27th October Malaysian Day For the Abolition of Detention Without Trial laws

 

Media Statement – 27/10/2021

27^th  October Malaysian Day For the Abolition of Detention Without Trial laws

27^th October should be recognized as the Malaysian Day For the Abolition of Detention Without Trial laws. In 1987 on this day, Operation Lallang happened, where about 106 persons, including human rights defenders, women activist, politicians, worker rights activist, religious groups and others were arrested and detained without trial under the Detention Without Trial law, Internal Security Act 1960.

Internal Security Act Repealed but Detention Without Trial lives on

In July 2012, the ISA was repealed.  The Emergency (Public Order and Crimes Prevention) Ordinance 1969, another draconian detention without trial(DWT) law also is gone. However, the Dangerous Drugs (Special Preventive Measures) Act 1985 remained as the only remaining DWT law.

There was hope that soon all other remaining detention without trial laws would also be repealed, but this did not happen. A new DWT law was enacted, being Prevention of Terrorism Act 2015 (POTA). Then the Prevention of Crime Act 1959 (POCA) was amended to include detention without trial for a wide scope of alleged crimes.

DWT Scope no longer about ‘national security’ but expanded to cover so many crimes

The scope of preventive detention laws was expanded, and today it can be used even against persons alleged of committing any of the Penal Code offences including murder, robbery, theft and rape.   It can be used against traffickers in dangerous drugs, including persons who live wholly or in part on the proceeds of drug trafficking; traffickers in persons, including persons who live wholly or in part on the proceeds of trafficking in persons; persons concerned in the organization and promotion of unlawful gaming; smugglers of migrants, including persons who live wholly or in part on the proceeds of smuggling of migrants; Persons who recruit, or agree to recruit, another person to be a member of an unlawful society or a gang or to participate in the commission of an offence; and Persons who engage in the commission or support of terrorist acts under the Penal Code.

As such, the two persons convicted of the murder of Altantuya Shaariibuu could have also been subjected to DWT laws but fortunately they were accorded their right to a fair trial.

Who gets subjected to DWT laws, and who gets charged and tried result in discrimination and a violation of Article 8(1) of the Federal Constitution that states ‘All persons are equal before the law and entitled to the equal protection of the law.’

The reasons why one becomes a victim of DWT laws cannot be reviewed or challenged in court. This means that an innocent person can wrongly suspected by the administration of a crime, and can be detained without trial for up to 2 years, and extended thereafter indefinitely for 2 years at a time.

Besides detention, the said DWT law victim can also be subjected to Restriction Orders and/or Supervisory Orders that removes one’s freedom of movement, association and other activities. All these can be done to victims of DWT laws without being accorded the right to defend one’s self, in denial of the right to a fair trial, and worse the inability to challenge the reasons and orders in court.

Even the convicted criminal can walk free until their appeals, but not DWT law victims

Even a convicted criminal like former Prime Minister Najib Razak, have the right to 2 appeals in court, and in the meantime is free to walk around freely and remain a Member of Parliament.

On the other hand, victims of DWT laws are denied their freedoms and rights, without even being tried and convicted by court. This unjustice must end.

DWT laws even remove judicial discretion during remand proceedings, as Magistrates have no choice but to allow remand as provided by these DWT laws.

DWT law victims are denied the right to fair trial, he does not have the right to defend himself at all.

DWT laws - Protection and/or Preferential treatment of ‘criminals’

Persons who committed murder, robbery, drug trafficking and a range of offences could escape trial and convictions resulting in long prison sentences and even death, if the DWT laws are used, and these who did commit crimes can end up being released in a couple of years. A murderer could be free in 2 years, when if tried and convicted, he would have been sentenced to death.

A trial is open to the public, and reasons not to charge may be because there maybe something that the government may want to hide from the general public. As such DWT laws can be abused to protect other criminals, and even their bosses or persons who instructed them to commit crime.

DWT laws – promotes incompetence of police and law enforcement

If DWT laws are used then the police and/or prosecution simply do not have to work hard to find evidence to prove someone is really guilty. Would simply subjecting one to DWT laws mean criminal investigation files are closed? This may mean that the innocent may languish in DWT detention, whilst the truly guilty may still be free out there.

It is certainly not for the police or the government to decide who is guilty and who is not – that is role and duty of judges and courts after a fair trial. One must never forget the presumption of innocence until proven guilty after a fair trial before independent judges.

How many victims of DWT laws? What is the alleged crimes?

Malaysia is not transparent in disclosing the number of current victims of the DWT laws, and for what allegation are they being made victims of DWT laws.

The victims may not be prominent politicians or personalities, but all Malaysians ought to be concerned about this large group of victims of DWT laws, who are denied even their fundamental right to a fair trial.

 

MADPET (Malaysians Against Death Penalty and Torture) reiterates the call for the immediate abolition of all Detention Without Trial Laws. Everyone should be accorded the right to a fair trial.

MADPET also calls for the immediate and unconditional release of all those currently detained or restricted under DWT laws.

MADPET urges political parties and/or coalition to all political parties to take a clear stand for the abolition of all Detention without Trial Laws. A clear party position prevents U-turns when they come into power.

MADPET proposes longer periods of remand for certain serious ‘national security’ crimes, to enable police and law enforcement to complete their investigation, and for an immediate moratorium on the use of DWT laws pending abolition.

MADPET urges the government to forthwith provide quarterly report on the number of victims of the different DWT laws, whether they be detained, restricted and/or under other orders.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Single Mother of 9 sentenced to death for drug trafficking raises urgency for abolition of death penalty, and need for just sentences for drug offences

Media Statement – 20/10/2021

Single Mother of 9 sentenced to death for drug trafficking raises urgency for abolition of death penalty, and need for just sentences for drug offences

Hairun Jalmani, 55, a single mother of nine was sentenced to death at the Tawau High Court Sabah last Friday after being found guilty of drug trafficking three years ago. The accused, a fish seller, was charged with possessing syabu weighing 113.9g in an unnumbered house in Kampung Pangkalan Wakuba, Batu 15, Jalan Apas, Tawau, Sabah at 5.30pm, on Jan 10, 2018.

In Malaysia, possession of 50 grammes or more in weight of Methamphetamine (or syabu) shall be legally presumed, until the contrary is proved, that one is a drug trafficker.(Sec. 37, DDA). This means the accused is then left with the onerous burden of proving that she was not involved in drug trafficking, or even that the drugs were not hers. Generally, in criminal cases, it is the prosecution that have to prove in court that the person is guilty, but here it is the accused that must proof that he/she is not a drug trafficker, even that the said drugs found in her possession did not belong to her, or was in her possession without her knowledge and/or consent.

Unlike murder, where someone is killed, drug trafficking offence does not directly deprive the life of any particular person. This makes one wonder whether the current sentences for these offences. Surely, offences like kleptocracy and corruption, where perpetrators inadvertently steal from the Malaysian people ought to be more serious offences.

In this case, one wonders whether poverty and other factors may have played a part in ‘forcing’ a single mother to resort to crime, whereby blame also on government failings to look after the welfare of its people.

Another issue that is raised is the question of the best interest of a child, when a parent, in this case the mother, is sent to death row.

Drug possession and drug trafficking is undoubtedly an offence that need to be punished, but reasonably should not Malaysia’s sentencing policy place more emphasis on rehabilitation towards later  re-integration into society and second chances. The practice of a lighter sentence for first time offenders and higher sentences for repeat offenders really need to be considered.

Sadly, Hairun Jalmani case happens just days after we celebrated the World Day against Death Penalty (10th October), whose theme this year is ‘Women: Sentenced To Death: An Invisible Reality’.

Death Penalty is again proven not to be a Deterent to drug offences

On 2/10/2021, Bukit Aman Narcotics Criminal Investigation Department (JSJN) director Datuk Razarudin Husain said ‘…during the first eight months of this year, the police had seized 18 tonnes of drugs, an increase of 80 per cent compared with the corresponding period last year, which was 10.5 tonnes…’ (Star, 2/10/2021). This is clear evidence that the death penalty is certainly not a deterrent to drug trafficking.

In March 2012, it was also revealed in Parliament by the then 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).

Drug Trafficking – Post Umi Azlim reflections demand abolition of Death Penalty

In 2017, Umi Azlim Mohamad Lazim, 24, a university science graduate from a poor Malay family of rice farmers, was sentenced to death for drug trafficking for having 2.9 kilograms heroin in her luggage when she was arrested at Shantou airport. She was allegedly carrying the luggage for an acquaintance, not aware of the contents. Her death sentence was later commuted to life imprisonment, which often happens in China on review. In 2019, Umi reportedly said that she may be released by 2025 for good behaviour(NST,6/10/2019).

Umi Azlim’s case and others did cause a change in position of the Malaysian government and even political parties like PAS and UMNO about the injustices of death penalty for drug offences. Members of the Cabinet then reportedly said ‘…young Malaysian girls, some fresh graduates, were easily conned by men from the syndicates to travel abroad with a package…’ The report also stated that ‘…Malaysian lasses are an easy lot to charm. They are easily smitten by sweet words and gifts, making them an easy target for drug-trafficking syndicates looking for mules…’ (Star, 1/11/2009, Malaysian girls easily duped).

It not just young women, but man and women of all ages that can easily be duped, or maybe even make wrong choices by reason of poverty and desperation. It is also an acknowledged fact that most arrested, convicted and on death row for drug trafficking are really ‘mules’ and small players, and not the kingpins and masterminds involved in drug trafficking. These ‘big bosses’ may then simply to find drug mules from those who are not well educated, ignorant or those who are desperate for quick money.

Malaysia took the first step by amending the Dangerous Drugs Act that provided the mandatory death penalty for drug trafficking, to provide an alternate sentence of life imprisonment plus at least 15 strokes of the whip. There is however much lacking in the amendment, as we still see the death sentence.

Drug trafficking offence was influenced by US’s ‘War on Drugs’

In 1971, the US started the ‘War on Drugs’ and on 30/4/1975, the offence of drug trafficking came into being in Malaysia, and with the sentence being death or imprisonment for life plus whipping.

In April 1983, the sentence was amended to a mandatory death penalty. That could be because they wanted to deter that crime, but clearly the death penalty has failed to be a deterrent, and Malaysian prisons are filling up with drug trafficking death row prisoners

On 15/3/2018, the Dangerous Drugs Act 1952(DDA), and drug trafficking has an alternate sentence to death, being to imprisonment for life (plus whipping of not less than fifteen strokes).

However, to be sentenced to alternate sentence of life imprisonment, certain conditions had to be satisfied, and amongst this in the unjust mandatory condition, being that ‘…the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’ Not only is this condition most unreasonable, but it also violates one’s right to a fair trial. It has the tendency of forcing an innocent person to undermine his/her appeals to avoid the death sentence.

Hairun Jalmani, the single mother, who may not be really guilty of drug trafficking certainly would not  have the capacity of helping anyone disrupt drug trafficking activities. So, she will be sentenced to death.

MADPET (Malaysians Against Death Penalty and Torture) calls for the abolition of death penalty and even life imprisonment for drug offences, including drug trafficking. Parliament should maybe provide maximum sentences, and leave it to judges to determine appropriate just sentences depending on facts and circumstances of each case;

MADPET calls for the repeal of legal presumption of drug trafficking simply on the basis of what the police found in the possession of an accused. Prosecution must prove drug trafficking.

MADPET reiterates the call for moratorium on executions pending abolition of the death penalty in Malaysia.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Police call for harsher punishment for syabu-related offences(Star) - Proof Death Penalty Not A Deterrent

Police call for harsher punishment for syabu-related offences

Nation

Saturday, 02 Oct 2021 11:10 AM MYT

KUALA LUMPUR (Bernama): The Dangerous Drugs Act 1952 needs to be improved in line with current developments so that efforts by the Royal Malaysia Police (PDRM) to eliminate drug abuse can be carried out more effectively.

Bukit Aman Narcotics Criminal Investigation Department (JSJN) director Datuk Razarudin Husain said the improvements that needed to be done included reducing the weight of drugs that can be charged under Section 39B of the law and also to charge those involved in drug trafficking under the Anti-Money Laundering and Anti-Terrorism Financing Act (AMLA) 2001.

"Currently, under Section 39B of the Dangerous Drugs Act, the weight is 15 grammes for heroin or 50 grammes for methampetamine for offenders to be given the death penalty and life imprisonment. There is a need for the weight of methampetamine or syabu to be reduced to 15 grammes or lower." said Razarudin.

"This is because Methamphetamine or syabu is the most seized drug currently, compared to ketamine, cannabis and heroin... when the Dangerous Drugs Act was formulated, heroin was the drug that was most smuggled into the country. I believe by doing this we will be able to eliminate the drug traffickers, ” he added when speaking to Bernama here.

Razarudin said the proposal had been submitted by the police to the Home Ministry through the legal division.

He said during the first eight months of this year, the police had seized 18 tonnes of drugs, an increase of 80 per cent compared with the corresponding period last year, which was 10.5 tonnes.

"Most of the drugs seized were methampetamine which is popular among local drug users," he added.

Razarudin said that methamphetamine is also exported to other countries, such as Australia, New Zealand, Greece, the United Kingdom, Indonesia and Korea.

He said the high price and demand for the drug in those countries made local syndicates take the opportunity to export the banned substance.

"For example, from information obtained, a kilogramme of methamphetamine that was bought by a local syndicate for RM30,000 from a syndicate from the Golden Triangle can be sold for up to 200,000 Australian Dollars (RM 607,712) in Australia," he added.

He said the close cooperation between the Malaysian police and foreign anti-drug agencies had managed to curb the activities of the smuggling syndicates to some extent.

Razarudin also said that he hoped that the number of JSJN personnel could be increased in line with the increase in seizures and cases involving drugs that were recorded every day.

"Currently, the number of personnel at JSJN is only about 4.7 percent of the total number of police personnel, and we have applied for an additional 2,000 members," he added. - Bernama - Star, 2/10/2021