Tuesday, October 19, 2021

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

Media Statement – 20/10/2021

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

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

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

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

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

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

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

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

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

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

In March 2012, it was also revealed in Parliament by the then Home Minister Hishammuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for the past three years (2009 to 2011) have shown an increase. In 2009, there were 2,955 arrested under this section.  In 2010, 3,700 people were arrested, whilst in 2011, there were 3,845 arrested.(Free Malaysia Today News, 19/3/2012, Death penalty not deterring drug trade).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Charles Hector

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


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





Police call for harsher punishment for syabu-related offences

Nation

Saturday, 02 Oct 2021 11:10 AM MYT

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 12, 2021

Abolish death penalty, suspend pending executions, say groups, MP(FMT, 10/10/2021)

MADPET issued a statement, which was reported in part by FMT. For the full statement, see BN, PH Plus and BN-PN-GPS governments and the Abolition of Death Penalty in Malaysia (MADPET, 10/10/2021)

Some points made:-

* All governments starting with BN, then PH Plus and now the PN-BN-GPS Plus governments are all moving towards the abolition of death penalty. BN stands out, by the abolition of the mandatory death penalty for Drug Trafficking. Whilst, the other more recent 2 governments failed to act in amending the law.

* 2 kinds of Death Penalty which State carries out. 1st is where an accussed, tried, convicted, sentenced to death and hung. The 2nd is EXTRAJUDICIAL KILLING where the State and state agents kill 'suspects' - hence without according the right to a fair trial. MADPET calls for the abolition of both kinds of death penalty.

*  Pardon Powers rest with State Rulers, and today different states are ruled by different political parties/coalitions. After sentencing, the King or State Ruler can pardon and commute the death sentence into imprisonment - but alas, the lack of pardons by the different States, despite an acknowledgement that many in death row for drug trafficking are mere 'mules', sometimes people 'conned' Why did Pakatan Harapan Plus, Warisan, BN or PAS state governments pardon such persons commuting the sentence to imprisonment.

* Remember a former BN Minister, convicted of murder and sentenced to death was pardon the 1st time resulting the commutation of sentence from death to life imprisonment. Then, there was a second pardon that saw him released from prison. [Is this a discrimination in favour of politicians? Do ordinary people don't matter?]

Abolish death penalty, suspend pending executions, say groups, MP

The groups have urged the federal and state governments to push for the Rulers to grant pardons and commute the sentences of those on death row. (AFP pic)

PETALING JAYA: Two groups and an MP have spoken up on the need to abolish capital punishment and for a moratorium on all pending executions until a decision is made by the government on this.

In their statements in conjunction with the World Day Against the Death Penalty today, they said it had been proven globally that this punishment had failed to deter criminals.

In recognition of this year’s theme, “Women sentenced to or facing the death penalty”, Batu Kawan MP Kasthuri Patto highlighted the 129 women on death row in Malaysia as of last year, adding that this was about 16% of all the women sentenced to death globally.

“Of the 144 countries that have abolished the death penalty in practice and law, Malaysia remains one of the few countries among the 51 that still believe that executing people will cause crime rates to reduce, to act as a deterrent or, worse, for justice to be served.



Kasthuri Patto.

“Over the years, the number of men and women on death row in Malaysia has increased. But there is no sign of a reduction, with the crime rate still remaining high.”

She said that while abolition rarely received overwhelming support, the government must not avoid the issue in favour of “fame and popularity”, and must invest tirelessly in reforms to prevent the crimes that have long been punished with the death penalty, like drug trafficking offences.

Malaysians Against Death Penalty and Torture (Madpet) meanwhile said that while positive progress had been made towards that end, such as the country voting in December 2020 for a moratorium on the use of capital punishment at the United Nations General Assembly, more work still needs to be done in pursuit of total abolition.

It called on the federal and state governments to push for the Rulers to grant pardons and commute the sentences of those on death row until all forms of capital punishment — mandatory and discretionary — can be officially abolished.

The group also said that inquiries must be conducted into cases where police kill a suspect to determine whether it was an “indirect death penalty” performed by the state or its agents.

It said while the last three governments had made some improvements, they were not as wide-reaching and comprehensive as many had hoped for, and called upon the new government to “finally abolish the death penalty, and until then continue to maintain a moratorium on executions”.

The Human Rights Commission of Malaysia (Suhakam) reiterated its call for an end to executions too, “in line with the belief in a person’s fundamental right to life”.

It encouraged the government to follow through on its plans to scrap the death penalty, as stated by former law minister Liew Vui Keong, who in 2019 said a bill to do so was being prepared for tabling in Parliament.

The group called for the release of the report and recommendations developed by the special committee, established by the late Liew, to allow legislators and policy makers to do what’s necessary to expedite an end to capital punishment.

“Further, Suhakam encourages the initiative announced by the government in 2020, to set up a Law Reform Commission to study existing laws as well as sentencing procedures and, if found to be outdated or archaic, to recommend for the necessary amendments or repeal, thereby enabling Malaysia to be in line with international human rights standards.” - FMT, 10/10/2021

 

See full MADPET statement - 

BN, PH Plus and BN-PN-GPS governments and the Abolition of Death Penalty in Malaysia (MADPET, 10/10/2021)


Saturday, October 09, 2021

BN, PH Plus and BN-PN-GPS governments and the Abolition of Death Penalty in Malaysia (MADPET, 10/10/2021)

 

Media Statement – 1/10/2021 (World Day against The Death Penalty)

BN, PH Plus and BN-PN-GPS governments and the Abolition of Death Penalty in Malaysia

Extrajudicial killings is also a death penalty

On the occasion of World Day Against the Death Penalty (10th October), MADPET (Malaysians Against Death Penalty and Torture) notes positively the change in the Malaysian position to now be inclined towards the abolition of the death penalty.

On Dec 16 2020, Malaysia voted in support of the resolution calling for a moratorium on the use of the death penalty at the United Nations General Assembly (UNGA). The UNGA adopted the resolution with 123 votes in favour, 38 against and 24 abstentions. The global trend indicates growing support for abolition.

Barisan Nasional Rule

During the Barisan Nasional(BN) rule under the then Prime Minister Najib Razak, the then Minister in the Prime Minister's Department Datuk Seri Azalina Othman, the de facto Law Minister, during the Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking at abolishing the mandatory death penalty, but all death penalty.

The BN government then acted to remove the absolute mandatory death penalty for the offence of drug trafficking vide an amendment of the Dangerous Drugs Act 1952 that came into force on 15/3/2018. Now, judges could sentence those convicted to death or to imprisonment for life (plus whipping of not less than fifteen strokes). However, the alternate to death penalty was available only if limited conditions were fulfilled, one of which was ‘that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’, whereby this draconian condition undermines also one’s right to a fair trial, which include the right to 2 appeals. Full judicial discretion when it comes to sentencing is still being curtailed, but it was better than before when only death penalty if convicted of drug trafficking.

Pakatan Harapan Plus Rule

During the Pakatan Harapan Plus(PH Plus) rule, there was first talks about abolition of death penalty, and later just about the abolition of the mandatory death penalty but at the end of their time in power, sadly there was not even a Bill tabled towards abolition of the death penalty.

It was announced on October 10 2018 (being also the World Day Against the Death Penalty), that the Malaysian Cabinet had reached a consensus (a collective decision) that the death penalty for 33 offences as provided for under eight Acts of law would be abolished, and this was again reiterated several times(Straits Times, 13/11/2018).

However, on 13/3/2019, it was reported that Deputy Minister in the Prime Minister’s Department Mohamed Hanipa Maidin in Parliament said that the ‘…the government will only repeal the mandatory death penalty...’ for 11 criminal offences. (NST, 13/3/2019)

The change in position from total abolition to death penalty, to just abolishing the mandatory death penalty may have sadly been because of a knee-jerk response to political actions initiated by the then Opposition, for example the ‘‘MCA Youth against Abolition of the Death Penalty’’ campaign that started on 20 Nov 2018.

It is disturbing when a government’s principled position and/or promises, can so easily change simply because of a questionable worry of possible loss of political support that may affect future elections.  When the French National Assembly voted to abolish the death penalty 40 years ago, more than 60 percent of the population still backed capital punishment. But the then president François Mitterrand and the government stood by their position, no matter the political cost.

Perikatan-BN-GPS Plus Rule

When the Perikatan Nasional(PN)-BN Plus came into power, to date there is still no Bills tabled to bring about the abolition of the death penalty, or even just the mandatory death penalty. Malaysia, under this government, continued to vote in favour of UNGA resolution calling for a moratorium on executions pending abolition of the death penalty.

Now, we have a new UMNO Prime Minister, heading a BN-Perikatan-GPS plus coalition government, and we hope that this government finally do the needed to abolish the death penalty, and until then continue to maintain a moratorium on executions.

Death Row

Malaysia has a very large number of persons on death row. An Amnesty International report disclosed that in early 2019, there were 1281 persons on death row, including 141 women. Today, the numbers will be even higher.

Getting statistics from government is very difficult, and the normal method is if a Member of Parliament or Senator ask a Parliamentary Question. MADPET calls for the Malaysian government to be transparent, and reveal statistics of death row prisoners, and even crimes committed at least once every quarter.

The then amendment to the Dangerous Drugs Act 1952(DDA), that abolished mandatory death penalty, failed to address the issue of persons who committed the offence before the amendment came into force, and those that were on death row. Note that amendment came about after a realization that most on death row are ‘mules’, not the ‘kingpins’ of the drug trafficking trade, and as such ‘mules’ or persons conned should justly not be sentenced to death. The position that led to the amendment of the DDA should have resulted in pardons of many on death row, commuting their death sentence to imprisonment.

Pardon powers with King and State Rulers

In Malaysia, the King have the power to pardon if the offence was committed in Federal Territories only, and with regard to offences committed in States, then the ‘…Ruler or Yang di- Pertua Negeri of a State has power to grant pardons..’.

As many of the States are ruled by the Opposition, the question is why these State government failed to move the State Rulers to pardon and commute death sentences to prison terms for those on death row for offences committed in his State. Lack of transparency makes it difficult to conclude the numbers on death row inmates for offences committed in a particular state, or even the number of death row inmates that have applied for pardon, and  the number who had been successful or otherwise.

In 1983, the late Datuk Mokhtar Hashim, then Culture, Youth and Sports Minister received the death penalty for the murder of Datuk Taha Talib, the state assemblyman for Tampin, In 1984 he received a ‘royal pardon’ when his death sentence was commuted to life imprisonment, and thereafter in 1991 another ‘royal pardon’ set him free from prison. We hope that pardons and commutation of sentences are available to all, not simply certain politicians.

MADPET calls on Federal and State governments to move to get persons on death row pardoned, and their sentences commuted. Malaysia must be against the taking of lives, for repentance and rehabilitation, for second chances and re-integration into society for the reformed criminal.

Abolition of the Death Penalty includes abolishing extrajudicial killings/executions

When the State/Government through police or other law enforcement personnel, instead of arresting and according a person a fair trial, ends up killing a suspect or some other, there must be an independent inquiry to determine whether it was an indirect ‘death penalty’ by State or its agents. This could be done by way of an inquest. As a matter of policy and/or law, the government can decide that all such police killing incidents will be inquired into by an independent Coroner (a Magistrate or Judge).

The abolition of the death penalty have many often stated reasons, including the risk of miscarriage of justice and the negative impact of the family and children of the executed or persons on death row.  Death penalty has been shown not to be a deterrent to crime.

MADPET reiterates its call for the abolition of the death penalty, including extrajudicial killings, and that Malaysia continues to impose a moratorium on execution pending abolition.

Charles Hector

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

 

 

We voted for a moratorium on the death penalty


 
Wednesday, 23 Dec 2020

ON Dec 16,  Malaysia voted in support of the resolution calling for a moratorium on the use of the death penalty at the United Nations General Assembly (UNGA).

The UNGA adopted the resolution with 123 votes in favour, 38 against and 24 abstentions.

The assembly also called on states 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 May 25,1984”.

The adoption of this resolution demonstrates a growing trend towards the abolition of the death penalty. In 2018, a similar resolution only had 121 votes in favour, which also included Malaysia. In 2007, there were 104; in 2008, it was 106; in 2010, it was 108. In 2012, it jumped to 111, and in 2016, it was 117. Malaysia voted in favour in 2018 and now again in 2020.

On the same day, the UNGA also adopted a resolution on extrajudicial, summary or arbitrary executions by a vote of 132 in favour to none against, with 53 abstentions. The assembly “demanded that states ensure the practice of extrajudicial, summary or arbitrary executions is brought to an end”.

Malaysia should have already taken the first step with the abolition of the mandatory death penalty earlier in the year but was unfortunately delayed by Covid-19 and changes in government.

Malaysians Against the Death Penalty and Torture (Madpet) urges the government to expedite the abolition of the mandatory death penalty, which will then rightfully return the power to the courts to determine the most appropriate sentence based on the facts and circumstances of each case. A mandatory penalty removes a role that should be left to the judiciary in a democracy.

As a next step, Madpet also calls on Malaysia to immediately abolish the death penalty from all offences that do not result in any deaths.

Madpet also calls for the criminalisation of extrajudicial, summary or arbitrary executions, and for the abolition of all detention without trial laws as well. No one should be detained, restricted and/or punished without being accorded the right to a fair trial.

CHARLES HECTOR

On behalf of Malaysians Against the Death Penalty and Torture (Madpet) - Star, 23/12/2020

 

 

French public divided over death penalty 40 years after its abolishment

Former French president François Mitterand (L) and former justice minister Robert Badinter supported the abolishment of capital punishment.
Former French president François Mitterand (L) and former justice minister Robert Badinter supported the abolishment of capital punishment. © FRANCE 24 screengrab
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When the French National Assembly voted to abolish the death penalty 40 years ago Saturday, more than 60 percent of the population still backed capital punishment. But then president François Mitterrand stood by his campaign promise, no matter the political cost.

“I'm against the death sentence... I don't need to read opinion polls that say otherwise,” Mitterand said.

The man who pushed the bill abolishing executions was one of France's most notorious lawyers, Robert Badinter, who became justice minister shortly after Mitterand took office.

He said he who could no longer bare decapitations, including that of his own client, Roger Bontems, who was executed for complicity in a lethal armed robbery: "When I saw Bontems being executed – executing is cutting a living man in two! – I swore I wouldn't just be opposed to the death penalty, I would become an activist."

The National Assembly passed the law to abolish the sentence on September 18, 1981 with 363 votes in favour and 117 against.

The French remain divided on capital punishment 40 years later, with opinion polls showing about half of those surveyed say it should be reinstated. - France 24, 18/9/2021