Lawyer: Natural life sentence a better deterrent - Abolish the Death Penalty

BANGI: A lawyer has suggested that the death penalty be abolished, as it does not seem to be an effective deterrent.

M.M. Athimulan said a better deterrent would be natural life imprisonment.

He said crimes such as murder, drug trafficking and armed robbery were on the rise despite the law providing for death by hanging.

"In fact, traffickers are prepared to risk their lives and carry on with the clandestine activities to make a fast buck," he said in a paper entitled "Abolishment of Death Penalty" at a criminal law conference at Universiti Kebangsaan Malaysia here yesterday.

At present, judges can reduce murder and drug trafficking charges in the midst of a trial if they find there is insufficient evidence.

In such cases, the offender gets a jail term of up to 20 years, with one-third remission for good behaviour.

Athimulan said the natural life sentence -- serving time in prison until death -- would better deter would-be criminals.

He said from his experience, those charged with offences that carried the natural life sentence were more fearful because they would have to languish in prison indefinitely.

Athimulan, however, admitted that this could be expensive as the government would have to keep and feed them.

A participant, Mohammad Rafique Rashid Ali, suggested that the death penalty be maintained but that the guilty be executed in public.

Lawyer Gurbachan Singh, who delivered a paper titled "Constructing Defence On Drug Charges in Court", said that there was uncertainty in this area of the law due to inconsistencies.

Gurbachan said recent judicial pronouncements on trafficking and possession cases appeared to have been wrongly decided.

"In the past we had eminent judges who upheld the law and were never affected by the facts of a case."

Another lawyer, Hisyam Teh Poh Teik, who delivered a paper on "Criminal Advocacy" advised newcomers to the Bar to be innovative and break new grounds in criminal jurisprudence.

He said lawyers must rise to the defence of their clients at the prosecution stage when conducting cross-examination of witnesses.

"Trial judges are unlikely to accept the accused's version during defence as it will be construed as a concoction or as an afterthought," Hisyam Teh said. - New Straits Times, 15/11/2009, Lawyer: Natural life sentence a better deterrent

Police Shooting - SUARAM: Weak Procedures and Lack of Accountability in Police Shootings: Government Must Act Immediately to End Impunity

Press Statement: 24 November 2009

Weak Procedures and Lack of Accountability in Police Shootings:

Government Must Act Immediately to End Impunity

SUARAM strongly condemns the Royal Malaysian Police on the shooting of the five men in Klang on 8 November 2009 that resulted in their deaths. There are high numbers of death by police shooting and the police should stop maintaining the same reason of self-defence for shooting suspects to death and take measures to avoid such events from recurring.

SUARAM questions how it was possible that all the five suspects were shot dead simultaneously while they were in a moving vehicle as reported in the media. We also question the inconsistencies of the police accounts of the events surrounding the incident. Initial news reports by New Straits Times[1] and Bernama[2] described that police officers stopped the suspects’ vehicle and the suspects tried to run the vehicle into the police officers. The suspects opened fire at the police officers and the police returned fire, causing all five suspects to die on the spot. However, when denying allegations that the police had a “shoot-to-kill” approach, The Star reported that the Federal CID Director Comm Datuk Seri Bakri Zinin stated, “There was a high-speed car chase where the robbers tried to force the pursuing police vehicle off the road while firing shots indiscriminately at them. Police had no choice but to return fire.”[3]

Due to the poor track record of the police and inconsistencies in accounts of incidences such as the one that occurred on 8 November, there is a perception that there is an attempt by the police to cover up actual events. While we recognise the police officer’s right to self-defence, SUARAM is of the view that even if the suspect is first to open fire as alleged to have occurred in the incident that occurred on 8 November, the police must use other procedures to apprehend the suspects that are proportionate to the actions of the suspects and ultimately, lethal use of firearms must be the last resort and not the first.

Death by police shooting is not an uncommon practice in the police force. According to our documentation and monitoring, in 2008, there were 44 cases of death by police shootings with possibly more cases unreported. The perception that the police “shoot-to-kill” has developed because in many of the police shooting cases, circumstances indicated that the police did not try to apprehend suspects but rather, resort to the use of firearms at first instance of attack by suspects. In virtually every case, the police claimed that the suspects were armed and dangerous, and that returning fire was necessary but a closer examination would reveal that in a large number of the shooting cases, the suspects were only armed with weapons such as knives or parangs. These cases are clearly in contravention of the principles of restraint and proportionality in the international standards on the use of firearms by law enforcement officers.

International law clearly stipulates the basic criteria for the use of arms. In the United Nations Code of Conduct for Law Enforcement Officials it is stated, “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”.

Whereas Article 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states, “In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life…” and Article 10 states “…law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident”. (All emphases added)

In addition, Section 15(3) of the Criminal Procedure Code (Act 593) states that in the event of an arrest, it is unlawful for police officers to cause the death of a person during an arrest before they have been accused of an offence severe enough to be sentenced to death or life imprisonment.

While much attention has been given to the recent deaths of ethnic Indian Malaysians in police shootings, SUARAM’s documentation shows that these cases are not merely confined to a single ethnic group. In 2008, 25 of the 44 deaths by police shootings documented by SUARAM that year were foreigners. It is therefore an issue of the failure of the government to discipline a police force which is today operating with critically weak procedures, lack of accountability and impunity.

 

The low public confidence in the police force today is largely due to its lack of accountability. This has been made worse by the recent police shooting cases and the attempts by the police in defending itself without proper and transparent investigation procedures.

 

In light of the recent police shooting cases, there is an urgent need to end impunity by immediately:-

 

1.      declaring and reviewing of the current procedures of the use of firearms on criminal suspects to ensure that police officers comply with international standards; and

2.      establishing accountability procedures after police shootings occur to ensure that police officers are accountable for their actions.

SUARAM also strongly calls upon the Government to immediately act on the recommendation by the Royal Commission on Police for an inquest to be conducted for every death within a month of the incident. This should include all deaths by police shootings. The recommendation states that the Magistrates and Government Medical Officers must be informed about each death and that the bodies must not be moved prior to that. Upon being informed, a Magistrate and a Government Medical Officer must immediately inspect the body at the site of the incident.

 

In the longer term, the Government must establish a Coroner’s Court as recommended by the Parliamentary Select Committee on the Criminal Procedure Code and the Penal Code – to carry out investigation on all deaths by police shootings as well as those in police custody.

 

Released by,

 

Lucas Yap Heng Lung

SUARAM Coordinator

016-4114147

lucasheng19@gmail.com

 

---

[1] The New Straits Times (2009) ‘PCO Boy gang killed in shoot-out’, 9 November, at http://www.nst.com.my/Current_News/NST/articles/21deads/Article/index_html, accessed 23 November 2009 .

[2] Bernama (2009) ‘Five Criminals Shot Dead By Police’, 8 November, at http://www.bernama.com/bernama/v5/newsgeneral.php?id=453530, accessed 23 November 2009 .

[3] The Star (2009) ‘We don’t have shoot-to-kill approach, say police’, 11 November, at http://thestar.com.my/news/story.asp?file=/2009/11/11/nation/5086466&sec=nation, accessed 23 November 2009 .

Another 'shoot to kill' incident - 5 dead.

Another 'shoot to kill' incident - 5 dead.

Apparently they were on the way to commit a robbery - I seriously wonder how the police knew that...

'PCO Boy" had 13 Criminal Record - I believe that it is very wrong to 'defame' the dead and make all kinds of allegations against people that you killed. Is this an attempt to justify your actions?

There must be an independent inquiry into this incident:-

- Was the action of 'shooting' that resulted in all 5 ending up dead justified?

- Was there any intention to arrest these 'suspects' , or were the police out with a mission to shoot them all dead?

- Did the police have information about the identity of these persons before the incident, and were attempts made to secure their arrests?

-......

-......

 

The report says that the 5 had only one gun - 'a Remington pistol with three bullets in its magazine.' - so one person shot at the police...mmm

 'Police believe they have solved 10 armed robberies with the death of the five men. ' - They do not even know the identity of the deceased, and how can they say this so soon after the killing incident...

Post-Mortem is not enough - we need a complete investigation of what happened. Are the police telling the truth? This investigation must be done by an independent body of persons.

KLANG: Police shot dead five men in an early morning shoot-out in Lorong Sungai Keramat, Taman Klang Utama here, yesterday.

A team of D9 officers from the Klang district station was patrolling the area about 12.30am when they spotted a vehicle, with five men inside acting suspiciously.

Police stopped the car and asked them to step out for an inspection.

However, the driver immediately reversed the car and tried to run over the officers.

At the same time, they opened fire at the officers.

In self-defence, the officers returned fire, killing all five in the car.

Klang district police chief Assistant Commissioner Mohamad Mat Yusop said the group was believed to be on their way to commit a robbery and had been active for the past year.

"During the shoot-out, the vehicle rammed into a ditch barrier nearby and all the suspects were already dead when the police got to the car.

"We believe the driver was shot before he lost control of the car," Mohamad said

The identities of the five have yet to be ascertained.

However, police identified one of them as "PCO Boy" who is believed to be the leader of the gang and had 13 criminal records.

He is also wanted for nine robbery cases.

Mohamad said the five were believed to be part of a bigger gang and police were hunting for the remaining members.

Meanwhile, Selangor Criminal Investigation Department chief Datuk Hasnan Hassan said the gang was noted for committing robberies while armed with samurai swords.

"Initial investigations revealed that the leader of the gang (PCO Boy) has been wanted by the police for the past few months as he was believed to be involved in gangsterism and several robbery cases," he said at the scene yesterday.

The car driven by the gang was reported stolen in Kajang on Nov 2 and fake registration number plates were used. 

Also found in the car was a Remington pistol with three bullets in its magazine, six parang and swords.

Police believe they have solved 10 armed robberies with the death of the five men.

The bodies have been sent to Tengku Ampuan Rahimah Hospital for a post-mortem.- New Straits Times, 9/11/2009, PCO Boy gang killed in shoot-out

ENCOD's letter to PM & SUHAKAM - Death Sentence & Drugs

MALAYSIA EXECUTES DRUG OFFENDERS

published Friday 9 October 2009 11:18, by encod .

In the past months, four young men have been sentenced to death for relatively modest charges on cannabis in Malaysia.

ENCOD has sent the following letter to Prime Minister Najib Razak of Malaysia and the Chair of the Malaysian Human Rights Commission.

Please copy this letter, sign it in your name and send it to Malaysian authorities. Check the list of embassies.

PRIME MINISTER Najib Razak,

Prime Minister’s Department, Prime Minister’s Office,
 Main Block, Perdana Putra Building,
 Federal Government Administrative Centre,
 62502 Putrajaya, MALAYSIA

CHAIR HUMAN RIGHT COMMISSION

Tan Sri Abu Talib Othman, Suruhanjaya Hak
 Asasi Manusia Malaysia, 29th Floor, Menara Tun Razak, Jalan Raja Laut,
 50350 Kuala Lumpur, MALAYSIA

Antwerpen, 9 October 2009

Dear Prime Minister,

Dear Chair Human Rights Commission,

As a European coalition of NGO’s and individuals concerned with the global drug issue, we would like to inform you herewith of our deepest concerns about the confirmation of several death sentences in your country recently.

On August 27, Khairul Idzham was sentenced to death for trafficking 4,3 kilos of cannabis five years ago.

On September 2, Lim Kok Yong, 35 years old, was sentenced to be hanged until death after finding him guilty of trafficking 625.7 grammes of cannabis, five years ago.

On September 4, Khalil Anuar Sukirman, 25 years old, was sentenced to death after he was found guilty of trafficking over 1kg of cannabis three years ago.

On September 30, Indonesian Nasir Ibrahim, 31 years old, was given the death sentence after he was found guilty of trafficking 868gm cannabis more than five years ago.

The use of the death penalty as such runs counter to the universal protection of human rights and is at odds with the international trend away from the use of this measure. Very few countries currently carry out executions: provisional figures compiled by Amnesty International indicate that only 20 of the United Nation’s 193 member states carried out state killings in 2006. In countries such as South Korea and Taiwan, authorities are considering to abolish this measure. We hope that this will soon be the case in Malaysia as well.

However, in these particular cases, we believe there is no valid argument whatsoever to carry out this punishment, and urge you to do whatever is possible to reverse the sentence.

We are aware of the argument of your government for maintaining the death penalty for drug traffickers, because drugs cause misery in Malaysian society. To this we would like to say that in spite of executions of drug traffickers in Malaysia, the country is not and will never be drug-free. Many people in Malaysia want to consume cannabis and other drugs, so it is obvious that other people will supply them. Taking the life of people will not change that situation.

Drugs trafficking is the core business of globally organised criminal organisations. The traffickers who are occasionally caught by authorities with relatively small amounts do not have major responsibilities in this business. Killing them will not scare the drugs gangs away. On the contrary, it is possible that thanks to these punishments, the drugs barons can continue to justify extraordinary high prices for their goods.

On the other hand, cannabis is a natural product, a non-lethal substance. Its consumption is widespread around the world, as it has been for thousands of years among many different cultures and people. In most European countries, cannabis possession for personal consumption is not even penalised anymore. In the coming years, we expect major law changes that will allow for the cultivation and distribution of cannabis to adults in several European countries.

ENCOD strongly believes that the drugs problem can only be reduced by effective social and health policies, not by legal sanctions. Innovative strategies for addressing the issue both globally and locally are needed, and the harsh implementation of drug prohibition is a major impediment to thee introduction of these strategies. The reinforcement of policies that have failed until now will increase the lack of credibility of authorities in the opinion of the general public.

We call upon your wisdom to apply principles of sound governance and reverse the death sentence for the people mentioned above. If you believe that Malaysia needs to execute drug traffickers to please the international community, this is a huge mistake. We offer you our co-operation in order to convince European governments to support Malaysia in the creation of structures which would allow for the reduction of harm that the production, trade and consumption of illicit drugs can cause.

Sincerely yours,

On behalf of ENCOD,

Marisa Felicissimo, Belgium
Fredrick Polak, The Netherlands
Jorge Roque, Portugal
Antonio Escobar, Spain

Source: European Coalition for Just and Effective Drug Policies (ENCOD)Website

Time to send death penalty to the gallows (Malaysiakini)

Malaysians Against Death Penalty and Torture (Madpet) is pleased that there is some realisation from the government, in particular the Deputy Foreign Affairs Minister A Kohilan Pillay, about the fact that '…young Malaysian girls, some fresh graduates, were easily conned by men from the syndicates to travel abroad with a package…'

The media report concerned 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…'

The report also stated that 'there were currently 1,565 Malaysians jailed abroad and 60% of the cases were drug mules… "Six in China have been sentenced to death. Since 2007, about 30 Malaysians are in death row,"…'

Similarly, in Malaysia too, many on Death Row have been similarly conned into being drug mules, whereby many were not even aware that they were in possession of drugs.

The Malaysian Dangerous Drugs Act 1952, in particular section 39B provides that any person involved in the trafficking of drugs shall be guilty of an offence against this Act and shall be punished on conviction with death. The judges and courts, by reason of the mandatory sentence, are deprived of the option of imposing a lesser sentence, and Madpet believes that this is very wrong.

What makes it worse is that there are presumptions in the Act, amongst others, that one '…shall be presumed, until the contrary is proved, to be trafficking in the said drug...' if one is found in the possession of certain amounts of certain drugs. The onus of proving one's innocence then shifts to the accused. This is contrary to the normal rule where the onus of proving one guilty beyond a reasonable doubt is with the prosecution.

The reality is that those really involved in the business of trafficking of drugs are seldom caught and prosecuted, and it is usually the mules, who many a time are not even aware that they are transporting or keeping drugs, who end up being arrested, charged, tried, convicted and sentenced to death. This is very wrong and unjust.

The official report to the UN on the death penalty states also states as follows, "…the low rates of effectiveness of law enforcement, the relative immunity from the law of those who profit most from the trade in drugs and the higher risk of violence and death they most probably run from others engaged in the drug racket, all make it seem implausible that the death penalty in itself will have a marginally stronger deterrent effect than long terms of imprisonment..."

The imposition of mandatory sentences also is wrong as by doing so, the legislative branch of government ousts the powers of the judiciary and that is the power of courts and judges to impose fair and just sentences depending on the circumstances and the facts of the case. A person who has been conned into keeping and/or carrying drugs, especially those who are unaware of the fact, should never be sentenced to death. A prison term would suffice.

One of the reasons used often by governments, including the Malaysian government, to justify the mandatory death penalty is that deters serious crimes. This was what M. Kayveas, a deputy minister in the Prime Minister's Department told Parliament once. This is baseless and cannot be justified by any fact or statistical proof.

On the other hand, there have been studies conducted throughout the world over the past seventy years using various different methodological approaches that have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment.

Studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate and in Canada there was, in fact, was a sharp decline in the homicide rate after the abolition.

In the US over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty.

The UN itself noted in 1988, 1996, and 2002, that '...research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole gives no positive support to the deterrent hypothesis'.

Noting also that on Dec 18, 2007, the UN General Assembly endorsed a resolution calling for a moratorium on executions with a view to abolishing the death penalty by an overwhelming majority (Resolution 62/149), and on Dec 18, 2008, the UN General Assembly adopted with a bigger majority a second similar resolution calling for a moratorium on the use of the death penalty.

Madpet calls for the repeal of all provisions in law that provide for the mandatory death penalty.

Madpet also reiterates its call for an immediate moratorium on all executions pending abolition, and for the abolition of the death penalty in Malaysia.

The writer represents Malaysians Against Death Penalty and Torture (Madpet). - Malaysiakini, 6/11/2009, Time to send death penalty to the gallows

MADPET:- MANDATORY DEATH PENALTY PROVISIONS IN LAW SHOULD BE REPEALED Unjust For Conned Drug Mules To Be Sentenced To Death for Drug Trafficking

MEDIA STATEMENT – 3/11/2009

MANDATORY DEATH PENALTY PROVISIONS IN LAW

SHOULD BE REPEALED

Unjust For Conned Drug Mules To Be Sentenced To Death for Drug Trafficking

MADPET (Malaysians Against Death Penalty and Torture) is pleased that there is some realization from the government, in particular the Deputy Foreign Minister A. Kohilan Pillay, about the fact that ‘…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)

The report also stated that ‘there were currently 1,565 Malaysians jailed abroad and 60% of the cases were drug mules… “Six in China have been sentenced to death. Since 2007, about 30 Malaysians are in death row,”…’

Similarly, in Malaysia too, many in death row have been similarly conned to be drug mules, whereby many were not even aware that they were in possession drugs.

The Malaysian Dangerous Drugs Act 1952, in particular section 39B provides that any person involved in trafficking of drugs shall be guilty of an offence against this Act and shall be punished on conviction with death. The judges and courts, by reason of the mandatory sentence, are deprived of the option of imposing a lesser sentence, and MADPET believes that this is very wrong.

What makes it worse, is that there are presumptions in the Act, amongst others, that one ‘…shall be presumed, until the contrary is proved, to be trafficking in the said drug...’ if one is found in the possession of certain amounts of certain drugs. The onus of proving one’s innocence then shifts to the accused. This is contrary to the normal rule where the onus of proving one guilty beyond reasonable doubt is with the prosecution.

The reality is that those really involved in business of trafficking of drugs are seldom caught and prosecuted, and it is usually the mules, who many a time are not even aware that they are transporting or keeping drugs, who end up being arrested, charged, tried, convicted and sentenced to death. This is very wrong and unjust.

The official report to the United Nations on the death penalty states also states as follows, “…the low rates of effectiveness of law enforcement, the relative immunity from the law of those who profit most from the trade in drugs and the higher risk of violence and death they most probably run from others engaged in the drug racket, all make it seem implausible that the death penalty in itself will have a marginally stronger deterrent effect than long terms of imprisonment...”

The imposition of mandatory sentences also is wrong as by doing so, the legislative branch of government oust powers of the Judiciary that is the power of courts and judges to impose fair and just sentences depending on the circumstances and the facts of the case. A person who has been conned into keeping and/or carrying drugs, especially those who were unaware of the fact, should never be sentenced to death. A prison term would suffice.

One of the reasons used often by governments, including the Malaysian government, to justify the mandatory death penalty is that deters serious crimes. This was what Datuk M. Kayveas, a Deputy Minister in the Prime Minister's Department told Parliament. (Bernama, 28/6/2006) This is baseless and cannot be justified by any facts or statistical proof.

On the other hand, there are studies conducted throughout the world over the past seventy years using various different methodological approaches that have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment.

Studies conducted in Australia show that abolition of the death penalty had no effect on the homicide rate and in Canada there in fact was a sharp decline in the homicide rate after abolition;

In the United States over the past twenty years, states with the death penalty in general have had a higher homicide rate than states without the death penalty;

The United Nations itself noted in 1988, 1996, and 2002, "research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole gives no positive support to the deterrent hypothesis."

Noting also that on 18 December 2007, the UN General Assembly endorsed a resolution calling for a moratorium on executions with a view to abolishing the death penalty" by an overwhelming majority (Resolution 62/149), and on 18 December 2008, the United Nations General Assembly adopted with a bigger majority a second similar resolution calling for a moratorium on the use of the death penalty.

MADPET calls for the repeal of all provisions in law that provide for the mandatory death penalty.

MADPET reiterates its call for an immediate moratorium on all executions pending abolition, and for the abolition of the death penalty in Malaysia .

Charles Hector

for Malaysians Against Death Penalty and Torture (MADPET)

3^rd November 2009