Wednesday, April 08, 2015

Is Pota really ISA 2.0? Experts weigh in (Malaysiakini)

Is Pota really ISA 2.0? Experts weigh in

The recently passed Prevention of Terrorism Bill (Pota) has been dubbed the Internal Security Act (ISA) 2.0 due to its provision of detention without trial.
This provision therefore links the now-defunct ISA, the Prevention of Crime Act 1959 (PCA) and Pota. A person can be detained for up to two years and the detention can be renewed indefinitely for two years at a time.

Apart from the provision which allows detention without trial, below are other similarities and differences between the three laws.

Can detention be challenged in court?
Detention under all three pieces of legislation cannot be challenged in a court of law and the courts are excluded from scrutinising the proceedings.

Former Bar Council president Ragunath Kesavan (right) said the presence of an ouster clause - where detentions cannot be challenged in court - only showed how the government had no confidence in the judiciary.
“Why is that that you do not want to allow challenges in court? It’s a big embarrassment because you have no confidence in your own judiciary,” he said.

Ragunath believes that the more heinous a crime is, the more so there should be stringent rule of law to ensure justice is done.

“The person must have the benefits of the protection of the law and this is to ensure there is transparency in order to prevent abuse," he said.

Can the suspect be brought to the Magistrate’s Courts?
With the ISA, suspects could not be brought to the Magistrate’s Courts. Under Pota however, arrests can be made by any police officer without warrant, and would be brought to a magistrate within 24 hours.

Although it is not a police detention per se as the suspect must be brought before a magistrate, the magistrate only acts as a rubber stamp.

Therefore, lawyer Syahredzan Johan (left) said in practice, the detention is an administrative one since there is no judicial oversight and consideration whether the person should be detained or not.
“Since the application is automatic, whereby once the certificate is presented by the deputy public prosecutor of the police, the magistrate has no discretion whether to grant the detention or not. The magistrate must order detention.

“(So), the magistrate is just like a rubber stamp,” he said.

Powers of the home minister to issue detention orders
With the ISA, the home minister had absolute powers to issue detention orders.

However, detention orders under both the PCA and Pota comes from the Prevention of Crime Board and Prevention of Terrorism Board.

Even so, Syahredzan noted that the power to appoint board members goes back to the executive.

"There is no security of tenure with the members of the board. If the government is not happy with the board, it can dismiss and appoint more people.

“Yes, the power to issue detention orders is not vested in one person, but if you don’t have sufficient safeguards within the board to ensure that they can act independently, then it makes no difference,” he said.

Can a person be detained solely for his or her political beliefs?
Both Pota and amendments to the PCA have been inserted with a clause which states that "no person shall be arrested or detained solely for his political beliefs or activities".

The ISA did not have this clause and dozens opposition leaders were detained under the now repealed Act, albeit on allegations of security threats.

Although one may not be detained solely for his or her political beliefs, Ragunath believes this is arguable.
“If you belief in socialism, is it a political belief?” he said, citing the 1970s and 1980s where socialism was seen as anti-government and as such, some had been arrested for it.

“If I believe in the peaceful secession of Sabah, and I follow all the democratic process, do it properly, like what PAS is doing with hudud, is that sedition?” he said, adding that subjective and gray areas will be of concern.

Syahredzan said although it is stated that no one can be detained solely for political beliefs, the authorities “can always make the link if they want to abuse the law”.

“And there is concern that it might be interpreted to only mean membership in a registered political party.

“A lot of NGOs are not registered as political parties, but a lot of what they do is political. The Act might be abused against these people".

PCA = Emergency Ordinance 2.0, Pota = ISA 2.0
While PCA and Pota have many similarities, the explanatory statement of the PCA amendment bill passed by the Dewan Rakyat last night states that the Pota is meant to cover acts of terrorism other than those covered under PCA.

"Pota is in relation to terrorism offences when it has something to do with overseas terrorist threats," said Syahredzan, explaining that it came about to deal with the phenomenon of Malaysians who join extremist groups such as the Islamic State (IS).
"It is more appropriate to say that Pota is the return of the ISA. While the PCA is the Emergency Ordinance (EO) reincarnated.

"The PCA deals with terrorist threats within Malaysia,” he said.

Is detention without trial really necessary?
Syahredzan says no, and the fact that 17 people were arrested under suspicion of being Islamic State militants this week proves this.

"This is a good example that you don’t need more legislation, where you can apprehend them using the current laws before they carry out their terrorist attacks.

"The argument that you need more legislation to deal with threats of terrorism has not been answered. They have not explained what is insufficient of the current laws."
The 17 were detained under the Security Offences (Special Meaures) Act 2012 (Sosma).

The Sosma allows detention of 24 hours plus 28 days and if this is not enough, the investigative detention period could perhaps be lengthened, he said.

"If you say that you cannot charge these people because there is no predicate offence in the statute book, shouldn’t you enhance the Penal Code to include more predicate offences that these people can be charged with, instead of using detention without trial?" he asked.

While he admits the PCA and the Pota is not reviving the ISA wholesale, the fact remains that detention without trial is making a comeback, he said.

"At the end of the day, in practice, it’s all there to be abused by the powers that be if they want to abuse it. This is, in essence, the return of the ISA." - Malaysiakini, 8/4/2015,
Is Pota really ISA 2.0? Experts weigh in
 

Monday, March 23, 2015

Johor Sultan mercifully commuted the death sentence of 11 on death row



  
Sultan commutes sentences for death row prisoners Monday, 23 March 2015 10:53am
Image
by DAN GUEN CHIN


JOHOR BARU, March 23 — For 12 long years Nagamah Doraisamy has led a life of pain and misery but today she can afford to smile a little.

On his coronation day, the Sultan of Johor has shown mercy to Nagamah’s 37-year old son, P. Chandran.

Chandran was found guilty of a crime in July 2003 and sentenced to death by the High Court here the same year.

Over the years, he had exhausted all avenues of appeal.

However, he and 10 other death row inmates had their sentences commuted to life imprisonment, which carries a maximum term of 20 years, while 13 others, whose cases were reviewed under the four-year review system, were granted a pardon and released from prison.

On Thursday, Johor State Secretary  Datuk Ismail Karim announced the decision of the Johor Royal Pardons Board, which met on March 5.

Chandran was due to be led to the gallows on Feb 7, 2014.
.
His family had been notified by the Kajang Prison Authorities when the Sultan intervened and granted Chandran a stay of execution on Feb 6,  seven hours before the execution was to take place.

But all the time, the 59-year-old Nagamah, a housewife and a mother of six, never lost hope.

She wrote to Prime Minister Datuk Seri Najib Razak and petitioned the Yang diPertuan Agong, asking them to spare her son’s life.

She and her lawyers, M. Manoharan and P. Uthaykumar, and her third son, Thamothar, 36, made the trip here from their home in Termerloh, Pahang, to the Istana Besar office on Friday hoping to hand over an appeal on Chandran’s behalf.

“I am very happy  today to learn that my son has been spared the gallows,” she told Malay Mail.

“I owe my deepest gratitude to the Sultan of Johor.

“He is a good man, he saved my son’s life and I really don’t know how to thank him.

“Chandran committed a crime and was found guilty but he will always be my son.

“He celebrated his birthday on Feb 13 and I will wait for him to come home and celebrate his birthday with us.

“I always think of him, and my hope is that I will live to see him released from prison.

“It has been very hard on me all these years, thinking about how he is coping.”

For Thamothar, Chandran’s younger brother, it was the best piece of news for the family.

“My mother is very frail. Maybe she will now draw strength,” he said.

“I have long accepted what fate is due for my brother.

“Our family only prays that he will be given a pardon in four years’ time when his review comes up for hearing.

“My mother will be the happiest person in the world.”

Tuesday, March 17, 2015

Malaysian Bar Resolution on Royal Pardon and the Death Penalty

Resolutions Adopted at the 69th Annual General Meeting of the Malaysian Bar Held at Renaissance Kuala Lumpur Hotel (Saturday, 14 Mar 2015)  

Resolution 4

Motion on Royal Pardon and the Death Penalty”, proposed by Charles Hector Fernandez, dated 6 Mar 2015

Whereas:

(1)  Article 42(1) Federal Constitution provides that: ‘The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.’  

(2)  Article 42(3) Federal Constitution also states that, ‘Where an offence was committed wholly or partly outside the Federation or in more than one State or in circumstances which make it doubtful where it was committed, it shall be treated for the purposes of this Article as having been committed in the State in which it was tried….’

(3)  Anyone can move the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri of a State to exercise this power to grant pardons, reprieves and respites, including commuting the sentence of death.

(4)  Mindful that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable, and the other arguments that have been advanced for the abolition of the death penalty are good reasons why  the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri of a State to exercise their powers to commute the death sentence to one of imprisonment.

(5)  In Thailand, Royal Pardon has resulted in 90 percent or more persons sentenced to death having their sentence commuted to imprisonment.

(6)  Information about the whole process of application for pardon is not easily available to the public. Neither are the principles or the considerations that are relevant in making or considering such application.

(7)  It is known that Malaysia has commuted the death penalty for some foreign nationals, possibly on the application of foreign nation states, possibility by reason of some diplomatic consideration. If there are different standards applicable for the commuting of the death penalty, then this will be considered discriminatory against local Malaysian death row inmates and those from less influential nation states. The statistics of persons whose death sentence had been commuted need to be obtained, and the reasons for this need to be studied, analyzed and considered.

(8)  On 18/12/2014, the United Nations General Assembly (UNGA) adopted a Resolution to establish a moratorium on executions with a view to abolishing the death penalty. This is the fifth time this resolution has been tabled since the first in 2007. 117 member states voted in favour of the 2014 resolution, indicating the continuing growing global support for the abolition of the death penalty.

We hereby resolve:

That the Bar Council do the needful to study, and increase awareness about all aspects of the procedures relating to the application for pardon.
 

Tuesday, February 17, 2015

6 Malaysians on death row in Indonesia - Malaysia urges Indonesia that their sentence be commuted?

Time for the Death Penalty to be abolished in ASEAN? Malaysians on death row in Indonesia - Malaysia ask that their sentence be commuted, Indonesians on death row in Malaysia, and Indonesia ask that their sentences be commutted. 

6 Warga Terancam Eksekusi Mati di RI, Apa Kata Malaysia?

Malaysia berjanji menghormati keputusan Pemerintah Indonesia.

Senin, 16 Februari 2015 | 20:25 WIB
Oleh : Ni Kumara Santi Dewi, VIVA.co.id
VIVA.co.id - Tidak hanya ratusan warga Indonesia saja yang terancam eksekusi mati di Negeri Malaysia, ternyata 6 warga Negeri Jiran itu juga divonis hukuman mati di RI.

Menurut Duta Besar Kerajaan Malaysia untuk RI, Zahrain Mohamed Hashim, yang ditemui VIVA.co.id pada Senin, 16 Februari 2015, keenam warga Negeri Jiran itu terjerat kasus narkoba saat di Indonesia.

Menyadari hal itu, Zahrain menyebut Pemerintah Malaysia tentu melakukan pendekatan diplomatik terhadap Indonesia agar keenam warga mereka bisa terhindar dari eksekusi mati.

"Tetapi, kami tetap harus menghormati Indonesia sebagai negara berdaulat. Masing-masing negara kan memiliki aturan dan Undang-Undang, sehingga keputusan akhir mengenai eksekusi tetap ada di tangan Pemerintah RI," ungkap Zahrain yang ditemui di Gedung Kedutaan, Kuningan, Jakarta Selatan dalam pertemuan media terbatas.

Pemerintah Malaysia pun nantinya akan mengajukan pengampunan ke Pemerintah Indonesia. Tetapi, kalau pada akhirnya hukum di Indonesia memutuskan berbeda, imbuh Zahrain, maka mau tidak mau Malaysia akan menghormatinya.

Seolah memberikan sinyalemen, jika nanti warganya dieksekusi, Pemerintah Malaysia tidak akan menekan atau mengancam Indonesia.

Sementara di sisi lain, data dari Direktorat Perlindungan Warga Negara Indonesia dan Badan Hukum Indonesia mencatat ada 168 warga RI yang terancam hukuman mati di Negeri Jiran. Zahrain menyebut, mereka terlibat beragam kasus, mulai dari penyalahgunaan narkoba, perampokan bersenjata, dan pembunuhan.

Dia pun turut mengingatkan Indonesia untuk tetap menghormati hukum yang berlaku di Malaysia. Artinya, kendati saat ini Pemerintah RI tengah mengusahakan agar warganya terhindar dari eksekusi mati, namun apa pun keputusan Pemerintah Malaysia nanti, tidak boleh dicampuri oleh RI.

"Kalau masing-masing negara saling menghormati aturan di negara yang bersangkutan, maka isu semacam ini tidak akan menjadi besar. Lagi pula, untuk apa orang datang ke negara lain dengan membawa narkoba?" tanya Zahrain.

Dia menyebut eksekusi mati di Malaysia sudah bisa ditawar lagi. Terlebih jika pelaku tindak kejahatan narkoba.

"Itu sudah merupakan satu ketentuan tegas bahwa jika ada yang terlibat kasus narkoba, maka hukumannya mati digantung," katanya.

Akibat sikap teguh itu, Malaysia, ujarnya, telah dikecam oleh berbagai pihak dan negara. Namun, mereka tetap menjalankan eksekusi itu.

"Semua proses hukum kan telah dilalui. Kami pun telah mengeksekusi berbagai warga asing mulai dari Australia, Inggris, Kanada dan warga dari negara lain yang ikut terlibat kasus narkoba," katanya.





Thursday, February 12, 2015

117 in favour, 37 against and 34 abstentions - UNGA Resolution on DP (18/12//2014)

18/12/2014 - UN General Assembly Resolution- See Resolutions of the 69th Session of UNGA

Resolution adopted by the General Assembly on 18 December 2014 [on the report of the Third Committee (A/69/488/Add.2 and Corr.1)]

69/186. Moratorium on the use of the death penalty  

The General Assembly,  

Guided by the purposes and principles contained in the Charter of the United Nations,  

Reaffirming the Universal Declaration of Human Rights, 1 the International Covenant on Civil and Political Rights2 and the Convention on the Rights of the Child,3  

Reaffirming also its resolutions 62/149 of 18 December 2007, 63/168 of 18 December 2008, 65/206 of 21 December 2010 and 67/176 of 20 December 2012 on the question of a moratorium on the use of the death penalty, in which the General Assembly called upon States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing it,  

Welcoming all relevant decisions and resolutions of the Human Rights Council,  

Mindful that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable,  

Convinced that a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progressive development of human rights, and considering that there is no conclusive evidence of the deterrent value of the death penalty,  

Noting ongoing local and national debates and regional initiatives on the death penalty, as well as the readiness of an increasing number of Member States to make available to the public information on the use of the death penalty, and also, in this regard, the decision by the Human Rights Council in its resolution 26/2 of 26 June 2014 4 to convene biennial high-level panel discussions in order to further exchange views on the question of the death penalty,

 Recalling the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty,5 and in this regard welcoming the increasing number of accessions to and ratifications of the Second Optional Protocol, 


 Noting the technical cooperation among Member States, as well as the role of relevant United Nations entities and human rights mechanisms, in supporting State efforts to establish moratoriums on the death penalty,  

1. Expresses its deep concern about the continued application of the death penalty;  

2. Welcomes the report of the Secretary-General on the implementation of resolution 67/176 6 and the recommendations contained therein;  

3. Also welcomes the steps taken by some States to reduce the number of offences for which the death penalty may be imposed, as well as steps taken to limit its application;  

4. Further welcomes the decisions made by an increasing number of States, at all levels of government, to apply a moratorium on executions, followed in many cases by the abolition of the death penalty;  

5. Calls upon all States: 
 ( a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984, as well as to provide the Secretary-General with information in this regard;  

( b) To comply with their obligations under article 36 of the 1963 Vienna Convention on Consular Relations,7 particularly the right to receive information on consular assistance within the context of a legal procedure;  

( c) To make available relevant information, disaggregated by applicable criteria, with regard to their use of the death penalty, inter alia, the number of persons sentenced to death, the number of persons on death row and the number of executions carried out, which can contribute to possible informed and transparent national and international debates, including on the obligations of States pertaining to the use of the death penalty; 

 ( d) To progressively restrict the use of the death penalty and not to impose capital punishment for offences committed by persons below 18 years of age, on pregnant women or on persons with mental or intellectual disabilities;  

( e) To reduce the number of offences for which the death penalty may be imposed; 

 ( f) To establish a moratorium on executions with a view to abolishing the death penalty;  

6. Calls upon States which have abolished the death penalty not to reintroduce it, and encourages them to share their experience in this regard

7. Calls upon States that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;5 

8. Requests the Secretary-General to report to the General Assembly at its seventy-first session on the implementation of the present resolution; 

9. Decides to continue consideration of the matter at its seventy-first session under the item entitled “Promotion and protection of human rights”. 

73rd plenary meeting 
18 December 2014

_______________
1 Resolution 217 A (III). 
2 See resolution 2200 A (XXI), annex. 
3 United Nations, Treaty Series, vol. 1577, No. 27531. 
4 See Official Records of the General Assembly, Sixty-ninth Session, Supplement No. 53 (A/69/53), chap. V, sect. A.
5 United Nations, Treaty Series, vol. 1642, No. 14668. 

6 A/69/288. 
7 United Nations, Treaty Series, vol. 596, No. 8638.



A/RES/69/186 C.3 68 (b) A/69/PV.73
18 December 2014
GA/11604
117-37-34


A/69/488/Add.2 DR XXI Moratorium on the use of the death penalty

Jokowi must stop the killings - Drug traffickers are not deterred by the death penalty.

Jokowi must stop the killings and end death penalty

February 7, 2015 
 
It's time Indonesia realises that drug traffickers are not deterred by the death penalty.

 
FMT LETTERS
From: Charles Hector, via email
jokowi Crime, death penalty, drugs, Indonesia

MADPET (Malaysians Against Death Penalty and Torture) is disturbed by the recent execution of six persons in Indonesia in January 2015, and the possibility that many more will be executed in the near future.

Indonesia seems to have had an unofficial moratorium on executions for several years from 2008 but resumed capital punishment again in 2013. There were apparently no executions in 2014.

After President Joko “Jokowi” Widodo took office in October 2014, things changed. On or about January 18, 2015, six persons were executed by firing squad: five foreigners and an Indonesian woman convicted on drug trafficking charges were killed.

President Joko “Jokowi” Widodo says that Indonesia is in a ‘state of emergency’ with regard to rampant drug trafficking across Indonesia, and he believes that this problem could be solved by executions. He is wrong, and MADPET reiterates that the death penalty does not deter drug offences.

In March 2012, it was revealed in the Malaysian Parliament by then Home Minister, Hishammuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for 2009 to 2011 have shown an increase.

Malaysian Crime Prevention Foundation vice-chairperson Lee Lam Thye also did note in July 2013 that the death sentence had not deterred the drug trade.

It is also now accepted that many persons facing the death penalty for drug trafficking are really ‘mules’, many of whom are young people who have been tricked, or those who are financially disadvantaged. Cases like that of Malaysian Umi Azlim Mohamad Lazim, 24, a graduate from a poor Malay family of rice farmers, and young Malaysian Yong Vui Kong who were once facing death for drug trafficking, who since then had their sentences commuted, have opened many eyes as to why the death penalty needs to be abolished, especially for drug offences.

Malaysia is seriously moving towards the abolition of the death penalty. Indonesia needs to consider the Malaysian experience, and immediately put a stop to its plans to execute even more convicted drug traffickers. There is really no empirical evidence to support the notion that the death penalty serves as an effective deterrent to the commission of crimes.

Further, no criminal justice system in the world is foolproof, error-free or fail-safe. In the instance of the death penalty, there is no opportunity to correct an error, as the execution of the death sentence is irreversible. We recall the Taiwan case of Chiang Kuo-ching, a private in the Air Force, who was executed in 1997 for a murder, which the Taiwan government did admit was an error in 2011.

On December 18, 2014, the United Nations General Assembly adopted a Resolution to establish a moratorium on executions with a view to abolishing the death penalty, with 117 votes in favour. This was the fifth time a resolution on this issue has been passed. There is no doubt that the global community is more and more for the abolition of the death penalty.

Indonesia, being a member nation of the global community, should adhere to these Resolutions and immediately establish a moratorium on all executions in Indonesia.

It has been reported that President Joko “Jokowi” Widodo has stated that he will reject the clemency petitions for all drug traffickers on death row, which is about 57 persons. This is certainly not proper or just, for each and every application for clemency should be considered separately and without prejudice by the President on its merits. The presidential power to grant clemency is most important in death penalty cases as this is the last safeguard against wrongful conviction and therefore wrongful execution.

MADPET urges Indonesia to immediately stop any further executions, and immediately comply with the United Nations General Assembly Resolution and establish a moratorium on executions with a view to abolishing the death penalty. - FMT News, 7/2/2015, Jokowi must stop the killings and end death penalty

See also:-

Indonesia Must Immediately Establish A Moratorium on Execution And Move Towards Abolition of the Death Penalty (The original media statement)

Indonesia must stop executions(Malaysiakini) - check out some readers' comments?

Friday, February 06, 2015

Indonesia Must Immediately Establish A Moratorium on Execution And Move Towards Abolition of the Death Penalty





Media Statement – 6/2/2015

Indonesia Must Immediately Establish A Moratorium on Execution And Move Towards Abolition of the Death Penalty

MADPET(Malaysians Against Death Penalty and Torture) is disturbed by the recent execution of 6 persons in Indonesia in January 2015, and the possibility that many more will be executed in the near future. 

Indonesia seems to have had an unofficial moratorium on executions for several years from 2008 but resumed capital punishment again in 2013. There were apparently no executions in 2014.

After President Joko “Jokowi” Widodo took office in October 2014, things changed. On or about 18/1/2015, 6 persons were executed by firing squad. 5 foreigners and an Indonesian woman convicted on drug trafficking charges were killed.

President Joko "Jokowi" Widodo says that Indonesia is in a ‘state of emergency’ with regard to rampant drug trafficking across Indonesia, and he believes that this problem could be solved by executions. He is wrong, and MADPET reiterates that the death penalty does not deter drug offences.

In March 2012, it was revealed in the Malaysian Parliament by then Home Minister, Hishammuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for the past three years (2009 to 2011) have shown an increase. In 2009, there were 2,955 arrested under this section. In 2010, 3,700 people were arrested, whilst in 2011, there were 3,845 arrested.(Free Malaysia Today, March 19, 2012, ‘Death penalty not deterring drug trade’).

Malaysian Crime Prevention Foundation vice-chairperson Lee Lam Thye also did note in July 2013 that the death sentence had not deterred the drug trade.

It is also now accepted that many persons facing the death penalty for drug trafficking are really ‘mules’, many of whom are young people who have been tricked, or those who are financially disadvantaged. Cases like that of Malaysian Umi Azlim Mohamad Lazim, 24, a graduate from a poor Malay family of rice farmers, and young Malaysian Yong Vui Kong who were once facing death for drug trafficking, who since then had their sentences commuted, have opened many eyes as to why the death penalty need to be abolished, especially for drug offences. Malaysia is seriously moving towards the abolition of death penalty.   
Indonesia needs to consider the Malaysian experience, and immediately put a stop to its plans to execute even more convicted drug traffickers. There is really no empirical evidence to support the notion that the death penalty serves as an effective deterrent to the commission of crimes.

Further, no criminal justice legal system in the world is foolproof, error-free or fail-safe.  In the instance of the death penalty, there is no opportunity to correct an error, as the execution of the death sentence is irreversible. We recall the Taiwan case of Chiang Kuo-ching, a private in the Air Force, who was executed in error in 1997 for a murder, which the Taiwan government did admit was an error in 2011. 

On 18/12/2014, the United Nations General Assembly(UNGA) adopted a Resolution to establish a moratorium on executions with a view to abolishing the death penalty. 117 member states voted in favour of the resolution,  38 voted against and 34 abstained. This was the fifth time a resolution on this issue has been passed. In December 2012, being the last time, 111 states voted in favour, 41 against and 34 abstained. In 2007, only 104 nations that supported. In 2008, this increased to 106. In 2010, 108 countries voted in favour and now in 2014, 117 member countries voted in favour. There is no doubt that the global community is more and more for the abolition of the death penalty.

Indonesia, being a member nation of the global community, should adhere to these UNGA Resolutions and immediately establish a moratorium on all executions in Indonesia.

It has been reported that President Joko “Jokowi” Widodo has stated that he will reject the clemency petitions for all drug traffickers on death row, which is about 57 persons. This is certainly not proper or just, for each and every application for clemency should be considered separately and without prejudice by the President on its merits. (Jakarta Post, 30/1/2015). The Presidential power to grant clemency is most important in death penalty cases as this the last  safeguard against wrongful conviction and therefore wrongful execution. 

MADPET urges Indonesia to immediately stop any further executions, and immediately comply with the United Nations General Assembly Resolution and establish a moratorium on executions with a view to abolishing the death penalty.

Charles Hector
For and on behalf of MADPET

  


Thursday, January 15, 2015

Police wrong in not giving access to medication in death in custody case


231 cases of death in custody from 2000 until May 2013 - 97 Malays, 49 Chinese, 51 Indians.

"The death of the deceased is due to a hypertensive heart disease and this is due to police not giving or allowing medicine related to his problem," the coroner said.
 
Court: Cops acted unlawfully in Chandran's death

In a landmark ruling today, a coroner's court in Kuala Lumpur found the police to have acted unlawfully in not giving medicine and medical attention to detainee P Chandran.

Sessions court judge Ahmad Bache, who sat as the coroner, said Chandran died in the police lock-up before 7.48am on Sept 10, 2012, but the police only noticed and reported it 12 hours later.

"The death of the deceased is due to a hypertensive heart disease and this is due to police not giving or allowing medicine related to his problem," the coroner said.

Chandran, who is from Simpang Renggam, was remanded at the Dang Wangi police station lock-up for four days before his death.


 
During that period, he was not allowed to take medication that his family members tried to give him.

The 47-year-old was arrested following a police report lodged by an Indonesian woman who said her baby was abducted.

The woman had agreed to give the baby to Chandran's brother-in-law, who is a Muslim, after her birth hospital fees were paid by the adopting party.

Chandran’s case marks the first time that a sessions court judge in Kuala Lumpur has acted as a coroner, a role previously limited to magistrate.

This follows a practice directive by Chief Justice Arifin Zakaria that inquests by a coroner should handled by sessions court judges and not by magistrates. - Malaysiakini, 16/1/2015, Court: Cops acted unlawfully in Chandran's death





Police responsible for custody death of lorry driver, says coroner



A coroner's court today ruled that police were responsible for the death in custody of lorry driver P. Chandran through their omission to provide him with timely medical assistance.

Sessions judge Ahmad Bache, who sat as coroner, said in his verdict that police officers from Cheras and Dang Wangi district police headquarters had committed unlawful omission by not giving Chandran his medication and sending him to hospital.

Ahmad said the police were aware that Chandran was under medication as this had been recorded by a magistrate when a remand order was issued against him.

He said that closed-circuit television (CCTV) images showed the 47-year-old likely succumbed to hypertensive heart disease at 7.48am but police had reported his death only 12 hours later. "A policeman gave evidence that the deceased died at 7pm (on September 10, 2012) but the CCTV footage showed he was not moving at 7.48am," he said.

Police reported Chandran's death at 8pm that day.

Chandran, who was from Simpang Renggam, Johor was arrested on September 6, 2012 following a police report lodged by an Indonesian woman who said her newborn baby had been abducted and held for ransom.

Further investigations revealed that the woman had agreed to give the baby to Chandran's brother-in-law, who is a Muslim and had no children.

The baby was supposed to be adopted after the completion of documentation.

However, she changed her mind and lodged a police report. Police arrested four people, including Chandran and the would-be adoptive parents.

Chandran, a father of six, was held at the Dang Wangi police station lock-up for four days before his death and during that period, he was not allowed to take the medication that his family members tried to give him.

"The death of the deceased is due to a hypertensive heart disease and this is due to police not giving or allowing medicine related to his problem," the coroner said.

Pathologist Dr Nurul Kharmila Abdullah also gave evidence that the death could have been avoided if he was given the medication and sent to hospital on time.

Ahmad said there were injuries on the Chandran’s head and body but was uncertain how they were inflicted.

"But two witnesses went on record to state that Chandran did not have any injuries prior to his detention," he said.

Ahmad said the police must be held accountable for the death even if the injuries  were inflicted by policemen or inmates.

This is the first time in recent memory that a coroner has pointed to a party responsible for a death in custody following the landmark Court of Appeal ruling last year which substituted the open verdict of a coroner with that of an unlawful act of person/s unknown against Teoh Beng Hock.

In that case, the aide to a DAP state assemblyman was found dead outside the Malaysian Anti-Corruption Commission (MACC) office, hours after being questioned.

A three-man bench also ruled that only a lower standard of proof, which is the balance of probabilities, was required in an inquest to find out the cause of death.

While Datuk Mohamad Arif Md Yusof and Datuk Mah Weng Kwai held that coroners could arrive at an open verdict, Datuk Hamid Sultan Abu Backer said the Criminal Procedure Code provided no room for such conclusions.

However, the judges were unanimous that the coroner in Teoh's case was wrong in his finding, as there was overwhelming evidence against the MACC officers.

They also ruled out suicide.

Teoh, who had been held for questioning, was found dead on the 5th floor annexe corridor of Plaza Masalam in Shah Alam, which houses the MACC office, on July 16, 2009.

Meanwhile lawyer M. Visvanathan who appeared for Chandran's family told The Malaysian Insider today that the coroner's verdict was sufficient for the police to investigate the persons responsible for the crime.

"The public will be closely following what the police and public prosecutor will do from now on," he said.
 
 
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