MALAYSIA SHOULD EXPEDITE THE ABOLITION OF THE DEATH PENALTY

MALAYSIA SHOULD EXPEDITE THE ABOLITION OF THE DEATH PENALTY

MADPET(Malaysians Against Death Penalty and Torture), on the occasion of the 12th World Day Against the Death Penalty (10/10/2014) reiterates the call for Malaysia to abolish the Death Penalty, and immediately impose a moratorium on executions pending abolition as per the United Nation General Assembly’s Resolutions that have been adopted in 2007, 2008, 2010, 2012, whereby every year the support of the global community has been increasing.

The possibility of miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable is one reason why the Death Penalty needs to be abolished. We recall the words of the then Malaysian Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz. “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?”(Star, 29/8/2010, Abolish death penalty, it’s incorrect to take someone’s life, says Nazri), which becomes even more significant today in the light of the recent cases which resulted in the death of an innocent man, and spending up to 45 years on death row 

* "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. 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.

* On 27 March 2014, 78 year old Iwao Hakamada, who had spent more than 45 years on death row was freed. A retrial was ordered. The presiding judge, Hiroaki Murayama, when releasing Hakamada also had this to say, "There is a possibility that [key pieces of] evidence have been fabricated by investigative bodies,"

* In March 2014, Glenn Ford in USA was freed from death row after 30 years. Evidence had surfaced that he was innocent. Ford becomes the 144th death row inmate to be exonerated over the past four decades, underlining the perils of innocent people being sent to their deaths in America’s capital punishment system.

The problems of miscarriage of justice is that many a time it is linked to the police and prosecutors, and just this month, in Vietnam for having upheld the sentence of a man sentenced to life in a prison for a murder he did not commit, a former Judge has been arrested and is being investigated for gross negligence, whilst the police and prosecutors are being investigated on charges of “deliberate falsification of trial documents.” Lawyers too can cause miscarriage of justice, more so when many a person facing the death penalty cannot afford their own lawyers and will have to rely on court appointed lawyers.  

Now, in Malaysia noting the number of death in police custody cases, we have to be even more concerned. Persons tortured will admit to committing an offence even when innocent.

Police, prosecutors, defence lawyers, judges  and even witnesses can make mistakes, and innocent persons can end up being hanged. There are likely to be many cases of innocent persons languishing on death row, waiting to be hanged, but alas because of lack of resources or support, this fact of their innocence will never likely be brought out.

Another reason that has been advance by Malaysia for the retention of the death penalty has been deterrence – the fact that people will be put to death will scare possible perpetrators and reduce crime but alas this assertion has never been proven scientifically. Many research have shown that the contrary it true.

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). Malaysian Crime Prevention Foundation vice chairman Tan Sri Lee Lam Thye also did note in July 2013 that the death sentence had not deterred the drug trade.

In Malaysia, the majority of the persons that are in death row are for Drug Offences, but alas, unlike the norm in most criminal cases where the burden of proving all elements that constitute the crime is on the prosecution to prove beyond a reasonable doubt, in the case of drug trafficking which carries the death penalty, the burden shifts to the accused person to prove that he is not a drug trafficker. Possession of a certain quantity of drugs invokes the legal presumption that the person in possession is a drug trafficker; and reasonably it will be a near impossible task for any accused to prove that drugs were not his, or that he is not a drug trafficker. Most accused persons do not have the resources for investigation, or even the ability to identify and/or call witnesses. The existence of such a legal presumption and the shifting of the burden to the accused to prove his innocence would, in our opinion, make such trials an unfair trial.  

It is very serious when we consider that since 1960 until 2011, 228 persons(or 52% of those hanged) executed in Malaysia was for the offence of drug trafficking, and there was then 479(or 69%) persons on death row for the same offence. (Home Minister’s Reply, Free Malaysia Today, 3/4/2011) There was a total 930 death row prisoners were in jails in the country as of Aug 31 2012.(New Straits Times, 10/10/2012, 930 on death row as of Aug 31, says Abu Seman), Today, there will be even more on death row

It was disturbing when Malaysia tried to hang Chandran s/o Paskaran, convicted for murder on 7/2/2014, and later Osariakhi Ernest Obayangbon (aka Philip Michael), convicted for murder, on 14/3/2014 but thankfully through the intervention of the Royalty, Attorney General and the government that was initially moved by civil society, their lives was saved. This attempts to execute was most disturbing since Malaysia seem to have not hanged any person for several years, and was also currently seriously reviewing and considering the abolition of the Death Penalty. It should also be stated that Malaysia needs to be more open and transparent with statistics and information especially if there will be any pending executions.

The global trend is towards abolition, and Malaysia shamefully sits together with about 58 retentionist countries. There are 140 countries that have abolished the death penalty in law or in practice, and this includes 5 out of the 10 ASEAN nations, being Brunei, Phillipines, Cambodia, Myanmmar and Laos.

MADPET has been calling for the abolition of the death penalty since 2005. On 7/5/2006, a call- in-poll conducted by a local radio station revealed that 64% of Malaysian were for abolition. In 3/11/2012, 79 groups including 29 Malaysian groups called for the abolition of the Death Penalty. At the last Universal Periodic Review of Malaysia in October 2013, United Nations member countries urged Malaysia to abolish capital punishment and repeal oppressive laws. The European Union have been calling for abolition, the last being on 9/10/2014. On 22/7/2014, once again the Malaysian Human Rights Commission called for the abolition of the death penalty, urging at the very least the removal of the mandatory death sentence and returning to the courts (judges) the discretionary powers in imposing much more appropriate sentences, including life sentences. The Malaysian Bar has been constantly calling for the abolition of the death penalty. 

MADPET reiterates its 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 MADPET(Malaysians Against Death Penalty and Torture)

10 October 2014