Malaysia’s new government should no longer delay abolition of death penalty — MADPET

Malaysia’s new government should no longer delay abolition of death penalty — MADPET

 

AUG 5 — MADPET(Malaysians Against Death Penalty and Torture) is disappointed that there is still no abolition of the death penalty in Malaysia after almost 3 months since the new Pakatan Harapan led government came into power.
The former UMNO-BN government did abolish the mandatory death penalty for drug trafficking in 2017, but alas the delay of putting the new law in force for months resulted in at least 10 persons being sentenced to mandatory death penalty. Currently in Malaysia, the death penalty is mandatory for about 12 offences, while about 20 other offences are punishable by a discretionary death penalty. Many of these offences do not even result in grievous injury and/or death to victims.
It is MADPET’s hope that the new PH-led government will act justly, and expedite the abolition of the death penalty, especially the mandatory death penalty and not just procrastinate using lame reasons of further study and review as was the case with the past government. The greater the delay, more will be sentenced to death and may even continue to be executed in Malaysia. When in Opposition, many of the parties and their parliamentarians, who are now in the new government, were committed to the abolition of the death penalty. The time to walk the talk is now.
35 persons were executed in the last ten years(2007 – 2017), and 1,267 people on death row or 2.7% of the prison population of about 60,000 people, as revealed by deputy director (policy) of the Prisons Department, Supri Hashim recently(Star, 29/6/2018). Since the new government assumed power, there is to date no known executions, but reasonably many still may have been sentenced to death in the past months.
On 29/7/2018, Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail said that government is looking into the need to make amendments to do away with the mandatory death penalty in legislation pertaining to criminal offences.(Malay Mail, 29/6/2018)
Mandatory death penalty removes the ability of judges to impose the most just and appropriate sentence, as Parliament by law forces them to impose just the one sentence of death once a person is convicted of the relevant crime.
Mandatory death penalty is undemocratic
In a democracy, there are 3 branches of government – the Executive (Prime Minister and Cabinet), the Judiciary and the Legislative(Parliament). Besides serving as a check and balance to the other 2 branches, each branch of government also do have specific functions.
The mandatory sentence including the death penalty, is really is a trespass by the Legislature into what must be the duties/functions of the Judiciary. We should really trust the Judiciary in Malaysia to provide every person with the right to a fair trial, including also the ability to impose the appropriate just sentence, after considering all factors, including points submitted in mitigations and arguments for a harsher sentence.
Mandatory death penalty is unconstitutional
The existence of the mandatory death penalty may be unconstitutional, which was also the recent finding of the Caribbean Court of Justice (CCJ), Barbados’s highest court, on 27/6/2018, which struck down the mandatory death penalty on the grounds that it is unconstitutional. Amongst others, it said that ‘ the Constitution, which gives the right to protection of the law, was enforceable, and that the mandatory death penalty breached that right as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime ’. One of the judges also stated ‘ that the judicial monopoly on the power to sentence, which is protected by the separation of powers principle, is consistent with “ensuring respect for, and adherence to, the ongoing evolution in the protection of human rights”. (Caribean360, 27/6/2018)
Our Malaysian Constitution has similar provisions with Barbados, and is also a democracy.
In a criminal trial, after conviction, the accused have the right to raise mitigating factors for the courts to consider when deciding on a just sentence. When an offence provides for a mandatory sentence, the convicted person is denied this fundamental right, and as such, it may be said that he/she is denied the guaranteed ‘equal protection of the law’ and the right to a just sentence.
Death penalty in malaysia not in accordance with islam must be abolished
Whilst, some Muslims have supported the death penalty on the basis that it is provided for in their religious teachings and/or faith, it must be pointed out that in Malaysia, all the offences that provide for the death penalty are not offences under the Islamic/Syariah law.  In Islam, there are also strict criminal procedural and evidential requirements that need to be fulfilled, which arguably is not fulfilled in Malaysia’s present administration of criminal justice system that now allows for the death penalty. As such, the argument that Malaysia should retain the death penalty because Islam allows for it is weak, and possibly even baseless or flawed.
Being a caring nation, Malaysia needs to do justice to all – including also emphasizing on repentance and second chances rather than simply effecting revenge, punishment and even death. It must be noted, that Malaysia, may also be partially responsible for its failings of government to provide for the well-being and welfare of its people, may have been a factor that pushed many a poor persons to resort to crime for the survival and livelihood of themselves and their families.
Therefore, Muslim politicians and parties, in government or otherwise, should justly not resist the abolition of death penalty, for fear of losing the support of Muslim Malaysian voters.
Death penalty not in the ‘best interest’ of a child
Malaysia, having ratified the Convention on the Rights of the Child (CRC) in 1995, must uphold its commitment to the protection and well-being of children. The execution of a father/mother/sibling/relative of a child is really not in the ‘best interest of the child’.
This concern for the child is already reflected even in our present Malaysian criminal laws, where a pregnant woman will not be sentenced to death, not when she is pregnant nor even many years after she had given birth.  The underlying value and principle could only be our concern for the child and the importance of a living parent to a child’s wellbeing.  This care and concern now needs to be expanded by the abolition of the death penalty.
When other co-perpetrators not yet arrested, tried or brought to justice
There is suspicion that in the Mongolian model Altantuya Shaariibuu murder case, there may be others involved besides the 2 who have been convicted and now sentenced to mandatory death penalty. The two, Sirul Azhar Umar and Azilah Hadri, were at the time of the said murder part of former Prime Minister Najib’s personal security detail.
This may be the case also for many other murders and death penalty crimes, especially those cases where the prosecution in the charge sheet clearly stated that the crime was done together with others not named, and in other such cases where involvement of third parties are evident or suspected. If the convicted are executed, it is becomes all the more unlikely that these other perpetrators of crime may never be identified, arrested and brought to justice.
Now, Malaysia is considering the abolition of the death penalty with the hope that the convicted and those sentenced to death, will cooperate in making sure other perpetrators are also brought to justice – this is an additional reason for the abolition of the death penalty. It will surely make it more probable to bring to justice those in the shadows, including those who may have ordered or facilitated such murders and crimes.
In Japan, it was customary that the convicted were not executed until all those involved were brought to justice. In Malaysia, sadly this may not be the case.
Even in cases that the prosecution knows there are others still at large, as an example in the case of Gunasegar Pitchaymuthu(35), Ramesh Jayakumar(34), and  Sasivarnam Jayakumar(37) who were executed for murder in March 2016. The charge levied against the 3 stated clearly that the murder was committed with ‘one other still at large’. Now that the 3 have been executed, that ‘one other still at large’ would most probably never be brought to justice, more so since crucial witnesses being the accomplices are now dead. Justice may not be done.
Everyone would want all perpetrators of crimes, including the ‘big bosses’, ‘kingpins’ and others that ordered or assisted in the crime  to be brought to justice.  Hence, the execution of possible ‘whistle blowers’ and crucial witnesses prior to the arrest and trial of all other perpetrators is foolish, and certainly yet another reason for the abolition of the death penalty.
Now, if there is no mandatory death penalty, better still no death penalty, it is more likely that the convicted, especially after they had been unsuccessful in their final appeal, to reveal information needed to bring other remaining perpetrators to justice possibly with an assurance that there will be reduction in their own sentences. A person, who is guilty of murder or any crime, is likely not to reveal any information about the involvement of others until after their final appeal – for any earlier disclosure will not help them in their own trial, and will more likely result in their own conviction.
Commute death sentence rather than simply delaying executions
Dr Wan Azizah  was reported saying that “The last Cabinet meeting resolved to implement the government decision to defer the death penalty imposed on 17 people convicted of drug offences .” (Malay Mail, 29/6/2018). This only means that their execution has been delayed. It should just be commuted to imprisonment
With regards to the offence of drug trafficking, all those on death row, especially the at least 10 persons who were sentenced to death, simply because of the then Barisan Nasional’s Minister’s procrastination in putting the law into force by several months, should really now have their death penalty commuted to imprisonment.
In fact, it is just that all those on death row for drug trafficking should have their death sentence commuted to imprisonment.
Historic success of ousting umno-led government celebrated with commutation of death sentence?
Given the historic success at the last General Elections on 10/5/2018, which saw Malaysians ousting the UMNO-led coalition who had been government since independence on 31/8/1957, it may be the best time to celebrate by having the death sentence of all on death row at this time be commuted to imprisonment possibly on the occasion of the upcoming Merdeka celebration at the end of this month on 31/8/2018.
There are many reasons why the death penalty needs to be abolished. It certainly does not serve as a deterrent, as in Malaysia itself, it has been previously revealed in Parliament that there was an increase of drug trafficking despite the existence of the mandatory death penalty.
The police, prosecution and the courts are certainly not infallible, and innocent people can sometimes wrongly be found guilty and even sentenced to death. This risk of miscarriage of justice itself is sufficient reason for the abolition of the death penalty.
The call for the abolition of the death penalty in Malaysia has been made for far too long by civil society, Malaysian Bar, Parliamentarians and many others. The Human Rights Commission of Malaysia (SUHAKAM) has also recently called on this new government to not delay in abolition of death penalty,(2/7/2018, Bernama-Malay Mail)
MADPET calls on the new Malaysian government to forthwith impose a moratorium on all executions pending the abolition of the death penalty.
MADPET calls on the Malaysian government to immediately commute the death sentence of all on death row, especially those on death row by reason of being sentenced to death for drug trafficking, when that offence still carried the mandatory death penalty.
MADPET calls for the abolition of the mandatory death penalty and all other mandatory sentences, and restore to the Judiciary the power to decide on the most appropriate and just sentence for each case. Parliament should maybe simply stipulate maximum and/or minimum sentences, and return to the Judiciary ‘the judicial monopoly on the power to sentence’ as should be the case in a true Democracy.

Malaysia – Still delaying abolition whilst Human Rights Commission wants no delay..

Malaysia’s new government says that they intend to abolish the death penalty, for a start the mandatory death penalty …but again not a firm commitment, but just intention to ‘review’. Malaysia’s National Human Rights Commission(SUHAKAM) wants no delays…

Suhakam wants no delay in abolition of death penalty

Suhakam chairman Tan Sri Razali Ismail said the commission would let Prime Minister Tun Dr Mahathir Mohamed decide on the matter without interference from other parties. ― Picture by Choo Choy May
Suhakam chairman Tan Sri Razali Ismail said the commission would let Prime Minister Tun Dr Mahathir Mohamed decide on the matter without interference from other parties. ― Picture by Choo Choy May
KUALA LUMPUR July 2 — The Human Rights Commission of Malaysia (Suhakam) hopes that the government will not delay in abolishing the death penalty.
Suhakam chairman Tan Sri Razali Ismail said the commission would let Prime Minister Tun Dr Mahathir Mohamed decide on the matter without interference from other parties.
“If we take a poll from the Malaysian people now, a lot of them will agree to get rid of the death penalty.
“We should get going and do it within this year.
“Of course there will be many quarters that will review it from various aspects and on how to deal with certain custom practices, religion and all, but for me that is the business of the PM to put it all together.”
Razali said this to reporters after attending the workshop on the United Nations Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment (Uncat) with the Malaysian Islamic Community here today.
Meanwhile, Deputy Secretary-General of the Ministry of Home Affairs (Moha) Datuk Seri Nadzri Siron said that the death sentence on 17 inmates in death row had been put on hold pending a government review on capital punishment.
He stated that the outcome might take a while as the Cabinet would have to deliberate on the findings if the review.
Nadzri said the review process on capital punishment would begin as soon as possible, as it is a directive from the government.
“The review will involve all laws where the death penalty is prescribed, including the Dangerous Drugs Act 1952 and the Firearms Act 1971,” he said. — Bernama, Malay Mail, 2/7/2018

Home Ministry says death penalty under review, reprieve for 17

Deputy Secretary General of the Home Ministry, Datuk Seri Nadzri Siron, speaks during the agenda workshop on Malaysia Accession to the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment of Punishment in Kuala Lumpur July 2, 2018. — Picture by Miera Zulyana
Deputy Secretary General of the Home Ministry, Datuk Seri Nadzri Siron, speaks during the agenda workshop on Malaysia Accession to the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment of Punishment in Kuala Lumpur July 2, 2018. — Picture by Miera Zulyana
KUALA LUMPUR, July 2 — The sentences of 17 inmates on death row have been put on hold pending a government review of the penalty, the Home Ministry announced today.
The ministry’s deputy secretary-general Datuk Seri Nadzri Siron indicated that the outcome may take a while as the Cabinet will have to deliberate on the review findings.
“The review process will begin as soon as possible, as it is a directive from the government,” he said during the agenda workshop on Malaysia Accession to the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment of Punishment (Uncat) here.
Nadzri said the review will involve all laws where the death penalty is prescribed, including the Dangerous Drugs Act 1952 and the Firearms Act 1971.
“The PH manifesto clearly stated that the use of the death penalty would be reviewed. Whether it will be retained or abolished will depend on the Cabinet,” he said, using the initials for the Pakatan Harapan coalition that came into power after the May 9 general election.
On the government’s accession to the Uncat, Nadzri said the ministry will soon form a special committee to review seven acts pertaining to detention without trial.
“We have been instructed to review these laws as soon as possible alongside the Attorney-General’s Chamber. The review will most probably conclude by the year’s end,”
“Three of the seven acts to be reviewed include the Security Offences (Special Measures) Act 2012, the Prevention of Crime Act 2014, and the Prevention of Terrorism Act 2015,” he said. – Malay Mail, 2/7/2018

DPM: Govt may abolish death penalty

As of now, the government had deferred the death penalty for drug-related offenders, Dr Wan Azizah said. — AFP pic
As of now, the government had deferred the death penalty for drug-related offenders, Dr Wan Azizah said. — AFP pic
BANGI, June 29 — The government is looking into the need to make amendments to do away with the mandatory death penalty in legislation pertaining to criminal offences, Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail said today.
As of now, the government had deferred the death penalty for drug-related offenders, she said.
“The last Cabinet meeting resolved to implement the government decision to defer the death penalty imposed on 17 people convicted of drug offences.
“In a broader context, we also touched on the need to consider whether the same thing can be applied for offenders in other crimes,” she said at a press conference after launching EduWAQF, an educational ‘wakaf’ (Islamic endowment) initiated by AWQAF Holdings Berhad, here.
Wan Azizah said this measure would enable Sirul Azhar Umar, who was convicted and sentenced to death over the murder of Mongolian model Altantuya Shaariibuu, to return to Malaysia from Australia if he wanted to.
She said Sirul Azhar, who had sought protection in Australia, was unlikely to be allowed to return to Malaysia so long as he had to face a death penalty upon his coming back.
“That’s why we are discussing whether it is necessary for us to change the sentence or replace it with any penalty,” she said.
It had been reported that Australia authorities had allowed a Malaysian request for Sirul Azhar to be extradited on condition that Malaysia agreed to bear the costs but the former Special Action Unit member reportedly refused to return home for fear of having to face the death penalty. — Bernama – Malay  Mail, 29/6/2018
See more at MADPET Blog

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