UNGA Resolution 2016 -24 of OIC’s 57 member states voted in favour, 13 abstained and 18 voted against

The resolution adopted on Dec 19, 2016 was backed by 117 states, while 40 voted against it and 31 abstained.
South Asia maintained its fondness for the death penalty as Pakistan joined Afghanistan, Bangladesh, India and Maldives in rejecting a universal moratorium, while Bhutan, Nepal and Sri Lanka voted in favour.
24 of the OIC’s 57 member states voted in favour of the moratorium, while 13 abstained and only 18 voted against. The Muslim states that voted against were: Afghanistan, Bangladesh, Brunei, Egypt, Guyana, Iran, Iraq, Kuwait, Libya, Malaysia, Maldives, Oman, Pakistan, Qatar, Saudi Arabia, Sudan, Syria and Yemen. Those who abstained included: Bahrain, Came­roon, Comoros, Djibouti, Indonesia, Jordan, Lebanon, Mauritania, Morocco, Niger, Nigeria, Uganda and the UAE.

The love of hanging

PAKISTAN chose to vote against the recent resolution in the United Nations General Assembly that had called for a global moratorium on the death penalty and was adopted by a majority of member-states.

The gist of this resolution has been adopted by the UN General Assembly every two years since 2007. The resolution adopted on Dec 19, 2016 was backed by 117 states, while 40 voted against it and 31 abstained. As against the voting pattern in 2014, the new supporters of the moratorium call were Guinea, Malawi, Solomon Islands, Sri Lanka and Swaziland.

South Asia maintained its fondness for the death penalty as Pakistan joined Afghanistan, Bangladesh, India and Maldives in rejecting a universal moratorium, while Bhutan, Nepal and Sri Lanka voted in favour.


Pakistani authorities have an aversion to any scrutiny of the rationale for retaining the death penalty.


Those who defend the death penalty as a principle enjoined by Islam may look at the division among the Muslim states (the category includes all members of the OIC).

Those voting in favour of a moratorium included: Albania, Algeria, Azerbaijan, Benin, Bosnia Herzegovina, Burkina Faso, Chad, Côte d’Ivoire, Eritrea, Gabon, Guinea, Guinea Bissau, Kazakh­stan, Kyrgyzstan, Mali, Mozambique, Sierra Leone, Somalia, Suriname, Togo, Tajikistan, Tunisia, Turkmenistan and Uzbekistan.

Those who abstained included: Bahrain, Came­roon, Comoros, Djibouti, Indonesia, Jordan, Lebanon, Mauritania, Morocco, Niger, Nigeria, Uganda and the UAE.

The Muslim states that voted against were: Afghanistan, Bangladesh, Brunei, Egypt, Guyana, Iran, Iraq, Kuwait, Libya, Malaysia, Maldives, Oman, Pakistan, Qatar, Saudi Arabia, Sudan, Syria and Yemen.

We find that 24 of the OIC’s 57 member states voted in favour of the moratorium, while 13 abstained and only 18 voted against. In other words, Pakistan is in the minority group of 18 OIC member-countries that opposes the moratorium.

It is for Pakistan’s government and its Islamic scholars to ponder as to why a majority of the OIC members do not find any faith-based bar to the acceptance of a moratorium on capital punishment. They may also consider the possibility that, as in the case of some international treaties, reservations expressed in the name of religion are in fact dictated by the culture or custom of the countries concerned.

What is more distressing for human rights activists, abolitionist groups and promoters of humanitarian laws in Pakistan is the authorities’ aversion to any scrutiny of the rationale for their love of the death penalty regime.

What one hears of references to the death penalty during the Universal Periodic Review or at talks with the European Union on the GSP+ status is not the result of any serious deliberation. Indeed, one doubts if any discussion on the subject has ever taken place in Pakistan. That there is an urgent need for such a discussion can easily be established.

The recent cases in which the Supreme Court acquitted two individuals who had already been executed, or ordered the release of persons who had spent long years on death row, have strengthened the call for abolition of the death penalty on the ground of high risk of miscarriage of justice. A number of other issues that have surfaced over the past many years also need to be addressed. These are:

• The view that the death sentence is not a deterrent to crime has not been challenged nor has the view that hangings brutalise society.

• The Qisas law has prevented the president from pardoning death convicts or commuting their sentence although his power to do so under Article 45 of the Constitution remains intact. How does one explain the fact that the army chief can pardon a person awarded the death sentence by a military court while the president cannot do so?

• The scholars agree that Islam prescribes the death penalty in only two instances. How does the state defend the fact that capital punishment is prescribed for 27 offences in the name of religion?

• The judiciary has pointed out the problems it faces in cases in which capital punishment is mandatory if the evidence on record warrants a lesser penalty.

• The possibility of a minor or a mentally challenged person being executed keeps cropping up every now and then.

One ventures to suggest a look at the Indian response to the issue of the death penalty in view of the shared legal tradition.

The Law Commission of India recommended in August 2015, vide its Report No. 262, that “the death penalty be abolished for all crimes other than terrorism-related offences and waging war”. The commission agreed to retain capital punishment for certain offences in view of the parliamentarians’ plea that “abolition of death penalty for terrorism-related offences and waging war will affect national security”, although in the commission’s view “there is no valid penological justification for treating terrorism differently from other crimes.”

The commission noted the significant steps taken during India’s decades-long efforts to restrict the use of the death penalty: removal of the requirement of giving special reasons for awarding life imprisonment instead of death (1955); introduction of the requirement of imposing the death penalty (1973); and the Supreme Court’s decision that the death penalty should be restricted to the rarest of rare cases (1980). The conclusion reached by the commission was:

“Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the commission feels that time has come for India to move towards abolition of the death penalty.”

During the latest debate in the UN General Assembly, however, India again voted against the resolution calling for a moratorium although it could have shown some respect for the Law Commission’s recommendation by abstaining. Which only goes to show that, in developing countries, state policies are often determined by authorities that are too timid to disturb the status quo or too proud of their conservatism to heed the counsel of experts who are conscious of the call of the age.

Published in Dawn, January 5th, 2017

Going backwards: The death penalty in Southeast Asia (FIDH)

* FIDH came up with a report on Sourtheast Asia and the Death Penalty – follow link to see report. We tried to copy and paste the report here – but the time taken for the formatting is long (So, work on progress). The original report have pictures and is easier to read. FIDH is not yet a Partner of ADPAN – but some ADPAN members collaborated with FIDH for this report.
 

Going backwards: The death penalty in Southeast Asia

10/10/2016
Report
(Paris) Over the past year, Southeast Asia has witnessed significant setbacks with regard to the abolition of the death penalty, FIDH said in a new report published today, on the occasion of the 14th World Day Against the Death Penalty.

The report, titled Going backwards: The death penalty in Southeast Asia,” provides an update on the status of the death penalty in the region since last year’s World Day. It also provides important recommendations to governments in the region with a view to make genuine and tangible progress towards the abolition of the death penalty for all crimes.

“Too many governments in Southeast Asia lack the vision and political will to eliminate the death penalty – a barbaric practice that has no place in today’s world. It is imperative that all retentionist countries in Southeast Asia immediately declare official moratoria on all executions as an initial step towards the complete abolition of capital punishment.”

Dimitris Christopoulos, FIDH President.

Since October 2015, Indonesia, Malaysia, and Singapore have all carried out executions. It is unknown whether any executions were carried out in Vietnam, where statistics on the death penalty continue to be classified as ‘state secrets.’

In the name of combating drug trafficking, Indonesian President Joko Widodo is rapidly becoming Southeast Asia’s top executioner. The Philippines, which effectively abolished the death penalty for all crimes in 2006, is considering reinstating capital punishment as part of President Rodrigo Duterte’s ill-conceived and disastrous ‘war on drugs.’

Slow or no progress towards the complete abolition of the death penalty for all crimes has been observed in Brunei Darussalam, Burma, Laos, and Thailand – countries that have attained, or are close to attaining, the status of de facto abolitionist.

Across retentionist countries in Southeast Asia, a disproportionate number of death sentences continues to be imposed for drug-related offenses. Countries that have ratified the International Covenant on Civil and Political Rights (ICCPR) and that continue to impose capital punishment for drug-related offenses are in contravention of their own international legal obligations. Article 6 of the ICCPR reserves the death penalty solely for the “most serious crimes,” a threshold that international jurisprudence has repeatedly stated drug-related offenses do not meet.

In many Southeast Asian countries, governments maintain a high degree of secrecy over information concerning the use of the death penalty. This practice is contrary to international standards on the use of the death penalty. UN jurisprudence has found that the lack of transparency in the application and imposition of the death penalty can result in inhuman or degrading treatment or punishment under Article 7 of the ICCPR and Article 1 of the Convention against Torture (CAT). Such secrecy also contravenes the public’s right to information under Articles 14 and 19 of the ICCPR.

The denial of fair trial rights and due process also remain a major concern in connection with the prosecution of cases involving the death penalty. In July 2016, several inmates facing the firing squad in the latest round of executions in Indonesia alleged that they had been convicted based on confessions obtained through torture.

The 14th World Day Against the Death Penalty is raising awareness about the application of the death penalty for terrorism-related offenses. All Southeast Asian countries retain the death penalty for terrorism. However, the application of such laws is subject to abuse and arbitrary application because governments define this crime in very broad and vague terms. In addition, many alleged violent acts of terrorism do not meet the threshold of the “most serious crimes.”

“The pretext of using the death penalty to fight wars on drugs and terrorism are merely a quick fix for governments who are eager to show they are tough on crime. The reality is that the death penalty has no deterrent effect on the commission of crimes, particularly those that are drug-related or alleged acts of terrorism.”

Florence Bellivier, FIDH Deputy-Secretary General.

FIDH, a member of the World Coalition Against the Death Penalty (WCADP), reiterates its total opposition to the death penalty for all crimes and in all circumstances.

October 2016 / N° 682a
GOING BACKWARDS
The death penalty in Southeast Asia
Cover photo: An anti-death penalty advocate displays a placard in front of the Supreme Court in Manila on 26 January 2004 to call on the government to stop the scheduled executions of two convicted kidnappers. © Joel Nito / AFP
TABle Of CONTeNTS
Introduction                                                                                                                     4
Brunei Darussalam: Death penalty under Sharia Criminal Code looms          5
Burma: Happy to remain de facto abolitionist                                                        5
Indonesia: Executions continue, more crimes punishable by death                6
Laos: No progress towards abolition                                                                          8
Malaysia: Reform stalled amid ongoing executions                                              9
Philippines: New President proposes reintroduction of capital punishment 10
Singapore: Government defends capital punishment, executions continue 12
Thailand: Dragging its feet on abolition                                                                   13
Vietnam: Capital punishment still on the books despite law amendments   15
The death penalty in Southeast Asia: Key facts & figures                                   16
Recommendations to countries in Southeast Asia                                                 17
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
4
Introduction
Over the past year, Southeast Asia has witnessed significant setbacks with regard to the abolition of the death penalty. Indonesia, Malaysia, and Singapore have all carried out executions. It is unknown whether any executions were carried out in Vietnam, where statistics of the death penalty continue to be classified as ‘state secrets.’ In the name of combating drug trafficking, Indonesian President Joko Widodo is rapidly becoming Southeast Asia’s top executioner. The Philippines, which effectively abolished the death penalty for all crimes in 2006, is considering
reinstating capital punishment as part of President Rodrigo Duterte’s ill-conceived and disastrous ‘war on drugs.’
Over the past year, slow or no progress towards the complete abolition of the death penalty for all crimes has been observed in Brunei Darussalam, Burma, Laos, and Thailand – countries that have attained, or are close to attaining, the status of
de facto abolitionist.
Across retentionist countries in Southeast Asia, a disproportionate number of death sentences continue to be imposed for drug-related offenses. Countries that have ratified the International Covenant on Civil and Political Rights (ICCPR) and that continue to impose capital punishment for drug-related offenses are in contravention of their own international legal obligations. Article 6 of the ICCPR reserves the death penalty solely for the “most serious crimes,” a threshold that
international jurisprudence has repeatedly stated drug-related offenses do not meet.
1 All retentionist countries in Southeast Asia allow the death penalty for terrorism. However, the application of such laws is subject to abuse and arbitrary application because governments define this crime in very broad and vague terms. In addition, many alleged violent terrorism acts do not meet the threshold of the “most serious crimes.”
2 In many Southeast Asian countries, governments maintain a high degree of
secrecy over information concerning the use of the death penalty. This practice is contrary to international standards on the use of the death penalty. United Nations (UN) jurisprudence has found that the lack of transparency in the application and imposition of the death penalty can result in inhuman or degrading treatment
or punishment under Article 7 of the ICCPR and Article 1 of the Convention against Torture (CAT). It also contravenes the public’s right to information under Articles 14 and 19 of the ICCPR.
The denial of fair trial rights and due process also remain a major concern in connection with the prosecution of cases involving the death penalty. In July 2016, several inmates facing the firing squad in the latest round of executions in Indonesia alleged that they had been convicted based on evidence from confessions obtained through torture.
On the occasion of the 2016 World Day Against the Death Penalty, this report provides an update on the situation concerning the death penalty in Southeast Asia over the past year.
3 It also provides a set of recommendations to governments in the region with a view to make genuine and tangible progress towards the abolition of the death penalty for all crimes.
1. FIDH, The Death Penalty For Drug Crimes in Asia, October 2015
2. The 14th World Day Against the Death Penalty, 10 October 2016, is raising awareness about the application of the death penalty for terrorism-related offenses.
3. This report provides an update on the situation concerning the death penalty in Southeast Asia one year after the publication of FIDH’s report, “The Death Penalty For Drug Crimes in Asia ,” in October 2015.
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
5 Asia has the highest number of retentionist countries in the world. Eight of the 10 Association of Southeast Asian Nations (ASEAN) member states retain the death penalty. Only Cambodia and the Philippines have abolished capital punishment. East Timor, which is not an ASEAN member state, has also abolished the death penalty. None of the eight retentionist or de facto abolitionist ASEAN countries have established a moratorium on executions.
Brunei Darussalam:
Death penalty under Sharia Criminal Code looms Since May 2014, Brunei Darussalam has been implementing its Sharia Criminal Code, enacted on 22 October 2013.4
The 2013 Sharia Criminal Code prescribes death sentences for a broad range of offenses, including: robbery; rape; adultery; sodomy; blasphemy; and murder. It also specifies stoning as the specific method of execution for crimes of a sexual nature. 5
However, the imposition of capital punishment under the Sharia Criminal Code will be delayed until at least 2018.6
While there have been no executions in Brunei Darussalam since 1957, courts have continued to impose death sentences. Approximately five people are believed to be on death row in Brunei Darussalam. A number of laws, including the 1978 Misuse of Drugs Law, the 1982 Internal Security Act, the 1983 Public Order Act, and certain provisions of the Criminal Code prescribe the death penalty for offenses such as murder, drug trafficking, and unlawful possession of firearms and explosives.
Burma: Happy to remain de facto abolitionist
In the last 12 months, there was one reported instance of a court imposing a death sentence in Burma. On 4 December 2015, Rangoon’s Thanlyin Township Court sentenced a 47-year-old man, Tin Myint, to death under Article 302(1)(b) of the Criminal Code for the murder of two police officers in September 2015.7
On 22 January 2016, then-President Thein Sein commuted the death sentences of 77 prisoners to life imprisonment in a presidential amnesty.8
Burma’s Parliament has made minor progress in repealing legislation that prescribes the death penalty. On 4 October 2016, President Htin Kyaw signed a law that repealed the 1950 Emergency Provisions Act, which allowed the death penalty for treason, abetting treason, and sabotage.9
4.AFP,Sultan of Brunei introduces death by stoning under new Sharia laws, 22 October 2013
5.UN News Centre,UN concerned at broad application of death penalty in Brunei’s revised penal code, 11 April 2014
6.Brunei Times,HM questions delay in Syariah law enforcement, 28 February 2016; UN Human Rights Council, 19th session, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Brunei
Darussalam, 30 January 2014, UN Doc. A/HRC/WG.6/19/BRN/1, Para 9
7.DVB,Death penalty for three-time police killer, 4 December 2015
8.Myanmar Times,52 political prisoners released in amnesty, 22 January 2016
9.Global New Light of Myanmar,Colonial-era law repealed, Law revoking Emergency Provisions Act approved, 5 October 2016
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
An FIDH survey of political parties’ human rights commitments, conducted from August to September 2015, found that more than 52% of the political parties surveyed said that, if elected, they would introduce or vote in favor of legislation that abolished the death penalty. 10
In March 2016, the government released its full response to Burma’s second Universal Periodic Review (UPR), which was held on 6 November 2015. With regard to the death penalty, the government did not accept nine recommendations that called for the establishment of a moratorium on all executions and the abolition of capital punishment. The government justified its decision by claiming that Burma retained the death penalty “to deter heinous crimes.”11
However, in a contradictory move, Burma accepted four recommendations that called for the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty.12
Burma has not executed anyone since 1988. Several articles of the Criminal Code allow the imposition of the death penalty for: premeditated murder; treason; abetting of mutiny; and giving or fabricating false evidence with intent to procure a conviction for a capital offense.
Laws such as the 1993 Narcotic Drugs and Psychotropic Substances Law and the 2005 Anti-Trafficking in Persons Law prescribe capital punishment for drug-related offenses and human trafficking respectively.
Indonesia:executions continue, more crimes punishable by death
Over the past year, ongoing executions, a pledge to continue using the death penalty to combat drug trafficking, and the imposition of capital punishment for additional crimes marked a significant step backwards on Indonesia’s path towards abolition.
On 18 April 2016, President Joko Widodo reiterated his administration’s support for capital punishment for drug-related offenses.13
In June 2016, authorities stated that the executions of convicted drug traffickers would be prioritized, with plans to execute 16 in 2016 and 30 in 2017.14
As of 4 October 2016, there were 179 inmates on death row, 89 of whom had been convicted of drug-related offenses.15
10. FIDH, Half Empty: Burma’s political parties and their human rights commitments , November 2015
11. UN Human Rights Council, 31st session, Report of the Working Group on the Universal Periodic Review – Myanmar , 10 March 2016, UN Doc. A/HRC/31/13/Add.1, Para 12
12.UN Human Rights Council, 31st session, Report of the Working Group on the Universal Periodic Review – Myanmar, 23 December 2015, UN Doc. A/HRC/31/13, Para 143.6; UN Human Rights Council, 31st session, Report of the Working Group on the Universal Periodic Review – Myanmar , 10 March 2016, UN Doc. A/HRC/31/13/Add.1, Para 7
13. AP, Indonesian president defends death penalty for drug offenses, 19 April 2016; Jakarta Post, Jokowi meets with German President, discusses death penalty, 19 April 2016
14. AAP, Indonesia to execute 16 this year, 14 June 2016
15. KontraS, Death penalty log in Indonesia , 4 October 2016; http://kontras.org/data/20161004_Data_Hukuman_Mati_di_Indonesia_2016_987jg2478n2y.pdf, accessed on 4 October 2016
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
Convicted drug smuggler on death row Mary Jane Veloso, a Philippine national, is escorted by Indonesian police as she arrives at a court in Sleman, Central Java, for a hearing of judicial review on 3 March 2015 after a plea for clemency was rejected by Indonesian President Joko Widodo. © Suryo Wibowo / AFP
On 29 July 2016, shortly after midnight, Indonesian Freddy Budiman, South African Seck Osmane, and Nigerians Michael Igweh and Humphery Eleweke were executed by firing squad in Nusakambangan prison in Central Java.16
Authorities granted 10 other drug convicts (nine men and one woman), scheduled to face the firing squad at the same time, a last-minute reprieve “to conduct further study.”17
A lack of transparency usually surrounds executions. In contrast to the two previous batches of executions carried out in 2015, Indonesian authorities failed to make an official announcement about the impending date of the executions and the identity of the inmates that would face the firing squad in July 2016.18
As in 2015, serious doubts emerged over the fairness of the judicial processes that led to the conviction of several of the inmates that faced execution on 29 July 2016. At least two of them alleged that they were convicted based on confessions obtained through torture. Michael Igweh claimed that police had inflicted electric shocks to his genitals to force him to confess to possessing heroin.19
Pakistani Zulfiqar Ali, among those who obtained a reprieve, claimed that he
was tortured following a wrongful arrest and forced to confess to drug possession, a charge he later denied.20
16. AP,Indonesia executes 4 drug traffickers, 29 July 2016
17.Straits Times,Indonesia executes 4 inmates, 10 get reprieve, 30 July 2016; Antara News, Executions of 10 death row inmates postponed: Attorney general, 29 July 2016
18. Guardian,Indonesia kills four prisoners in first executions in a year, 29 July 2016
19. SMH, ‘They electrocuted me’ says Indonesia’s death-row prisoner nearing execution, 24 July 2016
20. SMH, ‘They electrocuted me’ says Indonesia’s death-row prisoner nearing execution, 24 July 2016
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
A group of Christians hold a candlelight vigil to protest the death penalty at Nusakambangan port in Cilacap, Central Java, across from Nusakambangan prison on 29 April 2015. © Romeo Gacad / AFP
Proposed and newly enacted legislation contain provisions that add the imposition of the death penalty for existing crimes. Proposed amendments to the 2003 Anti-Terrorism Law, which is under consideration by Parliament, would make certain offenses punishable by death. On 25 May 2016, President Widodo signed a decree that amended the 2002 Child Protection Law to introduce capital punishment for individuals convicted of committing sexual violence against children.21The death penalty would be imposed in cases where the victims died or suffered serious mental or physical injury.22
The decree is awaiting ratification by the House of Representatives. Indonesia prescribes capital punishment for various crimes, including: murder; terrorism-related offenses; gang-robbery; drug trafficking; drug possession; treason; and spying. In March 2013, the resumption of executions ended an unofficial moratorium that had been in place since November 2008. In 2015, Indonesia executed 14 individuals who had been convicted of drug-related offenses. Authorities are legally required to issue a 72-hour notice to inmates facing execution.
laos: No progress towards abolition
Up-to-date information on the death penalty, including statistics, is difficult to obtain in Laos. The Lao government has repeatedly announced that it was in the process of amending the Criminal Code in order to limit capital punishment to the most serious crimes, in accordance with international standards.23
However, the government has made no tangible progress on this commitment to date.
21.CNA,Indonesian president introduces death penalty for child rapists, 26 May 2016; Jakarta Post, Govt issues Perppu on sexual violence against children, 25 May 2016
22.AFP,Indonesians divided over death, castration for child abusers, 26 May 2016
23.UN Human Rights Council, 21st session,National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Lao People’s Democratic Republic, 5 November 2014, UN Doc. A/HRC/WG.6/21/LAO/1,
Para 36; UN Human Rights Council, 29th session, Report of the Working Group on the Universal Periodic Review – Lao People’s Democratic Republic, 23 June 2015, UN Doc. A/HRC/29/7/Add.1, Para 121.37, 121.85

On  9  October  2015,  it  was  reported  that  from  2010  to  2015,  courts  imposed  about  20  death sentences each year.24

Despite  the  fact  that  Laos  has  not  executed  anyone  since  1989,  courts  have  continued  to impose death sentences on convicted criminals, mostly for drug-related offenses. The Criminal Code  prescribes  capital  punishment  for  a  range  of  crimes,  including:  premeditated  murder; terrorism-related offenses; robbery; drug trafficking; drug possession; treason; and spying. The 2004 Law on the Development and Protection of Women also prescribes the death penalty for cases of trafficking of women and children that result in lifetime incapacity, HIV/AIDS, or the death of the victim. In 2014 and 2015, the government stated that it was necessary to retain the death penalty in Laos to deter the “most serious” crimes.25

Malaysia: Reform stalled amid ongoing executions

Over the past year, the Malaysian government indicated it was in the process of reforming the use of the death penalty. Despite several encouraging statements to that effect, no progress towards meaningful reform, or the establishment of a moratorium, has been made.

On  13  November  2015,  Attorney-General  Mohamed  Apandi  Ali  said  he  would  propose  to  the cabinet that the mandatory death penalty be abolished.26

Apandi justified his position by saying that  the  mandatory  death  penalty  “robbed  judges  of  their  discretion  to  impose  sentences  on convicted criminals.”27

On  17  November  2015,  Minister  in  the  Prime  Minister’s  Department  Nancy  Shukri  said  the government  wanted  to  abolish  mandatory  death  sentences  for  drug-related  offences.28

Nancy said  proposed  legislation  would  be  introduced  in  Parliament  in  March  2016.29

However,  the proposal never surfaced.30

According to Nancy, as of 16 May 2016, there were 1,041 death row inmates in Malaysia.31

Most of the inmates under death sentence had been convicted of drug-related offenses.32

On  29  March  2016,  Malaysia’s  National  Human  Rights  Commission  (SUHAKAM)  expressed concern over the mandatory imposition of capital punishment for certain crimes and called for the establishment of a moratorium on the use of the death penalty.

24 Vientiane Times, EU campaigns to end capital punishment , 9 October 2015
25 UN Human Rights Council, 21st session, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Lao People’s Democratic Republic, 5 November 2014, UN Doc. A/HRC/WG.6/21/LAO/1, Para 36; UN Human Rights Council, 29th session, Report of the Working Group on the Universal Periodic Review – Lao People’s Democratic Republic, 23 June 2015, UN Doc. A/HRC/29/7/Add.1, Para 121.37, 121.85
26 Malaysian  Insider, A-G seeking to abolish mandatory death penalty, 13 November 2015; Star, Government wants mandatory death penalty abolished, 17 November 2015
27 Malaysian Insider,A-G seeking to abolish mandatory death penalty, 13 November 2015
28 New Straits Times,Govt plans to scrap mandatory death penalty: Nancy, 17 November 2015
29 New Straits Times,Govt plans to scrap mandatory death penalty: Nancy, 17 November 2015
30 Guardian, Malaysia hangs three men for murder in ‘secretive’ execution, 25 March 2016
31 Malaysiakini,Nancy explains delay in amending death penalty law, 10 July 201AFP,
32 Amnesty denounces ‘shocking’ Malaysian executions, 25 March 2016
33. SUHAKAM,The Death Penalty Violates the Right to Life and is the Ultimate Cruel, Inhuman and Degrading Punishment, 29 March 2016

fIDH – GOING BACKWARDS – The death penalty in Southeast Asia

Obtaining information about upcoming executions and the status of death row inmates continues to be a challenge. Authorities do not disclose any information to the public before, and sometimes even after, executions are carried out. Malaysian media reported on four executions from October 2015 to September 2016.

On 25 March 2016, three convicted murderers, Gunasegar Pitchaymuthu, 35, Ramesh Jayakumar, 34, and his brother Sasivarnam Jayakumar, 37, were executed by hanging.34

In August 2011, the Alor Setar High Court had found them guilty of murdering a 25-year-old man in 2005.35

Authorities notified the families of the men two days before the execution, while the three were told of their execution one day before they were hanged.36

On 23 September 2016, a 40-year-old man, Ahmad Najib Aris, was executed by hanging in Kajang prison, Selangor State.37

On 23 February 2005, the Shah Alam High Court sentenced Ahmad Najib to death after finding him guilty of the murder of a 29-year-old woman in June 2003.38

Malaysia allows the imposition of the death penalty for numerous crimes, including: murder; rape or attempted rape resulting in the victim’s death; terrorism-related offenses; robbery; burglary; kidnapping; drug trafficking; trafficking in firearms; and treason. The death penalty is mandatory for various crimes, including: murder; terrorism-related offenses; drug trafficking; robbery;  burglary;  and  kidnapping.  According  to  official  statistics,  between  2010  and  22 February 2016, Malaysian courts sentenced 829 prisoners to death.

Philippines:   New   President   proposes   reintroduction   of  capital punishment

The Philippines risks having the death penalty reinstated as part of its ‘war on drugs’ under President Rodrigo Duterte, who was elected on 9 May 2016.

On 16 May 2016, during his first press conference after being elected, President Duterte vowed to reinstate the death penalty for a wide range of crimes, with a particular focus on crimes involving drugs.39

Other  crimes  for  which  President  Duterte  said  the  death  penalty  would  be  reinstated include rape, robbery, and kidnapping that result in the victim’s death.40

From  30  June  to  6 September 2016, members of the Congress introduced 16 bills to either repeal existing legislation prohibiting  the  death  penalty  or  make  a  number  of  crimes  punishable  by  death.  Enacting legislation to reinstate the death penalty would be inconsistent with the Philippines’ obligations under international law, namely the International Covenant on Civil and Political Rights (ICCPR)

  1. Guardian,Malaysia hangs three men for murder in ‘secretive’ execution, 25 March 2016
  1. Bernama,Three get the gallows for murder, 28 August 2011
  1. Guardian,Malaysia hangs three men for murder in ‘secretive’ execution, 25 March 2016
  1. Star,Canny Ong’s murderer hanged, 23 September 2016
  1. Star,Canny Ong’s murderer hanged, 23 September 2016
  1. Al Jazeera,Philippines’ Rodrigo Duterte recommends death penalty, 16 May 2016
  1. CNN,Duterte wants to restore death penalty by hanging, 18 May 2016

 

fIDH – GOING BACKWARDS – The death penalty in Southeast Asia

fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
11
and the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.
41
In addition, the spate of summary killings of drug peddlers in the Philippines since the election
of President Duterte is cause for concern. According to police figures, 39 suspected drug dealers
were killed from the start of the year until the 9 May 2016 presidential election.
42
Since 1 July
2016, police officers and vigilantes have been responsible for 3,671 reported cases of extrajudicial
killings of suspected criminals in relation to President Duterte’s ‘war on drugs.’
43
The recent
dramatic increase in the number of extrajudicial killings appears to be a direct consequence of
statements made by President Duterte, including encouraging the use of vigilante justice and
pledging to kill up to 100,000 criminals during his first six months in office in order to eradicate
crime and corruption.
44
In this picture taken on 8 July 2016, police officers examine the dead body of an alleged drug dealer, his face covered with packing tape and
a placard reading “I’m a pusher,” on a street in Manila. © Noel Celis / AFP
In an act that underscored his support for capital punishment, President Duterte has done little
to seek clemency in the case of Filipina Mary Jane Veloso, who was sentenced to death by an
Indonesian court in October 2010 for smuggling heroin. On 9 September 2016, during a visit to
Indonesia, President Duterte told Indonesian President Joko Widodo to “follow [Indonesia’s] laws,”
and that he would not interfere in the country’s judicial process.
45
41.
The ICCPR restricts the imposition of the death penalty to the “most serious crimes.” Article 6(2) states that “
[i]n
countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes
[…]
.” The Second Optional Protocol to the ICCPR prevents state parties to the convention from carrying out executions.
Article 1(1) states that “
[n]o one within the jurisdiction of a State Party to the present Protocol shall be executed.
42.
GMA News,
PNP: Number of suspected drug dealers killed up by 200%
, 17 June 2016
43.
Rappler,
IN NUMBERS: The Philippines’ ‘war on drugs’
statistics-philippines-war-drugs, accessed on 4 October 2016
44.
AFP,
Kill the criminals! Duterte’s vote-winning vow
, 16 March 2016; CNN,
Philippines’ Rodrigo Duterte: Public ‘can kill’
criminals
, 6 June 2016
45.
Guardian,
Indonesia says Duterte has given it permission to execute Mary Jane Veloso
, 12 September 2016
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
12
Activists hold a banner during a protest in front of the Indonesian embassy in Manila on 27 April 2015, as they ask Indonesia to spare
Filipina Mary Jane Veloso from execution. © Ted Aljibe / AFP
The Philippines abolished the death penalty under the 1987 constitution, but reinstated it in
1993 under Republic Act No. 7659 (Death Penalty Law), and later with the amendment of
Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive
Dangerous Drugs Act of 2002). The last execution carried out in the Philippines was in January
2000. In March 2000, then-President Joseph Estrada announced a moratorium on executions
until the end of that year to mark the Christian Jubilee year.
46
In June 2006, the Philippines
adopted Republic Act No. 9346, a law that prohibited the imposition of the death penalty. The
Philippines has ratified both the Second Optional Protocol to the ICCPR, aiming at the abolition
of the death penalty, and the Convention against Torture (CAT).
Singapore: Government defends capital punishment,
executions continue
Several important aspects related to the death penalty in Singapore remain shrouded in secrecy.
While the government publishes annual statistics on the total number of executions, it consistently
fails to make public announcements concerning upcoming hangings and to reveal the number
of prisoners on death row. According to the Singapore Anti-Death Penalty Campaign (SADPC),
as of May 2016, there were at least 25 inmates on death row, 23 of whom had been convicted
of drug-related offenses. During the reporting period, Singapore executed at least one individual,
Malaysian national Kho Jabing.
Kho Jabing, 31, was sentenced to death in July 2010 for the murder of a Chinese citizen in
February 2008. He was executed by hanging on 20 May 2016 following a judicial odyssey that
saw his death sentence set aside in favor of life imprisonment with caning and then reinstated.
47
46. BBC,
Philippines suspends death sentence
, 24 March 2000
47.
Straits Times,
Convicted murderer Jabing Kho hanged after latest bid to escape gallows fails
, 20 May 2016
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
13
On 5 November 2015, less than 24 hours before Kho Jabing was to be hanged, his lawyer obtained
a temporary stay of execution after petitioning the Court of Appeal to reconsider its earlier
decision.
48
On 5 April 2016, the Court of Appeal unanimously rejected Kho Jabing’s motion.
49
The Singaporean government continues to staunchly defend the imposition of the death penalty
in international fora. During its second Universal Periodic Review (UPR), held on 27 January
2016, the government did not accept any of the 20 recommendations on the abolition of capital
punishment, including six that called for the ratification of the Second Optional Protocol to
the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the
death penalty, and nine that called for the re-establishment of a moratorium on executions.
50
The government defended capital punishment as a “legitimate” exercise of state power to
deter the most serious crimes, including drug trafficking.
51
This explanation runs counter to UN
jurisprudence, which has repeatedly stated that drug-related offenses do not meet the threshold
of the “most serious crimes.”
52
Singapore allows the imposition of the death penalty for numerous crimes, including: murder;
terrorism-related offenses; kidnapping; drug trafficking; arms trafficking; gang-robbery resulting
in murder; and treason. Following a reform of the mandatory death penalty regime that came into
effect in January 2013, judges were given discretion to sentence defendants to life imprisonment
with caning for certain categories of murder and for drug trafficking under certain circumstances.
According to official figures, from 2007 to 2015, Singapore executed 24 inmates, 14 of whom
had been convicted of drug-related offenses. In July 2014, authorities lifted a moratorium on
executions that had been established in July 2011.
Thailand: Dragging its feet on abolition
On the legislative front, Thailand has not made any attempt to decrease the number of crimes
punishable by death. Drug-related offenses continue to represent a disproportionate share of
the crimes for which a death sentence has been imposed. As of August 2016, 380 men and 64
women were on death row; 156 of the men (41%) and 52 of the women (81%) on death row had
been found guilty of drug-related offenses.
53
48.
CNA,
Court of Appeal extends stay of execution for Kho Jabing
, 23 November 2015
49.
CNA,
Malaysian Kho Jabing to hang for murder after appeal dismissed
, 5 April 2016
50.
UN Human Rights Council, 32nd session,
Report of the Working Group on the Universal Periodic Review – Singapore –
Addendum
, 13 June 2016, UN Doc. A/HRC/32/17/Add.1, Para 41
51.
UN Human Rights Council, 32nd session,
Report of the Working Group on the Universal Periodic Review – Singapore
, 15
April 2016, UN Doc. A/HRC/32/17, Para 61; UN Webcast,
Singapore Review – 24th Session of Universal Periodic Review
,
27 January 2016,
review/4725866340001
52.
UN Human Rights Committee,
Concluding observations on the initial report of Indonesia
, 21 August 2013, UN Doc.
CCPR/C/IDN/CO/1, Para 10
53.
Department of Corrections,
Statistics of prisoners under death sentence, August 2016
, 5 September 2016,
correct.go.th/stathomepage/CCF14092559_0001.pdf
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
14
Myanmar nationals Zaw Lin (L) and Win Zaw Tun (R) leave the Koh Samui Provincial Court on 24 December 2015 after the court sentenced
them to death for the murder of two British tourists on the nearby island of Koh Tao in 2014. © Nicolas Asfouri / AFP
The head of the ruling military junta, General Prayuth Chan-ocha, has expressed contradictory
views on the imposition of the death penalty. On 6 June 2016, General Prayuth called on the
judiciary to ensure the death penalty for convicted rapists.
54
However, following the public uproar
over the attempted rape and murder of a woman in Saraburi Province in July 2016, General
Prayuth disagreed with calls for capital punishment and said that severe penalties would not
prevent rape.
55
In September 2016, the government released its full response to Thailand’s second Universal
Periodic Review (UPR), which was held on 11 May 2016. With regard to the death penalty,
Thailand pledged to commute death sentences and review the imposition of the death penalty
for drug-related offenses.
56
Despite this pledge, the government did not accept 12 of the 17
recommendations that either called for the abolition of capital punishment or encompassed
measures aimed at making progress towards that goal. The recommendations not accepted
included: the establishment of a moratorium on all executions; the ratification of the Second
Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at
the abolition of the death penalty; and the removal of economic crimes from the list of offenses
punishable by death. The government said it would consider these recommendations “in
subsequent UPR cycles.”
57
Thailand stated that it was taking a step-by-step approach towards
the abolition of the death penalty, as there were “different public sentiments.”
58
54.
Nation,
PM calls for death penalty for rapists, stepped up fight against trafficking
, 6 June 2016
55. Bangkok Post,
General Prayut against death penalty for fatal rapes
, 5 July 2016
56.
UN Human Rights Council, 33rd session,
Report of the Working Group on the Universal Periodic Review – Thailand
, 15 July
2016, UN Doc. A/HRC/33/16, Para 158.72; UN Human Rights Council, 33rd session,
Report of the Working Group on the
Universal Periodic Review – Thailand
, 7 September 2016, UN Doc. A/HRC/33/16/Add.1, Para 159.30
57.
UN Human Rights Council, 33rd session,
Report of the Working Group on the Universal Periodic Review – Thailand
, 7
September 2016, UN Doc. A/HRC/33/16/Add.1, Para 12, 18, 20
58.
UN Human Rights Council, 33rd session,
Report of the Working Group on the Universal Periodic Review – Thailand
, 7
September 2016, UN Doc. A/HRC/33/16/Add.1, Para 20
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
15
Thailand has not executed anyone since August 2009. However, courts continue to impose
death sentences, mainly for drug-related offenses. The Criminal Code prescribes the death
penalty for various crimes, including: premeditated murder; rape resulting in death; kidnapping;
terrorism; spying; treason; economic crimes; and drug-related offenses. Other laws that
contain provisions for the death penalty include: the 1947 Firearms, Ammunition, Explosives,
Fireworks, and the Equivalent of Firearms Act; the 1979 Narcotics Act; the 1999 Anti-Corruption
Law; the 2008 Anti-Trafficking in Persons Act; and the 2015 Act Regarding Offenses Relating
to Air Travel.
Vietnam: Capital punishment still on the books despite law
amendments
Vietnam continues to classify statistics on the death penalty as ‘state secrets.’ During the
reporting period, English-language national media and international news outlets reported on 47
court cases in which the death sentence was imposed, most of them for drug-related offenses.
However, it is believed that the actual number of death sentences imposed by courts was much
higher. It is estimated that more than 500 inmates are currently on death row.
59
There were no reports of executions in English-language national and international media and it
is unknown whether any executions were carried out during the reporting period. On 25 October
2015, authorities granted a stay of execution to Le Van Manh, a 32-year-old man convicted in
November 2008 of the rape and murder of a 13-year-old girl in Thanh Hoa Province five years
earlier.
60
Le Van Manh claimed his conviction was based on a confession that police extracted
through torture.
61
On 27 November 2015, the National Assembly approved amendments to the Criminal Code that
reduced the number of crimes punishable by death from 22 to 18.
62
The amendments abolished
capital punishment for several crimes including: robbery; destruction of projects of importance
to national security; disobeying orders; and surrendering to the enemy.
63
The amendments
also replaced the death penalty with life imprisonment as punishment for those charged with
embezzlement or corruption, provided they pay back 75% of their ill-gotten gains.
64
In addition,
capital punishment would no longer be imposed on persons more than 75 years old who are
convicted of committing a capital crime.
65
However, the amendments failed to remove capital punishment for drug-related offenses, which
were reworded and renumbered in the amended Criminal Code.
66
The amendments also added
one new criminal offense, ‘terrorist activities aimed at opposing the people’s administration’
59. DPA,
Eight sentenced to death in Vietnam for drug smuggling
, 20 January 2015
60.
RFA,
Vietnam Postpones Execution of Man Who Says He Was Tortured Into Confession
, 26 October 2015; Tuoi Tre News,
Vietnam court delays execution of man following family appeal
, 26 October 2015
61.
RFA,
Vietnam Postpones Execution of Man Who Says He Was Tortured Into Confession
, 26 October 2015
62. VCHR,
The Death Penalty in Vietnam
, June 2016
63.
VNA,
National Assembly adopts draft revised Penal Code
, 27 November 2015; Xinhua,
Vietnam passes amended Penal
Code, removing death penalty for 7 crimes
, 27 November 2015
64.
AFP,
Vietnam lawmakers ease death penalty on corruption
, 28 November 2015
65.
Xinhua,
Vietnam passes amended Penal Code, removing death penalty for 7 crimes
, 27 November 2015
66.
VCHR,
The Death Penalty in Vietnam
, June 2016
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
16
(Article 113), which is punishable by death.
67
On 29 June 2016, the National Assembly decided to
postpone the amended Criminal Code’s coming into force indefinitely after almost 90 unspecified
“errors” were found in the text.
68
Vietnam allows the imposition of the death penalty for a wide range of crimes, including:
murder; drug-related offenses; rape of minors; manufacturing fake medicine; receiving bribes;
and embezzling property. In the amended Criminal Code, six political offences perceived as
‘threats against national security’ are punishable by death. They are: high treason (Article
108); carrying out activities aimed at overthrowing the people’s administration (Article 109);
spying (Article 110); rebellion (Article 112); terrorist activities aimed at opposing the people’s
administration (Article 113); and sabotaging the material-technical foundations of the Socialist
Republic of Vietnam (Article 114).
69
67. VCHR,
The Death Penalty in Vietnam
, June 2016
68. Xinhua,
Vietnam postpones implementation of new Penal Code
, 29 June 2016
69. Numbering used here refers to articles of the amended Criminal Code.
The death penalty in Southeast Asia: Key facts & figures
Brunei
Darussalam
Burma
Indonesia
Laos
Malaysia
Singapore
Thailand
Vietnam
Status
De facto
abolitionist
De facto
abolitionist
Retentionist
De facto
abolitionist
Retentionist
Retentionist
Retentionist
Retentionist
Last
execution
1957
1988
2016
1989
2016
2016
2009
Not
available
Method of
execution
Hanging Hanging Firing squad
Firing squad
Hanging Hanging Lethal
injection
Lethal
injection
Number of
death row
inmates
~5
Not
available
179
200+
1,041
25
444
500+
Executions
over the past
12 months
0
0
4
0
4
1+
0
Not
available
Death
penalty for
terrorism
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Mandatory
death
penalty
Yes
Yes
No
Not
available
Yes
Yes
No
No
Moratorium
on
executions
No
No
No
No
No
No
No
No
ICCPR
ratification
No
No
Yes
Yes
No
No
Yes
Yes
ICCPR
-­‐OP2
ratification
No
No
No
No
No
No
No
No
CAT
ratification
No (Signed)
No
Yes
Yes
No
No
Yes
Yes
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
17
Recommendations to countries in Southeast Asia
1.
Abolish the death penalty for all crimes.
2.
For countries that have abolished the death penalty, ensure that the death penalty is not
reinstated.
3.
Establish an official moratorium on all executions and death sentences.
4.
Repeal the imposition of mandatory death sentences.
5.
Commute all death sentences to prison terms.
6.
Significantly reduce the number of criminal offenses that can be punished by death by
ensuring the death penalty is allowed only for the most serious crimes, in accordance with
international standards.
7.
Respect international human rights standards related to the right to a fair trial and due
process, including the right to appeal to a higher court.
8.
Maintain and make publicly available up-to-date information and statistics (disaggregated
by nationality; sex; age; racial or ethnic origin; religion or belief; sexual orientation; and other
status, including disability) on: the number of persons sentenced to death; the number of
executions carried out; the number of persons under sentence of death; the number of
death sentences reversed or commuted on appeal; and the number of instances in which
clemency has been granted.
9.
Extend invitations for official visits to the UN Special Rapporteur on extrajudicial, summary
or arbitrary executions and the UN Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment.
10.
Sign and ratify the International Covenant on Civil and Political Rights (ICCPR) and the
Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.
11.
Vote in favor of the next UN General Assembly resolution (due to be voted on in December
2016) that calls for a moratorium on executions.
fIDH – GOING BACKWARDS – The death penalty in Southeast Asia
18
THIS RePORT WAS PRODuCeD IN COll
ABORATION WITH THe fOll
OWING
ORGANIz
ATIONS:
Malaysians Against Death Penalty and Torture
(MADPET)
Alternative ASEAN Network on Burma
(ALTSEAN-Burma)
Commission for the Disappeared and Victims
of Violence (KontraS)
Free Legal Assistance Group (FLAG)
Lao Movement for Human Rights (LMHR)
Suara Rakyat Malaysia (SUARAM)
Singapore Anti-Death Penalty Campaign (SADPC)
Union for Civil Liberty (UCL)
Vietnam Committee on Human Rights (VCHR)
Philippine Alliance of Human
Rights Advocates (PAHRA)
We Believe in Second Chances

Brunei – Update on Shariah Penal Code and Death Penalty.

In 2014, Brunei enacted the new Syariah Penal Code, which is said will apply to all, including non-Muslims, which also had offences that carried the death Penalty. It is important to note that Brunei has maintained an effective moratorium on the use of the death penalty since 1957.
Brunei decided that implementation the new Syariah Penal Code would be done in 3 phases, whereby the phases were determined based on the type of penalty – Phase 1(fines and/or jail), Phase 2 (severing of limbs, flogging,…) and Phase 3(death).
The initial phase  introduces fines or jail terms for offences including indecent behaviour, failure to attend Friday prayers, disrespecting the month of Ramadhan, propagating religions other than Islam and out-of-wedlock pregnancies. This was implemented beginning May 2014.
A second phase covering crimes such as theft and robbery is to start later this year, involving more stringent penalties such as severing of limbs and flogging.
The third phase will be the death penalty offences -death by stoning for offences including sodomy and adultery will be introduced.Rape, extramarital sexual relations for Muslims, insulting any verses of the Quran and Hadith, blasphemy, declaring oneself a prophet or non-Muslim, and murder are the some of other death penalty offences.
The second phase was initially to be implemented beginning end of 2014, but apparently it was not. The reason was because there needed to be a Syariah Courts Criminal Procedure Code (CPC), which will outline procedures for law enforcers in carrying out investigation and prosecution.
In February 2016, HIS Majesty it will be 2018 by the time the third phase of the Syariah law can be enforced.Sultan Haji Hassanal Bolkiah Mu’izzaddin Waddaulah, the Sultan and Yang Di-Pertuan of Brunei Darussalam, ordered authorities to explain the two-year delay in the phased enforcement of Syariah Penal Code Order.(Brunei Times, 28/2/2016 – HM questions delay in Syariah law enforcement)
In response, the minister of religious affairs later said that the Brunei government is targeting to complete the Syariah Courts Criminal Procedure Code (CPC) by June this year before it can enforce the second phase of the Islamic criminal law by June 2017 (Brunei Times, 28/2/2016 – Gov’t targets Syariah CPC completion by June).
His Majesty did indicate that it will be 2018 by the time the third phase of the Syariah law, which brings in the death penalty,  can be enforced.

 

Brunei introduces Islamic sharia penalties, including death by stoning for adultery

Date
May 2, 2014

Bandar Seri Begawan, Brunei: A controversial new penal code for oil-rich Brunei that will eventually include tough Islamic sharia penalties such as severing of limbs and death by stoning came into effect on Thursday.

Brunei’s all-powerful Sultan Hassanal Bolkiah had said on Wednesday that he would push ahead with the introduction of the new criminal code that has sparked rare domestic criticism of the fabulously wealthy ruler and international condemnation.

The initial phase beginning introduces fines or jail terms for offences including indecent behaviour, failure to attend Friday prayers, and out-of-wedlock pregnancies.

There were no known events to mark Thursday’s implementation.

A second phase covering crimes such as theft and robbery is to start later this year, involving more stringent penalties such as severing of limbs and flogging.

Late next year, punishments such as death by stoning for offences including sodomy and adultery will be introduced.

The sultan – one of the world’s wealthiest men – had announced the implementation last year.

He first called for the penal code in the late 1990s and has increasingly voiced plans to strengthen Islam’s role in the already conservative, energy-rich Muslim country on Borneo island.

But the plans by the revered father-figure monarch triggered unprecedented criticism earlier this year on Brunei’s active social media, though the move appears to enjoy broad support, especially among Muslim ethnic Malays, who make up about 70 per cent of the population.

The UN’s human rights office and various international rights and legal activist groups also have condemned the move as out of step with modern society.

Brunei is the first country in east or south-east Asia to introduce a sharia penal code on a national level, joining several mostly Middle Eastern countries like Saudi Arabia and Iran.

Attorney-General Hayati Salleh late on Wednesday sought to ease concerns over the code’s implementation, stressing that sharia cases will face high burdens of proof before the tough penalties are imposed.

“It is crucial that we, and the international community, understand these distinctions and not focus solely on the punishments but rather, on the evidence-gathering process that is complicated and strict,” she said.

The monarch’s wealth – estimated three years ago at $US20 billion ($21.6 billion) by Forbes magazine – is legendary with reports of a vast collection of luxury vehicles and huge, gold-bedecked palaces.

The monarchy was deeply embarrassed by a sensational family feud between the sultan and his younger brother Jefri Bolkiah over the latter’s alleged embezzlement of $US15 billion ($16.2 billion) during his tenure as finance minister in the 1990s.

Court battles and investigations revealed salacious details of Prince Jefri’s un-Islamic jet-set lifestyle, including allegations of a high-priced harem of Western women and a luxury yacht he owned called “Tits”.

AFP – Sydney Morning Herald

UN concerned at broad application of death penalty in Brunei’s revised penal code

Rupert Colville, spokesperson for the UN High Commissioner for Human Rights (OHCHR).

11 April 2014 – The United Nations human rights office today voiced deep concern about the revised penal code in Brunei Darussalam which stipulates the death penalty for numerous offences, including robbery, adultery, and insult or defamation of the Prophet Mohammed, and introduces stoning to death as the specific method of execution for crimes of a sexual nature.

Rape, adultery, sodomy, extramarital sexual relations for Muslims, insulting any verses of the Quran and Hadith, blasphemy, declaring oneself a prophet or non-Muslim, and murder are the other offences for which the death penalty could be applied under the revised code, which is due to come into force on 22 April.

“Application of the death penalty for such a broad range of offences contravenes international law,” said Rupert Colville, spokesperson for the Office of the UN High Commissioner for Human Rights (OHCHR).

“We urge the Government to delay the entry into force of the revised penal code and to conduct a comprehensive review ensuring its compliance with international human rights standards,” he told a news conference in Geneva.

Noting that Brunei has maintained an effective moratorium on the use of the death penalty since 1957, OHCHR urged the Government to establish a formal moratorium and to work towards abolishing the practice altogether.

Among other measures, the revised code introduces stoning to death as the specific method of execution for rape, adultery, sodomy and extramarital sexual relations.

“Under international law, stoning people to death constitutes torture or other cruel, inhuman or degrading treatment or punishment and is thus clearly prohibited,” stated Mr. Colville.

He added that a number of UN studies have also revealed that women are more likely to be sentenced to death by stoning, due to deeply entrenched discrimination and stereotyping against them, including among law enforcement and judicial officers.

The criminalization and application of the death penalty for consensual relations between adults in private also violates a whole host of rights, including the rights to privacy, to equality before the law, the right to health and freedom from arbitrary arrest and detention, Mr. Colville noted.

“The provisions of the revised penal code may encourage further violence and discrimination against women and also against people on the basis of sexual orientation,” he warned. – UN News Centre

Brunei’s Sharia Dilemma

By Rui Hao Puah

The tiny oil-rich state of Brunei, no bigger than the state of Delaware, grabbed headlines in 2014 when it became the first country in Southeast Asia to introduce a Sharia penal code at the national level.

The Sultan of Brunei Hassanal Bolkiah, who also holds the position of prime minister, first announced the law in October 2013, prompting sharp criticism from human rights group and the western media. According to the United Nations commissioner for human rights, the new penal code contravenes international law when it is applied to such a broad range of offenses and includes sometimes “inhuman or degrading torture or punishment.” Opposition also came from groups advocating for lesbian, gay, bisexual, and transgender (LGBT) rights in Asia and concerns about the law’s impact on women due to gender discrimination.

Phase one of the law was implemented in May 2014 after some initial delay. It penalized acts such as not fasting during Ramadan, missing Friday prayers, and giving birth out of wedlock with fines, prison sentences, or both. So far, fewer than 20 people reportedly have been convicted, mostly for smoking during fasting hours or close proximity between unmarried couples.

Phase two was expected to be implemented within 12 months of phase one, but has been “delayed until further notice” according to an official with Brunei’s Ministry of Religious Affairs in July. The second phase would include provisions for severing of limbs and flogging for theft and alcohol consumption, while the final phase would allow capital punishment such as stoning for adultery, sodomy, or insulting the prophet Mohammad.

The U.S. Congress has been wary of Brunei’s Sharia penal code in the context of negotiations on the Trans-Pacific Partnership (TPP) trade agreement, of which Brunei is a member. In June 2014, 119 lawmakers sent a letter to Secretary of State John Kerry and U.S. Trade Representative Michael Froman to call for a stop to further TPP negotiations with Brunei until its criminal code is revoked. In February, members of the Congressional LGBT Equality Caucus also assailed the administration for including countries that are hostile toward gay communities, including Brunei and Malaysia, in trade agreements. In Brunei, gay sex can be punishable by the death penalty.

While concerns among some in the United States about Brunei’s Sharia law have not yet been implemented, it could potentially become a bigger issue as TPP countries work to reach a deal by the end of the year and Congress becomes more involved in issues of human rights and transparency in the trade agreement.

In the Trade Promotion Authority (TPA) legislation, which both the House of Representatives and the Senate approved in April authorizing President Barack Obama to “fast-track” trade deals, Congress requires that the president adhere to a number of negotiating objectives, one of which is the promotion of human rights. According to this objective, trade agreements should “promote respect for internationally recognized human rights and more open and democratic societies.” A full implementation of the Sharia penal code in Brunei will certainly go against this mandate. It remains to be seen whether more members of Congress will object to the current state of Sharia law implementation in Brunei.

Ejecting the oil-rich kingdom of over 400,000 people from the trade pact may be tricky, considering Brunei was one of the founding members of the TPP, along with Chile, New Zealand, and Singapore. Yet other democratic countries in the TPP, including Australia and Canada, have either criticized or questioned Brunei over its Sharia laws.

The sultan’s controversial move did not come out of the blue. He first proposed a Sharia penal code back in the 1990s, calling Islam a “firewall” against globalization. His government may also seek to reform Brunei’s ailing, oil-dependent economy by attracting Islamic investment in banking, finance and services, and views the implementation of Sharia law as a boost to the sultanate’s Islamic credentials. He may also see Sharia laws as a tool to tighten his political rein; while many of Bruneians hold cushy public sector jobs and benefit from petrodollar, state-funded welfare, rising unemployment among Bruneian youth has resulted in an uptick in crimes and dissent, which has found its expressions online and through text messaging apps.

Brunei, which bans the sale of alcohol and restricts other religions, has traditionally practiced a relatively conservative form of Islam compared to its Muslim-majority neighbors Malaysia and Indonesia. Although ethnic Muslim Malays, who make up 70 percent of the population, have been broadly supportive of the government’s implementation of Sharia laws, non-Muslim Malays and other ethnic groups have privately expressed unease. Government estimates put non-Muslims, including Buddhists and Christians, at 34 percent of the population.

These factors mean that renouncing a Sharia legal system for trade purposes may present a difficult choice for the Brunei government. But for Washington, leaving this issue untouched while it has asked other TPP countries to adopt reforms to improve their governance and human rights records may go against Congress’s TPA negotiating objectives.

Mr. Rui Hao Puah is a researcher with the Sumitro Chair for Southeast Asia Studies at CSIS.

Source: Centre for Strategic and International Studies

HM questions delay in Syariah law enforcement

  • His Majesty Sultan Haji Hassanal Bolkiah Mu’izzaddin Waddaulah (R), the Sultan and Yang Di-Pertuan of Brunei Darussalam delivering his titah while His Royal Highness Prince Haji Al-Muhtadee Billah (L) the Crown Prince and Senior Minister at the Prime Minister’s Office looks on during the Brunei Islamic Religious Council (MUIB) meeting at the LegCo building yesterday. Picture: BT/Khaliq Roziman
  • His Majesty Sultan Haji Hassanal Bolkiah Mu’izzaddin Waddaulah, the Sultan and Yang Di-Pertuan of Brunei Darussalam (R) and His Royal Highness Prince Haji Al-Muhtadee Billah (2nd R), the Crown Prince and Senior Minister at the Prime Minister’s Office take a closer look at some of the exhibits on display at the Islamic Da’wah Centre yesterday. Picture: BT/Fazizul Haqimie

Sunday, February 28, 2016

 

HIS Majesty Sultan Haji Hassanal Bolkiah Mu’izzaddin Waddaulah, the Sultan and Yang Di-Pertuan of Brunei Darussalam, yesterday ordered authorities to explain the two-year delay in the phased enforcement of Syariah Penal Code Order.

The monarch said the Syariah law has remained “stagnant” without any progress after being actively pursued for a brief period following the launch of the Order in 2014.

Delivering his titah during a meeting with the Brunei Islamic Religious Council (MUIB) at the Legislative Council (LegCo) building, His Majesty questioned how many of the Syariah law provisions have been enforced.

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“How long has passed since it was launched and gazetted until now? It has already been two years but it is still at the stage where only general offences are dealt with.

“What about the other phases? When will they be implemented? I expect the ministry concerned might respond by saying that the Syariah Penal Code could not be fully enforced at this stage because the CPC (Syariah Courts Criminal Procedure Code) has not been finalised,” the Sultan added.

The CPC outlines the rules for conducting criminal proceedings, from the investigation to prosecution.

His Majesty said authorities might respond by saying they are still waiting for the Attorney General’s Chambers (AGC) to finalise the vetting of the draft documents.

“My next question is when will the draft law be sent to the AGC? Their response might be that it was already sent in 2014,” His Majesty said.

The Sultan went on to say that if this was the case, it is most regrettable because two years have passed and yet the CPC has not been completed.

“How thick is the draft? The AGC might tell us there are many other legal documents that need to be urgently dealt with too. The vetting of the CPC will only be able to be finalised in June 2016, after it has stalled for two years,” the monarch said.

His Majesty said this is an “unacceptable excuse”.

“It is as if people will be under the impression that the Syariah Penal Code is worthless as a law mechanism. Where is the Minister of Religious Affairs? And where is the Attorney General? Why have they not come forward to remedy this unsatisfactory situation?” the Sultan questioned.

The first phase of the Syariah Penal Code was enforced on May 1, 2014. His Majesty added that before the second phase can be implemented, the country has to wait for another 12 months after the CPC can be gazetted.

“Now two years have gone by, but the CPC is not gazetted yet and the vetting process has not even started. This means that after it is gazetted in 2016, we have to wait another year, until 2017 before the second phase can be implemented.”

He said it will be 2018 by the time the third phase of the Syariah law can be enforced.

“So when will the penal code be ready to be fully implemented? Is it true to say that the officers responsible in vetting the draft legislation could not do so as a matter of urgency? Is it just a matter of vetting or did they intentionally refuse to vet?” His Majesty questioned.

The monarch asked why had the religious affairs minister and attorney general failed to keep tabs on how the work was being done by their officers.

“May I remind all that we did not formulate the law out of whims and fancies but we do it solely for the sake of Allah, not in pursuit of glamour. Working for Allah must be done earnestly,” His Majesty said.

Religious education

His Majesty also raised concerns on the direction and future of Arabic education in the country.

Arabic schools are established to bring forth those who are competent in religious knowledge, with the objective of eventually getting Islamic scholars or ulama. With this in mind, Arabic schools must prioritise religious subjects such as Arabic language, fiqh, tauhid, Quran, hadith and tafsir, he said.

He added that this must be done without ignoring the importance of subjects such as Malay language, English language and Mathematics.

Everything went well since the inception, but Arabic schools introduced the science stream from the 1980s, making it compulsory to take Physics, Biology, Chemistry and Additional Mathematics – subjects that are available in mainstream schools under the Ministry of Education, he said.

This meant that students who took the science subjects are required to reduce the number of religious subjects so that it will not be too burdensome, and thus science subjects came to gain more prominence than religious subjects, he continued.

Science stream classes at Arabic Schools currently only offer classes up to O-levels. After completing their O-levels, the students would have to transfer to mainstream schools if they wish to pursue the sciences.

“At that point, they are no longer considered students of Arabic schools and they completely stop studying religious subjects after their O-levels,” he said.

The monarch said there is a need to review the impact of introducing the sciences in Arabic schools when it was implemented in the 1980s.

“Unfortunately, no such research has been done, we do not know the implications whether good and bad of introducing Science stream classes back in the 1980s,” he said.

The Arabic religious education system is experiencing major changes with the implementation of the National Education System for the 21st Century (SPN21).

Under the education system, Arabic school students will be able to master both religious and Science stream subjects. Year 11 students at Arabic secondary schools will have to sit for two major examinations, including the O-levels for their mainstream subjects and the Brunei Islamic Studies Certificate (SPUB) for their religious curriculum.

In Year Nine, the students will be divided into three streams based on their results: 1) fast track Science stream for students who obtained excellent results; 2) normal track Science stream for students who obtained ‘very good’ results; and 3) Arabic stream for students who obtained ‘good’ results and below.

The Sultan said the grading of the three streams reflects that the Arabic stream is of third class level, not on par with the other two categories.

They are also required to study all subjects for their SPUB and O-level examinations simultaneously, possibly doubling the number of subjects that need to be taken in mainstream schools, he added.

“Wouldn’t such a system make it burdensome for Arabic school students and difficult for teachers to teach and complete the syllabus with that many subjects?”

He added that this can cause students to choose the Science stream over the Arabic stream.

The monarch said it is generally known that religious education subjects are more difficult and taxing compared to the other subjects, a factor that can push students away from Arabic classes in favour of the sciences.

“All these need to be deliberated on as thoroughly as possible to save and popularise religious subjects so that they will be seen as a good choice, more attractive and more appealing than non-religious subjects, not a means to open an opportunity for them to get away or escape from.

“This is a matter of much concern to me – the future direction of Arabic schools. Are their roles fading into irrelevancy or diverting towards another direction. All these call for a thorough reassessment to turn back to its original course. Let it not be changed,” he added.

Islamic propagation

The monarch said da’wah (dissemination of Islamic teachings) in the country is still weak and needs to be strengthened amid uncertain times and social ills affecting the country.

Among the issues raised were the number of propagators at the Islamic Da’wah Centre and whether they were properly trained.

“In addition to having many propagators, we want the da’wah delivered to be effective. Effective da’wah is successful da’wah,” he said.

His Majesty pointed out that one important medium of the da’wah is through the mimbar. The mimbar is a pulpit where the imam delivers the sermon in mosques.

“It is vital to deliver effective messages in the sermons. That is why all aspects must be taken into account, starting from preparation, content, writing, policy guidelines and lastly, the individual who will deliver the sermon,” he said.

His Majesty said it is important to practise discretion in deciding the content of the sermon, adding that the content must be appropriate.

He gave an example of an incident where SEA Games become the topic of a sermon. “The khatib (sermon readers) called upon congregants and Muslims to flock to the stadium to witness the events that would take place. We might say that sports is not something Islamically impermissible, but for a khatib to persuade and herd people to the stadium, in my opinion, is something that needs to be given thorough deliberation.

“Have we exhausted all topics and there is no other more important issue other than the SEA Games? This is what discretion is in the choice of topic along with the need to adhere to policy guidelines on sermons,” he added.

The Sultan said khatibs need guidelines on the correct way of delivering the sermon.

“Some readers are too tense and some were repetitive in their presentation. Is this what is expected of them by the Mosque Affairs Department? Where are the mosque affairs officers? Have they not come across incidents like these,” he asked.

Official visits and functions

His Majesty went on to say that it is not necessary for both the Minister of Religious Affairs and his deputy to make visits together as one should stay at the ministry and attend to pressing matters, such as the need to formulate policies for schools and the Islamic Da’wah Centre.

“The minister and his deputy minister should not simply enjoy making visits upon visits, for instance to schools, mosques and elsewhere. In doing so, both of them pay a visit to the same place and enjoy media coverage,” His Majesty said.

The monarch also said there is no need for all senior government officials to attend official functions that were held either in the day or at night.

“It is alright to make a visit and hold a function, but if the events are becoming too many and frequent, what about office work and worse, if too many attend them – the minister, his deputy minister and a horde of other officers! Is it not more reasonable for one of them to make the visit while the other stays behind?

“Is it not true that there are a lot of more pressing matters that need to be dealt with and given serious thought in the office?

He said other pressing matters include formulating policies for schools, Islamic Da’wah Centre, mosques, zakat (tithes), following up on the development of new converts, maintenance and upkeep of Muslim cemeteries and burial grounds, as well as halal certification.

Following the meeting, His Majesty visited the Ministry of Religious Affairs, which houses several units under the Islamic Religious Council before making a stop at the Islamic Da’wah Centre.

The Brunei Times

Gov’t targets Syariah CPC completion by June

Sunday, February 28, 2016

 

THE Brunei government is targeting to complete the Syariah Courts Criminal Procedure Code (CPC) by June this year before it can enforce the second phase of the Islamic criminal law by June 2017, the minister of religious affairs said.

Yang Berhormat Pehin Udana Khatib Dato Paduka Seri Setia Ustaz Hj Awg Badaruddin Pengarah Dato Paduka Hj Awg Othman said his ministry and the Attorney General’s Chambers (AGC) are working towards finalising the CPC, which outlines procedures for law enforcers in carrying out investigation and prosecution.

The drawing up of the CPC has not been easy because this is “something totally new”, the minister told The Brunei Times when asked the reason of the delay in producing the Code.

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The minister was speaking on the sidelines of a meeting between His Majesty Sultan Haji Hassanal Bolkiah Mu’izzaddin Waddulah, the Sultan and Yang Di-Pertuan of Brunei Darussalam and Brunei Islamic Religious Council members at the Legislative Council building yesterday.

During the meeting, His Majesty questioned the Ministry of Religious Affairs and AGC over the long wait in completing the CPC.

YB Pehin Dato Ustaz Hj Awg Badaruddin said the draft of the CPC had been completed, but authorities are still checking every aspect of of the legislation and involving experts to provide their input. “The AGC has also been working on (simultaneous) tasks such as reforms on laws on FDIs and the ease of doing business. They are working very hard,” he added.

The first phase of the Syariah Penal Code Order came into force on May 1, 2014, six months after the Sultan made the announcement that Brunei would be returning to the Islamic law.

The first phase covers general offences that are punishable by ta’zir (penalties set by the government, and are punishable by fines and/or imprisonment). Crimes listed under this section include disrespecting the month of Ramadhan and propagating religions other than Islam.

Harsher punishments for serious crimes, such as amputation of limbs for theft, will be introduced in the second phase pending the completion of the CPC.

Responding to the Sultan’s titah on Islamic education in Arabic schools, YB Pehin Dato Ustaz Hj Awg Badaruddin said Arabic school students are required to take general subjects and religious studies. “This has become a burden for the students according to His Majesty, and it is not fair for the students. His Majesty has asked us to review this and the ministry welcomes His Majesty’s titah, we will look into this.

“We will also review this together with the Ministry of Education and look into the future of Arabic schools in Brunei,” he added.

In his titah, the Sultan said propagation is weak and needed to be strengthened, and questioned how many trained propagators were working at the Islamic Da’wah Centre.

The minister said training is provided for propagators at Seri Begawan Religious Teachers University College (KUPU SB) where they can obtain Diploma in Teaching (Tauhid), Diploma in Teaching (Tafsir and Hadith), Diploma in Teaching (Fiqh) and Diploma in Teaching (Fiqh and Usul Fiqh).

He added another option is to look abroad to scout for other centres that train propagators.

The Brunei Times, 28/2/2016

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