MADPET welcomes move towards abolition of mandatory death penalty for drug offences

Media Statement – 23/10/2012

MADPET welcomes move towards abolition of mandatory

death penalty for drug offences

MADPET (Malaysians Against Death Penalty and Torture) welcomes the Malaysian government move to abolish the mandatory death penalty for drug trafficking, and hope that this is but a start that will end with a total abolition of the death penalty in Malaysia. We also call for an immediate moratorium on all executions pending abolition especially the lives of about 640 people on death row in Malaysia currently for drug offences.

Minister in the Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.(Star,21/10/2012, Death penalty may be scrapped for drug offences). It is hoped that this indication becomes reality soonest, and that Malaysia would also renew its efforts to save the lives of about “… 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China, Venezuela and Peru..”

The Malaysian government also did acknowledge in the past(Star, 1/11/2009, Malaysian girls easily duped), that many of those who ended up being sentenced to death for drug trafficking were generally ‘drug mules’, and not the real drug traffickers.

Malaysia’s past efforts to save lives of Malaysians sentenced to death, including that of young Sabahan, Yong Vui Kong, who was convicted by the Singaporean courts for drug trafficking and sentenced to death, is most appreciated. The removal of the mandatory death penalty for drug trafficking from the Malaysian law, would certainly add greater credibility and strength to Malaysia’s plea for clemency for its citizens on death row for drug offences in other jurisdictions.

The Malaysian Dangerous Drugs Act 1952, in particular section 39B provides that any person involved in trafficking of drugs shall be guilty of an offence against this Act and shall be punished on conviction with death. The judges and courts, by reason of the mandatory sentence, are deprived of the option of imposing a lesser sentence, and MADPET believes that this is very wrong. We agree with  what the Human Rights Commission of Malaysia (SUHAKAM) stated, amongst others, that the abolition of the mandatory death sentence will also restore to the judiciary the liberty and discretion to determine punishment based on the gravity of the offence as it should always be.

There are presumptions in the Malaysian Dangerous Drugs Act 1952 Act, amongst others, that one ‘…shall be presumed, until the contrary is proved, to be trafficking in the said drug...’ if one is found in the possession of certain amounts of certain drugs. By reason of this legal presumption, the onus of proving one’s innocence then shifts to the accused, and this not only onerous but also unjust. This is also contrary to the normal rules of criminal justice whereby the onus of proving one’s guilt beyond reasonable doubt is always be with the prosecution. We urge the Malaysian government remove these unjust legal presumptions, and return the burden of proving the elements that constitute the offence to the prosecution especially for the offence of drug trafficking.

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

Charles Hector

for Malaysians Against Death Penalty and Torture (MADPET)

Maybe at last no more death penalty for drug mules

Below, a New Straits Times Editorial of 23/10/2012. This is a mainstream newspaper, which is perceived to be owned/controlled by those alligned with the ruling parties

Amendments are afoot to spare the death sentence on on some drug offences

TWO years ago, when Wisma Putra intervened to seek clemency from the Singaporean government on behalf of Yong Vui Kong, a young Malaysian convicted by the Singaporean courts for drug trafficking and sentenced to hang, the irony of the situation did not elude anyone. While the Malaysian government, political parties and non-governmental organisations were clamouring to save the life of one citizen incarcerated on death row in the neighbouring country, the lives of hundreds of Malaysians hung similarly in the balance on death rows here at home. The attempt to seek a commutation for Yong was an indication of the value of even one citizen's life; but that the same value was not accorded to citizens on this side of the border smacked of hypocrisy.

But, thanks to some 250 other Malaysians suspected of being drug mules and detained by foreign nations that actively practise capital punishment, the lives of about 640 people on death row in Malaysia for drug offences could change for the better. Previously, the government's response to such situations has been to promise to see to it that the accused has fair legal representation; other than that, it would not interfere in another country's application of its domestic law. However, the increase in such occurrences, coupled with tearful pleas from broken-hearted parents of what are mainly young and foolish mules, seem to have necessitated a change of response. But, obviously, Malaysia can only plead for leniency or mercy if it proves itself to be just as lenient or merciful. Hence, the move to reform drug penalty laws on the domestic front.

It is good that we are moving one step closer to removing the death penalty for drug mules, with discussion in government for a suspension of executions until the matter is settled. If the amendment is adopted, current death row inmates will have the opportunity to apply for re-sentencing, to which the government is recommending a minimum of 30 years. But, ideally, the death penalty should be abolished altogether, and not just in cases that involve low-level drug mules. For, while drugs remain a scourge on society and a concerted effort must be made to fight the drug war, there is still no scientific evidence that the death penalty works as a deterrent to drug trafficking or the huge business of its production and sale. As the experience of many countries, including Malaysia, has shown, most of those caught under draconian drug laws are not the big-timers the laws are meant to target. The taking of a human life by the state in such offences should thus be carried out as sparingly as possible. - New Straits Times, 23/10/2012, Editorial, Stay of Execution

Death penalty for killing a burglar that broke into your home unwarranted

Some thief breaks into your home, and in the ensuing scuffle ends up death. Is it right for you to be charged with murder? I think not...

PETALING JAYA: Several groups are calling for a judicial review into the death sentence imposed on two Indonesian brothers charged with killing a burglar.

National Crime Prevention Foundation vice-chairman Tan Sri Lee Lam Thye said the sentence was too extreme and would have implications on the way people react to situations that involved their own personal safety and security.

On Thursday, a High Court in Shah Alam sentenced two brothers to death for the murder of a 26-year-old man who had broken into a shophouse in Sepang on Dec 3, 2010.

The burglar had entered the shophouse via a ceiling and fell into the room where the brothers and a Malaysian co-worker were sleeping.

While the Malaysian fled to call the police, the two brothers dealt with the burglar, who later died due to blunt force trauma.

Referring to the case, Lee said the incident involved someone who had gained illegal entry into a building and was motivated by a criminal intent.

“In such cases, it is normal for the occupants to react spontaneously to restrain an intruder who may pose a danger to them,” he said.

Bar Council vice-president Christopher Leong also said the death sentence was unwarranted.

“People have a right to self defence in life-threatening situations,” he said.

However, he stressed that people should not take the law into their own hands.

Leong also said the Bar Council was against the death penalty.

Taman Gasing Indah Rukun Tetangga chairman Eric Chew described the judgment as shocking.

“This was a hot topic in the coffeeshop this morning. People feel disturbed that their right to self defence has now come into question.”

Taman Tun Dr Ismail Resident Association chairman Mohd Hatim Abdullah also said a judicial review was necessary in view of the need for self-defence.- Star, 20/10/2012, Groups: Review death sentence

Death penalty may be scrapped by Malaysia for drug offences

MADPET (Malaysians Against Death Penalty and Torture) reiterates its call for the abolition of the death penalty. It is good that the Malaysian government is seriously looking into the 'possibility' of withdrawing the mandatory death penalty for drug mules.

In Malaysia, when you are found to be in possession drugs above a certain weight, you are presumed in law to be a 'drug trafficker', when the fact of the matter is that these persons are more likely just 'drug mules', and in some cases were even ignorant of the fact that they had any drugs in their possession.  

When drugs are found in your car, your room or in your possession, the law presumes that it is your drugs, and you then have to prove that it is not yours. How exactly would you be able to prove that the drug that was found in your car boot or under your bed was not yours? After all, it could very well have been placed by some other... 

Our current laws concerning drug trafficking is unjust as it relies very much on legal presumptions, rather than placing the burden of proof beyond reasonable doubt of all elements that constitute the crime on the prosecution as is done for almost all other crimes. 

Mandatory sentences remove from the judges the discretion when it comes to sentencing, which normally depends not just on the proof of guilt but also other factors and circumstances. A plea of guilty by the accused person normally would result in reduction of the sentence by a third - but alas, when the only available sentence is a mandatory sentence, more so the death penalty, these factors that a judge will normally take into account in sentencing becomes irrelevant.

Mandatory death penalty, as a first step, must be removed from our statute books. Legislative can fix minimum and/or maximum sentences, but the didiscretion as to sentencing must always rest with the judiciary.   

PADANG RENGAS: The Government is looking into the possibility of withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.

Minister in the Prime Minister's Department Datuk Seri Nazri Aziz said the Attorney-General's (A-G) Chambers would study the suitability of the move.

“One of the main reasons is because there are close to 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China, Venezuela and Peru.

“It is difficult to justify our appeal to these countries not to hang them when our own country has the mandatory death sentence,” he said in a press conference in Sauk, near here yesterday.

Convicted drug traffickers in the country now face the mandatory death sentence under Section 39B of the Dangerous Drugs Act.

Nazri, who is also the de facto Law Minister, said he would need to seek Prime Minister Datuk Seri Najib Tun Razak's view before discussing the suggestion with the A-G.

“If the Government is going ahead with the suggestion, we need to have a moratorium on death sentences from being carried out for those who are convicted in Malaysia.

“We are considering an alternative of 30 years' jails or more and allowing judges to have discretionary power under the Act,” he said.

On the issue of porn blog duo Alvin Tan and Vivian Lee, Nazri said he would refer the matter to the A-G's Chambers.

 

“We need to look into what Malaysian laws they have broken. But also we need to remember that anything that is morally wrong does not necessarily mean that it is legally wrong.

“We definitely do not condone the act. This is what happens when there is absolute freedom of expression,” he said. - Star Online, 21/10/2012, Death penalty may be scrapped for drug offences

Indonesia may be moving away from death penalty

Indonesia Not Alone in Death Penalty Reticence: Ministers
Dessy Sagita | October 17, 2012

The government insists drug traffickers will still be subject to the death penalty, but drug couriers are more likely to face lengthy prison terms. (AFP Photo) 

President Susilo Bambang Yudhoyono’s recent decision to overturn the death sentence handed down to a drug convict is part of a wider push away from capital punishment, ministers said on Tuesday.

Foreign Minister Marty Natalegawa said that many countries are imposing lengthy prison terms rather than death sentences for serious cases, even if the death penalty is still in place, as it is in Indonesia.

He said the Indonesian government is also moving in this direction, noting his own ministry’s ongoing campaign to have the sentences of Indonesians on death row in other countries commuted on humanitarian grounds.

“The policy of commuting a death sentence for a drug crime is not something that happens just in Indonesia,” he said. “This policy is also practiced in other countries, and Indonesians are among the beneficiaries of such clemency.”

The minister’s statement follows public criticism of the president’s decision earlier this month to commute the death sentence of Deni Setia Maharwa, a convicted drug mule, to life in prison.

Politicians and anti-narcotics activists condemned the move as undermining the fight against drugs, while the National Narcotics Agency (BNN) questioned the Yudhoyono administration’s commitment to the campaign.

Marty pointed out that there had been a “sharp increase” in the number of countries abandoning the death penalty.

“Of the 193 countries in the United Nations, 140 have either phased out the death penalty or imposed a moratorium,” he said, adding that Indonesia was one of 58 countries that still had capital punishment.
No clemency for traffickers

Justice and Human Rights Minister Amir Syamsuddin, who had previously justified the clemency for Deni on the grounds that he was a drug mule and not a trafficker, on Thursday said the government would never grant clemency to traffickers or producers.

“As soon as one of these people files a request for clemency, it will be turned down immediately,” he said, adding that between 2004 and 2011, there had been 128 requests for clemency submitted to the president by drug convicts, of which 109 were rejected.

“The 19 requests that were granted included 10 for juvenile offenders facing two to four years and one was for a blind person facing 15 years, and they all received sentence cuts,” Amir said.

“Only four requests were granted for convicts sentenced to death. They included three Indonesians and one foreign national, and in all those cases they were drug couriers, not traffickers.”

He cited Deni as one of those who received clemency, saying the considerations for his sentence being commuted included the fact that he agreed to transport 3.5 kilograms of heroin to London only in order to be able to pay off a car loan and support his family.

Djoko Suyanto, the coordinating minister for political, legal and security affairs, agreed that drug mules like Deni should not be lumped in with major drug traffickers and producers like Hengky Gunawan, who it was recently revealed had his death sentence cut to 15 years in prison by the Supreme Court.

“The president does not grant clemency to traffickers, so don’t mix it up with the Supreme Court’s rulings,” he said.

Hengky, who was convicted for running a major ecstasy production and distribution ring from Surabaya, had his sentence commuted after an appeal to the Supreme Court, which argued that giving him the death sentence was a violation of his Constitutional rights.

Djoko acknowledged that the Supreme Court’s recommendations on requests for clemency were considered by the president when deciding whether to approve them.

Long lag

Amnesty International notes that at least 100 people remain on death row in Indonesia, although no executions have been carried out since 2008.

In that year, 10 people were executed — including three terrorists convicted for the 2002 Bali bombing — compared to 11 executions in the preceding decade. Ten people were also sentenced to death in 2008. Since then, however, the number of death sentences handed down has slowed to a trickle.

Attorney General Basrief Arief said the four-year break since the last execution did not mean that the death penalty had been put on hold. He said convicts could only be executed once they had exhausted all legal recourses for clemency, and this legal process accounted for delay between sentencing and convicting.

He cited the final legal avenue, a case review with the Supreme Court, as consuming the most time. It was through such a case review that Hengky, convicted in 2007, had his sentenced commuted.

“There’s no time limit for a case review to be heard,” Basrief said. “We’re currently discussing putting a limit in place of three, six or 12 months, for instance, just so that this avenue of legal recourse is not misused to buy time for the convict.” - Jakarta Globe, 17/10/2012/ Indonesia Not Alone in Death Penalty Reticence: Ministers

930 on death row as of Aug 31, says Abu Seman

930 on death row as of Aug 31, says Abu Seman 

10 October 2012 

KUALA LUMPUR: A total 930 death row prisoners were in jails in the country as of Aug 31, their cases pending appeal in the courts and a decision of the Pardons Board, the Dewan Rakyat was told today. 

Deputy Home Minister Datuk Abu Seman Yusop said these prisoners had been convicted of various offences, among them drug trafficking, murder, kidnap and offences related to firearms and national security. 

He was replying to a question from Karpal Singh (DAP-Bukit Gelugor) on the latest statistics of death row prisoners in the country. 

Abu Seman said the appeals of 725 of the prisoners were at the appeal process in the courts while the rest were awaiting a decision of the Pardons Board. 

 He said that based on the appeals between 2001 and Aug 31 this year, 41 death row prisoners were pardoned, with six having their death sentence commuted to life imprisonment, 33 to set terms of imprisonment, one released earlier and another released immediately. 

Replying to a supplementary question from Karpal Singh, Abu Seman said the government had no plan to dispose of the mandatory death sentence.

 To another supplementary question, from Mohd Nor Othman (BN-Hulu Terengganu), he said the government had no plan to bill costs to repeat offenders as the number of such offenders was small. -- BERNAMA - New Straits Times, 10/10/2012, 930 on death row as of Aug 31, says Abu Seman

Police Brutality & Killings Public Forum - 26/9/2012, 8pm, KL

Archbishop hails changes to death penalty

Archbishop hails changes to death penalty

Archbishop Nicholas Chia has welcomed proposed changes to the death penalty law in Singapore.

“The changes to the death penalty law are a significant step in the right direction,” he said in a statement to CatholicNews.

“The Church upholds that every human life is precious and must be protected from conception to death. Society today should be moving towards more humane ways of restoring justice where there is the possibility of reforming and changing the offender,” he said.

Under changes proposed in Singapore’s parliament on July 9, mandatory death sentences will no longer be passed for certain instances of drug trafficking and murder.

The courts will be allowed to decide on a death sentence or life imprisonment in these cases.

The Catholic Medical Guild (CMG), in a statement to the CatholicNews, said the amendments are “a move in the right direction towards a more just law concerning penalties for drug trafficking and murder”.

The CMG added that in his encyclical, Evangelium Vitae, Pope John Paul II has shown that “the ‘gospel of life’ is indeed at ‘the heart of Jesus’ message’ and has repeatedly defended the sacred value of human life ‘from the very beginning until its end’”.

According to the Catechism of the Catholic Church, the Church’s traditional teaching “does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor”.

Today, however, “because of the possibilities which the state has for effectively preventing crime”, such cases are “very rare, if not practically non-existent”.

Pope Benedict XVI, during a general audience on Nov 30 last year, encouraged countries around the world to end the death penalty.

Addressing a group of pilgrims gathered in Rome for an international conference on the topic, the pope said he hoped their deliberations “will encourage the political and legislative initiatives being promoted in a growing number of countries to eliminate” the penalty.

The conference was organised by the Italian-based Sant’Egidio Community under the theme, No Justice without Life.

The pope told the group that he applauded “the substantive progress made in conforming penal law both to the human dignity of prisoners and the effective maintenance of public order”.

It has been estimated that around a third of the world’s countries use the death penalty as part of their legal code.- TheCatholicNews - JULY 29, 2012, Vol 62, No 15

Death penalty not deterring drug trade

See also :Maintaining the death penalty is against Malaysian culture and values

 Death penalty not deterring drug trade

Patrick Lee | March 19, 2012 

 

More people have been arrested over drug dealing, despite the shadow of the mandatory death penalty hanging over their heads.

KUALA LUMPUR: Malaysia’s mandatory death penalty on drug-related crime does not appear to have stopped drug dealers .

In fact, it was the reverse: there has been a steady increase over the last three years, according to a reply in Parliament.

In a written answer to Bukit Gelugor MP (DAP) Karpal Singh, Home Minister Hishammuddin Hussein said that 3,845 people had been arrested for drug dealing in 2011.

“Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952 for the past three years (2009 to 2011) have shown an increase,” he said.

According to him, in 2009, 2,955 people were arrested under this section. In 2010, 3,700 people were arrested.

Karpal had asked if the 1983 amendments to the Act – which would slap serious drug offenders with capital punishment – had been effective in reducing drug-related crime.

To this, Hishammuddin said that the increase was caused by the trade’s ability to make a lot of money quickly; globalisation, creating a borderless world, which opened up a space for drug-dealing; and the “easier process” in which synthetic drugs were made, through the availability of chemical formulas and ingredients.

Previously, the Bar Council said that 32 countries around the world had death penalty for drug-related crime.

Of this number, 13 of them still enforced the mandatory death penalty, which included Malaysia.

The Bar Council’s president Lim Chee Wee said that most drug traffickers and dealers were “low-ranking drug mules”, who were the easiest (in the trade) to apprehend.

He added that there was no proof that the death penalty helped to cut down on drug-related crime. Free Malaysia Today News, 19/3/2012, Death penalty not deterring drug trade

Maintaining the death penalty is against Malaysian culture and values

In Malaysia, when a person is sentenced to death, most of the time it is not highlighted in the media or by the government. When an execution takes place, there is no media coverage before the event, and certainly also no highlighting of it when it happens.

The figures and data of persons sentenced to death - or executed is also not highlighted. in fact, you do not even find it in the web pages of the Attorney General's Chambers, the Police or even the Home Ministry.

If it is meant to act as a deterrent, then logically, the government must act in such a way - to show people that they really will be punished in that way. In comparison, when it comes to death caused by road accidents, these are highlighted in the media, and there are even notice boards putting fear into people to drive carefully in accordance with the law, which states the number of deaths in these accidents.

Hence, the death penalty, the Barisan Nasional government argues is a deterrent - but alas, their actions do not support this. The failure to highlight these sentences, executions and necessary statistics to put in the fear in others not to commit the crime maybe because the Malaysian government itself is embarrassed of this death penalty in the laws. Remove it then - what is the BN government waiting for.

Now, the only way to get clear statistics about the death penalty is through questions asked in Parliament - and some good MPs and Senators do take the trouble to ask these questions and then circulate the answers... 

Some are just not bothered, for after all it does not affect them or their family, and maybe also because they just do not care. Some do not want to deal with the question of death penalty because Islam provides for death penalty - but the point that must be made is that these death penalty and executions are happening by virtue of civil laws - not Islamic laws, and certainly not in accordance to stringent requirement of evidence as provided for in Islam.

Christianity also sees the death penalty as being a form of punishment as provided for in the Old Testament - but Jesus changes this. We remember the story in the Bible where a women was caught for adultery, and was to be stoned to death in accordance with the Old Testament law. What Jesus did was to stop it? He did not say that it must be proven in accordance to a certain standards before the women be executed by stoning. He challenged the persons who were going to put effect that law by saying that whoever has not sinned shall cast the first stone. And after all had left, he told the woman to go and not sin again. That was a clear law that imposed the death penalty, and Jesus's response must be a guidance for all of us. Forgiveness - and liberty with the advice not to sin again. 

Likewise, in all major religions be it Islam, Christianity, Buddhism - one element is repentance, forgiveness and another chance. You may not want a person guilty of an offence to go free - so sentence him to imprisonment not kill him/her. 

"And early in the morning He came again into the Temple , and all the people came unto Him; and He sat down, and taught them."

"And the scribes and Pharisees brought unto Him a woman taken in adultery; and when they had set her in the midst, They say unto Him, Master, this woman was taken in adultery, in the very act. Now Moses in the Law commanded us, that such should be stoned: but what sayest Thou?"

"This they said, tempting Him, that they might have to accuse Him."

"But Jesus stooped down, and with His finger wrote on the ground, as though He heard them not. So when they continued asking Him, He lifted up Himself, and said unto them, He that is without sin among you, let him first cast a stone at her. And again He stooped down, and wrote on the ground."

"And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst."

"When Jesus had lifted up Himself, and saw none but the woman, He said unto her, Woman, where are those thine accusers? Hath no man condemned thee?"

"She said, No man, Lord."

"And Jesus said unto her, Neither do I condemn thee: go, and sin no more." (John 8:2-11 KJV)

MALAYSIA

   441 hanged to death since 1960, another 696 on death row as at 20/2/2011

An Australian mother faces the death penalty

Australian faces death penalty in Malaysia

ASHLEY HALL: The mother of an Australian woman arrested overseas on drug trafficking charges has pleaded with Malaysian authorities to let her daughter come home.

Thirty-four year old Emma Louisa L'Aiguille was arrested in July, when police found about one kilogram of methamphetamine in a car she was driving.

Malaysian laws consider anyone found with more than 50 grams of methamphetamine a drug trafficker, and that crime carries a mandatory death sentence.

Will Ockenden reports.

WILL OCKENDEN: An Australian woman held on drugs charges in a foreign jail, protesting her innocence.

It all sounds very familiar, according to south-east Asian studies expert Dr Marshall Clark.

MARSHALL CLARK: I guess it has echoes with the Schapelle Corby case in Bali which is almost a decade ago now.

WILL OCKENDEN: But in this case the penalty is much harsher.

Emma L'Aiguille is accused of trafficking drugs after being stopped by police while driving a car several weeks ago. Police allege they discovered about a kilogram of methamphetamine under the seat.

The charge of trafficking automatically attracts the death penalty under Malaysian law.

Ms L'Aiguille's mother, Amanda Innes, told Melbourne's Herald Sun newspaper that she just wants to see her daughter brought home alive.

But Dr Marshall Clark from the Australian National University says Malaysia takes drugs charges very seriously.

MARSHALL CLARK: There is not much nuance in regards to drug trafficking laws. If you have drugs on your possession, in your car, in your bags, your luggage, you are assumed and if it is over a certain amount of course, I think it is over 50 grams of illicit drugs, you are assumed to be a trafficker and you've got to prove somehow or another that you're not and that's the tricky bit.

WILL OCKENDEN: In the past, Malaysia has shown little mercy to foreigners found guilty of drug trafficking.

Two Australians were hanged in 1986, and another in 1993.

MARSHALL CLARK: Since 1964 440 people have been executed for drugs related charges including two Australians who were hung in 1986 for heroin trafficking, fairly well known cases at the time, Barlow and Chambers.

But in recent years there are a lot less in terms of executions despite the number of being sentenced to death being over 300 in the last five years. Despite that large number of being sentenced to deal for drug trafficking, only two have actually been executed.

WILL OCKENDEN: On the 19th of July, Australian officials from the embassy met with Emma L'Aiguille. The Department of Foreign Affairs says Malaysia is well aware the Australian Government is strongly opposed to capital punishment.

A member of her defence team Tania Scievetti says she will fight against a death penalty.

TANIA SCIEVETTI: She was not aware that there were drugs in the car. She doesn't know the whereabouts of the drugs as rather she was not physically there when the police examined the vehicle. She was taken away from the vehicle and then the police searched the vehicle in her absence.

WILL OCKENDEN: Emma L'Aiguille's mother, Amanda Innes, is planning to go to Malaysia for the next court hearing in October.

The ANU's Dr Marshall Clark says it'll be a tough, drawn out legal process.

MARSHALL CLARK: This is early days yet. As with Schapelle Corby it took quite a while for everything to be revealed and unravelled and even then there is still lots of loose ends about her particular story.

ASHLEY HALL: Dr Marshall Clark from Australian National University, ending Will Ockenden's report.- The World Today, 2/8/2012, Australian faces death penalty in Malaysia

Commentary

In Malaysia, the moment that you are arrested with a certain amount of drugs, 2 legal presumptions arise

ONE - You are knowingly in possession of the said drugs

TWO - If above a certain amount in weight, then you are a drug trafficker.

Then, the burden shifts to the accused persons to rebut the said 2 presumptions in court, which really is a near impossible task. 

It is my position that the burden of proving all the elements of any crime must always lie with the prosecution. He who accuses must prove.

MANDATORY DEATH PENALTY - the judge has no discretion when it comes to sentencing, and this too is wrong. Discretion when it comes to sentencing must always have the discretion to impose an appropriate sentence based on the facts and circumstances of each and every case. Parliament(legislative) should not bind the hands of the judiciary and withdraw this discretion. 

DEATH PENALTY must be abolished - in this modern day and age, there is enough options for sentencing, and the time has come when death penalty and corporal punishment need to be abolished. There are just too many flaws in the system that makes death penalty too risky a sentence for there is certainly a likelihood that an innocent person can wrongly be sent to death.

 

Death in Police Custody - Dead in 5 hours after arrest

Furniture shop worker Looi Chooi Aik was arrested and taken for a urine test. Five hours later he was found dead. The post mortem report said: asphyxia due to hanging.

 

The police said an officer would be assigned to investigate the case and promised “no cover up”.

I think an independent investigation, not an internal one, is necessary.

Excerpt from a Malaysiakini report:

Man dies in lock-up five hours after arrest
Susan Loone
7:17PM Aug 14, 2012
A 36-year-old man died in police custody yesterday morning, much to the shock of his family, who lodged a report over his death in Jalan Pattani Northeast police headquarters, Penang, today.

Another
The man’s brother-in-law Looi Chooi Aik (above, right) said the family met with one Inspector Azmin in the Tanjong Tokong police station at about 11am this morning and was told that Cheah Chin Lee had died.

Cheah, who works at a furniture shop, was as arrested at about 12am early yesterday morning and was brought to the Jalan Pattani police headquarters for a urine test until 2am, Looi claimed.

It is believed that Cheah was arrested for suspicions of car theft involvement.

“According to this Inspector Azmin, Cheah was brought back to Tanjong Tokong (police station) at about 5am and was found dead 20 minutes later,” Looi, 45, told reporters outside the police headquarters.- anilnetto.com

Malaysia may abolish death penalty for drug offenders

Reduced sentences for couriers should be considered

ALTHOUGH the attorney-general's statement that he was considering giving judges discretionary powers in deciding whether to award the death penalty to drug mules convicted of trafficking appears to be a bolt out of the blue, this is actually only another step in the process that the country has gradually been taking towards lessening its use of the death penalty. In its 2009 Universal Periodic Review report to the United Nations Human Rights Council, Malaysia had declared that it was proposing to amend "existing anti-drug trafficking legislation to reduce the maximum sentence to life imprisonment" from the currently practised mandatory death. Last year, a parliamentary roundtable agreed to a resolution calling for an immediate moratorium on the mandatory death penalty, and in particular, its use on drug offenders. The A-G's proposed review will also afford those currently on death row the avenue to go back to the courts for re-sentencing.

The proposed amendment hopes to address drug mules -- the smallest fish in the long chain of the drug trade -- who are too stupid not to get caught and too poor to afford competent defence lawyers. Drug lords and kingpins -- who bear the greatest responsibility for the drug trade and reap the most profit -- hardly ever get caught or are charged with possession, let alone convicted. Yet, the current mandatory death penalty gives no leeway for the justice system to differentiate between a mule and a lord. Indirectly, too, adjusting the penalty may address an imbalance in justice that is currently being practised. Section 37 of the Dangerous Drugs Act 1952, regarding legal presumptions, pushes the burden of proof on the accused. Anyone found to have dangerous drugs in his custody is presumed to be in possession. And, anyone found in possession of dangerous drugs above a specified limit is presumed to be trafficking. The accused has to disprove these presumptions. As a result, of the over 900 people on death row today, about 640 are drug cases.

Low-level drug offenders should not be let off scot-free, of course, but neither should they be given a penalty that exceeds the severity of the crime. Couriering drugs can hardly be said to be an offence worthy of the ultimate sanction. And there is as yet no scientific proof that the gallows have a deterrent effect on serious crime. So, this move is not an attempt to diminish the serious effect that drugs have on the lives of addicts and on society. Rather, it is a progressive attempt to ensure that justice is done; that the penalty does not outweigh the crime. - New Straits Times, 17/7/2012, Editorial - Drugs, death and justice

Only 98 pardons since 2001 in Malaysia

Natural life prisoners and those on death row need society's compassion

FOREVER is a very long time to pay for one mistake made in the stupidity of youth. For the people who are counting away the seemingly endless breaths of their days on death row or as natural life prisoners, just one thing done in haste, anger, bravado  or recklessness -- so incredibly easy to do without thought  --  and one must pay with one's life.

Whether it be spending 10 to 20 years waiting for "The Drop" that always threatens but takes forever to happen; or whiling away the decades waiting for the Angel of Death to extend an invitation, prisoners on death row and natural life know that once they have been thrown into prison, the only way they are going to get out is either through a pardon, or in a body bag. And so, they wait; the majority of them being young adults when they went in, youth and middle age passes them by within the four walls of the prison; and still they wait.

So, for the eight prisoners who were granted a pardon and immediate release by the Sultan of Johor yesterday, freedom must be nothing short of a miracle. For, once all legal and judicial appeals have been exhausted, technically, there are no other avenues of release. A pardon, if it is given, is a privilege, not a right; and it depends purely on the compassion of one person: the ruler of the state or territory in which the crime was committed. So few and far between are these that prior to yesterday, there have only been 98 pardons since 2001 of various sorts of crimes; of these, 50 were outright releases, and 48 reduced sentences. Compare this with the thousands of ordinary people who end up in prison every year, and the over 900 on death row today.

Admittedly, most of these people did commit serious crimes during their day (the attorney-general is considering reviewing the death penalty for drug mules), and they should make reparations to society for the damage and loss they have inflicted. But does that have to be paid for at the end of the noose or with the eternal torment of life behind bars? Is there no room for redemption and society's mercy? For, forgiveness is not just about the state of grace of the prisoners, but also of society -- to have enough compassion for a human being who has done wrong to give him another chance, and to return him to society. But, second chances should not be left to chance. Natural life prisoners must be given a tangible date of release. Life must have real hope or else redemption will be meaningless. - New Straits Times, 22/7/2012, Editorial, Second chances

Malaysia may abolish death penalty for drug couriers

M’sia mulls scrapping death penalty for drug couriers

Wednesday, July 11, 2012 - 14:36

by Andrew Sagayam

Location: 

KUALA LUMPUR

MALAYSIA may follow Singapore’s move to abolish the mandatory death penalty for drug couriers. Attorney-General Tan Sri Abdul Gani Patail said his Chambers was working towards proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion of not imposing death sentences on couriers.

“We are getting advice from law experts throughout the world regarding drug laws and how are they applied in their country,” Abdul Gani told The Malay Mail, yesterday.

“Since late last year, we have been doing research and studies, and one of the suggestions is that we want to allow those on death sentence to be resentenced.

“This means those on death row would be referred back to the courts, with legal representation, to be re-sentenced,” he said, in response to a query following Singapore’s decision to scrap the mandatory death penalty for drug couriers.

On Monday, Singapore Deputy Prime Minister Teo Chee Hean said the proposal would give judges the discretion to sentence drug couriers to life imprisonment and caning.

Teo, who is also Minister for Home Aff airs, had said in parliament that the changes would apply to drug couriers and those convicted of homicide where intention to kill could not be established.

However, the mandatory death penalty for drug kingpins and traffi ckers remains.

Bar Council president Lim Chee Wee said Malaysia should abolish the mandatory death penalty or at least begin with a moratorium on execution.

‘Executions have not reduced drug trafficking’

He said leaders and lawmakers should stop thinking of politics namely the impact of such abolition would have on votes adding that the statistics show that mandatory death penalty has not reduced the number of drug trafficking cases.

“The Bar has consistently taken the position that the government must abolish the death penalty if we are to be called a just, democratic and progressive society in the eyes of the world.

“We urge the government to demonstrate leadership by immediately declaring a moratorium on any imposition for the death penalty,” Lim said.

He said the majority of arrests for drug trafficking is usually of low-ranking “drug mules” who are the most visible and easy to apprehend.

“In other words, while policymakers hope that the death penalty serves as a deterrent, the reality is that the majority of these arrests of “minor offenders” would not impact the scale or profitability of the drug market,” he said.

Lim said as it is well-acknowledged that no legal system in the world is foolproof or error-free the opportunity to right a wrong is, however, not available if the death sentence on a person has been carried out.

“In such event everyone will be collectively responsible for having sent an innocent man or woman to the gallows. We should take no risks to subject a person to death, as the execution of the death sentence is irreversible,” he said. - Malay Mail, 12/7/2012, M’sia mulls scrapping death penalty for drug couriers

See earlier post:

Abolition of Death Penalty for Drugs - Singapore doing it, when will Malaysia follow suit?

Hundreds on death row in Malaysia (ABC Radio Australia)

Hundreds on death row in Malaysia

Visit ABC Radio Australia website to HEAR the interview

 

Updated 22 May 2012, 16:15 AEST

 

An Australian man may be facing the death penalty in Malaysia, but there are hundreds of others already waiting on death row - with an estimated 108 sentenced to death last year alone.

Hundreds on death row in Malaysia 

 

Just this week, five men received the death sentence for drug trafficking - an offence that carries the mandatory death penalty in Malaysia.

Presenter: Bill Bainbridge

Speaker: Charles Hector, lawyer, Malaysians Against Death Penalty & Torture

HECTOR: No at present, as of February 28th this year the number that was given to us by the government is 860 people are waiting on death row.

 

BAINBRIDGE: And can they all expect to finally be executed or do people remain on death row in Malaysia for many years without ever meeting their ultimate fate?

 

HECTOR: At the present moment I think for the past few years the Malaysian government has been slow on executions, so a lot of people actually stay on death row for quite some time, because even the 860 who are actually on death row they've still not gone through all the processes, they're pending appeal or they're waiting for a pardon at the present moment.

 

BAINBRIDGE: As we heard in that earlier report just 50 grams of drugs can be enough to earn the death penalty in Malaysia, that's in most jurisdictions that's a fairly small amount of drugs. What other kind of criminal offences carry the death penalty in Malaysia?

 

HECTOR: I think in regards to the other criminal offences murder is one, then also in terms of the unlawful possession of firearms if you're judged under the Internal Security Act, and the discharging of firearms with the intent of extortion, robbery, preventing or resisting arrest, abduction, kidnapping, house-breaking or house trespass. In this case just discharging of firearms, there's no question of anybody actually getting shot or injured, so these are the things. But the main thing is still drug trafficking.

 

BAINBRIDGE: And is drug trafficking, is it mostly foreigners who get caught up in drug trafficking, or are the majority Malaysians?

 

HECTOR: I think still the majority is Malaysians who are actually arrested and convicted and even executed, because for the reason of drug trafficking.

 

BAINBRIDGE: And so how difficult is it for lawyers in Malaysia to actually get somebody off death row?

 

HECTOR: It's quite difficult because the thing is as far as drug trafficking is concerned the presumption comes into play. So as long as you're arrested with a certain amount of drugs, the first presumption is that the presumption is that you are the owner, the person in possession of the drugs, and the second presumption is that you are guilty of drug trafficking. So the difficulty is in terms of actually overturning this presumption, which is not exactly very easy. So it's very rare that people actually manage to overturn the presumption.

 

BAINBRIDGE: And so therefore is there a very high risk of executing people in Malaysia who turn out to actually be innocent?

 

HECTOR: Yes there is because the thing is how do you actually disprove the fact that somebody places drugs in your car for example? How do you disprove and say it's not my drugs?

 

BAINBRIDGE: And are there cases like that, are there examples you can give us where somebody has been executed and later found to be innocent of the crime?

 

HECTOR: At present there is no such cases kind of thing based on fact or admission by the authority, but this is the story with regards to a lot of people who are actually been convicted or executed, that the drugs were not theirs or they did not know it was drugs. They're not actually involved in any form of drug trafficking, but it doesn't matter, because the thing is that is why in terms of there's indication that actually Malaysia might be actually moving towards abolishing, especially with regards to drug trafficking. More so that since there has been quite a number of Malaysians who have been actually arrested and charged for drug trafficking in China, in Singapore, who are facing execution and that somehow has actually opened the eyes of the government in a way to realise that these people could be innocent mules. 

 

BAINBRIDGE: So you say Malaysia is moving towards abolition, do you see that there's actually support within the government and within the population there to have abolition sometime in the near future?

 

HECTOR: I think within the government actually we have the minister coming out actually two or three times, and personally stating that he is actually for abolition, but he says that is his personal opinion and he hopes that more people will actually come forward and express that intention. And as far as the Malaysian Bar, we have actually passed a resolution several years ago calling for abolition, and recently about 12-thousand lawyers, multiracial, multi-religious, reflective of the citizenry in the country, in this year, 2012. What is interesting the similar abolition for death  penalty resolution was passed, but this time it was unanimous. And so I think the trend it seems to be that it's actually moving towards abolition rather than the other way around.