Malaysis votes in FAVOUR in the UN Human Rights Council Resolution on 'Question of Death Penalty (A/HRC/54/L.34) on 13/10/2023

On 13/10/2023, Malaysia was one of the 28 members of the Human Rights Council that voted in FAVOUR of the Human Rights Council Resolution on the Question of the Death Penalty

54/… Question of the death penalty    (A/HRC/54/L.34)

 

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Recalling the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and all other relevant international and regional human rights instruments, and reaffirming that all States must implement their obligations under international human rights law, 

Recalling also the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty,

Recalling further General Assembly resolutions 62/149 of 18 December 2007, 63/168 of 18 December 2008, 65/206 of 21 December 2010, 67/176 of 20 December 2012, 69/186 of 18 December 2014, 71/187 of 19 December 2016, 73/175 of 17 December 2018, 75/183 of 16 December 2020 and 77/222 of 15 December 2022 on the question of a moratorium on the use of the death penalty,

Reaffirming the safeguards guaranteeing the protection of persons facing the death penalty set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984 and the provisions regarding the implementation of the guidelines contained in Council resolutions 1989/64 of 24 May 1989 and 1996/15 of 23 July 1996,

Recalling all resolutions of the Commission on Human Rights on the question of the death penalty, the last of which was resolution 2005/59 of 20 April 2005,

Recalling also Human Rights Council decision 18/117 of 28 September 2011 on reporting by the Secretary-General on the question of the death penalty, Council resolution 22/11 of 21 March 2013 on a panel on the human rights of children of parents sentenced to the death penalty or executed, Council decision 22/117 of 21 March 2013 on a high-level panel discussion on the question of the death penalty, and Council resolutions 26/2 of 26 June 2014, 30/5 of 1 October 2015, 36/17 of 29 September 2017, 42/24 of 27 September 2019 and 48/9 of 8 October 2021 on the question of the death penalty,

Taking note of the reports of the Secretary-General on the question of the death penalty, in the latest of which the Secretary-General focused on the relationship between articles 6 and 14 of the International Covenant on Civil and Political Rights, focusing on the right to seek pardon or commutation of sentences and the right to have one’s conviction and sentence reviewed by a higher tribunal according to law, in accordance with the safeguards guaranteeing protection of the rights of those facing the death penalty set out in the annex to Economic and Social Council resolution 1984/50, and in which he analysed the applicable legal framework and shared available data and examples of national practices,1

Acknowledging the report of the Office of the United Nations High Commissioner for Human Rights on the high-level panel discussion on the question of the death penalty, according to which the panel found that the death penalty continues to be provided and applied for crimes that do not meet the threshold of “the most serious crimes”, including drug-related offences,

Stressing that the term “the most serious crimes” has consistently been read restrictively and interpreted as pertaining only to crimes of extreme gravity involving intentional killing, and stressing also that under no circumstances can the death penalty ever be applied as a sanction against specific forms of conduct, such as apostasy, blasphemy, adultery, consensual same-sex conduct or relations, establishing political opposition groups or offending a head of State, and that States parties that retain the death penalty for such offences commit a violation of their international obligations,

Mindful of the work of the special procedure mandate holders who have addressed human rights issues relating to the death penalty, including the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,

Mindful also of the work undertaken by the treaty bodies to address human rights issues relating to the death penalty,

Recognizing the role of regional and subregional instruments and initiatives towards the abolition of the death penalty, which in some cases have led to the prohibition of the use
of the death penalty,

Welcoming the fact that the international trend towards the abolition of the death penalty is continuing, that many States are applying a moratorium on the use of the death penalty, and all measures taken by States towards limiting the application of the death penalty,

Noting that States with different legal systems, traditions, cultures and religious backgrounds have abolished the death penalty or are applying a moratorium on its use,

Recalling article 6 (6) of the International Covenant on Civil and Political Rights, which states that nothing in that article shall be invoked to delay or to prevent the abolition of capital punishment by any State party to the Covenant, and bearing in mind that, according to the Human Rights Committee, States parties that are not yet totally abolitionist should be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure, in the foreseeable future,

Noting that, also according to the Human Rights Committee, States parties to the International Covenant on Civil and Political Rights that have abolished the death penalty are barred from reintroducing it, and noting also that the reinstatement of the death penalty by a State party to the Second Optional Protocol to the International Covenant on Civil and Political Rights is a violation of international law,

Recalling that derogation from the right to life is never permitted, even during a state of emergency,

Acknowledging the interest in studying the question of the death penalty, as well as in holding local, national, regional and international debates related thereto,

Emphasizing the importance for the effectiveness and transparency of debates on the death penalty of ensuring that the public has access to balanced information, including accurate information and statistics on criminality and the various effective ways to combat it without resorting to capital punishment,

Strongly deploring the fact that the use of the death penalty leads to violations of the human rights of the persons facing the death penalty and of other affected persons,

Recalling that, particularly in capital punishment cases, States are required to ensure that all persons benefit from a fair trial and a guarantee of due process, by providing adequate assistance of legal counsel from the earliest stages of their detention and at every stage of the
proceedings, without discrimination of any kind, and effective access to documents and other
evidence that are essential for their defence, and that failure to respect fair trial guarantees in
proceedings resulting in the imposition of the death penalty could constitute a violation of the right to life,

Emphasizing that it is important that States ensure that due process and fair trial guarantees and safeguards, including the right to have one’s conviction and sentence reviewed by a higher tribunal according to law and the right to seek pardon and commutation, are effectively in place and implemented,

Recalling that the right of everyone convicted of a crime to have their conviction and sentence reviewed by a higher tribunal according to the law includes a duty on States to review the conviction and sentence on the merits, and stressing that a violation of this right in proceedings resulting in the imposition of the death penalty renders the death sentence arbitrary in nature and in violation of the right to life,

Underscoring that the denial of legal assistance by the tribunal reviewing the death sentence of an indigent convicted person precludes an effective review of the conviction and sentence by the higher tribunal, and that such denial of legal assistance constitutes a violation of article 14 (3) (d) and (5) of the International Covenant on Civil and Political Rights,

Reaffirming that States are required to allow individuals sentenced to death to seek pardon or commutation, that amnesties, pardons and commutations can be granted to them in appropriate circumstances, that such requests for pardon or commutation are thoroughly examined and that death sentences are not carried out in the event any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence remain pending or unresolved,

Reaffirming also that, under international human rights law, no category of sentenced persons may be excluded in law or in practice from pardons or commutations of a death sentence, and that the conditions for attainment of relief must not be unnecessarily burdensome, discriminatory in nature or applied in an arbitrary and non-transparent manner, and expressing concern that, while many countries provide for the right to seek pardon or commutation of a death sentence in their national legislation, certain crimes are often excluded from it, or the number of pardons or commutations may be capped,

Underlining that in all cases where the death penalty may be imposed, the personal circumstances of the offender and the particular circumstances of the offence, including its specific attenuating elements, must be considered by the sentencing court, and expressing concern, in this regard, that the use of mandatory death sentences is arbitrary in nature and irreconcilable with the right to life and the right to a fair trial,

Stressing that those convictions resulting in the death penalty based on information obtained through torture or cruel, inhuman or degrading treatment of interrogated persons violate article 15 of the Convention against Torture and articles 7, 14 (3) (g) and 6 of the International Covenant on Civil and Political Rights,

Considering that, in order to avoid wrongful convictions in death penalty cases, States should take all feasible measures to review procedural barriers to reconsideration of convictions and to re-examine past convictions based on new evidence, including new DNA evidence,

Recalling that persons sentenced to death, their families and their lawyers should be provided with timely and reliable information on the procedures and timing of appeals, clemency petitions and executions,

Stressing the need to examine further in which circumstances the imposition or application of the death penalty violates the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, including because of the death row phenomenon, the methods of execution or the lack of transparency around executions,

Emphasizing that access to consular assistance for foreign nationals, provided for in the Vienna Convention on Consular Relations, is an important aspect of the protection of those facing the death penalty abroad,

1. Urges all States to protect the rights of persons facing the death penalty and other affected persons by complying with their international obligations;

2. Calls upon States that have not yet acceded to or ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, to consider doing so;

3. Calls upon States that have not yet abolished the death penalty to take active steps to reduce the number of offences for which the death penalty may be imposed and to limit them strictly to “the most serious crimes”;

4. Calls upon States that provide for or apply the mandatory death penalty to end this practice;

5. Urges all States to respect international standards that provide safeguards guaranteeing protection of the human rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;

6. Also urges all States to ensure that all legal proceedings, including those before special tribunals or jurisdictions, and particularly those relating to capital offences, uphold the rights and are consistent with the minimum procedural guarantees contained in article 14 of the International Covenant on Civil and Political Rights, including:

(a) That those facing the death penalty can exercise their right to apply for pardon or commutation of their death sentence, notably by ensuring necessary procedural guarantees,
such as that conditions for attaining pardons or commutations are not unnecessarily burdensome, discriminatory in nature or applied in an arbitrary and non-transparent manner,
that clemency applications are heard within a reasonable period of time, and that certainty is
provided regarding the pardon and commutation procedures;

(b) That everyone sentenced to death has the right to have his or her conviction and sentence reviewed by a higher tribunal according to the law, and that the conviction and sentence are reviewed on the merits, on the basis of the sufficiency of the evidence and the law, while taking particular care to consider and investigate fully allegations that a death sentence is based on evidence elicited through torture or ill-treatment, noting that the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) can provide useful guidance regarding investigations into such allegations, and that civilian courts have the right to review any death sentences issued against civilians by military tribunals;

7. Calls upon States to ensure that all accused persons, in particular poor and economically vulnerable persons and persons with disabilities, can exercise their rights relating to equal access to justice, to ensure adequate, qualified and effective legal representation at every stage of civil and criminal proceedings in cases of capital punishment through effective legal assistance, and to ensure that those facing the death penalty can exercise their right to seek pardon or commutation of their death sentence;

8. Also calls upon States to comply with their obligations under article 36 of the Vienna Convention on Consular Relations, and to inform without delay foreign nationals who have been arrested or detained of their right to contact the relevant consular post and to communicate with their consular representatives, bearing in mind that failure to promptly inform detained foreign nationals of their right to consular notification pursuant to the Vienna Convention on Consular Relations, resulting in the imposition of the death penalty, would likely violate the right to life;

9. Calls upon States that have not yet abolished the death penalty to make available systematically and publicly full, accurate and relevant information, disaggregated by gender, age, nationality, race, disability and other applicable criteria, with regard to their use of the death penalty, inter alia, the charges, number of persons sentenced to death, the number of persons on death row and the location of their detention, the number of executions carried out and the number of death sentences reversed, commuted on appeal or in which amnesty or pardon has been granted, as well as information on any scheduled execution, which can contribute to possible informed and transparent national and international debates, bearing in mind that access to reliable information on the imposition and application of the death penalty enables national and international stakeholders to understand and assess the scope of these practices, including about compliance with the obligations of States with regard to the use of the death penalty;

10. Requests the Secretary-General to dedicate the 2025 supplement to his quinquennial report on capital punishment to the consequences arising at various stages of the imposition and application of the death penalty on the enjoyment of the human rights of persons facing the death penalty and other affected persons, paying specific attention to equality of arms, the need to prevent miscarriage or failure of justice, and the irreversibility of the death penalty, and to present it to the Human Rights Council for consideration at its sixtieth session and to make it available in all languages before the session;

11. Decides that the upcoming biennial high-level panel discussion to be held during the fifty-eighth session of the Human Rights Council will address the contribution of the judiciary to the advancement of human rights and the question of the death penalty;

12. Requests the Office of the United Nations High Commissioner for Human Rights to organize the high-level panel discussion and to liaise with States, relevant United Nations bodies, agencies, treaty bodies, special procedures and regional human rights mechanisms, as well as with parliamentarians, civil society, including non-governmental organizations, and national human rights institutions with a view to ensuring their participation in the panel discussion, and to make the biennial panel discussion fully accessible;

13. Also requests the Office of the High Commissioner to prepare a summary report on the panel discussion, also in an accessible format, and to submit it to the Human Rights Council at its sixtieth session;

14. Decides to continue its consideration of this issue in accordance with its programme of work.

Note:

The results of the vote on L.34 are as follows:

In favour (28): Argentina, Belgium, Benin, Bolivia, Chile, Costa Rica, Cote d’Ivoire, Czechia, Finland, France, Gabon, Georgia, Germany, Honduras, Kazakhstan, Kyrgyzstan, Lithuania, Luxembourg, Malaysia, Mexico, Montenegro, Nepal, Paraguay, Romania, South Africa, Ukraine, United Kingdom and Uzbekistan.

Against(11): Bangladesh, Cameroon, China, India, Maldives, Pakistan, Qatar, Somalia, Sudan, United Arab Emirates and United States.

Abstentions (7): Algeria, Eritrea, Gambia, Malawi, Morocco, Senegal and Viet Nam.

SOURCE: UN Website

Malaysia, amongst 125 countries, that voted in favour of the 2022 UN General Assembly Resolution towards abolition of the Death Penalty on 15/12/2022

 

77/222. Moratorium on the use of the death penalty - Resolution adopted by the General Assembly on 15 December 2022. Malaysia voted in favour

Resolution adopted by the General Assembly on 15 December 2022
[on the report of the Third Committee (A/77/463/Add.2, para. 87)]

77/222. Moratorium on the use of the death penalty

 

The General Assembly,

Guided by the purposes and principles contained in the Charter of the United Nations,

Reaffirming the Universal Declaration of Human Rights, 1 the International Covenant on Civil and Political Rights2 and the Convention on the Rights of the Child,3

Recalling the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty,4 and in this regard welcoming the increasing number of accessions to and ratifications of the Second Optional Protocol,

Recalling also its resolutions 62/149 of 18 December 2007, 63/168 of 18 December 2008, 65/206 of 21 December 2010, 67/176 of 20 December 2012, 69/186 of 18 December 2014, 71/187 of 19 December 2016, 73/175 of 17 December 2018 and 75/183 of 16 December 2020 on the question of a moratorium on the use of the death penalty, in which the General Assembly called upon States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing it, 

Recalling further all relevant decisions and resolutions of the Human Rights Council, the most recent of which was resolution 48/9 of 8 October 2021,5

Mindful that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable,

Convinced that a moratorium on the use of the death penalty contributes to respect for human dignity and to the enhancement and progres sive development of human rights, and considering that there is no conclusive evidence of the deterrent value of the death penalty,

Noting ongoing local and national debates and regional initiatives on the death penalty, as well as the readiness of an increasing number of Member States to make available to the public information on the use of the death penalty, and also, in this regard, the decision by the Human Rights Council in its resolution 26/2 of 26 June 20146 to convene biennial high-level panel discussions in order to further exchange views on the question of the death penalty,

Recognizing the role of national human rights institutions and civil society in contributing to ongoing local and national debates and regional initiatives on the death penalty,

Noting the long-term reductions in reported executions, as well as the increase in commutations of death sentences, and welcoming all measures taken by States towards limiting the application of the death penalty,

Emphasizing the need to ensure that persons facing the death penalty have access to justice without discrimination of any kind, including access to legal counsel, that they are treated with humanity and with respect for their inherent dignity and in compliance with their rights under international human rights law, and to improve conditions in prisons in accordance with international standards, such as the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),7

Noting with deep concern that, as shown in recent reports of the Secretary-General, frequently, poor and economically vulnerable persons, foreign nationals, persons exercising their human rights and persons belonging to religious or ethnic minorities are disproportionately represented among those sentenced to the death penalty and the discriminatory application of the death penalty, to women, 8

Noting that transparent reporting and access to information regarding the use of the death penalty and criminal prosecutions can expose discriminatory practices or impact in the imposition and application of the death penalty, and recalling that, particularly in cases of capital punishment, States must guarantee transparency in order to ensure that all persons benefit from due process guarantees,

Noting also the negative impact that the imposition of the death penalty has on the rights of children and youth whose parents or parental caregivers face the death penalty, as well as other family members,

Noting further the technical cooperation among Member States, as well as the role of relevant United Nations entities and human rights mechanisms, in supporting State efforts to establish moratoriums on the death penalty,

Bearing in mind the work of the treaty bodies and special procedure mandate holders that have addressed human rights issues related to the death penalty within the framework of their respective mandates,

Welcoming the considerable movement towards the abolition of the death penalty globally and the fact that many States with different legal systems, traditions, cultures and religious backgrounds are applying a moratorium, including long -standing moratoriums, either in law or in practice, on the use of the death penalty,

1. Reaffirms the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations;

2. Expresses its deep concern about the continued application of the death penalty;

3. Welcomes the report of the Secretary-General on the implementation of resolution 75/183 and the recommendations contained therein;9

4. Also welcomes the steps taken by some States to reduce the number of offences for which the death penalty may be imposed, as well as steps taken to limit its application, including by commuting death sentences;

5. Further welcomes initiatives and political leadership encouraging national discussions and debates on the possibility of moving away from capital punishment through domestic decision-making;

6. Welcomes the decisions made by an increasing number of States from all regions, at all levels of government, to apply a moratorium on executions, followed in many cases by the abolition of the death penalty;

7. Calls upon all States:

(a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984, as well as to provide the Secretary-General with information in this regard;

(b) To comply with their obligations under article 36 of the 1963 Vienna Convention on Consular Relations,10 particularly the obligation of a receiving State to, without delay, inform a sending State that a national of that State has been arrested or committed to prison or to custody pending trial or is detained in any other manner, if the person concerned so requests; and the obligation of a receiving State to inform the person concerned without delay of their rights under article 36;

(c) To make available relevant information, disaggregated by sex, age, disability, nationality and race, as applicable, and other applicable criteria, with regard to their use of the death penalty, inter alia, the number of persons sentenced to death, the number of persons on death row and the location of their detention, and the number of executions carried out, the number of death sentences reversed or commuted on appeal or in which amnesty or pardon has been granted, and according to which procedure, as well as information on any scheduled execution, which can contribute to possible informed and transparent national and international debates, including on the obligations of States pertaining to the use of the death penalty;

(d) To ensure that any trial leading to the imposition of the death penalty complies with internationally recognized fair trial guarantees, such as a fair and public trial and the right to legal assistance, including adequate access to legal counsel at every stage of the proceedings, without discrimination of any kind, including for persons belonging to minorities and foreign nationals, bearing in mind that namely failure to respect fair trial guarantees in proceedings resulting in the imposition of the death penalty could constitute a violation of the right to life;

(e) To progressively restrict the use of the death penalty and not to impose capital punishment for offences committed by persons below 18 years of age or whose age above 18 years at the time of the commission of the crime cannot be accurately determined, on pregnant women or on persons with mental or intellectual disabilities;

(f) To reduce the number of offences for which the death penalty may be imposed, including by considering removing the mandatory application of the death penalty;

(g) To ensure that those facing the death penalty can exercise their right to apply for pardon or commutation of their death sentence by ensuring that clemency procedures are fair and transparent and that prompt information is provided at all stages of the process;

(h) To ensure that children whose parents or parental caregivers are on death row, the inmates themselves, their families and their legal representatives are provided, in advance, with adequate information about the location of their detention, a pending execution, its date, time and location, to allow a last visit or communication with the convicted person, the return of the body to the family for burial or to inform on where the body is located, unless this is not in the best interests of the child;

(i) To provide access for persons sentenced to death to information related to the method of execution, in particular the precise procedures to be followed;

(j) To ensure that the death penalty is not applied on the basis of discriminatory laws, including laws which target individuals for exercising their human rights, or as a result of discriminatory or arbitrary application of the law;

(k) To improve conditions in detention for those on trial for capital crimes or on death row, by ensuring that all prisoners are treated with humanity and with respect for their inherent dignity, and complying with international standards, such as the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular by evaluating, promoting, protecting and improving their physical and mental health;

(l) To establish a moratorium on executions with a view to abolishing the death penalty;

8. Calls upon States which have abolished the death penalty not to reintroduce it, and encourages them to share their experience in this regard;

9. Encourages States which have a moratorium to maintain it and to share their experience in this regard;

10. Calls upon States that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;

11. Requests the Secretary-General to report to the General Assembly at its seventy-ninth session on the implementation of the present resolution;

12. Decides to continue consideration of the matter at its seventy-ninth session under the item entitled “Promotion and protection of human rights”.

54th plenary meeting
15 December 2022

Endnotes

1 Resolution 217 A (III).
2 See resolution 2200 A (XXI), annex.
3 United Nations, Treaty Series, vol. 1577, No. 27531.
4 Ibid., vol. 1642, No. 14668.
5 See Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 53A
(A/76/53/Add.1), chap. IV, sect. A.

6 Ibid., Sixty-ninth Session, Supplement No. 53 (A/69/53), chap. V, sect. A.
7 Resolution 70/175, annex.
8 See, inter alia, A/73/260 and A/75/309.

 

 

Malaysia, amongst 125 countries, that voted in favour of the 2022 UN General Assembly Resolution towards abolition of the Death Penalty on 15/12/2022

Malaysia’s Death Row will continue to have occupants, existing and new, until Malaysia totally abolishes the Death Penalty--Inconsistency arises since Malaysia already abolished Life Imprisonment

Media Statement – 30/5/2024

Malaysia’s Death Row will continue to have occupants, existing and new, until Malaysia totally abolishes the Death Penalty

Inconsistency arises since Malaysia already abolished Life Imprisonment

MADPET (Malaysians Against Death Penalty and Torture) notes sadly that on 29/5/2024, the Federal Court upheld death sentence of former businessman for murder of UUM graduate 18 years ago The court dismissed Shahril Jaafar’s review application to commute his death sentence to life imprisonment under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.(Malay Mail, 29/5/2024). It must be noted that in most cases, death sentence has been commuted to imprisonment plus whipping, and there has been no public outcry when this happened.

Despite the abolition of the Mandatory Death Penalty when Abolition of Mandatory Death Penalty Act 2023, when it came into force on 4/7/2023, the death penalty remains. All that the Abolition of Mandatory Death Penalty Act did was to provide an alternative sentence to death, being the sentence of long imprisonment and whipping.

Other examples in revision of sentence cases - on 4/1/2024, the Federal Court also upheld the death sentence for ex-guard who was convicted for 2 murders. (Star, 4/1/2024). On 5/3/2024, the Federal Court upheld the death sentence against four men who caused the death of a 32-year-old Batu Kawa woman in 2007. (Borneo Post, 5/3/2024). On 16/5/2024, The Federal Court upheld the death sentence of a Singaporean man for the murder of his eight-year-old Thai stepson in 2008. (Star, 16/5/2024).

In these Revision cases, prejudice lies in the fact that these cases were then defended on the basis that conviction carries the mandatory death penalty, as it would be different if the sentence then could also be prison sentence that had a range. In cases, more so when there are multiple accused, then lawyers would have raised factors that would mitigate sentences and most unlikely that all would get the exact same sentence – death.  

On 14/3/2024, the Court of Appeal upheld the death sentence of six men convicted of murdering Deputy Public Prosecutor Datuk Anthony Kevin Morais nine years ago. (Malay Mail, 14/3/2024). This was an appeal of a High Court decision made in 2020, before the mandatory death penalty was abolished. It is difficult to adduce new evidence during an appeal. After the mandatory death penalty was repealed, it more likely that the ‘leader’ may get a highest sentence.

Languishing in Death Row after Malaysia Abolished Life Imprisonment? 

This puts Malaysia into a serious dilemma, considering that Malaysia had publicly committed to the abolition of the death penalty, when they voted in favour of the United Nations General Assembly Resolution 73/175 of 17 December 2018, 75/183 of 16 December 2020 and 77/222 of 15 December 2022 to impose a moratorium on execution pending the abolition of the death penalty. These resolutions was supported by the post GE14 Pakatan Harapan Government in 2018, the Perikatan Nasional government in 2020, and Prime Minister Anwar Ibrahim’s Pakatan Harapan led-coalition (also known as ‘Unity Government) in 2022. This indicates that all major political parties in Malaysia have taken the stance that Malaysia will abolish the death penalty, and until then, no one will be hanged to death.

When Malaysia’s Abolition of Mandatory Death Penalty Act came into force, it did not just abolish mandatory death penalty, but also life imprisonment.

Thus, what will happen to persons still being sentenced to death by courts. Will they be put on death row until they die? This goes contrary to the fact that Malaysia has abolished life imprisonment.

Now, those on death row now whose death sentence is upheld by the Federal Court during the review application, or those who may still be sentenced to death as the death penalty is still an available sentence in law for more than 30 offences, their death sentence can only be commuted to imprisonment if they are pardoned by the King or Rulers, or if they are successful in some subsequent application to court.

Be True To Commitment To Abolish Death Penalty

Malaysia, being a member of the United Nation Human Rights Council did on 13/10/2023 did vote in favour of Resolution on the Question of the death penalty (A/HRC/54/L.34) which was supported by 28. 11 member States voted against, and 7 abstained.

In so doing, Malaysia did “…Strongly deploring the fact that the use of the death penalty leads to violations of the human rights of the persons facing the death penalty and of other affected persons’ and took the position ‘…that derogation from the right to life is never permitted, even during a state of emergency…’

Parliament, Not Courts, To Be Blamed for New and Existing Tenants of Death Row

Until and unless the death penalty is abolished in law, there will always remain the possibility that some will remain in death row, and new persons will be sentenced to death. Blame will lie not with the courts and Judges, but with Parliament who need to totally abolish the death sentence.

Given the public stance taken by this government, and by the Opposition Perikatan Nasional when they voted in favour UN General Assembly Resolution in 2020, MADPET do not foresee any objections if this government tables laws now to totally abolish the death penalty.

It is sad that death sentence is available for offences that even does not directly result in death or serious bodily injury of victims.

A person languishing in prison continue to be punished for years, with time to repent or reform, whilst a person once executed ceases to suffer for his/her crimes.

MADPET calls for the immediate repeal of the death penalty, and for the continued imposition of the moratorium on execution pending abolition of the death penalty, and

MADPET also calls on Malaysia to accede to or ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights. Note that this was  part of the UN General Assembly Resolutions and Human Rights Council Resolution that Malaysia supported.

Charles Hector

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

 

 

 

 

 

Federal Court upholds death sentence of former businessman for murder of UUM graduate 18 years ago

In 2015, Shahril, 43, was found guilty by the Alor Setar High Court of killing Chee, a Universiti Utara Malaysia graduate, near the Cinta Sayang Club in Taman Ria Jaya, Sungai Petani, between 5.30pm on January 14 and 3.05am on January 15, 2006. He was sentenced to death, and his subsequent appeals at the Court of Appeal and Federal Court were dismissed in 2016 and 2018, respectively. — Bernama pic

Wednesday, 29 May 2024 4:55 PM MYT

PUTRAJAYA, May 29 — The Federal Court here today upheld the death sentence of a former businessman for the murder of a female marketing executive 18 years ago.

The three-member panel comprising Justices Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan, and Datuk Abu Bakar Jais dismissed Shahril Jaafar’s review application to commute his death sentence to life imprisonment under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.

“We wish to reiterate this court is always aligned to compassion and mercy. In our view this is an exceptional case with exceptional facts,” said Justice Harmindar.

He said the deceased (Chee Gaik Yap) had suffered exceptional violence at Shahril’s hands. He pointed out that the 25-year-old woman was abducted, sodomised, raped, and killed by Shahril.

He said the crime caused public uproar and shock, adding that the incident took place in broad daylight.

“We are constrained to dismiss Shahril’s application and the death sentence is upheld,” said Justice Harmindar.

In 2015, Shahril, 43, was found guilty by the Alor Setar High Court of killing Chee, a Universiti Utara Malaysia graduate, near the Cinta Sayang Club in Taman Ria Jaya, Sungai Petani, between 5.30pm on January 14 and 3.05am on January 15, 2006.

He was sentenced to death, and his subsequent appeals at the Court of Appeal and Federal Court were dismissed in 2016 and 2018, respectively.

Earlier, Shahril’s lawyer Rosli Kamaruddin asked the court to commute the death sentence imposed on his client to life imprisonment.

He conveyed Shahril’s remorse and appealed to the court for a chance at redemption, citing his client’s active participation in prison rehabilitation programmes as a testament to his commitment to repent.

Deputy public prosecutor (DPP) Datuk Dusuki Mokhtar, who was assisted by DPP Solehah Noratikah Ismail objected to Shahril’s application and urged the court to uphold the death sentence, noting that this is the rarest of rare cases.

He said it was a brutal kidnap, rape, sodomise, and murder of a young lady who had gone jogging with her younger sister, adding that her semi-nude body was found nine hours later in a bush near the jogging track.

Dusuki said forensic pathologists found 50 wounds on Chee’s body, including around her private parts where Shahril’s DNA was found.

He said Shahril fled to Australia for three years to avoid investigation and arrest. He was finally detained six years later at KLIA upon his arrival from Perth in January 2012. — Bernama - Malay Mail, 29/5/2024

Appeals Court upholds death sentence of six men convicted of murdering Kevin Morais

The six men convicted of murdering Kevin Morais are former pathologist, Colonel Dr R. Kunaseegaran, 61; money lender, S. Ravi Chandran, 53; and four unemployed, R. Dinishwaran, 32; AK Thinesh Kumar, 31; M. Vishwanath, 34; and S. Nimalan, 31. — File picture by Choo Choy May

Thursday, 14 Mar 2024 11:08 AM MYT

PUTRAJAYA, March 14 — The Court of Appeal here today upheld the death sentence of six men convicted of murdering Deputy Public Prosecutor Datuk Anthony Kevin Morais nine years ago.

They are a former pathologist, Colonel Dr R. Kunaseegaran, 61; money lender, S. Ravi Chandran, 53; and four unemployed, R. Dinishwaran, 32; AK Thinesh Kumar, 31; M. Vishwanath, 34; and S. Nimalan, 31.

A three-judge panel consisting of Datuk Hadhariah Syed Ismail, Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin unanimously dismissed the appeal filed by the six men to set aside the decision of the High Court on July 10, 2020, which convicted and sentenced them to death for the murder.

In the court's decision, Judge Hadhariah said after examining all the grounds of judgment by the High Court judge and the evidence presented in court, the Court of Appeal found that the High Court judge did not err in terms of law and facts.

“The conviction imposed (against the six men) by the High Court was correct,” she said.

Judge Hadhariah said the murder was carefully planned and the condition of the body when it was found showed the cruelty of all the accused.

“If killing the victim was not enough, the deceased's car was also burned and his personal belongings were disposed of.

“This murder incident is categorised as extraordinary from an ordinary murder incident. Therefore, in our opinion, the punishment that commensurates the offence committed is hang to death,” said Judge Hadhariah.

She also said that when Morais’ body was found, it was fully clothed (but) without shoes and the hands tied behind his back with a tie.

“There are seven pressure marks or compression on the chest, shoulders and back of the body, which is placed in a sack in a fetal position. The sack is tied with iron wire and then put into the drum. Then cement is poured into the drum barrel which is then dumped into a swamp area,” she said.

She said forensic experts testified that the cause of Morais' death was due to suffocation.

The judge also said there was a common intention among all the accused to kill Morais because Ravi Chandran, Dinishwaran, Thinesh Kumar, Vishwanath and Nimalan were together during the deliberate collision between the Triton car and the deceased's car.

Judge Hadhariah said Kunaseegaran was also involved based on the fact that he only smiled and advised G. Gunasekaran to keep calm and not interfere in the affairs of the other accused when Gunasekaran told him about the blood flowing from the drum barrel.

“Kunaseegaran also showed a picture of the deceased’s burning car in his mobile phone to Gunasekaran and Kunaseegaran also said that he would bear the legal fees of the other accused because all the problems stemmed from him,” she said.

Judge Hadhariah said Kunaseegaran had a motive to kill Morais and the other accused were his agents.

Gunasekaran was initially accused of murdering Morais but the charge was later withdrawn after he pleaded guilty in the Sessions Court to the charge of disposing of Morais' body and was sentenced to two years in prison for the offence.

The prosecution then called Gunasekaran as a prosecution witness in the trial against all the accused.

On July 10, 2020, the High Court sentenced the six men to death after finding them guilty of killing Morais.

They were charged with killing Morais, 55, at a location along Jalan Dutamas Raya Sentul and Jalan USJ 1/6D, Subang Jaya between 7am and 8pm on September 4, 2015.

The deceased was reported missing on the date in question and was last seen leaving the condominium in a Proton Perdana car from Menara Duta, Kuala Lumpur, to his office at the Attorney General's Chambers in Putrajaya.

His body was found in a drum filled with concrete at Persiaran Subang Mewah, Subang Jaya, on September 16 of the same year. ― Bernama, Malay Mail, 14/3/2024

Federal Court upholds Singaporean's death sentence for killing stepson

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• Nation

• Thursday, 16 May 2024

PUTRAJAYA: The Federal Court here on Thursday upheld the death sentence of a Singaporean man for the murder of his eight-year-old Thai stepson in 2008.

This followed the rejection of Shawal Senin’s application by the three-member panel of judges to commute his death sentence to life imprisonment under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.

"Application is dismissed and the death sentence is maintained,” said Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the panel with Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Abu Bakar Jais.

Shawal, 47, was sentenced to death by the High Court on Nov 18, 2011, for killing Siwakorn Sukuntha at his residence in Kondominium Pulai View, Taman Kobena, Tampoi, Johor Baru between 9pm Dec 24 and 1pm on Dec 27, 2008.

His appeals to the Court of Appeal and Federal Court were dismissed on April 22, 2013, and Jan 29, 2015, respectively.

Shawal’s counsel Bustaman Menon Abdul Hamid Menon pleaded for leniency to commute the accused's death sentence to a prison sentence of between 33 years and 35 years.

He submitted that although it was a tragic case involving a small boy who was beaten over three days, Shawal’s act did not stem from "a heart of evil” or that he had intended to kill the boy.

Shawal, who had lost his job and was using drugs at the time, beat the child to discipline him, he added.

Deputy public prosecutor Dhiya Syazwani Izyan Mohd Akhir objected Shawal’s application and asked the court to uphold the death sentence imposed on him.

She said Shawal had repeatedly hit his stepson with his hand, a clothes hanger, feather duster, and a hammer and it was an act of blatant disregard for the sanctity of human life.

According to the facts of the case, Shawal got angry and assaulted the child by hand, a hammer, a clothes hanger, and a feather duster and also kicked him when the boy did not respond to his questions. His wife tried to stop him but was warned that she would face the same fate.

The boy's mother testified that Shawal told her he had used a lighter to burn the child’s private parts.

Shawal's last resort is to seek clemency from the Johor Pardons Board. - Bernama, Star, 16/5/2024

Federal Court upholds death sentence against four men for murder

By Desiree David on March 5, 2024, Tuesday at 7:32 PM Court, Sarawak

Police escort the four men after the proceedings at Kuching Court Complex.

KUCHING (March 5): The Federal Court upheld the death sentence against four men who caused the death of a 32-year-old Batu Kawa woman in 2007.

A three-member panel of the Federal Court comprising justices Tan Sri Datuk Amar Abang Iskandar Abang Hashim, Tan Sri Datuk Abdul Rahman Sebli and Datuk Mary Lim Thiam Suan made the unanimous decision against Goh Wee Khian, Farose Tamure, Saidina Sarbeni and Abdul Hadi Sarbeni after dismissing their appeal to commute their death sentence to imprisonment term.

In April 2010, the High Court here had sentenced the four men to the gallows.

They were charged under Section 302 of the Penal Code read together with Section 34 of the same Code which provides for death sentence or imprisonment for a term of not less than 30 years but not exceeding 40 years and if not sentenced to death, punishment with whipping of not less than twelve strokes.

Goh, Farose, Saidina and Abdul Hadi murdered Catherine Chong Jang Joon at a parking lot in front of a nightspot in Central Park Commercial Centre here around 1.30am on Aug 9, 2007.

Based on the facts of the case, Goh hatched a plan to cause hurt to his girlfriend, Chong, and had asked Farose, Abdul Hadi and Saidina to injure her face.

Farose and brothers Abdul Hadi and Saidina searched for Chong and found her at the aforementioned nightspot.

In less than five minutes, the brothers stabbed Chong in the neck and upper chest area and she was later found dead on the spot.

Farose, Abdul Hadi and Saidina were then paid RM1,600 to be shared among them after they informed Goh that they had completed their tasks. They received the blood-money underneath the Bintawa Bridge.

During the proceedings today, DPP Mangaiarkarasi Krishnan submitted that based on the facts of this case, an imprisonment term was not suitable for their punishment.

She said the deceased in this case feared for her life about a week before her murder as the first applicant (Goh) threatened to kill her by asking three to four persons to cut off her hands and legs and disfigure her face.

“The deceased didn’t deserve to die in this manner. The stab wound to the right side of her neck had severed the internal jugular vein which led to excessive bleeding.

“The first applicant paid off the other applicants (Farose, Saidina and Abdul Hadi) a sum of RM1,600 to be shared among them. Is the deceased life worth only RM1,600?” said Mangaiarkarasi in her submission.

Goh was represented by counsels Chong Chieng Jen and Sim Kiat Leng, while Farose, Saidina and Abdul Hadi were represented by assigned counsel Daniel Ling. - Borneo Post, 5/3/2024

 

Federal Court upholds death sentence of ex-security guard for double murder

The Federal Court here today upheld the death sentence imposed on a former security guard for the murder of his two co-workers whom he slashed with a parang when they were asleep seven years ago. — Reuters pic

Thursday, 04 Jan 2024 5:38 PM MYT

PUTRAJAYA, Jan 4 — The Federal Court here today upheld the death sentence imposed on a former security guard for the murder of his two co-workers whom he slashed with a parang when they were asleep seven years ago.

A three-member bench comprising Court of Appeal president Tan Sri Abang Iskandar Abang Hashim and Federal Court judges Datuk Mary Lim Thiam Suan and Datuk Abu Bakar Jais dismissed Mohd Ferdaus Suwardi’s appeal against his conviction and death sentence.

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In delivering the court’s decision, Justice Abang Iskandar said the court maintained the death penalty imposed on Mohd Ferdaus by the lower courts in light of the gruesome manner the crime was committed, which was without any mercy.

He said the court declined to invoke its discretion to substitute the death sentence on Mohd Ferdaus for a custodial sentence.

Earlier, in dismissing Mohd Ferdaus’s appeal against his conviction, Justice Abang Iskandar said the lower courts were correct to find him (Mohd Ferdaus) guilty of killing the victims and that he (Mohd Ferdaus) failed to prove the balance of probability that he was legally insane when he committed the crime.

Mohd Ferdaus, 37, was sentenced to death by the High Court on November 12, 2019, after he was found guilty of killing Syed Mohd Fazrul Syed Mohd Ridhuan, 23, and Wan Amir Hamzah Abu Hassan, 48, at a chicken processing factory in Jalan Bukit Kuda, Klang, Selangor between 6.30am and 9am on July 31, 2017.

He lost his appeal at the Court of Appeal on May 26, 2022.

According to the facts of the case, Mohd Ferdaus returned to his village after killing the two men and admitted to his mother what he had done.

In his testimony, Mohd Ferdaus admitted to killing the two men, but on the defence of insanity under Section 84 of the Penal Code.

However, the High Court judge, in considering the expert evidence of three psychiatrists found that Mohd Ferdaus failed to prove the defence of insanity.

In mitigation before the Federal Court today, lawyer Mohd Fadhly Yaacob asked the court to substitute the death sentence on his client to between 30 years and 33 years in jail, but deputy public prosecutor Ng Siew Wee urged the court to maintain the death penalty.

She said Mohd Ferdaus had attacked the deceased when they were asleep and the attack was exceptionally cruel, adding that Syed Mohd Fazrul suffered 45 injuries while Wan Amir Hamzah had 23 injuries on his body.

“He did not stop the attack when the deceased begged for mercy,” she said, adding that Mohd Ferdaus acted out of spite with vindictiveness which warranted the most severe condemnation. — Bernama, Malay Mail, 4/1/2024

On 13/10/2023, Malaysia was one of the 28 members of the Human Rights Council that voted in FAVOUR of the Human Rights Council Resolution on the Question of the Death Penalty

54/… Question of the death penalty    (A/HRC/54/L.34)

 

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Recalling the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and all other relevant international and regional human rights instruments, and reaffirming that all States must implement their obligations under international human rights law, 

Recalling also the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty,

Recalling further General Assembly resolutions 62/149 of 18 December 2007, 63/168 of 18 December 2008, 65/206 of 21 December 2010, 67/176 of 20 December 2012, 69/186 of 18 December 2014, 71/187 of 19 December 2016, 73/175 of 17 December 2018, 75/183 of 16 December 2020 and 77/222 of 15 December 2022 on the question of a moratorium on the use of the death penalty,

Reaffirming the safeguards guaranteeing the protection of persons facing the death penalty set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984 and the provisions regarding the implementation of the guidelines contained in Council resolutions 1989/64 of 24 May 1989 and 1996/15 of 23 July 1996,

Recalling all resolutions of the Commission on Human Rights on the question of the death penalty, the last of which was resolution 2005/59 of 20 April 2005,

Recalling also Human Rights Council decision 18/117 of 28 September 2011 on reporting by the Secretary-General on the question of the death penalty, Council resolution 22/11 of 21 March 2013 on a panel on the human rights of children of parents sentenced to the death penalty or executed, Council decision 22/117 of 21 March 2013 on a high-level panel discussion on the question of the death penalty, and Council resolutions 26/2 of 26 June 2014, 30/5 of 1 October 2015, 36/17 of 29 September 2017, 42/24 of 27 September 2019 and 48/9 of 8 October 2021 on the question of the death penalty,

Taking note of the reports of the Secretary-General on the question of the death penalty, in the latest of which the Secretary-General focused on the relationship between articles 6 and 14 of the International Covenant on Civil and Political Rights, focusing on the right to seek pardon or commutation of sentences and the right to have one’s conviction and sentence reviewed by a higher tribunal according to law, in accordance with the safeguards guaranteeing protection of the rights of those facing the death penalty set out in the annex to Economic and Social Council resolution 1984/50, and in which he analysed the applicable legal framework and shared available data and examples of national practices,1

Acknowledging the report of the Office of the United Nations High Commissioner for Human Rights on the high-level panel discussion on the question of the death penalty, according to which the panel found that the death penalty continues to be provided and applied for crimes that do not meet the threshold of “the most serious crimes”, including drug-related offences,

Stressing that the term “the most serious crimes” has consistently been read restrictively and interpreted as pertaining only to crimes of extreme gravity involving intentional killing, and stressing also that under no circumstances can the death penalty ever be applied as a sanction against specific forms of conduct, such as apostasy, blasphemy, adultery, consensual same-sex conduct or relations, establishing political opposition groups or offending a head of State, and that States parties that retain the death penalty for such offences commit a violation of their international obligations,

Mindful of the work of the special procedure mandate holders who have addressed human rights issues relating to the death penalty, including the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,

Mindful also of the work undertaken by the treaty bodies to address human rights issues relating to the death penalty,

Recognizing the role of regional and subregional instruments and initiatives towards the abolition of the death penalty, which in some cases have led to the prohibition of the use
of the death penalty,

Welcoming the fact that the international trend towards the abolition of the death penalty is continuing, that many States are applying a moratorium on the use of the death penalty, and all measures taken by States towards limiting the application of the death penalty,

Noting that States with different legal systems, traditions, cultures and religious backgrounds have abolished the death penalty or are applying a moratorium on its use,

Recalling article 6 (6) of the International Covenant on Civil and Political Rights, which states that nothing in that article shall be invoked to delay or to prevent the abolition of capital punishment by any State party to the Covenant, and bearing in mind that, according to the Human Rights Committee, States parties that are not yet totally abolitionist should be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure, in the foreseeable future,

Noting that, also according to the Human Rights Committee, States parties to the International Covenant on Civil and Political Rights that have abolished the death penalty are barred from reintroducing it, and noting also that the reinstatement of the death penalty by a State party to the Second Optional Protocol to the International Covenant on Civil and Political Rights is a violation of international law,

Recalling that derogation from the right to life is never permitted, even during a state of emergency,

Acknowledging the interest in studying the question of the death penalty, as well as in holding local, national, regional and international debates related thereto,

Emphasizing the importance for the effectiveness and transparency of debates on the death penalty of ensuring that the public has access to balanced information, including accurate information and statistics on criminality and the various effective ways to combat it without resorting to capital punishment,

Strongly deploring the fact that the use of the death penalty leads to violations of the human rights of the persons facing the death penalty and of other affected persons,

Recalling that, particularly in capital punishment cases, States are required to ensure that all persons benefit from a fair trial and a guarantee of due process, by providing adequate assistance of legal counsel from the earliest stages of their detention and at every stage of the
proceedings, without discrimination of any kind, and effective access to documents and other
evidence that are essential for their defence, and that failure to respect fair trial guarantees in
proceedings resulting in the imposition of the death penalty could constitute a violation of the right to life,

Emphasizing that it is important that States ensure that due process and fair trial guarantees and safeguards, including the right to have one’s conviction and sentence reviewed by a higher tribunal according to law and the right to seek pardon and commutation, are effectively in place and implemented,

Recalling that the right of everyone convicted of a crime to have their conviction and sentence reviewed by a higher tribunal according to the law includes a duty on States to review the conviction and sentence on the merits, and stressing that a violation of this right in proceedings resulting in the imposition of the death penalty renders the death sentence arbitrary in nature and in violation of the right to life,

Underscoring that the denial of legal assistance by the tribunal reviewing the death sentence of an indigent convicted person precludes an effective review of the conviction and sentence by the higher tribunal, and that such denial of legal assistance constitutes a violation of article 14 (3) (d) and (5) of the International Covenant on Civil and Political Rights,

Reaffirming that States are required to allow individuals sentenced to death to seek pardon or commutation, that amnesties, pardons and commutations can be granted to them in appropriate circumstances, that such requests for pardon or commutation are thoroughly examined and that death sentences are not carried out in the event any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence remain pending or unresolved,

Reaffirming also that, under international human rights law, no category of sentenced persons may be excluded in law or in practice from pardons or commutations of a death sentence, and that the conditions for attainment of relief must not be unnecessarily burdensome, discriminatory in nature or applied in an arbitrary and non-transparent manner, and expressing concern that, while many countries provide for the right to seek pardon or commutation of a death sentence in their national legislation, certain crimes are often excluded from it, or the number of pardons or commutations may be capped,

Underlining that in all cases where the death penalty may be imposed, the personal circumstances of the offender and the particular circumstances of the offence, including its specific attenuating elements, must be considered by the sentencing court, and expressing concern, in this regard, that the use of mandatory death sentences is arbitrary in nature and irreconcilable with the right to life and the right to a fair trial,

Stressing that those convictions resulting in the death penalty based on information obtained through torture or cruel, inhuman or degrading treatment of interrogated persons violate article 15 of the Convention against Torture and articles 7, 14 (3) (g) and 6 of the International Covenant on Civil and Political Rights,

Considering that, in order to avoid wrongful convictions in death penalty cases, States should take all feasible measures to review procedural barriers to reconsideration of convictions and to re-examine past convictions based on new evidence, including new DNA evidence,

Recalling that persons sentenced to death, their families and their lawyers should be provided with timely and reliable information on the procedures and timing of appeals, clemency petitions and executions,

Stressing the need to examine further in which circumstances the imposition or application of the death penalty violates the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, including because of the death row phenomenon, the methods of execution or the lack of transparency around executions,

Emphasizing that access to consular assistance for foreign nationals, provided for in the Vienna Convention on Consular Relations, is an important aspect of the protection of those facing the death penalty abroad,

1. Urges all States to protect the rights of persons facing the death penalty and other affected persons by complying with their international obligations;

2. Calls upon States that have not yet acceded to or ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, to consider doing so;

3. Calls upon States that have not yet abolished the death penalty to take active steps to reduce the number of offences for which the death penalty may be imposed and to limit them strictly to “the most serious crimes”;

4. Calls upon States that provide for or apply the mandatory death penalty to end this practice;

5. Urges all States to respect international standards that provide safeguards guaranteeing protection of the human rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;

6. Also urges all States to ensure that all legal proceedings, including those before special tribunals or jurisdictions, and particularly those relating to capital offences, uphold the rights and are consistent with the minimum procedural guarantees contained in article 14 of the International Covenant on Civil and Political Rights, including:

(a) That those facing the death penalty can exercise their right to apply for pardon or commutation of their death sentence, notably by ensuring necessary procedural guarantees,
such as that conditions for attaining pardons or commutations are not unnecessarily burdensome, discriminatory in nature or applied in an arbitrary and non-transparent manner,
that clemency applications are heard within a reasonable period of time, and that certainty is
provided regarding the pardon and commutation procedures;

(b) That everyone sentenced to death has the right to have his or her conviction and sentence reviewed by a higher tribunal according to the law, and that the conviction and sentence are reviewed on the merits, on the basis of the sufficiency of the evidence and the law, while taking particular care to consider and investigate fully allegations that a death sentence is based on evidence elicited through torture or ill-treatment, noting that the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) can provide useful guidance regarding investigations into such allegations, and that civilian courts have the right to review any death sentences issued against civilians by military tribunals;

7. Calls upon States to ensure that all accused persons, in particular poor and economically vulnerable persons and persons with disabilities, can exercise their rights relating to equal access to justice, to ensure adequate, qualified and effective legal representation at every stage of civil and criminal proceedings in cases of capital punishment through effective legal assistance, and to ensure that those facing the death penalty can exercise their right to seek pardon or commutation of their death sentence;

8. Also calls upon States to comply with their obligations under article 36 of the Vienna Convention on Consular Relations, and to inform without delay foreign nationals who have been arrested or detained of their right to contact the relevant consular post and to communicate with their consular representatives, bearing in mind that failure to promptly inform detained foreign nationals of their right to consular notification pursuant to the Vienna Convention on Consular Relations, resulting in the imposition of the death penalty, would likely violate the right to life;

9. Calls upon States that have not yet abolished the death penalty to make available systematically and publicly full, accurate and relevant information, disaggregated by gender, age, nationality, race, disability and other applicable criteria, with regard to their use of the death penalty, inter alia, the charges, number of persons sentenced to death, the number of persons on death row and the location of their detention, the number of executions carried out and the number of death sentences reversed, commuted on appeal or in which amnesty or pardon has been granted, as well as information on any scheduled execution, which can contribute to possible informed and transparent national and international debates, bearing in mind that access to reliable information on the imposition and application of the death penalty enables national and international stakeholders to understand and assess the scope of these practices, including about compliance with the obligations of States with regard to the use of the death penalty;

10. Requests the Secretary-General to dedicate the 2025 supplement to his quinquennial report on capital punishment to the consequences arising at various stages of the imposition and application of the death penalty on the enjoyment of the human rights of persons facing the death penalty and other affected persons, paying specific attention to equality of arms, the need to prevent miscarriage or failure of justice, and the irreversibility of the death penalty, and to present it to the Human Rights Council for consideration at its sixtieth session and to make it available in all languages before the session;

11. Decides that the upcoming biennial high-level panel discussion to be held during the fifty-eighth session of the Human Rights Council will address the contribution of the judiciary to the advancement of human rights and the question of the death penalty;

12. Requests the Office of the United Nations High Commissioner for Human Rights to organize the high-level panel discussion and to liaise with States, relevant United Nations bodies, agencies, treaty bodies, special procedures and regional human rights mechanisms, as well as with parliamentarians, civil society, including non-governmental organizations, and national human rights institutions with a view to ensuring their participation in the panel discussion, and to make the biennial panel discussion fully accessible;

13. Also requests the Office of the High Commissioner to prepare a summary report on the panel discussion, also in an accessible format, and to submit it to the Human Rights Council at its sixtieth session;

14. Decides to continue its consideration of this issue in accordance with its programme of work.

Note:

The results of the vote on L.34 are as follows:

In favour (28): Argentina, Belgium, Benin, Bolivia, Chile, Costa Rica, Cote d’Ivoire, Czechia, Finland, France, Gabon, Georgia, Germany, Honduras, Kazakhstan, Kyrgyzstan, Lithuania, Luxembourg, Malaysia, Mexico, Montenegro, Nepal, Paraguay, Romania, South Africa, Ukraine, United Kingdom and Uzbekistan.

Against(11): Bangladesh, Cameroon, China, India, Maldives, Pakistan, Qatar, Somalia, Sudan, United Arab Emirates and United States.

Abstentions (7): Algeria, Eritrea, Gambia, Malawi, Morocco, Senegal and Viet Nam.

SOURCE: UN Website