17th Session of
the Working Group on the Universal Periodic Review
United Nations
Human Rights Council
October 21, 2013 –
November 1, 2013
Written Statement submitted by The
Advocates for Human Rights, an NGO with special consultative status, and Harm
Reduction International, an NGO with special consultative status
I.
Scope of This Report and Background
1. This report is being submitted by The Advocates for Human Rights and Harm
Reduction International, relevant stakeholders, in conjunction with the
Universal Periodic Review of Malaysia by the United Nations Human Rights
Council. Malaysia will be subject to review during the 17th session (October
21 –
November 1, 2013). This report critically examines the imposition of the
death penalty in Malaysia in light of general, international human rights
standards. It has been compiled from a combination of sources, including criminal
statutes, official state reports, news reports, and other commentary.
2. Malaysia is one of only 58 countries
remaining in the world that retain the death penalty for ordinary crimes.1 Malaysia’s criminal law
provides for death by hanging in several types of offenses, which will be
explained herein. The number of those convicted under such laws, the number
sitting on death row, and the number and details of who have been executed are
not made public.2 Instead,
such estimates come mainly from summary reports by the Malaysian government
itself, and various NGOs.
3. In April 2011, Malaysia’s Home Minister
stated that 441 people had (at that time) been executed since 1960
and that 696 prisoners were on death row. 3 The majority (479 or 69%) of these death
sentences were reportedly imposed under the 1952 Dangerous Drugs Act, 4which, as discussed below, leaves little to no
room for discretion in its application.
4.
As of November 4, 2012, the number of people on death row was reported to be
about 900.5
1 Abolitionist and Retentionist
Countries, Amnesty International, 2013,
http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries.
2 Working Group on Universal Periodic
Review, Universal Periodic Review of Malaysia, United Nations Human Rights Council, 27 October 2008,
http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/MY/A_HRC_WG6_4_MYS_3_E.PDF.
3 The State of the World’s Human Rights:
Malaysia, Amnesty International, 2012,
http://www.amnesty.org/en/region/malaysia/report-2012#section-26-8.
4 Charles Hector, Impose immediate
moratorium on all executions, Free Malaysia Today, 4 November 2012, http://www.freemalaysiatoday.com/category/opinion/2012/11/04/imposed-immediate-moratorium-on-all-executions/.
5 Id.
4. It has been estimated that 108 people were
sentenced to death in 2011 alone,6 compared to at least 114 in 2010
and at least 68 in 2009.7The
number of executions pales in comparison.
The last confirmed execution took place in 2010, and that was reportedly
the only execution to take place during the entire year.8
II. Malaysia’s
Implementations of the Death Penalty
5. Malaysia’s various criminal statutes provide
for either mandatory or discretionary death sentences, depending on the type of
offense. The types of crimes where the death penalty is a mandatory punishment
include: murder; drug “trafficking”; certain types of possession(s) and/or
discharging(s) of firearms in a “scheduled offence” (i.e., assisted suicide);
and certain kinds of treason. The death penalty is discretionary for other
types of treason; “consorting with a person carrying or having possession of
arms or explosives”; and kidnapping. Death sentences in Malaysia are carried
out by hanging.
a. Murder,
Attempted Murder and Murder During Gang Robbery
6. Section 302 of the Malaysian Penal Code
states, simply, that “[w]hoever commits murder shall be punished with death.”
Recent reports indicate that the death penalty is applied in practice for
crimes of murder. On November 1, 2012, a Malaysian Court of Appeal upheld the
conviction and death sentence of two men, Ong Tend For and Chew Ah Lan @ Chew Kai Thong, charged
in the 2004 killing of a businessman.9 On appeal, the Federal Court rejected two main arguments for
reversal, one relating to the alleged failure of a High Court judge to recuse
himself from presiding over the trial, and the second relating to the locus
standi of a Myanmar interpreter who was interpreting the testimony of an
illegal immigrant from Myanmar.10
7. Malaysia also provides for the discretionary
imposition of the death penalty for attempted murder. Section 307 of the Penal
Code states that any person who causes “hurt” to any person by an act of
attempted murder shall be imprisoned for up to 20 years.11The statute
goes on to state that “[w]hen any person offending under this section is under sentence
of imprisonment for life or for a term
of twenty years, he may, if hurt is caused, be punished with death.”12
6 Charles Hector, interview by Bill
Bainbridge, Hundreds on Death Row in Malaysia, Radio Australia, 22 May 2013,
http://www.radioaustralia.net.au/international/radio/program/connect-asia/hundreds-on-death-row-in-malaysia/948014.
7 Malaysia, Death Penalty Worldwide, 3
January 2013, http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Malaysia.
8 Id.
9 Bernama, Death sentence on duo upheld
for murder of businessman, Malaysia Insider, 1 November 2012, http://www.themalaysianinsider.com/malaysia/article/death-sentence-on-duo-upheld-for-murder-of-businessman.
10 Id.
11 Penal Code at Section 307(1).
12 Penal Code at Section 307(2).
8. Murders
resulting from gang robbery are also punished by a discretionary death
sentence.Under Section 364 of the Penal Code, where five or
more people are “conjointly committing gang-robbery,” and any one of them
commits murder, all those conjointly committing the robbery “shall by punished
with death or imprisonment for a term which may extend to twenty years, and,
where the punishment is not death, shall also be liable to whipping.”13
b. Drug Trafficking
9. Malaysia’s approach to
drug offenses violates
international standards that call for restricting the death penalty to the most
serious offenses, and it
imposes an automatic death
penalty to anyone found guilty of “trafficking” drugs. Further, there is a serious
lack of due process afforded to accused drug traffickers, who are presumed
guilty upon arrest with drugs on their person. The result of this policy, as
shown below, has been hundreds of death sentences and executions.
i. Types of “trafficking” and presumptions
thereof
10.
Malaysia’s criminal code, through the Dangerous Drug Act of 1952 (“the
Drug Act”), imposes a mandatory death penalty where someone is found guilty of
drug “trafficking.” The definition of “trafficking” depends on the amount of
drugs found in the accused’s possession, and the amount of drugs that will
trigger the “trafficking” label, in turn, varies by the type of drug. For
amounts smaller than what constitutes “trafficking,” the Drug Act provides for
both prison terms and physical punishment.
11. Under
Section 37(da), if a given drug is found in a prohibitively large amount, that possession
“shall be presumed, until the contrary
is proved, to be trafficking in the said drug.” Once the possession rises to the level of
trafficking, Section 39(B)(2) provides that the offender “shall be punished on
conviction with death.” Notably, this punishment applies whether or not the accused is a
citizen of Malaysia, and in fact many on death row under the Drug Act are
foreign nationals.
12. Under the
Drug Act, simply finding prohibited drugs on someone’s person raises a presumption
that they knowingly possessed the same. This contravenes the general legal principle,
applied in most ountries, of “semper necessitas probandi incumbit ei qui agit,”
roughly meaning “he who asserts must prove.” It also contravenes Article 11 of the
Universal Declaration of Human Rights, which enshrines the principle that
anyone charged with a criminal offense must be presumed innocent until and
unless proved guilty under the law. Section 37(d) states that:any person who is
found to have had in his custody or under his control anything whatsoever
containing any dangerous drug shall, until the contrary is proved, be deemed to
have been in possession 13 Penal Code at Section 396. of such drug and shall,
until the contrary is proved, be deemed to have known the nature of such drug;14
13. Some
examples of the Drug Act’s rigid framework, as applied to certain drugs is provided
below:
Heroin
|
Opium
|
Cocaine
|
Cannabis
|
Punishment
|
2-5 g 15
|
100-250 g16
|
5-15 g 17
|
20-50 g18
|
2-5 years in prison and 3-9 whip strokes 19
|
5-15 g 20
|
250-1000 g 21
|
15-40 g 22
|
50-200 g 23
|
5 years to life in prison and 10+ whip strokes 24
|
15 g + 25
|
1 kg + 26
|
40 g +27
|
200 g + 28
|
Mandatory death by hanging
|
ii. Examples of application of drug trafficking
policy
14. One
example of a foreign national in possession of drugs has been widely reported
in international press. In July 2012, Australian citizen Emma Louisa
L’Aiguille was arrested and charged with possession of about
one kilogram of methamphetamine under her car seat.29 Under
the Drug Act, possessing 50 or more grams of methamphetamine results in the possession being classified as
“trafficking,” and it is thus punishable by mandatory death sentence.30 Three
Australians (two in 1986 for heroin trafficking, and one in 1993) had reportedly been executed
under the Drug Act.31
15. Another
illustrative example highlights an individual who was not so fortunate. Amnesty
International reported that on August 14, 2000, Reza Mohammed Shah Bin Ahmad
Shah (also known as Reza Shah) was arrested outside Kuala Lumpur,
14 Drug Act at Section 37(d)
15 Drug Act at Section 39A(1)(a)
16 Drug Act at Section 39A(1)(i)-(k)
17 Drug Act at Section 39A(1)(e)
18 Drug Act at Section 39A(1)(f)-(h)
19 Drug Act at Section 39(A)(1)
20 Drug Act at Section 39(A)(2)(a)
21 Drug Act at Section 39(A)(2)(i)-(k)
22 Drug Act at Section 39(A)(2)(e)
23
Drug Act at Section 39(A)(2)(f)-(h)
24 Drug Act at Section 39(A)(2)
25 Drug Act at Section 37(da)(i)
26 Drug Act at Sections 37(da)(iv)-(v)
27 Drug Act at Section 37(da)(ix)
28 Drug Act at Section
37(da)(vi)-(viii)
29 Will Ockenden, Australian faces
death penalty in Malayisa, ABC News, 2 August 2012, http://www.abc.net.au/worldtoday/content/2012/s3558992.htm.
(On November 9, 2012, the trafficking
charges against L’Aiguille were dropped
after she agreed to testify against her boyfriend, who was in the backseat at
the time of her arrest and subsequently fled the scene. Reportedly, L’Aiguille
has since been arrested on different, less serious drug charges, and on
February 7, 2013, she posted bail with respect to the new charged.)
30 Drug Act at Section 37(da)(xvi).
31 Australian Woman Faces Death in
Malaysia, The Sydney Morning Herald, 30 July 2012, http://www.smh.com.au/national/australian-woman-faces-death-in-malaysia-20120730-23a87.html.
allegedly carrying a plastic bag full
of cannabis.32 The bag was
found to contain nearly 800g of cannabis, well over the 200g required to define the offense as “trafficking,” punishable by death. The trial
court “found that [Shah] possessed drugs in the alleged quantities” and “the
law left the court with no discretion but to convict him of drug trafficking
and then to hand down the mandatory
death sentence.”33 The Malaysian appellate court overturned Shah’s
conviction in 2006, finding that “the prosecution had not proved that Reza Shah
had knowledge of the bag’s contents.”34 In January 2009, however, the Federal Court (highest court
in Malaysia) agreed with the prosecution’s appeal, concluding that “Reza Shah
had failed to prove that he was not
guilty of drug trafficking” and
reinstated the death sentence.35
Reza Shah has since joined hundreds who have appealed to the King for clemency.
16. In whole,
the majority of death sentences and executions in Malaysia have been carried
out under the drug trafficking laws. The International Harm Reduction Association
reported that between 1994 and 199, 76% of all executions were for drug-related
offenses.36
iii. Debate and possible shift in specific
application of capital punishment to drug-related offenses
17.
Malaysia’s imposition of the death penalty for drug offenses has
generated significant debate and public comment. As shown above in the example
of Reza Shah, there is friction even within Malaysia’s own court system as to
the allocation of the burden of proof in capital drug cases. Pressure from
human rights bodies and other groups has prompted recent comment from the
Malaysian government.
18. In 2009, Malaysia
signaled a move towards the abolition of the death penalty in drug trafficking
cases. Malaysia stated the following in a submission to the UN Human Rights
Council:
Offences that carry the death penalty in Malaysia are limited in number and only involve crimes of very serious
nature. However, the Government is considering to further reduce this number by
among others, proposed amendments to existing anti-drug trafficking legislation
to reduce the maximum sentence to life imprisonment. Malaysia is also reviewing all offences that
carry the death penalty by reconsidering the appropriate charges to be preferred
in that only in deserving cases will the charges that carry mandatory death penalty
be framed against the offences. 37
32 Anti-Death Penalty Asia Network,
When Justice Fails: Thousands executed in Asia after unfair trials, Amnesty International,
December 2011, http://www.amnesty.org/en/library/asset/ASA01/023/2011/en/103678e4-fa6f-4b1c-86a9-7d94e42b9494/asa010232011en.pdf,
at 22
33 Id.
34 Id.
35 Id.
36 Rick Lines, “A ‘Most serious crime’?
International Human Rights Law and the Death Penalty for Drug Offences,” 18th International Conference on the Reduction
of Drug-Related Harm, Warsaw, Poland, 15 May 2007, http://www.ihra.net/files/2010/06/21/Lines-amostseriouscrime-may07.pdf.
37 Universal Periodic Review, Report of
the Working Group on the Universal Periodic Review: Malaysia
(Addendum), United Nations Human Rights
Council, 3 June 2009,
http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.30.Add.1.pdf.
19. In late
October, 2012, these comments were echoed when Malaysian law minister Nazri Aziz was reported to have said that the
government may replace the death penalty
for drug offenders with a prison term. Such a measure would mean reprieve for
at least 675 convicted drug traffickers
(as of November 4, 2012)38. Aziz stated that “[t]he alternative sentence for
possession of drugs is being studied by the Attorney-General’s Office” and that
he planned to “discuss with the Prime Minister about applying for a ,oratorium
on the death sentence cases so that
[convicted traffickers are] not hanged while we’re reviewing the existing
penalty.”39
20.
Acknowledging the fact that Malaysia’s law harshly targets those on whom
the drugs are found, rather than those higher up in a criminal-type organization, Aziz further stated:
The majority of the countries where they’re detained have the mandatory
death sentence for possession of drugs. So if we want to save the Malaysian ‘drug mules’, a large
number of whom were not aware they were
being used, how can we appeal to those countries while we ourselves hang such
offenders. It doesn’t make sense.40
21. Indeed,
as referenced by Aziz, the Malaysian government has actually sought clemency
for its citizens facing death sentences in other countries. In July 2010, Singapore
received a clemency appeal from Malaysia’s foreign minister Anifah Aman for
Yong Vui Kong, convicted in 2008 of trafficking 47 grams of heroin into Singapore.41
22. Amnesty
International reacted to Aziz’s statements positively, stating that it “welcomes
this proposal and hopes that it will lead to the quick abolition of the death penalty
for drug offences.” (Amnesty International, however, urged Malaysia to further
extend its review of the use of the death penalty to all
capital offenses and apply a moratorium to those beyond the drug
trafficking context.)42
38 Charles
Hector, Impose immediate moratorium on all executions, Free Malaysia Today, 4
November 2012, http://www.freemalaysiatoday.com/category/opinion/2012/11/04/imposed-immediate-moratorium-on-all-executions/.
39 Bernama,
Possible moratorium on death penalty pending govt’s final decision, The
Malaysian Insider, 20 October 2012,
http://www.themalaysianinsider.com/malaysia/article/possible-moratorium-on-death-sentences-pending-govts-final-decision-nazri
40 Id.
41 Malaysia
seeks clemency for death row inmate in Singapore, Channel News Asia, 29 July
2010,
http://www.channelnewsasia.com/stories/singaporelocalnews/view/1072147/1/.html.
42 ASA
28/003/2012
c. Treason
23. In
Malaysia, treason is punishable by discretionary death sentence. Specifically, either
the death sentence or life in prison may be imposed upon “[w]hoever wages war
against the Yang di-Pertuan Agong or against any of the Rulers or Yang
di-Pertua Negeri.”43 “[A]ttempts to wage such war, or abet[ting] the waging of such war” are
punishable in the same manner.44 In addition, the Penal Code provides for a mandatory
death sentence as per the following:
Whoever compasses, imagines, invents, devises or intends the death of
or hurt to or imprisonment or restraint
of the Yang di -Pertuan Agong or any of the Rulers or Yang di-Pertua Negeri,
their heirs or successors, shall be
punished with death and shall also be liable to fine.45
24. The Yang
di-Pertuan Agong and Yang di-Pertua Negeri are the ceremonial governors of the
Malaysian states without monarchs, and these statutory provisions outline crimes
that are tantamount to treason. Though not enforced nearly as often as anti
-drug laws, this provision did result in four executions (for “armed treason”)
as recently as 2007, according to Amnesty International.46
d. Assisted Suicide
25.
Malaysia’s criminal code provides for a discretionary death sentence for
assisted suicide. Specifically, Section
305 of the Penal Code states the following:
If any person under eighteen
years of age, any insane person, any delirious person, any idiot, or any person
in a state of intoxication, commits suicide, whoever abets the commission of
such suicide shall be punished with death or imprisonment for a term which may
extend to twenty years, and shall also be liable to fine.47
e.
Kidnapping
26. Any kidnapping that may possible result in
the kidnapped person being murdered is punishable with a discretionary death
sentence. Section 364 of the Penal Code states as follows:
Whoever kidnaps or abducts any person in order that
such person may be murdered, or may be so disposed of as to be put in danger of being murdered, shall be punished with
death or imprisonment for a term which may extend to twenty years and shall, if
he is not sentenced to death, also be
liable to whipping.48
43 Penal Code at Section 121.
44 Penal Code at Section 121.
45 Penal Code at Section 121A.
46 Malaysia: Amnesty International Report 2007, Amnesty
International, 2007, http://www.amnesty.org/en/region/malaysia/report-2007.
47 Penal Code at Section 305.
48 Penal Code at Section 364.
III. Death Row Conditions
27. There is
no outward indication that death row inmates are kept in special or separate quarters
from other Malaysian prisoners. In turn, generally, living conditions in Malaysian
prisons are reported to be quite poor.
28. According
to the U.S. Department of State, prison overcrowding in Malaysia, especially
near the larger cities, is a serious problem.49
The national prison administration reported in mid-2010 that “the
country’s 31 prisons held 38,387 prisoners in locations designed to hold
32,600.”50 Further, local and
international NGOs reportedly estimated
that most of the country’s 16 detention centers “were at or beyond capacity, with some detainees held
for a year or more.”51 In the case
of death row inmates, it is especially
likely that detention would extend well beyond one year, given that most are
convicted of drug trafficking and carrying out a death sentence can take
several years while appeals and pleas for clemency are pending.
29. Living
conditions in Malaysia’s 16 detention centers is reportedly sub-standard. The Ministry
of Home Affairs’ secretary general publicly acknowledged in August 2010 that
“security measures and living conditions at all the [detention centers] were seriously
deficient and that none met international standards.”52 For example, detention
centers are reportedly unsanitary, overcrowded, have no air conditioning, provide
inadequate clothing and food, and provide little access to medical care.53 In many
instances, these conditions contributed to deaths of prisoners.54
IV. Intersection of Malaysian Policy and Human
Rights Law
30. Both
Malaysia’s imposition of the death penalty itself and the way in which the penalty
is applied to some crimes violate several human rights standards.
31. Malaysia
has been urged by several groups, including the United Nations Human Rights Council
and Amnesty International, to abolish the death penalty altogether. Capital
punishment violates the Universal Declaration of Human Rights, which states in
Article 3 that “[e]veryone has the right to life, liberty and security of
person.”55
49 2011 State Report at 4
50 Id.
51 Id.
52 Id.
53 Id. at 5.
54 Id.
55 Universal Declaration of Human Rights, article 3. Depriving someone of life, in any circumstance whatsoever,
contravenes this standard.
32. There has
been comment from within the Malaysian government suggesting that it may
abolish the death penalty altogether. On August 31, 2010, Malaysian Law Minister
Nazri Abdul Aziz told The Online Citizen
that “[i]t is time for Malaysia to abolish
the death penalty… No criminal justice system is perfect. You take a man’s life
and years later, you find out that another person did the crime. What can you
do?”
33. For
countries such as Malaysia, which may be
moving towards abolition of the death penalty, additional standards apply.
Article 6(2) of the International Covenant on Civil and Political Rights states that, in
countries that have not abolished the death penalty, “sentence of death may
be imposed only for the most serious
crimes in accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide.”56 In
addition, the death penalty “can only be carried out pursuant to a final
judgment rendered by a competent court.”57
34. The Human
Rights Committee, in a general comment on Article 6 of the ICCPR, stated
further that “the expression ‘most serious crimes’ must be read restrictively
to mean that the death penalty should be a quite exceptional measure.”58 This principle was reiterated further by the United Nations Economic
and Social Council through the Safeguards Guaranteeing Protection of the
Rights of Those Facing the Death Penalty,
which state that the death penalty should be imposed only for the most serious
crimes and that the scope of these crimes “should not go beyond intentional crimes
with lethal or other extremely grave consequences.”
35.
Accordingly, drug offenses, punishable by mandatory death sentence in
Malaysia, do not meet the threshold of “most serious crimes” as stated in
Article 6(2). This has been confirmed by the UN Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, who stated in 1996 that “the
death penalty should be eliminated for crimes such as economic crimes and drug-related offences.”59
36. Further
compounding the issue is the manner in which Malaysia prosecutes drug trafficking
offenses. By shifting the burden of
proving innocence to the accused, Malaysia directly contravenes Article 11 of
the Universal Declaration of Human Rights, which states that anyone charged
with a criminal offense must be presumed innocent until and unless proved guilty under
the law.
37. All indications
are that conditions on death row in Malaysian prisons may further constitute
violations of human rights standards. Article 5 of the Universal Declaration of
Human Rights states that “[n]o one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.”60 As noted above, Malaysian prisons are reportedly prone to overcrowding,
no air conditioning, and inadequate access to food, clothing and medical care.
The Human Rights Committee has previously communicated concern about overly
small cell size and lack of proper food 61 ; as
well as extreme temperatures and lack of ventilation .62
56 International Covenant on Civil and
Political Rights, article 6(2).
57 International Covenant on Civil and
Political Rights, article 6(2).
58 General comment 6, adopted by the
Committee at its 16th Session on 27 July 1982.
59 United Nations Document No.
E/CN.4/1997/60, 20 December 1996, paragraph 91.
60 Universal Declaration of Human
Rights, article 11.
61 Human Rights Committee, Concluding
observations on Uzbekistan, U.N. Doc. CCPR/CO/71/UZB,
April 26, 2001, para. 10
62 Safarmo Kurbanova v. Tajikistan,
Views of the Human Rights Committee, Communication No.
1096/2002, U.N. Doc.
CCPR/C/79/D/1096/2002, Nov. 12, 2003, para. 7.8.
V. Recommendations
(1) Malaysia should abolish the death penalty for
all offenses. In the absence of outright abolition, Malaysia should place a
moratorium on all executions.
(2) In the absence of outright abolition,
Malaysia should limit the use of capital punishment to the most serious crimes,
and thereby eliminate its use for drug
trafficking and/or other drug-related offenses.
(3) At a minimum, Malaysia should modify its
statutory framework for drug trafficking offenses and provide for some measure
of basic due process for accused traffickers. The burden of proof should always
be on the state to prove, beyond a reasonable doubt, that the accused both
possessed the drug at issue and knew of its dangerous character. The burden
should never be on the accused to prove his/her innocence.
(4) Further, at a minimum, Malaysia should modify
its statutory framework to afford more discretion to the judiciary in
sentencing offenders, and remove mandatory death sentences from the statutes.
(5) Malaysia should also take steps to improve
the conditions of those living on death row in the 16 detention centers,
including, specifically: alleviating overcrowding by, for example, building
additional facilities; providing more sanitary conditions with existing detention
centers; and providing more adequate access to clothing, food and medical care.
Source: http://www.upr-info.org/IMG/pdf/js8_upr17_mys_e.pdf
