Friday, June 30, 2006

KL Bar: Police mock court order

Ng Eng Kiat
Jun 30, 06 6:38pm (Malaysiakini)

The Kuala Lumpur Bar Committee yesterday slammed the police for re-arresting detainees, who were being held without trial, after they were ordered to be released by the court.

The 13 detainees were detained under the Emergency Ordinance and were freed on a writ of habeas corpus by Kuala Lumpur High Court on Wednesday.

In the drama that unfolded at 6pm two days ago at Simpang Renggam, the 13 detainees - who were being transported on a bus from inside the detention centre to be set freed at the main gate - attempted to run away upon noticing that they would be re-arrested.

Five of the 13 got away after a fracas between the police who were waiting outside the centre and family members who tried to aid the detainees to escape.

The plain-cloth police officers, in the course of apprehending the freed detainees, allegedly injured elderly female family members who were there to welcome back their loved ones.
The KL Bar Committee, which represents lawyers in the Federal Territory, also ticked off the police for using excessive force against the family members of the detainees.

Malaysiakini has obtained a five-minute video footage of the incident depicting the unfolding drama, taken with a mobile phone.

No real basis for re-arrest

The New Straits Times today reported that Johor police chief Hussin Ismail claimed the police only intended to re-arrest eight of those being released, and that the five who “got away” were not on their list.

Criminal Practice Committee chairperson N Sivananthan, counsel for the detainees, claimed the police’s explanation only served to show there was no real basis for the re-arrest.

“What is really weird here is the police are now taking the stand that they never wanted to arrest the five in the first place. If this is the reason, why were the eight arrested then? What is so special about the (other) five?” he said during a press conference yesterday.

Baljit Singh Sidhu, a lawyer for the detainees, added that one of those who escaped has identical offences with another who was re-arrested.

“They cannot say they intended to release the five and detain the other eight. First of all, there is no reason to detain anyone because there is a valid court order (for their release),” he said.

According to Baljit, all 13 who are held under the Emergency Ordinance (EO) - a law similar to the Internal Security Act - were suspected of committing petty crimes like theft and extortion.

“There is ordinary court process for these crimes, but they are held under the EO because the police lack of evidence to charge them,” he lamented.

Under the EO, detainees can be held without trial for two years and this can be extended indefinitely.

KL Bar Committee chairperson Lim Chee Wee expressed indignation with the incident and questioned the motive of the police in totally disregarding a release order granted by a court of law.

“There was no disclosure of the grounds of re-arrest. The only recourse for these detainees is a writ of habeas corpus, which is a constitutional right, and to repeat arrest renders such relief ineffective,” Lim said.

A writ of habeas corpus is a judicial mandate to the authorities ordering that an inmate be brought to the court so it can be determined whether the person is imprisoned lawfully and whether he should be released from custody.

Re-arrests increasingly a trend

Sivananthan expressed fear that if this practice of re-arresting ‘habeas corpus’ detainees becomes a trend, it would allow the police to abuse their powers.

“It is an easy way out - if I am a police officer, why bother? Put them under the EO, write down the charges and put them there as long as I like. When a lawyer comes along and the court grants a release order, I will re-arrest them,” he said.
Baljit was furious with the police of not informing the detainees’ families about the reasons of the re-arrest, and said the police had obviously taken the law into their own hands.

“The police were there (Simpang Renggam) since 3pm, and they waited for three hours before the detainees came out. Why didn’t they tell the family members ... about the need for re-arrest?” he said.

Baljit also claimed that the police have treated the court with contempt.

Lim concluded that this incident bolsters the Bar Council’s support for the setting up of the controversial Independent Police Complaints and Misconduct Commission.

“We are asking from the authorities details of all the detainees, the reasons why they are there (under EO), and historical records of how many of these detainees are on a second or third re-arrest,” he said.

“The police must be transparent about it and come out with proper guidelines as to the use of such draconian powers that bypass the ordinary court process.”

BERNAMA: No plan to abolish death penalty

Wednesday, 28 June 2006, 20:50

KUALA LUMPUR, June 28 (Bernama) -- The government will not abolish the death penalty for it deters serious crimes and safeguards public interest, Deputy Minister in the Prime Minister's Department Datuk M. Kayveas said Wednesday.

He said the penalty also reflected the government's seriousness in dealing with heinous crimes.

"There are enough safeguards in the country's judicial system to ensure that death sentences are not meted out easily," he said in a written reply in the Dewan Rakyat.

Kayveas was replying to a question from Karpal Singh (DAP-Bukit Gelugor) who had wanted to know whether the government planned to abolish the death sentence.

The death penalty is provided for serious crimes such as murder and drug trafficking.

Kayveas cited thorough investigations carried out by an experienced and effective police force on crimes that carry the death penalty as a safeguard against wrongful detention and trial.

He said the criminal justice system in the country was also matured, independent and fair in its proceedings.

"Criminal cases which carry the death sentence are tried in the higher courts by learned judges.

"A convicted person can file two appeals, that is to the Court of Appeal and the Federal Court," he said.

Failing that, he said, the convicted person can apply to the Pardons Board for clemency.

The Dewan Rakyat sits again Thursday.

Thursday, June 29, 2006

Bar Council Press Release: Inmates on death row

Friday, 30 June 2006, 04:16
Reference is made to the report in the New Straits Times today (28/6/06) that several persons on death row have been awaiting execution for many years, in some cases for more than a decade, or even two.

The Bar Council’s position is that capital punishment should be abolished.

No legal system in the world is foolproof or error-free. No matter how procedurally fair the system is, how stringent the rules of evidence may be, how much reliance is placed on advanced and scientific investigation methods, or how many
opportunities of appeal are afforded; one cannot rule out the possibility of error. Experience all over the world shows that this possibility is a real and not a theoretical one. Perfection and absolute correctness are neither expected of, nor attainable by, any legal system.

Experience further shows that from time to time the errors made, when subsequently discovered, are promptly remedied. For example, it is reported that in the last 33 years, 125 prisoners who were convicted and sentenced to death in the USA have been subsequently released after evidence had emerged (thankfully before their executions) that they did not commit the crimes. This opportunity to right a wrong will, however, not be available if the death sentence on the person has been carried out; in which event we as a society are collectively responsible for having sent an innocent man or woman to the gallows.

This is one of the reasons why capital punishment is unacceptable, especially in our justice system that has as one of its pillars the belief that it is better for 9 guilty men to walk free than for 1 innocent man to be wrongly convicted; what more if that innocent man is to be put to death.

It is also a myth, unsupported by empirical evidence, that capital punishment operates as a more effective deterrent on crime than, say, life imprisonment.

Death penalty is a cruel and extreme form of punishment. Keeping a person on death row waiting indefinitely or for a long period of time adds to its cruelty. The uncertain and indefinite waiting and fearing for the final moment constitutes inhumane psychological torture, the nature of which those who have not suffered the experience will not even begin to comprehend. It is made worse by the fact that they are kept in solitary confinement most of the time; which means that they have to face the suffering all alone.

We are given to understand that one reason why inmates are kept in limbo for long periods of time is that the clemency process must be exhausted before a death sentence can be carried out. There is long delay in this process, because the Pardons Board convenes infrequently. This issue needs urgent attention, as long as capital punishment remains in our statute books.

The Bar Council renews its call for the abolition of capital punishment, and for a moratorium pending its abolition.

We are aware that a considerable portion of Malaysian society feels that the death penalty should remain, arguing that many (and some will say most) of these inmates have indeed committed heinous crimes, have gone through the legal process, and have been found guilty. In short, the impulsive reaction is that “they deserve it” and “they have to pay for the crimes they committed”.

There is no argument that guilty persons ought to receive punishment. But that is not the same as saying that they therefore ought to die. Even in the case of a convicted murderer, the death penalty is a reflection of the notion that “an eye for an eye” provides the best form of justice, a concept that we no longer embrace nor practise today.

This is not forgetting that from time to time there will be those who are in fact wrongly convicted, no matter how carefully the system operates. Is putting innocent men and women (or even if just one of them) to death, an acceptable feature in our system of justice, because society wishes to punish the guilty ones by employing this most extreme and irredeemable process?

We are glad that Suhakam is looking into the issues concerning capital punishment, and we hope that change will soon come. The Bar Council will be most happy to work with Suhakam on the same.

Dated 28 June 2006

Yeo Yang Poh
Bar Council

Wednesday, June 28, 2006

Mkini: It's the gallows for abolish death penalty call

It's the gallows for abolish death penalty call

Ng Eng Kiat
Jun 28, 06 7:20pm

The government will maintain capital punishment for serious and heavy crimes as it is preventive in nature and protects public interest.

In a parliamentary written reply today, Deputy Minister in the Prime Minister’s Department M Kayveas said that as such, the death penalty would not be abolished .

Replying to Karpal Singh (DAP-Bukit Gelugor) at the Dewan Rakyat, he said the government was strict in dealing with serious crimes, hence the death penalty would remain.

It is also the government’s view that there are enough safeguards to ensure that the death penalty is not simply dished out, he added.

Kayveas said among the existing safeguards was an ‘experienced police force that was efficient in completing thorough investigations’ before someone is accused in court for an offence that carries the death penalty.

Apart from this was a ‘wise and knowledgeable Malaysian judiciary’ which tries cases fairly coupled with fact that those accused of offences that carry the death penalty are only tried in the higher courts, he added.

Review possible

With the existing court hierarchy in Malaysia, those convicted have two chances to appeal their capital punishment sentences, this being at the Appeals Court and the country’s highest court, the Federal Court, said the deputy minister.

Kayveas said those on death row could also bring their cases to the Pardons Board for a review if they have exhausted all avenues of judicial appeal.

The Malaysian Bar Council had, in March this year, passed a resolution calling for the death penalty to be abolished and for a moratorium on all executions.

Malaysia remains
one of the 74 countries yet to abolish capital punishment while 123 other countries have.


Wednesday, 28 June 2006, 08:11
©New Straits Times
By Tony Emmanuel

KUALA LUMPUR: They are Malaysia's forgotten convicts - prisoners who have spent more than two decades on Death Row awaiting their tryst with death.

Among this group is a man who has been awaiting execution for 22 years, since the age of 26.

The authorities are tight-lipped on why these men have yet to be executed, but the New Straits Times understands that a combination of administrative hitches and delays in handing down written court judgements have kept these criminals in solitary confinement for years.

Usually, those sentenced to death spend up to 10 years exhausting the appeals and clemency process. But when a team from the Human Rights Commission of Malaysia (Suhakam) visited Death Row in Kajang Prison to investigate the death of Alex Wong, there were several prisoners who had been awaiting execution for nearly two decades.

Suhakam is concerned whether these death row prisoners — convicted of murder, drug trafficking and firearm possession offences — are receiving two distinct punishments: the death sentence and years of living in solitary confinement.

It also wants to know whether executing someone after prolonged periods on death row violates the Constitution and the principles of justice.

There has been a debate in the United States and England on the length of time convicts spend on Death Row. In 1993, a British court found that it was inhuman and degrading to hang anyone who has spent more than five years on death row. It argued that such prisoners should have their sentences commuted to life in prison.

In the US, some death row inmates have spent more than 20 years awaiting execution and several prisoners were executed when they were in their 80s.

The Suhakam study also covers those being held in remand for long periods and those
held at the pleasure of the Rulers.

Suhakam Commissioners are expected to seek the help of the Bar Council in compiling their report.


Waiting for date with the hangman

In 1993, a British court found that it was inhuman and degrading to hang anyone who had spent more than five years on Death Row. In Malaysia, one man has been on Death Row for 22 long years...

KUALA LUMPUR: One was sent to the gallows for firearms possession, another for multiple murders and the remaining three for drug trafficking.

In all, the five have spent a combined 70 years in jail. They are among those on death row who have been waiting a long time for their date with the hangman.

One of the drug traffickers was arrested in 1978. He was convicted and sentenced to death 14 years later. He remains in Kajang Prison.

The last time he was out of jail Tun Hussein Onn was Malaysia’s third prime minister and Jalan Tuanku Abdul Rahman was still known as Batu Road.

Another long time resident on Death Row is an individual convicted for firearms possession. He has spent the past 16 years behind bars.

The prisoner convicted of multiple murders has spent almost 10 years on death row. He is now seeking legal advice on options available to him.