Death penalty reforms must be an opportunity for positive human rights change — Amnesty International Malaysia

Friday November 3, 2017
05:34 PM GMT+8

ICYMI

 

NOVEMBER 3 — Amnesty International Malaysia welcomes the statement by the Malaysian government outlining its efforts  to amend Section 39B of the Dangerous Drugs Act 1952 and to provide courts with the discretion to spare lives when imposing the death penalty. The organisation encourages the Government of Malaysia to ensure that the proposed amendments will fully remove the mandatory death penalty and establish a moratorium on all executions as first critical steps towards abolition of the death penalty.

The announcement comes after a parliamentary reply by Law Minister Datuk Seri Azalina Othman Said on 30 October 2017,  stating that the first draft of the amendment has been completed by the Attorney General’s Chambers and is awaiting the approval of the cabinet.

The organisation also welcomes the support of the Attorney General, Tan Sri Mohamed Apandi Ali  in giving the discretionary power to the judiciary in drug-related offences in a statement made on 31 October.

While Amnesty International believes that these amendments is a step in the right direction, the organisation hopes that these amendments will be implemented in a manner that is effective and far-reaching.

The organisation renews its call on the Malaysian authorities to abolish the mandatory death penalty for all offences and restrict the scope of the death penalty to the “most serious crimes”, which do not include drug-related offences. International law prohibits the use of the mandatory death penalty and restricts the use of the ultimate punishment, in countries where it has not yet been abolished, to intentional killing.

Amnesty International Malaysia is in fact concerned that the statement of the Attorney General suggested that the death penalty legislative amendments, as currently drafted, would introduce limited sentencing discretion only for those found guilty of transporting prohibited substances. Amnesty International’s analysis of the impact of similar reforms implemented in Singapore since 2013 indicate that the introduction of limited sentencing discretion that fell short of fully abolishing the mandatory death penalty has done little to improve the protection of human rights.

In its report  Cooperate or Die; Singapore’s Flawed Reforms to the Mandatory Death Penalty, Amnesty International found that  the mandatory death penalty continues to be extensively imposed in Singapore, and that drug trafficking continues to involve the great majority of the death sentences imposed in the country. In cases where information is available, the burden of the death penalty once again appears to fall on those with less advantaged socioeconomic backgrounds and convicted of importing relatively small amounts of controlled substances.

The amendments also introduced a new section in the Singaporean Misuse of Drugs Act, giving courts discretion to sentence persons to life imprisonment, if found guilty of drug trafficking or importing prohibited substances over certain amounts if they can prove their involvement in the offence was restricted to that of a “courier”; and if the Public Prosecutor issues a “certificate of substantive assistance”, confirming that the convicted person has substantively assisted in disrupting drug trafficking activities.

This not only narrows the court’s discretionary powers considerably, it violates the right to a fair trial as it places life and death decisions in the hands of an official who is neither a judge nor a neutral party in the trial and should not have such powers.

It is our hope that the Malaysian authorities will make the ongoing legislative reforms on the death penalty a meaningful opportunity to improve the protection of human rights and adopt a comprehensive approach on its policies on the death penalty.

Pending abolition of the death penalty, Amnesty International Malaysia renews our call on the authorities to establish a moratorium on all executions. The government had stated that as of April 30, 2016, 1,042 people comprising 629 Malaysians and 413 foreign nationals were sentenced to death due to murder, drug trafficking, firearms trafficking or kidnapping; Sixteen (16) death row inmates have been executed since 2010 in Malaysia.

Even with plans to amend laws and rulers granting pardon to death row inmates, Amnesty International Malaysia still calls for the total abolition of the death penalty as it is proven multiple times not to have a unique deterrent effect on crimes, and violates the Universal Declaration of Human rights, including the right to life and the right to live free from torture.

It is in this context that Amnesty International Malaysia welcomes the pardon by the Sultan of Perak on November 1 of  two prisoners, who have been imprisoned for more than 16 years. Death row prisoners are usually kept in solitary confinement once their sentence has been imposed.

In a country where information on the use of the death penalty is not publicly available, the announcement of the pardon is a positive development which the organisation hopes it can be replicated to allow for greater transparency and more commutations of death sentences.

Background

Mandatory death sentences leave courts no option but to condemn drug  offenders and those convicted of murder to the gallows. Drug trafficking does not meet the threshold of the “most serious crimes” to which the use of the death penalty must be restricted under international human rights law.

Amnesty International opposes the death penalty in all cases and under any circumstances, regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to carry out the execution. The organisation considers the death penalty a violation of the right to life as recognised in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment.

Pending full abolition of the death penalty, Amnesty International calls for the government’s urgent intervention to halt all executions and to broaden the scope of the proposed reforms to encompass all capital offences; and to abolish the automatic presumptions of drug possession and trafficking allowed under Section 37 of the Dangerous Drugs Act, 1952 as initial steps.

Amnesty International has ranked Malaysia tenth in the use of the death penalty among 23 countries that carried out capital punishment last year.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

Read more at http://www.themalaymailonline.com/what-you-think/article/death-penalty-reforms-must-be-an-opportunity-for-positive-human-rights-chan#rZW2Ylw0ewe2kUVa.99

Pakistan – UPR Submission by ADPAN and 15 CSOs

 PAKISTAN: The Death Penalty

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

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

15 Civil Society Organisations(CSOs) listed below

After 8 years of moratorium on execution, in the wake of Peshawar massacre of 2014, when more than 150 people (there was no official figure available as many injured succumbed to injuries later) mostly school pupils were martyred and many others were seriously injured, the government of Pakistan decided to lift the moratorium on death penalty in terrorism related cases, however later it has silently lifted the moratorium for all capital cases.

About 471 prisoners have been said to be executed since Pakistan had lifted moratorium.

In 2016, only about 7 out of the 87 executed were for terrorism offences.  Thus, only 8% of persons executed for terrorism offences, the very reason given by Pakistan to end the moratorium on executions 8 years ago.(see Human Rights Commission of Pakistan website at http://hrcp-web.org/hrcpweb/wp-content/uploads/2016/12/Final-Executions-2016.xlsx-9.pdf )

As of December 2017 more than 8000 are languishing on death row in Pakistan, as suggested by various reports, as there is no official data available.

 

UNFAIR TRIALS – Military Courts and the 21st & 23rd Constitutional Amendment

Pakistan created special military courts to try persons, including civilians, alleged to have committed terrorism offences but these courts fall short of fair trial standards. There is not even no right to appeal from the decisions of these courts.

The special military courts, to try alleged terrorism related offenders, were set up in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment. (http://www.na.gov.pk/uploads/documents/1449574923_658.pdf) This special legislation had a sunset clause by the virtue of which it would expire on Jan 7, 2017 and the military courts would cease to exist. But through Twenty third amendment Act of 2017, military courts have been revived for further two years period up to January 2019. (http://www.na.gov.pk/uploads/documents/1491460727_515.pdf)

The military courts began trials in February 2015 and during the period from January 2015 to January 2017, had convicted 274 hardcore militants of which 161 were sentenced to death whereas 113 others were awarded prison terms, mostly life imprisonment. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2017/1/8

Human Rights groups in Pakistan have time and again voiced serious concerns over the procedure adopted by the military courts.

Reports state that most of the relatives of the persons arrested, detained and convicted by these military courts, only came to know about the conviction of their dear and near ones through media when the Inter Services Public Relations made public the convictions and sentence through issuance of press releases. In several of the cases people had complained that their convicted relatives were believed to be “missing persons” when in fact they had been in detention for many years before their trial and subsequent convictions.

Military court trials, in pursuant to the constitutional amendments, fall far short of international fair trial standards and also to the guarantees enshrined in the Constitution of Pakistan (especially right to life, right to fair trial and right to have counsel of one’s own choice, Article 9, 10 and 10 (a)).

Further, in most of the cases it has been alleged that the accused confessed his crime which itself questions the justice of the whole arrest, detention, prosecution and the trial before such military courts.(ISPR press release of May 12, July 14, October 13, November 7,22, December 16, 28, 2016. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2016/12/28

High number of confessions raised serious questions about the interrogation methods employed, and suggest the possibility of even torture and threats.

Non availability of oversight of Superior Courts is another point of concern as decisions of military courts are only permissible to limited judicial review, that is only with regard the question of lack of jurisdiction, coram non judice or mala fides.

It must be noted in that a, sentence of death awarded in the formal justice system of Pakistan by any session court is subject to confirmation by a two member bench of the High Court but this necessary protection against miscarriage of justice is not available to persons charged and tried by these military courts.

Though, Pakistan Army amendment Act, 2017, provides some protection like, ground of arrest within 24 hours of arrest, right to engage counsel of one’s own choice, application of Qanoon e Shahadat Order 1984 (Law of Evidence, 1984) but still since there is no right of comprehensive judicial review or even right of appeal to higher courts, the right or ability to challenge the deprivation of such rights and protections provided for in the Army Act, is easily denied.

Military Courts have also tried and convicted juveniles. One example is the case of Haider Ali.

Haider Ali, was convicted by military court but his mother challenged the conviction on the grounds that when Haider Ali was taken in to custody by military agencies, he was grade 10 student(about 15 years old), and that the military courts have no jurisdiction to try a juvenile. Unfortunately, both the High Court and the Supreme Court agreed with the prosecution that that the amendments to the Army Act superseded all other laws,(section 4, Pakistan Army Amendment Act 2017) and military courts could legally try individuals suspected of committing terrorism-related offences, even if they were under the age of 18 at the time of offence. http://www.supremecourt.gov.pk/web/user_files/File/C.P._842_2016.pdf ;http://www.na.gov.pk/uploads/documents/1491460313_135.pdf

Reforms in the legal framework:

Though Pakistan has ratified ICCPR, UNCAT UNCRC that required the State Parties to limit the death penalty only to the most serious offences, to not resort to torture, and to ensure special protection for children but the Pakistan, military courts are dispensing “justice”, and even trying civilians and children in contravention to Pakistan’s commitment to these UN Conventions and/or Treaties..

The only source of information of those who arrested, detained, tried and convicted by military courts is a media statement of the Inter Service Public Relation (ISPR) after sentence has been meted out, with no other necessary details.

Death penalty through the military courts for those committing acts of terrorism has failed to deter such crimes. The series of attacks since the end of the moratorium and the imposition of the death penalty is sufficient proof of this.

There were only 2 crimes carrying death penalty in 1947 when Pakistan came in to being but now there are altogether 27 offences that carry death penalty in Pakistan.  Further, Death penalty in Pakistan is not reserved to the most serious crimes but also now includes ordinary offences like kidnapping and drug offences.

RECOMMENDATIONS:

  1. Abolish Military Courts System. Pakistan should try all persons, including those accused of committing terrorist linked offences in the normal criminal courts. Repeal the twenty third constitutional amendments and all subsequent amendments in the Army Act that allow military courts to try civilians, that undermine legal safeguards that ensure fair trial.

 

  1. Until the military courts system is abolished, and the 23rd Constitutional amendment is repealed, there must be:-

a. Immediate access to lawyers and family members of persons arrested and detained for alleged terrorist acts

b.The right to a fair and open trial, with the right to appeal;

c. Immediate public disclosure of persons arrested, detained and being tried

d. The transfer of all cases pending or before the military court involving civilians should be transferred and tried before the ordinary criminal courts;

e. That all those persons convicted and sentenced to death by military courts shall not be executed, until and unless the conviction and sentenced have been reviewed and confirmed by a 2 member bench of the High Court, as is the requirement for cases where persons are sentenced to death in the normal courts in Pakistan;

f. That juveniles and/or children shall not be tried in military courts, and should never be sentenced to death.

g. Make public the exact number of death row prisoners along with case details of all those who have been tried and convicted by military courts since the introduction of 21st constitutional amendment.

 

General Recommendations:

  1. Being a party to the International Covenant on The Civil And Political Rights (ICCPR), Pakistan should immediately impose moratorium on death penalty as a first step towards abolition, restrict the number of offences carrying death penalty to the most serious crime only, as reflected in Article 6 of the ICCPR.

Dated: 7 November 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Democratic Commission for Human Development, Pakistan

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

Odhikar, Bangladesh

Christian Development Alternative (CDA), Bangladesh

South Asia Partnership- Pakistan

Youth for Democracy and Development

Malaysian Physicians for Social Responsibility

Australians Against Capital Punishment(AACP)

Women in Struggle for Empowerment, Pakistan (WISE)

Centre for Human Rights Education- Pakistan

National Commission for Justice and Peace, Pakistan

NGO’s Development Society- NDS Sindh

PIRBHAT Women’s Development Society Sindh

Saeeda Diep Institute For Peace And Secular Studies

Taiwan’s enduring death penalty (an Article)

“…after a nearly five-year pause in executions, 33 people were executed between 2010 and 2016…”

Taiwan’s enduring death penalty

Author: Margaret K Lewis, Seton Hall University

In May 2014, a man stabbed four people to death and injured dozens on a Taipei train. He was executed on 10 May 2016 — 10 days before President Tsai Ing-wen assumed office. The pace of executions in Taiwan has waxed and waned over recent decades — after a nearly five-year pause in executions, 33 people were executed between 2010 and 2016. Today, the death penalty remains legal, popular and contentious.

A pro-death penalty supporter displays a white rose during a rally in front of Presidential Office in Taipei, Taiwan, 10 April 2016 (Photo: Reuters/Tyrone Siu).

Treason, piracy and serious drug offences are among the crimes for which courts may impose a death sentence, although the overwhelming majority of executions in the last decade have been for murder. Retention of the death penalty is permitted but discouraged under the International Covenant on Civil and Political Rights (ICCPR), which Taiwan adopted as domestic law in 2009.

In January 2017, a group of independent human-rights experts invited by the Taiwanese government to review compliance expressed its ‘strong regrets that there has been no progress in the abolition of capital punishment as the utmost form of corporal punishment’. Since the adoption of the ICCPR, there have been procedural adjustments — such as requiring appellate sentencing hearings in all capital cases — and a concomitant drop in the number of death sentences finalised by the courts. But there has been no change in the government’s basic position that the death penalty is legal.

The death penalty is also popular. A 2016 poll by the National Development Council found that nearly 88 per cent of the public were against its abolition. This high degree of public support is less surprising when viewed in light of the poll’s timing — it immediately followed a public outcry over the grisly murder of a four year old girl. But an earlier 2015 poll similarly found that over 80 per cent of people did not support abolition.

It is also hard to find any lawyers, judges or legal academics in Taiwan who expect this support to markedly decrease anytime soon. They hope to gradually increase public support for abolition by exploring accompanying reforms aimed at shoring up public safety, including the possibility of introducing life without parole.

Despite widespread support among the general public, the death penalty remains contentious in political circles. In 2016, a legislator proposed an amendment to the criminal law that would require the death penalty in most murder cases where the victim is a child. In contrast, at the 2016 European Union–Taiwan Human Rights Exchange Programme a group of legislators met with EU human rights experts to discuss possible alternative sentences to the death penalty.

The executive branch has likewise displayed discordant views. Wang Ching-feng, who served as president Ma Ying-jeou’s minister of justice from 2008–2010, resigned over her refusal to sign execution orders. The next minister, Tseng Yung-fu, promptly approved the execution of six people on death row and signed 21 execution orders in total. His successor, Luo Ying-shay, signed 12 execution orders during her tenure.

The current Minister of Justice, Chiu Tai-san, has been circumspect in his public remarks, calling for dialogue between those in favour of and opposed to the death penalty. President Tsai too has avoided taking a clear public stance since taking office, though in 2015 she did remark that abolition of the death penalty required both a social consensus and comprehensive complementary measures, neither of which she saw present in Taiwan.

Looking to other countries’ experiences, abolition is more often led by political elites than motivated by public clamouring against the death penalty. President Tsai has so far failed to provide such leadership. The death penalty was raised in passing at the National Judicial Reform Conference that President Tsai convened, but it was not included as a specific topic for discussion, nor was there any mention of the death penalty in the summary of major issues.

Tsai’s reluctance to push the death penalty into the spotlight is not surprising considering that her approval rating dipped below 30 per cent earlier this year. In addition, her political capital is already stretched thin with an ambitious agenda underway, including tackling controversial pension reform.

The reality of the death penalty being retained has prompted non-governmental organisations to take a multifaceted approach to curbing the use of the death penalty. For example, in October 2017 the Taiwan Alliance to End the Death Penalty, Taipei Bar Association’s Human Rights Committee and Legal Aid Foundation held a conference on the death penalty.

The Taiwan Innocence Project for its part has shown that Taiwan is not immune to the worldwide phenomenon of wrongful convictions, including death penalty cases.

As 2017 draws to a close, it appears likely that it will be an execution-free year in Taiwan. But there still remains a lack of momentum for outright abolition in the executive and legislative branches, and Taiwan’s Constitutional Court has not yet intimated that it might issue a decision rendering the practice unconstitutional. As such, the death penalty is expected to linger, experiencing periods of disuse disrupted by occasional executions. This enduring use of the death penalty remains a stain on Taiwan’s otherwise steadily improving record of championing international human rights norms.

Margaret K Lewis is a Professor of Law at Seton Hall University and a Fulbright Senior Scholar at National Taiwan University College of Law. Follow her on Twitter at @MargaretKLewis.

Source:- East Asia Forum, 1/11/2017