Death Row prisoner files appeal (NST)

2007/08/21

Death Row prisoner files appeal

By : V. Anbalagan

A Death Row prisoner demands the court hears his appeal or lets him walk.
He has been languishing and forgotten in jail for too long — nine years and three months. Baha Jambol, 45, says he had also written 11 appeal letters seeking the grounds of judgment. He claims that this delay is prejudicial against him and a miscarriage of justice.

PUTRAJAYA: The absence of a written judgment for nine years has prompted a Death Row prisoner to file an application to the Court of Appeal to be freed.

In his application, Baha Jambol, 45, who is in solitary confinement at the Pengakalan Chepa prison in Kelantan, said that the trial judge failed to provide the written grounds of judgment despite repeated reminders.

In the alternative, Baha wants the court to go through the notes of proceedings in the appeal record and set aside the death sentence.

Baha, a former fish and vegetable vendor at the Pasir Mas market, filed the action through his lawyers at the court registry yesterday afternoon.
There is no record of a condemned person urging an appellate court to allow his appeal by way of notice of motion.

Baha, who named the public prosecutor as respondent, also filed a certificate of urgency for the Court of Appeal to expeditiously hear the case.

He said the incarceration in prison for nine years and three months pending appeal had caused him prejudice and miscarriage of justice.

Baha, before his conviction, was remanded for two years in prison, bringing the total number of years behind bars to 11.

He said the appellate court should allow his appeal on grounds that there had been serious denial of due process and there had been an inordinate and unexplained delay by the trial judge, Tengku Baharuddin Shah Tengku Mahmud.

Tengku Baharuddin is now a judge in the Court of Appeal.

Baha, together with Azman Ahmad, was charged with trafficking in about 50kg of ganja in front of the Gua Musang police station on Dec 31, 1996.

On April 26, 1998, Tengku Baharuddin, who was then posted to the High Court in Kota Baru, found him guilty of the offence and sentenced him to death.

Azman was acquitted without his defence being called.

Baha had filed the notice of appeal against the conviction and sentence with the assistance of prison authorities the day after his sentencing.

A letter was written to the registrar of the High Court on May 29, 1998, requesting that the record of appeal be supplied, but there was no response. Since then, 10 letters, the last one on April 4, were sent to the Court of Appeal, which fixed the appeal date on June 18.

However, the appeal was taken off the list and the written grounds were still not made available.

Karpal Singh, who represents Baha, affirmed an affidavit on behalf of Baha.

He said under the Court of Appeal Rules 1994, a trial judge was required to supply the grounds to be included in the record of appeal as soon as "practicable".

Record of appeal consist of notes of proceedings, written judgment and exhibits.

He said in criminal appeals, an appellate court cannot hear a case without written grounds .

Karpal said the failure to provide the grounds after a long time amounted to a serious denial of due process of law which required immediate appellate court interference.

"The inordinate and unexplained long delay in delivering the grounds of judgment has occasioned a miscarriage of justice as the appellant (Baha) has been languishing on Death Row for more than nine years awaiting hearing of his appeal."

He said the principle of fair trial should be applied even more rigorously where the excessive delay was not caused by the prosecution but the court itself.

Karpal said the long delay in providing the grounds would have prejudiced Baha because the trial judge’s assessment of witnesses would have been blurred.

"The delay would have increased the chances of omission on the part of the trial judge to deal with material facts and issues which ought to have been favourable to the appellant," he said.

In the alternative, he urged the Court of Appeal to go through the notes of proceedings and rule that the trial judge was wrong in finding Baha guilty because he was a driver of the car where the drugs were found while the owner of the vehicle, Azman, was freed.

He said the prosecution had failed to prove actual trafficking of the drug.

On Aug 16, the New Straits Times highlighted the plight of two persons, convicted and sentenced to death, who were languishing on Death Row for five years because another trial judge did not provide the written grounds.

DEATH PENALTY - MALAYSIA : Sources & Figures Known

LAST REPORTED/KNOWN EXECUTIONS IN MALAYSIA - JULY/AUG 200

4/8/2006 - Mohd Amin Mohd Razali, the Al-Ma’unah movement leader who was sentenced to death for treason (Source: Star 5/8/2006, “Al-Ma’unah leader Mohd Amin hanged”)

*the week before - Zahid Muslim, Jemari Jusoh and Jamaludin Darus (Source: Star 5/8/2006, “Al-Ma’unah leader Mohd Amin hanged”)


Last December[2005], Deputy Internal Security Minister Chia Kwang Chye said that from 1960 through last October, 434 convicts were hanged while 172 cases were pending appeal.”


“The majority of the death sentences meted out are for drug trafficking. Out of 52 people sentenced to death from 2004 until July 2005, 36 were convicted for drug offences....Last December, Deputy Internal Security Minister Chia Kwang Chye said that from 1960 through last October, 434 convicts were hanged while 172 cases were pending appeal.”
(Source: IPS, 8/5/2006 : “DEATH PENALTY:Death to Malaysian Water Contaminators?”)

Since 1970, Malaysia has hanged 359 people, 40 of them in the last 10 years. Most were convicted of drug trafficking. There are 159 prisoners on death row. (Source: AsiaNews.it , 21/3/2006 “MALAYSIA
Justice Minister backs abolition of death penalty”)

WHEREAS Malaysia has hanged at least 358 persons between 1981 and 2005;...WHEREAS about 173 persons are on death row as at December 2005; (Malaysian Bar Resolution - 18/3/2006)

“On 6 December 2005, the Deputy Internal Security Minister disclosed in Parliament that 52 people were sentenced to death from 2004 until July. Of these, 36 were convicted for drug offences and 16 for murders. This disclosure brings the number of persons on death row to approximately 173. In November 2003, it was said that there were 121 persons, including 4 women, on the death row. It was disclosed in February 2005 that over the past 24 years 358 persons have been hanged in Malaysia. (MADPET 9/2/2006:-THE DEATH PENALTY MUST BE ABOLISHED, Malaysia Must Respect the Right To Life)

EING SENTENCED TO DEATH AND DEPRIVED OF RIGHT TO A SPEEDY APPEAL IS VERY CRUEL & UNACCEPTABLE

BEING SENTENCED TO DEATH AND DEPRIVED OF RIGHT TO A SPEEDY APPEAL IS VERY CRUEL & UNACCEPTABLE

MADPET (Malaysians Against Death Penalty and Torture) is disappointed and shocked by the revelation that two men are languishing on Death Row because the judge who convicted them at the Seremban High Court five years ago has not provided the grounds of judgment. (New Straits Times 17/8/2007, “Two languish on Death Row as judge fails to do his job”).

If languishing on death row waiting to be deprived of one’s life is already recognized as being “a cruel and unusual punishment”, how much more worse is it for a person who spend the last five years without even having the opportunity to appeal against his death sentence just because some judge was too lazy to write out his grounds of judgment. The torture that this victim, his family and friends have had to undergo for the last five years would have been intolerable and would never be justified.

Let us not forget that it is very possible that this judge who sentenced them to death may have erred in law and in fact, and the Court of Appeal may have put things right by acquitting him, maybe 5 years ago.

It is also a concern whether a judge, now writing his ‘grounds of judgment’ after the matter has been raised in the media is able to do so without being affected by irrelevant external factors. One also wonders whether he can even remember why he convicted those persons more than 5 years ago and sentenced them to death.

In criminal cases, especially those when the accused person is found guilty and sentenced to incarceration and/or death, the grounds of judgment must be immediately prepared and made available to the convicted person no later that three days. This will allow for immediate access to the right to a speedy appeal – more important when there was a miscarriage of justice at the court of first instance.

According to the New Straits Times report, this judge now sits in the Federal Court, and this is just another reason why there must be a new process put in place in deciding who is to be appointed judges and elevated to the Higher Courts. Lets us expose this judge and demand his immediate resignation – or at least a public apology for the great injustice that he has caused to these 2 persons.

Malaysia must also consider putting in place a compensation scheme to compensate victims of the criminal justice system who have had to unnecessarily languish in remand prisons and prisons only to be acquitted or discharged some time later. Time spend must be factor in the computation of the sum for compensation. The fact that one was sitting with a death penalty hanging over one’s head must surely mean a higher sum.

This compensation scheme is important now looking at the current state of police investigation, prosecution and even judges, which interestingly have received a lot of media attention over the past couple of months. Too many persons have ended up spending time incarcerated waiting for their trial only to be released later without being convicted. It is for this loss of liberty and movement that persons must be compensated.

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

Charles Hector

N. Surendran

for Malaysians Against Death Penalty and Torture (MADPET)

17^th August 2007

(For further information, contact N. Surendran (012-3207066) or Charles Hector (019-2371100)

Two languish on Death Row as judge fails to do his job

2007/08/17

Two languish on Death Row as judge fails to do his job

KUALA LUMPUR: Two men are languishing on Death Row because the judge who convicted them at the Seremban High Court five years ago has not provided the grounds of judgment.

Another man was ordered by the same judge to be held at the Sungai Buloh prison at the pleasure of the Yang di-Pertuan Besar of Negri Sembilan on grounds of insanity.

Haszaidi Hasan was sent to the gallows after he was found guilty of trafficking in dadah while Abdul Aziz Mohd Sharif was convicted of murdering his girlfriend’s father.

Their lawyers filed the notice of appeal soon after the judge, who now sits in the Federal Court, delivered oral decisions in 2002.

Both are in the Kajang prison.
Haszaidi’s counsel, Rusli Husin, said he filed an appeal sometime back but the written judgment had not been issued.

A check with the Attorney-General’s Chambers showed that Haszaidi was convicted on Feb 7, 2002 but the grounds of judgment is still not available.

Counsel Harbhajan Singh, who is representing Aziz, said he had sent five reminders to the High Court in Seremban for the grounds of the decision.

"Sad to say, they did not have the decency to reply to the letters."

He said even the Kajang prison authorities sent a letter to the judiciary to expedite Aziz’s appeal but did not receive any response either.

Harbhajan said when Aziz’s mother asked why the appeal was delayed, he told her the appeal could not be heard unless the trial judge provided the written judgment.

He said Aziz’s parents were concerned about his deteriorating health as Aziz, in his late 20s, had been kept in solitary confinement since July 8, 2002.

Omar Mohd Bashri was charged with murder of a teenager but was acquitted on grounds of insanity by the same judge on July 27, 2002.

The judge ordered Omar to be held at the Sungai Buloh prison at the pleasure of the Negri Sembilan ruler.

His counsel had also filed an appeal against the decision while the public prosecutor had filed a cross-appeal in 2002.

The lawyer and the Attorney-General’s Chambers are waiting for the judge to provide the grounds of decision.

Lawyer Haresh Mahadevan said he was appealing that Omar be acquitted since there was no eyewitness to the crime.

The prosecution said the accused should be sentenced to death on grounds that Omar was aware of his act.

The judge, however, ruled that the accused was under delusion when the crime was committed.

Haresh said he had written to the Sungai Buloh prison director two years ago asking that a doctor examine Omar again for the purpose of obtaining a pardon.

"Unfortunately, there was no reply and I am in the dark about the health of the accused."

He said he would be writing next week to the court to find out if the judge had completed the grounds for the decision.

In criminal cases, the Court of Appeal cannot hear appeals without written judgments.

On July 23, the New Straits Times featured a story on the consequences of judicial officers not writing judgments and has also referred that this judge has not provided written grounds or deliver decisions in at least 30 criminal and civil cases.

What happens when judgments are delayed

2007/07/23

What happens when judgments are delayed

A CASE of justice delayed, justice denied? Examples of what happens when written judgments are not provided.

Case No 1:

A man was convicted of dadah trafficking in the late 1980s and sentenced to death but the trial judge took a long time in providing the written judgment.

Lawyer Karpal Singh, who appeared for the man, argued before the Supreme Court that the delay had led to manifest injustice.

The late Tan Sri Hashim Yeop Sani, who led the bench, substituted the death penalty with life imprisonment of 20 years. The accused was freed because of the long remand period and later stay on death row.

Case No 2:

Two years ago, former national athletics coach C. Ramanathan won an appeal to clear his name on two molest charges.

One of the grounds cited was the delay of close to five years for the Sessions Court judge to provide a written judgment.

He had been charged in October 1994 on two counts of outraging the modesty of two underage girls in 1992 and convicted on Nov 8, 1996. But the grounds of judgment were only made available on Oct 26, 2001.

Case No 3:

A desperate housewife wrote to Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim seeking his help to expedite her husband’s appeal over his conviction on a kidnapping charge.

The High Court in Shah Alam found the husband guilty of the offence on May 16, 2005. She wrote to the top judge in August last year and sent another letter in January this year.

As a result, the Court of Appeal Registrar sent a letter to the Shah Alam High Court Deputy Registrar in February to prepare the record of appeals, which included the judgment. But there was no reply.

Counsel Gurbachan Singh, who appeared for the man, sent another letter last week enquiring if the judgment was ready.

Meanwhile, the judge who heard the case has been promoted. It may now be up to the Chief Justice to decide on the next course of action.

Case No 4:

In 2000, the High Court in Penang found a man guilty of dadah trafficking and sentenced him to 12 years’ jail and 10 strokes of the rotan.

An appeal could not be heard as the judge did not make the judgment available.

The long stay in prison soon came to an end after the deduction of one-third of the sentence on remission.

His counsel, R.S.N. Rayer, advised his client, who wanted badly to be a free man, to withdraw the appeal. The man took the 10 strokes at one go before his release in 2002.

Help busy judges to speed up work

2007/07/23

Help busy judges to speed up work

KUALA LUMPUR: Judges presiding over lengthy criminal trials should be excused from hearing other cases to allow them time to complete their written judgment.

Lawyer M. Kulasegaran said this would give judges sufficient time and peace of mind for the task at hand.

"In the meantime, a relief judge could be sent to hear cases in that court," he said.

Kulasegaran said some judges were so meticulous in arriving at decisions that they did their own research before arriving at conclusions.

"They may do so as submissions by parties are sometimes inadequate and incomplete. However, by going the extra mile, they may delay the writing of judgments."
He also suggested that judges be given the freedom to hand-pick competent research officers and stenographers to assist them.

"These people can help the judge in writing judgments in the shortest time possible."

Lawyer Hisham Teh Poh Teik suggested that court rules be amended to allow appellants in criminal cases to submit appeals using notes of evidence and reasons in point form.

"But for the time being, it is still better for a judge to give reasons for his decision. He could elaborate later in the event of an appeal."

Hisham said this was important as it would enable the losing party to decide on what grounds they could lodge an appeal.

"Should the parties appeal and there are no written grounds, the appellate court could hear the appeals by relying on the summarised points when the decision was handed down."

Unwritten judgments delay justice unduly, says Sri Ram

2007/07/28

Unwritten judgments delay justice unduly, says Sri Ram

By : V. Anbalagan

PUTRAJAYA: First, it was the absence of judgments in criminal cases. Now, it is civil court judges not putting their judgments down on paper which unduly delays justice.

Court of Appeal judge Datuk Gopal Sri Ram, the most senior judicial officer of the appellate court, made the observation in two separate civil cases, which the appellate court dismissed with costs.

In the first case, Sri Ram said the High Court had made an order for sale on a property on Feb 22, 1999. The notice of appeal was lodged on Nov 2 that year, but no grounds were written by the judge.

Sri Ram said it took the appellate court time to go through the notes of evidence. "This court was put to the trouble of trawling through the appeal record to appreciate the respective parties’ cases in the court below."

(Unlike criminal cases, civil appeals can be heard by an appellate court by relying on the trial judge’s notes of evidence, pleadings of parties and affidavits).
Sri Ram said the court could do no better than to quote from a judgment of former Lord President of the Supreme Court, Tun Salleh Abas.

"We hope that judges should endeavour to write their grounds of decision and take delight in this aspect of judicial work as a matter of personal pride and satisfaction and not as a burdensome task.

"Failure on the part of judges to write their grounds of decision will certainly undermine their authority to insist upon magistrates and president of Sessions Court (now Sessions Court judges) to write theirs.

"If the practice of not writing written grounds of judgment is widespread, the system of administration of justice will tumble down."

In this case, the Court of Appeal gave its decision on May 28, 2004 but the written grounds were only delivered on Wednesday.

Both judges who sat with Sri Ram to hear the appeal had also retired, leaving him the task of writing the grounds as the appellant, Hongkew Holdings (M) Sdn Bhd, had filed an appeal to the Federal Court.

The other case, one of medical negligence, took 23 years for it to reach the appellate court.

"If the law is to be castigated for its delays, then this case surely proves the rule," said Sri Ram.

On April 3, 1984, lawyer K. Thayalan died at the neurology department in the Kuala Lumpur Hospital.

His personal representative filed a medical negligence suit against Dr Goon Siew Fong, the physician who attended to him. The government was also included as a party to the action, which was filed sometime in 1986.

After a lengthy trial, the High Court delivered its oral decision, dismissing the claim of Thayalan’s personal representative in 1992.

An appeal was filed. However, the trial judge, who subsequently retired, did not provide the grounds of decision.

Once again, the Court of Appeal had to rely on the notes of evidence in deciding the outcome of the appeal.

Earlier this year, Sri Ram together with judges Datuk Suriyadi Halim Omar and Datuk Hasan Lah heard submissions from the parties.

The written grounds were also made available on Wednesday.

In an immediate response, lawyer Amer Hamzah Arshad said the hallmark of a judge was his ability to justify a decision with legal arguments.

"A written decision is a summarised version of the grounds of judgment. It greatly facilitates the appeal court to know how the trial judge arrived at a particular decision by applying the law to the facts of the case," he said.

Lawyer M. Manoharan said judges should make it a point to provide the grounds of decision, irrespective of whether parties appealed.

"The facts of a case will be fresh in their mind if they begin to write immediately. Moreover, the credibility and demeanour of witnesses will only be known if there is a written judgment."

He said the judiciary must recognise these shortcomings and should promote those who had the ability to deliver written decisions speedily.

007/07/23

JUDGES FAIL WRITTEN TEST: Just write it, judges

Ragunath Kesavan (left) says the problem could have been arrested if judges were vetted properly. Karpal Singh says judges who accumulated judgments gave up as they could not recollect the facts of the cases

KUALA LUMPUR: Justice is sometimes not done in Malaysian courts even after judgment has been passed.

There are numerous horror stories of how the accused languished in prison just because judges did not provide written judgments.

In one case, a man withdrew an appeal against 12 years’ imprisonment and 10 strokes of the rotan on a dadah trafficking charge as his jail term had come to an end while waiting for the appeal to be heard.

The delay in hearing the appeal had been due to the judge not submitting a written judgment.

The worst cut of all was that the accused took all the strokes of the rotan at once before leaving jail — knowing that his sentence may have been reduced or overturned on appeal.
In another case in 1984, an accused charged with trafficking dadah was found guilty in 1988.

When his case went on appeal to the Supreme Court in December 1993 — a good five years later — the bench substituted the death sentence with 20 years’ imprisonment.

The judges had felt that the long delay in handing down the written judgment had prejudiced the accused.

If one thought that these were the worst case scenarios, there’s more.

A Federal Court judge has at least 30 outstanding judgments accumulated from his High Court days that include dadah trafficking and murder cases.

How he is going to come up with the written judgments is anyone’s guess, especially as he will also have to provide judgments on cases before the Federal Court.

This glaring weakness in the judicial system has irked the legal fraternity to the extent that calls are being made to only appoint judicial officers who can deliver written grounds on time.

One lawyer even suggested that judges who had been issued warnings not to delay written judgments should be hauled up before a tribunal to answer for their recalcitrance.

The Bar Council says the only solution to this vexing problem is the setting up of an independent judicial commission to appoint and promote judges.

Its vice-president, Ragunath Kesavan, said the problem could have been arrested early if candidates had been properly vetted before being appointed judicial commissioners.

"This is why we have been canvassing hard for the need to set up an independent judicial commission to appoint and promote judges," he said.

Ragunath said written judgments were critical in the dispensing of justice.

The council will be sending out a circular soon to get feedback from members on cases where judgments had not been provided.

This will be forwarded to the chief justice for action to be taken so that judges will put their judgments in writing.

"We hope that he will also reveal the number of outstanding judgments," he added.

Lawyer Karpal Singh said existing procedures on delivering decisions and judgments were indefinite with many judges reserving decisions after a trial.

"At the next date, they are still unable to deliver (decisions)," he said, adding that he had at least five cases that could not be appealed as judgments were not ready.

He said some gave decisions without stating reasons.

Karpal said judges who accumulated judgments simply gave up after some time as they could not recollect the facts of the case.

"One has to look into the demeanour of the witnesses to better appreciate the facts of the case.

"This would have been fresh in their mind if judgments were written soon after the trial."

Lawyer Gurbachan Singh said prisoners facing capital punishment would be under even greater pressure if their appeals could not be heard because of delayed written judgments.

He said family members were also left emotionally drained due to the uncertainty.

Relatives of the accused were sometimes not convinced when told that the appeal process had stalled because the trial judge had not provided grounds for his judgment.

Gurbachan has two cases where judges passed the death penalty without written judgments.

"And yet, the two judges who heard the cases, have been promoted to the Court of Appeal," he said.

Kuala Lumpur Bar Criminal Practice Committee chairman N. Sivananthan said some judges were causing grave injustice to convicts and to the Attorney-General’s Chambers.

"One must remember justice is not only for the convicted person but also for the state," he said.

He said failure to write or delay judgments for appeal purposes was tantamount to a denial of justice.

"Whether a judge is brilliant is a secondary point. The primary consideration is that he must provide a judgment for the aggrieved party to enable them to appeal or else the administration of justice is jammed."

He said the accused has the right to finality in his or her case and a chance to exhaust all channels of appeal.

"A person charged with a criminal offence wants his name cleared soon while a party in a civil proceeding wants to enjoy the fruits of the litigation."

He said every judge had an important role in taking legal disputes to their natural conclusion.

Time for the abolishment of WHIPPING in Malaysia

How did this video 'escape' from the prison?

Saturday, 28 July 2007, 12:23pm

KUALA LUMPUR: A video has been posted on the internet since March 3 this year showing how a prisoner was caned with rotan until his skins split with blood. Entitled: "Malaysia Caning Judicial Corporal Punishment" and captioned "This link was posted by one of our fellow leakers. Thought it was pretty good, but does anyone know what happened to cause this?", the video did not reveal the location of the prison and the time it was taken. However, the prison grounds appear to be in Malaysia looking at the uniform worn by the officers. It also appears that those present were aware that the whole episode was being filmed. It is quite a gory scene, and please do not click on the link if you find it offensive. **taken from the Malaysian Bar website

Probe May 13 riots, police told (Malaysiakini)

Probe May 13 riots, police told

Wednesday, 20 June 2007

Joyce Tagal and Su Hui Hsing (Malaysiakini) A lawyer has filed a police report calling for an investigation into the May 13, 1969 riots which left more than 100 dead and scores others injured. N Surendran (photo:right) lodged the report with the Brickfields police headquarters in Kuala Lumpur this morning. The report is based on the revelation of new information pertaining to the riots in a book titled May 13: Declassified Documents on the Malaysian Riots of 1969 published last month. Penned by academic Dr Kua Kia Soong, the book, which is based on recently declassified documents from London, claimed that Umno played a major role in the riots. It also stated that the military and police had practiced racial favouritism during their peacekeeping efforts. In his report, Surendran urged the police to look into these alleged criminal actions by the police, military and the government, including the late former premier Tun Abdul Razak. "The parties must be implicated, brought to court and charged, no matter how old they are," he told reporters later. He said if the police failed to act, he would raised the matter with the Human Rights Commission of Malaysia (Suhakam) or even obtain a court order. 'We want justice' Accompanying him was PKR supreme council member S Manikavasagam. "Since the book is not banned, the contents must be true," said the opposition politician, who also called for a police investigation. Meanwhile, Surendran said the new information in the book was the reason behind his decision to file the police report. "For the first time, Malaysians are looking at these documents. Now it is time for the truth to come out,” he said, referring to declassified documents from the London Public Service Records office. Surendran also urged the government not to be frightened by the documents and to uphold transparency since it is a matter that affects all Malaysian citizens. "People have been speaking in whispers since 1969. This is important for nation-building. We cannot be an united nation until things like this are brought to light. “All Malaysians will be happy if they see justice done and the victims of the riots compensated, he continued. What we want is justice, justice for Malaysians,” he said.

Suhakan Bloody Sunday Report Highlights (Malaysiakini)

Suhakam Bloody Sunday report: Highlights

Mar 23, 07 5:19pm

The following are some of the crucial observations and recommendations made in Malaysian Human Rights Commission (Suhakam) report of the public inquiry on the May 28, 2006 demonstration at KLCC. Peaceful assemblies important for democracy Recommendation: “It is timely that the police and the FRU realise and accept that demonstrations and peaceful assemblies are not an annoyance but are a necessary element in a democratic nation. With that realisation in mind, the best possible method to preserve and maintain order is (police) restraint.” Cops interfered in protesters rights to assembly The panel concluded that the participants of the demonstration were “entitled to the constitutional right to peaceable assembly, notwithstanding the lack of licence to do so.” “(We) emphasise that every citizen, including members from the opposition parties, should not be denied this constitutional guarantee”. “(We) find that the acts of the police in dispersing the assembly... had interfered with the right to the freedom of assembly of the protesters”. Police used ‘excessive force’ The panel found that the police, in the act of dispersing the protesters, had used ‘excessive force’ on 10 individuals, including one journalist. Evidence led the panel to positively identify L/Corp Mustika Lambonding to have used ‘excessive force’ on one of the demonstration participants. Whether the assembly was peaceful C/Insp Pusparajan and L/Corp Nasaruddin Hashim both from the FRU testified that the assembly, at all times, was orderly and not unruly. This was clearly observed in the video and sound recordings. “[...] there was no evidence that the crowd became disorderly, unruly or violent at any time at all [...] there was no shred of any evidence that any third party was there to disrupt the assembly” Arrest unwarranted While there was no permit issued for the assembly, the panel stressed that the assembly was peaceful and did not warrant any arrest. It was observed that some arrests were carried about appropriately but were not justified “as these individuals were merely protesting peacefully”. The acts of the protesters during the incident “cannot be said to have breached the peace or calculated to have breached the peace”. Licencing requirements to assemble “Whilst international standards consider the requirement of prior authorisation or notice as being compatible with the right to freedom of assembly, the panel of inquiry finds that the requirement for a licence imposed by Section 27 of the Police Act 1967 and the lack of definition of the phrase, ‘prejudicial to the interest of the security of Malaysia’ effectively negates the right to freedom of assembly enshrined in Article 10 of the Federal Constitution.” Recommendations: “From the foregoing, it is observed that the laws regulating assemblies are moving towards a cooperative model in several jurisdictions where both parties, the organisers and the police, co-operate in the regulation of an assembly. Such co-operations has proven to be effective in maintaining peaceful and orderly assemblies. As such, the panel of inquiry recommends the repeal of subsections (2), (2A) - (2D), (4), (4A), (5), (5A) - (5C), (7) and (8) of Section 27, and also Section 27A of the Police Act 1967, thereby removing the need to apply for any licence to hold a peaceful assembly.” Protest organisers should notify police Recommendation: It was recommended that those intending to organise a peaceful assembly should notify in writing to the local police chief the details of the assembly. “The panel of inquiry also recommends that the requirement of notification be followed by meetings between the organisers of the proposed assembly and relevant police officers so as to confirm the practical arrangements for the assembly or procession.” “The panel further recommends that any persons whose rights may be affected by the assembly or any arrangement relating to the assembly should be allowed to make an urgent application to the High Court for intervention.” Warnings of dispersal The panel found that the police issued four warnings for the crowd to disperse, but “most of those in the crowd could not make out the announcements because the warnings were not effectively conveyed.” It was found that most members of the crowd had started to disperse when the water cannon was activated but the police “charged after the members of the assembly”. Recommendations: “Orders to disperse should be clearly audible and given at least three times at ten-minute intervals, with sufficient time given to allow the crowd to disperse. “Once the crowd disperses, the police should not chase and arrest those moving away or those who have moved away,” Identification of riot police The majority of FRU personnel called as witnesses could not identify fellow personnel. “Firstly, the persons who used violence were in protective body armour and were using helmets and visors which obscured their faces. “Secondly, they did no wear personal identification (either names or badge numbers).” Recommendation: “While the panel acknowledges the necessity of the police and FRU personnel to wear helmets and other protective apparel or items, these apparel or items should bear clear identification (of the personnel’s identity).” Organisers should appoint marshals Recommendations: Regulations or guidelines pertaining to peaceful assemblies should require assembly organisers to appoint marshals and provide their details to the police. “The appointment of marshals should be implemented in Malaysia as they provide a focal point for members of an assembly and police for the purpose of consultation and liaison.” Use of helicopter The panel concluded that the police helicopter present at the protest had received specific instruction to fly ‘low and hover over the crowd’ for two purposes: To prevent the assembly from hearing the speeches and to disrupt the assembly. “The panel finds that the instruction given to fly low and to hover over the crowd was rash and was given without consideration to the safety of the people at the place of assembly. Recommendation: “The panel is of the view that no helicopter should be used to disturb any assembly. The panel is of the opinion that usage of a helicopter during assemblies, if necessary, should be limited for monitoring purposes only”

Suhakam: Cops used ‘excessive force’ (Malaysiakini)

Suhakam: Cops used ‘excessive force’

Andrew Ong Mar 23, 07 2:36pm

Suhakam’s panel of inquiry into allegations of police violence during an anti-fuel hike demonstration on May 28 last year at KLCC concluded that the police used ‘excessive force’ on 10 individuals in dispersing the crowd. “The severity of injuries suffered by these [...] persons varied, from five stitches on the head to bruises and abrasions,” said the panel in its report on the public inquiry of the incident. The month-long public inquiry was held in October last year after receiving complaints from victims and civil society groups on the police conduct, in particular the Federal Reserve Unit (FRU), that day. Panel members include Zaitoon Othman, Choo Siew Kioh, Dr Michael Yeoh and KC Vohrah who headed the team. The panel released its report on the inquiry this morning at the Human Rights Commission headquarters in Kuala Lumpur. On May 31 last year, then Inspector General of Police Mohd Bakri Omar denied allegations of police violence and insisted that only ‘minimum force’ was applied on protesters. Bakri also defended the actions of police personnel at the scene that day. Positive identification Based on the video evidence and identification by a police witness, the panel positively identified L/Corp Mustika Lambonding as the police personnel who used excessive force on Lee Huat Seng. The report said the video had depicted a police officer swinging a baton and hitting Lee. The panel noted that one victim, Lim Ban Teng, suffered a broken thumb during the melee. The report warned that the person who caused the injury could be charged with the offence of committing grievous hurt under the Penal Code. The panel was however unable to make a conclusive finding on the personnel responsible for the injuries suffered by Zahir Hassan because the evidence produced were still photographs. Zahir, an opposition politician, had told malaysiakini earlier that he was repeatedly kicked by several riot police personnel as he was moving away from the area where the demonstration took place (photo). On other cases of excessive force used by the police, the panel ‘strongly recommends’ that the police conduct internal investigations to ascertain personnel involved with a view of taking disciplinary action against them. The panel said that if it was deemed necessary, the police should also recommend that the public prosecutor take further action. Disproportionate to police aims Quoting a United Nations’ human rights training manual for the police, the report said in instances where the situation necessitates the use of force, the degree of force used must be in direct proportion and only to the extent required for the legitimate ends of law enforcement and maintaining public order. “The panel [...] finds the interference by the police and the FRU in dispersing the assembly on May 28, 2006 at KLCC and the arrests that were affected were disproportionate to the aims of preventing disorder and protecting the rights of other and are not judicious in a democratic society,” read the report. The panel also found that the assembly was ‘peaceful’ within the meaning of Article 10 of the Federal Constitution (rights to assembly) and international human rights standards. “The assembly was peaceful. There was no violence. The actions and speeches (by protest participants) did not provide incitement or cause violence or a breach of the peace,” read the report. The public inquiry was established to determine whether any human rights violations occurred during the May 28, 2006 demonstration at KLCC and if so: which person or agency was responsible for the violations; how such violations came about; what administrative directives and procedures or arrangements contributed to them; and what measures should be recommended to be taken to ensure that such violence does not recur.

SUHAKAM Public Inquiry Report into 'Bloody Sunday' out (Malaysian Bar Website)

SUHAKAM Public Inquiry Report into 'Bloody Sunday' out

Contributed by Rajen Devaraj (Executive Officer)

Friday, 23 March 2007, 03:51pm

KUALA LUMPUR, Fri: SUHAKAM today released its Report of the Public Inquiry into the Incident at KLCC on 28 May 2006 making findings that the actions of the police and FRU in dispersing the peaceful assembly on that day were disproportionate and interfered with the rights of the protestors to assemble peacefully. In a 92-page strong report, SUHAKAM made key recommendations calling for the decriminalising of peaceful assembly without a licence under section 27 of the Police Act, 1967 and the repeal of sections 27(2), (2A) to (2D), (4), (4A), (5), (5A) to (5C), (7), (8) and 27A of the Police Act. It further noted that laws regulating assemblies have moved towards a “co-operative model” in several jurisdictions where parties, the police and the organizers, co-operate in the regulation of an assembly. Datuk K.C. Vohrah, who chaired the public inquiry, said that the submissions made by the Bar Council and the Bar Council Legal Aid Centre (KL) were useful. (Click here to download Bar Council Report and here for the Bar Council Legal Aid Centre Report.) The Bar Council and the Bar Council Legal Aid Centre (KL) both made submissions to SUHAKAM giving views on the facts of the case and making recommendations after taking into account laws in different jurisdictions such as America, Hong Kong, Ireland, Australia and United Kingdom. Members of the Bar present at the press conference lauded the SUHAKAM report and thanked the Panel of Inquiry for its good work. The Bar President, Ambiga Sreenevasan expressed gratitude to SUHAKAM for conducting the Inquiry and making the report, which the Bar fully supported. When contacted, she extended her appreciation to members of the Bar who represented the Bar and the Bar Council Legal Aid Centre (KL) during the Inquiry and helped draft the said reports. Members of the Bar which took an active part in this process include Amer Hamzah, Chen Hong Lynn, Edmund Bon, Edward Saw, Fahri Azzat, Nik Mohamed Ikhwan, Richard Wee, Ramesh Sivakumar, Chan Weng Keng, Sivarasa Rasiah, M. Moganambal, Latheefa Koya and R. Ragunanthanan. Ambiga also thanked the secretariat and pupils of the Bar Council Legal Aid Center (KL) who provided invaluable assistance throughout the inquiry and Chang Lih Kang, Gowri Balasubramaniam and Yap Swee Seng of SUARAM who assisted in the preparation of the Bar Council Legal Aid Centre Report.

SALE OF SNAKES - NGOs lodge report against department (Malay Mail)

SALE OF SNAKES - NGOs lodge report against department
by MUZLIZA MUSTAFA (Thursday, 22/3/2007)

A GROUP of non-governmental organisations lodged a police report against the Penang Wildlife Department for cruelty against animals yesterday.

The report was lodged by lawyer N.Surendran, on behalf of the group, at Brickfields police headquarters at 10.50am.

The group comprises Malaysian Animal Rights and Welfare Society, Selangor Society for Prevention of Cruelty to Animal, Malaysians against Death Penalty and Torture, Malaysians Against Animal Assisted Therapy and Malaysian Association for Responsible Pet Ownership.

Surendran said the report was lodged following reports that the department had kept 2,400 ‘banded rat’ snakes, which were seized in an operation on March 6 in Batu Maung complex, for several days before selling them to traders.

He claimed the department had breached the Protection of Wild Life Act 1972 when it sold the snakes.

“We have no idea if the snakes were fed or given water when they were under the department’s care,” said Nagendran.

He said instead of selling the snakes, the department should release them into the wild, either here or in Thailand, where they were smuggled from.

“The department should not make money from the animals,” he said.

Brickfields police acting chief Superintendent Izany A.

Ghani said the report would be referred to Penang police headquarters for action.

Handling Confiscated Wildlife (WWF Malaysia)

Handling Confiscated Wildlife

There has been a lot of talk lately about the fate of confiscated wildlife and what concerned authorities should do to help ensure the long-term safety and well-being of such animals. Recent news on the 2,400 Banded Rat Snakes that were confiscated by the state Wildlife and National Parks Department (PERHILITAN) in the Batu Maung Cargo Complex and sold to licensed snake traders highlights the importance of Malaysia having proper protocols and guidelines in handling such problems.

WWF-Malaysia and TRAFFIC Southeast Asia is of the position that the selling of the said snakes by the state wildlife office to licensed snake traders was not done with the welfare of the animals in mind. The selling to animal traders by the wildlife authorities may be publicly-perceived as an endorsement of illegal animal trapping, smuggling and/or sale, and this is a great concern especially so when it involves partially and/or totally protected species. WWF-Malaysia and TRAFFIC Southeast Asia fear that these 2,400 snakes may now end up being killed for their skins, culinary or medicinal purposes and this would simply be similar to what may have happened to the snakes had they been taken out of the country and not been confiscated.

What could and should have been better was for the Malaysian authorities to send back the snakes to the relevant authorities from where the said snakes originated for possible release back into the environment from which the snakes were originally taken from. That would have been a better solution to the issue, and considering that if Thailand (if that is confirmed scientifically) was where the said snakes came from, it could have most easily been done with minimal cost. There ought to be better procedures in place for our wildlife and customs officials to easily repatriate confiscated animals seized either side of the common border.

Addressing the issue of what to do with confiscated wildlife is not as simple as releasing them back to the wild. There are a whole range of issues that need to be considered prior to any release attempts. If survivals of these animals are the primary concern, then going beyond that simplistic “feel good factor” of having just released back animals to the wild is crucial.

For example, an assessment needs to be made on the short- and long-term impacts of such an action on the ecology of the release area, on humans living in and around such release sites, and on the concerned species themselves. The species’ natural origins, food source, further threats from humans are just some of the many issues that have to be carefully considered when it comes to releasing confiscated wildlife, especially those seized in large numbers.

To use the 2,400 captured Banded Rat Snakes mentioned above as a relevant example, one possible way forward was to have quickly secured the services of a herpetologist, to at least determine, if at all the entire batch was of one species or multiple species, since there are various kinds of rat snakes. The use of molecular technology could have been applied, noting the cost implications, however, to assist in determining the origins of the animals. As there is more than one rat snake species native to Peninsular Malaysia and the region, it would have been reckless to simply release them in territories with populations that are genetically different from their kind. Banded Rat Snakes are a non-poisonous species found in many parts of South and Southeast Asia, and are geographically distributed to as many as 18 countries, including Malaysia. It would have proven useful for concerned authorities to perform a scientific check before making any management decisions on what to do with these animals.

The bigger question to be asked in such circumstances is whether our local authorities do have the necessary resources and human expertise to conduct such intensive assessments and studies.

If concerned authorities were to succumb to popular sentiments and haphazardly release captured animals back to the wild without taking into account the above issues, serious environmental repercussions may arise. The crux of the matter is about ensuring the long-term wellbeing of confiscated wildlife without compromising the viability of other life forms and interrupting the delicate balance of nature.

The sad part is that this problem is not exclusive to snakes but also involves a whole gamut of other wildlife. The above situation only highlights the need for environmental organizations, universities, and scientific institutions and even interested members of the public to work closely with the Ministry of Natural Resources and Environment, through its various agencies, to pool resources and expertise in coming up with workable guidelines in the proper management of confiscated wildlife. We need not start from scratch. There is a body of information that exists on how to manage the release of captive animals and we should be able to follow all the international guidelines and adapt them to our local conditions.

More often than not, large quantities of confiscated wildlife result from heavy demand for exotic meat and animal parts. Thus, the public also has a crucial role to play in putting a stop to such illegal trade by simply boycotting products (including food items and medicinal products) made of endangered animal parts. Members of the public need also be educated and imbued with the necessary commitment to combat illegal wildlife trade by reporting immediately to the relevant authorities if and when they learn of any illegal wildlife trade going on. More stringent laws also need to be put in place. This is some of the things that we need to help lessen the occurrence of confiscated wildlife and ultimately, the many other problems that come along with it.

WWF-Malaysia and TRAFFIC Southeast Asia are willing to assist and help in the developing of proper protocols and guidelines in handling confiscated wildlife in Malaysia, and is always ready to facilitate the getting and/or provide the required resources and skills needed to ensure the proper handling of confiscated wildlife.

Dr Dionysius S.K. Sharma

Executive Director/CEO WWF-Malaysia

&

Dr Mark Auliya

TRAFFIC Southeast Asia

21^st March 2007

MALAYSIA: Illegal Migrant Workers May Escape the Cane

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Uproar over sale of protected snakes (Malaysiakini)

Uproar over sale of protected snakes

Fauwaz Abdul Aziz Mar 21, 07 3:56pm

Animal rights activists are up in arms over the reported sale of some 2,400 protected snakes to licensed traders by - of all agencies - a state wildlife department. The banded rat snakes, prized for their meat and skin and worth an estimated RM240,000, were seized at the Batu Maung air cargo complex on March 6 by the Penang Wildlife and National Parks Department. The reptiles - which are partially protected under the Protection of Wildlife Act 1972 as well as the Convention on International Trade of Endangered Species of Wild Fauna and Flora (Cites) - are believed to have been smuggled in from Thailand en route to Hong Kong. (Partial protection allows for trade of the animals concerned, but under strictly controlled provisions.) While having headed off the illicit trade, however, the department may have breached its own regulations when it auctioned the snakes two days later to traders, said the groups. “They are not allowed to sell off protected species as if they are mere merchandise,” lawyer N Surendran citing the Wildlife Act. “Nowhere does the Act authorise the department to sell off wildlife.” He was speaking to reporters this morning after filing a police report at the Brickfields station in Kuala Lumpur on behalf of the organisations. Surendran said the groups believe the snakes have since been sold to local and foreign restaurants. Echoing his statement, treasurer of the pro-tem Malaysian Animal Rights and Welfare Society Abdul Karim Stuart Russell said the department has in effect encouraged trade in the protected species. “It should not have happened, really. After the snakes were caught, they should have been dealt with in a more professional way,” he said. This would include either letting them go in the appropriate manner and location in the wild, or returning them to Thailand for disposal by the relevant authorities, he said. Surendran further said it was ironic that the state wildlife department - tasked with protecting wildlife - may have abetted in committing cruelty to the snakes in view of the known methods by which snakes are gutted alive in restaurants that buy them. He also cited Section 92 of the Wildlife Act, which renders illegal ‘any act of cruelty to wildlife’. Recounting the ‘efficient’ manner in which the snakes were auctioned two days after being seized, Surendran said the groups want the police to thoroughly investigate the circumstances of the decision to sell the snakes as well as the sale itself. Selangor chapter chairperson Christine Chin of the Society for the Prevention of Cruelty to Animals urged the police to be impartial in their investigations. ‘Sale allowed’ When contacted, Penang Wildlife Department director Hasnan Yusop denied any breach of regulations, saying the auctioning of partially protected wildlife is provided for under Schedule II of the Wildlife Act as well as Cites’ Appendix II. “Perhaps the groups are just not fully informed of the provisions, as everything was done according to procedure,” said Hasnan. He also the authorities ensure that wildlife species auctioned off to licensed traders do not undergo cruel treatment in the process of preparation in restaurants. This batch of snakes was sold only for the meat, not the skins. “Nowadays, the slaughter of snakes in restaurants occurs (just like) the slaughter of chickens. There’s no difference,” said Hasnan. He explained that the snakes could not be returned to Thailand as it was only suspected that the snakes originated from there. The department, meanwhile, had to dispose of the snakes as soon as possible to prevent them from dying in the containers in which they were kept, especially since “several had died already”. “Releasing them into the wild in Malaysia would not have been the right step because the habitat is not suitable. Even in places where they are found, such as in northern region of Malaysia, their numbers are very small,” he added. “If they died in our possession, then the groups would be blaming for being cruel.”

MADPET: REMOVE DEATH PENALTY FROM ALL MALAYSIAN LAWS

MEDIA STATEMENT –20/3/2007

REMOVE DEATH PENALTY FROM ALL MALAYSIAN LAWS

Death Penalty for “Terrorist” and “Terrorist

Financiers” Unsafe and Unacceptable

MADPET (Malaysians Against Death Penalty and Torture) is shocked and disappointed that Malaysia has created new offence carrying the death penalty. This is in direct contrast to the worldwide trend towards abolition and the limiting of the death penalty.

It was reported recently that those convicted of terror acts that cause death will now face the mandatory death penalty. (Star 18/3/2007: Terrorists who cause death to hang). The new law, which comes under the amended Penal Code, came into effect on March 6. Under the amendment, those convicted of giving financial aid to such terrorists will also meet the same fate – death. If no death is caused, the convicted persons would be liable to a jail sentence of seven to 30 years and a fine.

It came into effect a day after Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Aziz signed the gazette notice on March 5. Ironically, this was the same Minister who was reported in 2006 saying “For me, a life is a life. No one has the right to take someone else's life, even if that person has taken another life,.."

It is not possible in any system of human justice to prevent the horrifying possibility of the execution of innocent persons; and the infliction of the death penalty makes wrongful convictions irreversible. In an age, when it is possible to isolate persons guilty of the most heinous of crimes from society by the imposition of life imprisonment, there can be no more justification for the usage of the death penalty.

The Malaysian Bar, a body representing over 12,000 Malaysian lawyers, at its 60^th Annual General Meeting held on 18/3/2006 passed a Resolution calling for the abolition of the death penalty in Malaysia, an immediate moratorium on all executions pending abolition and the commutation of the sentences of all persons currently on death row.

It must also be pointed out that a television poll done by RTM 2 during the Hello on Two programme on 7/5/2006 showed that 64% of Malaysians are for the abolition of the death penalty in Malaysia. This program has an estimated audience of 80,000. It is thus important that members of Parliament, the representatives of the people respond to the aspirations of Malaysians and remove the death penalty from the laws of Malaysia.

It is ironic that at a time when the nations of the world are rapidly moving towards abolition of the death penalty, Malaysia is once again unnecessarily and imprudently extending the range of capital offences. Today, 128 countries have abolished capital punishment in law or practice as opposed to 69 countries which retain the death penalty. Philippines and Albania are the most recent addition to the list of death penalty abolitionist nations.

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

N. Surendran

Charles Hector

for Malaysians Against Death Penalty and Torture (MADPET)

20^th March 2007

RESOLUTION FOR THE END OF THE STATE OF EMERGENCY AND AN END TO LAW ENFORCEMENT” BY THE UNTRAINED AND ARMED PEOPLE'S VOLUNTEER CORPS ( RELA)

MALAYSIAN BAR RESOLUTION FOR THE END OF THE STATE OF EMERGENCY AND AN END TO LAW ENFORCEMENT” BY THE UNTRAINED AND ARMED PEOPLE'S VOLUNTEER CORPS ( RELA)

(passed unanimously at the 61st Malaysian Bar AGM held on 17/3/2007)

Whereas:-

1. On 31^st August 2007, it will be 50 years since Malaysia achieved its independence and has been for over 30 years been a peaceful democratic nation.

2. It is sad that Malaysia is still in a state of Emergency as there exist today 4 Proclamation of Emergencies issued by the Yang di-Pertuan Agong that is yet to be revoked.

3. Since independence, five states of emergency have been declared under Article 150 of the Federal Constitution. The first was the only one to have been revoked. The remaining four are still in operation. The second state of emergency was proclaimed in September 1964 when the country was faced with a campaign of violence from Indonesia. Although the threat ceased within less than two years, the state of emergency was never revoked.

4. The next state of emergency was declared on 14 September 1966 following the dismissal of the Chief Minister of the state of Sarawak. No violence - or threat of violence - resulted from the crisis. The government nevertheless proclaimed an emergency, confined to Sarawak. And although the crisis was soon resolved, the state of emergency has not been revoked.

5. The fourth proclamation came on 15 May 1969 following large-scale rioting and racial violence in the capital, Kuala Lumpur, during a general election. The violence led to several hundred casualties. As a result, further elections were postponed and parts of the Constitution suspended. Normalcy was restored soon - the legislature was reconvened and normal constitutional government restored in February 1971. However, the state of emergency has yet to be revoked.

6. On 8 November 1977, the fifth Emergency, limited to the state of Kelantan, was declared following a political crisis.

7. By reason of the proclamation of emergency, numerous legislations were enacted and are still in force, including also :-

a) Emergency (Essential Powers) Act, 1964 (30/64), today known as the Emergency (Essential Powers) Act 1979;

b) Emergency (Public Order and Prevention of Crime) Ordinance 1969;

c) Essential (Security Cases) Regulations 1975

8. For example, Section 6 of the Emergency (Essential Powers) Act 1979, states that “"For so long as the Proclamation of Emergency referred to in the preamble to this Act remains in force, the regulations made under the Emergency (Essential Powers) Act, 1964 (30/64) (except those regulations which the Yang di-Pertuan Agong may by notification in the Gazette declare not to be in force) shall be in force and shall have effect as if they have been made under this Act; and the regulations may be amended, modified or repealed as if they have been made under this Act.". [The proclamation of emergency referred to in this Act was the proclamation issued on 15 May 1969.]

9. The Ikatan Relawan Rakyat or better known as RELA (a People's Volunteer Corps) came into being by virtue of Essential (Ikatan RELAwan Rakyat) Regulations 1966 [P.U. 33/1966], under Emergency (Essential Powers) Act, 1964 (30/64), and continue to be in force by virtue of Section 6 of the Emergency (Essential Powers) Act 1979.

10. By virtue of the Essential (Ikatan RELAwan Rakyat) (Amendment) Regulations 2005, which came into operation on 1 February 2005, the powers of the Rela, have been dangerously over-extended giving RELA personnel the right to bear and use firearms, stop, search and demand documents, arrest without a warrant, and enter premises without a warrant. and all these powers can be exercised the RELA personnel has reasonable belief that any person is a terrorist, undesirable person, illegal immigrant or an occupier. Illegal immigrant and occupier (which would be Malaysians usually) was added on by this 2005 amendment.

11. These not-professionally trained volunteers has also now been accorded protection by the new amendments whereby it is stated that "…The Public Authorities Protection Act 1948 shall apply to any action, suit, prosecution or proceedings against the Ketua Pengarah Ikatan RELAwan Rakyat, Timbalan Ketua Pengarah Ikatan RELAwan Rakyat or any member of the Ikatan RELAwan Rakyat in respect of any act, neglect or default done or committed by him in good faith or any omission omitted by him in good faith, in such capacity."

12. Noting also that there has been numerous complaints that have surfaced in the media about the RELA not just from migrants but also Malaysians ranging from torture, gangster-like behavior, damage to property, wrongful arrest and detention and even the causing of deaths.

13. Its was reported that RELA arrested a total of 17,700 people believed
to be illegal immigrants and screened 94,010 people up to September
2006, and that means 94,010 people (or 76,310) with proper documentations were subjected to unnecessary harassment and their right to a remedy in law is difficult. Of the people arrested, recent reports in the media indicate that many may even not be “illegal” or “undocumented” migrants at all.

* “…six foreign workers, all with legal travel and work documents, were whisked out of their quarters in a resort in Cherating in the wee hours of the morning on Dec 28 last year when RELA members "literally broke into their chalet and ordered them out." (The Star, January 12, 2007).”

* “…a team of 30 to 40 RELA members (half not in uniforms) turned up to look for foreign workers, assaulted some and allegedly stole cash and valuables during the raid. The companies, who lodged police reports, said that all the workers had legal work permits…..”(The Star, December 4, 2006) ·

* “22 workers of an IT company were beaten and made to do a 50m "duck-walk" at Section 30 in Shah Alam…” (The Star, February 16, 2006)

* Residents of about 10 households in Taman Anggerik, Cheras, Kuala Lumpur, complained that RELA personnel crashed into their homes after breaking door locks and smashing gates, and told them that they [RELA] were looking for illegal workers. The residents said the RELA personnel acted like gangsters and showed them no respect. When they asked the RELA personnel to explain why they crashed into their homes, they were told "we are the law." Cash totaling RM3,756 in a drawer was subsequently found missing. (The Star, October 17, 2006)

14. There have also been report of beatings and even deaths caused by RELA volunteers. As an example, in early 2006 it was reported that Ahmad Apik, 35, and Edy Sathurrohman, 26, both Indonesians, lost their lives, and they each left behind a wife and 2 young children. (Star, January 23, 2006).

15. The policy and practice of paying members of the People's Volunteer Corps (RELA) RM80-00 for each undocumented migrant must be stopped (The Star, January 23, 2006). Even MCA Public Services and Complaints Department head Datuk Michael Chong claimed that the reward offered had made RELA volunteers desperate to nab as many illegals as possible. (The Star January 23, 2006)

15. Malaysia is a developed country and professionally trained enforcement personnel should be used for law enforcement, and the use of volunteers like the RELA must end.

16. Some migrants may be undocumented, but they are still human beings and deserved to be treated humanely and should be accorded equal protection under the law.

17. Malaysia, a party to the April 1999 BANGKOK DECLARATION ON IRREGULAR MIGRATION, which clearly states “Irregular [undocumented] migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled, according to law. Any unfair treatment toward them should be avoided” must adhere to its commitments.

18. New laws can always be enacted by a parliament in times of peace if needed.

IT IS HEREBY RESOLVED:-

a) That we, the Malaysian Bar, call upon the Yang Di-Pertuan Agung to revoke all existing Proclamations of Emergency in Malaysia;

b) That we, the Malaysian Bar call for the repeal all legislations and Acts that were enacted and continue to be in force by reason of the now existing unrevoked Proclamations of Emergency;

c) That we, the Malaysian Bar reiterate our call for the repeal of Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Essential (Security Cases) Regulations 1975;

d) That we, the Malaysian Bar specifically call for the repeal of the Emergency (Essential Powers) Act 1979 and all Regulations and Rules made thereunder, in particular Essential (Ikatan RELAwan Rakyat) Regulations 1966 [P.U. 33/1966], as amended by the Essential (Ikatan RELAwan Rakyat) (Amendment) Regulations 2005;

e) That we, the Malaysian Bar call for the employment and usage of only properly trained professional law enforcement personnel in Malaysia;

f) That we, the Malaysian Bar urge that inquests be conducted for Ahmad Apik, Edy Sathurrohman and for the other persons who have died as result of alleged RELA actions;

g) That we, the Malaysian Bar urge that all persons including undocumented migrants and/or refugees be treated humanely and accorded equal protection of the law;

h) That we, the Malaysian Bar call on the Malaysian government to immediately ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;

i) That we, the Malaysian Bar call on the Malaysian government to immediately ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Proposers:

Charles Hector

Francis Pereira

18^th February 2007