Do not use ISA pending abolition - not promise to repeal & then use it 2 months later

September PM says ISA will be repealed - November new arrests under ISA.

They said they are going to repeal the ISA - and pending abolition they should not be using it - but this is Malaysia and we are talking about Barisan Nasional(BN) government and they can say a lot of things ....make promises and then just ignore it. One example is that in September 2009, this government said that the Employment Act will be amended to ensure that all domestic workers will be entitled to one rest day per week - and to date although Bills have been tabled at least 2 times - this promise of rest day for domestic workers is still not there. That is why also I do not believe any of the promises made by the Minister (the BN government) about the proposed amendments - they say they will do this and that ...and at the end of the day will not do..

Now, 13 are being arrested under the ISA - and I am sure that they could have been arrested under the Criminal Procedure Code. Note that in the Penal Code - preparation, incitement, etc to do an offence is also an offence. Thus, so easily can they be arrested, charged and tried. There is no need to use the ISA...

Now, there is another law so very similar to the ISA, i.e. Emergency Public Order and Prevention of Crime Ordinance, a Detention Without Trial law,  which they could so easily use - but why use ISA when the PM already said that this ISA will be repealed? Think about it...

Remember under the detention without trial laws, the police and the government can make any kind of allegation - and the detainee has no way of challenging this in court. So vague allegations can so easily be made - what about a 'White Paper' explaining the arrest and detention under the ISA? This was done before for Ops Lallang - so why not for all usage of DWT laws...

"...Malaysia's Prime Minister Najib Razak opened the door to major political changes in this Southeast Asian nation Thursday by saying the government would abolish a decades-old law that allows for detention without trial and pledging not to hold anybody in custody because of their political beliefs...Instead, the country's draconian Internal Security Act will be replaced by new legislation targeted at detaining terrorists. Mr. Najib also said newspapers and broadcasters would be able to operate indefinitely without renewing their license each year, as is the case now, unless those licenses are revoked...." - Wall Street Journal, 16/9/2011, Malaysian Leader Opens Door for Reforms-Najib Vows to End Harsh Security Law, Political Detentions

Police confirm 13 nabbed under 'to be repealed' ISA

5:03PM Nov 17, 2011

Inspector-general of police Ismail Omar today confirmed news reports that fresh arrests were made under the Internal Security Act 1960, which the government said will be repealed soon.

A total of 13 were taken in under the Act and not 10 or 11 as reported in today's mainstream newspapers, Ismail said in a brief statement.

"Our intelligence reports and investigation detected efforts to revive a militant movement in Sabah," he said.

Ismail added that the 13, consisting of seven Malaysians and six foreigners, were nabbed in an operation from Nov 14 to 16.

"The (individuals) were arrested under Section 73 (1) of the Internal Security Act 1960.

"If not curbed, their actions can threaten and undermine national security," he said.

Militant school teachers?

However, Gerakan Anti-ISA (GMI) in a statement earlier today said its sources claimed that up to 14 people could have been detained.

It listed the names of only 11, including two who appeared to be brothers - Muhd Adnan Umar (a tuition teacher at MJU Centre) and Muhd Abduh Umar (a lorry driver).

Among the others are SMK Kinabutan Islamic studies teacher Mohd Nazri Dollah, SMK Umar-umas teacher Bakar Baba, MJU Tuition Centre teacher Darto Bandu and poultry trader Yusof Saripuddin.

Also on GMI's list are newspaper distributors Faizal Hamma and Joni @ Muadz.

The NGO also said that the next-of-kin were informed a day after the arrests was made. - Malaysiakini, 17/11/2011, Police confirm 13 nabbed under 'to be repealed' ISA

Some responses of civil society:-

AMNESTY INTERNATIONAL
Press Release
17 November 2011

Malaysia: New ISA detentions show U-turn on reform promises

The Malaysian government must halt detentions under the draconian Internal Security Act (ISA), Amnesty International said today, after the authorities said they had used the law to detain 13 people this week.

Police arrested the detainees on 13 and 14 November in Tawau, a town in Sabah in eastern Malaysia. Seven are Malaysian, and the other six are foreign nationals.

The ISA, which allows for indefinite detention without charge or trial, has been used to imprison critics of the government and opposition politicians as well as suspected militants.

The detentions were the first since Prime Minister Najib Razak announced in September that his government would repeal the law and replace it with new security legislation.

“The Malaysian government has made a mockery of its plan to scrap the Internal Security Act by using it to detain people once again,” said Sam Zarifi, Asia Director at Amnesty International.
“Promises to abolish ISA detention are not enough. Prime Minister Najib needs to end it in practice.”


The inspector-general of police, Ismail Omar, today told state news agency Bernama that all 13 detainees are being held under Section 73(1) of the ISA. This provision allows for police to arrest anyone without warrant whom they believe might “act in any manner prejudicial to the security of Malaysia.”


The ISA is also contrary to international human rights standards including the right to be free from arbitrary detention and the rights to due process and a fair trial.

“If the Malaysian police have grounds to suspect these 13 detainees of a legitimate crime, they should charge them or else release them. Locking people up without charge or trial shows flagrant disrespect for the rule of law.”

Press Release : Recent ISA Arrest : Flagrant Hypocrisy of Najib’s Announcement on Malaysia Day

On this year’s Malaysia Day, Prime Minister Najib Razak surprised the nation by announcing that the draconian Internal Security Act 1960 (ISA) will be abolished in the hope of building a nation that “practices functional and inclusive democracy where peace and public order are safeguarded in line with the supremacy of the Constitution, the rule of law and respect for basic human rights”.

The announcement stands in stark contrast to the recent arrest of 11 individuals in Tawau, Sabah who have been accused of terrorism under the ISA despite Prime Minister’s undertaking that the draconian ISA to be abolished.

It is important to be reminded that allegations made against individuals under the ISA remain mere allegations no matter how serious the nature of the said allegations is. These individuals have not been given any opportunity to challenge their detention or the allegations as the ISA allows detention without trial and it denies the basic right of the detainees to be tried in court.

Lawyers For Liberty is appalled to learn the recent arrest under the ISA which clearly manifests flagrant hypocrisy of the announcement made on the historic Malaysia Day by Prime Minister Najib Razak. This recent arrest shows that Najib’s administration continues to commit this legalized injustice despite sitting on the UN Human Rights Council where pledges have been made that Malaysia would uphold the highest standards of human rights before its re-election to the Council in 2010.

The ISA allows detention without trial where the police have the power to arrest a person up to 60 days and the Home Minister may authorize further detention up to 2 years and the period may be further extended indefinitely. This draconian piece of legislation goes against the fundamental principle of the right to trial which has been guaranteed under the Constitution and crystalized in the Universal Declaration of Human Rights.

It is to be noted that there has been a trend to progressively reduce preventive detention powers and the ISA-like anti-terrorism laws do not exist in countries like the UK, Canada and Australia post 9/11.

The UN Working Group on Arbitrary Detention in its report dated 8 February 2011 stated that the ISA is no longer necessary to be in force in Malaysia since the Penal Code has been amended to make terrorism a specific offence.

Lawyers For Liberty condemns the continued use of preventive laws such as the ISA under the pretext of combatting terrorism as it is tantamount to a gross violation of human rights. There are sufficient laws in Malaysia to combat terrorism and it is the duty of the police to carry out effective investigation and intelligence work to fight terrorist activities which can be established under the existing laws and proved in court.

Lawyers For Liberty therefore demands the immediate release of all ISA detainees and the immediate abolition of the draconian ISA.

Lawyers For Liberty

17 November 2011

Immediate Media Release: 17 November 2011

Detention under the ISA: The lies and hypocrisy of the Government Exposed!

Abolish ISA Movement (GMI) and Suara Rakyat Malaysia (SUARAM) condemn the police and the Malaysian government for arresting 11 people from Tawau under the draconian Internal Security Act (ISA). According to our source, the actual number of individuals arrested is most likely 14 persons.

This heinous act is regrettable because it contradicts with the announcement of the Prime Minister of Malaysia on 15 September in respect of the repeal of the ISA. What is the rationale behind the detention? Is the Prime Minister of Malaysia trying to fool the people of Malaysia with his hypocritical attitude? The PM should be ashamed of this arrest!

According to our sources, the allegations against 11 individuals remain unclear and it is believed that they are associated with terrorism. Here are the names of the detained under the ISA on the 14th and 15th day of November 2011 (not official):

No	Name	Occupation
1	Mohd Nazri Bin Dollah	Religious teacher at SMK Kinabutan
2	Yusof Bin Saripuddin	Poultry dealer
3	Muhd Adnan Bin Umar	Teacher at MJU Tuition Centre
4	Muhd Abduh Bin Umar	Lorry driver
5	Adwan	Not Available
6	Faizal Bin Hamma	Newspapers Distributor
7	Joni @ Muadz	Newspapers Distributor
8	Azmi	Not Available
9	Suriadi	Not Available
10	Darto Bin Bandu	Teacher at MJU Tuition Centre
11	Bakar Bin Baba	Teacher at SMK Umas-umas

The arrest was conducted by police officers from the Department of Special Task Force (Operation Counter Terrorism) Bukit Aman headed by DSP Azman bin Omar. Family/next of kin of the individuals arrested were informed a day later that the arrest is under Section 73(1) AKDN 1960 (ISA).[T1] 

Arrest without warrant, without notice or informing spouses and children is too tragic. The conduct of the arrest is comparable to a robbery as the police officers were well-armed and seized several laptops and a sum of cash.

BN Cannot Live Without ISA

The new detentions confirm the doubts among Malaysians with regards to this repeal. Now it is proven that the announcement of the repeal is insincere and merely for Najib's political interests. ISA is a cruel act that allows for detention without trial, which contradicts with fundamental human rights principles.

The UMNO/BN government has indicated that it cannot sustain itself without the ISA. The UMNO/BN-led government requires a political tool to stay in power and create fear among Malaysians. The ongoing use of ISA has given a blow to the BN’s credibility for the next election as it still maintains the habit of cheating people by using the ISA on a confidential basis.

Abolish ISA Now!

We would also like to remind the Prime Minister that over the past few decades, thousands of people were detained without trial under the ISA not for what they did or said, but based on anonymous and often false accusations from third parties. People have been locked up for crimes that were not proven in a court of law and thousands were left to anguish in secret detention cells around the country over an indefinite period of time.

As such, SUARAM and GMI call upon the Prime Minister to abolish the Internal Security Act and release all the detainees while the abolition is pending. We also call upon the government to stop legislating laws which allows detention without trial and to deal the terrorism issues with the existing laws.

Released by

Nalini Elumalai

GMI Secretariat/SUARAM

019 3758912

Syed Ibrahim Syed Noh

Chairman GMI

013 3682067

GERAKAN MANSUHKAN ISA (GMI)

&

SUARA RAKYAT MALAYSIA (SUARAM)

Kenyataan Akhbar: 17 November 2011

Penahanan dibawah ISA: Pembohongan dan Hipokrasi   Kerajaan Terbongkar !

Gerakan Mansuhkan ISA (GMI) dan Suara Rakyat Malaysia (SUARAM) mengutuk tindakan polis dan kerajaan Malaysia kerana menahan 11orang dari Tawau dibawah Akta Keselamatan dalam Negeri (ISA). Angka ini adalah tidak rasmi kerana  ada sumber yang mengatakan angkanya kemungkinan 14 orang.

Tindakan terkutuk ini amat dikesali kerana ianya bercanggah dengan pengumuman Perdana Menteri Malaysia pada 15 September berkenaan dengan pemansuhan ISA. Apakah rasional disebalik penahanan? Adakah Perdana Menteri Malaysia cuba memperdayakan rakyat Malaysia dengan sikap hipokrasi beliau ? PM perlu berasa malu atas penangkapan ini!

Menurut sumber kami, setakat ini tuduhan keatas 11 orang ini masih tidak pasti dan dipercayai kemungkinan mereka dikaitkan dengan keganasan.

Berikut adalah nama-nama yang ditahan dibawah ISA pada 14 dan 15 haribulan November 2011 (Bukan rasmi):

Bil	Senarai Nama	Pekerjaan
1	Mohd Nazri Bin Dollah	Guru Agama SMK Kinabutan
2	Yusof Bin Saripuddin	Peniaga Ayam
3	Muhd Adnan Bin Umar	Guru Pusat Tuisyen MJU
4	Muhd Abduh Bin Umar	Pemandu Lori
5	Adwan
6	Faizal Bin Hamma	Pengedar Akhbar Harian
7	Joni @ Muadz	Pengedar Akhbar Harian
8	Azmi
9	Suriadi
10	Darto Bin Bandu	Guru Pusat Tuisyen MJU
11	Bakar Bin Baba	Guru Smk Umas-Umas

Tangkapan tersebut dilakukan oleh pegawai-pegawai polis dari Jabatan Pasukan Petugas Khas (Operasi Counter Terorism) Bukit Aman diketuai oleh DSP Azman bin Omar. Keluarga / Waris orang yang ditangkap dimaklumkan sehari kemudian yang mereka ditangkap di bawah Seksyen 73 (1) AKDN 1960 (ISA).

Penangkapan tanpa waran, tanpa notis atau dimaklumkan dilakukan di hadapan  isteri dan anak-anak terlalu tragis. Situasi ini dilakukan oleh pihak polis yang lengkap bersenjata dengan cara yang kasar bagai satu rompakan dan dirampas beberapa komputer riba (laptop) dan sejumlah wang tunai.

BN Tidak boleh Hidup Tanpa ISA

Penahanan terbaru ini mengesahkan kesangsian yang terdapat di kalangan rakyat Malaysia berkenaan pemansuhan ini. Kini ianya amat pasti bahawa pengumuman itu hanyalah untuk kepentingan politik Najib dan tidak serius dan jujur dalam memansuhkan akta zalim ini. ISA adalah akta yang zalim dan yang membenarkan penahanan tanpa bicara di mana ianya bercanggah dengan hak asasi manusia.

Kerajaan UMNO/BN memang tidak boleh bertahan tanpa ISA. Kerajaan UMNO/BN ini memerlukan alat politik ini terus berkuasa dan mewujudkan ketakutan di kalangan rakyat Malaysia.Tindakan penggunaan ISA sememangya telah memberikan satu tamparan kepada kerajaan BN dalam pilihan raya akana datang kerana masih menipu rakyat dengan masih menggunakan ISA secara rahsia.

Mansuhkan ISA Sekarang

Kami juga ingin mengingatkan Perdana Menteri bahawa sejak beberapa dekad yang lalu, beribu-ribu orang telah ditahan tanpa bicara di bawah ISA bukan untuk apa yang mereka lakukan atau berkata tetapi berdasarkan tuduhan tanpa bukti  dan sering palsu daripada pihak ketiga. Orang yang telah ditahan bukan untuk jenayah yang mereka lakukan atau dibuktikan di mana-mana mahkamah dan beribu-ribu dibiarkan merana di dalam sel-sel tahanan rahsia di seluruh negara.

Oleh itu, SUARAM dan GMI menyeru Perdana Menteri untuk  mansuhkan ISA dengan segera dan membebaskan semua tahanan. Kami juga menyeru kerajaan untuk menghentikan menggubal undang-undang yang membenarkan penahanan tanpa perbicaraan dan untuk menangani isu-isu keganasan dengan undang-undang  yang sedia ada.

Dikeluarkan oleh,

Nalini Elumalai

GMI Secretariat/SUARAM

019 3758912

Syed Ibrahim Syed Noh

Chairman GMI

013 3682067

'People must drive the change in death penalty' (NST)

before we can make any amendments, there must be a healthy debate about this. — Datuk Seri Mohamed Nazri Abdul Aziz minister in the prime minister’s department

KUALA LUMPUR: Society must push for the abolition of the death penalty, if that is what they want, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz said yesterday. 

He said although he was for the abolition, there were few on the ground who agreed with him.

"There must be more efforts to create awareness. Even during parliamentary debates, the issue is barely raised when you compare it with issues like the Internal Security Act or the Emergency Ordinance which the government has decided to abolish. There is no urgency."

He said the government was open to the idea of making changes where the death penalty was concerned, but society must make enough of a stir to warrant it.

"It doesn't have to be like the ISA, where people demonstrated in the streets. There are more civil ways to do it. At the moment, there is no civil movement towards abolishing the death penalty."

Nazri said it would take a long time to change the acceptance of the death penalty.

"It's an emotional topic. You can see it in the way people react when they read about unwanted babies getting killed or of women being raped and murdered.

"People get angry and demand an eye for an eye, what more when you talk about wanting to spare the perpetrators."

He said this was reflected at a recent seminar to promote the abolition of the death penalty in Malaysia.

Instead of supporters coming in droves, the ones who showed up were those who demanded that the death penalty remain, he added.

In Malaysia, where the majority of crimes that warranted the mandatory death sentence revolved around drug trafficking and possession of firearms, Nazri said sentencing the perpetrators to death might not have much impact on society.

"But, it's emotional to the family members when the person sentenced to death had unknowingly become drug mules. There's always the probability that those caught are innocent."

For starters, Nazri said, the judiciary system could look at giving discretionary powers to judges in deciding whether the crime committed warranted a death sentence.

He said the death penalty had not proven much of a deterrence in reducing serious crimes in the country and the next best solution was to commute death to a life sentence in jail.

"But before we can make any amendments, there must be a healthy debate about this."

For example, he said, some people saw the death sentence as something that was prescribed by syariah from an Islamic point of view.

"There is a misconception that syariah is about 'an eye for an eye'. In the context of murder, syariah provides space for the family of the murdered kin to forgive or to ask for payment of blood money (compensation)."

He said the argument was that in Malaysian law, when there was a crime such as murder, the crime committed was not against the family of the murdered kin but against the crown (government).

"So, the choice of whether to spare or condemn the person's life is in the government's hands and no longer the family's.

"The government has a moral standing to forgive those who commit offences and it should be reflected in commuting it to a life sentence."

Nazri said it was important for the public, particularly non-governmental organisations, to call for the abolishment of the death penalty.

Several religious associations say the death penalty should be abolished following a thorough review.

Federation of Taoist Associations Malaysia president Tan Hoe Chieow said in Taoism, it was prohibited to take one's own life, let alone another.

"It is our belief that three feet above one's head, God is watching every action and decision we make in life."

He said Taoists believed in Judgment Day and that punishment or rewards would be meted out accordingly.

But he said the death penalty should be abolished only after reviewing if indeed it did not prove to be a deterrent to serious crimes.

Tan, who is also the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) president, said it was wise to consider the alternative punishments thoroughly before any abolition.

MCCBCHST executive councillor V. Harcharan Singh said most religions advocated compassion and forgiveness.

He said in Sikhism, there was no punishment till death as it was considered cruel to take one's life.

Malaysia Hindu Sangam former president Datuk A. Vythilingam said death sentences were carried out since the existence of ancient Hindu kingdoms.

In modern times, he said, the sentence should be carried out sparingly as it created an emotional uproar in society.

"Human beings naturally want to exact revenge for their hurt, hence they feel strongly about the death penalty.

"But an eye for an eye only makes the whole world blind."

Former Bar Council president Yeo Yang Poh said although there were pockets of people in society who believed that having a death penalty made for an effective deterrent, studies in other parts of the world showed that the crime rate did not drop because of it.

"The argument has been that no matter how good a system is, it will never be error-free.

"If it is found that someone was wrongfully jailed, he can be released. It is reversible. You can't say the same for someone wrongfully executed."

It was reported last year that there were 114 death sentences, with 744 persons on death row and one execution.

Some of the criminal offences that carry the death penalty include Section 121 of the Penal Code for waging war against the Yang di-Pertuan Agong, Section 364 for kidnapping or abducting in order to murder, Section 396 for gang robbery with murder and Section 39B of the Dangerous Drugs Act 1952 for drug trafficking, which comes with a mandatory death sentence.

According to the Global Overview on the Death Penalty for Drug Offences 2010 conducted by International Harm Reduction Association, 32 states provided the death penalty for drug-related offences.

Of these, Malaysia is one of 13 that have the mandatory death sentence. - New Straits Times, 1/11/2011, 'People must drive the change in death penalty'

Abolition of death penalty in Malaysia? (Borneo Post, 30/10/2011)

Abolition of death penalty in Malaysia?

by Churchill Edward. Posted on October 30, 2011, Sunday

ABOLITION of the death penalty will not come so soon in conservative Malaysia despite efforts by a few to change the mindset of the public at large.

Public opinion suggests that support for the mandatory death penalty as punishment for murder is still strong despite arguments by abolitionists that the death penalty brutalises society.

 NO TO DEATH PENALTY: Thiru (right) listening to queries from members of the media. Also seen are (seated from left) Khaw, Lord Dubs, Charles and Tuijn.

According to the Global Overview on the Death Penalty for Drug Offences 2010, conducted by International Harm Reduction Association, there remains 32 states which provide for the death penalty for drug-related offences. Of these 32, 13 have the mandatory death penalty. Malaysia is one of them.

Abolitionists around the world have been quoting the late Gandhi that ‘An eye for an eye will make the whole world go blind’ effectively in some countries but not so in Malaysia.

The abolitionists argue that the death penalty is never a superior deterrent because murder and drug trafficking happen from time to time.

The worst case scenario is that an innocent man may be executed and when that happens, the sentence is irreversible, they point out.

The very few conservative countries are adamant about keeping the death penalty, especially as punishment for murder, drug trafficking and illegal possession of firearms.

Discretionary approach

Malaysians who support the abolitionists around the globe have suggested the country can go slow in changing the mindset of the people and/or public opinion by first urging the authorities to start making the death penalty discretionary for judges presiding over drug trafficking cases.

Later, the judges may proceed to invoke their discretionary powers in murder cases.

Discretion, the abolitionists suggest, may call forth some kind of compassion.

However most Malaysians note that compassion can also come in the form of a pardon by the King.

Public views must be taken into account on the proposal to abolish the death penalty in the country, said Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.

“Like the Internal Security Act (ISA) — when a lot of the public wanting to abolish this law, we follow the majority. Public opinion is very important to us. At the moment you cannot really see whether or not the people are in favour of abolishing the death penalty,” he told reporters after a public seminar to promote the abolition of the death penalty in Malaysia in Kuala Lumpur.

Nazri said although there was now no discussion on the immediate abolishment of the death penalty in Malaysia despite calls from some quarters, the government was committed to re-evaluate, re-think and review the capital punishment.

114 death sentences

Malaysia still practises the death penalty and as of last year, there were 114 death sentences with another 744 persons on death row while one execution was reported.

Nazri, who is sometimes called the Law Minister, opined that the death penalty review was timely and in line with ongoing government efforts to review outdated laws and several emergency ordinances and introduce new laws, complied with the principles of human rights.

He said the government’s task was, therefore, to find the most humane mechanism to uphold justice for the people.

The seminar to promote the abolition of the death penalty in Malaysia was jointly organised by the European Union, the Bar Council Malaysia and the Human Rights Commission of Malaysia in conjunction with the International Day against the Death Penalty which is held every October 10.

Apart from Nazri, those present were ambassador Vincent Piket, head of the European Union (EU) delegation to Malaysia; moderator Prof Datuk Dr Khaw Lake Tee, who is vice chairman of Malaysian Human Rights Commission (Suhakam) and Steven Thiru, Malaysian Bar Council treasurer as well as four panelists — Lord Alf Dubs of the All Party Parliamentary Group on the Abolition of the Death Penalty House of Lords UK; NicoTuijn, vice president of Court of Appeal, Hertogenbosch in Netherlands; Charles Hector, lawyer and coordinator of the Malaysians Against Death Penalty and Torture (Madpet) and Yohendra Nadarajan, Amnesty International board member and Amnesty International Human Rights education coordinator.

Malaysian Bar Council president Lim Chee Wee was also present.

Piket, in his welcoming remarks, said the abolition of the death penalty worldwide was one of the main objectives of the EU’s human rights policy.

The Malaysian Bar also reiterated its call on the Malaysian government to immediately abolish the death penalty, and for an immediate moratorium on its use pending its abolition.

The Oct 13 seminar is the first in a long-term campaign to bring about the eventual abolition of the death penalty in Malaysia.

Life is sacred

In his closing remarks, Thiru said only God Almighty has the right to take away the life of a human being.

“We hold to the belief that life is sacred and every individual has an inherent right to life which is enshrined in Article 5 (1) of our Federal Constitution. We take the view that the right to life is a fundamental right which must be absolute, inalienable and universal, irrespective of the crime committed by the accused person,” he added.

“There is no empirical proof or data that irrefutably establishes that having the death penalty is effective (as compared to other forms of punishment) in deterring heinous and serious crimes.

“The retentionists’ credo that the death penalty deters crime is unsupported by compelling research. The retentionists, nevertheless, continue to call for the imposition of the death penalty, especially in relation to murder, rape and incest.

“However, the reality is that the death penalty would have dire repercussions on the efforts to prosecute and prevent the incidence of these crimes and the protection of rape survivors, and also the reduction of victimisation of the survivors under the legal process.

“For example, as the prosecution of rapists depends on the existence of a complaint by a rape survivor, the death penalty may discourage rape survivors from reporting the matter, especially if the perpetrator is a family member.”

Moreover, Thiru stressed, drug-related offences and addiction had been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952 which imposed the mandatory death penalty.

“This weakens the case for the death penalty because more than half of the known outstanding death sentences are for drug offences (479 out of the 696 inmates on death row as of Feb 22 this year), followed by murder (204) and illegal possession of firearms (13).

The mandatory death penalty has obviously not had the desired effect intended by parliament.”

The little fish

The vast majority of arrests for drug trafficking are those of non-violent and low-ranking “little fish” in the drug market. The most recent report of the Global Commission on Drug Policy observes that these “little fish” are most visible and easy to catch, and do not have the means to pay their way out of trouble because they cannot afford bribes or bail, for example.

“The (end) result is that governments are filling prisons with minor offenders and with no impact on the scale or profitability of the market,” Thiru added.

“These minor offenders are usually poor, young, desperate and/or very impressionable. This is well illustrated by the much-publicised case of Yong Vui Kong who is on death row in Singapore after being arrested and convicted for being in possession of 47.26 grammes of diamorphine when he was just 18.

“He (Yong) represents one of the many thousands of small fish (in an elaborate international or domestic web) that are caught by governments every year and a victim of the growing drug mule recruitment drive in Southeast Asia and East Asia,” Thiru pointed out.

Furthermore, both in Singapore and Malaysia, there is a legal presumption that the accused who is in possession of drugs in excess of the proscribed weight limit is guilty of trafficking, and that the accused is deemed to know what he or she carries.

The burden is, therefore, on the accused to prove his or her innocence.

This is the reversal of the universal legal standard of the prosecution bearing the burden, which is described in the famous case of Woolmington vs DPP as the golden thread in all criminal cases. Thus, it follows that once a person is convicted for possession, the judge is compelled to hand down the death sentence.

No legal system in the world is fail-proof or error-free, Thiru added.

Despite the best efforts of all those involved in the judicial and legal system, errors still abound due to human frailty. Groups such as the Innocence Project in the US work to bring about post-conviction DNA exonerations and to date, 273 people in the US have been exonerated by DNA testing, including 16 who served time on death row.

Karthigesu case

In Malaysia, some may recall the famous 1970’s case of Karthigesu, who was wrongly convicted for murder and later acquitted.

“Needless to say, the opportunity to right a wrong will not be available if the death sentence had been meted out. Then, we, as a society, are collectively responsible for having sent an innocent man or woman to their death.

“It will be cold comfort to the deceased persons’ loved ones for us to hold that the system is not free from error and that every now and then, there are those who fall in between the stools! The burden of imposing a sentence of death is, therefore, great and leaves no margin for natural human error,” he said.

The execution of human beings by the state is seen as an “example of barbarity” and legitimises the taking of human life.

In the course of the on-going Save Yong Vui Kong campaign, Nazri had been quoted as saying that now was time for Malaysia to abolish the death penalty.

At the same time, he did add that Malaysia lacked the political will to change things.

As such, the Malaysian Bar Council believes it is time to generate that political will and fibre among our politicians.

In this regard, the Malaysian Bar Council said it lauded the creation of a cross-party caucus in parliament that seeks to promote support for the abolition of the death penalty, and its decision on June 27, 2011, to move a resolution in parliament to end the mandatory death penalty for drug-related offences.

A few years back, there was a tale about former prime minister Tun Dr Mahathir Mohamad ticking off a foreign journalist whose fellow countryman was on death row in Malaysia for drug trafficking.

The foreign journalist asked Dr Mahathir: “Sir, don’t you think that your law is barbaric?”

In response, Dr Mahathir was quoted as saying: “Don’t you tell that to me. Tell that to the drug traffickers.”

This seems to be the attitude of most Malaysians at present. Apparently, the abolitionists have to work harder to change public mind set. - Borneo Post Online, 30/10/2011, Abolition of death penalty in Malaysia?