Sunday, April 17, 2011

Malaysia's Death Penalty Information (as at 4/4/2011)

Death Penalty Database Search

    
Malaysia. [1]
Information Current As Of: 02-April-2011
General
Geographical Region
Southeastern Asia [2]
Death Penalty Law Status
Retentionist [3]
Method(s) of Execution
Hanging [4}
References:
[1] U.S. Dept. of State, Background Note: Malaysia, http://www.state.gov/r/pa/ei/bgn/2777.htm, Jan. 28, 2010.
[2] U.N., World Macro Regions and Components, U.N. Doc. ST/ESA/STAT/SER.R/29, 2000.
[3] Amnesty Intl., Abolitionist and Retentionist Countries, http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries, last accessed Mar. 24, 2010; Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 24, 2009.
[4] Criminal Procedure Code of Malaysia, art. 277, 1935, amended by Act 593 of 2006.
Country Details
Type of Government
Federal Parliamentary Democracy with Constitutional Monarch. [1]
 
Official Language(s)
Bahasa Melayu [2]
 
Population
28,300,000 [3]
 
Number of Individuals Currently Under Sentence of Death
503. As many as 300 individuals were held under sentence of death as of January 2008. [4] In 2008, there were at least 22 death sentences and was at least one execution. [5] In 2009, there were at least 68 death sentences and an unknown number of executions. [6] In 2010 there were 114 death sentences and was at least one execution. [7]
 
Annual Number of Reported Executions
2010
Amnesty's 2010 report might indicate a belief that executions occurred in Malaysia. [8] We found no verification of any executions from organizations that pay close attention to these matters. [9]
 
2009
There have been no reported executions in Malaysia during 2009. However, Amnesty International’s annual report indicates there were executions in 2009. [10]
 
2008
At least 1. [11]
 
2007
There were no reported executions, but executions may have taken place. [12]
Year of Last Known Execution
 
2008 [13] Amnesty International reports that there was at least one execution in 2010, but it is possible that this should be interpreted as a statement on Amnesty's part that, due to non-transparency, it is unclear that there were no executions. [14] Unlike the "reported" execution in 2010, we were able to obtain independent verification of the execution in 2008. [15]
 
References:
[1] U.S. Dept. of State, Background Note: Malaysia, http://www.state.gov/r/pa/ei/bgn/2777.htm, Jan. 28, 2010.
[2] U.S. Dept. of State, Background Note: Malaysia, http://www.state.gov/r/pa/ei/bgn/2777.htm, Jan. 28, 2010.
[3] U.S. Dept. of State, Background Note: Malaysia, http://www.state.gov/r/pa/ei/bgn/2777.htm, Jan. 28, 2010.
[4] Mark Warren, The Death Penalty Worldwide: Estimated Death Row Populations, http://users.xplornet.com/~mwarren/global.htm, Mar. 30, 2010.
[5] Amnesty Intl., Death Sentences and Executions in 2008, p. 23, ACT 50/003/2009, Mar. 24, 2009.
[6] Amnesty Intl., Death Sentences and Executions in 2009, pp. 6, 7, ACT 50/001/2010, Mar. 30, 2010.
[7] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[8] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[9] Search, for example, the website of Malaysians Against the Death Penalty and Torture (MADPET) at http://madpet06.blogspot.com/, last accessed Apr. 2, 2011.
[10] Amnesty Intl., Death Sentences and Executions in 2009, pp. 6, 7, ACT 50/001/2010, Mar. 30, 2010.
[11] Amnesty Intl., Death Sentences and Executions in 2008, p. 23, ACT 50/003/2009, Mar. 24, 2009.
[12] Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008.
[13] Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 2009.
[14] Amnesty Intl., Death Sentences and Executions in 2010,ACT 50/001/2011, Mar. 28, 2011.
[15] Charles Hector, MADPET: Malaysians Against Death Penalty and Torture, Malaysia Executes: Hours After Passing of Second UN Resolution Asking for Stop of All Executions, http://madpet06.blogspot.com/search?updated-min=2008-01-01T00:00:00-08:00&updated-max=2009-01-01T00:00:00-08:00&max-results=50, Dec. 21, 2008; Chelsea L.Y. NG, Appeal Rejected, ex-Driver to Hang, The Star Online, http://thestar.com.my/news/story.asp?file=/2006/12/13/courts/16300826&sec=courts, Dec. 13, 2006.
Crimes and Offenders Punishable By Death
Crimes Punishable By Death:
Murder. [1]

Other Offenses Resulting in Death.

Every participant in dacoity, a gang robbery involving at least five offenders, is death-eligible if one of the participants commits murder during the robbery. [2] Bearing false witness, resulting in an innocent victim’s conviction and execution, is punishable by death if the witness knows the victim may be convicted of a capital crime as a result. [3] Assisted suicide of a child or insane person is punishable by death. [4] Such suicide is reasonably categorized as murder, because children and insane persons cannot consent to commit suicide. Additionally, rape resulting in the victim’s death is a capital offense similar to simple murder, although it may be punished more leniently than simple murder. [5]

Terrorism-Related Offenses Not Resulting in Death.

Unlawful possession of firearms or explosives in a designated security area, or supplying, receiving, or preparing to supply or receive firearms in a designated security area, or consorting with individuals who perform such acts, is punishable by death. [6] Malaysia has amended its penal code to address and further define terrorist acts [7] ; however, terrorist suspects are typically dealt with under the Internal Security Act and are simply detained without trial. [8]

Robbery Not Resulting in Death.

If a firearm is charged during robbery or extortion in an attempt to murder or cause harm, each of the offenders participating in the robbery or extortion is punishable by death. [9]

Kidnapping Not Resulting in Death.

If murder is intended [10] or if the abducted person is held for ransom [11] , kidnapping is punishable by death. Kidnapping is also a capital crime if any of the kidnappers, during the offense, discharges a firearm in an attempt to murder or cause harm. [12]

Drug Trafficking Not Resulting in Death. [13]

Treason.

Waging war against Malaysia or offenses against the person of any Malaysian federal or federated head of state is punishable by death. [14]

Military Offenses Not Resulting in Death.

Abetting mutiny, if the mutiny is carried out, is punishable by death. [15]

Other Offenses.

Discharge of firearms in an attempt to murder or cause harm while resisting arrest or escaping lawful custody, by any of the offenders, makes each participating offender death-eligible. [16]

Trafficking in firearms, or possessing more than two firearms illegally, is punishable by death. [17]

Attempted murder, if harm actually results, is punishable by death if the offender was serving a sentence of 20 years or more at the time of the offense. [18]

Comments.

While Malaysia does permit the application of Sharia law in Islamic courts, only the High Court, which applies only the civil and criminal law of Malaysia, may try capital cases. [19]

Does the country have a mandatory death penalty?
Yes. [20]
 
For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?
Murder. [21]

Terrorism-Related Offenses Not Resulting in Death.

Unlawful possession of firearms or explosives in a designated security area, or supplying, receiving, or preparing to supply or receive firearms of a certain amount in a designated security area, is punished by death. [22] Malaysia has amended its penal code to address and further define terrorist acts [23] ; however, terrorist suspects are typically dealt with under the Internal Security Act and are detained without trial. [24]

Robbery Not Resulting in Death.

If a firearm is charged in an attempt to murder or cause harm during a robbery or as part of extortion, the offender discharging the firearm is punished by death. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the discharge. [25]

Kidnapping Not Resulting in Death.

A kidnapper who discharges a firearm during kidnapping in an attempt to murder or cause harm must be punished by death. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the discharge. [26]

Burglary Not Resulting in Death.

An offender who discharges a firearm in an attempt to murder or cause harm during a house-break or house-trespass must be punished by death. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the discharge. [27]

Drug Trafficking Not Resulting in Death: [28]

Treason.

Offenses against the person of any Malaysian federal or federated head of state are punished by death. [29]

Other Offenses.

An offender who discharges a firearm in an attempt to murder or cause harm while resisting arrest or escaping lawful custody is death-eligible. Other participants must be punished by death if they cannot prove they took all reasonable measures to prevent the discharge. [30]

Crimes For Which Individuals Have Been Executed Since January 2008:
Other Offenses Resulting in Death.

According to human rights organizations and other reporting, on December 19, 2008, a bus driver was hanged at Kajang prison for raping and murdering a computer engineer. [31]

According to various human rights and news sources, drug trafficking crimes may compose the majority of death sentences in Malaysia, with murder generally making up the difference. [32]
 
Categories of Offenders Excluded From the Death Penalty:
Individuals Below Age 18 At Time of Crime.

Children under the age of ten cannot be prosecuted for a crime in Malaysia. [33] In 1995, Malaysia acceded to the Convention on the Rights of the Child with certain reservations, and by 2001 legislatively confirmed that persons committing an offense while under the age of 18 cannot be executed. [34]

Pregnant Women.

The maximum sentence for a woman pregnant at the time of sentencing is 20 years imprisonment. [35]

Mentally Ill.

Individuals of "unsound mind" who could not appreciate the nature of their actions, as well as those who were involuntarily intoxicated or intoxicated to the point of insanity, may not be found criminally liable. [36]

References:
[1] Penal Code of Malaysia, art. 302, 1936, amended by Act 574 of 2006.
[2] Penal Code of Malaysia, art. 396, 1936, amended by Act 574 of 2006.
[3] Penal Code of Malaysia, art. 194, 1936, amended by Act 574 of 2006.
[4] Penal Code of Malaysia, art. 305, 1936, amended by Act 574 of 2006.
[5] Penal Code of Malaysia (Amendment) (Amendment) Act, art. 2, 2007.
[6] Internal Security Act of Malaysia, arts. 57(1), 58(1), 59(1), 59(2), 1960, revised 1972.
[7] Joint Action Group Against Violence Against Women, Memorandum to the Special Select Committee on Penal Code (Amendment) 2004 and Criminal Procedure Code (Amendment ) 2004, pp. 3-4, http://www.awam.org.my/images/jag_2004_memo.pdf, Oct. 28, 2004; Penal Code (Amendment) (Amendment) Act, art. 4, 2007
[8] U.S. Dept. of State, Country Reports on Terrorism 2008: Malaysia, http://www.state.gov/s/ct/rls/crt/2008/122413.htm, Apr. 30, 2009.
[9] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[10] Penal Code of Malaysia, art. 364, 1936, amended by Act 574 of 2006.
[11] Kidnapping Act of Malaysia, art. 3(1), 1961, revised 1989.
[12] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[13] Dangerous Drugs Act of Malaysia, art. 39B, 1952, revised 1980.
[14] Penal Code of Malaysia, art. 121, 1936, amended by Act 574 of 2006.
[15] Penal Code of Malaysia, art. 132, 1936, amended by Act 574 of 2006.
[16] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[17] Firearms (Increased Penalties) Act of Malaysia, art. 7, 1971.
[18] Penal Code of Malaysia, art. 307(2), 1936, amended by Act 574 of 2006.
[19] The Dawn Media Group, Sharia Law in Malaysia, http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/world/30-sharia-law-in-malaysia-so-02, Feb. 19, 2010; Malaysian Official Court Web, Jurisdiction of the Court: Malaysian Judicial Structure, http://www.kehakiman.gov.my/courts/judicialEN.shtml, 2004.
[20] Penal Code of Malaysia, arts. 302, 1936, amended by Act 574 of 2006; Internal Security Act of Malaysia, arts. 57(1), 59(1), 59(2), 1960, revised 1972; Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971; Dangerous Drugs Act of Malaysia, art. 39(B), 1952, revised 1980.
[21] Penal Code of Malaysia, art. 302, 1936, amended by Act 574 of 2006.
[22] Internal Security Act of Malaysia, arts. 57(1), 59(1), 59(2), 1960, revised 1972.
[23] Joint Action Group Against Violence Against Women, Memorandum to the Special Select Committee on Penal Code (Amendment) 2004 and Criminal Procedure Code (Amendment ) 2004, pp. 3-4, http://www.awam.org.my/images/jag_2004_memo.pdf, Oct. 28, 2004; Penal Code of Malaysia (Amendment) (Amendment) Act, art. 4, 2007.
[24] U.S. Dept. of State, Country Reports on Terrorism 2008: Malaysia, http://www.state.gov/s/ct/rls/crt/2008/122413.htm, Apr. 30, 2009.
[25] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[26] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[27] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[28] Dangerous Drugs Act of Malaysia, art. 39(B), 1952, revised 1980.
[29] Penal Code of Malaysia, art. 121, 1936, amended by Act 574 of 2006.
[30] Firearms (Increased Penalties) Act of Malaysia, art. 3(A), 1971.
[31] Charles Hector, MADPET: Malaysians Against Death Penalty and Torture, Malaysia Executes: Hours After Passing of Second UN Resolution Asking for Stop of All Executions, http://madpet06.blogspot.com/search?updated-min=2008-01-01T00:00:00-08:00&updated-max=2009-01-01T00:00:00-08:00&max-results=50, Dec. 21, 2008; Chelsea L.Y. NG, Appeal Rejected, ex-Driver to Hang, The Star Online, http://thestar.com.my/news/story.asp?file=/2006/12/13/courts/16300826&sec=courts, Dec. 13, 2006.
[32] Anil Netto, Death to Malaysian Water Contaminators?, Inter Press Service, http://ipsnews.net/news.asp?idnews=33160, May 8, 2006; MADPET: Malaysians Against the Death Penalty and Torture, Malaysia: Death Penalty Data & News Reports for 2005, http://www.reocities.com/easytocall/deathpenaltyreports2005.html, Feb. 16, 2006.
[33] Penal Code of Malaysia, art. 82, 1936, amended by Act 574 of 2006.
[34] Status, Declaration, and Reservations, Conv. on the Rights of the Child, 1577 U.N.T.S. 3, Nov. 20, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-11&chapter=4?=en#Participants, last accessed Jun. 28, 2010; Child Act of Malaysia, art. 97(1), 2001.
[35] Criminal Procedure Code of Malaysia, art. 275, 1935, amended by Act 593 of 2006.
[36] Penal Code of Malaysia, arts. 84, 85-86, 309(A)&(B), 1936, amended by Act 574 of 2006.
International Commitments

ICCPR

Party?
No [1]
 
Date of Accession
N/A

[First] Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee

Party?
No [2]
 
Date of Accession
N/A

Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty

Party?
No [3]
 
Date of Accession
N/A

American Convention on Human Rights

Party?
Not Applicable.
Date of Accession

Death Penalty Protocol to the ACHR

Party?
Not Applicable.
Date of Accession

Record of Votes on UNGA Moratorium Resolution

2010: Cosponsor

No. [4]
Vote
 
Against. [5]
 
Signed the Note Verbale of Dissociation
Yes. [6]

2008: Cosponsor

No [7]
 
Vote
Against [8]
Signed the Note Verbale of Dissociation

Yes [9]

2007: Cosponsor

No [10]
Vote
Against [11]
Signed the Note Verbale of Dissociation
Yes [12]
References:
[1] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4?=en, last accessed Jun. 10, 2010.
[2] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4?=en, last accessed Jun. 10, 2010.
[3] Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4?=en, last accessed Jun. 10, 2010.
[4] Hands Off Cain, Co-sponsor of Resolution on a Moratorium on the Death Penalty, http://www.handsoffcain.info/chisiamo/index.php?iddocumento=13317886, last accessed Mar. 29, 2011. By March 29, 2011, official U.N. minutes were not yet available.
[5] Maria Donatelli & Aurélie Plaçais, WCADP, e-mail to DPW, DPW Doc. Moratorium 2010, Dec. 21, 2010. By March 29, 2011, official U.N. minutes were not yet available.
[6] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. U.N. Doc. A/65/779, Mar. 11, 2011.
[7] U.N.G.A., 63rd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008.
[8] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp.16-17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[9] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[10] U.N.G.A., 62nd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[11] U.N.G.A., 62nd Session, 76th Plenary Meeting, pp. 16- 17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[12] U.N.G.A., 62nd Session, Note Verbale dated 11 January 2008, U.N. Doc. A/62/658, Feb. 2, 2008.
Death Penalty In Law
Does the country’s constitution make reference to capital punishment?
Yes. Article 5(1) implies a death penalty by stating that no person may be deprived of life save “in accordance with law.” Article 119(3)(b) implies a death penalty by disqualifying a person from the electorate while under sentence of death. [1]
Does the country’s constitution make reference to international law?
Yes. Malaysia is a federation of states, and Parliament’s (the federal legislative body’s) ability to make law regarding some areas is restricted except when pursuant to a treaty or decision of an international organization of which Malaysia is a member. [2] Decisions of international bodies accepted by the United Kingdom on Malaysia’s behalf prior to independence continue to be binding international law in Malaysia. [3] These provisions concerning international law are subject to interpretation, but may make some international law applicable in Malaysia.
Have there been any significant changes in the application of the death penalty over the last several years?
Yes. Malaysia recently made rape resulting in death a capital crime. [4] While Malaysia continues to sentence significant numbers of people to death, the number of actual executions in Malaysia has dropped significantly. [5] However, the majority of death sentences are now for drug trafficking offenses rather than inherently violent crimes such as murder. [6]
Is there currently an official moratorium on executions within the country?
No. Persons were executed in 2008, sentenced to death in 2008, and Malaysia continues protest resolutions for a U.N. moratorium on the death penalty. [7]
Have there been any significant published cases concerning the death penalty in national courts?
In a web database search (http://www.commonlii.org/my/cases/MYCA/) of appeals court decisions in Malaysia, no cases significantly altering capital punishment practices were found, although some cases may elucidate practice in Malaysia. In the majority of published murder cases, the Court of Appeal upholds the sentences of the High Court. However, the Court of Appeal has overturned cases for insufficiency of evidence and for abusive police practices in obtaining confessions or self-incrimination. [8]

In drug trafficking cases, the Court of Appeal appears to restrict a finding of drug trafficking to cases where there is absolute, corroborated proof of the actual event of a drug transaction. [9] However, these cases also reveal that Malaysian courts accept application of the mandatory death penalty for drug trafficking following a police-initiated sting transaction. [10]

Other cases may suggest that the Court of Appeal finds ways to avoid the mandatory death penalty in some cases. The Court acquitted two men who killed in response, allegedly, to a business partner’s repeated sexual assaults on one of the men’s wife. However, such cases, as well as a case where “jealousy” as “insanity” precluded criminal liability for a husband’s brutal murder of his wife, could also be interpreted as a permissive attitude towards some honor killings. [11]
Where can one locate or access judicial decisions regarding the death penalty?
Malaysia’s official court website offers some selected decisions, and may eventually offer death penalty-related opinions: http://portal.kehakiman.gov.my/. The Malaysian Attorney General maintains a website with the status of ongoing cases, appeals, and recent decisions: http://www.agc.gov.my/agc/index.php?lang=en. A subscription site, http://www.cljlaw.com/, offers court opinions from Malaysia, but without subscribing it is unclear what content the site can offer. A free site, http://www.commonlii.org/my/cases/MYCA/, has some rulings on the death penalty, including recent appeals court decisions, by Malaysian courts (for example, see http://www.commonlii.org/my/cases/MYCA/2006/42.html).
Are jury trials provided for defendants charged with capital murder?
No. There are no jury trials in Malaysia. [12]
Brief Description of Appellate Process
A capital defendant appeals from the High Court to the Court of Appeal. After the Court of Appeal determines whether the appeal may be made, the judge who passed the sentence of death files a report on the case with the Federal Court, which determines the ultimate outcome. [13]
What is the clemency process?
The head of state automatically receives a report on each death-eligible case and can either commute the sentence to some other punishment, pardon the offender, or set the time and place of execution. The head of state can also grant an indefinite respite. [14]
References:
[1] Constitution of Malaysia, arts. 5(1), 119(3)(b), 1957.
[2] Constitution of Malaysia, art. 76(1)(a), 1957.
[3] Constitution of Malaysia, art. 169(b), 1957.
[4] Penal Code of Malaysia (Amendment) (Amendment) Act, art. 2, 2007.
[5] David T. Johnson & Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia, p. 312, Oxford University Press, 2009.
[6] Anil Netto, Death to Malaysian Water Contaminators?, Inter Press Service, http://ipsnews.net/news.asp?idnews=33160, May 8, 2006; MADPET: Malaysians Against the Death Penalty and Torture, Malaysia: Death Penalty Data & News Reports for 2005, http://www.reocities.com/easytocall/deathpenaltyreports2005.html, Feb. 16, 2006.
[7] Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 2009; U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[8] Anderson v. Prosecutor, W-05-46-2000, Court of Appeal of Malaysia, 2004.
[9] Saari bin Jusoh v. Public Prosecutor, No. J-05-121-1995, para. 20, Court of Appeal of Malaysia, 2006; Sanusi bin Ismail v. Public Prosecutor, No. D-05-125-1995, para. 9, Court of Appeal of Malaysia, 2004; Yang v. Public Prosecutor, No. J-05-64-1997, Court of Appeal of Malaysia, 2002.
[10] Saari bin Jusoh v. Public Prosecutor, No. J-05-121-1995, Court of Appeal of Malaysia, 2006.
[11] Singh v. Public Prosecutor, No. B-05-81-2000, Court of Appeal of Malaysia, 2004; Public Prosecutor v. Suhaimi bin Aziz, No. W-05-39-01, Court of Appeal of Malaysia, 2003.
[12] U.S. Dept. of State, 2009 Human Rights Report: Malaysia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm, Mar. 11, 2010.
[13] Criminal Procedure Code of Malaysia, art. 281, 1935, amended by Act 593 of 2006.
[14] Criminal Procedure Code of Malaysia, art. 281, 1935, amended by Act 593 of 2006.
Death Penalty In Practice
Are there any known foreign nationals currently under sentence of death?
Yes. As of May, 2010, there are Filipinos, Indonesians, a Liberian, and other nationalities under sentence of death in Malaysia. [1] Confirmed sources indicate that migrant workers, predominantly Indonesian, in Malaysia are at particular risk of death sentences for drug-related crimes. [2]
 

What are the nationalities of the known foreign nationals on death row?
Death row in Malaysia includes Indonesians, Filipinos, 1 Liberian, and may also include Thai, Singaporean, Chinese, and Nigerian individuals. [3]
 
Are there any known women currently under sentence of death?
Yes. [4]
 
Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?
No. [5]
 
Comments regarding the racial/ethnic composition on death row
One potential area for research regarding the racial and ethnic composition of death row in Malaysia involves the interaction of drug trafficking and migrant workers. Migrant workers travel from Indonesia to Malaysia, only to find that work opportunities in Malaysia are limited. These individuals sometimes turn to limited drug trafficking as a means of raising capital to return to Indonesia. When they are caught, they face the mandatory death penalty for drug trafficking. [6]
 
Are there lawyers available for indigent defendants facing capital murder trials?
Defendants facing capital charges in Malaysia have the right to an attorney at the public expense. [7] It is unclear that, in practice, defendants are always able to exercise this right. [8]
 
Are there lawyers available for indigent prisoners on appeal?
Defendants facing capital charges in Malaysia have the right to an attorney at the public expense. [9] It is unclear that, in practice, defendants are always able to exercise this right. [10]
 
Comments on Quality of Legal Representation
It is unclear that capital defendants are always able to obtain representation. [11] Some reports indicate that Malaysia’s government may intervene to discourage effective representation in certain cases. [12] Finally, Malaysia inhibits the defendant’s access to police evidence, which likely undermines an attorney’s ability to represent a client effectively. [13]
 
Other Comments on Criminal Justice System
Malaysia prosecutes a number of migrant workers from Indonesia, who may be unlikely to speak the language or understand their rights in Malaysia, for drug-related crimes carrying the mandatory death penalty. [14] Reports of arbitrary detention, lengthy detention, police brutality and torture suggest coercive techniques that may undermine the legitimacy of capital convictions in Malaysia. [15]

Following an appointment-fixing scandal, there are serious questions concerning corruption in the judiciary and the independence of the judiciary. [16]
 
References:
[1] Mark Warren, Foreigners Under Sentence of Death Worldwide, http://users.xplornet.com/%7Emwarren/world.html, May 7, 2010; Jakarta Post, Liberian to hang for drug trafficking in Malaysia, http://www.thejakartapost.com/news/2010/05/06/liberian-hang-drug-trafficking-malaysia.html, May 6, 2010; Trend News Agency, Nigerian duo to hang for triple murders in Malaysia, http://en.trend.az/news/world/wnews/1261164.html, Aug. 2, 2008; Boston.com, Death sentence for Malaysia wedding shooting, http://www.boston.com/news/world/asia/articles/2010/05/07/death_sentence_for_malaysia_wedding_shooting/, May 7, 2010.
[2] Baradan Kuppusamy, Hundreds of Migrants Face Execution for Drug Crimes, Inter Press Service, http://ipsnews.net/news.asp?idnews=38380, Jun. 29, 2007; Southeast Asia: Malaysia Court Sentences Woman to Death for Two Pounds of Marijuana, Issue 598, Drug War Chronicle, http://stopthedrugwar.org/chronicle/598/death_sentence_malaysia_two_pounds_marijuana, Aug. 21, 2009.
[3] Mark Warren, Foreigners Under Sentence of Death Worldwide, http://users.xplornet.com/%7Emwarren/world.html, May 7, 2010; Jakarta Post, Liberian to hang for drug trafficking in Malaysia, http://www.thejakartapost.com/news/2010/05/06/liberian-hang-drug-trafficking-malaysia.html, May 6, 2010; Baradan Kuppusamy, Hundreds of Migrants Face Execution for Drug Crimes, Inter Press Service, http://ipsnews.net/news.asp?idnews=38380, Jun. 29, 2007; Trend News Agency, Nigerian duo to hang for triple murders in Malaysia, http://en.trend.az/news/world/wnews/1261164.html, Aug. 2, 2008Boston.com, ; Death sentence for Malaysia wedding shooting, http://www.boston.com/news/world/asia/articles/2010/05/07/death_sentence_for_malaysia_wedding_shooting/, May 7, 2010; Southeast Asia: Malaysia Court Sentences Woman to Death for Two Pounds of Marijuana, Issue 598, Drug War Chronicle, http://stopthedrugwar.org/chronicle/598/death_sentence_malaysia_two_pounds_marijuana, Aug. 21, 2009.
[4] Southeast Asia: Malaysia Court Sentences Woman to Death for Two Pounds of Marijuana, Issue 598, Drug War Chronicle, http://stopthedrugwar.org/chronicle/598/death_sentence_malaysia_two_pounds_marijuana, Aug. 21, 2009.
[5] Status, Declaration, and Reservations, Conv. on the Rights of the Child, 1577 U.N.T.S. 3, Nov. 20, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-11&chapter=4?=en#Participants, last accessed Jun. 28, 2010; Child Act of Malaysia, art. 97(1), 2001.
[6] Baradan Kuppusamy, Hundreds of Migrants Face Execution for Drug Crimes, Inter Press Service, http://ipsnews.net/news.asp?idnews=38380, Jun. 29, 2007.
[7] U.S. Dept. of State, 2009 Human Rights Report: Malaysia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm, Mar. 11, 2010.
[8] Gary K.Y. Chan, Access to Justice in Malaysia and Singapore, pp. 33, 35-36, 38, Asian Journal of Comparative Law, vol. 2, issue 1, art. 2, 2007.
[9] U.S. Dept. of State, 2009 Human Rights Report: Malaysia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm, Mar. 11, 2010.
[10] Gary K.Y. Chan, Access to Justice in Malaysia and Singapore, pp. 33, 35-36, 38, Asian Journal of Comparative Law, vol. 2, issue 1, art. 2, 2007.
[11] Gary K.Y. Chan, Access to Justice in Malaysia and Singapore, pp. 33, 35-36, 38, Asian Journal of Comparative Law, vol. 2, issue 1, art. 2, 2007.
[12] U.S. Dept. of State, 2009 Human Rights Report: Malaysia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm, Mar. 11, 2010.
[13] U.S. Dept. of State, 2009 Human Rights Report: Malaysia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm, Mar. 11, 2010.
[14] Baradan Kuppusamy, Hundreds of Migrants Face Execution for Drug Crimes, Inter Press Service, http://ipsnews.net/news.asp?idnews=38380, Jun. 29, 2007.
[15] U.S. Dept. of State, 2009 Human Rights Report: Malaysia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm, Mar. 11, 2010.
[16] The Malaysian Bar Council, Video Links CJ to “Appointment Fixing” Scandal, http://www.malaysianbar.org.my/bar_news/berita_badan_peguam/video_links_cj_to_appointment_fixing_scandal.html, Sep. 19, 2007.
Decisions of International Human Rights Bodies
Decisions of Human Rights Committee
The Committee on the Convention on the Rights of the Child indicated that Malaysia should eliminate the death penalty for persons under the age of 18 at the time of the offense, an issue Malaysia had already addressed (or has since addressed by amendment to the underlying law). [1]
 
Decisions of Other Human Rights Bodies
UN reports indicate that individuals held under Malaysia’s Internal Security Act, under which death-eligible offenses apply, are subjected to cruel, inhuman and degrading treatment, likely as part of coercive interrogation techniques. [2] In some cases, arbitrary detention was used to inhibit the work of human rights defenders. [3]

A UN report expressed concern over the mandatory death penalty, availability of pardons, and availability of data on death row prisoners. [4]
 
References:
[1] U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, paras. 38, 39, U.N. Doc. CRC/C/MYS/CO/1, Jun. 25, 2007; Child Act of Malaysia, art. 97(1), 2001; U.N.G.A. Human Rights Council, National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1: Malaysia, para. 90, U.N. Doc. A/HRC/WG.6/4/MYS/1/Rev.1, Nov. 19, 2008.
[2] U.N.G.A. Human Rights Council, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, para. 185, U.N. Doc. A/HRC/11/41/Add.1, May 19, 2009.
[3] U.N.G.A. Human Rights Council, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, paras. 741, 742, 745-751, U.N. Doc. A/HRC/13/22/Add.4, Feb. 26, 2010.
[4] U.N.G.A. Human Rights Council, Summary Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15 (C) of the Annex to Human Rights Council Resolution 5/1, para. 14, U.N. Doc. A/HRC/WG.6/4/MYS/3, Oct. 27, 2008.
Additional Sources and Contacts
Direct member(s) of World Coalition Against the Death Penalty
Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty
 
Helpful Reports and Publications
Additional notes regarding this country
 
The Malaysian Bar Council advocates abolition, and a poll in 2006 showed 64% public opposition to the death penalty. [1]
 
References:
[1] Charles Hector, Malaysia Blindly Accepts Myths Propagated by Death Penalty Retentionists, The Malaysian Bar, http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=3433, Jul. 4, 2006.

Thursday, April 14, 2011

Vui Kong, Kim Fatt, Umi Azlim - Now Georgia is asking that life of its citizens be spared

Now, the ball is at Malaysia's court when another country has appealed for the life of its 2 citizens, who faces the death penalty.

We remember Sabahan Yong Vui Kong(now facing the death penalty in Singapore), Malaysian Ong Kim Fatt (who is facing the death penalty in China) and Umi Azlim Mohamad Lazim (who was facing the death penalty in China which was then commuted to life)...

Malaysia really must abolish the death penalty. The risk that an innocent person (or one that does not deserve death like 'drug mules') will be killed by the State is one reason why the death penalty be abolished.  The state of our criminal justice system, and the possibility of 'mistakes'/or lack of effort in defending by lawyers by reason of inadequacies or maybe even 'legal fees' is just another reason for abolition.

Mandatory death penalty or sentences should be removed from our laws returning the power and discretion to judges to decide on sentences that they deem fit. Now, judges just have no choice and this is so wrong. Parliament/Legislative have taken what should really be a power that should be vested in the Judiciary. 


Georgia asks Malaysia not to apply death penalty to two Georgian women

Apr 07 2011, 23:40

On April 6, the General Prosecutor's Office of Georgia sent a letter to law enforcement bodies of Malaysia on the case of the Georgian citizens - Babutsa Gordadze and Daredzhan Kokhtashvili - accused in this country of drug trafficking, asking them to change their penalty to long-term imprisonment instead of death penalty.

The "Caucasian Knot" has reported that on November 4 inspectors accused one of them, Babutsa Gordadze, under the article of "drug trafficking". The second woman - Daredzhan Kokhtashvili - was not charge charged, pending clarification of the circumstances. The hearing of Babutsa Gordadze's case will take place on April 11.

"We gave more information on this case to the Malaysian party. We are running a political dialogue with Malaysia trying to save the lives of our citizens, either by pardon or by means of other fair mechanisms," the "News-Georgia" quotes Sakvarelidze's words.

The official Tbilisi is also interested in custody conditions of the Georgian women and the stage of litigation, the "Georgia Online" reports.

On March 4, Malaysia held a hearing on the case of the two women from Georgia. According to Malaysian law enforcers, Babutsa Gordadze, 26, and Daredzhan Kokhtashvili, 37, tried to bring to Malaysia not 5.7 kg, as previously reported, but 1.5 kg of methamphetamine. - Caucasian Knot, 7/4/2011,Georgia asks Malaysia not to apply death penalty to two Georgian women



23 April 2009 - Kuala Lumpur (Star)

M’sia appeals for clemency for man on China death row

The Foreign Ministry has already sent a clemency appeal for Malaysian Ong Kim Fatt who is on death row in China for drug trafficking, said its Deputy Minister Datuk Lee Chee Leong.

Ong is the first one to face the death sentence for a drug offence in China since World War II.

“We have sent a letter to our Chinese counterpart appealing for Ong’s death sentence to be commuted to life imprisonment,” Lee said in a press conference at Wisma MCA on Thursday.

He added that the Malaysian Embassy there has also been appealing to the Chinese court regarding this matter.

“We want to remind all Malaysians to respect and abide by the laws of the countries they are travelling in,” he said.

Ong, 44, was found guilty of trafficking 13 packets of heroin weighing 1,480gm at the Xiamen Gao Qi International Airport on Sept 19, 2007.

Earlier last week, MCA Public Service and Complaints Department head Datuk Michael Chong sought the Foreign Ministry’s help to lessen Ong’s predicament as the death sentence was the first one to be dealt out for a drug offence since World War II.

Ong was to have faced the firing squad in February but the execution was postponed to Apr 29 to fulfil his last wish of meeting his siblings.

MCA Bukit Bintang chairman Datuk Dr Lee Chong Meng, who was also at the press conference, said that he will be accompanying Ong’s brothers, Hock Hooi, 38, and Hock Kiang, 41, to China on Apr 27 to fulfil Ong’s last wish and hopefully get his clemency appeal approved.

Previously, Dr Lee managed to find Ong’s family members as they were coincidentally residing on the top floor of the building where his service centre in Chow Kit is located.

“I hope that Ong is given some leniency as I believe that he was used by a drug syndicate somewhere. He is not a smart man. He can be very naive,” Dr Lee said.

Dr Lee added that it was unlikely that Ong had had enough money to buy the heroin himself.

Meanwhile, Chong said that he had spoken to Interpol’s National Centre Bureau assistant director Supt Gan Tack Guan, who informed him that Interpol was still probing into the matter.

“Investigations will carry on until they find out who the real culprits are. We want the drug syndicate exposed,” he said. - Star, 24/4/2009, Govt asks that death row man be given life sentence instead


DEATH PENALTY: Beijing Sentence Shakes Malaysia's Own Policy
By Baradan Kuppusamy

KUALA LUMPUR, Jan 23 (IPS) - Malaysia's unshakable stand on the death penalty appears to be wavering as a country unites in sympathy and outrage over the plight of a young Malay woman sentenced to death in China for allegedly acting as a drug courier.

Umi Azlim Mohamad Lazim, 24, a university science graduate from a poor Malay family of rice farmers, admitted to having 2.9 kilograms in her luggage when she was arrested at Shantou airport last January.

She told a court in southeast China during her trial in May 2007, that she was travelling for a highly-paid job she secured over the internet. But she was unaware what was in the bag she was carrying for a Nigerian friend. The judge rejected her explanation and sentenced her to death, the usual sentence for such an offence.

"She thought she was carrying important corporate documents," her mother, Umi Ibrahim, told IPS. "We cry everyday ... what can we do? We want her to live not die."

Most Malaysians appear to share the mother's anguish.

The case is fast-developing into an emotive national issue. Politicians have set aside their differences to halt Lazim's execution. The ruling United Malays National Organisation (UMNO) and its rival the Islamic fundamentalist Pan Malaysian Islamic Party are even vying in their efforts.

Both are collecting money for the family, working to arrange family visits and promising they will save Lazim from execution.

The government is at a distinct disadvantage in the race to save Lazim. Malaysia's punishment for drug-related crimes is as harsh, if not harsher, than most other countries. The government supports the death penalty.

"Malaysia has suddenly woken up to the fact that ordinary Malaysians are now caught in the same death-penalty trap that we put others in," Nagarajan Surendran, a human rights lawyer and executive co-director of Malaysians Against the Death Penalty, a NGO campaigning against capital punishment, told IPS. Trafficking in more than 200 grams of dangerous drugs carries a death sentence.

"Today there are about 300 people on death row here, mostly for drug offences," Surendran said. Many of the 359 people executed from 1980 to 2001 had been sentenced for drug offences.

Much national outrage is today focused on how the Chinese might eventually end Lazim's life, although her sentence has been suspended for two years on humanitarian grounds. "People are shot in their heads with rifles. It is a horrific way for a young girl to die," said Surendran, expressing a widely-expressed view.

The case has also suddenly brought to public attention a number of others. There are some 30 young Malaysian women either sentenced or awaiting trial for drug-related offences in more than a dozen countries besides China, including Japan, Brazil and Peru. Several could be sentenced to death.

Many are university graduates lured by offers of high salaries and opportunities to travel. Behind the tempting offers are shady front companies run by international drug cartels.

"The syndicates are willing to throw money at the unsuspecting girls before they make their moves," federal narcotics department director Bakri Zinin told local newspapers in November.

The problem of young Malaysians caught ferrying drugs is already posing a major problem for the foreign ministry. Diplomats are kept busy finding defence lawyers, monitoring trails and making regular health and welfare checks on the young women.

"Their fate is a major embarrassment to the government," said Ramu Annamalai Kandasamy, a human rights lawyer representing many such clients and death-row inmates, told IPS. "The government has to come up with a firm policy on how to help the victims on death-row in far off countries."

Surendran's proposal is for Malaysia to introduce an immediate moratorium on executions. This would lift the threat of execution of foreigners on Malaysian soil. Other countries would be likely to respond in kind.

"Malaysia would get a more sympathetic hearing if it imposed a moratorium. One good turn deserves another," he argues.

"People would understand," he adds, suggesting that the public would agree that a change in policy over the death penalty was the most diplomatically effective way of saving the lives of condemned Malaysians on foreign death-rows.

A moratorium could also help secure the reduction in other harsh sentences imposed on Malaysians by foreign courts, diplomatic sources say. Peru was ready to reduce sentences of up to 20 years imposed on Malaysians in return for the sparing five of its nationals on death-row in Malaysia, they add.

Many opposition politicians would support a moratorium, or even total abolition, if it could save the lives of Malaysians like Lazim.

"These girls made a mistake in their youth. They deserve to live, not to be killed so cruelly. Imagine the pain their loved ones are going through," said opposition lawmaker Teresa Kok.

"If Malaysia abolishes the death sentence it can stand on a higher moral ground and ask foreign countries to spare the hangman's noose.

"It is time Malaysia complied with international standards," she added, citing the U.N. General Assembly resolution last December calling for a moratorium on executions. The resolution urged all states that still maintain the death penalty "to establish a moratorium on executions with a view to abolishing the death penalty".

(END/2008)

 
Umi Azlim's life term a relief for family
Sat, Oct 11, 2008
The Star


PASIR PUTIH, Malaysia: The news that her death sentence had been commuted to a life term helped to mend a rift in the family of Umi Azlim Mohamad Lazim, the Kelantanese girl languishing in a Chinese prison after being found guilty of drug trafficking.

Umi Azlim's father and siblings had been living in sadness since she was caught and sentenced to death last year. To add to their misery, their mother Umi Slaia Ibrahim died of throat cancer in May.

Their father's remarriage in August did not lift their gloom. Instead, it created a rift between him and Umi Azlim's three younger siblings, who preferred to stay with their grandparents.

However, all was forgiven when they received the good news that Umi Azlim's death sentence had been commuted to a life term by the Guangzhou High Court last week.

"I am not the demonstrative type and I never show my emotions in front of my children. But when I told my children about their eldest sister, I cried and they cried too. We then hugged each other.

"We love Kak Long (Umi Azlim's pet name) and as long as she is alive, we still have hope," said a relieved Mohamad Lazim Jusoh at his house in Taman Desa Anda Cherang Tuli here yesterday.

The 52-year-old car mechanic admitted that the news had brought the family closer after the dark times they had been through.

Mohamad Lazim said he was initially sceptical when he received a telephone call from a reporter informing him of the news.

But he was overjoyed when he received confirmation from a state government officer in charge of a fund which was set up to help Umi Azlim fight her case.

"I could not believe the news at first as I thought that the death sentence was final and that my daughter would die there.

"When the officer confirmed the news, I felt like screaming with joy but I remained composed until I got home."

Apart from Umi Azlim, Mohamad Lazim has three other children, twins Umi Azmira and Umi Azuraiha, both 17, and Mohd Azlimuslim, 11.

Mohamad Lazim's only regret was that his late wife was unable to share in the good news.

"She died thinking that her eldest child would be sentenced to death in China.

"My only wish now is to see her. I hope the authorities will help us."

Unlike previous interviews where family members were shy, sad and withdrawn, yesterday they were chatty, upbeat and cheerful.

Umi Azmira described the news as the best Hari Raya gift the family had received.

"We spent a quiet and sad Hari Raya and we badly missed Kak Long and emak (mother). We spent it visiting our mother's grave and we were in no mood to visit our relatives and friends.

"I did not want to visit them as I couldn't face the questions and the looks of sympathy.
"I preferred to stay and study for my examination," said Umi Azmira, who together with her twin sister, will sit the Sijil Pelajaran Malaysia (SPM) soon.

Umi Azlim, a Universiti Malaysia Sabah honours student, was sentenced to death after 2kg of heroin was found in her luggage when she arrived in Shantou last year.

She was believed to have been duped into becoming a drug mule for a syndicate here.

She had been hired by a Kuala Lumpur-based company to market foot massage equipment in China. - AsiaOne News, 11/10/2008, Umi Azlim's life term a relief for family