Tuesday, April 28, 2015

ASEAN governments urged to abolish death penalty

Press Release
24th of April 2015

ASEAN Civil Society Conference/ ASEAN People’s Forum 2015 (Kuala Lumpur, Malaysia) ASEAN governments urged to abolish death penalty

Civil society organisations from ASEAN countries are urging the grouping’s governments to impose an immediate moratorium on the use of the death penalty with a view of completely abolishing the greatest violation of the right to life - state-sanctioned killing. 

The “Death Penalty In Southeast Asia: Towards A Regional Abolition” workshop, held in conjunction with the ASEAN Civil Society Conference/ ASEAN People’s Forum (ACSC/ APF) 2015 in Kuala Lumpur this week, saw anti-death penalty advocates in the region calling for a cease in using the death penalty. The workshop was jointly organised by FORUM-ASIA, Amnesty International Malaysia, KontraS, Think Centre, and Anti-Death Penalty Asia Network (ADPAN). 

"At the ASEAN level, a strict application of the non-interference principle, which emphasises on the respect for state sovereignty, in the context of the death penalty is no longer relevant as the death penalty is an issue of all countries," said Rafendi Djamin, the Representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights (AICHR). He noted that a regional trend towards a moratorium had begun. Singapore had taken a step towards a moratorium and Malaysia had expressed intentions to consider it. He added that the AICHR would continue its thematic study of the right to life which will be accompanied by awareness-raising activities within ASEAN countries, including organising a workshop with the judiciary in ASEAN.

Within Southeast Asia, Malaysia, Singapore, Thailand, Indonesia, and Viet Nam are retentionist countries that actively use the death penalty. Philippines and Cambodia abolished the death penalty for all crimes in 2006 and 1989, respectively, while Brunei, Laos, and Myanmar have had de facto moratoriums on the death penalty for decades.

The Deputy Secretary of Policy, Law and Complaints of SUHAKAM, Nurul Hasanah Ahamed Hassain Malim, said that the belief of some government officials that death penalty is a deterrent to crime and that abolishing the death penalty would be going against Syariah law are the two main challenges to abolishing the death penalty in Malaysia. A positive development, she added, was that the Attorney-General’s Chambers was conducting a study on the use of the mandatory death penalty for drugs.

The workshop also allowed anti-death penalty advocates in ASEAN countries to exchange knowledge and best practices to move forward possible policy dialogues member states.

On abolition, the Philippines’ Human Rights Information Centre's Executive Director, Dr Nymia Pimentel-Simbulan, said that a crucial strategy which led the Philippines to abolish the death penalty –making it the first country in Asia to do so – was active mobilisation of stakeholders. This, she said included civil society organisations, the Catholic church, members of the diplomatic community including the European Union, anti-death penalty champions in the Philippine Congress, families of  death row inmates and victims’ families against the death penalty. 

“Another key strategy that resulted in abolition was comprehensive research on crime statistics and the history of the death penalty’s use that made up a legislative kit used during debates in Congress,” she said. "Public awareness and education campaigns as well as case studies of women on death row were among other effective strategies which led to abolition", she added. 

The workshop’s speakers presented various practices and trends in the region’s use of the death penalty and discussed the possibility of bringing the agenda of abolishing death penalty to the ASEAN level, especially via the AICHR as the body with the mandate to promote and protect human rights in the ASEAN region.

Think Centre’s Executive Secretary, Ted Tan, in giving an overview of the use of the death penalty in Singapore, said that the latest statistics recorded 21 executions since 2007. He shared that the moratorium on executions (2011-2014) did not occur because of Singapore undergoing the UPR in 2011  but more likely due to the negotiations with the European Union over a free trade agreement. In fact there were 4 executions in 2011, prior to the UPR session.

He said, “We can expect executions to still continue in Singapore, since the government tightened the definition of capital punishment’s usage and the amended laws were enacted in 2013. Additionally the negotiations on the FTA were mostly completed by then. So to the Singapore administration’s mind, it was probably business as usual.”

He concluded that the death penalty is now likely to be imposed on cases of heinous crimes like murder, and the number of executions for convicted drug traffickers should be smaller in the future. Puri Kencana Putri of the Commission for the Disappearances and Victims of Violence (KontraS) briefed the workshop participants of its six-month fact-finding mission on recent executions in Indonesia, where serious loopholes were found with how the death sentence was meted out. “Elements of torture, mistaken identity, and delay in deaths for up to 15 minutes during an execution were recorded,” she said.

Puri noted Indonesia’s strong policy on how the government interprets “most serious crimes”, where the definition encompasses drug trafficking, adding that “anti-death penalty activists cannot rely on  rhetoric to win the battle against the death penalty in Indonesia.” The way forward, she said, should include an evaluation of anti-drug agencies in relation to their donors, as well as an increase in public education programmes. 

Another Indonesian speaker, Jakarta National University sociologist, Dr Robertus Robet, pointed out that the use of the death penalty was escalating under the administration of Indonesia’s Joko Widodo.

“Six individuals were executed within his first 100 days in office. Another 10 individuals currently housed in the Nusa Kambangan Island prison are expected to be executed in the near future. If plans move forward with the next round of executions, which include French nationals, there would be a bigger hit back to the Jokowi policy.”

In closing, Atnike Nova Sigiro, ASEAN Programme Manager of FORUM-ASIA, emphasised “the importance of institutional and legal reform as well as a change of culture and values that encourage retaliation and vengeance, for which regional solidarity is indispensable”. As one of the organizers she added, “The ASEAN People’s Forum is one important venue to bring solidarity in abolishing death penalty in this region”. “Now in Indonesia, a Philippines citizen, Mary Jane Veloso is one among the list of persons to be executed soon. The conference calls for solidarity from the people of ASEAN to call on the government of Indonesia to stop the execution of Mary Jane and also for other inmates on the list”  Atnike concluded.

Amnesty International Malaysia,
Think Centre, 
Anti-Death Penalty Asia Network (ADPAN).

Friday, April 24, 2015

Suhakam hopes Malaysia will abolish death penalty(NST)

Suhakam hopes Malaysia will abolish death penalty
By Farhana Syed Nokman and Tan Pooi Sze - 15 April 2015 @ 7:24 PM

KUALA LUMPUR: The Human Rights Commission of Malaysia (Suhakam) expressed disappointment that the government did not accept the recommendation in the 2013 Universal Periodic Review (UPR) to abolish the death penalty.

“We want to encourage Malaysia to join other countries which have outlawed the mandatory death penalty,” said its chairman Tan Sri Hasmy Agam at the release of Suhakam's 2014 Annual Report at its headquarters.

“The commission has actively asked for discretionary powers to be returned to the judges in sentencing those convicted for certain drug offences. Under the current laws, the death penalty is mandatory for
serious drug offences.”

Of the 232 recommendations from 104 member states regarding changes to existing laws, regulations and policies, Malaysia accepted 150 and rejected 83.

“We are concerned that this will hinder the country from improving its human rights record as well as from achieving the status of a developed nation,” said the commission's vice-chairman Datuk Dr Khaw Lake Tee.

Besides the death penalty, the Suhakam Annual Report 2014 also highlighted a few other key human rights issues.

The commission said it was disappointed that the government did not support the six main recommendations on indigenous people's rights particularly regarding their land rights.

Under the freedom of assembly, the commission said that police must understand their role in public assemblies and rallies was only for traffic management and control of crowds.

Suhakam welcomed the government’s decision to develop the nation’s first ever National Human Rights Action Plan (NHRAP).

They, however, expressed concern that the government should ensure that the five core issues the NHRAP raised were realistic, practical and achievable by the target date.

On deaths in police custody, Suhakam said a total of 242 deaths in police lock-ups were recorded, based on statistics provided by the Royal Malaysia Police, between 2000 and February 2014.

In response to the public’s concern regarding this issue, Suhakam has launched a study into the matter and it was due to be completed in 2015.

Suhakam also recommended alternatives to detention for refugee and asylum-seeking children held in immigration detention centres.

Suhakam said these children, who were sometimes unaccompanied, face an increased risk of abuse and ill-treatment when they were detained in the same cell with adults, which was usually the case here.
Suhakam also made several observations regarding some controversial laws. It recommended that the “repressive and obsolete” Sedition Act of  1948 be repealed, and also to strengthen the enforcement of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (ATIPSOM). - New Straiits Times

Wednesday, April 08, 2015

Is Pota really ISA 2.0? Experts weigh in (Malaysiakini)

Is Pota really ISA 2.0? Experts weigh in

The recently passed Prevention of Terrorism Bill (Pota) has been dubbed the Internal Security Act (ISA) 2.0 due to its provision of detention without trial.
This provision therefore links the now-defunct ISA, the Prevention of Crime Act 1959 (PCA) and Pota. A person can be detained for up to two years and the detention can be renewed indefinitely for two years at a time.

Apart from the provision which allows detention without trial, below are other similarities and differences between the three laws.

Can detention be challenged in court?
Detention under all three pieces of legislation cannot be challenged in a court of law and the courts are excluded from scrutinising the proceedings.

Former Bar Council president Ragunath Kesavan (right) said the presence of an ouster clause - where detentions cannot be challenged in court - only showed how the government had no confidence in the judiciary.
“Why is that that you do not want to allow challenges in court? It’s a big embarrassment because you have no confidence in your own judiciary,” he said.

Ragunath believes that the more heinous a crime is, the more so there should be stringent rule of law to ensure justice is done.

“The person must have the benefits of the protection of the law and this is to ensure there is transparency in order to prevent abuse," he said.

Can the suspect be brought to the Magistrate’s Courts?
With the ISA, suspects could not be brought to the Magistrate’s Courts. Under Pota however, arrests can be made by any police officer without warrant, and would be brought to a magistrate within 24 hours.

Although it is not a police detention per se as the suspect must be brought before a magistrate, the magistrate only acts as a rubber stamp.

Therefore, lawyer Syahredzan Johan (left) said in practice, the detention is an administrative one since there is no judicial oversight and consideration whether the person should be detained or not.
“Since the application is automatic, whereby once the certificate is presented by the deputy public prosecutor of the police, the magistrate has no discretion whether to grant the detention or not. The magistrate must order detention.

“(So), the magistrate is just like a rubber stamp,” he said.

Powers of the home minister to issue detention orders
With the ISA, the home minister had absolute powers to issue detention orders.

However, detention orders under both the PCA and Pota comes from the Prevention of Crime Board and Prevention of Terrorism Board.

Even so, Syahredzan noted that the power to appoint board members goes back to the executive.

"There is no security of tenure with the members of the board. If the government is not happy with the board, it can dismiss and appoint more people.

“Yes, the power to issue detention orders is not vested in one person, but if you don’t have sufficient safeguards within the board to ensure that they can act independently, then it makes no difference,” he said.

Can a person be detained solely for his or her political beliefs?
Both Pota and amendments to the PCA have been inserted with a clause which states that "no person shall be arrested or detained solely for his political beliefs or activities".

The ISA did not have this clause and dozens opposition leaders were detained under the now repealed Act, albeit on allegations of security threats.

Although one may not be detained solely for his or her political beliefs, Ragunath believes this is arguable.
“If you belief in socialism, is it a political belief?” he said, citing the 1970s and 1980s where socialism was seen as anti-government and as such, some had been arrested for it.

“If I believe in the peaceful secession of Sabah, and I follow all the democratic process, do it properly, like what PAS is doing with hudud, is that sedition?” he said, adding that subjective and gray areas will be of concern.

Syahredzan said although it is stated that no one can be detained solely for political beliefs, the authorities “can always make the link if they want to abuse the law”.

“And there is concern that it might be interpreted to only mean membership in a registered political party.

“A lot of NGOs are not registered as political parties, but a lot of what they do is political. The Act might be abused against these people".

PCA = Emergency Ordinance 2.0, Pota = ISA 2.0
While PCA and Pota have many similarities, the explanatory statement of the PCA amendment bill passed by the Dewan Rakyat last night states that the Pota is meant to cover acts of terrorism other than those covered under PCA.

"Pota is in relation to terrorism offences when it has something to do with overseas terrorist threats," said Syahredzan, explaining that it came about to deal with the phenomenon of Malaysians who join extremist groups such as the Islamic State (IS).
"It is more appropriate to say that Pota is the return of the ISA. While the PCA is the Emergency Ordinance (EO) reincarnated.

"The PCA deals with terrorist threats within Malaysia,” he said.

Is detention without trial really necessary?
Syahredzan says no, and the fact that 17 people were arrested under suspicion of being Islamic State militants this week proves this.

"This is a good example that you don’t need more legislation, where you can apprehend them using the current laws before they carry out their terrorist attacks.

"The argument that you need more legislation to deal with threats of terrorism has not been answered. They have not explained what is insufficient of the current laws."
The 17 were detained under the Security Offences (Special Meaures) Act 2012 (Sosma).

The Sosma allows detention of 24 hours plus 28 days and if this is not enough, the investigative detention period could perhaps be lengthened, he said.

"If you say that you cannot charge these people because there is no predicate offence in the statute book, shouldn’t you enhance the Penal Code to include more predicate offences that these people can be charged with, instead of using detention without trial?" he asked.

While he admits the PCA and the Pota is not reviving the ISA wholesale, the fact remains that detention without trial is making a comeback, he said.

"At the end of the day, in practice, it’s all there to be abused by the powers that be if they want to abuse it. This is, in essence, the return of the ISA." - Malaysiakini, 8/4/2015,
Is Pota really ISA 2.0? Experts weigh in