Monday, October 31, 2011

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?

Friday, October 21, 2011

Minister's Nazri Aziz speech at the abolition of death penalty event - 13/10/2011, KL

Speech by Dato' Seri Nazri Tan Sri Aziz, Minister in Prime Minister's Department, at the Public Seminar on the Abolition of Death Penalty on 13th October 2011 in Kuala Lumpur

Salutations and greetings

Moving ahead for a more humane world  

1.     First of all, I would like to thank the European Union Delegation to Malaysia and Ambassador His Excellency Mr. Vincent Piket for organising this very important public seminar on the abolition of death penalty in Malaysia.

2.     I would also like to acknowledge the presence of the Attorney-General Tan Sri Abdul Ghani Patail and members of his Chamber. Let me also take this opportunity to thank my parliamentary colleagues and members of the civil society whose presence today gives this cause a semblance of bipartisan and society-wide support.

3.     His Excellency Mr. Piket called on me in June 2011 in Parliament House to request for my support for this occasion, to which I immediately and gladly consented, fully aware of the contentions surrounding the death penalty in Malaysia and internationally.

4.     I would like you to forgive me for being upfront and candid that I am NOT giving blanket support for the immediate abolition of death penalty in Malaysia. I am supporting this seminar because of the worthiness of the subject which requires rational consultation with the widest possible audience. It is also time for Malaysia to move ahead and not to take a backseat in the international discourse on human rights.    

Moving ahead
5.     Rethinking about the death penalty is part of the Government's effort to move ahead with the times for a more humane world. Prime Minister Dato' Seri Najib Tun Razak has spoken about Malaysia as a model of moderation on the world stage at the United Nations last year, and the Government is embarking on reviewing outdated laws, such as the Internal Security Act and the various Emergency declarations, and to adopt new laws that comply with human rights principles. Reviewing the death penalty is in line with that direction.    
6.     The forum today is held in conjunction with the World Day Against the Death Penalty on 10th October. The theme for this year's World Day focuses on “The Inhumanity of the Death Penalty”, highlighting the inhumane nature of death penalty from the potential flaws in sentencing to the physical and mental sufferings of inmates awaiting execution on death row.

7.     Therefore, the discussion on the abolition of death penalty is a noble cause and a very timely effort.  

Noble cause
8.     It is noble because, as men and women holding worldly power, our role is not to play god but to ensure that justice prevails in our societies. Our task in government is to find the most humane yet effective ways to uphold justice for our citizens and humankind in general. Taking away the lives of convicted criminals should be the last resort in the rarest instances and not a norm.

9.     Reviewing the death penalty is a timely effort. More than two thirds of the world's countries have abolished the death penalty in law or in practice.

·        97 countries have abolished the death penalty for all crimes;
·        8 countries have abolished the death penalty for all crimes except
extraordinary crimes such as those committed in times of war;
·        34 countries are de facto abolitionists: the death penalty is still provided for in legislation but no executions have been carried out for at least ten years;
·        Hence, effectively, 139 countries have abolished the death penalty de jure or de facto. However, 58 countries and territories still uphold the death penalty but only 23 countries carried out executions in 2010.

10.                         Noting also that the last few decades of "Tough on Crime" thinking, especially in the United States but not exclusively, has not been effective in reducing crime.  The failure of the "Tough on Crime" movement taught us that it is necessary to take a more holistic view about crime and address the root causes of crime and not to just focus on punishment. Further, it is better to err on the caution then to execute an innocent person.

11.                        Towards this end, the Home Ministry has embarked on parole, social service and other alternative punishments. The next logical step is for us to examine the effectiveness of death penalty in curbing crime and ensuring justice for all, including victims of crime and the accused.  

Our agenda  
12.                         As I said earlier, I am not here to give blanket support for the abolition of the death penalty. The Government is committed to reevaluating, rethinking and reviewing the death penalty.  

13.                         In June 2011, the Malaysian Parliament held a roundtable on the death penalty attended by elected representatives, legal luminaries and members of the civil society. It is part of our modest attempt to begin the consultation process.
14.                        In the roundtable, the Attorney-General's Chamber made public for the first time its policy decision not to enact new law that carries the death penalty. The Chamber is also considering whether the death penalty should be abolished entirely or partially. There are also discussions about a middle path approach to remove the mandatory death sentence and return discretion to the judges. 

15.                        The participants of the roundtable passed a resolution calling on the Government to impose moratorium on death penalty while a thorough review is being conducted. The Government is considering all views being presented in the said roundtable as well as today's public seminar.

16.                         In conclusion, I commend the European Union Delegation to Malaysia for its effort in organising this landmark seminar and reiterate the Malaysian Government's commitment to move ahead with time to bring forward a more humane world.

The End

Note:- In his speech, there were additions and elaborations, but the above is essentially the main points that were made. Speech was delivered at Abolition of Death Penalty Event - 13/10/2011, 2pm, KL Convention Centre 

The Attorney General unfortunately did not attend.


EU for the abolition of the death penalty in Malaysia

Public event to Promote the abolition of the death penalty in Malaysia
Kuala Lumpur, 13 October 2011, 3pm-6pm
Kuala Lumpur Convention Centre
Welcoming remarks by H.E. Vincent Piket
Ambassador and Head of Delegation of the EU to Malaysia

Yang Berhormat Dato' Seri Nazri Abdul Aziz, Minister in the Prime Minister's Department
Yang Berhormat Senator Tan Sri Abu Zahar Ujang, President of the Senate
Yang Amat Arif Tan Sri Dato’ Seri Raus Sharif, President of the Court of Appeal
Honourable Dato’ Hashim Yusof, Judge in the Federal Court
Datuk Liew Vui Keong, Deputy Minister in the Prime Minister’s Department
Lord Alf Dubs of the UK House of Lords and Member of the All-Party Parliamentary Group on the Abolition of the Death Penalty
Honorable Justice Nico Tuijn, Vice-President of the Court of Appeals of Den Bosch, the Netherlands
Professor Datuk Dr Khaw Lake Tee, Vice President of the Human Rights Commission of Malaysia
Mr. Tony Woon, Secretary-General of the Malaysian Bar
Excellencies, representatives of the Malaysian government
Excellencies, Ambassadors, High Commissioners and representatives of the diplomatic corps
Distinguished guests from Academia, the law profession, civil society organizations and the general public
Members of the Media

I am pleased to welcome you at this "Public event to promote the abolition of the death penalty in Malaysia". With today's seminar the Delegation of the European Union, the Bar Council and the National Human Rights Commission (SUHAKAM) are marking the International Day against the Death Penalty.

We see this seminar not as an isolated event, but as the start of a campaign. In it we hope to engage with the Malaysian Government, with both houses of Parliament, with the law enforcement bodies and the judiciary, with civil society and with the general public. I am grateful to the Honourable Minister Dato' Seri Nazri Aziz for his support to participate in this debate. I am also grateful for the engagement shown by many members of both sides of parliament, including members of the Malaysia-EU Inter-Parliamentary Caucus.

The European Union holds a strong and principled position against the death penalty. The ban on capital punishment is enshrined in the EU’s founding treaty. Today, none of the 27 EU Member State practises the death penalty. Its abolition is a pre-condition for new Member States to join the European Union.

The abolition of the death penalty worldwide is one of the main objectives of the EU’s human rights policy. Where the death penalty still exists, the EU calls for its use to be progressively restricted and we insist on it being carried out according to minimum standards. The EU uses all its available tools of diplomacy and cooperation to work towards the abolition of the death sentence. In 2011 we have granted EUR 8 million (RM 34 million) to civil society organisations around the world working to that end.

Ladies and Gentlemen,
The number of countries that are abolitionist in law or in practice has gone up over the past decade, rising from 108 in 2001 to 139 now. These countries are located on all continents of the world: Europe, Asia-Pacific, the Americas, and Africa. They include developed countries as well as developing countries. And they include countries with differing majority religions – Islam, Buddhism, Hinduism, and Christianity. From that, I conclude that the abolition of the death penalty is a value that transcends borders: geographic, economic, and spiritual.

At the same time, 58 countries worldwide still have the death penalty. In 2010 23 countries are known to have carried out executions. And, the Asia-Pacific region accounts for the highest number of executions in the world.

However, there are also positive developments in Asia. Cambodia, Hong Kong, Nepal, Philippines and Timor Leste have abolished the death penalty. Mongolia announced a moratorium. Brunei has not carried out an execution since 1957; South Korea since 1997. No execution has ever taken place in Lao PDR. For the second consecutive year, no executions were recorded in Indonesia in 2010. And no executions happened in Thailand in 2010.

Ladies and gentlemen,
Malaysia still has the death penalty. In 2010, there were 114 death sentences. There was one execution reported. And there are 744 persons on death row.

Today I venture the opinion that, while Malaysia is a retentionist country, and while reportedly public opinion favours capital punishment, there is a change of mood and atmosphere. A simple indicator is that the number of death sentences far exceeds the number of executions. In 2010 a large number of death sentences were pardoned or commuted. Influential and high-level personalities have spoken out against the death penalty. The Honourable Minister is among them and I salute him for his courage doing so.
Last June, Parliament set up an informal, bipartisan group to promote abolition. At its inaugural meeting, the bi-partisan group called for a moratorium on the death penalty. Such a move would create some important opportunities. It would make it possible to disprove the thesis that, if you abolish the death penalty, your crime rate goes up. It would give an opening to a review of the penal code, for examining if the crimes now punishable with death are really so serious that they warrant death. It would create space for awareness raising among the public, to show that nonlife penalties that have an equally deterrent and retributive force as does life.

Ladies and Gentlemen,
Each year on 10 October, the world marks the Day against the Death Penalty. Let us stop and think for a minute about the death penalty concretely.
Somewhere in a prison in Malaysia a woman in her early twenties is awaiting trial. This woman, a single mother with a three-year-old child, was naive, irresponsible and plain stupid when agreeing to carry into Malaysia a bag that her new-found boyfriend had given her. The bag turned out to contain an amount of hard drugs.

If found guilty, the young woman deserves to be punished, there is no doubt. But, I am asking those in favour of the death penalty, does the young woman deserve to be executed, as is the mandatory penalty for drug trafficking? Does her child deserve a life burdened with the memory of her dead mother hanging from the gallows? Would those is favour of the death penalty as an abstract notion still be in favour if the young woman was their mother, their child, their sister, their friend? Would they be willing to carry out the execution? And what if, in whatever way, there had been a miscarriage of justice and the young woman was executed innocent?
“Death has no appeal.” Under that motto the three co-organisers of today’s seminar hope to contribute to a public debate involving the government, parliament, law enforcement and the judiciary, academics and civil society and the general public. The abolition of the death penalty will be a challenging, but rewarding process, and it may involve several intermediate steps. It is a sovereign process for Malaysia to pursue, but in this process the EU countries hope to be your partner.

Thank you for your attention.

* This welcoming address was copied from PDF format, and I thank H.E. Vincent Piket for making available a copy of his speech, which is published here as part of our struggle for the abolition of the death penalty here in Malaysia and elsewhere.

Wednesday, October 19, 2011

Why we should put an end to the death penalty (TheSunDaily, 18/10/2011)

Why we should put an end to the death penalty

IT IS truly admirable that Malaysians oppose the inoperable hudud law for its dehumanising forms of punishment, but I am surprised that these same people do not likewise vehemently oppose the death penalty that has existed in our system for so long.

On July 20, 1986, I presented a paper entitled “The Quality and Equality of Mercy” at a Bar Council seminar (subsequently published in Insaf) soon after the hangings of Sim Kie Chon, Barlow and Chambers.

The government’s response to foreign criticism was to point to their double standards and Tun Dr Mahathir Mohamad’s characteristic response was: “I don’t accept all this accusation of being barbaric ... We learnt all this from them (Westerners).”

The deputy home minister at the time was quoted in Time magazine on Aug 5, 1985 as saying: “The problem with the hanging process is that we’ve got to go through the ritual of appeal. That can take two years. I wish the Pardons Board would make faster decisions so that we can start hanging them … We plan to hang a person every week.” The Attorney-General’s Chambers even urged the mass media to “play up executions” as a deterrent. (Malay Mail, Aug 18, 1983).

Every feudal and pre-feudal social system – Chinese, Malay, Indian, Arab or European – has had penal systems involving the grossest cruelty imaginable.

Punishment is an ancient response to wrongdoing. Throughout history, both the forms of punishment and the rationale for using them have changed markedly. Sociological studies have shown that penal systems everywhere are largely based on tradition, untested assumptions and inferences based on inadequate data.

The English penal system is usually cited for obvious reasons. During 18th century England, death was decreed for several hundred specific offences, particularly those against property, including shooting a rabbit, stealing a handkerchief and damaging a public building. From the outset, therefore, the law incorporated class and political considerations.

Comparative studies have shown that historically, the penalty as a judicial punishment has been seen to bear unequally and unjustly on the poor, minorities and oppressed groups in society.

Progressively, the impetus for change was provided by the humanitarian and working class movements. Eighteen century Enlightenment thinkers like Montesquieu and Voltaire provided the philosophical basis for reforms. There soon developed a more humanitarian outlook on crime and punishment and the emergence of humanist values.

A more humanitarian approach led to a concern for rehabilitation of “deviants” based on the personal worth of each human being. Thus, in the modern state and under international human rights standards, the judicial system is intended to protect the individual against the state. The 1948 Universal Declaration of Human Rights prohibits all forms of “cruel, inhuman or degrading treatment or punishment”.

Consequently in 1908, hanging of children less than 16 years of age was abolished in Britain. Today, most countries forbid its use on offenders under 18. Capital punishment for murder offences has been abolished in Britain since 1965. Although the issue has been brought up periodically in the House of Commons, it has always been defeated. Today, most of Europe has abolished the death penalty.

In the US, the death penalty was stopped by the Supreme Court in 1972 but was reintroduced in 1977. By the 1970s, capital punishment had been abolished as a statutory punishment in about one quarter of the world’s nations.

The judicial taking of life has been described as “the most pre-meditated and most diabolical of murders”. It is basically a relic of the primitive drive for revenge and merely passes the responsibility to the judge or jury who are supposed to be acting on our behalf.

Executions dehumanise society and undermine the common values upon which the full and free development of human society is based in all cultures. The value of human life is lessened once a state, in avowing the defence of its citizens, resorts to inhuman and degrading forms of punishment.

Perhaps the most popular misconception is that capital punishment acts as a deterrent to crime for there is little evidence to show this. According to a British Home Office Research Unit study undertaken in the 80s, over the previous decade, the increase in murders in various categories had been insignificant. This was despite the fact there was a war in Northern Ireland.

Another strong argument against capital punishment is that it entails irrevocable miscarriages of justice. In Britain, if the law on hanging had not changed in 1964, at least six men would have been hanged for offences they did not commit. Astro watchers would have seen the film Hurricane about the former US boxer who spent more than 20 years in jail for a murder he did not commit. If he had been hanged soon after his conviction, his death would have been on the nation’s conscience forever.

No legal system is infallible, and miscarriages of justice usually take time to surface.

The vulnerability of all criminal justice systems to discrimination must be taken into account. There are also human factors involved, particularly political expediency, discretion and public opinion especially in the granting of clemency. The decision to disallow the former Communist Party of Malaysia leader Chin Peng from visiting his ancestors’ graves is a clear example of these factors in play.

Worldwide comparative studies undertaken by Amnesty International have further shown that the wealthy, politically well-connected and members of dominant racial and religious groups are far less likely to be sentenced to death than the poor, supporters of the Opposition and members of minority groups.

The Pardons Board is meant to be the last resort for the condemned when the judiciary has decided their fate. Under Article 42 (5) of the Federal Constitution, it comprises the AG, the prime minister or chief minister, and three others appointed by the Ruler or the Yang di-Pertua Negri. The board tenders advice to the Yang di-Pertuan Agong, who acts on it to commute or not to commute the death sentence.

Thus, the board is supposed to be capable of showing that human capacity for mercy or clemency. Former culture minister Mokhtar Hashim was pardoned after he had been convicted of murder. In the case of Sim, Barlows and Chambers, the board exercised its prerogative to refuse clemency on the ground that it was “not justiciable”. The undue haste to execute the three was absolutely unnecessary especially when there were complaints that all legal avenues to save their lives had not been fully exhausted.

The incongruity of the fate of Mokhtar and Sim led to public demands for a review of the criteria by which the A-G recommends commutation of the death sentence. The desirability of the A-G’s presence on the Pardons Board was also questioned as it is the A-G who institutes a prosecution and seeks the death sentence.

It would be fairer for the board to be made up of members seen to be independent and impartial, made up of the widest possible cross-section of society and representative of all classes and ethnic communities. A sizeable majority should be needed if the death sentence is to be upheld.

The case against the death penalty was best summed up by Lord Morris of Borth-y-Gest, a British High Court judge in the sixties: “Can we be sure that the utter and irrevocable finality of the death sentence can always be matched by positive certainty of guilt? In no country, with the fairest system of law, with the most humane and conscientious judiciary do I feel that we can be satisfied of that.”

Dr Kua Kia Soong is a director of human rights organisation Suara Rakyat Malaysia (Suaram). - The Sun Daily, 18/10/2011,

Friday, October 14, 2011

Abolish the death penalty now - Malaysian Bar

Press release: Abolish the death penalty now
Thursday, 13 October 2011 05:23pm  
10 October 2011 marked the World Day Against the Death Penalty.  The trend worldwide has been to abolish the death penalty, as the execution of human beings by the State serves as an “example of barbarity” to society and legitimises the taking of human life.  Malaysia is one of the 32 remaining countries in the world that still provide for the death penalty for drug-related offences.  Out of these 32, 13 have the mandatory death penalty.  Malaysia is one of them.  In all Commonwealth countries except Malaysia and Singapore, the mandatory death penalty has been declared to be a “cruel and unusual punishment.” 

The Malaysian Bar advocates for the abolition of the death penalty in the belief that every individual has an inherent right to life.  This right is absolute, universal and inalienable, irrespective of any crimes that may have been committed.  There is no empirical proof that the death penalty is effective in deterring heinous crime.  In fact, drug-related offences and addiction have been on the rise in Malaysia since the 1983 amendment to the Dangerous Drugs Act 1952, which brought in the mandatory death penalty.

We also know that the vast majority of arrests for drug trafficking is usually of low-ranking “drug mules” who are the most visible and easy to apprehend.  In other words, while policymakers hope that the death penalty serves as a deterrent, the reality is that the majority of these arrests of “minor offenders” would not impact the scale or profitability of the drug market.

It is well-acknowledged that no legal system in the world is foolproof or error-free.  The opportunity to right a wrong is, however, not available if the death sentence on a person has been carried out; in such event we, as a society, will be collectively responsible for having sent an innocent man or woman to the gallows.  We should take no risks to subject a person to death, as the execution of the death sentence is irreversible.

The death penalty has no place in any society that values human rights, justice and mercy.  The Malaysian Bar has organised today’s public forum, together with the European Union Delegation to Malaysia and the Malaysian Human Rights Commission (SUHAKAM), to hear the diverse views on this highly critical matter.  Two of our Members have also produced a short documentary focusing on the death penalty.  It is our sincere hope that the proceedings of this public forum as well as the documentary will further contribute to the debate on this issue in Malaysia. 

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

Lim Chee Wee
Malaysian Bar

13 October 2011