Malaysia – 40 Groups Media Statement – 10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING – Abolish Death Penalty

Media Statement-14/2/2018

10 SENTENCED TO DEATH BECAUSE DELAY OF COMING INTO FORCE LAW THAT ABOLISHES MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING

Abolish Death Penalty

We, the 40 undersigned organisations, groups and trade unions are most disturbed and saddened that at least  10 persons, as reported in the media, have been been victims of the mandatory death penalty for drug trafficking  despite the fact that Parliament had already passed the law abolishing mandatory death penalty and returning sentencing discretion to judges vide the Dangerous Drugs Amendment Act 2017.

This Act, which was passed by Parliament and received royal assent on 27/12/2017, cannot now be used by judges to consider alternatives to the death penalty sentence until the Minister do the needful that will enable this life saving law to come into force. A perusal of the Malaysia’s Federal Gazatte website will disclose that many other laws that have obtained royal assent at the same time as the Dangerous Drugs Amendment Act 2017(DDAA 2017), or later, are already in force.

Section 3(2) of Dangerous Drugs (Amendment) Act 2017 states, ‘ (2) Any proceedings against any person who has been charged, whether  or  not  trial  has  commenced  or  has  been  completed,  and has  not  been  convicted  under  section  39b  of  the  principal  Act  by  a  competent  Court  before  the  appointed  date,  shall  on  the  appointed  date  be  dealt  with  by  the  competent  Court  and  be  continued  under  the  provisions  of  the  principal  Act  as  amended  by this Act.’

This DDAA 2017, when it comes to force, will only be applicable for cases where the accused person is not yet convicted. As such, if the court convicts before the new law comes into force, then the Judge is left with no choice but to impose the mandatory death penalty.

To date, based on media reports only, there are at least 10 persons, 5 Malaysians and 5 foreign nationals, who have suffered grave injustice by being convicted and sentenced to death simply because of the Minister’s delay in doing the needful:-

  • Pragasam(30) – Ipoh High Court(Malay Mail, 9/2/2018)
  • Ong Cheng Yaw(33) and San Kim Huat(38) – Kuala Lumpur High Court (Malaysian Insight, 8/2/2018)
  • Jonas Chihurumnanya(Nigerian) – Kuching High Court (The Borneo Post, 30/1/2018)
  • Gopi Kumar(33) – KL High Court( (The Sun Daily, 24/1/2018)
  • Sargunan(42), and four Indian nationals, namely Sumesh Sudhakaran(30), Alex Aby Jacob Alexander(37), Renjith Raveendran(28), and Sajith Sadanandan(29) – Shah Alam High Court (The Sun Daily, 22/1/2018)

A perusal of the website of the Malaysian e-Federal Gazette, discloses that several other Acts that also received royal assent on 27/12/2017, came into force on 30/12/2017. Some Acts that received royal assent on 29/12/2018 also came into force on 11/1/2018. Now, if the Dangerous Drugs Amendment Act 2017, had come into force fast, then these 10 persons, now on death row, may not even have been sentenced to death.

The new law, when it finally comes into force, does not provide the Courts, including the Appellate courts, the power to vary the death sentence of those already convicted by the High Court to imprisonment, unless the conviction itself is set aside on appeal.

In an ordinary criminal appeal, the convicted has the right to appeal against the conviction, and also appeal against the sentence. However, when the law provides for a mandatory sentence, in this case the death penalty, when the accused person fails in his/her appeal against conviction, then the courts cannot even review the appropriateness of the sentence as the law only provides for only one sentence is available – the death penalty for drug trafficking.

The dilemma facing judges, who are still denied discretion when it comes to sentencing until the new law is in force, is reflected by words of the judge that sentenced 5 persons to death -“Since there is only one sentence provided for under Section 39B of the Act, the court hereby sentences all the accused to death,” he [Judge Datuk Ghazali Cha] said.’. (The Sun Daily, 22/1/2018)

When the new law finally do come into force, the judge will have an option other than the death sentence, being life imprisonment with whipping of not less than 15 strokes.

Existing Inadequacies No Reason For Delay

There are still many flaws in the new Dangerous Drugs Amendment Act 2017, including the limitations imposed as to the matters that the judge can or should consider when deciding on an appropriate sentence, which goes against normal practice in other criminal trials where there are almost no restrictions as to the matters that can be considered by the judge in the exercise of his sentencing discretion. There have also been criticisms about the limited options that will be available, as it would certainly be more just for judges to be able to sentence persons to a lower prison sentence in appropriate cases and not just to life imprisonment only.

The new law, sadly, do not provide any remedy to those already convicted and/or for the 800 or more currently on death row by reason of having been convicted for drug trafficking.

Be that as it may, the new law does abolish the mandatory death penalty, and many who will be convicted after the law is in force, may end up not being sentenced to death.

There is always the option to amend laws later to correct any existing defects, and that certainly is no excuse for delaying the coming into force the DDAA 2017.

It is most disturbing that no reasons seem to have been given by the government and/or the Minister for this delay, which adversely affects persons like the 10, who now are facing the hangman’s noose.

Many of the persons convicted for this offence may even be first time offenders, young people, and /or persons forced into crime by reasons of poverty. As such, government may also bear some responsibility in allowing a situation where the poor are left with no option but crime just for the wellbeing of themselves and their family.

Some of those convicted and sentenced to death may also be parents and/or siblings of children, and most certainly death sentence can never be said to be in the best interest of the child. Malaysia, being a signatory of the Child Rights Convention(CRC), has an obligation to  ensure also that no parent, sibling or relatives of children are sentenced to death.

Abolition of Death Penalty and Mandatory Death Penalty

Minister in the Prime Minister’s Department Datuk Seri Azalina Othman, the new de facto Law Minister, during the Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking at the mandatory death penalty, but all death penalty.( “(The Sun Daily, 3/11/2016)

Currently in Malaysia, even after the mandatory death penalty is abolished for drug trafficking, there still remains about 11 other offences that provide for the mandatory death penalty, while about 20 other offences are punishable by a discretionary death penalty. Some of these mandatory death penalty offences are offences that do not even cause the loss of life or grievous bodily harm.

Malaysia must expedite the abolition of the death penalty, especially the mandatory death penalty.

THEREFORE, we

  1. a) Call on Malaysia to immediately put into force the Dangerous Drugs Amendment Act 2017, which to date the delay has already caused at least 10 persons to be sentenced to death because drug trafficking is still a mandatory death penalty offence until the new law is in force;
  2. b) Call on Malaysia to immediately cause to stay criminal trials of alleged drug traffickers until the new law is in force, which would give judges discretion to impose a sentence other than the death penalty;
  3. c) Call on Malaysia to expedite the abolition of death penalty, especially the mandatory for all remaining death penalty offences;
  4. d) Call on Malaysia to impose a moratorium on executions, pending abolition of the death penalty.

 

Charles Hector

Ngeow Chow Ying

 

For and on behalf of the 40 groups and organisations listed below

 

ALIRAN (Persatuan Aliran Kesedaran Negara)

ADPAN (Anti Death Penalty Asia Network)

Australians Against Capital Punishment (AACP)

ECPM (Together against the Death Penalty [Ensemble contre la peine de mort])

Center for Prisoners’ Rights Japan

Center for Alliance of Labor and Human Rights (CENTRAL) Cambodia

Democratic Commission for Human Development, Pakistan

FIDH – International Federation for Human Rights

Hands off Cain

Japan Innocence and Death Penalty Information Center

KLSCAH-Civil Rights Committee

Global Women’s Strike, UK

Legal Action for Women, UK

Liberia Coalition of Human Rights Defenders (LICHRD)

MADPET (Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility

MARUAH, Singapore

Migrant Care

Odhikar, Bangladesh

Parliamentarians For Global Action

Paris Bar (Barreau de Paris)

Parti Sosialis Malaysia (PSM)

Payday Men’s Network, UK

Payday Men’s Network – US

Persatuan Komuniti Prihatin Selangor & KL

PROHAM(Society for the Promotion of Human Rights, Malaysia)

Refusing to Kill, UK

Rescue Alternatives Liberia (RAL)

SMU Human Rights Program, Dallas, Texas, USA

Suara Rakyat Malaysia (SUARAM)

Teoh Beng Hock Trust for Democracy

Terai Human Rights Defenders Alliance (THRD Alliance), Nepal

The Julian Wagner Memorial Fund (JWMF)

The Rights Practice

Think Centre, Singapore

We Believe in Second Chances, Singapore

WH4C (Workers Hub For Change)

Women of Colour in the Global Women’s Strike, UK

Women’s Rights and Democracy Centre (WORD Centre), Liberia

World Coalition Against the Death Penalty

 

 

Note: – A check of the website of Malaysian e-Federal Gazette confirms that the Dangerous Drugs Amendment Act 2017 is still not in force

http://www.federalgazette.agc.gov.my/eng_main/main_akta.php?jenis_akta=Pindaan

 

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)

JAPAN – UPR Joint Submission by ADPAN and 14 CSOs,

JAPAN: The Death Penalty

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

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

14 Civil Society Organisations (CSOs) listed below

 

Since the last UPR of Japan in 2012, 26 persons have been executed from 2012 to 2017, whereby 2 have been executed in 2017. A total of 36 death sentence have been finalized from 2012 to 2016. As of the end of 2016, there are 128 persons on death row.

Death penalty continues to exist in statute books  for crimes that do not result in the death of any  victim.

Whilst, we continue to call for the abolition of the death penalty in Japan, and for a moratorium on all executions pending abolition, we would like to highlight specific concerns concerning the death penalty and unfair trials, which we hope would form part of UN member states recommendations at the upcoming UPR.

In brief,  besides calling for the abolition of the death penalty, and an immediate moratorium on all executions, we are hoping that the following specific recommendations be made to made to Japan:-

 

– That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

 – That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. We recommend a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

 

  1. REFORM OF THE ‘LAY JUDGE SYSTEM’ COURTS – UNANIMOUS DECISION FOR DEATH PENALTY
  2. In 2009, a new trial system was introduced, known as the ‘lay judge system’, whereby serious cases like murder that carry the death penalty are conducted before 6 ordinary citizens and 3 career judges. All that is required for the death penalty to be imposed is a simple majority, which includes 1 vote from one of the 3 career judges.
  3. As of March 2015, prosecutors have sought the death penalty for 31 persons, and the ‘lay judge system’ courts have handed down the death penalty for 23 cases, which is about 74%. In comparison, when such cases were tried and finalized between 1980 and 2009 before career judges, only about 55% received the death sentences in cases where the prosecution sought the death penalty.
  4. There is an unnecessary and even dangerous risk of injustice for a person to be sentenced to death in a situation when the decision of the court is only based on a simple majority decision of a ‘lay judge system court’. This is because legally trained and experienced judges are typically more likely to apply reason and law dispassionately to the facts. In serious cases of dreadful crimes, international experience over time and cultures shows that legal training and experience are essential qualities in the application of fair legal reasoning. After all, that is why all countries have legally trained people administering justice. Under the lay judge system at this time, the experienced legally trained judges can be outvoted by the lay jury.
  5. Justice demands that a decision to impose the death sentence should be unanimous. In the United States of America, a conviction and a death sentence requires a unanimous jury verdict in the Federal Government and all states save 2. Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote. This is a similar position that exists in many other jurisdictions, which still have the jury system when it comes to criminal cases.
  6. Overwhelmingly, although it is expressed in different language in different systems, courts need to be satisfied beyond reasonable doubt before a finding of guilt in serious criminal matters. This is a much higher standard than ‘on balance’ or ‘by majority’. Similar reasoning should apply to the question of whether to execute – the tribunal should be satisfied by a significant margin. We say that a unanimous verdict should be required before a person is to be put to death.
  7. As such, in the Japanese ‘lay judge system’ courts, a simple majority decision of a panel of 9 persons (6 lay persons and 3 judges) has the potential to be unjust. The fact that 4 other persons, which may also include 2 of the 3 experienced career judges  decided not to convict and/or impose the death penalty is very relevant and should not be ignored.

RECOMMENDATION :That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

  1. MANDATORY APPEALSAND CONSIDERATION FOR CLEMENCY BEFORE EXECUTION
  2. On 13/7/2017, Koichi Sumida and another were executed at the Hiroshima Detention Center and Osaka Detention Center respectively.
  3. Sumida was sentenced to death in lay judge trial held in February 2013, and there were no appeals, which means that no higher courts and/or bodies had the opportunity of reviewing the decisions of the first court.
  4. This is the third execution of an inmate whose death sentence that was imposed by the ‘lay judges system’ courts did not go on appeal to the High Court, or the further appeal to the Supreme Court.
  5. The reasons why this persons who were sentenced to death did not choose to exercise their right to appeal is a mystery.It is not clear why they did not file appeals, or why they later chose to withdraw their appeal as was by Sumida.
  6. Some, amongst death row inmates call this “volunteer”. Some just wish to be executed, having given up the will to live. It is akin to a desire to commit suicide.
  7. It is a fact that courts can make mistakes, and it is not uncommon in most jurisdictions that appeal courts do overturn convictions and/or sentences.
  8. As an example, it must be pointed out that the Tokyo High Court, did overturn lay judges court’s decisions to impose the death penalty in three cases, which were subsequently upheld by the Supreme Court in 2015. The absence of an appeal, would have not allowed the High Court and/or higher courts correct errors made and save lives.
  9. In many jurisdictions, in capital cases, a plea of guilty will not be accepted. The trial will have to proceed to enable the courts to make its own determination based on the evidence adduced, that the said accused person is proven to be guilty in accordance to the required standard of proof in a criminal case, and thereafter whether evidence adduced and the circumstances of the case justify the imposition of the death penalty.
  10. The rationale behind this practice in capital cases, is the desire of the State to ensure that there is no miscarriage of justice, and no innocent person or convicted person not deserving to be sentenced to death, is wrongly sentenced to death.
  11. Applying the same rationale, there is a need to put in place a mandatory appeal system, that will require all cases of persons sentenced to death, to have their cases mandatorily brought before the Appeal courts in Japan, to enable the Appellate courts to review not just the death penalty, but also the conviction that resulted in the death sentence.
  12. In the case of Japan, this would mean that there shall be an appeal to the High Court, and thereafter a further appeal to the Supreme Court for all cases where the convicted has been sentence, irrespective of whether the convicted chooses not to appealthe conviction, and/or the death sentence.
  13. In the same way, after all appeals are done, all cases that carry the death sentence, shall go through the existing clemency process in Japan, noting that a such process could also decide to commute the death sentence to a prison sentence, or even result in a full pardon in exceptional cases.
  14. In such capital cases, if the accused and/or convicted, do not have a lawyer, then the court shall appoint a lawyer to act on behalf of the said accused.

RECOMMENDATION:- That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. There should be a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

We refer also to the earlier submission made by the Advocates for Human Rights, the Center for Prisoners’ Rights and the World Coalition Against the Death Penalty and state our support for the recommendations made therein.

 

Dated: 13 September 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Center for Prisoners’ Rights Japan

Forum 90, Japan

Ichiyou-kai, Japan

Inter-religious Network “Stop the Death Penalty!”, Japan

Japan Catholic Council for Justice and Peace, Sub-Committee for Abolition of the Death Penalty

Jesuit Social Center Tokyo

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

ODHIKAR, Bangladesh

Christian Development Alternative (CDA), Bangladesh

Norden Directions, Australia

Democratic Commission for Human Development, Pakistan

Think Centre, Singapore

Civil Rights Committee of  Kuala Lumpur And Selangor Chinese Assembly Hall, Malaysia

 

 

See related posts:-

JAPAN – Recommendations and Japan’s Responses in previous UPRs on the issue of Death Penalty

JAPAN: The Death Penalty – UPR Submission by Advocates for Human Rights, Center for Prisoners’ Rights and World Coalition Against the Death Penalty