FMT News :- MADPET urges Putrajaya to announce moratorium on death penalty

MADPET urges Putrajaya to announce moratorium on death penalty

FMT Reporters

 | July 14, 2016 

 

The NGO expressed satisfaction that Malaysia has in place a "moratorium" on executions, especially for those languishing on death row for drug trafficking.

KUALA LUMPUR: MADPET (Malaysians Against Death Penalty and Torture) has expressed satisfaction that Malaysia has in place a “moratorium on executions, especially for those languishing on death row for drug trafficking.

The NGO urged the Malaysian Government to extend the “moratorium” on executions to all persons on 

death row, not for just those convicted for drug trafficking. “This only makes sense, since Malaysia is now in the process of abolishing the death penalty, beginning with the mandatory death penalty,” said MADPET spokesman Charles Hector in a statement.

He referred to Edmund Bon Tai Soon, Malaysia’s current AICHR (ASEAN Intergovernmental 

Commission on Human Rights) representative, as reportedly saying “…Malaysia’s moratorium, I understand, is only for drug trafficking cases…’ (Star, 10/7/2015).”

“It must be noted that the Human Rights Commission of Malaysia (SUHAKAM), also did reiterate on 29 March 2016 their recommendation that a moratorium on the use of the death penalty be put in place in Malaysia”.

MADPET thinks that “this positive development” should not be kept secret, but should have long been proudly announced by the Malaysian Government.

In fact, continued Hector, Nancy Shukri, then de facto Law Minister, should have proudly announced Malaysia’s moratorium on executions when she took the stage at the 6th World Congress Against Death Penalty in Malaysia.

The existence of the mandatory death penalty, for offences that do not result in death, as in the Firearms (Increased Penalties) Act 1971, only unnecessarily increases the risk of victims and/or witnesses to these crimes being killed by perpetrators to avoid the mandatory death penalty, said MADPET.

There are at least 10 offences in Malaysian laws that carry the mandatory death penalty, whereby only three are for offences that result in the death of the victim, added Hector. He cited the laws: Murder (sec.302 Penal Code), Committing terrorist acts where the act results in death (sec. 130C (1)(a) Penal Code); and Hostage taking where the act results in death (sec. 374(a) Penal Code).

For all the other mandatory death penalty offences, death does not result, he pointed out. “We are referring to Drug Trafficking (sec. 39B Dangerous Drugs Act 1952) and six types of offence listed in the Schedule of the Firearms (Increased Penalties) Act 1971, which includes robbery, kidnapping, extortion and house trespass.” - FMT News, 14/7/2016

See related post:-

‘SECRET’ MORATORIUM ON EXECUTIONS IN MALAYSIA MUST BE PROUDLY ANNOUNCED AND MADE PUBLIC

‘SECRET’ MORATORIUM ON EXECUTIONS IN MALAYSIA MUST BE PROUDLY ANNOUNCED AND MADE PUBLIC

Media Statement – 14/7/2016

‘SECRET’ MORATORIUM ON EXECUTIONS IN MALAYSIA MUST BE PROUDLY ANNOUNCED AND MADE PUBLIC

-Abolish Death Penalty -

MADPET is happy that Malaysia have in place a moratorium on executions, especially for those languishing on death row for drug trafficking. Edmund Bon Tai Soon, Malaysia’s current AICHR (ASEAN Intergovernmental Commission on Human Rights) representative, was recently reported saying ‘…Malaysia’s moratorium, I understand, is only for drug trafficking cases…’ (Star, 10/7/2015). It must be noted that Human Rights Commission of Malaysia (SUHAKAM), also did reiterate on 29 March 2016 their recommendation that a moratorium on the use of the death penalty be put in place in Malaysia.

MADPET is of the opinion that this positive development should not be kept secret, but should have long been proudly announced by the Malaysian government. In fact, Nancy Shukri, the de facto Law Minister, should have proudly announced Malaysia’s moratorium on executions when she took the stage at the 6^th World Congress Against Death Penalty in Malaysia.

At the said Congress in Oslo, Norway on 21 June 2016, the Minister in the Prime Minister’s Department, did state that Malaysia will soon be amending the laws to do away with the mandatory death penalty. Although, no time frame was mentioned, MADPET and others have called that these long overdue amendments be tabled at the upcoming sitting of Parliament in October 2016. In November 2015, the same Minister has said that the amendments would be tabled in the March 2016 sitting of Parliament.

MADPET urges Malaysia to extend the moratorium on executions to all persons on death row, not just those convicted for drug trafficking. This only makes sense, since Malaysia is now in the process of abolishing the death penalty, beginning with the mandatory death penalty.

In May 2016, Malaysia disclosed that there are 1,041 persons on death row. Based on the statistics revealed in 2011, when the number on death row was 696 (as 22/2/2011), 479(69%) were for drug trafficking, 204(29%) were for murder and 13(2%) for illegal processions of arms. It looks like almost all  that may be on death row are for mandatory death penalty offences.

There are at least 10 offences in Malaysian laws that carry the mandatory death penalty, whereby only 3 are for offences that result in the death of the victim – Murder [sec.302 Penal Code], Committing terrorist acts where the act results in death [sec. 130C (1)(a) Penal Code]; and Hostage taking where the act results in death [sec. 374(a) Penal Code]. For all the other mandatory death penalty offences, death does not result, namely Drug Trafficking (sec. 39B Dangerous Drugs Act 1952) and 6 types of offence listed in the Schedule of the Firearms (Increased Penalties) Act 1971, which includes robbery, kidnapping, extortion and house trespass.

The existence of mandatory death penalty, for offences that do not result in death, as in the Firearms (Increased Penalties) Act 1971, only unnecessarily increase the risk of victims and/or witnesses to these crimes being killed by perpetrators to avoid the mandatory death penalty.

Malaysia’s moratorium on execution will be most welcome by everyone including the international community, as it will be seen to be in compliance with the now 5 existing United Nations General Assembly(UNGA) Resolutions, the first in 2007 and the last being in 2014, that called for ‘a moratorium on executions with a view to abolishing the death penalty’. Every time, these UNGA Resolutions have been tabled, the number of countries that have voted in favour have been increasing, demonstrating that the global trend is towards abolition.

Malaysia has every reason to be proud of the fact that they have been considering abolition, have in fact carried out serious studies which have now been concluded, and will be soon be taking the first step by abolishing mandatory death penalty. Attorney-General Tan Sri Apandi Ali, also the Public Prosecutor, is also for the scraping of the mandatory death penalty, and he was reported saying in 2015, that the ‘…mandatory death sentences were a "paradox", as it robbed judges of their discretion to impose sentences on convicted criminals….’.

MADPET also urges Edmund Bon, to emulate his predecessor, Tan Sri Muhammad Shafee Abdullah, in publicly declaring his personal position for the abolition of the death penalty. AICHR Representatives should also at the very least take a stand for the abolition of the death penalty in ASEAN, as had been done by the Human Rights Commission of Malaysia (SUHAKAM).

MADPET urges Malaysia to immediately extend the moratorium on executions to all, not just only for those convicted for drug trafficking.

MADPET urges that Malaysia tables in the upcoming sitting of the Malaysian Parliament in October 2016, amendments and/or legislations that will see the abolition of the mandatory death penalty; and

MADPET urges Malaysia to abolish the death penalty.

Charles Hector

For and on behalf of

MADPET (Malaysians Against Death Penalty and Torture)

Note: Below extract from news report of an interview with Edmund Bon Tai Soon, Malaysia’s new representative to the Asean Intergovernmental Commission on Human Rights (AICHR) as published by the Star..

Is there a consensus within Asean with regard to the death penalty?

>No. But within AICHR, there is a move to study whether we should get rid of the death penalty. One of the countries in AICHR has proposed this. We’re looking at how we can do it in stages. Malaysia’s moratorium, I understand, is only for drug trafficking cases. To the credit of my predecessor, he has raised this a number of times but he has not and we (AICHR) have not said, ‘let’s make a decision on this’ because some countries need the time to buy in, be comfortable that the death penalty is not sufficiently a deterrent punishment looking at the statistics. So we need a thematic study to convince the countries, including Malaysia. - Star, 9/7/2016, Improving Malaysia’s profile

 

Mandatory Death Penalty in Malaysia - Where Death Results and Where there is no death?

MANDATORY DEATH PENALTY simply means that when the court finds a person guilty of committing a particular offence, the law provides no option when it comes to sentencing but just the death penalty. There are at least 10 different offences that carry the mandatory death penalty (more if one is technical and wants to break down the different kinds of robbery, house breaking and kidnapping as listed in the Penal Code and/or Kidnapping Act]

There are several kinds of mandatory death penalty offences in Malaysia

a) Where death results; and 

b) Where no death results by reason of committing the said offence that carries the mandatory death penalty.

In the first category, where death results, there are really only 3 offences - 

a) Murder(sec. 302 Penal Code), 

b) Committing terrorist acts where the act results in death (sec. 130C (1)(a) ]; and 

c) Hostage taking where the act results in death (sec. 374(a) Penal Code)

In there second category, where death is not the result

a) Drug Trafficking (sec. 39B Dangerous Drugs Act 1952

AND, in certain listed offenses where a firearm is discharged, both the person who discharged the firearm and the accomplices will face the mandatory death penalty [Firearms (Increased Penalties Act 1971 - section 3 and 3A with reference to the Schedule in the Act]

1. Extortion 

2. Robbery.

3. The preventing or resisting by any person, of his own arrest or the arrest of another by a police officer or any other person lawfully empowered to make the arrest.

4. Escaping from lawful custody.

5. Abduction or kidnapping under sections 363 to 367 of the Penal Code and section 3 of the Kidnapping Act 1961 [Act 365].

6. House-breaking or house-trespass under sections 454 to 460 of the Penal Code.

* Now, we have listed here only the offences that carry the mandatory death penalty, but there are many other death penalty offences.

* On death row in Malaysia now are about 1,041 on death row as of 16/5/2016 [see MALAYSIA - 1,041 on Death Row - Government Undecided on Abolition of Death Penalty]

* In 2011, when there were about 696 on death row - 69% were for Drug Trafficking, 29% for Murder and 2 % for Firearms offences [ see 441 hanged to death since 1960, another 696 on death row as at 20/2/2011]

 

 

Relevant Provisions in law

PENAL CODE

302  Punishment for murder

Whoever commits murder shall be punished with death.

130C  Committing terrorist acts

(1) Whoever, by any means, directly or indirectly, commits a terrorist act shall be punished-

    (a) if the act results in death, with death; and

    (b) in any other case, with imprisonment for a term of not less than seven years but not exceeding thirty years, and shall also be liable to fine.

374A  Hostage-taking

Whoever seizes or detains and threatens to kill, to injure or to continue to detain another person ("the hostage") to compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organization or any other person or group of persons to do or refrain from doing any act as an explicit or implicit condition for the release of the hostage shall be punished-

    (a) if the act results in death, with death; and

    (b) in any other case, with imprisonment for a term of not less than seven years but not exceeding thirty years, and shall also be liable to fine.

DANGEROUS DRUGS ACT 1952 (REVISED 1980) ACT 234

39B  Trafficking in dangerous drug

(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia-

    (a) traffic in a dangerous drug;

    (b) offer to traffic in a dangerous drug; or

    (c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death.

FIREARMS (INCREASED PENALTIES) ACT 1971 - ACT 37

3  Penalty for discharging a firearm in the commission of a scheduled offence.

Any person who at the time of his committing or attempting to commit or abetting the commission of a scheduled offence discharges a firearm with intent to cause death or hurt to any person, shall, notwithstanding that no hurt is caused thereby, be punished with death.

3A  Penalty for accomplices in case of discharge of firearm.

Where, with intent to cause death or hurt to any person, a firearm is discharged by any person at the time of his committing or attempting to commit or abetting the commission of a scheduled offence, each of his accomplices in respect of the offence present at the scene of the commission or attempted commission or abetment thereof who may reasonably be presumed to have known that such person was carrying or had in his possession or under his custody or control the firearm shall, notwithstanding that no hurt is caused by the discharge thereof, be punished with death, unless he proves that he had taken all reasonable steps to prevent the discharge.

SCHEDULE

[Section 2]

1. Extortion.

2. Robbery.

3. The preventing or resisting by any person, of his own arrest or the arrest of another by a police officer or any other person lawfully empowered to make the arrest.

4. Escaping from lawful custody.

5. Abduction or kidnapping under sections 363 to 367 of the Penal Code and section 3 of the Kidnapping Act 1961 [Act 365].

6. House-breaking or house-trespass under sections 454 to 460 of the Penal Code.

What Malaysia can do now to get rid of the MANDATORY DEATH PENALTY, is:-  

- to amend the relevant provisions that allow for death penalty, and replace with the following formulation - 'shall be punished with death or imprisonment for life, and if not sentenced to death shall also be liable to fine.'

- in fact, it may also be wise to consider repealing the  FIREARMS (INCREASED PENALTIES) ACT 1971 - ACT 37, and merely incorporate the offences in that Act into the Penal Code. 

# There are certainly other matters to be done - but that can come in a later amendment

WHAT ABOUT THOSE NOW ON DEATH ROW BY REASON OF MANDATORY DEATH PENALTY OFFENCES?

* Singapore enacted laws that provided for re-sentencing, but obviously found out that there are problems. Why? Both prosecution and/or the accused would not have tendered relevant evidence which would be material for sentencing during the trials - so, the Singapore re-sentencing do find difficulty finding the relevant material for a just re-sentencing - there is a lot of 'guessing' and in my, opinion, this causes injustice. Hence, save for a completely new trial - the best option would be the commuting of death sentence of all the said affected persons.

* For new cases, the new law will apply...

* In any event, until this question is resolved, it may be best to Malaysia to impose a moratorium on all executions...which will also be in compliance with UN General Assembly Resolutions.   

Activists may be next victims of POCA (Prevention of Crime Act) - Malay Mail

Activists may be next, group says after Sanjeevan detained under POCA

Monday July 11, 2016
06:04 PM GMT+8

A human rights group has expressed concern over the use of the Prevention of Crime Act 1959 to arrest anti-crime activist Datuk R. Sri Sanjeevan (pictured). — File pic KUALA LUMPUR, July 11 — The use of the Prevention of Crime Act 1959 (POCA) to arrest anti-crime activist Datuk R. Sri Sanjeevan might kick off the use of the “draconian law” against civil society, a human rights group warned today.

The Malaysians Against Death Penalty and Torture (MADPET) noted that Sanjeevan could be seen as a human rights defender as the NGO he heads, the Malaysian Crime Watch Task Force, could be said to be a civil society organisation.

“MyWatch can be said to be a civil society organisations (CSO), and Sanjeevan may be seen as Human Rights Defender.

“As such, the arrest and detention is of concern, as this may be the advent of the usage of POCA against other civil society organisations and human rights defenders, MADPET coordinator Charles Hector said in a statement today.

A magistrate’s court here granted police today a 21-day remand of Sanjeevan under POCA that will expire on July 31, after he was first arrested on June 22 for alleged criminal intimidation and extortion.

Hector said there may be a narrow interpretation of a clause in the Act that states no one shall be arrested solely for their “political belief or political activity”.

“But the worry is that this may be given a narrow interpretation to just mean political parties and politicians — but will not include civil society organisations (CSOs), non-governmental organisations (NGOs), trade unions, community organisations, people movements and human rights defenders,” Hector said.

He also said Sanjeevan’s arrest under POCA breached Article 11(1) of the Universal Declaration of Human Rights (UDHR) that states that a person is presumed to be innocent till proven guilty, pointing out that the law allowed for detention without trial.

“This law allows for the avoidance of the right to be heard and/or the right to a fair trial. A suspect can simply be subjected to Detention Without Trial (DWT) and Police Supervision (or Restriction) Orders without first being proved guilty in court.

“The principle of presumption of innocence until proven guilty is ignored. It is also a violation of Article 11(1) Universal Declaration of Human Rights (UDHR) that states that, ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence’,” Hector explained.

- Malay Mail, 11/7/2016 

 

- See more at: http://www.themalaymailonline.com/malaysia/article/activists-may-be-next-group-says-after-sanjeevan-detained-under-poca#sthash.tnOIZYuy.dpuf 

For full statement:-

MADPET - WRONG TO USE DRACONIAN PREVENTION OF CRIME ACT(POCA) IN SANJEEVAN’S CASE - Repeal Prevention of Crime Act 1959 (POCA) -

MADPET - WRONG TO USE DRACONIAN PREVENTION OF CRIME ACT(POCA) IN SANJEEVAN’S CASE - Repeal Prevention of Crime Act 1959 (POCA) -

Media Statement – 11/7/2016

WRONG TO USE DRACONIAN PREVENTION OF CRIME ACT(POCA) IN SANJEEVAN’S CASE

-        Repeal Prevention of Crime Act 1959 (POCA) -

MADPET(Malaysians Against Death Penalty and Torture) is shocked that Malaysian Crime Watch Task Force  (MyWatch) chairman Datuk R. Sri Sanjeevan  was detained under the Prevention of Crime Act 1959 (POCA) for alleged criminal intimidation and extortion. It was reported that he was detained under Section 3 (1) of POCA for another 60 days because he was believed to have committed criminal intimidation and extortion (Star, 11/7/2016).

Prevention of Crime Act 1959 (POCA) is a draconian law that has received far too little attention as the victims of this Act have generally not been famous politicians or personalities, but possibly just ordinary persons. This law allows for the avoidance of the right to be heard and/or the right to a fair trial. A suspect can simply be subjected to Detention Without Trial (DWT) and Police Supervision (or Restriction) Orders without first being proved guilty in court. The principle of presumption of innocence until proven guilty is ignored.

It is also a violation of Article 11(1) Universal Declaration of Human Rights (UDHR) that states that, ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’. 

POCA – Maximum Remand Only 21 Days (or  later 38 days)

POCA also allows, if certain conditions are fulfilled, a person to be remanded for a longer period. The need to produce before a Magistrate within 24 hours is still there, but if POCA is going to be used, then they can get a remand order for 21 days. In normal criminal procedure, the maximum remand period on first application is 7 days for serious crimes, and the total duration of remand is 14 days. 

The Star report, that stated that Sanjeevan was detained under Section 3 (1) of POCA for another 60 days is not right. Under POCA, section 4(1)(a) states that ‘on production of a statement in writing signed by a police officer not below the rank of Inspector stating that there are grounds for believing that the name of that person should be entered on the Register, remand the person in police custody for a period of twenty-one days;’ As such, longest permissible period of remand should be only 21 days and certainly not 60 days.

Now, POCA also further provide in section 4(2) that ‘Any person remanded under paragraph (1)(a) shall, unless sooner released, on or before the expiry of the period for which he is remanded be taken before a Magistrate, who shall-    (a) on production of- (i) a statement in writing signed by the Public Prosecutor stating that in his opinion sufficient evidence exists to justify the holding of an inquiry under section 9; and (ii) a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that it is intended to hold an inquiry into the case of that person under section 9,   order the person to be remanded in custody for a period of thirty-eight days;

This means that Sanjeevan needs to be brought back before the Magistrate another time, before the expiry of the first 21 days, and then the Magistrate can make another remand order for a period of 38 days. From the perusal of POCA, MADPET believes that the Star report is most likely incorrect, for the longest period that Sanjeevan could be remanded is 21 days.

POCA – ONLY FOR CERTAIN CATEGORIES OF PERSONS

POCA can only be used for certain crimes committed by certain categories of persons, as clearly specified in the First Schedule of this Act being, amongst others - members of unlawful societies,; persons who belong to or consort with any group, body, gang or association of two or more persons who associate for purposes which include the commission of offences under the Penal Code;  traffickers in dangerous drugs, including persons who live wholly or in part on the proceeds of drug trafficking; traffickers in persons, including persons who live wholly or in part on the proceeds of trafficking in persons; persons concerned in the organisation and promotion of unlawful gaming; smugglers of migrants, including persons who live wholly or in part on the proceeds of smuggling of migrants; Persons who recruit, or agree to recruit, another person to be a member of an unlawful society or a gang or to participate in the commission of an offence; and Persons who engage in the commission or support of terrorist acts under the Penal Code.

It was reported in Star that ‘previously, Sanjeevan, 32, and his driver, an Indian national, were detained under Section 506, Section 384 and 385 of the Penal Code’, and as such, MADPET wonders how the authorities could even resort to using POCA in this particular case.

POCA is a draconian legislation that denies one the right to fair trial, and allows for administrative Detention Without Trial and/or Police Supervision/Restriction Orders which can be indefinite. The Act is draconian as it does not allow Judicial Review of the reasons for the issuance of these Without Trial Orders, which do deprive a person of liberty, freedoms and rights.

MADPET is also concerned of the one very broad category of Registrable Category in the First Schedule of POCA, being ‘2. Persons who belong to or consort with any group, body, gang or association of two or more persons who associate for purposes which include the commission of offences under the Penal Code.’. This can easily be abused and used against any persons, including civil society, trade unions, human rights defenders, local communities and any persons that are alleged to have committed crimes together with others.  

MyWatch can be said to be a civil society organisations(CSO), and Sanjeevan may be seen as  Human Rights Defender. As such, the arrest and detention is of concern, as this may be the advent of the usage of POCA against other civil society organisations and human rights defenders.

Now, the Act do state that, ‘No person shall be arrested and detained under this section solely for his political belief or political activity’ – but the worry is that this may be given a narrow interpretation to just mean political parties and politicians – but will not include civil society organisations(CSOs), non-governmental organisations(NGOs), trade unions, community organisations, people movements and human rights defenders.

Therefore MADPET:-

Calls that Sanjeevan of MyWatch not be further remanded and/or dealt with under the Prevention of Crime Act 1959 (POCA), and that he be dealt with in accordance with the normal Criminal Procedure Code, and accorded with all his rights in a criminal justice system including the right to a fair trial.

Call for the repeal of the Prevention of Crime Act 1959 (POCA), and the immediate and unconditional release of all those currently detained under Detention Without Trial Orders, and also those under Police Supervision and/or Restriction Orders. No one should be subjected to such orders without being first accorded the right to a fair trial.

Charles Hector

For and on behalf of

MADPET(Malaysians Against Death Penalty and Torture)

Monday, 11 July 2016 | MYT 9:02 AM

MyWatch's Sanjeevan held for 60 days under Prevention of Crime Act

KUALA LUMPUR: Malaysian Crime Watch Task Force  (MyWatch) chairman Datuk R. Sri Sanjeevan (pic) was detained under the Prevention of Crime Act 1959 (POCA) for alleged criminal intimidation and extortion.

Bukit Aman D7 principal assistant director, SAC Roslee Chik said Sanjeevan was detained at the Kajang district police headquarters at 4.30pm on Sunday.

"Sanjeevan was detained under Section 3 (1) of POCA for another 60 days because he was believed to have committed criminal intimidation and extortion," SAC Roslee told Bernama.

Previously, Sanjeevan, 32, and his driver, an Indian national, were detained under Section 506, Section 384 and 385 of the Penal Code for alleged criminal intimidation and extortion near the Nilai toll plaza on June 22.

He was arrested following a police report lodged by a complainant that the suspect threatened to spread slander about him through the Facebook social site.

Sanjeevan allegedly received protection money of RM25,000 from the complainant. - Star, 11/7/2016

See also:-  

PREVENTION OF CRIME ACT 1959 (REVISED - 1983) ACT 297