Thursday, January 24, 2019
Repeal Unjust Legal Presumption Provisions, That Shifts Burden Of Proof From Prosecution To Accused Persons, Especially For Drug Offences (MADPET)
Media Statement - 24/1/2019
Repeal Unjust Legal Presumption Provisions, That Shifts Burden Of Proof From Prosecution To Accused Persons, Especially For Drug Offences
Commute Death Sentences And Abolish Death Penalty
MADPET(Malaysians Against Death Penalty and Torture) supports the call for abolition of the legal presumptions of possession and/or trafficking in the Dangerous Drugs Act 1952(DDA) that shifts the burden of proof on the accused to prove his innocence, especially for a crime that carries the death penalty.
Member of Parliament, Ramkarpal Singh, ‘…called for the abolishment of the death sentence in drug cases, particularly those which rely on presumptions to establish the crime….“Imposing such restrictions on judges by the imposition of such presumptions is dangerous as a person may be sent to the gallows for a drug-related offence although the judge might not necessarily be convinced of his guilt,”(FMT News , 22/1/2019; Malaysiakini, 22/1/2019).
Section 37 of the Dangerous Drugs Act 1952 lists down several legal presumptions, which on the proving of some facts, it will apply, thereby shifting the burden of proof to the accused to disprove the presumption. Some examples of such presumptions are as follows:-
‘…(b) a person, until the contrary is proved, shall be deemed to be the occupier of any premises, if he has, or appears to have, the care or management of such premises;…
(d) 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 of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;…
(g) if any dangerous drug is found to be concealed in any premises, it shall be presumed, until the contrary is proved, that the said drug is so concealed with the knowledge of the occupier of the premises;…’
In criminal trials generally, the burden of proof rests with the prosecution, who is bound to prove each and every element of the crime beyond reasonable doubt.
The accused really do not have the resources and/or the capacity, unlike the State or prosecutors, to disprove such presumptions.
How does one proof that drugs found in their homes, cars or premises was not theirs, or that they had no idea that it was there. Anyone could have planted these drugs without the knowledge of the accused, and it is near impossible for the accused to be able to prove this.
It very different in cases of corruption, where it is proven that a person have received monies, etc, like maybe having in their accounts large sums of monies like thousands or billions of ringgit, far more than what they could have legally earned. In such cases, applying legal presumptions may be fair.
An example of such a legal presumption, is found in the Malaysian Anti-Corruption Commission Act 2009
Section 50(1 Malaysian Anti-Corruption Commission Act 2009), for example for offences of corruption and bribery provides that, If ‘….it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved….’
But, when it comes to drug offences, some of which carries the death penalty, it may be time to abolish these legal presumptions, returning the onus of proving all elements of the crime to the prosecutor.
One of the worse of these Legal Presumptions is the presumption of trafficking, which really only depends on the amount of the drugs found. Section 37(da) of the Dangerous Drugs Act 1952 states that:-
‘… (da) any person who is found in possession of-
(i) 15 grammes or more in weight of heroin;
(ii) 15 grammes or more in weight of morphine;…
(vi) 200 grammes or more in weight of cannabis,…
(ix) 40 grammes or more in weight of cocaine;…
otherwise than in accordance with the authority of this Act or any other written law, shall be presumed, until the contrary is proved, to be trafficking in the said drug;
It is as such certainly more just to repeal this Legal Presumption. The prosecution should be burdened with the onus of proving something more than mere possession to find anyone guilty of drug trafficking, which still is a death penalty offence in Malaysia.
The DDA 1952 have been amended during the tenure of the previous administration to give rise the possibility of a sentence other than death penalty, but judge’s hands are still tied as they are still prevented from considering all possible mitigation and aggravation factors when it comes to sentencing. Hopefully, this new government will correct these many flaws, which have been highlighted by many including the Malaysian Bar.
In any event, MADPET
- Calls for the immediate repeal of Legal Presumptions in the Dangerous Drugs Act 1952, which shifts the burden of proof to accused persons, especially when it comes to death penalty offences;
- Calls for the commuting of all persons still facing the death penalty for drug trafficking, being persons who were convicted before the amendment of the DDA 1952, which opens to the possibility of sentence other than the death penalty, came into effect;
- Calls also for the release of all that are facing detention and/or restrictions allegedly for drug trafficking under the various Detention Without Trial Laws, including POCA(Prevention of Crimes Act). They should be charged and accorded a fair trial, or should be immediately and unconditionally released.
- Reiterates the call for the imposition of a moratorium on all executions, and the abolition of death penalty.
For on behalf of MADPET(Malaysians Against Death Penalty and Torture)
See earlier post:-
Monday, January 21, 2019
MADPET - Wearing Vests With ‘MONYET’(Monkey) While Sentenced To Do Community Service Is Derogatory And Wrong The Guilty And Prisoners Must Always Be Treated With Respect And Dignity
Media Statement – 22/1/2019
Wearing Vests With ‘MONYET’(Monkey) While Sentenced To Do Community Service Is Derogatory And Wrong
The Guilty And Prisoners Must Always Be Treated With Respect And Dignity
MADPET(Malaysians Against Death Penalty and Torture) is appalled by the revelation that minor offenders sentenced to do community service have been made to wear green vests with the word “MONYET” (monkey) emblazoned on them in Semporna, Sabah. (Malay Mail, 11/1/2018).
Whilst, community service as a sentence is not the issue, but the word ‘monkey’ on their vest is just wrong. Even convicted persons must be treated with dignity – doing community service in public is punishment enough – they is no need for any derogatory name association with even the guilty.
The United Nations General Assembly Resolution 45/111 of 14 December 1990, in Article 1 states, ‘All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.’. Wearing a vest with the word “MONYET” (monkey) emblazoned on them is certainly not respect due to their inherent dignity and value as human beings.
A person who is found guilty certainly needs to be punished, but we must not go overboard to permanently scar their dignity, name or reputation. After serving their just sentences, we hope that they will be re-integrated into society as good contributing citizens, never to again resort to crime.
It was also revealed in the media in May 2017 by the then Woman, Family and Community Development Deputy Minister Datuk Azizah Mohd Dun, that ‘…A total of 4,620 youths, aged between 18 and 21, were punished with community service between 2008 until last year for their involvement in social ills and crime… Azizah said the community service was aimed at rehabilitating and preventing young offenders from repeating past mistakes - restoring them to society through sentencing, rehabilitation and awareness’. It is not clear as to how many adults were sentenced to community service in Malaysia, but the stress should be that any punishment, including community service is ultimately rehabilitate a person not to permanently scar them, and indirectly their families as well.
It may be acceptable for those sentenced to do community service to do don brightly colored vests with words like ‘Community Service For Committing Crimes’ or such, but the derogatory branding with words like MONYET(monkey) or such words must end.
The Chief Justice Tan Sri Richard Malanjum proposal to using alternative sentences like community service for minor or less serious offences is good, but MADPET proposes that this option also be considered for other crimes.
In Malaysia day, there are just too many persons in detention for a country of about 30 million people. Prison population total (including pre-trial detainees / remand prisoners) as at September 2017, according to the World Prison Brief, who claims the data was provided by the Ministry of Home Affairs is 55,413, of which about 29.8%(as of mid-2017) are pre-trial or remand prisoners.
This means about 177 of every 100,000 in Malaysia are in prison. The official prison capacity in September 2017 was 45,640, and the occupancy level then was 121.4%. There is serious overcrowding in Malaysia’s prisons.
The pre-trial detainees/remand prisoners, which is about 30% of the total prison population, would be those still not convicted who are not qualified to get bail, who have been denied bail or those who cannot afford to pay the bail amount.
It will include also all persons charged under any one of the listed security offences in Security Offences (Special Measures) Act 2012(SOSMA), as section 19(1) SOSMA states, ‘19(1) Bail shall not be granted to a person who has been charged with a security offence.’. This would include the about 60 Penal Code Offences, including that about 9 unjust questionable ‘activity detrimental to parliamentary democracy’ offences introduced in 2012 by the past government.
Whilst Malaysia has a prison population rate of 177, many other countries have much lower – India(33), Iceland(37), Japan(41), Finland(51) and Sweden(59). There really must be a serious review of the reasons of such high numbers in Malaysian prisons. Prison conditions and treatment of detainees, especially pre-trial detainees/remand prisoners, also need to improve.
Adequacy of judges and courts also may be of serious concern, as pre-trial detainees/remand prisoners who are innocent until proven guilty, deserve speedy trials which really should start and end within three(3) months at most.
Sentencing provision in laws need to be looked at, including providing for lesser sentences for first-time offenders and minor offences. Are prison sentences just too long?
It must be pointed out that many innocent persons, especially the poor who cannot afford bail, may simply elect to plead guilty and serve their sentence, rather than risk long detentions awaiting the completion of their trial. This is an injustice we really do not want.
MADPET is also concerned with the treatment of suspects and those not yet convicted, who are forced to wear lock-up and/or prison clothes when they appear for their remand applications and/or trial.
Justly, they should be allowed to wear normal clothes, especially when they go to courts, for the negative effects of being seen and/or photographed wearing such ‘attire’ will have long term impact not just on them but also their family/friends, more so if they are ultimately not found guilty after a fair trial. Eventhough, judges may be professional, they are still human. Would not the seeing of accused persons in such attire and condition act negatively against the accused in trial?
In some jurisdiction, suspects and accused are allowed to clean themselves up and wear decent clothing before they are brought for their remand proceedings and/or trials. The State even goes to provide them with decent clothes for their court appearance, if needed.
As such, MADPET
- Calls for the immediate removal of the word ‘MONYET’(monkey) from the attire used by persons sentenced to do community service whilst they carry out their sentence. Prisoners should be treated with respect and dignity;
- Calls for the abolition of the practice the wearing of ‘special’ lock-up or prison attire when suspects attend the remand applications, or when accused attend their trials;
- Call for the review of sentences, introducing also alternative sentences like community service, always bearing in mind that the primary object besides punishment is the rehabilitation and future re-integration into society;
- Calls that Malaysia ensure that all persons be entitled to bail, and no one should be denied bail simply by reason of poverty or laws like SOSMA, that unilaterally deny bail for all charged with a ‘security offence’. The entitlement to bail, or otherwise, should be sole discretion and responsibility of judges after considering all relevant factors. Parliament should not deny bail by law as was done in SOSMA;
- Calls that for those accused who remain in detention, a speedy trial be guaranteed;
- Reiterates the call for the immediate repeal of the Security Offences (Special Measures) Act 2012, and to guarantee a fair trial for everyone using the same Evidential and Procedural requirement/conditions for all;
- Call for the introduction for a Criminal Compensation law, that will provide adequate compensation for all who have been detained wrongly, who at the end of the day are not found guilty and convicted by the Courts. This will at least bring about some justice to victims and their families, resulting from wrongful detention by police/State;
- Calls for an improvement of prison conditions, and a serious effort to reduce the prison population to a reasonable prison population rate;
- Call on Malaysia to adhere to the 1990 United Nations General Assembly Resolution 45/111 Basic Principles for the Treatment of Prisoners, and also the United Nations Standard Minimum Rules for the Treatment of Prisoners;
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
What’s better than jail for misdemeanors? Community service, says CJ(Malay Mail, 11/1/2019) https://www.malaymail.com/news/malaysia/2019/01/11/whats-better-than-jail-for-misdemeanors-community-service-says-cj/1711491
Picture of these MONYET(Monkey) vests - NGO respects local authority's decision on MONYET vests for litterbugs(New Straits Times, 10/1/2019)
|Source: New Straits Times, 10/1/2019|
Wednesday, January 16, 2019
Malaysia makes us proud, as it joins 120 other nations in voting in support of the United Nations General Assembly Resolution calling for a moratorium of executions pending the abolition of the death penalty on 17/12/2018. In 2016, this resolution received the support of 116 nation states but in December 2018, support has increased to 121 nation states.
Malaysian Cabinet has agreed to bring about the abolition of the death penalty, and has promised to table the relevant Bills that will see the abolition of death penalty in 2019. The death penalty in Malaysia are in the normal criminal laws, not in the Malaysian Islamic/Syariah laws, and as such the convictions do not follow the requirements of Islamic evidential and criminal procedural requirement. This is one of the reason, why the objections of Muslims before, who took the position that the death penalty should be maintained as it is provided for in Islam, has changed to support abolition.
Further, it has also been shown that death penalty is not a deterrent, as the crimes that provided for death penalty did not reduce but in fact has increased. The risk of miscarriage of justice is also another reason.
Altantuya's case - there is a suspicion that there are others out there who may have ordered/instructed/directed or even paid for her to be killed. Arrested and convicted murderers who will be executed will simply not be 'motivated' to help bring other perpetrators to justice knowing that they will still be hanged to death. As such, the abolition of the death penalty, will also ensure better chances of others involved in murder and such crimes that carried the death penalty to be identified and also brought to justice. The convicted will most likely be willing to assist here if they will live on, or even possibly result in a lower prison terms.
Death penalty: Global abolition closer than ever as record number of countries vote to end executions
After a record number of UN member states today supported at the final vote a key UN General Assembly resolution calling for a moratorium on executions with a view to abolishing the death penalty, Amnesty International’s Death Penalty Expert Chiara Sangiorgio said:
“The fact that more countries than ever before have voted to end executions shows that global abolition of the death penalty is becoming an inevitable reality. A death penalty-free world is closer than ever.
“This vote sends yet another important signal that more and more countries are willing to take steps to end this cruel, inhuman and degrading punishment once and for all.
“The result also shows the increasing isolation of the 35 countries that voted against the resolution.
Those countries still retaining the death penalty should immediately establish a moratorium on executions as a first step towards full abolition.”
121 of the UN’s 193 member states voted in favour of the seventh resolution on a moratorium on the use of the death penalty at the UNGA plenary session in New York, while 35 voted against and 32 abstained. 117 had done so in December 2016. This resolution was proposed by Brazil on behalf of an Inter-Regional Task Force of member states and co-sponsored by 83 states.
For the first time, Dominica, Libya, Malaysia and Pakistan changed their vote to support the resolution, while Antigua and Barbuda, Guyana and South Sudan moved from opposition to abstention. Equatorial Guinea, Gambia, Mauritius, Niger, and Rwanda once again voted in favour of the call for a moratorium on executions, having not done so in 2016.
Five countries reversed their 2016 votes, with Nauru moving from vote in favour to vote against and Bahrain and Zimbabwe switching from abstention to opposition. Congo and Guinea changed from voting in favour to abstention.
When the UN was founded in 1945 only eight of the then 51 UN member states had abolished the death penalty. Today, 103 of 193 member states have abolished the death penalty for all crimes, and 139 have abolished the death penalty in law or practice. In 2017 executions were reported in 22 UN member states, 11% of the total. Amnesty International opposes the death penalty in all cases without exception. - Amnesty International, 17/12/2018