Anti-Death Penalty Asia Network

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.

Sri Lanka – Government may end 42 year old moratorium on executions

Sri Lanka leader vows to end moratorium on death penalty

  • By bharatha mallawarachchi, associated press

COLOMBO, Sri Lanka — Jul 23, 2018, 3:32 AM ET

 

Sri Lanka’s president said the government will still end its 42-year moratorium on capital punishment despite requests by the European Union and other diplomatic missions not to do so.

President Maithripala Sirisena said the decision to implement the death penalty for drug smugglers “will not be changed under any circumstance and despite the objections raised by some factions against the move,” according to the president’s website.

Rising crime in Sri Lanka, including gang-related killings, narcotics, robberies and sex crimes have led to a public outcry for executions.

Last week, Sirisena said convicted drug traffickers will be hanged as a part of a crackdown on narcotics. The government has said it will execute prisoners who have allegedly taken advantage of the moratorium to continue their drug trade from prison. Drug trafficking carries the death penalty in Sri Lanka.

Sri Lanka has maintained the moratorium since its last execution in 1976.

No date has been set for the first new execution. More than 400 convicts now in prison were sentenced to death, although many have had their sentences commuted to life or are appealing. Of them, 18 were sentenced for drug-related crimes.

Sirisena said he would summon judiciary, prisons and law enforcement heads this week to appoint a committee to decide who should be executed.

The government’s decision to end the moratorium drew reaction from the European Union delegation and embassies of Britain, France, Germany, Italy, the Netherlands, Romania, Canada and Norway which asked Sirisena to maintain the moratorium and to uphold Sri Lanka’s tradition of opposition to capital punishment.

The embassies stressed they oppose capital punishment “in all circumstances and in all cases” and that the death penalty is incompatible with human dignity, does not have any proven deterrent effect, and allows judicial errors to become fatal and irreversible. – ABC News, 23/7/2018

Japan – 6 More Executed on 26/7/2018(Thursday)

National / Crime & Legal

Japan sends last six Aum death row inmates to the gallows

by Sakura Murakami

Staff Writer

The six remaining Aum Shinrikyo cult members on death row were executed Thursday morning, the Justice Ministry said, with all 13 of the cult members sentenced to death now having been hanged over the span of three weeks.

The executions followed the hanging of Shoko Asahara, the founder of the doomsday cult, and six former senior members of the group on July 6.

The six hung Thursday were Satoru Hashimoto, 51; Toru Toyoda, 50; Kenichi Hirose, 54; Yasuo Hayashi (later named Yasuo Koike), 60; Masato Yokoyama, 54; and Kazuaki Okazaki (later named Kazuaki Miyamae), 57. Hayashi and Okazaki changed their surnames after they were imprisoned.

The 13 high-level Aum members were sentenced to death for committing crimes including those involving the cult’s sarin gas attack in the Tokyo subway system in 1995; another sarin attack in Matsumoto, Nagano Prefecture, in 1994; and the murder of lawyer Tsutsumi Sakamoto and his family in 1989.

It is rare for the government to execute this many death row inmates over a short period of time. Until now, the shortest time span between executions since November 1998, when records of executions were made public, was 47 days.

Media outlets have speculated that the Justice Ministry wanted to close the curtain on the shocking crimes and dramatic events before the end of the Heisei Era, which began in 1989. The era is set to end next year as Emperor Akihito plans to abdicate on April 30.

The cult had attracted many young people, including those who were highly educated at top-level universities. Some followers were believed to have become disillusioned with the materialism seen amid the euphoria of the bubble economy in the 1980s.

The indiscriminate murders by Aum, in particular those in the Tokyo subway attack, deeply shocked the nation and are still remembered as key events that damaged a long-held sense of security felt by many in postwar Japan.

“The majority of the public believe that there is no other option than to execute those who have committed brutal crimes,” said Justice Minister Yoko Kamikawa during a news conference in Tokyo.

Polls have long shown a majority of Japanese people support capital punishment.

Kamikawa declined to reveal if any of those executed Thursday had been calling for the reopening of their trials, as has been reported by some media outlets.

Aum Shinrikyo split into three smaller religious groups after the arrest of Asahara. Local residents living around those groups’ facilities are worried, believing some of the followers still worship Asahara and the senior Aum members who were executed.

“The incidents that happened in the Heisei Era have finally ended. But for local residents, (their worries) won’t end unless (successor groups) are disbanded,” Hisashi Mizukami, 73, who heads a group of local citizens in Tokyo who live near the main office of Aleph, one of the successor groups, was quoted as saying by Kyodo News.

Human rights activists argue that those calling for retrial should not be executed unless all pending legal processes have been completed. The executions immediately drew condemnation from activists calling for the abolition of capital punishment.

Kamikawa said that the Justice Ministry does not believe that an execution should be delayed because an inmate is seeking a retrial.

The Japan Federation of Bar Associations has long called for the abolishment of the death penalty, arguing for lifetime imprisonment without parole instead. JFBA President Yutaro Kikuchi issued a statement on Thursday protesting Thursday’s execution.

“Criminal punishment should not be given just as retaliation but for something helpful in preventing the recurrence of a crime, such as achieving the rehabilitation (of a criminal) into society,” Kikuchi said.

Hiroka Shoji, East Asia researcher at Amnesty International, wrote on the group’s website, “This unprecedented execution spree, which has seen 13 people killed in a matter of weeks, does not leave Japanese society any safer. The hangings fail to address why people were drawn to a charismatic guru with dangerous ideas.”

Asahara founded the precursor of Aum Shinrikyo in 1986. Many members of the group were featured on TV shows numerous times in the 1990s to passionately defend the cult in public.

In March 1995, Aum Shinrikyo members released sarin gas inside subway cars during Tokyo’s morning rush hour, killing 13 and injuring thousands. That was soon followed by a police raid and the arrest of Asahara at the cult’s facilities in Kamikuishiki, Yamanashi Prefecture. The murders highlighted the dangerous nature of the cult, some of whose members would be willing to kill if ordered to by Asahara.

All the trials related to members of the cult were finalized in January this year, causing the media and the public to speculate that the death sentences would be carried out shortly. – The Japan Times, 26/7/2018

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