Mandatory Death Penalty Abolished, But Review of Death Sentence Cannot Start Until Minister Puts Into Force the Revision of Sentence law. (MADPET)

 

 

Media Statement – 7/7/2023

Mandatory Death Penalty Abolished, But Review of Death Sentence Cannot Start Until Minister Puts Into Force the Revision of Sentence law.

MADPET (Malaysians Against Death Penalty and Torture) celebrates the putting into force on 4/7/2023 by Minister Azalina Othman Said, the Minister in the Prime Minister’s Department (Law and Institutional Reform) the Abolition Of Mandatory Death Penalty Act 2023, which was gazetted after receiving royal assent on 16/6/2023. This ends the era where judges had no choice but to sentence to death any person found guilty of some 11 offences that had the mandatory death penalty.

Put the Revision of Sentence Act into force so sentence revision can begin

MADPET urges that Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction Of The Federal Court) Act 2023(Revision of Sentence Act), which was also gazetted on 16/6/2023 be immediately put into force, so the Act will come into operation.

This is most important for the about 850 of about 1324 persons on death row, who have exhausted all appeals that now qualify to apply for a revision of sentence. He/she ‘…who is sentenced to death may make an application in writing to the Federal Court within ninety days from the date of coming into operation of this Act…(2) Upon receiving an application under subsection (1), the Federal Court shall review the sentence of death.’(Sec.3(1) and (2)Revision of Sentence Act].

Only after it is in force, can the many persons ‘…who is serving a sentence of imprisonment for natural life may make an application in writing to the Federal Court within ninety days from the date of coming into operation of this Act. (2) Upon receiving an application under subsection (1), the Federal Court shall review the sentence of imprisonment of natural life.’ {Sec.5(1) and (2)]

Government needs to assist in the review of sentence application and process

Given that there will be possibly about 1,000 or more review of sentence applications  filed and have to be heard by the already busy Federal Court, it is important that the State also plays an active part in assisting those who become entitled to make a review of sentence applications to ensure justice be done, and the objects of these new laws is given full effect speedily. This will also need assistance from the Prisons Departments, Public Prosecutor, Courts and others.

MADPET also calls on the Malaysian Bar, who has been a strong advocate for abolition, since the passing of the Bar Resolution calling for abolition of the death penalty in 2006, to step up and assist in the review of sentence process.

Judges Need To Note That Malaysia today is clearly for abolition of the death penalty since 2018

MADPET hopes that the Court, in hearing this sentence review applications will note that Malaysia has long adopted the position of moving towards the abolition of the death penalty in line with the global trend. In 2007, there were 104 nation states in favour of abolition. That number in favour has been systematically growing over the years. In 2008, it was 106. In 2010, it was 108. In 2012, it jumped to 111, and in 2016, it was 117 and now in 2022, it was 125, which meant more than two third of UN member States are for abolition.

On 15/12/2022, Malaysia was proudly amongst the 125 countries that voted in favor of the UN General Assembly’s “Moratorium on the use of the death penalty with a view to abolishing the death penalty” resolution.

Malaysia, under the Pakatan Harapan Plus government, voted for the very first time in favour of this resolution in 2018. The Perikatan Nasional (BERSATU, PAS included) and BN Plus Government again vote in favour the resolution in 2020.

PM Ismail Sabri, then PM Anwar Ibrahim brought about abolition of mandatory death penalty

On 6/10/2022, the Perikatan Nasional government under Prime Minister Ismail Sabri tabled 7 Bills that would abolish the mandatory death penalty, and this was the first concrete action by the government.

Post GE15, the new Bills were tabled, and now the Abolition Of Mandatory Death Penalty Act 2023 abolished not just the mandatory death penalty but also natural life imprisonment. The PH-led government also tabled the law, Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023, which is still not in force, allows those on death row and those under life imprisonment to apply to court for a review of the sentence.

In short, both the current government and the Opposition parties have now adopted the position of moving towards the abolition of the death penalty.

Justice Demands Court’s Understanding and Flexibility

Noting that in all cases that carried the mandatory death penalty, both the prosecution and lawyers representing the accused would have failed to adduce evidence that would have convinced the court to sentence the convicted to a lower sentence because it was of no use as the courts could only impose one sentence - the death penalty.

In these cases, which then carried the mandatory death penalty, there would have also been no submission of aggravating and mitigating factors that judges would consider before passing sentence, as there was only one sentence available - the death penalty.

As such, when it comes to the review of sentence of death now, there may be a need for serious re-evaluation of the court records and the facts, and justice may require the introduction of material new evidence, where it is hope that the court would be flexible in this extraordinary special situation.

Whipping, very different from the Islamic Caning, Must Be Abolished

Whilst, the Abolition of Mandatory Death Penalty Act would give judges the discretion on conviction  to impose the death penalty or alternatively jail of between 30 and 40 years as well as no fewer than 12 strokes of the cane or whipping, MADPET calls for the abolition of whipping, and for the granting of greater discretion in sentencing maybe jail between 10 and 40 years.

Now, that Malaysia has abolished mandatory death penalty, MADPET reiterates its call for Malaysia to totally abolish the death penalty. Maybe, the next step towards total abolition is the abolition of death penalty for offences where there is no victim that is killed or seriously injured by the perpetrator.

Charles Hector

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

Abolishment of mandatory death penalty gazetted, to come into force tomorrow

Malay Mail’s check with the Malaysia Federal Legislation website showed the gazettement dated June 30, 2023 and signed by de facto law minister Datuk Seri Azalina Othman Said was uploaded today. — Bernama pic

By Muhammad Yusry

Monday, 03 Jul 2023 8:16 PM MYT

KUALA LUMPUR, July 3 — The abolishment of the mandatory death penalty will come into force tomorrow as the Abolition of Mandatory Death Penalty Act 2023 has been gazetted.

Malay Mail’s check with the Malaysia Federal Legislation website showed the gazettement dated June 30, 2023 and signed by de facto law minister Datuk Seri Azalina Othman Said was uploaded today.

“In exercise of the powers conferred by subsection 1(2) of the Abolition of Mandatory Death Penalty Act 2023 (Act 846), the minister appoints July 4 2023 as the date on which the Act comes into operation,” said the statement.

The Dewan Rakyat passed the Bill proposing to make the death penalty an option and no longer mandatory after it was tabled for its third reading on April 3.

The Abolition of Mandatory Death Penalty Bill would give judges the discretion on the death penalty rather than requiring them to do so when convicting on offences that made them mandatory.

The amendments in the Bill also include replacing life and natural life imprisonment (until death) as an alternative to the mandatory death sentence, with the new alternative of jail of between 30 and 40 years as well as no fewer than 12 strokes of the cane.

The Abolition of Mandatory Death Penalty Bill 2023 was tabled for first reading in the Dewan Rakyat by Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said on March 27 this year.

Azalina’s predecessor, Datuk Seri Wan Junaidi Tuanku Jaafar, had tabled a similar piece of legislation on October 6, 2022, but Parliament’s dissolution to pave the way for the 15th General Election meant it was never put before lawmakers for debate.

Since July 2018, Malaysia has placed a de facto moratorium on executions pending institutional reforms undertaken by the various administrations that have existed in that time.

The last death row prisoner was hanged in 2017 but because legislation carrying the mandatory death penalty has remained effective, the courts have been bound to continue sentencing defendants to death despite the moratorium on executions.

---

Read here for Malay Mail's explainer on the brief history of capital punishment and death row inmates in Malaysia. - Malay Mail, 3/7/2023

Malaysia

A brief history of Malaysia’s capital punishment and death row inmates

Decades after colonial rule, Malaysia has finally taken the first concrete steps towards abolishing the death penalty, after proposed legislation to make capital punishment optional and not mandatory was put before Parliament a second time. ― AFP pic

By Kenneth Tee

Monday, 03 Apr 2023 7:00 AM MYT

KUALA LUMPUR, April 3 — Decades after colonial rule, Malaysia has finally taken the first concrete steps towards abolishing the death penalty, after proposed legislation to make capital punishment optional and not mandatory was put before Parliament a second time.

The Abolition of Mandatory Death Penalty Bill 2023 was tabled for first reading in the Dewan Rakyat by Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said on March 27.

Azalina’s predecessor, Datuk Seri Wan Junaidi Tuanku Jaafar, had tabled a similar piece of legislation on October 6, 2022, but Parliament’s dissolution to pave the way for the 15th General Election meant it was never put before lawmakers for debate.

“Legal amendments involving policies on punishment and substitute sentence to the mandatory death penalty are a positive change to make the country’s criminal justice system more holistic and inclusive, apart from not denying individuals their basic right to proper justice,” Azalina told the Dewan Negara days before the Bill’s tabled for the first reading.

The current Bill seeks to revise the current death penalty by giving judges the discretion to mete out sentences on a case-by-case basis.

The amendments also include replacing life and natural life imprisonment (until death) as an alternative to the mandatory death sentence, with the new alternative of jail of between 30 and 40 years as well as no fewer than 12 strokes of the cane.

For the amendments to take effect, the Bill must obtain approval by way of three readings from both the Dewan Rakyat and Dewan Negara, before being presented to the Yang di-Pertuan Agong for royal assent and subsequently gazetted.

Since July 2018, Malaysia has placed a de facto moratorium on executions pending institutional reforms undertaken by the various administrations that have existed in that time.

The last death row prisoner was hanged in 2017 but because legislation carrying the mandatory death penalty has remained effective, the courts have been bound to continue sentencing defendants to death despite the moratorium on executions.

A brief history of Malaysia’s capital punishment

The death penalty has occupied a place in the Malaysian criminal justice system ever since British colonial administration, when the mandatory death penalty was originally enforced for murder.

When Malaya achieved independence in 1957, it inherited the common law system including the death penalty introduced during the reign of British Malaya.

Did you know the well-known Dangerous Drugs Act was enacted by the British colonial government in 1952 to combat the threat of substance abuse, yet capital punishment for drug trafficking — under Section 39B — was not carried out until 1975?

The death penalty remained discretionary for Section 39B up until 1983 when the legal provision was amended to make it mandatory, after which Malaysia’s drug laws would go on to be considered as among the harshest in the world.

Today in Malaysia, 34 offences such as murder, drug trafficking, waging war against the state and terrorism were punishable by death. Of those, 11 carried a mandatory death sentence.

Executions are performed as hanging by the neck until death, and usually conducted on Fridays.

At present, Malaysia is one of 53 countries worldwide that still maintain the death penalty in both law and practice.

What are the numbers?

According to the Prison Department’s latest data, a total of 1,318 prisoners were sent to the gallows between 1992 and 2023 for one of seven capital offences that carried the mandatory death penalty.

The capital offences listed are Section 121, 302 and 396 of the Penal Code for waging war against a Ruler, murder and gang-robbery with murder, respectively; Section 39B of the Dangerous Drugs Act for drug trafficking; Section 3 of the Kidnapping Act for abduction for ransom; and Section 3 and 3A of the Firearms (Increased Penalties) Act for illegal firearms discharge.

The majority of the condemned — 870 of them or 66 per cent — comprised drug offenders, followed by convicted murderers at 318 or 24.1 per cent.

For the remainder, 16 were convicted for illegal firearms discharge, seven for waging war against the Agong, five for kidnapping, and two for gang-robberies.

Despite the movements to reform the death penalty, 2022 also saw the highest number of condemned persons at 123, of which 79 or 64.2 per cent were drug offenders followed by 44 or 35.8 per cent convicted of murder.

The Abolition of Mandatory Death Penalty Bill seeks to abolish the mandatory death penalty, to vary the sentence of imprisonment for natural life and whipping, and to provide for matters connected therewith by amending the Penal Code (Act 574), the Firearms (Increased Penalties) Act 1971 (Act 37), the Arms Act 1960 (Act 206), the Kidnapping Act 1961 (Act 365), the Dangerous Drugs Act 1952 (Act 234), the Strategic Trade Act 2010 (Act 708) and the Criminal Procedure Code (Act 593) in line with the Government policy to abolish the mandatory death penalty in all legislation. - Malay Mail, 3/4/2023

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

 

Media Statement – 18/12/2022

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, at Seventy-seventh Session 54th Meeting, the UN General Assembly’s adopted the “Moratorium on the use of the death penalty with a view to abolishing the death penalty” resolution. MADPET is proud that Malaysia was one of 125 nation states that voted in favour. Singapore and Brunei, sadly, were the only ASEAN member states amongst the 37 countries that voted against, and there were 22 abstentions.

This is an historic moment, when majority of two thirds was achieved, and the number of votes in favour continues to increase.  In 2020, there were 123 votes in favour to 38 against, with 24 abstentions. In 2018, it was 121 votes in favour, which also included Malaysia for the very first time.

In 2007, there were 104 in favour. In 2008, it was 106. In 2010, it was 108. In 2012, it jumped to 111, and in 2016, it was 117. As such, the global trend continues to be  towards the abolition of the death penalty

On 15/12/2022, after adoption of the Resolution, ‘the Assembly called on States to progressively restrict use of the death penalty and ensure that those facing it can exercise their right to apply for pardon or commutation… In addition, it called on States to ensure the death penalty is not applied based on discriminatory laws, improve conditions in detention and establish a moratorium on executions with a view to abolishing the death penalty…’(UN Meetings Coverage of GA)

MADPET (Malaysians Against Death Penalty and Torture) is proud that Malaysia voted in favour of this Resolution that unequivocally calls for all countries to establish a moratorium on executions with a view to abolishing the death penalty.

Malaysia, under the Pakatan Harapan Plus government, voted in favour of this resolution in 2018. The Perikatan Nasional(BERSATU, PAS included) and BN Plus Government elected to again vote in favour in 2020. Now, the Pakatan Harapan Plus government under Prime Minister Anwar Ibrahim has taken the same stance in December 2022.

MADPET notes that Bills are now before the Parliament that will effectively abolish the mandatory death penalty, which we call all on MPs to vote in favour. This can be considered the first step towards abolition.

Thereafter, we call on the Prime Minister Anwar Ibrahim’s Coalition Government led by Pakatan Harapan and to forthwith take the next step and abolish the death penalty in Malaysia speedily.

We recall that the then Minister in the Prime Minister’s Department of the then PH Plus Government, Datuk Liew Vui Keong on 13/11/2018 in Parliament did say that ‘…the Cabinet has decided that the death penalty for 33 offences under eight acts of law be abolished, and this includes Section 302 of the Penal Code (murder)...He said the decision, which was reached collectively,  also encompassed the Firearms (Heavier Penalties) Act 1971; Firearms Act 1960, Kidnapping Act  1961, Armed Forces Act 1972. Also in the list are the Water Services Industries Act 2006; Strategic Trade Act 2010 and Dangerous Drugs Act 1952. ..’(Malay Mail 13/11/2018).

When a country, especially a democratic nation State, executes a criminal, it inevitably makes all its citizens ‘murderers’.

A criminal reasonably must be punished for his/her crimes, but his life must never be extinguished. Sentencing must be fair, consistent, proportionate and with the opportunity for rehabilitation. The abolition of the death penalty, in favour of repentance, rehabilitation and second chances is consistent with the values of the different religions and cultures of the Malaysian people.

MADPET reiterates our call for the abolition of the death penalty, and for the moratorium on executions pending abolition.

Charles Hector

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

 

 

79,487 whipped in Malaysia (2005 - 2011)

AS of Feb 28, 2012, 860 offenders have been meted the death penalty, based on statistics from the Prisons Department.

However, none have been executed because they were appealing.

In a written statement by the Home Ministry, 616 were appealing to the Court of Appeal, 94 to the Federal Court and 150 to the Pardons board.

The Home Ministry was replying to a question by Liew Chin Tong (DAP-Bukit Bendera) on the number of prisoners awaiting the death sentence and the number of offenders caned between 2005 and this year.

According to Prisons Department statistics, 79,487 offenders had been caned between 2005 and last year.

Of that number, 46,338 or 58.3 per cent were Malaysians while the remaining 33,149 or 41.7 per cent were foreigners. - New Straits Times, 27/3/2012, 860 on death row await appeal

Malaysia: Government Reveals Nearly 30,000 Foreigners Caned

AMNESTY INTERNATIONAL PRESS RELEASE

11 March 2011

Malaysia: Government Reveals Nearly 30,000 Foreigners Caned

Malaysia should immediately halt the judicial caning of refugees and migrants, Amnesty International said after the government disclosed that almost 30,000 foreigners had been caned in five years.

In a response to a parliamentary question on 9 March, Home Minister Hishammuddin Hussein disclosed that Malaysia had caned 29,759 foreigners between 2005 and 2010 for immigration offences alone.

 “The government’s figures confirm that Malaysia is subjecting thousands of people to torture and other ill-treatment each year,” said Sam Zarifi, Asia Pacific director at Amnesty International. “This is a practice which is absolutely prohibited under international law, no matter what the circumstances.”

“As a first step, the Malaysian government has to immediately declare a moratorium on this brutal practice.”

Amnesty International also called for a complete abolition of all forms or corporal punishment, which constitutes torture or other ill-treatment.

In December 2010, Amnesty International published an in-depth investigation into judicial caning in Malaysia. In each of the 57 cases it examined, Amnesty International found that the caning amounted to torture, as the authorities had intentionally inflicted severe pain and suffering through the punishment of caning.

While most countries have abolished judicial caning, Malaysia has expanded the practice. Parliament has increased the number of offenses subject to caning to more than 60.

Since 2002, when Parliament amended the Immigration Act 1959/63 to make immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

At least 60 per cent of the 29,759 foreigners caned were Indonesians, according to Liew Chin Tong, the parliamentarian who submitted the question. In March 2010, Amnesty International documented how unchecked abuses by unscrupulous labour agents led to many migrant workers losing their legal immigration status and thus being subject to caning.

Refugees are also caned for immigration violations in Malaysia. Since Malaysia has not yet ratified the UN Refugee Convention, asylum seekers are often arrested and prosecuted as illegal migrants. Burmese refugees in Malaysia have told Amnesty International how they live in fear after being caned.

“Malaysia is subjecting thousands of people from other Asian countries to torture and other ill-treatment,” said Sam Zarifi. “Indonesia, which chairs the Association of South East Asian Nations and its human rights Commission this year, must press Malaysia to stop caning their citizens.”

Public Document

****************************************

For more information please call Amnesty International's press office in London, UK, on +44 20 7413 5566 or email: press@amnesty.org

International Secretariat, Amnesty International, 1 Easton St., London WC1X 0DW, UK

The time to end whipping and corporal punishment in Malaysia is NOW..

The time has come for Malaysia to be humane and end whipping and other forms of corporal punishments.

Home Minister Hishammuddin Hussein had told Parliament on June 17 that 34,923 migrants have been caned since 2002 and 2008 in a written reply to a question by Bukit Bendera DAP parliamentarian Liew Chin Tong.

It was also stated in the reply that out of the 34,923 migrants who were caned 60.2 percent were Indonesians, 14.1 percent Filipinos and 13.9 percent Burmese. - Malaysiakini, 3/7/2009, Amnesty In't: Stop caning immigrants

Last month, Amnesty International published a report drawing attention to the fact that judicial caning in Malaysia has reached epidemic proportions. Since 2002, when the Immigration Act was amended to include corporal punishment, nearly 48,000 prisoners have been whipped in Malaysia.

It is a shocking reminder of the cruel, inhuman and degrading way we treat prisoners, particularly refugees and illegal migrants.

Caning or whipping is a horrendous form of punishment. Maximum force, with the cane travelling at speeds of up to 160kph, is applied. The whiplash of the cane (usually a piece of rattan about 1.09m long and 1.25cm thick that is soaked in water) literally takes the skin off the buttocks and then pounds the flesh into pulp. Skin disintegrates. Blood flows copiously.

The pain is so severe that victims often lose consciousness. And when they do, they are quickly revived by doctors so that punishment can continue.

How doctors can participate in this kind of abuse is beyond understanding.

Whipping leaves deep scars that take months to heal. It also leaves deep emotional and psychological wounds that mark the victims for the rest of their lives.

In 2007, a six-minute video of a drug trafficker being caned in Malaysia found its way onto the Internet. Those who think that caning is an acceptable form of punishment should take the trouble to view it.

I personally found it too disturbing to watch. It brought back memories of my late father’s treatment at the hands of the Kempeitai – the military police of the Imperial Japanese Army during the war years. My father was whipped so badly that he carried the scars on his back and buttocks to his grave some fifty years later.

That such horrific abuse is still being visited upon people today is mind-boggling.

And all this despite the fact that there is no evidence that caning is an effective deterrence. It simply panders to our baser instincts to inflict pain upon those who transgress.

Furthermore, such forms of corporal punishment are clearly against the 1948 Universal Declara­tion of Human Rights which states that, “No one shall be subject to torture or to cruel, inhuman and degrading treatment or punishment”.

Malaysia has always been an ardent supporter of the UN and proudly sits on its Human Rights Council, yet we violate one of its most cherished principles. We lose the moral authority to speak on human rights issues when we ourselves don’t cherish and uphold them.

Some years ago, Malaysians joined the global outrage over the treatment of prisoners at Abu Ghraib. 

America was rightly condemned for behaving in such a cruel and callous manner. What does it now say of us when we are silent about something far worse that is taking place in our prisons on an almost daily basis?

What is even more egregious is that we visit such horrific punishment upon hapless refugees and illegal migrants as well.

Refugees from Myanmar, for example, flee in fear and desperation from well documented abuse, torture and death in their own land only to be further abused in Malaysia.

According to Amnesty International, more than 6,000 refugees are caned, up to 24 times each, every year!

This is morally reprehensible and a great blight upon our nation’s honour.

Of course, we are not the only ones to permit judicial caning. It is widely practised in Singapore and Brunei as well, courtesy of our common British colonial heritage. Caning is now increasingly considered a cheaper alternative to jailing offenders. Illegal migrants are whipped and then deported.

Not surprisingly, many countries seem to ignore this appalling abuse of their own citizens in Malaysia, Singapore and Brunei. If Australian, British or American citizens were similarly treated, there would be an international uproar, which explains why such punishment is rarely inflicted on them.

Our poorer Asian neighbours, on the other hand, remain silent largely because they fear antagonising us and jeopardising an important source of foreign income in the remittances that these migrant workers send home each month. For countries like the Philippines, Bangladesh and Nepal, for example, such remittances make a significant contribution to their economy.

Perhaps it is also because Asian governments tend to place a lower premium on human dignity.

Whatever the reason, shame on them for staying silent while their citizens are so harshly treated abroad.

Of course, Myanmar’s military rulers are not going to lose any sleep over the treatment of Karen, Kachin or Rohingya people abroad, but surely we become complicit in the injustice wreaked upon these people if they end up being abused and punished in Malaysia as well.

When asked about the leaked caning video in 2007, the Deputy Home Minister at the time said it was “no big deal”.

But it is a big deal when our nation inflicts such horrendous suffering upon prisoners, upon migrant workers and upon refugees. It tarnishes our image and invites international scorn.

And it is a big deal because we are better than that.

It’s time we end this barbaric form of punishment. Certainly, we should immediately stop the caning of refugees and illegal migrants.

Datuk Dennis Ignatius is a 36-year veteran of the Malaysian foreign service. He served in London, Beijing and Washington and was ambassador to Chile and Argentina. He retired as High Commissioner to Canada in July 2008. - Star, 20/1/2011, Cruel, inhuman and degrading punishment

Malaysia: Torture practiced systematically in widespread caning

How every caning case amounts to torture

© AI

Tens of thousands of refugees and migrants have been caned since 2002

© Amnesty International

6 December 2010

The Malaysian government must immediately end the practice of judicial caning, which subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars, Amnesty International said today in a new report.

A Blow to Humanity provides an in-depth look at Malaysian caning, which leaves victims, including many foreigners seeking asylum, with little recourse, support or hope. Many have no understanding of the charges or fate that awaits them.

“Caning in Malaysia has hit epidemic proportions,” said Sam Zarifi, Amnesty International’s Asia-Pacific Director. “In every case that we examined, the punishment amounted to torture, which is absolutely prohibited under any circumstances.”

In recent years, Malaysia has increased the number of penal offenses subject to caning to more than 60. Since 2002, when Parliament made immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

In Malaysian prisons specially trained caning officers tear into victims’ bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim’s naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness.

The Malaysian government does not punish officers for their actions. Instead, it trains officers how to conduct caning and pays them a bonus for each stroke. Many double their income through their caning work. Others take bribes to intentionally miss, sparing their victims.

State-employed doctors also play an integral role in caning. They examine victims and certify their fitness to be caned. When victims lose consciousness during caning, they revive them so the punishment can continue. After caning, some victims suffer long-term physical disabilities.

“The role that Malaysian doctors play in facilitating deliberate pain and injury through caning is absolutely contrary to international medical ethics,” said Sam Zarifi. “Instead of treating the victims, doctors are assisting in their torture and ill-treatment.”

Malaysian officials and state employees who are complicit in torture are liable to prosecution worldwide under universal jurisdiction for grave human rights crimes such as these, Amnesty International said.

Judicial caning was originally imposed under British colonial rule in the 19th century. Under international law, all judicial corporal punishment constitutes torture or other ill-treatment, which is prohibited in all circumstances.

Refugees who fled torture and forced labour in Myanmar told Amnesty International how Malaysia (which does not recognize refugees) caned them for immigration violations, sometimes repeatedly. In Indonesia, Amnesty International met migrant workers deported by boat from Malaysia; 63 of the men had been caned.

“Neighbouring countries significantly contribute to Malaysia’s economy by sending tens of thousands of migrant workers,” said Sam Zarifi. “Indonesia and other migrant-sending countries should insist that Malaysia stop caning their citizens.”

Amnesty International called on the Malaysian government to:
•    Enact immediately a moratorium on caning punishment in all cases, with a view to its abolition;
•    Ratify the UN Convention Against Torture and its Optional Protocol, as well as the International Covenant on Civil and Political Rights;
•    Amend legislation to treat immigration violations as administrative offences rather than crimes punishable by prison or corporal punishment. - Amnesty International, 6/12/2010, Malaysia: Torture practiced systematically in widespread caning

The related Press Statement by AI:-

Malaysia: Torture practiced systematically in widespread caning

6 December 2010

AI Index: PRE01/404/2010

The Malaysian government must immediately end the practice of judicial caning, which subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars, Amnesty International said today in a new report.

A Blow to Humanity provides an in-depth look at Malaysian caning, which leaves victims, including many foreigners seeking asylum, with little recourse, support or hope. Many have no understanding of the charges or fate that awaits them.

“Caning in Malaysia has hit epidemic proportions,” said Sam Zarifi, Amnesty International’s Asia-Pacific Director. “In every case that we examined, the punishment amounted to torture, which is absolutely prohibited under any circumstances.”

In recent years, Malaysia has increased the number of penal offenses subject to caning to more than 60. Since 2002, when Parliament made immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

In Malaysian prisons specially trained caning officers tear into victims’ bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim’s naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness.

The Malaysian government does not punish officers for their actions. Instead, it trains officers how to conduct caning and pays them a bonus for each stroke. Many double their income through their caning work. Others take bribes to intentionally miss, sparing their victims.

State-employed doctors also play an integral role in caning. They examine victims and certify their fitness to be caned. When victims lose consciousness during caning, they revive them so the punishment can continue. After caning, some victims suffer long-term physical disabilities.

“The role that Malaysian doctors play in facilitating deliberate pain and injury through caning is absolutely contrary to international medical ethics,” said Sam Zarifi. “Instead of treating the victims, the doctors are preparing them for punishment.”

Malaysian officials and states employees who are complicit in torture are liable to prosecution worldwide under universal jurisdiction for grave human rights crimes such as these, Amnesty International said.

Judicial caning was originally imposed under British colonial rule in the 19th century. Under international law, all judicial corporal punishment constitutes torture or other ill-treatment, which is prohibited in all circumstances.

Refugees who fled torture and forced labour in Myanmar told Amnesty International how Malaysia (which does not recognize refugees) caned them for immigration violations, sometimes repeatedly. In Indonesia, Amnesty International met migrant workers deported by boat from Malaysia; 63 of the men had been caned.

“Neighbouring countries significantly contribute to Malaysia’s economy by sending tens of thousands of migrant workers,” said Sam Zarifi. “Indonesia and other migrant-sending countries should insist that Malaysia stop caning their citizens.”

Amnesty International called on the Malaysian government to:

• Enact immediately a moratorium on caning punishment in all cases, with a view to its abolition;

• Ratify the UN Convention Against Torture and its Optional Protocol, as well as the International Covenant on Civil and Political Rights;

• Amend legislation to treat immigration violations as administrative offences rather than crimes punishable by prison or corporal punishment.

Note to editors:
Amnesty International spokespeople and case studies are available.
In Kuala Lumpur, contact Lance Lattig (English, French, Spanish and Portuguese) on +60 12 294 3731.
In London, contact Thomas Yocum on +44 (0) 207 413 5871.
The report can be found at: http://www.amnesty.org/en/library/info/ASA28/013/2010/en
Source: Amnesty International Website

MADPET SAYS NO TO PROPOSAL TO WHIP ‘MAT REMPIT’

MEDIA STATEMENT – 22/4/2008

MADPET SAYS NO TO PROPOSAL TO WHIP ‘MAT REMPIT’

MADPET (Malaysians Against Death Penalty and Torture) is disturbed by the recent statement of Federal Traffic chief Senior Assistant Commissioner II Datuk Hamza Taib, as reported in the Star (18/4/2008), who said that “..Habitual illegal road racers and Mat Rempits will face whipping under proposed amendments to the Road Transport Act 1987.”

The report stated that “...under the proposed Section 42 (A), illegal racers can be jailed for up to five years and fined not less than RM5,000, and have their licences suspended for three years for a first offence…The penalty for second-time offenders would be a minimum of 10 years’ jail, three strokes of the rotan, not less than RM10,000 fine, and not less than a five-year suspension of the driving licence…”

Article 5 of the Universal Declaration of Human Rights clearly states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

Whipping is one such cruel, inhumane, degrading form of punishment, and there is no good reason why the punishment of whipping is still there in the statute books of caring compassionate Malaysia.

The only flawed reason why some may want to add whipping as an extra-punishment for repeat offenders of an offence under the Road Transport Act is possibly the belief that it will have a deterrent effect. This reasoning is baseless for there is no evidence whatsoever to support such a belief. It is also unlikely that Malaysian authorities will be able to supply Malaysians evidence that the introduction of the punishment of whipping has had a direct consequence in the reduction of any crime.

The Malaysian government must seriously look into root causes, which may reveal that it was the failings of the government itself that has led to such crime in Malaysia today, and if that be the case, then the taking of the easy way out by just blaming the “Mat Rempits” and the introducing whipping as an additional punishment is wrong and unacceptable.

"If you suffer your people to be ill-educated and their manners corrupted from infancy, and then punish them for those crimes to which their first education disposed them, what else is to be concluded, sire, but that you first make thieves and then punish them?" -Thomas More

It should be noted that the Malaysian Bar, a body of about 13,000 lawyers, did in March 2007 pass a resolution unanimously calling for the abolition of the whipping sentence from the laws of Malaysia. The Malaysian Bar rejected and denounced ‘…the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation….’

MADPET calls for an immediate removal of the sentence of whipping from the laws of Malaysia.

MADPET calls also for an end of the execution of the sentence of whipping, which has been known to cause permanent physical and psychological damage to victims, including also impotency.

MADPET calls also for Malaysia to immediately ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

Charles Hector

for Malaysians Against Death Penalty and Torture (MADPET)

22^nd April 2008

Whipping, longer jail term for Mat Rempit proposed

Friday April 18, 2008

Whipping for illegal road racers

By KULDEEP S. JESSY

Mat Rempits and other would be illegal racers, beware!

KUALA LUMPUR: Habitual illegal road racers and Mat Rempits will face whipping under proposed amendments to the Road Transport Act 1987.

Federal Traffic chief Senior Asst Comm II Datuk Hamza Taib warned that once the amendments became law, they may be given three strokes of the rotan.

Those who are underage could face up to 100 hours of community service under the supervision of the Welfare Department.

Currently, police charge those involved in illegal racing under Section 42 (1) of the Act, which carries a maximum RM15,000 fine or not more than five years’ jail, and a two-year suspension of the driving licence.

Under the proposed Section 42 (A), illegal racers can be jailed for up to five years and fined not less than RM5,000, and have their licences suspended for three years for a first offence.

“The penalty for second-time offenders would be a minimum of 10 years’ jail, three strokes of the rotan, not less than RM10,000 fine, and not less than a five-year suspension of the driving licence,” SAC Hamza told reporters after Inspector-General of Police Tan Sri Musa Hassan launched the Public Bank-police safety campaign, to address the Mat Rempit problem among youths, in Kuala Lumpur yesterday.

A proposed Section 42 (A)(B) would also allow the police to seize the motorcycles used and for the machines to be disposed of once a conviction is obtained.

However, a proposal to take action against spectators under the same Act was rejected by the committee chaired by the Transport Ministry.

SAC Hamza said police would also take action against organisers of illegal racing under existing preventive laws.

2008/04/18 (NST)

Whipping, longer jail term for Mat Rempit proposed

By : Alang Bendahara

KUALA LUMPUR: Habitual illegal street racers or Mat Rempit will face whipping as well as a maximum 10-year imprisonment under proposed amendments by police to the Road Transport Act 1987.

Federal Traffic chief Senior Assistant Commissioner II Datuk Hamza Taib said under the proposal to amend Section 42 of the Road Transport Act 1987, second-time and habitual offenders would receive a maximum of three strokes of the rotan.

At present, he said, those who were involved in illegal race were charged under Section 42 (1) of the Road Transport Act 1987, which carries a maximum RM15,000 fine or not more than five years' jail, and a two-year suspension of the driving licence.

The proposed new Section 42 (A) for first-time offenders provides the same jail sentence but a minimum fine of RM5,000 and a three-year suspension of licence.

For repeat offenders, the penalty is a maximum of 10 years' jail, three strokes of rotan, a mandatory RM10,000 fine and a mandatory five-year suspension of the driving licence.
Minors must do community service for a maximum of 100 hours.

Another new sub-section, Section 42 (A) (B) of the act, will allow police to seize motorcycles which would be disposed of with or without a court order once offenders are convicted of the offence.

Speaking after the launch of the Anda Bijak, Anda Selamat road safety campaign organised by Public Bank here yesterday, Hamza said police had also wanted to act against spectators of illegal races but it was rejected by a committee chaired by the Transport Ministry.

"The proposal was dropped as there would be problems in differentiating between spectators and passers-by."

He said police would gather information on illegal race organisers and would forward the case files to Bukit Aman and the Home Ministry for action.

Action against them included sending them to the Sim-pang Renggam detention centre or putting them under restricted residence, he added.

On Wednesday, the Kuantan Magistrate Court sentenced illegal street racer Ahmad Afzal Sabari Zumadi, 28, to two years' jail, fine of RM6,000 and a two-year suspension of his licence.

Present during the road safety campaign launch was Federal Internal Security and Public Order director Datuk Hussin Ismail, who commended Public Bank for helping police educate school children on the dangers of illegal street racing.

Public Bank founder and chairman Tan Sri Teh Hong Piow said the bank would distribute 50,000 copies of the Road User Information Guide to schools through the Education Ministry.

‘Spare the whip, it’s cruel’

Human rights and the law: ‘Spare the whip, it’s cruel’

Contributed by Renuka T. Balasubramaniam

Thursday, 27 September 2007 09:00am

©The Sun The Malaysian Bar at its AGM last March passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment. Human rights lawyer Renuka T. Balasubramaniam produces compelling and cogent reasons why all Malaysians should declare whipping barbaric. “I got six. It was just incredible pain. Burning – like someone sticking a hot iron on your bum. That’s the sort of feeling. Pain – just ultimate pain. The strokes come one a minute, but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out – ‘baam’. Afterwards my bum looked like a side of beef. There were three lines of raw skin with blood oozing out.” – New Zealander Aaron Cohen who received six strokes in 1982 for drug trafficking. AMONG the many laws of Malaysia, 29 Acts of Parliament – such as the Dangerous Drugs Act, Immigration Act, Moneylender’s Act and the Child Act – and a further 48 sections under the Penal Code call for the punishment of rotan or whipping. Some offences provide for the maximum number of 20 strokes. The recent YouTube posting depicting actual footage of a prisoner being given the maximum 20 strokes of the rotan by Malaysian prison authorities caused worldwide revulsion. The bloods-pattered video was deemed so horrific by the YouTube user community that it was “removed due to terms of use violations”, while a second similar video carried a condition that one would first have to declare that he/she is 18 or older by logging in or signing up. Readers are hereby challenged to watch it in its entirety, and see how they feel about whipping afterwards. International condemnation Amnesty International and the UN Human Rights Committee have condemned whipping and other forms of corporal punishment as cruel, inhumane and degrading punishment and contrary to human rights law. Law Minister Datuk Seri Mohamed Nazri Abdul Aziz even relied on this international condemnation of whipping when he explained in Parliament during the debate on the Anti-Trafficking Bill that Malaysia, having aspirations of being a good UN citizen, had purposely excluded whipping as a form of punishment from the Bill. The UN Committee Against Torture has called for the abolition of corporal punishment and the UN Special Rapporteur on Torture has stated that “corporal punishment” is inconsistent with the prohibition of torture and other cruel, inhumane and degrading treatment or punishment. Accordingly, the Malaysian Bar, at its AGM earlier this year, passed a resolution declaring that whipping is cruel, inhumane and degrading and called for the abolition of the sentence in any legislation, and particularly against offenders of the Immigration Act. The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in our prisons and detention camps. On top of this, migrant and refugee communities, by virtue of the penalties under the Immigration Act, are the primary victims of corporal punishment. Oftentimes the punishment of caning, although discretionary, is handed down, as a deterrent. I have observed first-hand that it is not uncommon for judges to sentence immigration offenders to at least two strokes each. In deciding that whipping must be abolished, the Malaysian Bar also considered it from a larger perspective and took the view shared by many, that because it is cruel and inhumane, no one should have to bear that suffering, and therefore called for the abolishment of caning for all offences. Administering cruelty The person administering the sentence is in fact administering cruelty on another human being under the guise of carrying out orders. These orders are, in turn, derived from a policy that disregards the universally accepted spiritual principle of non-violence. As a member of the human race, I believe I am duty-bound to do what I can to subvert the continuance of these wrongs against humanity. I believe that one day, humanity can agree that the taking of life or causing grievous bodily harm intentionally and under any circumstances, especially via sentencing principles, is wrong. Deterrent? There are those who say that the fear of being caught and subject to penal consequences deters crime. But a recent study on the deterrent effect of longer prison sentences by David S. Lee of Columbia University and Justin McCrary of Michigan University showed that the threat of increased penalties does not seem to alter criminal behaviour. Their findings suggest that potential criminals do not think at all of the consequences of their actions before committing crimes, thereby negating the effect of harsher criminal sanctions. The Ouimet Report by the Canadian Committee on Penal and Correctional Reform published in 1969, had this to say: “Traditional prisons tear the individual away from his duties towards his family, his community, his education and his work and isolate him in an abnormal community where he is exposed to a code of values established by criminals. Opportunities to make decisions, which are such an important factor in social rehabilitation, are extremely rare. It is difficult to imagine a system less conducive to life in society than traditional prisons.” Add to this the humiliation of being whipped, and one cannot possibly derive a conclusion that punishments of imprisonment and whipping are for the benefit of ‘rehabilitation’ and ‘deterrence’. When the death penalty was abolished in the United Kingdom many decades ago, it became evident from studies that the number of murders did not increase. It remained more or less constant. This is frequently cited as authority against the death penalty and on the subject of how deterrence simply does not work. Dysfunctional personalities I hold the opinion that criminal tendencies – all of them – are symptoms of dysfunctional personalities. The cause of these dysfunctional personalities usually can be simplified to inadequate or non-existent parenting and the absence of love or compassion in their lives. This we can imagine is a reason the Ministry of Women, Family and Community Development is attempting to promote the idea that the family unit is core in the development of the community. I really believe that we cannot rid society of its evils, but we can substitute evil with values that are true, good and beautiful. Public opinion Often, the principles of sentencing seek to reflect public opinion. Realistically, if the education, socio-economic background and even the self-sufficiency of the public today were to be considered as a whole, the public would be represented by your average lower-middleclass man in the street with not much education, little economic influence, little political influence, little self-confidence and fear-based reactions to all events occurring around him. He has a very limited perspective of his environment, and out of this ”ignorance“’ he may seek to cling to what he knows and believes as the only way of protecting himself. Thus ”public opinion” would be based on the lowest common denominator. This is evident where “public opinion’ on whipping is based on the principles of retribution, ”teaching a lesson” and using fear tactics to ensure that society toes the line. So, instead of reflecting public opinion, members of the Bar are taking the initiative to actually lead public opinion by lobbying the fact that the public interest would be best served if the offender is induced to turn from criminal ways to more wholesome living. The Malaysian Bar has, with its resolution, avowed to lead public opinion by rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation. Although revenge and retribution in individuals may be understandable, society as a whole should not operate on such base principles because it cannot be forced to react through legislation, to the strong feelings of victims of crime. To this end, prison rehabilitation programmes should be revamped and tailored toward psychological counselling, encouraging a convict into self-examination through which it is hoped he may gain insight into his actions. In the example of the brutal rapist, society should harbour the faintest hope that some of these offenders, upon undergoing rehabilitation, may experience a desire to make amends as a result of the compassion and counselling he has received and thus be motivated to do something good for society or his family upon his release. Conclusion Whipping has failed as a retributory and deterrent sentence, just as strict and painful discipline on children inevitably results in their becoming more rebellious, almost as if to validate the opinion of their parents that they are “naughty” kids. It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard. Renuka T. Balasubramaniam is a member of the Human Rights Committee (HRC), Bar Council Malaysia. For information on the work of the HRC, see www.malaysianbar.org.my/hrc. Complaints of rights violations may be forwarded to rezib@malaysianbar.org. my for consideration of the committee. However, we make no assurance that all cases will be adopted for action.

MALAYSIA: Illegal Migrant Workers May Escape the Cane

MALAYSIA: Illegal Migrant Workers May Escape the Cane
By Anil Netto

PENANG, Mar 20 (IPS) - With the Malaysian Bar calling for the abolition of corporal punishment ‘illegal' migrant workers, who are currently being rounded up in a nationwide sweep, may become the first beneficiaries of any change in policy.

At the weekend annual general meeting of the Bar, which comprises 12,000 lawyers in the country, a motion calling for the declaration of whipping as cruel, inhumane and degrading was unanimously adopted. The bar pushed for the abolition of the whipping sentence in various laws, including the Immigration Act.

The two lawyers, Latheefa Koya and Renuka T. Balasubramaniam, who moved the motion asked the Bar to lead public opinion in ‘‘rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation''.

They also pointed out that whipping had failed as a deterrent and asserted that it is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, which states that no one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

‘‘We are putting forward this motion now because of the increasing numbers of arrests and (cases of) whipping going on now,'' Latheefa Koya told IPS, pointing to the mass raids currently going on to pick up ‘illegal' migrants. ‘‘This motion is a step forward in getting rid of corporal punishment altogether.''

Corporal punishment -- whipping with a thick rattan cane -- is usually administered as a supplementary penalty for a range of crimes including armed robbery and drug trafficking. But in recent times, it has also been used on migrants deemed to be illegal under the Immigration Act. Those in breach of the Act face fines, jail terms and whipping.

In practice, migrants, including refugees, picked up during raids are either brought to court -- within two weeks -- or sent straight to immigration detention centres for eventual deportation.

Of those brought to court, those with valid documents but who have overstayed face prison terms and deportation. A caning sentence, usually two to three strokes, in addition to a stint in prison, is meted out to those without any documents, according to Latheefa, who works in Legal Aid. Women are not whipped.

Upon being brought to court, migrants often do not know what charges are brought against them, the two lawyers claim. ‘‘They are not informed of their right to legal representation, and in any event, are not provided with a reasonable opportunity to seek help. The lack of interpretation in appropriate languages renders the whole legal process a complete travesty of justice and human rights.''

Faced with indefinite detention, many of them turn in guilty pleas without realising the full implications.

In the past, rights groups have spoken out against whipping, which leaves large red welts and permanent scars on the buttocks. Rather than having any Islamic connotations, judicial corporal punishment here was first introduced in the late 19th century by British colonial administrators as an outgrowth of British judicial custom and practice at the time.

In their motion, Latheefa and Renuka pointed out that ‘‘whipping is clearly intended to be a humiliating experience.'' They cited New Zealander Aaron Cohen's description of the six strokes he received in 1982 for drug-trafficking:

‘‘It's just incredible pain. More like a burning - like someone sticking an iron on your bum. That's the sort of feeling. Pain - just ultimate pain,'' he said. ‘‘The strokes come at a rate of one a minute - but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out - ‘baam'. Afterwards my bum looked like a side of beef.''

Upon serving their sentences, "illegal'' migrants are sent to immigration holding centres for deportation.

In the past, Amnesty International has expressed grave concern over conditions for undocumented migrants held in immigration detention centres, ‘‘especially when mass arrests and deportations lead to severe overcrowding. Conditions in some immigration detention centres may be at times so poor as to amount to cruel, inhuman or degrading treatment''.

The two lawyers' motion could face some resistance from other lawyers and ordinary Malaysians as migrant workers have often received negative coverage in the media. Many Malaysians are worried about the incidence of serious crime. Others link the rising crime rate with the high number of migrants, estimated to number close to 10 per cent of the population, even though statistics reveal that they are not more prone to crime.

The country's top police officer was reported as saying last month that only 2 per cent of crimes in the country were committed by foreigners. However, he proposed that all foreign workers be confined to their quarters and have their movements monitored by management to prevent them from committing crimes.

Despite the inuman conditions, Malaysia's relative prosperity has continued to attract thousands of illegal or undocumented workers from such neighbouring countries as Indonesia, Burma, India, the Philippines and Bangladesh where job opportunities are scarce.

For Irene Fernandez, director of the leading migrant rights groups Tenaganita, the lawyers' motion calling for an end to whipping is extremely important. ‘‘For us, it is like a tool for torture. It is a very inhuman thing to do,'' she told IPS.

The impact of whipping, she added, was tremendous and left migrant workers scarred for life. ‘‘Whipping should become history. As a nation now celebrating its 50th year of independence, whipping should be out, and not condoned anymore.'' (END/2007)