Saturday, June 09, 2018

MADPET and 6 Or - Malaysian UPR Submission


Death penalty in Malaysia
Joint stakeholder report for the 31st session of the Working Group on the Universal Periodic Review – March 2018
Submitted by
Anti-Death Penalty Asia Network (ADPAN)
Ensemble contre la peine de mort (ECPM)
The Advocates for Human Rights
Harm Reduction International (HRI)
The World Coalition Against the Death Penalty (WCADP)
Kuala Lumpur and Selangor Chinese Assembly Hall Civil Rights Committee (KLSCAHC/Malaysia)
Malaysians Against the Death Penalty (MADPET)


Anti-Death Penalty Asia Network (ADPAN) is an independent inter-regional network committed to working to end the death penalty in the Asia-Pacific region. ADPAN is made up of NGOs, organisations, groups from civil society, lawyers and individual members. It is not linked to any political party, religion or government.

Ensemble contre la peine de mort (ECPM / Together against the Death Penalty) is a French non-governmental organisation that fights against the death penalty worldwide and in all circumstances by uniting and rallying abolitionist forces across the world. The organisation advocates with international bodies and encourages universal abolition through education, information, local partnerships and public awareness campaigns. ECPM earned its legitimacy as a unifying group of the abolitionist movement because of its strong sense of ethics and values. ECPM is the organiser of the World Congresses Against the Death Penalty and a founding member of the World Coalition Against the Death Penalty. In 2016, ECPM was granted consultative status with ECOSOC.

Founded in 1983, The Advocates for Human Rights is a volunteer-based non-governmental organization committed to the impartial promotion and protection of international human rights standards and the rule of law. In 1991, The Advocates adopted a formal commitment to oppose the death penalty worldwide and organized a Death Penalty Project to provide pro bono assistance on post-conviction appeals, as well as education and advocacy to end capital punishment.

Harm Reduction International (HRI) is a leading non-governmental organisation working to reduce the negative health, social and human rights impacts of drug use and drug policy by promoting evidence-based public health policies and practices, and human rights based approaches to drugs.
The Word Coalition against the Death Penalty (WCADP) is composed of more than 150 NGOs, bar associations, local authorities and unions. It aims to strengthen the international dimension of the fight against the death penalty. The World Coalition provides a global dimension to the action taken by its members in the field, who are sometimes isolated. Its work complements their initiatives while respecting their independence.

I.               Introduction

1.        This joint stakeholder report aims to provide up-to-date and useful information to understand the reality of the death penalty in Malaysia, in view of the next review of Malaysia by the Working Group on the Universal Periodic Review (UPR) in November 2018. The substantive information was gathered by ADPAN and its Malaysian members from news, reports and testimonies of lawyers, NGO members, etc.; it was then complemented by The Advocates for Human Rights, the WCADP, HRI and ECPM, which co-drafted the final report. 

2.        In order to comprehend some aspects of the use of the death penalty in Malaysia, it is important to understand its basic political system. Malaysia is a federal constitutional monarchy, composed of 13 states and 3 federal territories. The 13 states are governed by a titular hereditary head of state or a King-appointed governor, as well as an executive Chief Minister. The federal territories are ruled directly by the King and paramount ruler of Malaysia.

3.        Malaysia is one of the leading death-sentencing and executing states in the world. Despite some timid steps towards more transparency and abolition (such as abolishing the mandatory death penalty for drug trafficking), Malaysia’s use of capital punishment is still shrouded in secrecy and no further progress towards abolition can be observed.

II.               Legal framework regarding the application of the death penalty in Malaysia

A.      National legal framework

4.        As one of the world’s top executing countries, Malaysia makes provision in its legislation for the death penalty for numerous crimes. Although the Federal Constitution acknowledges the right to life of every human, it also recognizes the possibility of the death penalty.[1] Capital punishment is provided for in six laws for more than 20 offenses. It is also mandatory for nine offenses, making Malaysia one of the few countries where the sentencing authority does not always have discretion in capital cases.

5.        The law sets hanging as the method of execution.[2] It also prohibits the execution of pregnant women, whose death sentence is to be commuted to life sentence once their pregnancy is proven.[3]

Crimes punishable by death

Crimes punishable by death are not limited to the “most serious” crimes

6.        Not all of the crimes subject to the death penalty include an element of intentional killing. The Penal Code[4] is the legislation containing most death penalty provisions. It can be carried out for common law crimes (e.g. homicide; kidnapping, gang-robbery, rape or hostage-taking followed by death), as well as political and military offenses (crimes against the ruler of the state, terrorism or mutiny). Capital punishment is mandatory for, most notably, murder, terrorism and offense against the rulers.

7.        Under the Dangerous Drugs Act 1952, drug trafficking may be punishable by death.[5] Drug trafficking is the main offense for which death sentences are handed out in Malaysia. A high number of foreign nationals are convicted under the Dangerous Drugs Act.

8.        Capital punishment is also available as a penalty in the Kidnapping Act[6] (kidnapping for ransom), the Internal Security Act (armed offenses in security areas) and the Armed Forces Act (various civil offenses perpetrated during service, such as murder and various military offenses (e.g. communicating with the enemy).

9.        The Economic and Social Council of the United Nations (ECOSOC) endorsed a resolution in 1984 upholding nine safeguards on the application of the death penalty which affirmed that capital punishment should only be used for the “most serious crimes”.[7] This threshold was specified to mean crimes that were limited to those “with lethal or other extremely grave consequences”[8], and was endorsed by the UN General Assembly.[9] This threshold is not being met by Malaysia.

ð Amend the Penal Code, the Dangerous Drugs Act, the Kidnapping Act, the Internal Security Act, the Firearms (Increased Penalties) Act and the Armed Forces Act to eliminate the death penalty for all crimes, especially those that do not result in death.

Some offenses are subject to a mandatory death penalty

10.     The Parliament limited the mandatory application of the death penalty to drug trafficking offences via reforms to the Dangerous Drugs Act in November 2017. This is outlined in detail below. 

11.     The Firearms (Increased Penalties) Act[10] provides for a mandatory death penalty in the case of a scheduled crime (or complicity to commit such a crime) committed with a firearm discharge, irrespective of whether any harm is caused.

ð Abolish the mandatory death penalty for all offences and restrict the scope of the death penalty to the “most serious crimes”.

The pardoning process

12.     Persons sentenced to death have the possibility to petition for pardon on their own initiative[11]. Their application is then reviewed by the State Board of Pardons, which advises the Ruler of the State. The ruler has the ultimate power of clemency.

13.     As described in greater detail in paragraph 31 below, even though the Ruler of the State has the power of pardon, there are no clear rules governing the process (who can petition for pardon, how to do it, how long it takes, etc.). As a result of this lack of transparency, there is no way to assess whether the pardoning authorities are using their discretion in a discriminatory manner.

B.       International legal framework

14.     Malaysia has ratified only 5 of the 18 international human rights treaties. It is not party to the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol (OP2), the only binding instrument on the abolition of death penalty. The same applies to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatments or Punishments (CAT) and its optional protocol (OPCAT). Malaysia did however ratify the Convention on the Rights of the Child, thus prohibiting death sentencing and execution of children and child offenders.

15.     Finally, the Malaysian State has continuously voted against the United Nations resolution for a universal moratorium on executions, since its first occurrence in 2007, always also signing the note verbale of dissociation to reassert its formal opposition to the text.

16.     There are also very few international safeguards surrounding the application of the death penalty in Malaysia.

ð Ratify the International Covenant on Civil and Political Rights and its Second Optional Protocol.
ð Ratify the Convention against Torture and its Optional Protocol.
ð Abstain in the vote on the UN resolution on a universal moratorium on executions.

C.       The UPR in 2013

17.     The last review of Malaysia by the Working Group on the UPR took place in 2013. In its national report before the session, the Malaysian government stated that the death penalty was applied only for the most serious crimes, in line with Article 6 of the ICCPR, even though Malaysia is not party to the treaty. 

18.     In total, 22 recommendations on the death penalty were made to Malaysia during the 2013 UPR session. It was the fourth most addressed topic, representing 9% of all recommendations made to the country.[12] Most of the death penalty recommendations addressed the issues of the mandatory death penalty (calling for its abolition) and the implementation of a moratorium. Malaysia rejected all those recommendations except for one: “maintaining its good example in observing the legal safeguards surrounding the application of death penalty”. This recommendation is vague and fails to clarify what those legal safeguards are. In fact, as this report indicates below, Malaysia has not met the international legal safeguards on death penalty, especially regarding the right of the accused to a fair trial free from corruption and intimation.

19.     During the interactive dialogue, the Malaysian government acknowledged the debate on the issue of the death penalty in civil society which, with the decrease in death sentences and executions between 2009 and 2013, showed a “trend against the implementation of death penalty”.[13] Responding to this trend, the State announced that it would initiate a study on the administration of criminal justice, with a view to comprehensive reforms, including on capital punishment.[14] The government reports that it has completed its study of the criminal justice system, but no results have been disclosed, even following pressure from civil society.

20.     Official government statistics from 2016 indicate 829 death sentences were handed down since 2010, undermining the government’s claim there is a trend against the implementation of the death penalty.

III.               The application of the death penalty in Malaysia

21.     One of the most challenging issues surrounding the use of capital punishment in Malaysia is the lack of transparency. It is hence very difficult to provide detailed information on the death penalty in the country.

A.      Data

22.     Based on Amnesty International’s record, in 2016 alone, at least 36 people were sentenced to death, nine people were executed, and the total number of death row inmates (as of April 2016) stands at 1042. These figures are higher than previous years, making Malaysia the 10th leading executioner in the world in 2016.[15]
ð Establish a moratorium on executions.

23.     In March 2017, in response to a parliamentary question, the government reported that, as of this date, at least 1122 people remained on death row; an increase of 80 death row prisoners from April 2016 to March 2017.

24.     These figures demonstrated that the application of the death penalty was far more widespread than previously thought. The government also revealed some disaggregated data, most notably the high number of foreign nationals (including migrant workers) on death row (413), as well as the crimes for which death sentences are most commonly pronounced (murder, drug trafficking, firearms trafficking, and kidnapping).[16]

25.     The data obtained by Amnesty International and the figures stated above are not up-to-date as there is no official annual release of data and information relating to the use of death penalty by the Malaysia government. The prison authorities repeatedly refuse to release information when requested by civil society or non-governmental organisations. There is no other way to obtain data, except from newspaper reports and when a Member of Parliament takes the initiative to ask such a question during parliamentary session. This lack of information has resulted in difficulties in monitoring accountability and violations. 

ð Annually publish official detailed information on the use of the death penalty in Malaysia (including, but not limited to the number of people sentenced to death and executed; information about the nature of offenses and the reasons why they were convicted; the implementation and the identity of executed prisoners; the number of overturned death sentences on appeal; the number of pardoned convicts; information on the extent to which the above guarantees are incorporated into national legislation).

ð Facilitate access to death penalty statistics for institutions and civil society organisations.

B.       Procedural rights of people facing the death penalty

26.     In Malaysia, people in conflict with the law do not always see their procedural rights respected, especially people accused of capital crimes. These violations of rights occur at all stages of the legal procedure, hence the distinction made in this report between the moments before (arrest and police custody), during (from the first court hearing to the final verdict) and after the process (between the final verdict and the execution or pardon).

Before the process

27.     Violations of human rights happen as soon as a suspect is arrested and taken into police custody. Lawyers regularly report police brutality (at least five deaths in custody were reported last year[17]), acts of corruption, and violations of basic rights to interpretation or legal representation, which often lead to coerced and false confessions. There are very few domestic legal safeguards surrounding arrest and police custody, making such human rights violations difficult to monitor and prosecute.

28.     Many foreign nationals are arrested for drug-related crimes and can suffer from the lack of respect of basic human rights. They are not necessarily provided with immediate and professional interpretation during the crucial hour of police investigation and interrogation, rendering confession based on misrepresentation and/or induced by the investigating officer. Foreign nationals are also particularly prone to lack of legal representation due to the difficult circumstances in which they are living. According to the NGO Iran Human Rights, in Malaysia there are more than 80 Iranians are currently on death row for drug charges in solitary confinement.[18] They were not provided with Farsi interpreters during their interrogations or trials and were not given fair due legal process.[19]

ð Set up an Independent Police Complaint and Misconduct Commission (IPCMC) to investigate corruption and police brutality.

ð Ensure that, prior to their questioning, foreign nationals involved in a case which might lead to the death penalty are informed of their rights to adequate interpretation.

ð Ensure that all persons at risk of the death penalty are questioned in the presence of a lawyer or legal counsel, and an interpreter when needed.

During the process

29.     Capital crimes are prosecuted at the High Court. When an accused is charged for a capital offence, they must be legally represented. The court will assign a defence attorney if they cannot afford one. The assignment is voluntarily, usually from a pool of defence attorneys who are willing to take up capital cases. These attorneys are often overworked with briefs that generate income as well as with cases on a pro-bono basis. Besides experience and expertise, defending a capital case requires the upmost attention and resources of an attorney, which are sometimes simply not available to them. 

At times, defence attorneys also face obstacles and challenges in gathering evidence due to the lack of monetary and human resources. This situation has a negative impact on accused persons coming from vulnerable groups, especially foreign nationals. Equipped with little understanding of the local legal system, foreign nationals also frequently face financial and/or language barriers. If they are unable to secure effective legal representation at the outset, it becomes very difficult – if not impossible – to ensure a fair trial and the services of a competent lawyer. This can make the difference between arrest and charge, conviction and acquittal, and in cases of the death penalty, the difference between life and death.

30.     In addition, there are concerns about corruption, including but not limited to the integrity of prosecution, witnesses and evidence; of lack of sufficient time for the defence attorney in preparation of the trial where crucial evidence is given at the last minute; of the lack of independent professional witnesses such as forensic and mental health experts. For example, a South Korean student charged under Section 39B of the Dangerous Drugs Act which carries the mandatory death penalty, was recently acquitted and discharged by the Court after the key witness admitted that he had lied in his testimony after the defence team produced CCTV evidence directly contradicting his evidence given under oath.[20]

ð Take concrete measures to ensure the integrity of the prosecution, witnesses and evidence.

ð Ensure that defence attorneys of persons facing the death penalty have sufficient time and access to evidence to prepare the trial consequently.

After the process

31.     Even though a person sentenced to death has the right to petition for pardon, the process is neither transparent nor fair. The right to clemency is not automatic and the process has no established or clear rules. The Board of Pardons rarely meets and does so without a fixed frequency. As a result, petitioners do not have the opportunity to present their case before the Board and the Board is not required to disclose the explanation for its decision, suggesting that the decision itself may be obscure and arbitrary. Moreover, there is no procedure to stay an execution while a petition for pardon is pending. Of the four known executions 2017, two were carried out while the petitioners’ clemency requests were pending.

ð Establish precise and transparent rules governing the pardon process and the functioning of the Boards of Pardons, specifically by setting a regular meeting frequency and an obligation to publish its findings.

ð Take concrete measures to inform those facing the death penalty of their right to petition for pardon.

ð Ensure that, if a death row prisoner is petitioning for pardon, their death sentence is suspended throughout the entire pardoning process.

32.     One of the most meaningful manifestations of the lack of transparency on the issue of the death penalty in Malaysia is the secrecy around the execution process. Executions are carried out in secret with no established procedure to notify the person sentenced to death or their family[21]. Very short notice (two days at most) is the norm.[22] In 2016, the families of three death row inmates were given notice two days before their execution, while the inmates received notice only the day before their execution.[23]

ð Establish precise and transparent rules governing the execution process, especially on the notice of execution given to the death row inmate, their lawyers and their family.

C.       Living conditions on death row

33.     Very little is known about the status and living conditions of death row inmates in Malaysia. They are usually kept in solitary confinement once their sentence has been imposed.[24] Once in solitary confinement, prisoners often lack access to proper drinking water or facilities necessary to maintain hygiene standards for long periods of time, creating conditions in which disease and ill health can thrive. According to official statistics, 259 prisoners have died in Malaysian prisons since 2000.[25]
 
34.     No one is allowed to meet with death row inmates, with the exception of family members, lawyers, and occasionally religious counselling groups who must be pre-registered and approved. Thus far, there has not been any known visit by a Member of Parliament or civil society of death row prisoners to ascertain their living conditions and whether their rights have been violated. 

ð Facilitate visits of death rows and reports on detention conditions by civil society organisations and parliamentarians.


IV.               Recent developments related to the death penalty

A.      Transparency and public opinion

The government’s recent efforts at transparency have not become systematic

35.     In 2016, the government responded to a formal request by Parliament and disclosed figures on the use of capital punishment in Malaysia in recent years. This progress towards more transparency is yet to be qualified, since it has not become a regular practice by the authorities and obtaining data is still a challenge.

The government is doing little to shape public opinion against the death penalty

36.     A 2012 study by Roger Hood for the Death Penalty Project, in association with the Bar Council Malaysia[26], showed that even though the public did not question the death penalty in general, there was an absence of consensus on its mandatory provisions. In 2018, the debate on the death penalty in Malaysia still revolves almost exclusively around the mandatory death penalty, especially amongst politicians, to the point where people tend to confuse death penalty in general with the mandatory application of the death penalty for certain crimes. Civil society in Malaysia and around the world has, for the past 10 years, relentlessly campaigned and lobbied for its total abolition or for at least the abolishment of the mandatory death penalty. These efforts have attracted significant attention from the Government, resulting in the Attorney General’s Office conducting an in-depth study on the death penalty, as well as public announcements by the Minister in the Prime Minister’s Department in charge of law supporting the abolition of the mandatory death penalty on numerous occasions.

B.       The 2017 amendment to the Dangerous Drug Act

The death penalty for specific drug offences

37.     Malaysia is one of only 33 countries that currently retain the death penalty for drug offences in law. While the secrecy around the use of the death penalty was lifted to a limited extent in 2016, data on death sentences for drug offences remain opaque, with estimates on sentences and executions generally compiled by non-governmental organisations.[27] According to HRI research there have been no known executions for drug-related offences since 2013, but of the estimated 1124 people on death row in 2017, at least 675 – or over 60% – were charged with drug-related offences.[28]

38.     Until very recently, Malaysia was also one of 10 countries that retained the mandatory death penalty for drug trafficking. On 30 November 2017, Parliament amended the Dangerous Drugs Act to abolish the mandatory death penalty for drug trafficking.[29] This reform came into force on 15 March 2018 and allows judges to use their discretion – under specific conditions – in sentencing drug trafficking offences where capital punishment was previously applied automatically. Specifically, if a judge is satisfied that the accused has ‘assisted an enforcement agency in disrupting drug trafficking activities’, and has met one of the three conditions set out in Section 39B(2A) of the Dangerous Drugs Act; the judge may reduce a death sentence to life imprisonment and at least 15 strokes of caning. If the judge concludes that those conditions are not satisfied, the judge must impose the death penalty. 

39.     While welcoming this reduction in scope of the application of the death penalty, the alternative punishment proposed is a concern, as are the application and implementation of these reforms.[30]

Alternative punishment

40.     The alternate sentence is mandatory life imprisonment with no less than 15 strokes of caning. Caning is an inhuman and degrading punishment that violates international law. Mandatory life imprisonment is disproportionate to the offences in consideration.

Implementation of reforms

41.     There are significant limitations in respect of the effect and implementation of these reforms:

a.      Judicial discretion allows judges to consider only four matters, as set out in Section 39B(2A). Jurisprudence on sentencing, such as other mitigating factors or proportionality, is not applicable.
 
b.      Being compelled to cooperate with authorities, in order to simply avoid the death penalty at the court of first instance, will certainly impact the right of appeal to the higher courts; thus leading to a violation of the right to a fair trial.

c.      The burden of proof lies with the accused. In reality, the double presumption law in the Dangerous Drug Act (i.e. presumed to have knowledge and presumed to be trafficking) places the accused person in a disadvantageous position.
42.     Finally, it is of significant concern that the amendments to the Dangerous Drugs Act will not apply retrospectively. There are two categories of people on death row directly affected by this:

§  Firstly, in 2018, between the parliamentary amendment of the Dangerous Drugs Act and its coming into force, at least 10 people were sentenced to the death penalty for drug trafficking[31], five of those being foreign nationals from India and Nigeria. 

§  Secondly, there are currently 675 persons on death row who were sentenced to death for drug trafficking prior to the November 2017 reforms. The new law does not provide previously convicted persons with a legal avenue for review or resentencing.

ð Impose a stay on all executions for drug offences.

ð Advise the King and the Rulers of the States, as well each and every Pardon Board - via the Attorney General - to review all previous convictions of drug trafficking resulting in a death sentence, including (a) persons sentenced since the amendments were adopted in November 2017 and (b) persons sentenced prior to the amendment of the Dangerous Drugs Act; with a view of recommending the full commutation of the death sentences.




[1] ‘Federal Constitution of Malaysia’, incorporating all amendments up to P.U. (A) 164/2009 (1957), art. 5.
[2] ‘Criminal Procedure Code of Malaysia’, A593 as amended by Act A1431 of 2012 (1935), sec. 277.
[3] Ibid., sec. 275.
[4] ‘Penal Code of Malaysia’, Act 574 as amended by Act A1536 of 2017 (1936), secs 121, 122, 130C, 132, 302, 305, 307(2), 364, 374a, 376, 396.
[5] ‘Dangerous Drugs Act of Malaysia’, Act 234 (1952), sec. 39B.
[6] ‘Kidnapping Act’, Act 365 as amended by Act A910 of 1995 (1961), sec. 3(1).
[7] ECOSOC. Implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty Resolution 1984/50. 25 May 1984.
[8] Ibid.
[9] UN General Assembly. Human rights in the administration of Justice. Resolution A/RES/39/118. 14 December 1984.
[10] ‘Firearms (Increased Penalties) Act’, Act 37 (1971), secs 3, 3A, 7.
[11] Federal Constitution of Malaysia, art. 42.
[12] ‘UPR Statistics on Malaysia’, UPR Info, accessed 1 March 2018, https://www.upr-info.org/database/statistics/index_sur.php?action_type=104&cycle=2.
[13] Government of Malaysia, ‘National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (Geneva: United Nations Human Rights Council, Working Group on the Universal Periodic Review, August 2013), 8, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/161/32/PDF/G1316132.pdf?OpenElement.
[14] Ibid.
[15] Amnesty International, ‘Death Sentences and Executions 2016’ (London, 2017), 42.
[16] Amnesty International, ‘Death Sentences and Executions 2016’, 29–30.
[17] Amnesty International, ‘Report 2017/18. The State of the World’s Human Rights’ (London, 2018), 250.
[18] Iran Human Rights. Special Report: 80 Iranian Death Row Prisoners in Malaysia. 10 October 2017. https://iranhr.net/en/articles/3089/
[19] Iran Human Rights. Special Report: 80 Iranian Death Row Prisoners in Malaysia. 10 October 2017. https://iranhr.net/en/articles/3089/
[20] Sarban Singh, ‘S. Korean Student Freed of Drug Charge’, The Star (Online), 5 October 2017, https://www.thestar.com.my/news/nation/2017/10/05/s-korean-student-freed-of-drug-charge-judge-acquits-20yearold-after-police-officer-admits-he-lied-in/.
[21] Amnesty International, ‘Report 2017/18. The State of the World’s Human Rights’, 250.
[22] Suara Rakyat Malaysia (SUARAM), ‘Human Rights Report 2017: Malaysia’, 2017, 55.
[23] International Federation for Human Rights (FIDH), ‘Going Backwards: The Death Penalty in Southeast Asia’ (Paris, 2016), 10.
[24] Amnesty International Malaysia. Malaysia: Death Penalty Reforms must be an Opportunity for Positive Human Rights Change. 2 November 2017. http://aimalaysia.org/content/malaysia-death-penalty-reforms-must-be-opportunity-positive-human-rights-change; Iran Human Rights. Special Report: 80 Iranian Death Row Prisoners in Malaysia. 10 October 2017. https://iranhr.net/en/articles/3089/
[25] Iran Human Rights. Special Report: 80 Iranian Death Row Prisoners in Malaysia. 10 October 2017. https://iranhr.net/en/articles/3089/
[26] Roger Hood, ‘The Death Penalty in Malaysia: Public Opinion on the Mandatory Death Penalty for Drug Trafficking, Murder and Firearms Offences’ (London: The Death Penalty Project, 2013).
[27] Amnesty International. Death sentences and executions, 2017.
[28] Gen Sander, ‘The Death Penlaty for Drug Offences: Global Overview 2017’ (London: Harm Reduction International (HRI), 2018), 27, https://www.hri.global/files/2018/03/06/HRI-Death-Penalty-Report-2018.pdf.
[29] ‘Dangerous Drugs (Amendment) Act 2017’, Dangerous Drugs Act 1952 (2017).
[30] Charles Hector and Ngeow Chow Ying, ‘No Reason to Delay Commencement of DDAA 2017’, Malaysiakini, 14 February 2018, https://www.malaysiakini.com/letters/412257; Hands Off Cain, ‘Malaysia: Three Sentenced to Death for Drug Trafficking’, 13 February 2018, http://www.handsoffcain.info/notizia/malaysia-three-sentenced-to-death-for-drug-trafficking-40301596.
[31] Hector and Ngeow Chow Ying, ‘No Reason to Delay Commencement of DDAA 2017’; Hands Off Cain, ‘Malaysia: Three Sentenced to Death for Drug Trafficking’.

MADPET - Repeal POCA And Detention Without Trial Laws, Sedition Act And Anti-Freedom Laws At 1st Parliamentary Seating beginning 16 July 2018

Media Statement – 9/6/2018
Repeal POCA And Detention Without Trial Laws, Sedition Act And Anti-Freedom Laws At 1st Parliamentary Seating beginning 16 July 2018
-        Draconian laws, until repealed, allows injustice to continue on victims, now and in near future as is now happening to Kadir Jasin…
MADPET (Malaysians Against Death Penalty and Torture) urges our new Pakatan Harapan government to, at the upcoming 1st Parliamentary session beginning 16 July 2018,  to table Bills repealing the Prevention of Crimes Act 1959(POCA) and all remaining Detention Without Trial(DWT) Laws.
Thereafter, the right to a fair trial will be a reality for all in Malaysia. No more will anyone be subjected to arbitrary detention and/or restrictions without first being accorded the right to a fair trial, and sentenced by court after being found guilty. Laws that allow the exclusion of normal evidential requirements and criminal procedures like the Security Offences (Special Measures) Act 2012 (SOSMA) need also to be repealed fast.
Now, thousands of persons are still victims of these draconian DWT Laws, that denies victims even the right to even challenge the very reasons for their arrest, detention and/or restrictions – because these DWT law also do specifically deny the court’s right to judicially review the reasons these DWT laws were even used against person/s.
It has been almost one(1) month, and there has still nothing done to forthwith release all victims of these Detention Without Trial Laws. Home Minister Muhyiddin really must make this a priority, as the majority of the victims of DWT laws are Malaysians.
Note, that the Prevention of Crime Act(POCA) now allows, following amendments done by the previous UMNO-BN government in 2014 and 2015, for any person(who allegedly acted with others) who have committed ANY Penal Code Offence, including possibly for stealing a cow, to now simply be denied a trial and just be detained/restricted indefinitely under this DWT law.
It is also so easy to simply arrest and detain former premier Najib Tun Razak under these DWT laws, for after all, he will also not be able to challenge whatever reasons used. When Malaysian voted out the UMNO-BN, what we wanted was justice and rule of law, so we certainly do not want such DWT laws to even exist, let alone, be used against anyone anymore in this new Malaysia.
Note that being arrested detained and/or restricted under DWT laws is not a sentence of the court after being found guilty and convicted. All these DWT victims can also at any time in the future still be charged, tried, convicted and sentenced again for the very same alleged ‘crimes’ for which  they are now being(or had previously been) detained and/or restricted under DWT laws.
In the past, there may also be possible ulterior motives for the use of these DWT trials, which may also include corruption, other ulterior motives and/or  even the ‘protection’ of other guilty parties. It also encourages, incompetence and inefficiency, amongst the police, enforcement agencies and even prosecutors. No need for proper investigation, or the need to acquire sufficient evidence, to prove to the court that a person is guilty beyond reasonable doubt.
Many in this new Pakatan Harapan government, including Anwar Ibrahim, Mat Sabu, Lim Kit Siang, and Lim Guan Eng, have personally experienced detention and injustices when they fell victim to such Detention Without Trial(DWT) laws in the past, and as such, the immediate repeal of all these draconian DWT laws which includes the POCA, Prevention of Terrorism Act 2015(POCA) and the Dangerous Drugs(Special Preventive Measures) Act must happen fast, during the first sitting of Parliament.
Our new Home Minister, Muhyiddin Yassin, and our new Attorney General, Tommy Thomas, must really make this a priority now. Pakatan Harapan acted speedily in moving to get a royal pardon for Anwar Ibrahim, it is hoped that this same determination is shown to other Malaysians and others who continue to languish under these draconian DWT laws.
Likewise, other laws that impede freedom of expression, opinion, peaceful assembly and freedom of the press including that draconian Sedition Act must be repealed at the first sitting of Parliament.
Recent investigations commenced by the police under the Sedition Act and such anti-freedom laws, is just another obvious reason why such laws must forthwith be repealed, for if not, it will continue denying Malaysians the very fundamental freedoms and justice that we all fought for, when we ousted the long-standing oppressive UMNO-BN government, and put in place this alternative new government who promised us justice and freedom in Malaysia.
Delay is not an option, and excuses like a need for ‘further study and/or review’ could suddenly emerge from even Pakatan Harapan or its leaders, now that they are now in government, and such draconian legislations could now be used against their opponents and critics.
The silence of Pakatan Harapan parties and leaders, when the draconian Sedition Act was being used by the police in the recent cases of Kadir Jasin and Hishamuddin Rais is a serious concern.
As such, MADPET urges the Malaysian government to not dilly dally and to immediately repeal POCA, POTA and all Detention Without Trial Laws, the Sedition Act and all other draconian laws that suppress freedoms including freedom of expression, opinion, dissemination/sharing of information, peaceful assembly and press freedom.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
 

Friday, June 01, 2018

Another man with a machette shot and killed by police? Speedy INDEPENDENT inquiry needed?

Police shoots and victim dies ...

“He came at them with a machete and they had to open fire to defend themselves, killing him,” he said.
This is what the police tells us - but, I and possibly many others may doubt the police version of events... Remember, the DUTY of the police is to ARREST - and, of course, when carrying out an arrest reasonable force can be used. 

In this case, a man allegedly carrying a machete...was the shooting him a use of reasonable force by the police? Did the police shoot with the intention to subdue and arrest? Or did they shoot with the intention to kill?

Police gives their 'version' - but, is it true? We really need an INDEPENDENT investigation - maybe by court, through an inquest or 'inquiry into the death' - which also decides whether there was any 'criminality' involved on the part of the police.

What does the new Pakatan Harapan say about this...what does Muhyiddin, our new Home Minister, which is also responsible for the police have to say?

What does the new ATTORNEY GENERAL advise be done?

If there is going to be an independent inquiry, it needs to be done fast? Should SUHAKAM or EAIC be given obligation to do this speedy investigation/inquiry in incidents where police shooting that resulted in death happens, where there are allegations of torture by the police, where there is death in custody??

 



Police shoot fake forex syndicate member dead


Monday, 21 May 2018

  • KUALA LUMPUR: A suspected member of a fake foreign currency exchange syndicate was shot dead and four others arrested in a late-night run-in with police in Ampang.

    The syndicate, known as Gang Gagak Hitam (Black Crow Gang), was in the midst of robbing a victim when police came upon them, leading to a high-speed pursuit.

    City police chief Comm Datuk Seri Mazlan Lazim said the syndicate offered unusually high exchange rates for US dollars to Malaysian ringgit in order to entice potential victims using social media.

    “They would lure their victims to a secluded spot and rob them.

    “In this case, they offered an exchange rate of 6.5 to a 28-year-old businessman, who wanted to exchange US$150,000,” he told a press conference at city police headquarters yesterday.

    Comm Mazlan said the businessman met two local men, who acted as middlemen for the exchange, at a five-star hotel in the city at about 10.30pm on Saturday.

    “They then introduced the businessman to an Arabian man, who drove him to another place on the pretence of making the exchange there.

    “The victim was driven to a secluded spot along Jalan Damai at about 1am, where four African men in another car arrived and ambushed them with machetes and a taser before taking the cash,” he said.
    A team of police officers who were patrolling the area spotted the robbery in progress.

    “They saw the Arabian man get out and jump into the second car with the four Africans. My men gave chase until Jalan Memanda 2, where the suspects got out of the car and tried to escape separately on foot,” he said.

    The team also split up and continued their pursuit.

    One of the suspects ran into an empty construction site and tried to attack two officers who were chasing him.

    “He came at them with a machete and they had to open fire to defend themselves, killing him,” he said.

    The Arabian and another African man were nabbed while two other suspects escaped with the cash.

    Police also arrested the two local middlemen to help with investigations.

    All four, aged between 28 and 50, have been remanded for four days.

    “We have been tracking this gang for a while now.

    “We have had 40 reports of similar cases since 2016 with losses of over RM12mil.

    “In fact, the team was patrolling the Jalan Damai area because that was the location where other similar cases took place, and we got lucky,” Comm Mazlan said.

    He urged the public to refrain from being enticed to exchange currencies for a higher rate on the black market.

    “You may find yourself losing all your money just because of greed,” he added.

    Police are tracking the two syndicate members still at large. - Star, 21/5/2018

    Thursday, March 15, 2018

    MADPET - At Last, Mandatory Death Penalty For Drug Trafficking Abolished With Coming Into Force Amendment Act On 15 March 2018






    Media Statement – 15/3/2018

    At Last,  Mandatory Death Penalty For Drug Trafficking Abolished With Coming Into Force Amendment Act On 15 March 2018

    MADPET(Malaysians Against Death Penalty and Torture) is pleased that the Dangerous Drugs Amendment Act 2017, which received royal assent on 27/12/2017, has finally, after much delay, has come into force as of 15 March 2018.

    The gazette notification appointing the date this new law comes into operation, that will abolish the mandatory death penalty for drug trafficking, giving judge’s discretion to be able to sentence those convicted of drug trafficking to an alternate sentence of life imprisonment with not less than 15 strokes of the whip, dated 8/3/2018 was signed by the Minister of Health. It was odd that it was not the Minister in the Prime Minister's Department Datuk Seri Azalina Othman, the facto Law Minister or the Home Minister.

    It must be pointed out that this still unexplained delay has resulted in grave injustice to at least 10 persons, who had been sentenced to the mandatory death penalty this year until 15/3/3018, because judges still had no discretion to consider and impose any other sentence other than death penalty until the date the Act comes into operation. It must be noted that not all persons convicted and sentenced to death for drug trafficking would have been reported by the media. This 10 media reported cases included 5 Malaysians and 5 foreign nationals, being:-


    -          S. Pragasam(30) – Ipoh High Court(Malay Mail, 9/2/2018)
    -          Ong Cheng Yaw(33) and San Kim Huat(38) – Kuala Lumpur High  Court (Malaysian Insight, 8/2/2018)
    -          Jonas Chihurumnanya(Nigerian) – Kuching High Court (The Borneo Post, 30/1/2018)
    -          S. Gopi Kumar(33) – KL High Court( (The Sun Daily, 24/1/2018)
    -          A. Sargunan(42), and four Indian nationals, namely Sumesh Sudhakaran(30), Alex Aby Jacob Alexander(37), Renjith Raveendran(28), and Sajith Sadanandan(29) – Shah Alam High Court (The Sun Daily, 22/1/2018)


    This new law, when it comes into force, will only benefit persons who have yet to be convicted by the High Court. If already convicted and sentenced to death before the law came into force, then even the Appellate Courts will not have the power to review the death sentence, and impose an alternative sentence for drug trafficking. The only way, that those already sentenced to death can escape the death penalty is if the Appellate Courts set aside the conviction for drug trafficking.

    Even after the amending Act comes into force, there are still serious flaws, including limitation on the factors that Judges could consider when imposing the appropriate just sentence after conviction. The law now states, that judges ‘…may have regard only to the following circumstances…’ being a limited list of  four matters. In criminal trials generally, judge will consider all relevant factors and circumstances of the case and/or the relevant convicted persons, including also age, whether he/she is a first time offender, etc.. before imposing a just and appropriate sentence.

    At present, there is also mandatory requirement ‘…that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia…’ before a judge can impose a sentence other than death. This is unjust for it impacts of an individual’s right to a fair trial, for an innocent person, when convicted at the High Court may be forced to incriminate himself truthfully and/or falsely simply to avoid the death penalty. This ‘admission’ will also impact on his right of appeal against conviction and sentence to the Appellate Courts, be it the Court of Appeal and/or the Federal Court.

    The new amendments also failed to deal with the 800 plus persons currently on death row for drug trafficking, including also others who have already been convicted before the Amending Act came into force.

    MADPET calls for the immediate amendment of the law to ensure full, unfetterered discretion be given to judges  when it comes to sentencing those convicted of drug trafficking.

    We also urge that judge’s discretion when it comes to the imposition of imprisonment not be simply limited to life imprisonment, but is extended  possibly by setting a more just and reasonable minimum sentence of not more than 5 -10 years especially for first time offenders;

    MADPET also calls for the abolition of the mandatory death penalty for the about 11 remaining offences in Malaysia, and for the total abolition of the death penalty; and

    MADPET also reiterates the call for a moratorium on executions pending abolition of the death penalty in Malaysia.

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