MADPET welcomes Malaysian Cabinet Decision to Abolish the Death Penalty

Media Statement – 11/10/2018

MADPET welcomes Malaysian Cabinet Decision to Abolish the Death Penalty

MADPET(Malaysians Against Death Penalty and Torture) welcomes the announcement that the Malaysian Cabinet has finally decided to abolish the death penalty, and that the needed Bill will be tabled at the next Parliamentary session, now scheduled to begin on 15/10/2018.

In the evening of 10 October 2018, the 16th World Day Against the Death Penalty, it was reported in the media that ‘…The Cabinet has decided to abolish the death penalty, and it will be tabled in the next Parliament sitting, which will begin on October 15, said Datuk Liew Vui Keong.The minister in charge of law in the Prime Minister’s Department said while the government is studying certain cases, as of now, all executions have been halted.“All death penalty will be abolished. Full stop….’(Malay Mail, 10/10/2018)

With regard persons currently on death row ‘…the Pardons Board will be tasked with looking into the applications of death row inmates. “Our view is that executions should not be carried out we will inform the Pardons Board to look into the various applications for all the death row inmates to either commute or release them…’ (Malay Mail, 10/10/2018)

This will certainly be good news for the spouses, children and relatives of the about 1,267 people on death row or 2.7% of the prison population of about 60,000 people.(Star, 28/6/2018). Their parent and/or relative will no longer be hanged to death and will live.

Whilst the announcement of the cabinet decision by the Minister is most welcome, in Malaysia, one will have to wait until the needed Bills are tabled in Parliament, become law and then put into force, hopefully by the end of 2018. Malaysians have been subjected by similar promises and/or assurances by Ministers in the past government, only to be later disappointed.

As such, it is our hope that the said Bills that will effectively abolish the death penalty will be tabled at the upcoming Parliamentary session, at the very least for the First Reading, if there be no time for it to be debated and passed.

MADPET hopes that Members of Parliament and Senators from the Opposition parties will fully support the just move to abolish the death penalty.

MADPET await the day when we can finally celebrate the abolition of the death penalty in law, and there will be no more death row in Malaysia.

Charles Hector

For and on behalf of MADPET

Note:-

·         Malay Mail, 10/10/2018 - Minister: Putrajaya to abolish death penalty [https://www.malaymail.com/s/1681448/minister-putrajaya-to-abolish-death-penalty]

·         The Business Times, 10/10/2018 – Malaysia To Abolish Death Penalty [https://www.businesstimes.com.sg/government-economy/malaysia-to-abolish-death-penalty]

Minister: Putrajaya to abolish death penalty

Published 10 hours ago on 10 October 2018

By Ida Nadirah Ibrahim

Minister in the Prime Minister’s Department, Datuk Liew Vui Keong, gives a speech during the ‘Law Reform Talk’ in Universiti Malaya October 10, 2018. — Picture by Miera Zulyana

PETALING JAYA, Oct 10 — The Cabinet has decided to abolish the death penalty, and it will be tabled in the next Parliament sitting, which will begin on October 15, said Datuk Liew Vui Keong.

The minister in charge of law in the Prime Minister’s Department said while the government is studying certain cases, as of now, all executions have been halted.

“All death penalty will be abolished. Full stop.

“We are studying certain issues... we need to look into it and hear the views of all, but as it stands today, the decision is to abolish the death penalty,” he told the media after the “Law Reform Talk” at Universiti Malaya here, today.

Liew said that with Putrajaya intending to abolish the death penalty, the Pardons Board will be tasked with looking into the applications of death row inmates.

“Our view is that executions should not be carried out we will inform the Pardons Board to look into the various applications for all the death row inmates to either commute or release them.

“When commuted, they would have to face life imprisonment because there had been several deaths that were caused by the offender and so they were sentenced to death by the court,” he said.

Liew added that all the paperwork for the abolishment of the law is in its final stages, and that the Attorney General (AG) had given the green light for it to be tabled in Parliament.

“All the papers are in the final stage. The AG has also indicated to us that it is ready to be tabled, hopefully in this (Parliamentary) session,” he said.

Earlier in his opening speech, Liew said the Pakatan Harapan government is also mulling a repeal of the Sedition Act 1948 and other draconian laws. - Malay Mail, 10/10/2018

MADPET - PH Government need make good promise to abolish ‘Mandatory Death by Hanging in all Acts’

Media Statement – 10/10/2018 – World Day Against the Death Penalty

PH Government need make good promise to abolish ‘Mandatory Death by Hanging in all Acts’

-         

 Abolish the Death Penalty And Commute All Death Sentences -

On 10 October 2018, the 16th World Day Against the Death Penalty, MADPET(Malaysians Against Death Penalty and Torture) wants to remind the Malaysian government that it has yet to make good its promise to abolish mandatory death penalty in Malaysia.

In the Pakatan Harapan Manifesto, it was clearly stated that ‘The Pakatan Harapan Government will revoke the following laws: Sedition Act, Prevention of Crime Act 1959…Mandatory Death by Hanging in all Acts…’

Currently in Malaysia, the death penalty is mandatory for about 12 offences, while about 20 other offences are punishable by a discretionary death penalty. Murder and Drug Trafficking carry the mandatory death penalty. Many of these mandatory death penalty offences do not even involve in any death or grievous injuries to victims.

The effect of abolishing the mandatory death penalty will restore judicial discretion when it comes to sentencing. Judges, will thereafter, be able to evaluate each and every convicted person and determine what the just and fair sentence should be, after taking into account all factors and circumstances.

The mandatory death penalty is undemocratic as it violates the democratic principle of separation of powers. The legislature (Parliament) has robbed the judiciary of their rightful role and power when it comes to sentencing.

When a law, provides for just one mandatory sentence, in this case death, judges on finding a person guilty of the said offence, have no choice but to sentence the convicted to death, even if he/she justly do not justly deserve to be hanged to death.

Many of the politicians and political parties that are now in power, previously in Opposition, were always for the abolition of the death penalty, but now when in power,, it is disappointing to see that they are procrastinating. Further, it must be reminded that they are yet to make good their election promise to repeal all laws that provide for ‘Mandatory Death by Hanging…’, which was a decision and commitment of all the 4 Pakatan Harapan party.

As of end June, there are 1,267 people on death row or 2.7% of the prison population of about 60,000 people. (Star, 28/6/2018) 35 executions took place from 2007 to 2017

The death penalty in Malaysia currently are provided for in secular or ordinary laws, not in Islamic law. As such there is no reasonable justification for any Muslim in Malaysia to oppose abolition of the death penalty on the grounds that Islam allows death penalty for certain specified offences. In Islam, there is a strict requirement to comply with Islamic Criminal Procedure and Evidential requirements. Even then, in Islam, for example murder, there are ways that the death penalty can be avoided.

As the Acts that now provide for death penalty in Malaysia are in the secular law, Muslim politicians and their parties that use the argument that Islam allows for the death penalty, so we oppose the abolition, are very wrong. They need to demonstrate leadership not fear.

The ‘best interest of the child’ is certainly best served by incarceration of a parent, sibling or relative rather than having them hung to death by the State. Malaysia, who have ratified the Child Rights Convention(CRC), has an obligation to do what is in the best interest of the child, and as such this is yet another reason why the death penalty must be abolished. 

The possibility of miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable is yet another reason why the Death Penalty needs to be abolished. We recall the words of the then Malaysian Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz, who said “No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?”(Star, 29/8/2010, Abolish death penalty, it’s incorrect to take someone’s life, says Nazri).

In the Malaysian context today, it would have been great injustice if the 2 convicted for the murder of Altantuya Shaariibuu had been hanged, for then it may result in others involved escaping justice. Likewise, in other cases where there may other perpetrators of the crime still at large, yet to be arrested, charged and tried.

Abolition of the death penalty is an ineluctable global trend. 106 countries had abolished the death penalty in law for all crimes by the end of 2017 and 142 countries had abolished the death penalty in law or practice. Malaysia embarrassingly is amongst the few countries who still retain the out-dated death penalty and carry out executions.

In 2018, Malaysia, under UMNO-BN, brought into effect the abolition of the mandatory death penalty for drug trafficking.  

It has been about 5 months since the new Pakatan Harapan-led government, but we have yet to see Bills being tabled that will lead to the abolition of the death penalty. Our HOPE is that we will see this happening in the next Parliamentary session or at least by the end of the year.

Being a reformist government, Malaysia needs to make rehabilitation and second chances the principal consideration in sentencing.

MADPET calls for the immediate abolition of the ‘Mandatory Death by Hanging in all Acts…’ as promised in the Pakatan Harapan’s ‘Buku Harapan: Rebuilding Our Nation Rebuilding Our Hopes’;

MADPET also calls for the abolition of the Death Penalty; and

MADPET also calls for immediate moratorium of all executions pending abolition;

Charles Hector

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

Malaysia Johor Sultan pardons 3 Mexican brothers on death row

Malaysia pardons 3 brothers on death row

Agence France-Presse

Posted at Sep 22 2018 01:58 AM

The sultan of the southern Malaysian state of Johor has commuted the death sentences of three Mexican brothers who were set to be hanged for drug trafficking crimes, Mexico said.

After years of lobbying by Mexican diplomats, Sultan Ibrahim Sultan Iskandar of Johor -- one of Malaysia's most powerful and wealthiest state rulers -- commuted the men's death sentences to life in prison, Mexico's foreign ministry said Thursday.

"This was the result of a long process and intense dialogue with Malaysian federal authorities," it said in a statement.

The brothers -- Simon, Luis Alfonso and Jose Regino Gonzalez Villarreal -- were arrested in a raid on a methamphetamine lab in Johor in March 2008.

The brothers, who hail from the Mexican state of Sinaloa -- home to jailed drug lord Joaquin "El Chapo" Guzman's Sinaloa cartel -- insisted they were innocent, saying they had been hired to clean the building and were unaware what was being made inside.

But a Malaysian court sentenced them to hang to death in May 2012. The conviction was upheld on appeal the following year.

Mexico, which does not use capital punishment, neither accepted nor rejected the court's guilty verdict, but pushed for the death sentence to be commuted. ABS-CBN News 22/9/2018

Home Minister say will continue using SOSMA and POCA - Government need to clarify - MADPET Media Statement

Media Statement  - 24/8/2018

MALAYSIA MUST REAFFIRM COMMITMENT TO ABOLISH ANTI-HUMAN RIGHTS LAWS INCLUDING DETENTION WITHOUT TRIAL LAWS AND SOSMA

Home Minister’s 15/8/2018 Reply that Government will continue to use SOSMA and POCA preserve national security most disturbing

MADPET(Malaysians Against Death Penalty and Torture) is most concerned when Malaysia’s new government, vide the Home Affairs Minister, in his Reply to a Parliamentary question dated 15/8/2018, tells us that this government plans to continue to use draconian laws like SOSMA [Security Offences (Special Measures) Act 2012] and POCA [Prevention of Crime Act 1959].

 ‘'...Kerajaan akan terus menguatkuasakan undang-undang untuk memelihara keselamatan negara....(Goverment will continue to enforce laws to preserve national security...), was the words used in the response contained in the reply by the Menteri Dalam Negeri to a Parliamentary Question by Member of Parliament Maria Chin bin Abdullah dated 15/8/2018 who asked about POCA and SOSMA. 

The government reply also did state that a review was being done to see if the usage of such laws are in compliance (or consistent) with human rights norms. [‘…untuk melihat sama ada pengunaan akta-akta  ini selari dengan norma-norma hak asasi manusia…’]

It is most disappointing when the Malaysian government takes such a stance, and really, there is no justification to procrastinate or delay the repealing of these and other anti-human rights laws. 

The correct position is to now impose an immediate moratorium pending repeal of all such laws – no one else in Malaysia should be made victims of SOSMA, POCA and other Detention Without Trial laws, Sedition Act and such bad laws.

Is the usage of these laws in line with human rights norm? 

It is a ‘bad’ joke or a foolish proposition for this NEW government to even suggest a review to find out whether POCA and such Detention without Trial laws are consistent with human rights norms. It has been the stance taken by the Malaysian Human Rights Commission (SUHAKAM), Malaysian Bar, Civil Society and Human Rights Groups, and even the then Opposition Parties and their leaders for many years. 

POCA and Detention without Trial (DWT) Laws violates Human Rights

Detention without Trial (DWT) laws clearly violates Human Rights. 

Article 10 of the Universal Declaration of Human Rights (UDHR) clearly states that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ DWT laws deny the right to a fair trial, and allow the government to detain and/or restrict persons indefinitely without trial. 

Article 11(1) states, ‘(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’ Article 9 states, ‘No one shall be subjected to arbitrary arrest, detention or exile.’

POCA and such DWT laws enable the police (or the government of the day) to subject persons to ‘…arbitrary arrest, detention or exile’. There is no need for any trial, or even any court order. Worse still, is that DWT laws can be used against a person for any alleged reason, which may also be ‘fake’ or false, and the victim cannot even challenge the said alleged reasons used to justify the arrest, detention and/or restrictions by way of judicial review. The judiciary’s power to ensure that there is no wrongdoing on the part of the Executive is curtailed – the courts cannot make sure whether an innocent person has been wrongly detained and/or restricted for a wrong or false reason.

POCA, was amended, amongst others in 2014, and now it is so wide that it can be used against almost anyone, which really may not matter because the law itself prevents a challenge of the very reason for which it was used. 

Today, after these amendments, even former Prime Minister Najib could be arrested and detained under POCA, which now can also be used even in cases where allegedly ‘…two or more persons who associate for purposes which include the commission of offences under the Penal Code..’ – it now covers all offences under the Penal Code – no anymore just crimes "involving violence or extortion".

SOSMA  violates Human Rights and even denies a fair trial

SOSMA, which may be the replacement of the Essential (Security cases) Regulations 1975 (ESCAR),  allows the police to override the existing provisions in our Criminal Procedure Code and the Evidence Act, that  really are there primarily to ensure justice be done and human rights respected.

Our Malaysian Federal Constitution in Article 5(4), states amongst others, ‘…(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority…’. 

However, if the police rely on SOSMA, then there is no more the requirement for the police to bring the person arrested before the Magistrate within 24 hours. The police can simply continue to detain the ‘suspect’ for up to 28 days. 

Now, the  Criminal Procedure Code also sets the maximum period of remand for the purpose of investigation is 14 days, but if SOSMA is used, then no need to even bring the suspect before a Magistrate or get remand orders from a Magistrate, and one can simply be detained for up to 28 days.   

The bringing before a magistrate, and the requirement of a remand order by a Magistrate is a necessary ‘check and balance’ to prevent police abuse of their powers including torture. There have been way too many allegations of torture and even deaths in police custody. There were 110 lock up deaths from 2010 until 2016 in Malaysia. In a Bar statement dated 23/4/2018, it was stated that, ‘The Malaysian Bar is appalled that two more men have died while in police custody, within the space of merely a few weeks.’. 

The need to bring before a Magistrate within 24 hours and the need for application to the Magistrate for further remand orders, gives the Magistrate the opportunity to ensure no police wrongdoings, and that these further detentions are really needed for investigation purposes and not for some  other ‘wrong’ or illegal objectives, including maybe the ‘torture’ of suspects. 

If SOSMA is relied on when a person is charged in court, bail will be denied, meaning the accused innocent person will have to stay in prison until his/her trial is over. Even if the court finds him/her not guilty, using SOSMA, the prosecution could still ask that he/she continued to be detained until the subsequent appeals are done and disposed off.

If  SOSMA, is used during trial, normal Evidential and Criminal Procedural requirements can also be ignored. What is not admissible in normal criminal trials could become admissible if SOSMA is used. These evidential and procedural requirements are there to ensure a fair trial, and that justice is done.

SOSMA can only be used for security offences, which now includes that vague newly introduced draconian offences by past regime criminalizing all forms of ‘activity detrimental to parliamentary democracy’(section 124B-J Penal Code) which is also under Chapter VI – Offences Against The State. 

In November 2016, Maria Chin Abdullah(then Bersih 2.0 chairman) herself, was arrested and detained under Section 124C of the Penal Code that prohibits the attempt to commit activities detrimental to parliamentary democracy. SOSMA was used here..(Malay Mail, 20/11/2016)

Failure To Answer The  Question – Disclose All Answers On Parliamentary Website

In this Parliamentary Reply, the government also did reveal that until July 2018, 592 persons were detained under SOSMA (510 Malaysians 10 foreigners), of which 102 Malaysian and 58 foreigners have been convicted, and 408 Malaysians and 22 foreigners are remand detainees (tahanan reman). 

Is Maria Chin one of these ‘remand detainees’? By convicted, one assumes that they have been tried in court  and convicted. Does ‘remand detainees’ mean that they, like Maria Chin, were released and never charged, or does it also include those who have been charged in court and denied bail? The government really ought to provide clearer answers.

MP Maria Chin’s question about the age breakdown of the victims of SOSMA and POCA were never even answered. 

With regards to POCA, the answer was that until July 2018, there are 535 being detained under POCA - 448 Malaysians 87 foreigners. Again, there was no age breakdown, and no indication of the number of adults and the number of juveniles, which was also asked by Maria Chin.

Malaysians were lucky that MP Maria Chin shared the question and answer she received, but sadly we will never know the questions and government answers from so many of our other MPs/Senators.

 The Hansard is a verbatim record of what happens in the Dewan Rakyat, but as there is no time to answer all the listed oral questions, many answers are provided later in written form. There are also the questions of MPs at every parliamentary session seeking written responses. 

Transparency really demands that all these questions and government’s answers now are available at the Parliamentary website, which can be accessed by everyone.  

Confusion about commitment to repeal SOSMA, POCA and Bad Laws

Several days ago, it was also reported in the media that Datuk Mohd Azis Jamman, the still Deputy Home Minister, who said ‘"…In my opinion, the law is good…’. He was referring to the SOSMA, POCA and POTA, which he said "However, the law has been abused in the past for political reasons, thus the ministry has set up a special committee to review it along with other laws, such as Prevention of Terrorism Act (Pota) and Prevention of Crime Act (Poca)…’(Star, 7/8/2018)

Taken together, what was stated by the Deputy Home Minister and the Home Minister’s Reply to Maria Chin, Malaysians may really have something to worry about – Will this new government simply keep and continue to use these draconian laws like SOSMA, POCA and other Detention without Trial Laws just like the past UMNO-BN government?

Government Of Many Past Victims Of Unjust Laws Must Do The Right Thing

This Pakatan Harapan led government is a government of many  past victims of DWT laws and unjust laws. As such, many Malaysians expected speedy abolition of POCA and Detention Without Trial laws, SOSMA, Sedition Act and other unjust laws, or at the very least a pronouncement that such laws will no longer be used. 

Over 100 days have passed, and we have not yet seen the many hundreds, possibly thousands, of persons currently being detained without trial under the Detention Without Trial laws like Prevention of Crimes Act, Prevention of Terrorism Act and the Dangerous Drugs (Special Preventive Measures) Act being released unconditionally. We have also not seen the possibly thousands currently being under Restriction Orders, being liberated of their restrictions.

MADPET calls on the Malaysian government to immediate clarify and reaffirm their commitment to speedily repeal POCA and all Detention Without Trial laws, and SOSMA.

MADPET also calls on the government to immediately stop the usage of these and other draconian laws pending its repeal.

MADPET also calls on the Malaysian government to immediately release all those currently being detained and/or restricted under Detention Without Trial Laws, and also SOSMA.

Charles Hector

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

Fair trial for Najib, pre-trial disclosure a fundamental right — MADPET(Malay Mail, 17/8/2018)

Fair trial for Najib, pre-trial disclosure a fundamental right — MADPET

Published 8 hours ago on 17 August 2018

AUGUST 17 — MADPET (Malaysians Against Death Penalty and Torture) notes that Datuk Seri Najib Razak, our former Prime Minister, like everyone else in Malaysia, has the right to be accorded a fair trial. This includes the right to have all evidence and facts delivered to the accused soon after he/she has been charged, to enable the accused the needed time and opportunity to prepare his/her defence.

The prosecution should be interested in the truth and that justice is done, not simply the winning of a case by any means. There should be no delay in pre-trial disclosure obligations, no suppression of evidence or facts, and certainly no ‘surprising’ of the accused at trial at the last minute with previously undisclosed evidence.

In Malaysia, the obligation in written law requiring the prosecution to disclose to the accused relevant facts and evidence to enable the defence time to investigate, verify and even prepare their defence was very late in coming.

After several attempts in courts, for the recognition of pre-trial disclosure of evidence, documents and facts before the trial, as being a fundamental requirement to ensure a fair trial, Parliament did amend the law in 2006, inserting of the new section 51A in the Criminal Procedure Code, which now makes pre-trial disclosure by the prosecution obligatory.

Sadly, there still are many inadequacies in this new section 51A, including also the provision which still allows the prosecution to ‘hide’ certain facts that may be favourable for the accused.

Prosecution should submit everything, including also all evidence, documents and facts favourable to the accused persons. This should rightly include all reports and also all statements recorded during the investigations. Other evidence and information, discovered later, should also be submitted to the accused person as soon as possible.

The accused person should have the time to do their own investigation about this alleged evidence and/or witnesses, which prosecution has obtained. The accused people also have the right to interview before trial all possible witnesses of the prosecution, and others in their preparation of their defence in a case.

A good defence lawyer will generally not simply go blindly and unprepared to court, and simply wait for prosecution to submit their evidence, and then try to challenge these evidence and/or witnesses as it is revealed. A good lawyer would have also conduct their own investigations, including of the potential witnesses and evidence the prosecution may be submitting. Full pre-trial disclosure allows this to be done, as this may reveal flaws in witnesses and/or evidence presented by the prosecution during trial, that are most relevant for judges in determining the weight that should be given to such pieces of evidence.

Many Malaysians may now be angry with what Najib and the previous government did while in power, but this should really not affect our uncompromising commitment to justice, rule of law and the right to a fair trial for all.

Pre-trial disclosure requirement still inadequate – time

Section 51A still is inadequate, as it still does not state clearly the time for the delivery of these material to the accused person, and all that is stated now is that this delivery must be done ’before the commencement of the trial’. This is vague, and as such it could be done even minutes before the trial starts, with the calling of the first witness.

Rightly, it should be submitted as soon as the accused is charged, and thereafter for other new evidence, as soon as prosecution has it.

In the case of Najib, it is most disturbing that these documents were not delivered to the accused soon after he was charged on 4/7/2018, but allegedly only on 8/8/2018. As such Najib’s defence team may have been prejudiced by this delay of more than a month.(Malaysiakini, 8/8/2018)

The documents were also allegedly delivered in a CD format, which hopefully were coloured copies of the said original documents, because just delivering black and white photocopies of original documents in colour will simply not do. The Defence have a right to know whether prosecution has original documents or just mere photocopies.

Previously, these documents would have been delivered as printed bundles, but not in a CD format. Even if delivered in a CD format, it really may be best that still a Bundle of documents are provided to the accused, as not all lawyers may have the same version of the programs in their computers under which these documents were created in, or even printers that will print accurately the documents in the same sizes in which the original is in.

Section 51a now only requires prosecution to provide some but not all documents

There is now a requirement to provide the First Information Report(FIR), being really the report that initiated the investigations. Then, there is an obligation to provide ‘ (b) a copy of any document which would be tendered as part of the evidence for the prosecution; ’, but what about the other documents that may be available which the prosecution will not use during trial.

Justly, all documents should be made available to the accused. This must include all witness statements recorded during the investigations, including reports of all police officers involving the conducting of investigations, statements recorded from witnesses, report of identification parades, all reports of tests conducted, letters and correspondences between the police/prosecutors to governments/institutions done during the investigations and other relevant documents.

Section 51a still allows the prosecution to ‘hide’ relevant facts

Section 51A(1)(c) now, states that prosecution must provide ‘ (c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution . ‘, but then Section 51A(2) states, “Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.’. This means favourable facts could simply be hidden from the accused, and may even not being revealed in court. This is grossly unjust to the accused person, and undermines the right to a fair trial and justice.

The decision of what is ‘contrary to public interest’ seems to be now with the prosecution, when it really should be a decision of the court, after according the right to be heard to both the accused and the prosecution.

However, what is best is that there is no withholding of facts and/or evidence when it comes to a criminal trial, where a conviction may result in imprisonment, corporal punishment (whipping) and even the death penalty.

Deciding what is relevant or even ‘favourable to the accused’ may differ from person to person. As such, it is safe for the prosecution to simply disclose not just all facts, but also all documents and/or evidence to the accused. Even if something maybe considered not relevant by the prosecution, the accused and even the court may consider it relevant. A failure of the prosecution to provide disclosure of such material may result in a miscarriage of justice.

It is today a well-established and accepted principle that the disclosure of material which is in the possession of the prosecution to the defence case is an important and fundamental ingredient of a fair trial.

We certainly do not want any person to be wrongly convicted by reason of action/omission on the part of the prosecution and/or the police, which may include the suppression of relevant facts and evidence, as did happen in many cases in the past like the famous Guildford Four and Birmingham Six cases. Sadly, in some cases, truth is revealed after the convicted have already been executed by the State.

Despite our anger, no one should be wrongly denied a fair trial

Najib’s case may have highlighted this concern about pre-trial disclosure by the prosecution in a criminal trial, but this is a concern for all in Malaysia that are charged in criminal courts.

The new Pakatan Harapan led government, who has repeatedly stressed their commitment to Rule of Law and justice, must now speedily amend our laws to guarantee full pre-trial disclosure, that should happen timeously, preferably immediately after an accused person is charged.

In the criminal justice system, a person may have done wrong, but to convict a person of a crime, prosecution has a high burden of proof — beyond reasonable doubt, and this is so to ensure that there is less chances of a miscarriage of justice. All that the defence need to establish is the existence of a reasonable doubt, and then the courts will not convict.

Other reasons for a failure to convict, is the existence of bad laws or the non-existent of laws that make a wrongdoing a crime. The laws that protect public servants, including the Prime Minister, members of the executive and peoples’ representative really must be reviewed, and improved to make sure that no wrongdoings goes unpunished.

Malaysian should be committed to guarantee all in Malaysia the right to a fair trial, which also must mean the immediate abolition of all Detention Without Trial laws like the Prevention of Crime Act 1959 (POCA) and Prevention of Terrorism Act 2015, laws that allow persons, not accorded a fair trial to be detained or restricted without any fair trial.

100 days have lapsed, since the Pakatan Harapan led government came into power, but sadly what is done to date with regard to the much needed repeals of bad laws, which deny the right to a fair trial, or the amendment/enactment of laws that ensure greater protection of human rights has still not happened.

*This statement is submitted by Charles Hector for and on behalf of MADPET(Malaysians Against Death Penalty and Torture). - Malay Mail, 17/8/2018

See full original statements, and relevant media reports at-

MADPET - Fair Trial for Najib, Pre-Trial Disclosure laws need to be improved to ensure justice?