NEED TO LOBBY TO ENSURE global moratorium on executions is adopted by the UN General Assembly..

The UN General Assembly would be voting on the RESOLUTION calling for a global moratorium on executions some time in mid-December (possibly on 10 or 11th December)

On 15/11/2007, a call for a global moratorium on executions by the UN General Assembly's Third Committee was an "historic resolution and major step towards the abolition of the death penalty worldwide" - but the real vote will be made at General Assembly - and we all need to lobby our countries to vote in favour of this resolution.

In Malaysia, the Malaysian Bar in 2006 passed a Resolution calling for the abolition of the death penalty. There has been much debate - but the Malaysian government has not yet taken any moves towards abolition. On 15/11/2007, Malaysia was one of those that voted against on 15/11/2007 for the resolution that was adopted by 99 countries in favour, 52 against and 33 abstentions.

Before the vote on the 15th, Malaysia had this to say:-
Making the first explanation of vote before the vote, the representative of Malaysia said the viewpoints of other countries had to be fully respected. The language in the draft resolution contained biased assumptions and erroneous facts. It was unfortunate the issue had come up during the current session and the Committee was divided. Malaysia would vote against the draft; whatever the outcome of the vote, it could not be seen as a victory for any side, as divisions caused by a draft represented a defeat for all. In any State, change had to be undertaken at a pace that the people of that country were comfortable with, free of outside pressure or interference. Conciliation was needed; that would not happen if the issue returned at future sessions. More reasonable heads had to prevail.

Thus, there is a need for Malaysians (in fact all ASEANs and others around the world) to do some serious lobbying to ensure that the UN Resolution for a global moratorium on executions is passed in December 2007.

Votes from Asian countries:
In favour: Australia, Cambodia, Marshall Islands, Micronesia (Federated States of), Nepal, New Zealand, Philippines, Samoa, Sri Lanka, Timor-Leste, Tuvalu, Vanuatu.

Against: Afghanistan, Bangladesh, Brunei Darussalam, China, Democratic People’s Republic of Korea, India, Indonesia, Japan, Malaysia, Maldives, Mongolia, Myanmar, Pakistan, Papua New Guinea, Singapore, Thailand, Tonga.

Abstain: Bhutan, Fiji, Lao People’s Democratic Republic, Nauru, Palau, Republic of Korea, Solomon Islands, Viet Nam.


The arguments that were used by the opponents were mainly focusing on:
-the principle of non-intervention (article 2.7 of the UN Charter) of the UN in domestic matters, and the States' will to maintain national sovereignty and territorial integrity
-the perceived imposition of Western values --Singapore in particular was claiming that the resolution was an attempt by the EU to impose its values on the rest of the world
-the fact that the death penalty is a matter of national criminal justice systems and should not be considered under international human rights law
-the need to consider the right to life comprehensively, including abortion
-the fact that the death penalty is not illegal under International Law and there is no international consensus on it anyway.

We are reporting some of the statements made by representatives from Asian countries. We hope you find this information useful for any future lobbying against the death penalty. For full details please see:
http://www.un.org/News/Press/docs/2007/gashc3905.doc.htm
http://www.un.org/News/Press/docs/2007/gashc3906.doc.htm

Please keep up the lobbing - the vote is expected around 10/11 December. The vote in the UN General Assembly plenary will be an endorsement of the resolution adopted in the Third Committee on 15 November. It is possible for governments to change their votes and it is also possible for governments to oppose the resolution by making further amendments which we hope will not be the case!


Wednesday 14 November 2007
Introduction of the draft resolution and amendmends

The representative of the Philippines then made a statement in connection with action on the draft resolution entitled Moratorium on the use of the death penalty. She said the text was the result of a comprehensive effort by the main sponsors, who had worked in a transparent and cooperative manner. In a sincere effort, the main sponsors had made several modifications to the text, which had led to a rise in the number of co-sponsors. Beginning with the title, as well as the preambular and operative paragraphs, the focus of the draft was on a moratorium. Abolition would be the result of a step-by-step process. The text began with a reference to the Charter of the United Nations, and that document should be read and understood in its entirety; selective quotation would undermine the text. As the main sponsors had taken those changes to the text on board, the co-sponsors reiterated that such changes did not aim to challenge national sovereignty and were rather aimed at reinforcing the phasing out of the death penalty. Making a correction, she said she thought she had mentioned Rev.1, but there was no such document, and the Committee was still working on document A/C.3/62/L.29.

The representative of Pakistan, on behalf of member States of the Organization of the Islamic Conference, said that States belonging to the Conference strongly believed that every human being had a right to life. It was the duty of States to respect the right to life, in line with the Universal Declaration of Human Rights and relevant instruments. A number of States had exercised their sovereign right to impose a moratorium or to abolish the death penalty. For a majority of member States of the Organization, the issue was one related to their criminal justice systems, with an obligation on them to carry out the death penalty subject to competent courts and after exhausting all legal remedies. The OIC recognized that the issue of establishing a moratorium lacked international consensus, especially in view of existing international human rights instruments.

The representative of China said her delegation regretted the fact that the death penalty was again being discussed in the Third Committee, as there was no international consensus on its abolition. She said in 1994 and 1999, the General Assembly had discussed that issue without results. The death penalty was not prohibited by international law. According to the International Covenant on Civil and Political Rights, the death penalty might be imposed only because of the most serious of crimes. Deciding on the most appropriate penalty was a question of sovereignty and therefore a matter for the State. The Assembly was not the proper forum to address the death penalty question. To discuss the issue in such a political forum would only further politicize it. It was inappropriate to submit a draft resolution to the General Assembly which asked for a moratorium on the death penalty. She called upon all delegations to support the amendments proposed.

The representative of Singapore said that a divisive, unpleasant and unnecessary fight was about to begin. A group of countries led by the European Union had decided to table a resolution knowing fully well that it would not only not enjoy consensus, but that it would polarize the Committee. They had done so because they wanted to impose their values on others; apparently, anyone who had a different view had to be forced to change. The tabled amendments were a defence against the European Union’s aggressiveness. The ultimate objective of the main draft was not a moratorium, but the abolition of the death penalty. For many countries, such a penalty was a criminal justice matter, not a human rights issue, and despite what many co-sponsors claimed, that penalty could not be a violation of human rights, as it was not forbidden under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Now that all States in the European Union had abolished the death penalty, it expected all others to follow, he said. The Union wanted everyone to think as they did; “when their values ‘shift,’ our values should also ‘shift’.” If anyone had the audacity to be different, then the European Union thought it was open season to badger them. That trait had been seen before. Singapore supported the amendment introduced by Egypt; it was nonsense to argue that it was a selective quotation from the Charter of the United Nations. The Committee had before it a blatant attempt to impose the values of one set of countries upon everyone else.

The representative of Gabon, given the floor on a point of order, asked to correct what his counterpart from Singapore had said. The draft resolution on a moratorium was an interregional initiative, not an initiative of the European Union.

The Chairman said that the representative of Gabon was not making a point of order, but rather an explanation that could be delivered after a vote.

The representative of Gabon responded that it was necessary for delegations to be well-informed and to avoid confusion. Gabon was not in the European Union, but it was an African country that was supporting the initiative; others were from Asia and South America.

The representative of Timor-Leste said her country was one of the main sponsors of the cross-regional initiative and her delegation wished to state the following before the vote: the main sponsors had provided plenty of opportunity to put forward amendments. The amendment in question sought to undermine the spirit of the resolution. The purpose of the draft was not to intervene, but to reinforce a growing trend towards phasing out the death penalty, which was a legitimate concern of the international community. Timor-Leste would vote against it and urged others to do the same.

The representative of New Zealand, speaking as a co-author of the main draft “L.29”, said the amendment was a selective and partial quotation from the Covenant that was misleading and imbalanced. The International Covenant on Civil and Political Rights pointed to the abolition of capital punishment. The co-sponsors had been open to feedback, and the feedback had been that there was no wish for selective quotations from international instruments on which the main draft was founded. New Zealand would oppose the amendment.
In an explanation of position before the vote, the representative of New Zealand agreed with her counterpart from Uruguay that the amendment was unnecessary and, though it may be factual, that did not justify its inclusion. She said 130 countries –- or more than two thirds of the United Nations membership -- had abolished the death penalty, in law or in practice, for all crimes. The representative of Botswana had referred earlier in the day to inflated statistics. The number of Member States that still had the death penalty had sharply declined, a clear trend that had been mentioned in the main draft. The amendment was contrary to the spirit and intention of the main draft, and New Zealand would vote against it.


Thursday 15 November 2007
Statements before the vote on the draft resolution

Making the first explanation of vote before the vote, the representative of Malaysia said the viewpoints of other countries had to be fully respected. The language in the draft resolution contained biased assumptions and erroneous facts. It was unfortunate the issue had come up during the current session and the Committee was divided. Malaysia would vote against the draft; whatever the outcome of the vote, it could not be seen as a victory for any side, as divisions caused by a draft represented a defeat for all. In any State, change had to be undertaken at a pace that the people of that country were comfortable with, free of outside pressure or interference. Conciliation was needed; that would not happen if the issue returned at future sessions. More reasonable heads had to prevail.

The representative of Singapore said the events of the past two days proved that the issue of a moratorium on capital punishment was a divisive one. There had never been a genuine desire on the part of the co-sponsors to seek consensus; the main sponsors had gone so far as to suspend freedom of expression. The Committee had become a forum for recrimination and self-righteous morality that brooked no dissent. Those behind the draft had acted in a sanctimonious, hypocritical and intolerant way, but that was not a surprise. The draft did not reflect the range of opinions that existed in the United Nations on the issue. The co-sponsors had contradicted the spirit of cooperation and consensus building that was supposed to be the foundation of the Committee’s work. Every State had a sovereign right to choose its own systems. Singapore would vote against the draft; to vote for it would be to encourage countries which sought to impose their views.

The representative of Nepal, speaking in explanation of vote before the vote, said there was no law in his country that provided for capital punishment. It was not Nepal’s intention, however, to impose values on others. It was possible, though, for humanity to abolish the death penalty, and his delegation thought the resolution would only encourage States to put moratoriums on the death penalty. Nepal would vote in favour of the resolution.

The representative of Thailand said the United Nations Charter could not interfere in matters pertaining to domestic affairs. As a State party to the International Covenant on Civil and Political Rights, Thailand was committed to upholding its commitments vis-à-vis that instrument, and the Convention did not prohibit the use of the death penalty. Thai law only permitted the death penalty for the most serious of crimes and violations, and no execution had been carried out for some time. Thailand would therefore vote against “L.29”.

Statements after the vote on the resolution

Speaking first after the vote, the representative of India said there had to be recognition that it was the sovereign right of States to determine their own legal systems, and added that there was no consensus on capital punishment. The International Covenant on Civil and Political Rights spoke only of the desirability of abolition of the death penalty. In India, the death penalty was an exception to be exercised in the rarest of rare occasions. His country had seen a single use of it since 1995, and there were many legal safeguards present. Indian law also had provisions for suspension of the death penalty for pregnant women, he said, adding that juveniles could never be sentenced to death in India. His delegation had not been in a position to support the draft resolution, as it went against his country’s statutory law.

The representative of Japan said he had voted against “L.29”. In his view, the question of abolishing the death penalty should be decided only after every country had considered the matter in light of its own criminal issues. Most of the public believed that the most vicious criminals should receive the death penalty. There was no international consensus on the abolition of the death penalty, and it was regrettable that the resolution had been tabled without sufficient discussion. Many countries had voiced strong opposition to the proposal in informal meetings, but the sponsors had pursued the resolution’s passage despite that.

The representative of Viet Nam said he had abstained in the vote on the resolution because the death penalty was “indispensable” in Viet Nam at present, in order to ensure a peaceful life for the whole of the community. That penalty was applicable only to the most violent criminals, and not to children or pregnant women, among other groups. Viet Nam respected the decision by countries that had abolished the death penalty, given the concrete national situations. He stressed the importance of dialogue on human rights issues on the basis of common respect.

The representative of China said the fact that 50 countries had voted against the draft proved there was no consensus and there were therefore doubts about the effects of such a resolution. All countries had the right to choose their own judicial systems. The death penalty was an issue of criminal justice and was part of a country’s internal affairs. China regretted that two days had been spent on the resolution, which had increased tension and led to a major confrontation, and deplored also the request to vote on a separate paragraph. China could not accept that co-sponsors had applied pressure on other countries and did not wish to see a repeat of the process.

The representative of Bhutan said his country had abolished the death penalty, and would like to see that done worldwide. Nevertheless, he respected the right of each country to make its own laws, in accordance with the United Nations Charter. He had voted in accordance with that view.

The representative of Bangladesh said his country’s criminal justice system had provisions for the death penalty, but only in the case of the most heinous crimes. That sentence involved an exhaustive and transparent legal process, with opportunities for redress. The resolution just adopted was an example of the growing trend against the death penalty, but the time had not come yet for such a ban. He had been constrained to vote against the resolution.

The representative of Singapore congratulated the co-sponsors on their “pyrrhic victory”. The vote had proved that there was no international consensus on the resolution, as almost half of the delegations had not voted in its favour. That should be an indication that many delegations were uncomfortable with the resolution. Co-sponsors had brought the resolution fully aware of how acrimonious and divisive the issue was. He suspected that different countries, with their domestic considerations, would not impose a moratorium because of passage of the resolution. Domestic issues were clearly “irrelevant” to the co-sponsors, and the resolution had made a mockery of the Committee.

The representative of Myanmar said the country had not carried out capital punishment since 1988. Myanmar was not happy with how the resolution had been approved. Every Member State had the right to choose without interference, and the resolution as it had been drafted was, in Myanmar’s view, an attempt to impose a choice on countries. Thus, Myanmar had voted against “L.29”.

Working to protect human rights worldwide

RESOLUTION OF THE MALAYSIAN BAR FOR THE ABOLITION OF THE DEATH PENALTY

60^th AGM of Malaysian Bar – 18/3/2006

RESOLUTION OF THE MALAYSIAN BAR FOR THE ABOLITION OF THE DEATH PENALTY
(which was adopted at the 60th AGM of the Malaysian Bar on 18/3/2006)

WHEREAS every human being has the inherent right to life;

WHEREAS Malaysia has hanged at least 358 persons between 1981 and 2005;

WHEREAS about 173 persons are on death row as at December 2005;

WHEREAS :

a) studies conducted throughout the world over the past seventy years have failed to find convincing evidence that capital punishment is a more effective deterrent of crime than long-term imprisonment;

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

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

WHEREAS on the other hand the execution of human beings by the State gives an ‘example of barbarity’ to society and legitimizes the taking of human life;

WHEREAS Malaysia lacks safeguards that would ensure a fair trial such as the right to immediate access to a lawyer upon arrest, right to full disclosure of evidence in the possession of the police and prosecution, and has to the extreme prejudice of accused persons loaded a capital crime statute such as the Dangerous Drugs Act 1952 ( which generates the largest number of death sentences annually ) with presumptions of trafficking that compromise the presumption of innocence which is integral to any fair and just criminal justice system;

WHEREAS:

a) it is not possible in any system of human justice to prevent the horrifying possibility of the execution of innocent persons; and

b) the infliction of the death penalty makes wrongful convictions irreversible;

WHEREAS :

a) 122 countries have abolished the death penalty in law or practice as opposed to 74 countries which retain the death penalty;

b) An average of three countries have abolished the death penalty each year over the last decade;

c) the trend worldwide has been for the abolition of the death penalty;

WHEREAS the UN Commission on Human Rights Resolution 2005/59 passed in 2005 calls upon all states to abolish the death penalty and states that the abolition of the death penalty is essential for the protection of the right to life of every human being;

WHEREAS Article 1 of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) provides that ‘ No one within the jurisdiction of a State party to the present Optional Protocol shall be executed ’.

WHEREAS the death penalty has no place in any society which values human rights, justice and mercy;

NOW IT IS HEREBY RESOLVED that the Malaysian Bar calls for the:

1) Abolition of the death penalty in Malaysia;

2) An immediate moratorium on all executions pending abolition;

3) Commutation of the sentences of all persons currently on death row;

4) Ratification by Malaysia of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

Proposers: N.Surendran , Charles Hector, Amer Hamzah Arshad, Sreekant Pillai

* the facts and statistics relied on here are from Professor Roger Hood’s The Death Penalty( A Worldwide Perspective) OUP 2002, Amnesty International and statistics released by the Government of Malaysia.

UN adopts landmark decision on global moratorium on executions

Press release, 11/15/2007

Today's call for a global moratorium on executions by the UN General Assembly's Third Committee is an "historic resolution and major step towards the abolition of the death penalty worldwide", Amnesty International said.

The landmark decision had cross-regional support and was co-sponsored by 87 states from around the world.

The resolution was adopted by 99 countries in favour, 52 against and 33 abstentions. The General Assembly is expected to endorse the decision in a plenary session in December.

"Amnesty International calls on all countries to establish a moratorium on executions as soon as the General Assembly endorses the resolution later this year," said Irene Khan, Amnesty International's Secretary General.

In 1971 and 1977 the General Assembly adopted two resolutions on capital punishment, saying that it was "desirable" for states to abolish the death penalty.

Today's resolution goes further, calling on states that still maintain the death penalty "to establish a moratorium on executions with a view to abolishing the death penalty". It urges these states "to respect international standards that provide safeguards guaranteeing the protection of the rights of those facing the death penalty" and "progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed."

The resolution also requests the UN Secretary-General to report to the General Assembly in 2008 on the implementation of the resolution.

Today's decision -- adopted by the UN's highest political body with universal membership -- is a clear recognition of the growing international trend towards worldwide abolition of the death penalty, endorsed by the UN Secretary-General," said Irene Khan. "It is a crucial step forward in creating a death penalty free-world -- as envisaged by the General Assembly three decades ago."

Although the resolution is not legally binding on states, it carries considerable moral and political weight, as it was adopted by the UN's principal organ in which all UN members participate.

"Establishing a moratorium on executions is an important tool to convince states still using the death penalty to engage in a nationwide debate and to review their laws on capital punishment. If death penalty laws are under review, it is only fair to stop executing people in the meantime," said Irene Khan.

The cross-regional initiative for a global moratorium on executions was led by ten countries: Albania, Angola, Brazil, Croatia, Gabon, Mexico, New Zealand, the Philippines, Portugal (for the EU) and Timor Leste.

Background information
Amnesty International opposes the death penalty in all cases, without exception. The death penalty is the ultimate denial of human rights -- the premeditated and cold-blooded killing of a human being by the state in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights and is the ultimate cruel, inhuman and degrading punishment.

So far, 133 countries have abolished the death penalty in law or practice. Only 25 countries actually carried out executions in 2006. In 2006, 91 percent of all known executions took place in China, Iran, Iraq, Pakistan, Sudan and the US. Amnesty International's statistics also show an overall decline in the number of executions in 2006 -- a recorded 1,591 executions, compared to 2,148 in 2005.

UN panel votes for death penalty moratorium

UN panel votes for death penalty moratorium

Fri 16 Nov 2007, 6:40 GMT

By Claudia Parsons

UNITED NATIONS (Reuters) - A U.N. committee voted on Thursday in favor of a resolution calling for a moratorium on the death penalty in a key step toward the passing of the nonbinding motion by the world body.

Opponents had tried to derail the resolution in the U.N. General Assembly's human rights committee by inserting amendments on the right to life of unborn children.

More than 15 amendments were voted down in two days of acrimonious debate that touched on whether the death penalty was a human rights issue or a domestic matter. Some Caribbean and other countries accused the European Union, a key backer of the text, of seeking to impose its values on other nations.

The resolution, which calls for "a moratorium on executions with a view to abolishing the death penalty," was passed 99-52 with 33 abstentions. It is likely to go to the full 192-member assembly in mid-December where supporters say they expect few countries to change their position.

"It's a question of coherence -- a country that votes in a certain way here will do so there," Italian Ambassador Marcello Spatafora told Reuters shortly before the vote.

Eighty-seven countries -- including the 27 EU states, more than a dozen Latin American countries and eight African states -- jointly introduced the draft resolution, though opponents singled out the EU as the driving force.

Two similar moves in the 1990s failed in the assembly. This time, the text of the resolution stops short of an outright demand for immediate abolition.

ANGRY OPPOSITION

Vanu Gopala Menon, ambassador of Singapore which has a mandatory death penalty for most drug offenses, accused those who brought the resolution to the committee of being "sanctimonious, hypocritical and intolerant."

Barbados was among the most vocal in complaining that "a group of countries" was trying to impose its will, saying it had been threatened with the withdrawal of aid over the issue.

Human rights organization Amnesty International welcomed the vote as a "historic resolution and a major step towards the abolition of the death penalty worldwide."

"Although the resolution is not legally binding on states, it carries considerable moral and political weight," Amnesty International said in a statement.

China, Iran, Iraq, the United States, Pakistan and Sudan account for about 90 percent of all executions worldwide.

According to Amnesty, 133 countries have abolished the death penalty in law or in practice -- a statistic that opponents of the resolution contested. They said more than 100 countries retained capital punishment on their statutes, even if they did not all use it.

Botswana's representative Rhee Hetanang said the death penalty was a domestic criminal justice issue. "No amount of intimidation and bullying will cause us to go against the expressed wish of the people of Botswana," he said.

Egypt and Iran were among countries proposing a last-minute amendment that would have urged member states "to take all necessary measures to protect the lives of unborn children."

The United States, Syria, Saudi Arabia, Zimbabwe were among the countries voting for that amendment. It was rejected 83-28 with 47 abstentions.

"We are in agreement with the view expressed in this amendment that the lives of the unborn deserve the strongest protection, and we agree that countries that advocate for the abolition of the death penalty should be at least equally scrupulous in showing concern for innocent life," U.S. representative Joseph Rees said.

The United States abstained in a vote on a more strongly worded amendment that would have said abortion was only admissible in necessary cases, "in particular where the life of the mother and or the child is at serious risk."

© Reuters 2007. All Rights Reserved.

Conspiracy to export monkeys for profit: NGO

Conspiracy to export monkeys for profit: NGO

Bede Hong | Oct 19, 07 7:28pm

A wildlife conservation group wants the Anti-Corruption Agency (ACA) to look into alleged business dealings involving a minister and a former director-general where wild monkeys are being exported for profit. The group said the ACA must investigate Environment Minister Azmi Khalid (photo) and former Department of Wildlife and National Parks DG Musa Nordin, who retired last October, for abuse of power. Malaysian Animal Rights and Welfare Society (Roar) believes that a company linked to the two is the beneficiary of a export programme created under the guise to trim down the population of long-tailed macaques in Peninsular Malaysia. Roar submitted a memorandum to ACA office in Kuala Lumpur today calling for investigation into the matter. Accompanying the group were DAP and PKR officials. Roar consists of Selangor Society for the Prevention of Cruelty Against Animals (SSPCA), Malaysian Animal Assisted Therapy for Disabled Association, PKR and Malaysian Association for Responsible Pet Ownership. Motivated by profit “We are angry that the animals are being exploited by the very ministry tasked to protect them,” Roar pro-tem chairperson N Surendran told a press conference today. Surendran said ACA should investigate whether a recent lifting of the ban on the export of macaques was motivated by profit. In June, against international convention, the Natural Resources and Environment Ministry lifted a 23-year ban on the export of macaques, saying there is an overpopulation of the species. In July, Roar submitted a memorandum to the minister demanding the reinstatement of the ban and a halt on all pending macaque shipments. They also lodged a police report against Azmi and ministry officials for violating Section 92(f) of the Protection of Wildlife Act 1972. The police forwarded the case to the ACA last month, saying it has elements of abuse of power. “We found this very suspicious. All animal rights groups and wildlife experts found it very strange. The question is why the ministry is bent on exporting these monkeys? I will give you the answer right now... money,” said Surendran. “The ministry wants to make money out of it, and the ministry is allowing a private company to make money out of it. The question here is why is the Malaysian environment and natural resources being plundered in order to profit some company,” he said. RM250 for one monkey Surendran referred to a news article published by the Star on Sept 11, where Musa admitted he was “indirectly involved” in the monkey trade. “We have information that the decision to export the monkey when Musa Nordin was still the DG. We have information that there is connection with the company. He has close contacts with the Department of Wildlife. Clearly there was some hanky panky going on there with elements of corruption,” he said. According to Roar, each exported monkey brings in RM250. The macaques are exported, mostly to China, for animal testing and vivisection. Roar alleged that the export contract of over 20,000 monkeys annually was given by the Environment Ministry to a company, Sunny K-9 Sdn Bhd. A check revealed that the company, based in Ipoh, is a dog-training academy. Surendran also disagreed with the Environment Ministry figures that there are over 250,000 monkeys living near urban centres and over 500,000 monkeys living in the jungles. “We question the figures because experts found that it was not possible to calculate the precise number of monkeys through the ministry’s methodology. I feel the figures are grossly over-estimated to justify the lifting of a ban,” said Surendran. Surendran said the ministry should pursue alternative ways to reduce the macaque population including sterilisation, relocation and humane culling.

Death Penalty: Need to find out why people kill (malaysiakini - letter)

Death penalty: Need to find out why people kill

Charles F Moreira Oct 17, 07 4:00pm

I refer to the Malaysiakini letter, Death penalty will not save our little ones. Perhaps the death penalty, which we already have and which will most probably be applied to those convicted of causing Nurin Jazlin Jazimin’s death will not deter such things from happening in the future but Amnesty International's solution, which reads like gobbledegook to me, misses issues of the value systems in our current society leading people to commit such heinous, perverted acts. Rather sociological studies should be done to understand why people do such things, including the stresses and alienation of urban life, acquisitive culture, the influence of pornography through the Internet and pirated DVDs and so on, and action needs to be taken to address these, even though it may mean a whole rethink of our development policy and competitive, capitalist society. Of course, achieving such changes under the present government may be impossible, so perhaps we need a different government, which will reverse the situation and move back towards a more humane and caring society of the past.

Death penalty will not save our little ones (malaysiakini-letter)

Death penalty will not save our little ones

Shanon Shah Mohd Sidik Oct 11, 07 3:21pm

Amnesty International Malaysia is outraged by the brutal murder of eight-year-old Nurin Jazlin. We offer our deepest condolences to her family members and loved ones. This disgusting and terrifying crime is a sad reflection of how unsafe our country really is for girls. It is depressing, but the reality is that Nurin is just the latest in a series of girls who have died as a result of sexual abuse and violent crimes. Many in this nation have not even fully recovered from the brutal rape and murder of 10-year-old Nurul Huda Abd Ghani in Johor Bharu back in January 2004. Public outrage in this matter is completely understandable. However, calls for the death penalty to be applied to the offenders of this crime are misplaced. In fact, countless men and women have been executed worldwide for the stated purpose of preventing crime, especially the crime of murder and sexual violence. Yet Amnesty International has failed to find convincing evidence that the death penalty has any unique capacity to deter others from commuting particular crimes. A survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, concluded: ". . .it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment." However, Amnesty does hold that governments have the responsibility to ensure the safety of everyone who lives in the country. According to international standards, governments must first of all respect people's human rights – in other words, governments themselves must not violate human rights. Governments must also protect peoples' rights – ensuring that other people or bodies do not abuse people's rights. And lastly, governments must fulfil human rights, making them a reality in people's everyday experiences. In the case of children, the Convention on the Rights of the Child (CRC), a legally binding UN treaty that Malaysia has ratified, clearly states in Article 34 that: "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse." Article 37(a) of the CRC states: "No child shall be subjected to torture or other cruel, inhuman or degrading punishment." The state might argue that it is impossible to prevent violations against girls, especially if they are perpetrated by individual members of society. But this is precisely where preventing harm towards all potential victims requires the strengthening of the general judicial and administrative framework, including effective education for everyone on gender and human rights. At the same time, law enforcement officials need to be sensitised on the specific nature and impacts of violence against women and girls. This principle is called due diligence on the part of the government, and it is enshrined in the CRC and the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw), another legally-binding UN treaty ratified by Malaysia. Amnesty International Malaysia would like to see the Malaysian government and the police force being more proactive in addressing these concerns, in consultation with women's organisations, shelters, and individual men, women and girls from the public. The nation mourns Nurin Jazlin. Let us never have to mourn another girl child in these circumstances ever again. The writer is executive director, Amnesty International Malaysia

‘Spare the whip, it’s cruel’

Human rights and the law: ‘Spare the whip, it’s cruel’

Contributed by Renuka T. Balasubramaniam

Thursday, 27 September 2007 09:00am

©The Sun The Malaysian Bar at its AGM last March passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment. Human rights lawyer Renuka T. Balasubramaniam produces compelling and cogent reasons why all Malaysians should declare whipping barbaric. “I got six. It was just incredible pain. Burning – like someone sticking a hot iron on your bum. That’s the sort of feeling. Pain – just ultimate pain. The strokes come 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. There were three lines of raw skin with blood oozing out.” – New Zealander Aaron Cohen who received six strokes in 1982 for drug trafficking. AMONG the many laws of Malaysia, 29 Acts of Parliament – such as the Dangerous Drugs Act, Immigration Act, Moneylender’s Act and the Child Act – and a further 48 sections under the Penal Code call for the punishment of rotan or whipping. Some offences provide for the maximum number of 20 strokes. The recent YouTube posting depicting actual footage of a prisoner being given the maximum 20 strokes of the rotan by Malaysian prison authorities caused worldwide revulsion. The bloods-pattered video was deemed so horrific by the YouTube user community that it was “removed due to terms of use violations”, while a second similar video carried a condition that one would first have to declare that he/she is 18 or older by logging in or signing up. Readers are hereby challenged to watch it in its entirety, and see how they feel about whipping afterwards. International condemnation Amnesty International and the UN Human Rights Committee have condemned whipping and other forms of corporal punishment as cruel, inhumane and degrading punishment and contrary to human rights law. Law Minister Datuk Seri Mohamed Nazri Abdul Aziz even relied on this international condemnation of whipping when he explained in Parliament during the debate on the Anti-Trafficking Bill that Malaysia, having aspirations of being a good UN citizen, had purposely excluded whipping as a form of punishment from the Bill. The UN Committee Against Torture has called for the abolition of corporal punishment and the UN Special Rapporteur on Torture has stated that “corporal punishment” is inconsistent with the prohibition of torture and other cruel, inhumane and degrading treatment or punishment. Accordingly, the Malaysian Bar, at its AGM earlier this year, passed a resolution declaring that whipping is cruel, inhumane and degrading and called for the abolition of the sentence in any legislation, and particularly against offenders of the Immigration Act. The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in our prisons and detention camps. On top of this, migrant and refugee communities, by virtue of the penalties under the Immigration Act, are the primary victims of corporal punishment. Oftentimes the punishment of caning, although discretionary, is handed down, as a deterrent. I have observed first-hand that it is not uncommon for judges to sentence immigration offenders to at least two strokes each. In deciding that whipping must be abolished, the Malaysian Bar also considered it from a larger perspective and took the view shared by many, that because it is cruel and inhumane, no one should have to bear that suffering, and therefore called for the abolishment of caning for all offences. Administering cruelty The person administering the sentence is in fact administering cruelty on another human being under the guise of carrying out orders. These orders are, in turn, derived from a policy that disregards the universally accepted spiritual principle of non-violence. As a member of the human race, I believe I am duty-bound to do what I can to subvert the continuance of these wrongs against humanity. I believe that one day, humanity can agree that the taking of life or causing grievous bodily harm intentionally and under any circumstances, especially via sentencing principles, is wrong. Deterrent? There are those who say that the fear of being caught and subject to penal consequences deters crime. But a recent study on the deterrent effect of longer prison sentences by David S. Lee of Columbia University and Justin McCrary of Michigan University showed that the threat of increased penalties does not seem to alter criminal behaviour. Their findings suggest that potential criminals do not think at all of the consequences of their actions before committing crimes, thereby negating the effect of harsher criminal sanctions. The Ouimet Report by the Canadian Committee on Penal and Correctional Reform published in 1969, had this to say: “Traditional prisons tear the individual away from his duties towards his family, his community, his education and his work and isolate him in an abnormal community where he is exposed to a code of values established by criminals. Opportunities to make decisions, which are such an important factor in social rehabilitation, are extremely rare. It is difficult to imagine a system less conducive to life in society than traditional prisons.” Add to this the humiliation of being whipped, and one cannot possibly derive a conclusion that punishments of imprisonment and whipping are for the benefit of ‘rehabilitation’ and ‘deterrence’. When the death penalty was abolished in the United Kingdom many decades ago, it became evident from studies that the number of murders did not increase. It remained more or less constant. This is frequently cited as authority against the death penalty and on the subject of how deterrence simply does not work. Dysfunctional personalities I hold the opinion that criminal tendencies – all of them – are symptoms of dysfunctional personalities. The cause of these dysfunctional personalities usually can be simplified to inadequate or non-existent parenting and the absence of love or compassion in their lives. This we can imagine is a reason the Ministry of Women, Family and Community Development is attempting to promote the idea that the family unit is core in the development of the community. I really believe that we cannot rid society of its evils, but we can substitute evil with values that are true, good and beautiful. Public opinion Often, the principles of sentencing seek to reflect public opinion. Realistically, if the education, socio-economic background and even the self-sufficiency of the public today were to be considered as a whole, the public would be represented by your average lower-middleclass man in the street with not much education, little economic influence, little political influence, little self-confidence and fear-based reactions to all events occurring around him. He has a very limited perspective of his environment, and out of this ”ignorance“’ he may seek to cling to what he knows and believes as the only way of protecting himself. Thus ”public opinion” would be based on the lowest common denominator. This is evident where “public opinion’ on whipping is based on the principles of retribution, ”teaching a lesson” and using fear tactics to ensure that society toes the line. So, instead of reflecting public opinion, members of the Bar are taking the initiative to actually lead public opinion by lobbying the fact that the public interest would be best served if the offender is induced to turn from criminal ways to more wholesome living. The Malaysian Bar has, with its resolution, avowed to lead public opinion by rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation. Although revenge and retribution in individuals may be understandable, society as a whole should not operate on such base principles because it cannot be forced to react through legislation, to the strong feelings of victims of crime. To this end, prison rehabilitation programmes should be revamped and tailored toward psychological counselling, encouraging a convict into self-examination through which it is hoped he may gain insight into his actions. In the example of the brutal rapist, society should harbour the faintest hope that some of these offenders, upon undergoing rehabilitation, may experience a desire to make amends as a result of the compassion and counselling he has received and thus be motivated to do something good for society or his family upon his release. Conclusion Whipping has failed as a retributory and deterrent sentence, just as strict and painful discipline on children inevitably results in their becoming more rebellious, almost as if to validate the opinion of their parents that they are “naughty” kids. It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard. Renuka T. Balasubramaniam is a member of the Human Rights Committee (HRC), Bar Council Malaysia. For information on the work of the HRC, see www.malaysianbar.org.my/hrc. Complaints of rights violations may be forwarded to rezib@malaysianbar.org. my for consideration of the committee. However, we make no assurance that all cases will be adopted for action.

Animal rights groups protest against dog catching competition

Animal rights groups protest against dog catching competition

Wednesday, 12 September 2007, 07:50am

©The Star by Stuart Michael and Geraldine Jeremiah Photo by Stuart Michael About 50 people comprising representatives from various animal rights organisations and animal lovers went to the Selayang Municipal Council (MPS) in Bandar Baru Selayang on Monday to pass a memorandum to its president Zainal Abidin Azim. The memorandum called for an immediate end to the dog-catching competition organised by the council. Holding placards that condemned cruelty to animals, the group led by Society for the Prevention of Cruelty to Animals (SPCA) chairperson Christine Chin, waited for Zainal to accept the memorandum but since he was on leave, MPS public relations officer Helda Syima Abu Talab accepted it on his behalf. Upon receiving the memorandum, Helda assured the group that it would be handed over to Zainal and a meeting would be arranged soon with SPCA. Despite it being a peaceful gathering, some outsiders were seen shouting insults at the group in order to provoke them, but after delivering the memorandum, the group dispersed quietly. Chin said that apart from requesting for an end to the competition, the memorandum also contained request for highly effective spaying or neuter initiatives and fines against irresponsible pet owners who abandon their pets. “We also want an implementation of a smart, humane and effective legislation to promote responsible pet ownership,'' she said. Apart from Chin, the memorandum was also signed by Malaysian Animal Rights and Welfare Association president N. Surendran, Petpositive president Anthony Thanasayan and Malaysian Association for Responsible Pet Ownership president Dr John Satyamoorthy, who were also present at the gathering. Asked about Rawang assemblyman Datuk Tang See Hang's proposed meeting with SPCA, Chin said that she had not received any letter or call from Tang's office about the meeting. Dog handler and professional groomer Noraini Rozaiti Mahamud, 35, when questioned on the issue of the strays posing a threat to residents said that dogs reacted aggressively only when they were threatened and dogs were not likely to attack unprovoked. “This competition would inherently attract over-zealous residents without experience in handling dogs. This could result in someone getting injured and the dogs being blamed and crucified for attacking a person,'' she said. Retired Selayang Hospital head nurse Kamala Chelliah, 57 said that she read about the Dog Catching Competition in the papers and turned up to show her dissatisfaction. Kamala felt that the authorities could come up with a better solution to address this matter.

Torturous wait on Death Row

Torturous wait on Death Row

Baradan Kuppusamy Sep 4, 07 12:19pm

"Hang me or release me but don't leave me to suffer a slow death," is the cry of anguish from Baha Jambol, 45, who has been suspended helplessly on Death Row for nine long years, unable to appeal the sentence. He was sentenced to death in April 1998 for being in possession of 50kg of cannabis. He is unable to appeal because the trial judge has failed to put pen to paper and give the grounds sentencing him to ‘death by hanging’. Jambol's desperate predicament is not unique. It is the result of a serious flaw in Malaysia’s criminal justice system. "Without a written judgement, we can't appeal," Karpal Singh (photo), Jambol's lawyer and prominent human rights campaigner, told IPS. Jambol, a driver, was at the wheel of a car when the cannabis was found inside. But the car owner who was with him at the time was acquitted. The scandal of the ink-shy judge, who is loath to put his judgments on paper, has shocked the nation and led to renewed demands for a swift end to the death penalty. "This case is a severe travesty of justice. Jambol has been languishing on Death Row for nine years… what can be crueller than this? I urge the government to immediately abolish the death penalty and end the misery of people on Death Row," said Karpal. Others too wait in great misery in the country's overcrowded jails for the same reason. Aziz Sharif, 28, was sentenced to death in 2001 for murdering his girlfriend, a conviction that his lawyer Harbahjan Singh said is deeply flawed. Six years on, Harbahjan is still blocked from filing an appeal because there is no written judgement. Aziz is suffering severe mental torture while waiting to know his fate, according to his family, who are poor rice farmers from Negeri Sembilan. According to a New Straits Times report, they have appealed to the court numerous times to get the judge to write his judgment but without success. "I wrote five letters to the court over the matter and sadly they did not have the decency to reply to any of the letters," Harbahjan told the paper. Haszaidi Hasan, also sentenced to death for drug trafficking in 2001, is another case in point. Denial of justice Opposition politicians and rights activists are now pressing for action against Malaysia's indolent judges. "Their lackadaisical attitude has hamstrung the administration of justice to people who need it the most," DAP lawmaker M Kulasegaran said. "If the judges had done their basic duties the convicted persons could have speedily filed their appeals and probably been acquitted. A long delay is a mark of a poor criminal justice system.” He urged the government to set free Death Row inmates caught in this predicament, adding that “a more lasting and more humane solution is to abolish the death penalty". The cases have also been taken up by the rights group Malaysians Against the Death Penalty. "Prisoners facing capital punishment are under severe pressure if their appeals are delayed," said co-director and lawyer Charles Hector. "Judges should understand the tremendous pressure the death penalty generates… delaying the right to appeal is an act of utmost cruelty. Family members are also left emotionally drained by the uncertainties and the long meaningless delays. It is an intolerable form of torture. "This tragic delay is another reason to review the death penalty. We demand an immediate moratorium on all executions pending the abolition of the death penalty in Malaysia." Amnesty International also wants an immediate moratorium on all further executions, while the Bar Council has asked lawyers to report back cases where clients are enduring a "slow death" because of long-delayed or non-existent written judgements. The Council plans to present Chief Justice Ahmad Fairuz Sheikh Abdul Halim with a list of serious cases. The hope is that offending judges will be penalised, a sanction that might finally end such torment. Malaysia imposes the death penalty for a raft of offences, from drug trafficking (15gm of heroin and 200gm of cannabis) to poisoning the water supply. Murder, possession of firearms and treason carry a mandatory death sentence. More than 1,000 persons have been executed since independence in 1957 and some 300 are currently awaiting execution, many of them Acehnese from Indonesia convicted of trafficking cannabis. - IPS

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.