmed, son of Muhammad Shafique. The convict was a member of a proscribed organisation involved in attacking armed forces personnel, which resulted in the death of Major Adnan and 10 soldiers. He was also involved in the kidnapping and slaughtering of four soldiers.

2. Umara Khan, son of Ahmed Khan. The convict was a member of a proscribed organisation and was involved in attacking armed forces personnel which resulted in the death of three soldiers. He was also involved in the destruction of Government Girls Primary School, Hazara. He was found in possession of firearms and explosives.

3. Tahir Ali, son of Syed Nabi. The convict was a member of a proscribed organisation and involved in attacking armed forces personnel, which resulted in the death of two soldiers.

COAS confirms death sentences of 30 hardcore terrorists: ISPR

4. Aftabud Din, son of Farrukh Zada. The convict was a member of a proscribed organisation and involved in attacking law enforcement agency personnel, which resulted in the death of a police official and injuries to another. He was found in possession of firearms and explosives.

All the convicts admitted their offence before the magistrate and the trial court, after which they were awarded the death sentence, said the army.

Earlier in March, President Mamnoon Hussain signed the 28th Amendment Bill 2017 extending military courts for another two years.

The bill, following the president’s signature, is now an Act of Parliament. Under this Act, the duration of the military courts has been extended for another two years, starting from January 7, 2017. – Geo News, 20/9/2017

 

Pakistan army chief confirms death sentences to 4 “hardcore terrorists”

Source: Xinhua| 2017-09-20 21:38:57|Editor: Zhou Xin

ISLAMABAD, Sept. 20 (Xinhua) — Pakistan’s army chief General Qamar Javed Bajwa on Wednesday confirmed death sentences to four “hardcore terrorists” who were awarded the capital punishment by military courts for committing offences related to terrorism, said the military media wing.

“The chief of Army staff confirmed death sentences awarded to four hardcore terrorists, who were involved in heinous offences related to terrorism, including abducting and slaughtering of soldiers, destruction of government girls school, attacking law enforcement agencies and armed forces of Pakistan,” a statement from the Inter-Services Public Relations said.

“On the whole they were involved in killing of 21 persons and injuring another person,” the statement said, adding that fire-arms and explosives were also recovered from their possession.

All of them were members of a proscribed organization based in Pakistan and were arrested from different areas across the country.

All of the convicts had admitted their offences before the magistrates and the trial courts, according to a statement.

The army courts were set up after the terrorist attack on an army school in the country’s northwest city of Peshawar in December 2014 for the speedy trial of the terrorism-related accused.

According to the legal experts, the convicts have the right of appeal to the president under the law. However, the president has previously rejected all the mercy petitions in terrorism-related cases. – Xinzua, 20/9/2017

Chief of Army Staff (COAS) Gen Qamar Javed Bajwa on Friday confirmed the death sentences of four terrorists involved in killings of 16 individuals and injuring 8 others, said an Inter-Services Public Relations (ISPR) press release.

The terrorists were involved in killings of innocent civilians, attacking law enforcement agencies (LEAs) and armed forces, army’s media wing said.

23 others have been awarded imprisonments “of various duration” by the military courts, according to the statement.

A Corps Commanders’ Conference in General Headquarters (GHQ), chaired by Gen Bajwa, “discussed internal and external security situation of the country and progress of operation Raddul Fasaad,” another ISPR press release said.

Details of the convicts provided by ISPR:

Raiz Ahmed s/o Ghularam Khan

The convict was member of a banned organisation. He was involved in attacking LEAs and armed forces which resulted in death of eight police and frontier constabulary officials, and injuries of five police officials. He was also involved in destruction of the Government Middle School, Aligrama. A firearm was found in his possession. Ahmed admitted his offences before a magistrate and the trial court. He was awarded death sentence.

Hafeez ur Rehman s/o Habib ur Rehman

The convict was a member of a banned organisation and was involved in killing of three civilians. He admitted his offences before a magistrate and the trial court. He was awarded death sentence.

Muhammad Saleem s/o Muslim Khan

The convict was member of a banned organisation. He was involved in attacks on LEAs and armed forces which resulted in death of four soldiers and injured another. A firearm was found in his possession. Saleem admitted his offences before a magistrate and the trial court and was awarded death sentence.

Kifayat Ullah s/o Dilresh

The convict was member of a banned organisation and involved in attack on armed forces which resulted in death of a soldier and injured 2 others. A firearm was found in his possession.He admitted his offences before a magistrate and the trial court and was awarded death sentence.


Pakistan had legalised military court trials of terror suspects for a period of two years in January 2015, soon after terrorists killed 144 people, mostly children, at an Army Public School (APS) in Peshawar. Military courts had been disbanded owing to a sunset clause on January 7 but resumed operations after Pakistan Army Act 2017 and the 28th Constitutional Amendment Bill came into force late March. – Dawn, 8/9/2017

Here’s All You Should Know About Pakistan’s Military Court That Gave Kulbhushan Jadhav Death Sentence

Maninder Dabas

May 24, 2017

479 SHARES

Pakistan’s infamous military courts are often called ‘Kangaroo Courts’ by the critics all over the world as they are known to sentence people without relevent evidence in the cases that are primarily aimed at vengeance against the rivals of the military establishment.

With former Inter-Service Intelligence (ISI) official Lieutenant General (retd) Amjad Shoaib admitting that Pakistan abducted Kulbhushan Jadhav from Iran, Pakistan’s claims of Jadhav being arrested on Pakistan’s soil have got punctured once again.

Now India can further use his admission to sabotage Pakistan’s bundle of lies and expose how the military courts in Pakistan are dictating terms and taking decisions on people’s lives as per their whims and fancies.

Pakistan is the only country in South Asia where military courts trial the civilians behind closed doors despite it being against the country’s constitution. It’s no more a clandestine fact that military is the de facto government in Pakistan and the civilian government, judiciary and all other institutions aren’t even the rubber stamps.

Here is all you should know about military courts in Pakistan

Military courts don’t share any evidence against the accused and their four-star generals play demigods and sentence people punishment as per their fancies and Kulbhushan Jadhav’s case of no different.

Military Courts have a history, but lately, they came into being after Peshawar school attack

The terrorist attack on an army school in Peshawar on December 16, 2014, in which 140 people mostly school children had died paved way for the revival of military courts.

On January 6, 2015, Pakistan’s Parliament unanimously passed the 21st amendment of the Constitution which legalised special military court trials for hardcore terrorists which also included suspected civilians. The courts were revived for two years and in these two years the military courts had awarded death sentence to 161 militants and roughly 21 have been executed.

AP

In January 2017, the trial period of military courts had expired, but in March Pakistan parliament once again extended their period for two more years.