MADPET and 23 CSOs Demand A Written Guarantee to Stop Baram Dam Development Project

Demand A Written Guarantee to Stop Baram Dam Development Project

Civil Society Joint Statement

10 November 2015

Coinciding with the second anniversary of Baram blockade, We, the 24 civil society groups signing this statement, strongly demand the state government of Sarawak to immediately stop the Baram Dam development project with written guarantee and to stop encroaching the Native Customary Land.

Although Chief Minister Adenan has verbally instructed the suspension of this project, people of Baram would continue their resistance movement until the final written guarantee is presented by the state government.

We would like to reiterate, that, the local villagers have never been consulted prior to commencement of the dam project. It indicates a violation by the state government of the development principles of “Free, Prior, Inform and Consent” stated in United Nations Declaration on Rights of Indigenous Peoples. This mega dam project would force twenty thousand indigenous people to relocate, and annihilate heritages and cultures. An area as large as Singapore would be flooded, posing a long-term environmental destruction. Not only should the state government halts the Baram dam project, all 12 mega dam projects proposed under the Sarawak Corridor of Renewable Energy (SCORE) should also be canceled.

Baram people have been stationing at the two camps, namely Long Lama and KM15 in the past two years to prevent staff and contractors of Sarawk Energy Berhad (SEB) from going into the project construction site. Last year at KM 15, fourteen confrontations with SEB occurred in three months, during which SEB personnel were expelled and machines were moved away. A huge hole was also dug at the main road heading to the construction site.

The state government must recognize the perceived meaning of “development” by indigenous villagers. They would never accept any forms of exploitation of natural resources, let alone their ancestral land and rivers. They demand a sustainable development – provision of basic infrastructures and democratic life without sacrificing environmental ecology and culture. Therefore mega dam project at rural Baram should be replaced by construction of amenities (roads, schools and hospitals), as well as supplying electricity and clean water.

Signatories:

1.      Baramkini

2.      Damn the Dams Action Group

3.      Teoh Beng Hock Trust for Democracy

4.      Pusat KOMAS

5.      Center for Orang Asli Concern

6.      Institut Rakyat

7.      Rainbow Genders Society

8.      Institute for Development of Alternative Livestyle Lifestyle (IDEAL)

9.      Civil Rights Committee of KL & Selangor Chinese Assembly Hall

10.  Malaysian Youth and Students' Democratic Movement (DEMA)

11.  Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)

12.  Tindak Malaysia

13.  Suara Rakyat Malaysia (SUARAM)

14.  Sahabat Rakyat

15.  Malaysians Against Death Penalty and Torture (MADPET)

16.  Save Rivers

17.  In Between Cultura

18.  Community Information and Communications Centre (CICOM)

19.  Bukit Bandarraya Residents Association

20.  Focus On Sarawak

21.  Aliran

22.  Johor Yellow Flame (JYF)

23.  Sunflower Electoral Education (SEED)

24.  Ban Cyanide Mining in Raub

Enquiry please contact Mr, Ng at 012-2658448

https://www.facebook.com/groups/damnthedams/

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白纸黑字中止巴南水坝计划

公民社会联合文告

2015年11月10日

适逢巴南人民设置路障2周年，我们，下述联署的24个公民社会组织，强烈要求砂拉越政府正视巴南区原住民反对建造巴南水坝的决心，即刻白纸黑字中止巴南水坝计划，停止侵占原住民土地，保障他们的传统习俗土地（Native Customary Land）。

尽管砂拉越首长阿德南已做出口头上承诺指示停止建设水坝工程的工作，但对于峇南人而言，砂州政府一天未以白纸黑字的形式宣布停止峇南水坝计划，峇南人仍会继续反水坝运动，抗争到底。

我们重申，巴南水坝的建造计划从未咨询当地居民的意见，违反了联合国原住民权利宣言所阐明的“自由、事先、知情及同意”（Free, Prior, Inform and Consent）的发展原则。此巨型水坝计划将迫使二万名原住民迁离世代居住的土地，消灭原住民村落几百年传下来的有形与无形文化，也将淹没如新加坡面积大的土地，对环境生态的破坏影响深远。砂拉越政府必须悬崖勒马，不仅应该停建巴南水坝，也应该一并撤销砂拉越再生能源走廊计划（SCORE）之下建议的十二座巨型水坝。

峇南人在过去两年内全天候驻守于两个反水坝营地，分别是Long Lama和KM15，以确保砂拉越能源局（Sarawak Energy Berhad）无法伺机进入水坝工地施工。其中KM15营地在去年杪的3个月内与砂源局对峙14次，将已进入工地准备施工的队伍驱赶之际，也把所有的机器移走，并在进入工地的主要路段挖一个大洞，以致没有人可踏入工地范围。

我们呼吁砂拉越政府聆听民意，了解砂拉越内陆居民所要的“发展”为何物。内陆居民拒绝出卖祖传地和河流，剥夺他们赖以生存的森林与河流资源。他们要求的是永续的发展，在保留环境生态与文化生活的基础上，提供基本社区设施以允许他们参与民主生活。职是之故，与其建造于内陆居民无益的水坝发电计划，当局应以建造道路、提供稳定那个水供电供，建立学校与医院，来发展峇南内陆。

联署组织：

1.  当今峇南 （Baramkini）

2.  反水坝小组（Damn the Dams Action Group）

3.  赵明福民主基金会 Teoh Beng Hock Trust for Democracy

4.  马来西亚社区传播中心Pusat KOMAS

5.  原住民关怀中心Center for Orang Asli Concern

6.  人民研究院Institut Rakyat

7.  彩虹性别学会Rainbow Genders Society

8.  开拓他种生活学会Institute for Development of Alternative Livestyle Lifestyle (IDEAL)

9.  隆雪华堂民权委员会 Civil Rights Committee of KL & Selangor Chinese Assembly Hall

10.马来西亚青年与学生民主运动（学运）Malaysian Youth and Students' Democratic Movement (DEMA)

11.雪隆社区协会Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)

12.行动大马Tindak Malaysia

13.人民之声Suara Rakyat Malaysia (SUARAM)

14.人民之友Sahabat Rakyat

15.马来西亚反死刑与酷刑组织Malaysians Against Death Penalty and Torture (MADPET)

16.拯救河流组织 Save Rivers

17.之间  In Between Cultura

18.社区资讯与通讯中心 Community Information and Communications Centre (CICOM)

19.武吉班达拉也居民协会 Bukit Bandarraya Residents Association

20.关注砂拉越 Focus On Sarawak

21.国民醒觉运动 Aliran

22.柔南黄色行动小组 Johor Yellow Flame

23.向日葵选举教育运动Sunflower Electoral Education

24.劳勿反山埃委员会 Ban Cyanide Mining in Bukit Koman

查询请联络反水坝小组联络人黄先生012-2658448。谢谢。 

 https://www.facebook.com/groups/damnthedams/

Kho Jabing gets temporary stay of execution at the last minute

See earlier posts:- Singapore, do not execute Sarawakian Kho Jabing -still need to campaign that Kho Jabing is not killed but imprisoned for a very long time.

Malaysian on Singapore death row gets stay of execution in final hour

BY JULIA YEOW, NEWS EDITOR

Published: 5 November 2015 11:33 AM | Updated: 5 November 2015 2:32 PM

 

Sarawakian Kho Jabing receives a stay of execution less than 24 hours before he is scheduled to be hung in Singapore. – Photo courtesy of Singaporean police, November 5, 2015. 

 

Sarawakian Kho Jabing has received a stay of execution on a death sentence less than 24 hours before he was scheduled to be hung in Singapore, rights advocacy group We Believe in Second Chances co-founder Kirsten Han said today.

Jabing's lawyer had filed a criminal motion on Wednesday at the Singapore Court of Appeal to request a remittance of his case.

The court rule granted a stay of execution early Thursday, but have yet to announce the dates for his case to be mentioned, Han told The Malaysian Insider in a phone interview shortly after the ruling was made.

"We still don't know when the next hearing will be... but it's just great news that the sentencing will not be carried out as scheduled tomorrow," Han said. However, she said there was yet work to be done as the court decision merely meant that lawyers and rights groups "have only delayed, not halted the execution".

"We will continue to advocate as much as we can for him to be granted clemency."

Jabing, 31, was convicted of murder in 2010 and was due to be hanged tomorrow morning after exhausting all legal avenues for appeal.

His sister Jumai, who has been in Singapore with their 54-year-old mother, said she was "speechless with joy" when she received news of the stay of execution earlier today.

"I couldn't sleep the whole night. I was just praying and praying for a miracle," she told The Malaysian Insider.

"And this morning, when I heard the news, I'm just speechless with joy."

She thanked the Singaporean government and rights groups that had helped appeal for Jabing's death sentence to be commuted.

"My mother is so happy, she is weeping right now"

She said she was looking forward to meeting Jabing in the afternoon to share the good news.

In an immediate response to the news of the stay, Amnesty International Malaysia welcomed the court decision, and repeated calls for Jabing's death sentence to be commuted to life imprisonment, or that he be granted clemency.

"We call upon the Malaysian and SIngaporean authorities to study the details of Jabing's case, and they will see why we know that the death penalty is not an answer for Jabing, or for any other person on death row," said the organisation's executive director Sharmini Darshni. – November 5, 2015, Malaysian Insider

.

- See more at: http://www.themalaysianinsider.com/malaysia/article/malaysian-on-singapore-death-row-gets-stay-of-execution-in-final-hour#sthash.fgiFr8S3.dpuf

Syed Mohd Azlan - physical violence by police during arrest and questioning was the cause of death?

EAIC says Johor man’s 2014 death in custody was murder 

Friday October 30, 2015
11:49 PM GMT+8

 

















File picture of lawyer Gobind Singh Deo (right) holding up a copy of Syed Mohd Azlan’s autopsy report while accompanying the victim’s parents, Sharifah Halilah Syed Sylaiman, 57, and Syed Muhamad Nur Ali, 67, at a news conference at the former’s office in Kuala Lumpur.

KUALA LUMPUR, Oct 30 — The use of physical violence by police during arrest and questioning was the cause of Syed Mohd Azlan Syed Mohamed Nur’s 2014 death in custody, the Enforcement Agency Integrity Commission (EAIC) said today.

According to the enforcement watchdog, its investigations also found attempts to obscure evidence from the 25-year-old’s interrogation that resulted in 61 separate injuries on various parts of his body.

The police officers involved also engaged in a “serious breach” of standard operating procedures concerning the handling of detainees, material seizure, and the integrity of statements.
 

“There was an element of crime in the attacks involving common intent or abetment by PDRM officers, including the arresting team, to intentionally use physical violence on the deceased to cause death or injury,” the EAIC said in a statement today.

It added that the action was a criminal offence, specifically under Section 302 and 325 of the Penal Code read with Section 34 of the same Act.

Section 302 pertains to murder while Section 325 involves voluntarily causing grievous bodily harm; Section 34 deals with voluntarily causing hurt.

The EAIC then recommended that the Attorney-General’s Chambers to prosecute the officers involved for the crimes identified in the agency’s investigations.

It added that it was regrettable that custodial deaths continue to occur repeatedly in the country, saying that the matter should be viewed seriously.

According to the EAIC’s investigations, Syed Mohd Azlan had been arrested on November 3, 2014 near Pengerang, Johor over possible involvement in an armed altercation involving two groups on September 14 the same year.

He had been detained by a team of 13 police officers and held at the Sungai Rengit police station, where he had been interrogated over the attack.

Syed Mohd Azlan was later transferred to the Kota Tinggi district police headquarters to be remanded, but died while in transit.

A post-mortem determined the cause of death to be blunt force trauma to his chest, while 61 defensive wounds were discovered on his face, torso, and both legs. -Malay Mail, 30/10/2015

 

- See more at: http://www.themalaymailonline.com/malaysia/article/eaic-says-johor-mans-2014-death-in-custody-was-murder#sthash.e60b2nj7.dpuf

Singapore, do not execute Sarawakian Kho Jabing

Kho Jabing, a 31 year old Sarawakan on death row in Singapore, had his clemency petition rejected by the President on the advise of the Cabinet on 19 October 2015. He has exhausted all legal avenues and is at risk of being executed soon.

 

Anti Death Penalty Asia Network (ADPAN) Press Statement - 3rd November 2015

HALT THE EXECUTION OF KHO JABING

The Anti-Death Penalty Asia Network (ADPAN) urgently calls on the government of Singapore to halt the impending execution of 31 -year-old Sarawakian Kho Jabing, whose application for clemency was rejected by the President of Singapore on 19 October.

Kho Jabing was arrested in February 2008 for his participation in a robbery during which he hit a victim with a wooden stick or branch, resulting in the man’s death. He was convicted in 2010 under Section 300c of Singapore’s Penal Code, and his mandatory death sentence was confirmed by the Court of Appeal in 2011.

In 2013, amendments to Singapore’s mandatory death penalty regime came into force, allowing Jabing the opportunity to be re-sentenced. Describing Jabing’s actions as “opportunistic and improvisational”, a High Court judge re-sentenced him to life imprisonment with 24 strokes of the cane. However, the prosecution appealed and in January 2015 a five-judge Court of Appeal reinstated the death sentence after deeming in a majority decision that Jabing had “exhibited a blatant disregard for human life”.

It is important to note that Jabing’s final death sentence was not passed with a unanimous decision, but a slim majority. Two of the five appeal judges did not feel that the death penalty was appropriate for his crime, and felt that there was reasonable doubt as to the number of times and intensity with which Jabing had hit his victim that would affect any consideration of whether he had acted with a blatant disregard for human life.

The death penalty is the most final and irreversible of punishments. We cannot afford a single shred of doubt when a state condemns an individual to the gallows.

Yet here we have the case of three learned judges – the High Court judge and two Court of Appeal judges – saying they did not believe capital punishment suitable in Jabing’s case. It is therefore unsafe to pass the ultimate sentence of death when doubt clearly exists even among Singapore’s most esteemed legal professionals.

ADPAN urges the President and the Cabinet of Singapore to reconsider their decision not to grant Jabing clemency.

Issued by:

ADPAN Executive Committee

URGENT ACTION NEEDED:-

Send letters/emails calling on the Singapore government to no execute Kho Jabing. A sample open letter by The Singapore Working Group on the Death Penalty can be found below.

You can send your letter to the following:

President of Singapore
His Excellency Tony Tan Keng Yam Office of the President of the Republic of Singapore
Orchard Road, Singapore 238823
Fax: (65) 67353135
Email: istana_feedback@istana.gov.sg

Prime Minister of Singapore
Lee Hsien Loong Prime Minister’s Office
Istana Annexe, Orchard Road, Singapore 238823
Fax: (65) 63328983
Email: lee_hsien_loong@pmo.gov.sg

Minister of Law and Home Affairs
Mr. K Shanmugam
100 High Street, #08-02 The Treasury, Singapore 179434
Fax: (65) 6332 8842
Email: k_shanmugam@mlaw.gov.sg

The letter that was sent by The Singapore Working Group on the Death Penalty

Mercy for Kho Jabing: An open letter to the Cabinet

Dear distinguished Ministers,

We are writing this letter of appeal for Kho Jabing, whose petition for clemency was rejected on 19 October 2015. We urge the Cabinet to reconsider his clemency in light of the fact that there was no unanimous decision even at the highest court of the land, and our learned judges were split in their opinion of whether the death penalty was appropriate in his case.

We also seek the compassion of the Cabinet for the family of Jabing, who have gone through much suffering since his original sentencing. His father passed away shortly while Jabing’s case was ongoing, and Jabing’s sister Jumai believes that her father’s illness prior to his death was due to Jabing’s incarceration, which came as a great blow for him. His mother, who has been unable to work due to health reasons, has lost both her sources of financial support and has been living on the goodwill of her neighbours and minimal state welfare ever since then.

On top of her ill-health, the thought of losing Jabing, her only son, is too much for his mother to bear. We cannot imagine the effect of his death will have on her wellbeing.

We understand the grievousness of his offence but hope that he will be given a second chance and a more meaningful way to atone for his crime.

We hope that our Ministers will be compassionate and consider all factors related, especially the impact of capital punishment on Jabing’s family, and exercise mercy by commuting his death sentence to that of life imprisonment.

Yours sincerely,

Singapore Working Group on the Death Penalty
__________________________________________

The Singapore Working Group on Death Penalty comprises the Singapore Anti-Death Penalty Campaign, We Believe in Second Chances and Think Centre. All three organisations are also members of the Anti-Death Penalty Asia Network (ADPAN).

Indonesia: Report reveals endemic judicial flaws in death penalty cases

AMNESTY INTERNATIONAL
PRESS RELEASE

15 October 2015

Indonesia: Report reveals endemic judicial flaws in death penalty cases
 
Death row prisoners in Indonesia are routinely denied access to lawyers and are coerced into “confessions” through severe beatings, while foreign nationals facing the death penalty had to deal with a judicial system they hardly understand, Amnesty International said in a new report today.
 
Flawed Justice exposes how the government under President Joko “Jokowi” Widodo has made a mockery of international law by carrying out 14 executions since taking office, while the lives of scores more prisoners now on death row could be at risk.
 
“Indonesia’s callous U-turn on executions has already led to the death of 14 people, despite clear evidence of flagrant fair trial violations. The government might claim to be following international law to the letter, but our investigation shows the reality on the ground is very different with endemic flaws in the justice system,” said Josef Benedict, Amnesty International’s South East Asia Campaigns Director.

“The death penalty is always a human rights violation, but the numerous and serious issues with regards to how it is being applied in Indonesia makes its use all the more tragic. Authorities must end this senseless killing once and for all and immediately review all death penalty cases with a view to their commutation.”
 
Despite strong signs that Indonesia had moved away from the death penalty in recent years, the government of President Widodo - which took office in October 2014 - has scaled up executions significantly.

Of the 14 people who have been sent before the firing squad in 2015, 12 were foreigners and all were convicted on drugs charges. The government has vowed to use the death penalty to tackle a national “drugs emergency”, despite there being no evidence that the threat of execution can work as more of a deterrent to crime than a prison sentence. President Widodo has also said he will reject all clemency petitions of death row prisoners on drug charges.
       
Amnesty International’s investigation into 12 individual death row cases reveals emblematic flaws in the Indonesian justice system, which raises serious questions about the country’s use of the death penalty.
 
Forced confession
 
In half of the cases, death row prisoners claimed that they had been coerced into “confessing” to their crimes, including through severe beatings at the hands of police officers in detention. Many claim to have been tortured or ill-treated, yet Indonesian authorities have never followed up to investigate these allegations.
 
A Pakistani national, Zulfiqar Ali. claims that police kept him in a house for three days after his arrest, where he was kicked, punched and threatened with death until he eventually signed a “confession”. The beating left him in such a bad state that he had to go through kidney and stomach surgery.
 
Despite Zulfiqar Ali detailing the torture he had endured during his trial, the judge allowed his “confession” to be used as evidence and there was no independent investigation conducted into his allegations.
 
The findings in Flawed Justice echo those of other national and international human rights organizations, who have found evidence of systematic and widespread torture or other ill-treatment by the Indonesian police with impunity.
 
Denied access to lawyer
 
Indonesian death row prisoners are routinely denied access to lawyers, despite this right being guaranteed in both Indonesian and international law.

Many of the prisoners mentioned in the report and charged with capital crimes are forced to wait several weeks or even months before seeing a lawyer, seriously undermining their ability to make their case in court.

There are also serious doubts about the quality of legal representation afforded to those facing drugs charges. In one recent case, the only advice a defendant received from his lawyer was to answer “Yes” to any questions from the investigator. In another case a death sentence was handed down due to a request by defendant’s own lawyer to the judges.

In none of the 12 cases examined in Flawed Justice were prisoners brought before a judge immediately after arrest as required by international law and standards – most had to wait several months before this happened.
 
Foreign nationals

Twelve out of the 14 people executed in Indonesian in 2015 were foreign nationals, and at least 35 other foreigners are currently on death row in the country.

But Amnesty International’s findings show that in numerous instances Indonesia violates the rights of foreign death row prisoners by denying them interpretation during or before trial, making them sign documents in a language they don’t understand, or refusing access to consular services.

Additionally in 2015, Indonesia put to death one man suffering from a severe mental disability in violation of international law. Brazilian Rodrigo Gularte had been diagnosed with paranoid schizophrenia.

Recommendations

Given the serious flaws in Indonesia’s justice system, Amnesty International urges authorities to immediately establish an independent body to review all cases where people have been sentenced to death, with a view to commuting the death sentences.

Indonesia must also reform its Criminal Code to match international standards and ensure that all prisoners’ right to a fair trial is respected.

“President Joko Widodo has promised to improve human rights in Indonesia, but putting more than a dozen people before a firing squad shows how hollow these commitments are,” said Josef Benedict.

“Indonesia should set an example on human rights regionally. It is time to take this responsibility seriously - a first step must be to impose a moratorium on executions.”

Background

Twenty-seven people were executed between 1999 and 2014, under Indonesia's first four democratic-era presidents. No executions were carried out between 2009 and 2012.

According to figures obtained from the Law and Human Rights Ministry on 30 April 2015, there were at least 121 people death row. These include 54 people convicted of drug-related crimes, two convicted on terrorism charges and 65 convicted of murder.

As of today, 140 countries are abolitionist in law or practice. Amnesty International opposes the death penalty in all cases and under any circumstances, regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to carry out the execution. The organization considers the death penalty a violation of the right to life as recognized in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment.

https://www.amnesty.org/en/latest/news/2015/10/indonesia-report-reveals-endemic-judicial-flaws-in-death-penalty-cases/

Public Document
****************************************
For more information please call Amnesty International's press office in London, UK, on      
+44 20 7413 5566 or +44 (0)777 847 2126
email: press@amnesty.org  twitter: @amnestypress      
International Secretariat, Amnesty International, 1 Easton St., London WC1X 0DW, UK

Bar:- The Police Must Not Misuse SOSMA, and Must Not Ignore the Solicitor-Client Relationship

Press Release | The Police Must Not Misuse SOSMA, and Must Not Ignore the Solicitor-Client Relationship

Friday, 09 October 2015 08:31pm

The Malaysian Bar is outraged over the detention of Matthias Chang — a Member of the Malaysian Bar and one of the lawyers representing Dato’ Sri Khairuddin Abu Hassan (“Dato’ Sri Khairuddin”), a politician and vocal critic of 1Malaysia Development Berhad (“1MDB”) — under the Security Offences (Special Measures) Act 2012 (“SOSMA”).  The detention is reportedly for investigations into allegations of having committed offences under Sections 124K (sabotage) and Section 124L (attempt to commit sabotage), both under the Penal Code.    Matthias Chang was arrested by the police yesterday after visiting his client, who is currently being detained at the Dang Wangi District Police Station.  It has been reported that Matthias Chang is now to be detained for up to 28 days. It had been earlier reported that Matthias Chang and his client had both been barred from travelling outside Malaysia on 18 September 2015, and that they were about to travel to New York for the purpose of meeting with the Federal Bureau of Investigation in relation to allegations of financial impropriety concerning 1MDB.[1]   Subsequently, Matthias Chang was questioned by the police on 28 September 2015 and 2 October 2015, as a witness in respect of the allegations levelled against his client.  It is inexplicable that the police have now detained Matthias Chang under SOSMA, as he has been cooperative in presenting himself for questioning by the police thus far.  His arrest is an absolute misuse of the power of arrest and detention under Section 4 of SOSMA. The Malaysian Bar expressed reservations over the use of SOSMA on Dato’ Sri Khairuddin in our press release dated 2 October 2015.[2]   These same concerns apply to Matthias Chang.  SOSMA was legislated to address terrorism threats and violent conduct. SOSMA must not be misused as a replacement for the repealed Internal Security Act 1960 (“ISA”).  The manner in which the police have resorted to SOSMA against Dato’ Sri Khairuddin and Matthias Chang is disquieting, as it appears that SOSMA is becoming the new ISA.  The Malaysian Bar denounces the intimidation, harassment, arrest or detention of any Member of the Malaysian Bar in the discharge of his or her duties or obligations for and on behalf of any client.  Every Member of the Malaysian Bar is obliged to, and must be allowed to, act without fear or favour in the client’s interest, with due regard to the rule of law and the administration of justice.    The Chief Justice of Malaysia, The Right Honourable Tun Arifin Zakaria, has observed that “… the lawyer does not merely carry out the duties he is professionally trained for, but assumes a special role in safeguarding the sanctity of the legal system and more importantly to uphold the rule of law.”[3]  It is also important to note that Articles 16 and 18 of the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990, state that: 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. …  18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions. The Malaysian Bar further condemns any attempt to transgress or erode the principle of legal professional privilege or solicitor-client privilege, in the guise of a purported investigation of a lawyer. The rationale underpinning the principle of legal professional privilege is that: (a) it is of fundamental importance, for the proper administration of justice, that clients should enjoy absolute confidence in respect of all communications with their lawyers for the provision of legal advice and/or representation; (b) the principle promotes the public interest, because it assists and enhances the administration of justice by facilitating the representation of clients by their legal advisors; and  (c) the system of administration of justice depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it.  The principle of legal professional privilege must remain inviolate and absolute, as it protects all information provided by a client to the lawyer for the purposes of legal advice or representation, whereby the information cannot be divulged by the lawyer to anyone, unless the client waives the privilege.  This principle is codified in Section 126 of the Evidence Act 1950, with two limited exceptions that render the privilege inapplicable, namely, where there is “(a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment”. The police must scrupulously adhere to this salutary principle — well-entrenched in both statute and common law — of legal professional privilege, and must not seek to obtain from Matthias Chang any information given to him by his client, Dato’ Sri Khairuddin, by ignoring or breaching this long-standing principle. Any interference with the principle is wholly abhorrent, and obverse to the administration of justice.   The Malaysian Bar demands that the police recognise and respect the role and responsibilities of Matthias Chang as a lawyer, release him immediately, and refrain from any action that is likely to harass, impede or obstruct him from performing his duties to his client. Steven Thiru President  Malaysian Bar 9 October 2015       PRESS ALERT The Malaysian Bar denounces the intimidation, harassment, arrest or detention of any Member of the Malaysian Bar in the discharge of his or her duties or obligations for and on behalf of any client.   The Malaysian Bar will hold a candlelight vigil to reaffirm the independence of the Bar, as follows: Date:  Tomorrow, 10 October 2015 (Saturday) Time:  7:30 pm to 10:00 pm Venue:  Bar Council, 15 Leboh Pasar Besar, 50050 Kuala Lumpur [1] “ ​ Malaysia Blocks Critic of Prime Minister From Taking Case to U.S. ​​ ​​ ”, New York Times, 18 September 2015 [2] Press release by the Malaysian Bar entitled “SOSMA Must Not be Misused to Silence Critics of 1MDB”, 2 October 2015 [3] Opening Address by The Right Honourable Tun Arifin Zakaria, Chief Justice of Malaysia at the International Malaysia Law Conference 2014 (24 Sept 2014)

OPPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET (Malaysia Chronicle)

28 September 2015 11:01(Malaysia Chronicle)

OPPRESSIVE LAWS: Repeal SOSMA & offences criminalizing activities ‘detrimental' democracy’ - MADPET

MADPET (Malaysians Against Death Penalty and Torture) is shocked by the actions taken by the Malaysian police against Datuk Seri Khairuddin Abu Hassan for allegedly lodging reports with relevant authorities in other countries against 1Malaysia Development Berhad (1MDB), a private company owned by Malaysia.

Khairuddin was first arrested and remanded for investigation on 18/9/2015 under section 124C of the Penal Code, being the offence of ‘attempts to commit an activity detrimental to parliamentary democracy or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fifteen years’. This is one of the new offences included into the Penal Code, which came into effect on 31/7/2012. It is too vague since there seems to be not even a definition as to what really would be an ‘activity detrimental to parliamentary democracy’, and as such could very be easily abused.

On 23/9/2015, when the courts released him after possibly denying the police application for further remand, Khairruddin was immediately re-arrested for allegedly committing offences under Section 124K and 124L of the Penal Code. This would be the offence of committing ‘sabotage’ and attempting to do so respectively.

Normally, when a person is arrested, being suspected of committing a criminal offence, the procedures and rights that are provided for in the Criminal Procedure Code applies. The police after arrest, can hold a suspect for no longer than 24 hours, and thereafter, if there is a need for further remand for the purposes of investigation, the police need to apply to the Magistrate for a remand order. Subsequent remand applications are permitted, whereby the total period of permissible detention for this purpose is 14 days. The Malaysian law now also sets limits on the maximum number of days of remand that can be granted by court on the first application, and applications thereafter.

Following the 2nd arrest of Khairuddin, the police allegedly stated that they would now rely on the Security Offences (Special Measures) Act 2012 (SOSMA), rather than the normal Criminal Procedure Code(CPC).

Avoiding normal procedures, safeguards and rights by invoking SOSMA

SOSMA is a law that provides for ‘special measures relating to security offences for the purpose of maintaining public order and security and for connected matters’. There are ‘special measures’ from the point of arrest until the end of trial, which do undermine the rights of the suspect and/or accused, including the right to a fair trial.

When SOSMA is used, the police no longer need to get a Magistrate’s order for the purposes of remanding a suspect for more than 24 hours. All that is required by SOSMA for detention beyond 24 hours is that ‘a police officer of or above the rank of Superintendent of Police…’ to ‘…extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation’. As such, the necessary check and balance provided by the Magistrate and the courts to ensure that the police do not abuse their powers and/or unjustifiably deny a suspect his freedom is gone.

SOSMA also provides that no bail will be granted for persons charged with security offences, save for very limited exceptions. SOSMA also allows the court to accept evidence of witnesses, in the absence of the accused person and his lawyer. In essence, SOSMA allows for the abandonment of many of the fundamental requirements, safeguards and rights necessary to ensure a fair trial.

Was there new evidence after release to justify immediate re-arrest?

Unless new evidence has come to light since the release, an immediate re-arrest of a suspect would be wrong. Eventhough, Khairuddin’s re-arrest may be for a different offence, which happens to be under the same Part of the Penal Code, which most probably are based on the same facts would also be wrong. The police could have very well during his 5 days in detention investigated him concerning all related offences – there is no need for a re-arrest and further detention. Furthermore, considering that he was released by court, the action of police seems to be an act of disrespecting the court. Now, using SOSMA in this re-arrest, the police shuts out the court’s ability to ensure that the police are not abusing their powers of remand.

It must be stressed that after a suspect is arrested, there is always the option to release the suspect on police bail on condition that he presents at the police station as and when needed to facilitate investigations. There is no necessity to continue to hold a suspect in detention for the purposes of investigation.

If the prosecution has sufficient evidence, rightly the person should be charged in court, and any application for bail could be challenged. Even if released on bail, the courts could order that the accused not leave the country.

Punishment Comes After Conviction – Presumption of Innocence

MADPET reiterates the importance of adhering to legal principle that a person is presumed innocent unless proven guilty, and this ‘proof of guilt’ is not a matter to be determined by the police, prosecution and/or the Minister, but by a court of law.

As such, prolonged remand for the purposes of investigation, or re-arresting, be in for the same or different offences, and further remands could be seen as a violation of the presumption of innocence principle. Punishment comes only after conviction and sentencing by a court of law, and not before.

Duty to report suspected crimes in any country?

Every human person has an obligation to highlight any alleged wrongdoing, crime, injustice or human rights violation – they are not expected to be indifferent or to turn a blind eye to the occurrence of suspected wrongdoings.

Whether the allegation is true or not, or even whether there is evidence to support it or not, it is not the concern of the person lodging reports. That will be a matter for the relevant investigation authorities to investigate and determine.

There is also no law in Malaysia that says that a Malaysian can only file reports/complaints about wrongdoings by Malaysians or Malaysian companies in Malaysia, and to file any such reports/complaints in any other country is a crime.

Deterring lodging of complaints against ‘powerful’ persons and companies?

Hence, MADPET, from information provided thus far in media reports, fails to see how what Khairuddin is alleged of doing, being the filing of reports with authorities in other countries, could even be perceived as a crime. Note that the relevant authority in any country will only commence investigation if and only if the subject matter is a violation of their applicable laws, and it is a matter that falls within their jurisdiction.

Malaysia need to be very concerned that its actions now may only deter Malaysians from lodging reports/complaints about suspected crimes or wrongdoings against ‘powerful’ personalities and companies. No one is above the law.

MADPET thus calls for:-

The immediate release of Datuk Seri Khairuddin Abu Hassan;

The immediate stop of the usage of Security Offences (Special Measures) Act 2012 (SOSMA) in this and all other cases in Malaysia;

The repeal of this draconian Security Offences (Special Measures) Act 2012 (SOSMA); and also

The removal of all offences in our laws that criminalizes activities ‘detrimental to parliamentary democracy’, which is just too vague and as such could be easily abused.

Charles Hector
For and on behalf of
MADPET (Malaysians Against Death Penalty and Torture)

Source: Malaysia Chronicle. 28/9/2015

Repeal Sosma, offences’ detrimental to parliamentary democracy’ – MADPET [Malaysian Insider]

Repeal Sosma, offences’ detrimental to parliamentary democracy’ – MADPET

Published: 28 September 2015 4:52 PM

MADPET (Malaysians Against Death Penalty and Torture) is shocked by the actions taken by the Malaysian police against Datuk Seri Khairuddin Abu Hassan for allegedly lodging reports with relevant authorities in other countries against 1Malaysia Development Berhad (1MDB), a private company owned by Malaysia.
 

Khairuddin was first arrested and remanded for investigation on September 18, 2015, under section 124C of the Penal Code, being the offence of ‘attempts to commit an activity detrimental to parliamentary democracy or does any act preparatory there to shall be punished with imprisonment for a term which may extend to fifteen years’.

This is one of the new offences included into the Penal Code, which came into effect on August 31, 2012.
It is too vague since there seems to be not even a definition as to what really would be an ‘activity detrimental to parliamentary democracy’, and as such could very be easily abused. 

 

On September 23, 2015, when the courts released him after possibly denying the police application for further remand, Khairruddin was immediately re-arrested for allegedly committing offences under Section 124K and 124L of the Penal Code.

This would be the offence of committing ‘sabotage’ and attempting to do so respectively.

Normally, when a person is arrested, being suspected of committing a criminal offence, the procedures and rights that are provided for in the Criminal Procedure Code applies.

The police after arrest, can hold a suspect for no longer than 24 hours, and thereafter, if there is a need for further remand for the purposes of investigation, the police need to apply to the Magistrate for a remand order.

Subsequent remand applications are permitted, whereby the total period of permissible detention for this purpose is 14 days. The Malaysian law now also sets limits on the maximum number of days of remand that can be granted by court on the first application, and applications thereafter.

Following the second arrest of Khairuddin, the police allegedly stated that they would now rely on the Security Offences (Special Measures) Act 2012 (Sosma), rather than the normal Criminal Procedure Code(CPC).

Avoiding normal procedures, safeguards and rights by invoking Sosma

 
Sosma is a law that provides for ‘special measures relating to security offences for the purpose of maintaining public order and security and for connected matters’.

There are ‘special measures’ from the point of arrest until the end of trial, which do undermine the rights of the suspect and/or accused, including the right to a fair trial.

When Sosma is used, the police no longer need to get a Magistrate’s order for the purposes of remanding a suspect for more than 24 hours.

All that is required by Sosma for detention beyond 24 hours is that ‘a police officer of or above the rank of Superintendent of Police…’ to ‘…extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation’.

As such, the necessary check and balance provided by the Magistrate and the courts to ensure that the police do not abuse their powers and/or unjustifiably deny a suspect his freedom is gone.

Sosma also provides that no bail will be granted for persons charged with security offences, save for very limited exceptions. Sosma also allows the court to accept evidence of witnesses, in the absence of the accused person and his lawyer.

In essence, Sosma allows for the abandonment of many of the fundamental requirements, safeguards and rights necessary to ensure a fair trial.

Was there new evidence after release to justify immediate re-arrest?

 
Unless new evidence has come to light since the release, an immediate re-arrest of a suspect would be wrong.

Even though, Khairuddin’s re-arrest may be for a different offence, which happens to be under the same Part of the Penal Code, which most probably are based on the same facts would also be wrong.

The police could have very well during his 5 days in detention investigated him concerning all related offences – there is no need for a re-arrest and further detention.

Furthermore, considering that he was released by court, the action of police seems to be an act of disrespecting the court.

Now, using Sosma in this re-arrest, the police shuts out the court’s ability to ensure that the police are not abusing their powers of remand. It must be stressed that after a suspect is arrested, there is always the option to release the suspect on police bail on condition that he presents at the police station as and when needed to facilitate investigations.

There is no necessity to continue to hold a suspect in detention for the purposes of investigation. If the prosecution has sufficient evidence, rightly the person should be charged in court, and any application for bail could be challenged.

Even if released on bail, the courts could order that the accused not leave the country.

Punishment after conviction – Presumption of innocence

 
MADPET reiterates the importance of adhering to legal principle that a person is presumed innocent unless proven guilty, and this ‘proof of guilt’ is not a matter to be determined by the police, prosecution and/or the Minister, but by  a court of law.

As such, prolonged remand for the purposes of investigation, or re-arresting, be in for the same or different offences, and further remands could be seen as a violation of the presumption of innocence principle.

Punishment comes only after conviction and sentencing by a court of law, and not before.

Duty to report suspected crimes in any country?

 
Every human person has an obligation to highlight any alleged wrongdoing, crime, injustice or human rights violation – they are not expected to be indifferent or to turn a blind eye to the occurrence of suspected wrongdoings.

Whether the allegation is true or not, or even whether there is evidence to support it or not, it is not the concern of the person lodging reports. That will be a matter for the relevant investigation authorities to investigate and determine.

There is also no law in Malaysia that says that a Malaysian can only file reports/complaints about wrongdoings by Malaysians or Malaysian companies in Malaysia, and to file any such reports/complaints in any other country is a crime.

Deterring lodging of complaints against ‘powerful’ persons and companies?

Hence, MADPET, from information provided thus far in media reports, fails to see how what Khairuddin is alleged of doing, being the filing of reports with authorities in other countries, could even be perceived as a crime.

Note that the relevant authority in any country will only commence investigation if and only if the subject matter is a violation of their applicable laws, and it is a matter that falls within their jurisdiction.

Malaysia needs to be very concerned that its actions now may only deter Malaysians from lodging reports/complaints about suspected crimes or wrongdoings against ‘powerful’ personalities and companies.
 

No one is above the law.

MADPET thus calls for:

a) The immediate release of Datuk Seri Khairuddin Abu Hassan;
 

b) The immediate stop of the usage of Security Offences (Special Measures) Act 2012 (Sosma) in this and all other cases in Malaysia;
 

c) The repeal of this draconian Security Offences (Special Measures) Act 2012 (Sosma); and also
 

d) The removal of all offences in our laws that criminalizes activities ‘detrimental to parliamentary democracy’, which is just too vague and as such could be easily abused. – September 28, 2015. Malaysian Insider
 

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.

 

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