My son executed - then they said they made a mistake

"My son was killed for a crime he did not commit…. our family has lived in shame and neighbours never spoke to us. Whatever apology or compensation the government promises, it is too late.”- Wang Tsai-lien, mother of Chiang Kuo-ching who was coerced into making a confession and subsequently executed in error in 1997 in Taiwan.1

In January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously. The authorities acknowledged that his statement “confessing” to the crime had been made as a result of torture and that his conviction had been rushed through a military court. The court had ignored his allegations of torture and his pleas of innocence. In September 2011, a military court formally acquitted Chiang Kuo-ching and a month later Taiwan's Ministry of Defence announced it will pay US$3.4m in compensation to Chiang Kuo-ching’s relatives.3

Chiang Kuo-ching is not an isolated case. Across the region, as elsewhere in the world, people are sentenced to death after proceedings which fail to meet international standards of fair trial

“The law is the law but I wish Parliament would abolish the death sentence because if a mistake is made, it would be irreversible. There are other ways of dealing with heinous crimes.” - Former High Court and Court of Appeal Judge Datuk K.C. Vohrah, Malaysia.2

More people are executed in the Asia-Pacific region than in the rest of the world combined. Add to this the probability that they were executed following an unfair trial, and the gross injustice of this punishment becomes all too clear.

Failures of justice in trials which result in an execution cannot be rectified. In the Asia-Pacific region, where 95 per cent of the population live in countries that retain and use the death penalty, there is a real danger of the state executing someone in error following an unfair trial.

Source: ADPAN Report - When Justice Fails = Thousands Executed In Asia After Unfair Trial

GO SIGN ON-LINE PETITION calling on Malaysia to abolish Death Penalty

GO SIGN ON-LINE PETITION calling on Malaysia to abolish Death Penalty

 

Media Statement – 3/11/2012

Call for the Abolition of the Death Penalty in Malaysia

 

We, the undersigned 79 groups and organisations welcome Malaysia’s move towards the abolition of the mandatory death penalty for drug offences, and replacing it with jail terms. 

 

Recently, the Minister in the Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.(Star,21/10/2012, Death penalty may be scrapped for drug offences). He also said he will be moving the Malaysian Cabinet to defer the death sentences passed on 675 convicted drug traffickers in the country, while the government reviews the death penalty for drug offences. (The Straits Times, 25/10/2012, Death knell for death penalty in Malaysia?) This follows the statement in July 2012, when Attorney-General Tan Sri Abdul Gani Patail said that his Chambers was working towards proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion of not imposing death sentences on couriers(Malay Mail, 12/7/2012, M’sia mulls scrapping death penalty for drug couriers). In its 2009 Universal Periodic Review report to the United Nations Human Rights Council, Malaysia also did  declare that it was proposing to amend "existing anti-drug trafficking legislation to reduce the maximum sentence to life imprisonment" from the currently practised mandatory death.

 

Most of the 675 persons on death row for drug trafficking today are "drug mules", some of whom may have even been conned. Drug kingpins are rarely caught. In Malaysia, persons caught with a certain weight of drugs are presumed to be drug traffickers, and the onerous burden of rebutting this presumption shifts to the accused person. This goes against the norm in the criminal justice system, where the burden of proving beyond a reasonable doubt that a person is guilty is on the prosecution. There are also close to 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China and Singapore, and Malaysia’s plea for clemency is inconsistent if  it retains the death penalty.

 

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

69%(or 479) of the 696  waiting for execution of their death sentences in Malaysian prisons as on Feb 22, 2011, were for drug offences. Today, there are about 900 on death row.

 

No legal system in the world is foolproof or error-free. There have been many examples of cases of miscarriage of justice, where innocent persons have been incarcerated for many years, or even sentenced to death. The opportunity to right a wrong is, however, not available since death is irreversible.

 

SUHAKAM (Malaysian Human Rights Commission) has also called on Malaysia to join  the  other   140   UN member   states   to completely   abolish  the  death   penalty. The United  Nations   General    Assembly   have also adopted  Resolutions  in  2007, 2008  and 2010  calling  for a moratorium on executions, with a view to eventually abolishing the death penalty.

 

Malaysia has begun commuting death sentence, whereby 5 Filipinos on death row had their sentenced commuted to prison terms earlier this year.

 

We call for the abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row;

 

We also call on Malaysia to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

 

Charles Hector

For and on behalf of the 79 groups/organisations listed below

 

ALIRAN (Aliran Kesedaran Negara), Malaysia

Aksi  - For Gender, Social And Ecological Justice, Indonesia.

Amnesty International Malaysia

Amnesty International Philippines

Amnesty International Thailand

Anti-Death Penalty Asia Network (ADPAN)

Advocacy and Policy Institute (API), Cambodia

Arus Pelangi, Indonesia

Asia Indigenous Peoples Pact, Thailand

Cambodian Defenders Project (CDP)

Cambodian Human Rights Action Committee (CHRAC)

Cambodian Human Rights and Development Association (ADHOC)

Cambodian Volunteers for Society (CVS)

Catholic Lawyers Society, Malaysia

Center for Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University, Surabaya

Center for Human Rights of Islamic University of Indonesia

Center for Indonesian Migrant Workers(CIMW)

Civil Rights Committee KLSCAH (KL & Selangor Chinese Assembly Hall), Malaysia

Civil Society Committee of LLG Cultural Development Centre, Malaysia

Community Action Network (CAN), Malaysia

FORLITAN (Forum Perlindungan Pertanahan), Indonesia

Foundation for Women

Garment and Allied Workers Union, India

Housing Rights Task Force, Cambodia

Human Rights Ambassador for Salem-News.com

Human Rights Working Group (HRWG) Indonesia

IMPARSIAL - The Indonesian Human Rights Monitor

IMA Research Foundation, Bangladesh

Indonesian Coalition for Drug Policy Reform (ICDPR) 

Indonesia for Humans

Jakarta Legal Aid Institute (LBH Jakarta)

Jaringan Rakyat Tertindas (JERIT), Malaysia

Kesatuan Pekerja Pekerja Polyplastics Asia Pacific (KPPAP), Malaysia

KIARA (The People's Coalition for Fisheries Justice) / Indonesia

Knights for Peace International

Lawyers for Liberty, Malaysia

LSPP (Institute For Press And Devolepment) Indonesia

MADPET (Malaysians Against Death Penalty and Torture)

Malaysians for Beng Hock

Migrant CARE -Indonesia

Migrant CARE – Malaysia

Migrante International

NAMM (Network of Action for Migrants in Malaysia)

National League for Democracy (Liberated Area) Malaysia

Parti Rakyat Malaysia (PRM)

People's Union for Civil Liberties (PUCL),  India

PERGERAKAN INDONESIA

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS), Malaysia

Persatuan Sahabat Wanita Selangor (PSWS), Malaysia

PINAY (The Filipino Women's Organization in Quebec), Canada

Pusat Komunikasi Masyarakat (Komas), Malaysia

Save Vui Kong Campaign, Malaysia

Saya Anak Bangsa Malaysia [SABM]

Sedane Labour Resouce Centre/Lembaga Informasi Perburuhan Sedane (LIPS), Indonesia

Seksualiti Merdeka, Malaysia

Singapore Anti Death Penalty Campaign (SADPC)

Solidaritas Perempuan - Indonesia

SUARAM, Malaysia

Serikat Buruh Migran Indonesia (SBMI)

Sibuyan Island Sentinels League for Environment Inc. (Sibuyan ISLE)

Tenaganita, Malaysia

Thai Committee for Refugees Foundation (TCR)

Think Centre, Singapore

Quê Me: Action for Democracy in Vietnam

Vietnam Committee on Human Rights

WAC (Workers Assistance Center), Philippines

We believe in Second Chances, Singapore

WH4C (Workers Hub For Change)

Women's Aid Organisation (WAO)

Woman Health Philippines

Writers Alliance for Media Independence (WAMI), Malaysia

Yayasan Lintas Nusa - Batam, Indonesia

New Endorsers:

Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Cambodia

Free Legal Assistance Group, National Capital Region, Philippines(FLAG)

Hong Kong Joint Committee for the Abolition of the Death Penalty

Women's Aid Organisation (WAO), Malaysia

Women's Centre for Change, Malaysia

 Malaysian Physicians for Social Responsibility(MPSR)

Singapore amendments opens crack to avoid the mandatory death penalty

Death penalty changes spark impassioned debate

Sixteen MPs rise to speak in three-hour debate on changes to Misuse of Drugs Act

by Ng Jing Yng

Updated 12:36 PM Nov 14, 2012

SINGAPORE - As Parliament yesterday began debate over the proposed changes to the mandatory death penalty for drug traffickers, some Members of Parliament questioned the regime's effectiveness, calling for evidence on how it has deterred drug crimes.

Others made impassioned speeches on the value of a human life to argue against the imposition of hanging for any offences, even as some related first-hand encounters with families and lives ruined by drugs and questioned whether Singapore could be wrongly seen as going soft on drugs - at a time when the drug menace is getting worse.

During the three-hour debate, 16 MPs rose to speak on the contentious topic, with more set to do so when Parliament reconvenes tomorrow.

In the Bill tabled to amend the Misuse of Drugs Act, the death penalty will not be automatic for convicted drug traffickers when two "specific, tightly-defined conditions" are both met.

First, the trafficker must have only played the role of courier and must not have been involved in any other activity related to the supply or distribution of drugs. Second, he must either suffer from a mental disability which substantially impairs his appreciation of the gravity of the act, or he has cooperated with the Central Narcotics Bureau (CNB) in a "substantive" way.

Judges can order life imprisonment with at least 15 strokes of the cane, instead of death, for traffickers who meet both requirements.

Speaking at the second reading of the Bill, Deputy Prime Minister and Home Affairs Minister Teo Chee Hean warned about the worsening drug situation in the region. In 2009 and 2010, 61 laboratories were seized in Indonesia, and 27 in Malaysia. As recently as June this year, Malaysian authorities discovered a factory half an hour away from the Second Link producing methamphetamine. About RM$10 million (S$4 million) worth of methamphetamine and "Ecstasy" tablets were seized, Mr Teo said.

Under the new laws, offenders who provide drugs to anyone below age 21 will face stiffer penalties, as will those who recruit the young or vulnerable into drug trafficking. Anyone organising drug parties - as compared to just the host, under current laws - will also be jailed at least three years and might be caned. Mr Teo said that the new regime will "send a strong deterrent message and enhance operational effectiveness of our enforcement agencies".

Noting that the mandatory death penalty will continue to apply in most drug trafficking cases, Mr Teo said: "We have long taken a 'zero-tolerance' approach against the drug menace. The amendments... will strengthen our ability to do so in our new operating environment and allow us to continue doing all we can to keep our streets safe and to protect our children from the scourge of drugs."

Still, MPs such as Mr Edwin Tong (Moulmein-Kallang GRC) and Mr Liang Eng Hwa (Holland- Bukit Timah GRC) felt that the changes could send the wrong signal that the Government is softening its stance. Said Mr Tong: "My concern... is that our present amendments do not inadvertently send a message or it is misconstrued that Singapore has had a fundamental re-think on our strict anti-drug philosophy."

Holland-Bukit TImah GRC MP Christopher de Souza also stressed the need for tough anti-drug laws. "Let us not forget who the victim here is - it is not the trafficker; it is society, it is the many families broken by drug addiction," said Mr de Souza. "We should have compassion for this brokenness too. The way to do so is to maintain immensely strong and muscular measures to deter drug traffickers from targeting Singapore."

At the other end of the spectrum was Nominated MP Laurence Lien, who reminded the House that "every human life is precious".

He said: "It is not just about our criminal justice system, which we also want to be proportionate and restorative; it also about the type of society that we want to build - a society that values every person and every human life, and one that doesn't give up on its people."

Taking a stand against the death penalty, fellow NMPs Eugene Tan and Faizal Jamal also pointed out the lack of casaul evidence between a mandatory death penalty regime and low drug crime rates.

In the same vein, Workers' Party chairman Sylvia Lim asked if the Government has relied on any studies or data to conclude if the death penalty has indeed deterred crimes and drug trafficking.

Nevertheless, both Ms Lim and fellow WP MP Pritam Singh supported the Bill. Said Mr Singh: "The amendments proposed by the Government are a step in the right direction insofar as it loosens the application of the mandatory death penalty under two specific conditions. However, this move also represents a missed opportunity to remove the mandatory death penalty from our statute books completely."- Today Online, 14/11/2012, Death penalty changes spark impassioned debate

79 Call for the Abolition of the Death Penalty in Malaysia

Media Statement – 3/11/2012

Call for the Abolition of the Death Penalty in Malaysia

We, the undersigned 79 groups and organisations welcome Malaysia’s move towards the abolition of the mandatory death penalty for drug offences, and replacing it with jail terms. 

Recently, the Minister in the Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.(Star,21/10/2012, Death penalty may be scrapped for drug offences). He also said he will be moving the Malaysian Cabinet to defer the death sentences passed on 675 convicted drug traffickers in the country, while the government reviews the death penalty for drug offences. (The Straits Times, 25/10/2012, Death knell for death penalty in Malaysia?) This follows the statement in July 2012, when Attorney-General Tan Sri Abdul Gani Patail said that his Chambers was working towards proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion of not imposing death sentences on couriers(Malay Mail, 12/7/2012, M’sia mulls scrapping death penalty for drug couriers). In its 2009 Universal Periodic Review report to the United Nations Human Rights Council, Malaysia also did  declare that it was proposing to amend "existing anti-drug trafficking legislation to reduce the maximum sentence to life imprisonment" from the currently practised mandatory death.

Most of the 675 persons on death row for drug trafficking today are "drug mules", some of whom may have even been conned. Drug kingpins are rarely caught. In Malaysia, persons caught with a certain weight of drugs are presumed to be drug traffickers, and the onerous burden of rebutting this presumption shifts to the accused person. This goes against the norm in the criminal justice system, where the burden of proving beyond a reasonable doubt that a person is guilty is on the prosecution. There are also close to 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China and Singapore, and Malaysia’s plea for clemency is inconsistent if  it retains the death penalty.

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

69%(or 479) of the 696  waiting for execution of their death sentences in Malaysian prisons as on Feb 22, 2011, were for drug offences. Today, there are about 900 on death row.

No legal system in the world is foolproof or error-free. There have been many examples of cases of miscarriage of justice, where innocent persons have been incarcerated for many years, or even sentenced to death. The opportunity to right a wrong is, however, not available since death is irreversible.

SUHAKAM (Malaysian Human Rights Commission) has also called on Malaysia to join  the  other   140   UN member   states   to completely   abolish  the  death   penalty. The United  Nations   General    Assembly   have also adopted  Resolutions  in  2007, 2008  and 2010  calling  for a moratorium on executions, with a view to eventually abolishing the death penalty.

Malaysia has begun commuting death sentence, whereby 5 Filipinos on death row had their sentenced commuted to prison terms earlier this year.

We call for the abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row;

We also call on Malaysia to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

Charles Hector

For and on behalf of the 79 groups/organisations listed below

ALIRAN (Aliran Kesedaran Negara), Malaysia

Aksi  - For Gender, Social And Ecological Justice, Indonesia.

Amnesty International Malaysia

Amnesty International Philippines

Amnesty International Thailand

Anti-Death Penalty Asia Network (ADPAN)

Advocacy and Policy Institute (API), Cambodia

Arus Pelangi, Indonesia

Asia Indigenous Peoples Pact, Thailand

Cambodian Defenders Project (CDP)

Cambodian Human Rights Action Committee (CHRAC)

Cambodian Human Rights and Development Association (ADHOC)

Cambodian Volunteers for Society (CVS)

Catholic Lawyers Society, Malaysia

Center for Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University, Surabaya

Center for Human Rights of Islamic University of Indonesia

Center for Indonesian Migrant Workers(CIMW)

Civil Rights Committee KLSCAH (KL & Selangor Chinese Assembly Hall), Malaysia

Civil Society Committee of LLG Cultural Development Centre, Malaysia

Community Action Network (CAN), Malaysia

FORLITAN (Forum Perlindungan Pertanahan), Indonesia

Foundation for Women

Garment and Allied Workers Union, India

Housing Rights Task Force, Cambodia

Human Rights Ambassador for Salem-News.com

Human Rights Working Group (HRWG) Indonesia

IMPARSIAL - The Indonesian Human Rights Monitor

IMA Research Foundation, Bangladesh

Indonesian Coalition for Drug Policy Reform (ICDPR) 

Indonesia for Humans

Jakarta Legal Aid Institute (LBH Jakarta)

Jaringan Rakyat Tertindas (JERIT), Malaysia

Kesatuan Pekerja Pekerja Polyplastics Asia Pacific (KPPAP), Malaysia

KIARA (The People's Coalition for Fisheries Justice) / Indonesia

Knights for Peace International

Lawyers for Liberty, Malaysia

LSPP (Institute For Press And Devolepment) Indonesia

MADPET (Malaysians Against Death Penalty and Torture)

Malaysians for Beng Hock

Migrant CARE -Indonesia

Migrant CARE – Malaysia

Migrante International

NAMM (Network of Action for Migrants in Malaysia)

National League for Democracy (Liberated Area) Malaysia

Parti Rakyat Malaysia (PRM)

People's Union for Civil Liberties (PUCL),  India

PERGERAKAN INDONESIA

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS), Malaysia

Persatuan Sahabat Wanita Selangor (PSWS), Malaysia

PINAY (The Filipino Women's Organization in Quebec), Canada

Pusat Komunikasi Masyarakat (Komas), Malaysia

Save Vui Kong Campaign, Malaysia

Saya Anak Bangsa Malaysia [SABM]

Sedane Labour Resouce Centre/Lembaga Informasi Perburuhan Sedane (LIPS), Indonesia

Seksualiti Merdeka, Malaysia

Singapore Anti Death Penalty Campaign (SADPC)

Solidaritas Perempuan - Indonesia

SUARAM, Malaysia

Serikat Buruh Migran Indonesia (SBMI)

Sibuyan Island Sentinels League for Environment Inc. (Sibuyan ISLE)

Tenaganita, Malaysia

Thai Committee for Refugees Foundation (TCR)

Think Centre, Singapore

Quê Me: Action for Democracy in Vietnam

Vietnam Committee on Human Rights

WAC (Workers Assistance Center), Philippines

We believe in Second Chances, Singapore

WH4C (Workers Hub For Change)

Women's Aid Organisation (WAO)

Woman Health Philippines

Writers Alliance for Media Independence (WAMI), Malaysia

Yayasan Lintas Nusa - Batam, Indonesia

New Endorsers:

Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Cambodia

Free Legal Assistance Group, National Capital Region, Philippines(FLAG)

Hong Kong Joint Committee for the Abolition of the Death Penalty

Women's Aid Organisation (WAO), Malaysia

Women's Centre for Change, Malaysia

 Malaysian Physicians for Social Responsibility(MPSR)

* This joint statement was also sent to the Prime Minister, de facto Law Minister and the Human Rights Commission, seeking also a response from them to the said statement. Any responses received shall be forwarded to all.

A deeper impact beyond the gallows (NST-Column)

 A deeper impact beyond the gallows

By DATUK SRI DR MUHAMMAD SHAFEE ABDULLAH

DRUG CASES: Removing death penalty could lead to reduction in corruption

There is global pressure on countries that practise the capital and corporal punishment system

THE law minister, however, had advanced an ingenious reason for the abolition of a mandatory death sentence . He said it would be difficult for Malaysia to ask for assistance from foreign countries to treat Malaysians sentenced to death leniently for drug offences if we continue to have capital punishment.  But that argument surely bites more if the minister is arguing for a total abolition of  the death penalty rather than merely the abolition of the mandatory death sentence.

What would the minister do if a Malaysian court handed down a death sentence on a foreigner in a non-mandatory death sentence in a drug-related case? We cannot be resorting to the Pardons Board merely to please a foreign government as this would be offensive to the equality concept provided under the Constitution if Malaysian convicts are treated more harshly over foreigners in matters that are not substantively distinguishable on the factual matrix.

It is, therefore, better to use the minister's argument to justify total abolition of capital punishment in drug-trafficking cases.

But consider seriously the following non-traditional reasons supporting the abolition of capital punishment:

FIRSTLY, in matters of extradition (governed under the Extradition Act 1992 ) and/or mutual assistance [governed under the Mutual Assistance in Criminal Matters Act 2002 (MACMA)] if the Malaysian government (as a requesting country) were to make requisition either of persons (in an extradition situation) or evidence as under the MACMA), the requested countries in most situations would require Malaysia to give an undertaking that our laws do not have either capital or corporal punishment (the latter refers to  caning or rotan) in respect of the relevant offence/subject matter of the extradition or mutual assistance, otherwise, the requested country will not entertain the Malaysian request. This is the global pressure most countries (especially European countries) are exerting on countries with the capital and corporal punishments system;

SECONDLY, and perhaps this is the most important reason, namely, every country practising the capital punishment inevitably faces the problem of double jeopardy unfairly and adversely affecting the condemned prisoner. Due to our criminal justice system, a trial with  at least two levels of appeal rights would inevitably incur a minimum period of about six years. Added to this is the further delay of the pardons system. It is usual even in the speediest system that a delay will occur of between seven to eight years. Normally, the delay is about nine years or more.

Translating this remand period prior to execution is equivalent to the condemned man having undergone 13.5 years of imprisonment (taking into consideration the automatic one-third remission on all imprisonment sentences). What this means is that the condemned man is to be executed by hanging after he had served an imprisonment of at least 13.5 years while waiting to be executed. This is what I mean by double jeopardy, suffering two punishments for a single crime.

But this is the rosiest picture I have painted on double jeopardy on the condemned persons. It is not unheard of for condemned men to be waiting in actual terms, without considering the one-third remission for periods in excess of 16 years and above. Some waited for 20, 25 and some even for 38 years! Think about this. It is no longer double jeopardy. It is triple jeopardy when we consider a normal life imprisonment is only 20 years (and the prisoner serves only 14 years after remission in such life imprisonment cases).

Are we seriously disputing this gross injustice and lack of basic human rights and dignity on these condemned persons, and what kind of society are we living in?

Many political leaders (government and opposition alike) do not want to take the lead in this call for reform for fear of being unpopular and would often blame the general public as wanting to retain this unjust capital punishment system. - New Straits Times, 2/11/2012, Columnist , A deeper impact beyond the gallows

It's time to end the death penalty (NST - Columnist)

It's time to end the death penalty

By Datuk Sri Dr Muhammad Shafee Abdullah

ABOLITION OF CAPITAL PUNISHMENT: Malaysia should rethink holistically and practically and take the lead and be the proponent in Asean countries to implement this

Anti-death penalty campaigners staging a demonstration in Los Angeles. Even in other countries, people are protesting against the death penalty. AFP pic

THE death penalty is prescribed for several offences, ie murder and waging war against the King (offences under the Penal Code), kidnapping for ransom (an offence under The Kidnapping Act 1960 as opposed to simple kidnapping under the Penal Code), drug trafficking (offences under the Dangerous Drugs Act  1952 and other related drug statutes),  certain scheduled offences for activities in relation to possession of firearms and ammunition or explosives [offences under the Firearms (Increased Penalties) Act 1971(FIPA)] and under the Internal Security Act  1960 (ISA) the latter of which was repealed recently.

Most of the death penalties are mandatory upon finding of guilt. This means the trial judge has no discretion in sentencing to consider a range of possible sentences such as life imprisonment or a prescribed jail sentence which could run up to the maximum sentence, being the death penalty, which of those is most suited to be handed down on a convicted person after considering the myriad circumstances in relation to the commission of the offence and/or the offender.

The Malaysian legislature used to entrust judges with this important discretionary function. For instance, we used to give this sort of discretion to the High Court judges in drug trafficking matters. But a previous attorney-general was frustrated with the fact that judges were opting to sentence certain drug trafficking convicted offenders to life imprisonment rather than mete out the death penalty.

Those judges had good reasons in most cases for opting out of the death penalty. In any case, if the judges were wrong there was always the appellate process which the prosecution could resort to press their point for the capital sentence.

But immaturity and myopic considerations seemed to have prevailed then. We have been stuck with this knee-jerk culture of our legislature, a legislature that is not well advised by the parliamentary draftsman and other relevant authorities. As a result amendments made were jaundiced and lack cohesion with the general scheme of the system.

Back in 2008 or so, the secretary-general of the Foreign Affairs Ministry, in an important speech at the United Nations said that the Malaysian government was considering steps to abolish the death penalty. It would be done incrementally. I would have thought that the first step was to return the discretionary power to the judges on all offences, especially drug trafficking cases.

Singapore has just amended its law to reflect this on drug trafficking cases and a category of murder cases only and they apparently wanted to coordinate that important move for change with Malaysia. As always, we allowed Singapore to steal the thunder from us when we did nothing to implement that idea for the change although the Attorney-General's Chambers claimed they had been toying with some connected ideas and research about a year earlier.

Singapore now seems to have a slightly more liberal and just sentencing principle in drug trafficking cases than us! What an irony! My colleague, senior lawyer Roger Tan made this point in his recent article.

Malaysia should rethink holistically and practically the whole debate on the abolition of the capital punishment and not merely on abolishment of the mandatory death penalty  and take the lead and be the proponent in Asean countries to implement this actively.

As a Malaysian representative in the Asean Intergovernmental Commission on Human Rights, (AICHR), I have mooted this idea on several occasions among my colleagues in AICHR for all the 10-member Asean countries to consider.

Not so long ago, the de facto law minister had said Malaysia might not be ready to abolish capital punishment.

Apparently, according to him, the majority of Malaysians are against such abolishment. Of late the minister is proposing the idea of abolition of the mandatory death sentence in drug trafficking cases.

This is the exact idea of the current law in Singapore. Yet in our country, we take  a longer time to consider this obvious reform when we could have taken the lead.

Tan Sri Lee Lam Thye recently gave a dampening view  and advocated against abolition of the death penalty. I have several issues with Lee's observations.

Firstly, and with all due respect,  I think that  he may have misunderstood  the    minister. He was not talking about abolition of the capital punishment altogether. He was only referring to removing the law on mandatory capital punishment and even then it was restricted to drug offences only.  While I support the idea of immediately removing the mandatory capital punishment in drug cases, I am proposing that this should be merely a beginning of the migration of our laws towards the incremental and eventual total abolition of the death penalty. I propose we consider the following steps.

As a preliminary step, an immediate moratorium is  granted in respect of all cases pending executions until a wholesome decision has been arrived at by the relevant authorities to be followed with the following measures:

FIRST,  remove the mandatory death sentence on drug trafficking cases;

SECOND, within a year of the above,  remove mandatory death sentence on all crimes without exception;

THIRD, Within three years from the first step above,  abolish capital punishment altogether in all cases except for waging war against the King and kidnapping for ransom; and,

FOURTH, at an appropriate time after the three years from the first step (but no longer than five years) capital punishment should be removed even in the two offences of waging war against the King and kidnapping for ransom. In other words , at the end of the third  year  from the first step, only  two types of cases continue to attract the death penalty but on a non-mandatory status until further liberalisation as suggested above.

The reason I attribute seriousness to the two categories of cases is solely on grounds of public revulsion and public policy and the heinous nature and the presence of the element of extreme cruelty potentially surrounding the circumstances of such crimes. These two crimes are normally executed in the coldest, calculated and planned methods and have intimate nexus to violence.

 It is almost always carried out by gangs and syndicates normally associated with organised crimes or subversive elements. Crimes associated with drug trafficking range from syndicated organised crimes to mere individual carriers or mules and are solely driven for profit.

The lack of distinction between "hard" and "soft" drugs and between true traffickers and mere mules' in the Malaysian law, doubles the complications in sentencing.

Reasons for abolition of capital sentence. Among the common reasons advanced for the abolition of capital punishment are:

IT is a cruel and inhumane punishment;

IT is irreversible if a wrong conviction occurs;

IT is contrary to human rights by world standards;

THE retribution theory or "an eye for an eye" is  no longer an acceptable theory in sentencing principles; and,

THE death penalty does not reduce  specific crimes such as drug offences, murder etc.

All the above reasons are sound and reasonable.

The writer is a  former commissioner of  Suhakam and currently the sole Malaysian representative to the Asean Intergovernmental Commission on Human Rights. The views he expressed herein are personal and not that of the institutions he is associated with

The second part of the article will appear in tomorrow's NST  - New Straits Times, Columnist, 1/11/2012, It's time to end the death penalty

78 Groups Call for the Abolition of the Death Penalty in Malaysia

Media Statement – 3/11/2012

Call for the Abolition of the Death Penalty in Malaysia

We, the undersigned 78 groups and organisations welcome Malaysia’s move towards the abolition of the mandatory death penalty for drug offences, and replacing it with jail terms. 

Recently, the Minister in the Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.(Star,21/10/2012, Death penalty may be scrapped for drug offences). He also said he will be moving the Malaysian Cabinet to defer the death sentences passed on 675 convicted drug traffickers in the country, while the government reviews the death penalty for drug offences. (The Straits Times, 25/10/2012, Death knell for death penalty in Malaysia?) This follows the statement in July 2012, when Attorney-General Tan Sri Abdul Gani Patail said that his Chambers was working towards proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion of not imposing death sentences on couriers(Malay Mail, 12/7/2012, M’sia mulls scrapping death penalty for drug couriers). In its 2009 Universal Periodic Review report to the United Nations Human Rights Council, Malaysia also did  declare that it was proposing to amend "existing anti-drug trafficking legislation to reduce the maximum sentence to life imprisonment" from the currently practised mandatory death.

Most of the 675 persons on death row for drug trafficking today are "drug mules", some of whom may have even been conned. Drug kingpins are rarely caught. In Malaysia, persons caught with a certain weight of drugs are presumed to be drug traffickers, and the onerous burden of rebutting this presumption shifts to the accused person. This goes against the norm in the criminal justice system, where the burden of proving beyond a reasonable doubt that a person is guilty is on the prosecution. There are also close to 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China and Singapore, and Malaysia’s plea for clemency is inconsistent if  it retains the death penalty.

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

69%(or 479) of the 696  waiting for execution of their death sentences in Malaysian prisons as on Feb 22, 2011, were for drug offences. Today, there are about 900 on death row.

No legal system in the world is foolproof or error-free. There have been many examples of cases of miscarriage of justice, where innocent persons have been incarcerated for many years, or even sentenced to death. The opportunity to right a wrong is, however, not available since death is irreversible.

SUHAKAM (Malaysian Human Rights Commission) has also called on Malaysia to join  the  other   140   UN member   states   to completely   abolish  the  death   penalty. The United  Nations   General    Assembly   have also adopted  Resolutions  in  2007, 2008  and 2010  calling  for a moratorium on executions, with a view to eventually abolishing the death penalty.

Malaysia has begun commuting death sentence, whereby 5 Filipinos on death row had their sentenced commuted to prison terms earlier this year.

We call for the abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row;

We also call on Malaysia to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

Charles Hector

For and on behalf of the 78 groups/organisations listed below

ALIRAN (Aliran Kesedaran Negara), Malaysia

Aksi  - For Gender, Social And Ecological Justice, Indonesia.

Amnesty International Malaysia

Amnesty International Philippines

Amnesty International Thailand

Anti-Death Penalty Asia Network (ADPAN)

Advocacy and Policy Institute (API), Cambodia

Arus Pelangi, Indonesia

Asia Indigenous Peoples Pact, Thailand

Cambodian Defenders Project (CDP)

Cambodian Human Rights Action Committee (CHRAC)

Cambodian Human Rights and Development Association (ADHOC)

Cambodian Volunteers for Society (CVS)

Catholic Lawyers Society, Malaysia

Center for Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University, Surabaya

Center for Human Rights of Islamic University of Indonesia

Center for Indonesian Migrant Workers(CIMW)

Civil Rights Committee KLSCAH (KL & Selangor Chinese Assembly Hall), Malaysia

Civil Society Committee of LLG Cultural Development Centre, Malaysia

Community Action Network (CAN), Malaysia

FORLITAN (Forum Perlindungan Pertanahan), Indonesia

Foundation for Women

Garment and Allied Workers Union, India

Housing Rights Task Force, Cambodia

Human Rights Ambassador for Salem-News.com

Human Rights Working Group (HRWG) Indonesia

IMPARSIAL - The Indonesian Human Rights Monitor

IMA Research Foundation, Bangladesh

Indonesian Coalition for Drug Policy Reform (ICDPR) 

Indonesia for Humans

Jakarta Legal Aid Institute (LBH Jakarta)

Jaringan Rakyat Tertindas (JERIT), Malaysia

Kesatuan Pekerja Pekerja Polyplastics Asia Pacific (KPPAP), Malaysia

KIARA (The People's Coalition for Fisheries Justice) / Indonesia

Knights for Peace International

Lawyers for Liberty, Malaysia

LSPP (Institute For Press And Devolepment) Indonesia

MADPET (Malaysians Against Death Penalty and Torture)

Malaysians for Beng Hock

Migrant CARE -Indonesia

Migrant CARE – Malaysia

Migrante International

NAMM (Network of Action for Migrants in Malaysia)

National League for Democracy (Liberated Area) Malaysia

Parti Rakyat Malaysia (PRM)

People's Union for Civil Liberties (PUCL),  India

PERGERAKAN INDONESIA

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS), Malaysia

Persatuan Sahabat Wanita Selangor (PSWS), Malaysia

PINAY (The Filipino Women's Organization in Quebec), Canada

Pusat Komunikasi Masyarakat (Komas), Malaysia

Save Vui Kong Campaign, Malaysia

Saya Anak Bangsa Malaysia [SABM]

Sedane Labour Resouce Centre/Lembaga Informasi Perburuhan Sedane (LIPS), Indonesia

Seksualiti Merdeka, Malaysia

Singapore Anti Death Penalty Campaign (SADPC)

Solidaritas Perempuan - Indonesia

SUARAM, Malaysia

Serikat Buruh Migran Indonesia (SBMI)

Sibuyan Island Sentinels League for Environment Inc. (Sibuyan ISLE)

Tenaganita, Malaysia

Thai Committee for Refugees Foundation (TCR)

Think Centre, Singapore

Quê Me: Action for Democracy in Vietnam

Vietnam Committee on Human Rights

WAC (Workers Assistance Center), Philippines

We believe in Second Chances, Singapore

WH4C (Workers Hub For Change)

Women's Aid Organisation (WAO)

Woman Health Philippines

Writers Alliance for Media Independence (WAMI), Malaysia

Yayasan Lintas Nusa - Batam, Indonesia

New Endorsers:

Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Cambodia

Free Legal Assistance Group, National Capital Region, Philippines(FLAG)

Hong Kong Joint Committee for the Abolition of the Death Penalty

Women's Aid Organisation (WAO), Malaysia

Women's Centre for Change, Malaysia

SUARAM URGENT APPEAL: RELEASE AHMAD ABDUL JALIL IMMEDIATELY

6 NOVEMBER 2012

 

URGENT APPEAL: RELEASE AHMAD ABDUL JALIL IMMEDIATELY

SUARAM refers to one Ahmad Abdul Jalil, 27, was arrested on 2nd November 2012 for allegedly posted a defamatory statement on Sultan of Johor. He has been remanded for 3 days at Johor Bahru and on 5th November 2012,  the police's application to extend the remand period was rejected by the Johor Bahru Magistrate who has stated that the act of transferring Ahmad from Kuala Lumpur to Johor was unreasonable and there were no statements taken from Ahmad while he was remanded for the past 3 days.

Ahmad's family members were not allowed to see him since 2nd November 2012. Officer in charge of the investigation ACP Azizan explained to the family that this is the standard operating procedure of the police. It is basic knowledge that Section 28A of the Criminal Procedure Code states that an arrested person shall be given the opportunity to communicate with his family members and to inform on his whereabouts. The reason of claiming standard operating procedure reflects the ignorance and arrogance of ACP Azizan, the designated officer for Ahmad's case.

Ahmad is currently being investigated under section 4(1) of the Sedition Act 1948, believed to be for having made seditious remarks against the Sultan of Johor on his Facebook page. Section 4(1) stipulates that any person who utters prints or publishes any seditious words, on conviction, would be liable for a first offence to a fine not exceeding RM5, 000 or to imprisonment for a term not exceeding three years or to both. 

On 5th November 2012, upon the rejection of the police's remand application, Ahmad was REARRESTED by  plainclothes policemen outside the court room for alleged offences under the Malaysian Communications and Multimedia Act 1998. Ahmad's father was told that Ahmad was rearrested because the family has engaged with lawyers.  SUARAM is appalled at the actions of the police which goes against basic fundamental rights enshrined under S5(3) of the Federal Constitution which allows an arrested person to communicate with a lawyer of his choice. A family member who declined to be known stated that the police acting under pressure and instructions from the top.

The bad practice of re-arresting an individual for different offenses upon the failure of an initial charge shows the motive-based prosecution method applied by the police. An arrested person shall not be bullied in such a way and that his/her rights must not be denied simply for the fact that the highest law in the country guarantees them.

 

Malaysia's poor records on civil liberties and human rights at the international standards is widely known. It does not bolster the country's image by adopting bad practices which completely drains all available space for the exercise of fundamental human rights and civil liberties. 

SUARAM hereby demands that Ahmad Abdul Jalil be released immediately. 

Released by,

Thevarajan

Right to Justice Coordinator

SUARAM

What can you do?

Urgent action needed:

Please write protest letters to the government and the police to express your strongest condemnation of the arrests of Ahmad Abdul Jalil which denies his right to speech and the right to be represented by lawyer.

SAMPLE LETTER

[Letterhead of your organisation]

Inspector-General of Police
Tan Sri Ismail Omar,
Ibu Pejabat Polis Diraja Malaysia,
50560 Bukit Aman,
Kuala Lumpur, Malaysia.
Tel: +603 2262 6015
Fax: +603 2272 5613

Dear Sir,

Re: Release Ahmad Abdul Jalil Now!

We are writing to you, once again, to express our outrage and our strongest condemnation over the arrest of Ahmad Abdul Jalil for a post in Facebook deemed seditious by the government.

We are appalled by the Malaysian government and the police's latest actions and view this as yet another attempt to intimidate Malaysian citizens from practicing freedom of expression and freedom of speech. Denying his right for a counsel is also an outrageous act against the Federal Constitution of Malaysia. We demand the government to release Ahmad Abdul Jalil immediately.

We strongly urge you, once again, to stop bringing shame to Malaysia, a member of the United Nations Human Rights Council. We would like to remind that freedom of speech is guaranteed in the Universal Declaration of Human Rights as well as the Federal Constitution of Malaysia.

Yours sincerely,

[Name]

Cc To:

1. Dato' Sri Mohd Najib bin Tun Abdul Razak,

Prime Minister of Malaysia,

Prime Minister's Office,

Main Block, Perdana Putra Building,

Federal Government Administrative Centre,

62502 Putrajaya , MALAYSIA

Tel: 603-8888 8000 Fax: 603-8888 3444

E-Mail: ppm@pmo.gov.my

2. Dato’ Seri Hishamuddin bin Tun Hussein

Minister of Home Affairs Malaysia

Blok D1 & D2, Kompleks D
Pusat Pentadbiran
Kerajaan Persekutuan
62546 Putrajaya  

Tel: 03 8886 8000/ 3000

Fax: 03-88891613/03-88891610

3. Tan Sri Hasmy Agam,

Chairman,

Malaysian Human Rights Commission,

Level 11, Menara TH Perdana,

Jalan Sultan Ismail,

50250 Kuala Lumpur.

Tel: 03 26125600 Fax: 03 26125620

4.  Mr. Frank La Rue
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Palais des Nations
CH-1211 Geneva 10
Switzerland
Fax: +41 22 917 9006
Email: freedex@ohchr.or

5. Ms. Margaret Sekaggya,

Special Rapporteur on the situation on human rights defenders,

Office of the United Nations High Commissioner for Human Rights (OHCHR)

Email: defenders@ohchr.org, urgent-action@ohchr.org

--
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Malaysia
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